Johnson v. Smith et al

Filing 54

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Greg N. Stivers on 3/27/2024. Defendants' Motion for Summary Judgment DN 40 is GRANTED IN PART and DENIED IN PART. Plaintiff's Motion for Leave to File Excess Pages DN 49 is GRANTED. cc: Counsel (DeW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:21-CV-00187-GNS-LLK
EDWARD JOHNSON

PLAINTIFF

v.
BRIAN SMITH et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment (DN 40)
and Plaintiff’s Motion for Leave to File Excess Pages (DN 49).1 The motions are ripe for
adjudication. For the reasons discussed below, Defendants’ motion is GRANTED IN PART and
DENIED IN PART, and Plaintiff’s motion is GRANTED.
I.

BACKGROUND

Plaintiff Edward Johnson (“Johnson”) called 911 to report that nonparty James Forte
(“Forte”) was being “belligerent” outside the motel where Johnson was staying with his niece
Chaquita Johnson (“Chaquita”). (See Defs.’ Mot. Summ. J. Ex. 1, at 1-2, DN 40-2). Defendant
Edward Eastman (“Eastman”), a Hopkinsville Police Department (“HPD”) officer, arrived at the
hotel a day later and arrested Forte because of an active warrant for his arrest. (Eastman Video
22:14:06-22:16:30, DN 41).

While arresting Forte, Chaquita had multiple exchanges with

Eastman, who eventually informed her that she would be arrested for disorderly conduct if she did
not return to her motel room and remain there. (Eastman Video 22:14:06-22:16:00). Soon after,
Defendants Brian Smith (“Smith”) and Josh Stallons (“Stallons”), two other HPD officers, arrived
on scene. (Stallons Video, DN 41; Smith Video, DN 41). Chaquita again began speaking to the
1

Because the relief requested in Plaintiff’s motion is reasonable and because Defendants did not
respond, Plaintiff’s motion is granted.
1

officers about a key that Forte had and was again warned that she would be arrested if she “[came]
outside screaming again . . . .” (Stallons Video 22:16:30-22:16:55). Stallons retrieved the key
from Forte, walked to the motel room, and gave the key to Johnson. (Stallons Video 22:16:5522:18:05). At that time, Stallons advised Johnson, “Yeah you might want to shut the door before
she goes with him[,]” to which Johnson responded, “Alright.”

(Stallons Video 22:18:00-

22:18:12). Johnson closed the door. (Stallons Video 22:18:10-22:18:30).
Stallons and Eastman arrested Forte, placed him into a police car, and began a search of
Forte’s vehicle. (Stallons Video 22:18:30-22:20:30; Eastman Video 22:18:30-22:20:30). During
that time, Smith stood outside of Johnson’s motel room. (Smith Video 22:19:15-22:19:45). When
Chaquita emerged again, Smith instructed her to go back inside and closed the door. (Smith Video
22:20:35-22:20:50). Chaquita and Johnson could be heard arguing behind the closed door, and
then Johnson opened the door. (Smith Video 22:20:50-22:21:12).
Johnson stood in the threshold of his motel room and asked Smith for his badge number,
which Smith provided before instructing Johnson to go back inside. (Smith Video 22:21:1222:21:17). Johnson continued standing in the doorway and told Smith, “You need to chill out.”
(Smith Video 22:21:17-22:21:20). Smith instructed Johnson to step back inside again or go to jail.
(Smith Video 22:21:20-22:21:27). Johnson continued standing in the threshold, and Smith
grabbed Johnson by his arm and pulled him out of the doorway. (Smith Video 22:21:20-22:21:27).
Stallons arrived and assisted Smith with placing Johnson in handcuffs. (Smith Video 22:21:2722:21:30). During the arrest, Johnson fell to the ground and Stallons placed his knee on Johnson’s
back while he and Smith put Johnson in handcuffs. (Smith Video 22:21:30-22:22:00). At the
same time, Eastman passed by the arrest and walked into the motel room to attempt to control the
other occupants. (Eastman Video 22:21:30-22:21:54). Johnson was placed under arrest and taken

