Anderson v. City of Fulton, Kentucky et al
Filing
56
MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 8/29/2019. Granting 50 Motion to Dismiss for Failure to State a Claim. Defendant Bell is dismissed from this action. cc: Counsel(KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:18-CV-032-TBR
BOB ANDERSON,
Administrator of the Estate of Charles Christopher McClure,
Deceased, and Next Friend of S.M., B.M., and C.M., Minor
Daughters of Mr. McClure
PLAINTIFF
v.
CITY OF FULTON, KENTUCKY, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant Lonnie Bell’s Motion to Dismiss. [R.
50.] Plaintiff Bob Anderson responded, [R. 51], and Bell replied, [R. 52]. Fully briefed, this
matter is ripe for adjudication. For the reasons stated herein, Bell’s Motion to Dismiss, [R. 50], is
GRANTED.
BACKGROUND
The general factual background of this case can be found in the Court’s previous
Memorandum Opinion and Order from November 28, 2018, [R. 41.] The Motion to Dismiss
before the Court solely involves the claims against Lonnie Bell, a member of the Critical
Incident Response Team (“CIRT”),1 who was assigned the task of investigating the shooting at
issue.2 During the course of his investigation, Bell interviewed Fulton Police Chief Terry Powell,
1
Anderson explains that the CIRT was “formed by KSP solely for the purpose of investigating police shootings.”
[R. 25 at 6.]
2
In the First Amended Complaint, Anderson cites the opinions of three of the defendants on CIRT:
According to Defendant Tilley, the purpose of the CIRT is to promote transparency and
accountability when responding to police-related shootings. According to Defendant Sanders, the
CIRT is composed of “six of the best investigators KSP has to offer”, which presumably includes
1
Lieutenant James Buckingham, and Fulcher (another officer at the scene), reviewed the footage
from Powell’s dashcam, and reviewed the footage from Buckingham’s bodycam. [Id. at 7.]
Anderson states that although the camera footage refutes any justification by the police officers
for the fatal shooting, Bell nonetheless concluded that Mr. McClure “continued to swing the post
at a police … officer in a threatening manner, which resulted in Mr. McClure being shot and
killed by a police officer.” [Id.] Bell then took the conclusions of his investigation to
Commonwealth Attorney Michael Stacy, who presented the case to a Grand Jury. [Id.] Anderson
alleges that Bell explicitly or implicitly made several, factual misrepresentations to the Grand
Jury about what occurred at the scene. [Id. at 8.] Further detail concerning Bell’s grand jury
testimony can be found in the discussion below.
On October 4, 2018, Anderson filed the First Amended Complaint, in which he alleged
eight causes of action, including “[v]iolation of Fourth, Fifth, Eighth, and Fourteenth
Amendments Pursuant to 42 U.S.C. § 1983,” “negligence/gross negligence,” battery, wrongful
death, loss of consortium, hindrance of prosecution, perjury, and abuse of public office, against
nine defendants. [Id. at 9-11.]3
LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to survive a motion to dismiss under
Rule 12(b)(6), a party must “plead enough ‘factual matter’ to raise a ‘plausible’ inference of
Defendant Bell. Defendant Payne said that the KSP “want[s]... people to have the confidence in us
that we have our best people doing those investigations."
[Id. at 6-7.]
The Court notes that the cause of action for perjury is only alleged against defendants Stacy, Tilley, Payne, and
Bell. [See R. 25 at 11.]
3
2
wrongdoing.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir.
2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes plausible “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the
Court must presume all of the factual allegations in the complaint are true and draw all
reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v.
Anthem Blue Cross and Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel
v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). “The court need not, however, accept
unwarranted factual inferences.” Id. (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12
(6th Cir. 1987)). Should the well-pleaded facts support no “more than the mere possibility of
misconduct,” then dismissal is warranted. Iqbal, 556 U.S at 679. The Court may grant a motion
to dismiss “only if, after drawing all reasonable inferences from the allegations in the complaint
in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief.” Garceau v.
City of Flint, 572 F. App’x. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677–79).