2

to the emergency room due to complaints of knee pain. (See Defs.’ Mot. Summ. J. Ex. 7, at 1-3,
DN 40-8). Johnson was charged with obstructing governmental operations in violation of KRS
519.020, which was later dismissed due to lack of evidence. (See Defs.’ Mot. Summ. J. Ex. 9, DN
40-10; Pl.’s Resp. Defs.’ Mot. Summ. J. Ex. 5, at 1, DN 50-6).
Johnson initiated this lawsuit, asserting claims against Smith in his individual capacity for:
(1) violations of his Fourth, Fifth, and Fourteenth Amendment rights; (2) assault and malicious
prosecution; and (3) libel. (Compl. ¶¶ 9-20). Johnson brings claims against Stallons for: (1)
violations of his Fourth, Fifth, and Fourteenth Amendment rights; and (2) Assault. (Compl. ¶¶ 2127). Johnson brings claims against Eastman for violation of his Fourth, Fifth, and Fourteenth
Amendment rights. (Compl. ¶¶ 28-31).
II.

JURISDICTION

The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331
because a federal question is presented. The Court has supplemental subject matter jurisdiction
over Plaintiff’s state law claims arising from the same case or controversy pursuant to 28 U.S.C.
§ 1367(a).
III.

STANDARD OF REVIEW

Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party bears the burden of establishing the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thereafter, the burden shifts to the nonmoving
party to present specific facts indicating a genuine issue of a disputed material fact essential to the
case, beyond “some metaphysical doubt.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). The nonmoving party must present facts demonstrating a material factual

3

dispute that must be presented to “a jury or judge to resolve the parties’ differing versions of the
truth at trial[;]” the evidence, however, is “not required to be resolved conclusively in favor of the
party asserting its existence . . . .” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 28889 (1968). When considering the evidence, the Court must view it in the light most favorable to
the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). If the
record, taken as a whole, could not lead the trier of fact to find for the nonmoving party, the motion
should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
IV.

DISCUSSION

Defendants seek summary judgment on all of Johnson’s claims. (Defs.’ Mem. Supp. Mot.
Summ. J. 1, DN 40-1 [hereinafter Defs.’ Mem.]). Johnson concedes Defendants’ motion as to his
federal claims to the extent they are based on violations of his Fifth Amendment rights and his
state law claims for abuse of process2, libel, and for certain medical expenses.3 (Pl.’s Mem. Supp.
Resp. Defs.’ Mot. Summ. J. 18, 22-23, DN 50-1 [hereinafter Pl.’s Resp.]).
A.

Federal Claims

Defendants argue that Johnson cannot prove a violation of his Fourth Amendment rights,
and that, even if he can, Defendants are entitled to qualified immunity because the right was not
clearly established.4 (See Defs.’ Mem. 20-22).

2

This claim is included within Johnsons’ broader claim for assault and malicious prosecution
against Smith. (Compl. ¶ 14).
3
Defendants also assert that they are entitled to summary judgment on Johnson’s claims under the
Fourteenth Amendment because they are duplicative of his claims under the Fourth Amendment.
(Defs.’ Mem. 19-20). Johnson responds that he is only bringing his federal claims under the
Fourteenth Amendment because the Fourteenth Amendment incorporates the Fourth Amendment
against the states. (Pl.’s Resp. 18); see generally Mapp v. Ohio, 367 U.S. 643, 646-54 (1961).
Based on Johnson’s representations, the Court is satisfied that there are no duplicative claims.
4
Johnson brings his federal claims against each Defendant under a single count labeled
“Constitutional Violations” and does not specify any theories of liability under the Fourth
Amendment. (See Compl. ¶¶ 9-11, 21-24, 28-31). As a result, Defendants “address the multiple
4

“Qualified immunity protects government officials performing discretionary functions
unless their conduct violates a clearly established statutory or constitutional right of which a
reasonable person in the official’s position would have known.” Ward v. Borders, No. 3:16-CV393-RGJ-RSE, 2023 WL 5108598, at *6 (W.D. Ky. Aug. 9, 2023) (quoting Silberstein v. City of
Dayton, 440 F.3d 306, 311 (6th Cir. 2006)). “It ‘provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)). Qualified immunity shields federal and state official from liability unless a
plaintiff shows both “(1) that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.” Ouza v. City of Dearborn
Heights, 969 F.3d 265, 275 (6th Cir. 2020) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
“A right is clearly established for purposes of overcoming the qualified immunity defense only
when ‘existing precedent [has] placed the statutory or constitutional question beyond debate . . . .’”
Id. (alteration in original) (quoting al-Kidd, 563 U.S. at 741). “Thus, an official ‘cannot be said to
have violated a clearly established right unless the right’s contours were sufficiently definite that
any reasonable official in the defendant’s shoes would have understood that he was violating it.’”
Id. (quoting Kisela v. Hughes, 584 U.S. 100, 105 (2018)). “The ‘salient question’ in determining
if a defendant is entitled to qualified immunity is whether she had ‘fair warning’ that her conduct
was unconstitutional.” Id. at 276 (quoting Guertin v. State, 912 F.3d 907, 932 (6th Cir. 2019)).
“The plaintiff bears the ultimate burden of proof in establishing that a defendant has no
right to qualified immunity.” Ward, 2023 WL 5108598, at *6 (citing Gardenhire v. Schubert, 205

theories of liability for Fourth Amendment violations separately as they may be applicable” to the
facts underlying Johnson’s claims and argue that they are entitled to summary judgment under a
theory of excessive force, false arrest, and failure to intervene. (Defs.’ Mem. 8). Johnson does
not address whether these are the only theories he intended to pursue at trial.
5

F.3d 303, 311 (6th Cir. 2000)). A defendant must first argue facts that they acted within their
discretionary authority. See Hartman v. Thompson, No. 3:16-CV-00114-GNS-DW, 2018 WL
793440, at *7 (W.D. Ky. Feb. 7, 2018) (citing Gardenhire, 205 F.3d at 311). If a defendant
succeeds, “the burden shifts to the plaintiff to establish that the defendant’s conduct violated a
right so clearly established that any official in his position would have clearly understood that he
was under an affirmative duty to refrain from such conduct.” Id. (quoting Gardenhire, 205 F.3d
at 311). To do so, a plaintiff need not identify an earlier decision that is “directly on point, but
existing precedent must have placed the statutory or constitutional question beyond debate.”
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting al-Kidd, 563 U.S. at 741). The Sixth Circuit has
also recognized that a right may be clearly established even without existing precedent where a
violation was “sufficiently ‘obvious’ under the general standards of constitutional care . . . .” Hum.
Rts. Def. Ctr. v. Winn, 431 F. Supp. 3d 925, 934-35 (E.D. Mich. 2020) (quoting Lyons v. City of
Xenia, 417 F.3d 565, 579 (6th Cir. 2005)).
1.

Excessive Force
a.

Constitutional Violation

Defendants assert that Smith and Stallons are entitled to a dismissal of Johnson’s
constitutional claims to the extent they are based on a theory of excessive force.5 (Defs.’ Mem. 8,

5

Defendants also argue that Eastman is entitled to summary judgment under a theory of excessive
force because he did not use any force against Johnson and instead argues that Johnson’s Fourth
Amendment claim against Eastman fails under a theory of failure to intervene. (Defs.’ Mem. 12,
17-19). Johnson does not respond to this argument, so summary judgment is granted to Eastman
as to any assertion of direct excessive force. See Scott v. Tennessee, 878 F.2d 382, 1989 WL
72470, at *2 (6th Cir. 1989) (“[I]f a plaintiff fails to respond or to otherwise oppose a defendant’s
motion, then the district court may deem the plaintiff to have waived opposition to the motion.”
(citation omitted)); Degolia v. Kenton Cnty., 381 F. Supp. 3d 740, 759-60 (E.D. Ky. 2019) (“As a
practical matter, ‘it is well understood . . . that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the defendant, a court may treat those
6