DISCUSSION
In the Amended Complaint, Bell is included amongst the listed defendants for
Anderson’s claims of “[v]iolation of Fourth, Fifth, Eighth, and Fourteenth Amendments Pursuant
to 42 U.S.C. § 1983,” “negligence/gross negligence,” battery, wrongful death, loss of
consortium, hindrance of prosecution, perjury, and abuse of public office. [R. 25 at 9-11.] In
response to Anderson’s § 1983 claim, amongst other arguments, Bell maintains that he is entitled
to absolute immunity. [R. 50 at 5.] As for the state claims asserted against him, Bell argues that
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Anderson has failed to state a claim. [Id. at 14-18.] The Court will address each of these issues in
turn.
I.
Absolute Immunity for Grand Jury Testimony
In his Motion to Dismiss, Bell asserts that he is absolutely immune from Anderson’s §
1983 claim against him as it is based on his testimony in front of the Grand Jury. [R. 50 at 5-6.]
In the Amended Complaint, Anderson claims that after Bell investigated the incident involving
McClure’s fatal shooting:
Defendant Bell explicitly or implicitly misrepresented to the Grand Jury the
following:
a. That there were attempts made to “subdue” Mr. McClure before he was shot;
b. That Mr. McClure, when he struck the front windshield of Defendant
Powell’s SUV with the pipe he was carrying, was trying to strike Defendant
Powell and not just his windshield;
c. That when Defendant Buckingham exited his vehicle, he walked to the back
of his vehicle, whereupon Mr. McClure broke the back windshield of
Defendant Buckingham’s vehicle and then “raised the pipe in a threatening
manner,” whereupon he was shot the first time by Defendant Buckingham;
d. That after Mr. McClure was shot the first time, he was “kicking” and keeping
his hands “hidden”;
e. That given Defendant Buckingham’s “close proximity” to Mr. McClure, Mr.
McClure’s “weapon” and “what he was electing to do with it”, there were no
options available to Defendant Buckingham other than to shoot Mr. McClure;
f. That had Defendant Buckingham failed to subdue Mr. McClure with a nonlethal force alternative such as a taser, he would have been left helpless in the
face of a lethal risk;
g. That “the first shot did not stop” Mr. McClure;
h. That the knife was “just inches away” from Mr. McClure when he was shot
the second time; and
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i. That if Defendant Buckingham didn’t shoot Mr. McClure, a private citizen at
the scene who was a Viet Nam [sic] veteran and had a carry license would
probably have done it himself.
[R. 25 at 8.] Bell argues that “[m]isstatements and even outright lies to the grand jury would not
support a claim under 42 U.S.C. § 1983.” [R. 50 at 5.] The Court agrees that Bell is entitled to
absolute immunity concerning his grand jury testimony.
The United States Supreme Court has stated: “grand jury witnesses should enjoy the
same immunity as witnesses at trial. This means that a grand jury witness has absolute immunity
from any § 1983 claim based on the witness' testimony.” Rehberg v. Paulk, 566 U.S. 356, 369
(2012). Additionally, “this rule may not be circumvented by claiming that a grand jury witness
conspired to present false testimony or by using evidence of the witness' testimony to support
any other § 1983 claim concerning the initiation or maintenance of a prosecution.” Id. This is
because, “[w]ere it otherwise, ‘a criminal defendant turned civil plaintiff could simply reframe a
claim to attack the preparation instead of the absolutely immune actions themselves.’” Id.
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 283 (1993) (Kennedy, J., concurring in part and
dissenting in part)). Here, the factual allegations in the Amended Complaint that support
Anderson’s § 1983 claim revolve around Bell’s grand jury testimony. Therefore, Bell has
absolute immunity from any § 1983 claim based on his grand jury testimony. The Court
acknowledges Anderson’s argument that “Bell’s misconduct was not the product of a splitsecond decision on his part after taking the stand” but was part of “a cover-up conceived
beforehand.” [R. 51 at 3-4.] However, as explained above, Anderson may not circumvent the
rule of absolute immunity for grand jury testimony by “claiming that a grand jury witness
conspired to present false testimony . . . .” Rehberg, 566 U.S. at 369. Thus, the Court finds that
Bell enjoys absolute immunity and Anderson’s § 1983 claim against him shall be dismissed.
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In response, Anderson essentially provides three arguments why he believes this
assessment of absolute immunity is false. First, Anderson argues that despite Bell’s claim of
immunity, he still has a cause of action for “denial of due process and access to the courts under
the Fourteenth Amendment where law enforcement officers intentionally engaged in a cover-up
‘that interfered with [the plaintiff’s] exercise of [his] constitutionally protected right to institute a
wrongful death suit.’” [R. 51 at 4 (citing Ryland v. Shapiro, 708 F.2d 967, 971-73 (5th Cir.
1983)).] In support of this assertion, Anderson cites to the Fifth Circuit’s findings in Ryland v.
Shapiro, in which the court held that two prosecutors were not entitled to prosecutorial immunity
when they acted outside their roles as prosecutors by falsifying a death certificate and covering
up a murder for eleven months. Ryland, 708 F.2d at 975. As highlighted by Bell in his Reply, [R.
52 at 2], this case did not involve the immunity of a grand jury witness. Thus, Ryland, is easily
distinguishable from the matter at hand. Furthermore, the precedent of the Fifth Circuit is not
binding on this Court.
Second, Anderson implies that immunity does not prohibit his claim due to the Fifth
Circuit’s finding that "if state officers conspire . . . in such a way as to defeat or prejudice a
litigant's rights in state court, that would amount to a denial of equal protection of the laws by
persons acting under color of state law." [R. 51 at 4 (quoting Dinwiddie v. Brown, 230 F.2d 465,
469 (5th Cir.), cert. denied, 351 U.S. 971 (1956)).] Besides the fact that this case law is over fifty
years old and not binding on this court, it is also distinguishable from the matter at hand. Once
again, the Fifth Circuit’s findings in Dinwiddie do not concern the issue of immunity; thus, it is
inapplicable to the case before the Court.
Lastly, Anderson argues that he is “entitled to at least file suit and pursue discovery to
determine whether Bell’s misconduct has rendered this action ineffective in compensating the
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injuries to Mr. McClure’s estate and minor children.” [R. 51 at 5.] In support of this assertion,
Anderson cites to the Sixth Circuit case of Swekel v. City of River Rouge, 119 F.3d 1259, 1264
(6th Cir. 1997). In Swekel, the Sixth Circuit affirmed the dismissal of a § 1983 claim arguing that
the defendants denied the plaintiff access to the courts when the plaintiff failed to present
evidence that the defendants’ actions rendered a state court remedy ineffective. Id. Unlike the
matter at hand, Swekel did not involve the issue of absolute immunity for grand jury testimony.
Thus, Swekel is not applicable in this circumstance.
In conclusion, the Court finds that Bell has absolute immunity from any § 1983 claim
based on his grand jury testimony. As the factual allegations in the Amended Complaint that
support Anderson’s § 1983 claim revolve around Bell’s grand jury testimony, Anderson’s § 1983
claim against Bell is dismissed. Bell’s Motion to Dismiss, [R. 50], as it pertains to Anderson’s §
1983 claim, is GRANTED.
II.
State Law Claims
Remaining before the Court are the following claims: battery,4 negligence/gross
negligence, wrongful death, and loss of consortium.5 Beyond the factual allegations produced
above, the Amended Complaint provides no allegations specific to Bell regarding the various
remaining state law claims. Instead, the Amended Complaint contains generic conclusions
regarding all the defendants listed in the case. Following Anderson’s recounting of Bell’s grand
jury testimony, the Amended Complaint states:
22. Plaintiff believes, and anticipates that he will be able to prove in discovery,
that there exists a custom and practice of covering up unwarranted shootings of
4
Anderson also listed a claim of excessive force along with these claims in his response. [R. 51 at 5.] However, in
the Amended Complaint, the claim of excessive force was listed under his § 1983 cause of action, which has been
dismissed. [R. 25 at 9-10.]
5
As Anderson “does not object to the dismissal of his claims against Bell for perjury, hindrance of prosecution,
or abuse of public office,” [R. 51 at 5], those claims are DISMISSED.
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unarmed Kentucky citizens that pervades the culture of the Fulton Police, the
KSP, and the office of the Commonwealth Attorney of Fulton County. This
culture effectively encourages unwarranted police shootings to the detriment of
Kentucky citizens (such as Mr. McClure) and the public interest, and immunizes
the type of “shock-the-conscience” misconduct that underlies this case.