10). Force is not per se excessive when used to make a false arrest. Gray v. Shelby Cnty., Nos.
22-5542/5543/5544, 2023 WL 5237373, at *6 (6th Cir. Aug. 15, 2023) (citations omitted). “[A]n
excessive force claim . . . relat[es] to the manner in which an arrest was carried out, and is
independent of whether law enforcement had the power to arrest.” Id. (second alteration in
original) (quoting Bashir v. Rockdale Cnty., 445 F.3d 1323, 1331 (11th Cir. 2006)).
“Fourth Amendment excessive-force claims are analyzed under an objectivereasonableness standard, which depends on the facts and circumstance of each case viewed from
the perspective of a reasonable officer on the scene.” Tucker v. Ky. State Police Post #4, No. 3:23CV-P328-JHM, 2023 WL 6929815, at *3 (W.D. Ky. Oct. 19, 2023) (citing Graham v. Connor,
490 U.S. 386, 395-96 (1989)). “In deciding whether the force used was excessive, we balance the
government’s interests in protecting others (including the police) and curbing crime against a
suspect’s right to not to be injured.” Puskas v. Delaware Cnty., 56 F.4th 1088, 1093-94 (6th Cir.
2023) (citing Gambrel v. Knox Cnty., 25 F.4th 391, 400 (6th Cir. 2022)). “Three factors are
particularly relevant: (1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect pose[d] an
immediate threat to the safety of the officers or others,’ and (3) ‘whether he [wa]s actively resisting
arrest or attempting to evade arrest by flight.’” Id. (alterations in original) (quoting Graham, 490
U.S. at 396). In considering these factors, the Court must “identify the ‘seizure’ at issue [] and
then examine ‘whether the force used to effect that seizure was reasonable in the totality of the
circumstances, not whether it was reasonable for the police to create the circumstances.’”
Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007) (quoting Dickerson v.
McClellan, 101 F.3d 1151, 1161 (6th Cir. 1996)).

arguments that the plaintiff failed to address as conceded.’” (alteration in original) (quoting Rouse
v. Caruso, No. 06-CV-10961-DT, 2011 WL 918327, at *18 (E.D. Mich. Feb. 18, 2011))).
7

In the Complaint, Johnson claims that Smith “forcefully threw [Johnson] to the ground”
and that Stallons “helped” Smith and “placed his knee in [Johnson]’s back.” (Compl. ¶¶ 9, 22).
Each Defendant’s conduct must be analyzed separately. Smith v. City of Troy, 874 F.3d 938, 944
(6th Cir. 2017) (citing Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009)).
i.

Smith

Johnson claims that Smith used excessive force by throwing Johnson to the ground without
justification. (Compl. ¶ 9). Defendants argue that Smith’s actions were objectively reasonable in
light of the facts and circumstances confronting them. (Defs.’ Reply Mot. Summ. J. 1, DN 53
[hereinafter Defs.’ Reply]). The parties largely agree on the actual sequence of events but
characterize them differently. Johnson describes his overall demeanor when communicating with
the officers as unthreatening. (See Pl.’s Resp. 6). Defendants focus on the things that Smith did
not know about Johnson at the time of the arrest. (See Defs.’ Mem. 10-12).
With respect to the actual use of force, Smith testified that he did not intend to bring
Johnson to the ground but that he and Johnson became entangled and fell to the ground. (See
Smith Dep. 60:2-6, Aug. 19, 2022, DN 40-3). Johnson characterizes the use of force as him being
“thrown to the ground.” (Pl.’s Resp. 6). None of the body camera videos shows clearly whether
Johnson was thrown to the ground or merely fell. (See Smith Video 22:21:27-22:21:37; Stallons
Video 22:21:27-22:21:37; Eastman Video 22:21:27-22:21:37). Viewing this ambiguity in the light
most favorable to Johnson, a reasonable jury could find that Smith threw Johnson to the ground.
Accordingly, the Court must apply the Graham factors and determine if such force was reasonable
given the circumstances.
Courts may consider a number of factors to evaluate the severity of the crime at issue such
as the classification of the offense, whether there was any “connotation of violence” by the