[R. 25 at 8.] Directly following this assertion, the Amended Complaint provides:
23. Defendants, individually and in conspiracy with one another, engaged in the
misconduct described above under color of the law of the Commonwealth of
Kentucky, and knowingly participated or acquiesced in, contributed to,
encouraged, implicitly authorized, approved, or ratified such misconduct. This
misconduct described above resulted from the failure of Defendants to employ
qualified persons for positions of authority, and/or to properly and conscientiously
train and supervise the conduct of such persons after their employment, and/or to
promulgate appropriate policies and procedures either formally or by custom to
protect the constitutional rights of citizens like Mr. McClure whom they are
sworn to protect, and/or to implement, follow, and enforce existing policies and
procedures that would have prevented Mr. McClure’s death. Defendants' conduct
was intentional and grossly negligent, indicated active malice toward Mr.
McClure and others like him and a total, deliberate and reckless disregard for and
indifference to his life, his constitutional and common law rights and those of his
estate and minor daughters, and to the principles of transparency and
accountability in law enforcement, and justifies an award of actual and punitive
damages.
[Id. at 8-9.] It is unclear to the Court how either of these generic assertions concerning all of the
defendants together relates to the four remaining claims as they relate to Bell. Furthermore, the
individual causes of action, as listed in the Amended Complaint, provide little assistance:
B. Negligence/Gross Negligence (against the individual Defendants)
28. By virtue of the foregoing, the individual Defendants, individually and in
conspiracy with one another, were negligent and grossly negligent.
C. Battery (against the individual Defendants)
29. By virtue of the foregoing, the individual Defendants, individually and in
conspiracy with one another, battered Mr. McClure.
D. Wrongful Death (against the individual Defendants)
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30. By virtue of the foregoing, Mr. McClure’s estate is entitled to recover from
the individual Defendants for his wrongful death pursuant to KRS 411.130.
E. Loss of Consortium (against the individual Defendants)
31. By virtue of the foregoing, Mr. McClure’s minor daughters, S.M., B.M., and
C.M., are entitled to recover from the individual Defendants for the loss of
their father’s love, support, society and companionship.
[R. 25 at 10.] The Supreme Court has stated that “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Id. The
Court finds that, at best, these limited factual allegations, along with the broad, conclusory
statements mentioned, support no “more than the mere possibility of misconduct.” Id. at 679.6
Anderson attempts to bring some specificity to the group of claims in his Response by
stating, in reference to all four claims, “Plaintiff is not claiming that Bell participated in the
killing of Mr. McClure; Plaintiff is claiming that Bell participated in a conspiracy of cover-up
that led Buckingham to believe he could kill Mr. McClure with impunity.” [R. 51 at 5.] Still,
absent from Anderson’s Response is any factual allegation as to how Bell participated in a
“conspiracy of cover-up,” or any explanation as to how this conspiracy relates to the four
remaining causes of action. The only case Anderson cites in support of these assertions is Turner
v. Scott, 119 F.3d 425, 429 (6th Cir. 1997), in which the Sixth Circuit explained that “there are
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The Court acknowledges that it declined to exercise supplemental jurisdiction over the state claims against
defendants William Payne, Richard Sanders, and John Tilley in its previous Memorandum Opinion and Order. [R.
41 at 9; 11.] However, the circumstances surrounding the claims against Bell prove to be quite different. Here, the
state claims are factually and legally intertwined with Anderson’s explanation behind his federal claim: that Bell
was a part of a “conspiracy . . . to cover up instances of unwarranted police shootings and immunize guilty officials
from the consequences of their misconduct,” [R. 51 at 3]. See McKenzie v. City of Detroit, 74 F. App'x 553, 556 (6th
Cir. 2003) (finding, in part, that a district court did not abuse its discretion when it exercised supplemental
jurisdiction over state claims that were both “factually and legally intertwined” with the plaintiff’s federal claim).
Furthermore, the Court finds, in its discretion, that the interests of judicial economy and fairness weigh against
requiring the parties to make these same arguments once again in state court. Id.; see also Experimental Holdings,
Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007) (“Generally, once a federal court has dismissed a plaintiff's federal
law claim, it should not reach state law claims.”).
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circumstances under which police officers can be held liable for failure to protect a person from
the use of excessive force.” However, the case did not involve absolute immunity for grand jury
testimony. As explained above, the Court has already denied Anderson’s claim of excessive
force under his § 1983 claim due to absolute immunity. Thus, Anderson’s further arguments in
his Response do not save his claims against Bell.