8

plaintiff, the reason the police were called to the scene, and public safety concerns. See Shumate
v. City of Adrian, 44 F.4th 427, 440-42 (6th Cir. 2022) (citations omitted). Defendants state that
Johnson’s crime was interfering with a drug investigation and Johnson was cited with “obstructing
governmental operations.” (Defs.’ Mem. 11; Defs.’ Mot. Summ. J. Ex. 5, DN 40-6). “Obstructing
governmental operations” is a misdemeanor, and Defendants admit that this is not a significant
charge. KRS 519.020; (see Defs.’ Reply 2). KRS 519.020 provides:
(1)
A person is guilty of obstructing governmental operations when he
intentionally obstructs, impairs or hinders the performance of a governmental
function by using or threatening to use violence, force or physical interference.
(2)
This section shall not apply to:
(a)
Any means of avoiding compliance with the law without affirmative
interference with governmental functions; or
(b)
The obstruction, impairment or hindrance of unlawful action by a
public servant; or
(c)
The obstruction, impairment or hindrance of an arrest.
(3)
Obstructing governmental operations is a Class A misdemeanor.
KRS 519.020.
Johnson disputes that he actually committed this crime. (See Pl.’s Resp. 10-11). As
explained below, Defendants have failed to establish that Smith had probable cause to arrest
Johnson, who claims he was not threatening to use violence and that instead he was simply
standing in the door to his hotel room and speaking with Smith. (Pl.’s Resp. 4, 11-12). Reviewing
the video in the light most favorable to Johnson, a reasonable jury could find that there was no
“connotation of violence.” Shumate, 44 F.4th at 441 (citing LaPlante v. City of Battle Creek, 30
F.4th 572, 580 (6th Cir. 2022)); (see Smith Video 22:21:11-22:21:27). Defendants identify no
reason for them to suspect that Johnson had committed a crime when they arrived, as Johnson had
been the one who called 911 in the first place. (See Defs.’ Mot. Summ. J. Ex. 1, at 1-2). Finally,
by the time Johnson interacted with Defendants, Forte was already in custody, so there was

9

minimal, if any, public safety concern. (See Smith Dep. 36:9-12). Therefore, the first Graham
factor weighs in Johnsons’ favor.
Turning to the second factor, Defendants contend that it was reasonable for Smith to
conclude that Johnson posed a threat to him. (See Defs.’ Mem. 10-12). First, Defendants assert
that Smith heard Johnson state “I will take care of this right now”6 prior to opening his hotel room
door, which phrase “often times entails violence when spoken in a hostile context.” (Smith Dep.
20:23-25; Defs.’ Mem. 11-12). Next, Defendants point to Chaquita’s repeated refusal to stay
inside the motel room and keep the motel door closed. (Defs.’ Mem. 12). Defendants also point
out that there was an unknown number of people in Johnson’s motel room and that they could not
know if there were weapons inside. (Defs.’ Mem. 10).
The footage from Smith’s body camera shows that when Johnson opened the door, he did
not leave the threshold of his room until Smith pulled him out approximately fifteen seconds later.
(Smith Video 22:21:11-22:21:27). During that time, Johnson asked Smith for his badge number,
which Smith provided and instructed Johnson to go back inside. (Smith Video 22:21:11-22:21:17).
Johnson stayed in the doorway and remarked, “You need to chill out.” (Smith Video 22:21:1822:21:22). Smith again told Johnson to go back inside and warned, “I’m not gonna ask you again.
It’s either step back inside or go to jail.” (Smith Video 22:21:23-22:21:24). Johnson remained in
the doorway and said, “Look sir, I am”, at which point Smith grabbed Johnson’s arm and pulled
him out of the motel room. (Smith Video 22:21:25-22:21:29). Stallons then grabbed Johnson’s
other arm, and Johnson ended up on the ground. (Stallons Video 22:21:27-22:21:36). Though

6

Smith testified first that Johnson said, “I will take care of this right now” and then testified later
that Johnson said, “I’m going to go take care of this right now.” (Smith Dep. 20:23-21:16). In
their motion, Defendants state that Johnson said, “I will take care of it.” (Defs.’ Mem. 11-12).
These minor discrepancies are not material to the Court’s analysis.
10

Defendants characterize the events differently, a reasonable jury viewing the body camera footage
could find that Johnson never posed a threat to Defendants. See, e.g., Lawler v. City of Taylor,
268 F. App’x 384, 387 (6th Cir. 2008) (“Though Toro disputes some of Lawler’s account, the
video of the altercation would permit a jury to conclude that Lawler never posed a threat to
Toro . . . .” (citing Scott v. Harris, 550 U.S. 372, 387 (2007))). Accordingly, this factor weighs in
favor of Johnson.
With respect to the third Graham factor, Defendants assert that Johnson resisted arrest by
resisting Smith’s commands. (Defs.’ Mem. 12). Defendants focus mainly on the time period after
Johnson was pulled from the motel room and onto the ground, claiming that Johnson actively
resisted the handcuffing. (Defs.’ Mem. 12). Prior to the initial use of force, however, a reasonable
jury watching the video could conclude that Johnson was not resisting Smith, and that Johnson
was not under arrest. Accordingly, this factor weighs in Johnson’s favor as well.
Viewing the evidence in the light most favorable to Johnson, a reasonable jury could
conclude that Smith used excessive force. Therefore, a genuine issue of material fact exists as to
whether Smith violated Johnson’s constitutional rights under a theory of excessive force.
ii.

Stallons

Johnson asserts that Stallons used excessive force when he “forcefully helped throw
[Johnson] to the ground[] [and] placed his knee in [Johnson]’s back . . . .” (Compl. ¶ 22).
Application of the Graham factors to Stallons mirrors the application to Smith, and for the same
reasons, with respect to the initial use of force that resulted in Johnson falling onto the ground, a
reasonable jury could conclude that Stallons used excessive force.
With respect to Stallons placing his knee on Johnson’s back after Johnson had fallen to the
ground, the analysis of the first two Graham factors does not change. With respect to the third,

11

however, Defendants claim that once Johnson was “confronted with the reality of arrest” he
actively resisted. (Defs.’ Mem. 12).
Active resistance to arrest includes “physically struggling with, threatening, or disobeying
officers.” Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015) (quoting Cockrell v. City of
Cincinnati, 468 F. App’x 491, 495 (6th Cir. 2012)). It also includes “refusing to move your hands
for the police to handcuff you, at least if that inaction is coupled with other acts of defiance.” Id.
(citing Caie v. W. Bloomfield Twp., 485 F. App’x 92, 94, 96-97 (6th Cir. 2012)).
Defendants cite Rudlaff as controlling authority, where the Sixth Circuit determined that
the arrestee actively resisted arrest, becoming verbally defiant, “puffed his chest and stared down”
the officer, “twice swung his arms in the officer’s direction,” and then balled up and refused to
produce his hands for handcuffing. Id. at 642; (Defs.’ Reply 3).
The video of Johnson’s arrest shows that Johnson engaged in almost none of this behavior.
Roughly eight seconds passed from the time that Smith grabbed Johnson’s wrist to the time
Johnson was face down on the ground. (Smith Video 22:21:27-22:21:35). Smith and Stallons
began handcuffing Johnson a few seconds later and completed the handcuffing roughly eighteen
seconds after that. (Smith Video 22:21-35-22:22:00). All in all, only around half a minute passed
from the time Smith initially grabbed Johnson to when Johnson was handcuffed. (Smith Video
22:21:27-22:22:00). During this time, Johnson objected to the sudden seizure and exclaimed that
he was in pain but made no comments that were overtly threatening. (Smith Video 22:21:2722:22:00). Smith and Stallons were able to quickly gain control of Johnson’s arms. (Stallons
Video 22:21:35-22:21:44).
Stanfield v. City of Lima, 727 F. App’x 841 (6th Cir. 2018), bears a closer resemblance to
the facts as presented by the body camera videos. Id. at 847. In Stanfield, the plaintiff testified

12

that he was not resisting and that any delay in producing his hands for handcuffing was because
the officers were “kneeing him repeatedly and kneeling or laying on him.” Id. The court
concluded that, accepting the arrestee’s testimony, it would not be reasonable for an officer on the
scene to determine that the arrestee was actively resisting. Id. at 847-48.
Viewing the body camera videos in the light most favorable to Johnson, a reasonable jury
could conclude that he was not resisting arrest and that therefore Stallons used excessive force by
kneeling on Johnson’s back.
b.