As an alternative argument, at the end of his Response, Anderson asserts that if “the
Court believes there still exists a deficiency in Plaintiffs’ Original or the tendered First Amended
Complaint that renders it vulnerable to dismissal, it ‘must permit a curative amendment, unless
an amendment would be inequitable or futile.’” [R. 51 at 6 (quoting Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004).]. Although a request to amend should normally be freely given under
Federal Rule of Civil Procedure 15(a), the Sixth Circuit has held that “an informal request
contained in a brief in opposition to a motion to dismiss is not deemed a Rule 15 motion to
amend.” Gonzalez v. Kovacs, 687 F. App'x 466, 470 (6th Cir. 2017) (citing Begala v. PNC Bank,
214 F.3d 776, 784 (6th Cir. 2000)). In PR Diamonds, Inc. v. Chandler, 364 F.3d 671 (6th Cir.
2004), the Sixth Circuit explained:
In this case, Plaintiffs failed to follow the proper procedure for requesting leave to
amend. They did not actually file a motion to amend along with an accompanying
brief, as required by the local rules governing practice before the district court.
Instead, they simply included the following request in their brief opposing the
Defendants' motions to dismiss: “Alternatively, in the event the Court grants any
part of the Defendants' motions to dismiss, plaintiffs respectfully request leave to
amend their Complaint.” As the D.C. Circuit has found, “a bare request in an
opposition to a motion to dismiss—without any indication of the particular
grounds on which amendment is sought, cf. Federal Rule of Civil Procedure 7(b)does not constitute a motion within the contemplation of Rule 15(a).” Confederate
Mem'l Ass'n v. Hines, 995 F.2d 295, 299 (D.C.Cir.1993), quoted in D.E.&J. Ltd.
P'ship v. Conaway, 284 F.Supp.2d 719, 751 (E.D.Mich.2003). This Court's
disfavor of such a bare request in lieu of a properly filed motion for leave to
amend was made clear in Begala v. PNC Bank, Ohio, N.A., 214 F.3d 776, 784
(6th Cir.2000): “What plaintiffs may have stated, almost as an aside to the district
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court in a memorandum in opposition to the defendant's motion to dismiss is also
not a motion to amend.” As the Begala decision reasoned in affirming the district
court's dismissal of the plaintiff's complaint with prejudice in that case,
Had plaintiffs filed a motion to amend the complaint prior to th[e] Court's
consideration of the motions to dismiss and accompanied that motion with a
memorandum identifying the proposed amendments, the Court would have
considered the motions to dismiss in light of the proposed amendments to the
complaint. . . . Absent such a motion, however, Defendant was entitled to a
review of the complaint as filed pursuant to Rule 12(b)(6). Plaintiffs were not
entitled to an advisory opinion from the Court informing them of the
deficiencies of the complaint and then an opportunity to cure those
deficiencies.
PR Diamonds, Inc., 364 F.3d at 699. Under these circumstances, the Court finds that it
has no obligation to grant Anderson’s informal request to amend. Gonzalez, 687 F. App'x
at 470. Furthermore, considering that the complaint has already been amended once and
the Motion to Dismiss was filed in April, the Court finds that Anderson had plenty of
opportunities to file a motion to amend his complaint.
In conclusion, the Court finds that Anderson has failed to state a claim regarding his four
remaining causes of action. Therefore, Bell’s Motion to Dismiss, [R. 50], as it pertains to the
remaining causes of action, i.e., battery, negligence/gross negligence, wrongful death, and loss
of consortium, is GRANTED.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED: Bell’s Motion to Dismiss, [R.
50], is GRANTED. As Bell is entitled to absolute immunity regarding Anderson’s § 1983 claim,
Anderson’s § 1983 claim is dismissed with prejudice. Moreover, as Anderson conceded to the
dismissal of his claims against Bell for perjury, hindrance of prosecution, and abuse of public
office, those claims are also dismissed with prejudice. Anderson’s remaining claims of battery,
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negligence/gross negligence, wrongful death, and loss of consortium are dismissed without
prejudice.
Defendant Bell is DISMISSED from this action as there are no more claims remaining
against him. The Clerk of Court is DIRECTED to remove Defendant Bell from the docket of this
action.
IT IS SO ORDERED.
August 29, 2019
cc: Counsel of Record
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