Clearly Established

The genuine issue of material fact about whether Johnson posed a threat to Smith and
Stallons precludes summary judgment on whether Smith and Stallons violated a clearly established
right. The circumstances of this case, viewed in the light most favorable to Johnson, present a
situation anticipated by the Sixth Circuit in Lyons where the violation is sufficiently obvious that
no existing precedent is required to show that the right is clearly established. See Lyons, 417 F.3d
at 579 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). A reasonable officer in Smith
and Stallons’ position would know that he should not seize and throw to the ground an individual
who has not committed a crime or displayed threatening behavior. Cf. Harris v. Langley, 647 F.
App’x 585, 590 (6th Cir. 2016) (“Here, there is no opacity in the Fourth Amendment’s prohibition
on unprovoked body slams from police officers, whether this exact scenario has been held unlawful
in a previous decision or not.”).
With respect to Stallons’ knee in Johnson’s back, prior precedent has recognized that
individuals have a clearly established right “to be free from being forcibly kneed in the back while
not actively resisting arrest and lying on his stomach on the ground not resisting arrest.” Sanders
v. City of Pembroke, No. 5:19-CV-23-TBR, 2020 WL 4572360, at *9 (W.D. Ky. Aug. 7, 2020)

13

(quoting Sweatt v. Doxtader, 986, F. Supp. 2d 886, 898 (E.D. Mich. 2013)); see also Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) (“It [is] also clearly established that
putting substantial or significant pressure on a suspect’s back while that suspect is in a face-down
prone position after being subdued and/or incapacitated constitutes excessive force.”). Therefore,
the genuine issue of fact as to whether Johnson was resisting arrest after he fell to the ground
precludes summary judgment on qualified immunity.
Accordingly, Smith and Stallons are not entitled to summary judgment on Johnson’s Fourth
Amendment claim to the extent it is based on a theory of excessive force.
2.

Unlawful Arrest

The Fourth Amendment prohibits warrantless arrest unless an officer has probable cause
to believe that a criminal offense has been or is being committed. See Hadden v. Wathen, No.
1:16-CV-00140-GNS-HBB, 2018 WL 4222882, at *8 (W.D. Ky. Sept. 5, 2018) (quoting
Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). “For probable cause to arrest to exist, the facts
and circumstances within the officer’s knowledge [must be] sufficient to warrant a prudent person,
or one of reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing or is about to commit an offense.” Johnson v. Ky.-Cnty. of Butler, No.
1:12-CV-37-JHM, 2014 WL 4129497, at *6 (W.D. Ky. Aug. 18, 2014) (alteration in original)
(quoting Thacker v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003)). Probable cause is a
“mixed question of fact and law . . . .” Gerics v. Trevino, 974 F.3d 798, 804 (6th Cir. 2020)
(citation omitted). “The constitutional right to ‘freedom from arrest in the absence of probable
cause’ is clearly established within our circuit.’” Courtright v. City of Battle Creek, 839 F.3d 513,
520 (6th Cir. 2016) (quoting Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015)).

14

Defendants argue that Smith had probable cause to arrest Johnson for: (1) second degree
disorderly conduct; (2) resisting arrest;7 and (3) obstructing government operations. (Defs.’ Mem.
14).
a.

Disorderly Conduct

KRS 525.060 provides:
(1)
A person is guilty of disorderly conduct in the second degree when in a
public place and with intent to cause public inconvenience, annoyance, or alarm, or
wantonly creating a risk thereof, he:
(a)
Engages in fighting or in violent, tumultuous, or threatening
behavior;
(b)
Makes unreasonable noise;
(c)
Refuses to obey an official order to disperse issued to maintain
public safety in dangerous proximity to a fire, hazard, or other emergency;
or
(d)
Creates a hazardous or physically offensive condition by any act that
serves no legitimate purpose.
(2)
Disorderly conduct in the second degree is a Class B misdemeanor.
KRS 525.060. Importantly, as the Sixth Circuit has observed:
[T]he statute requires public alarm as distinguished from private alarm. For
example, a person may not be arrested for disorderly conduct as a result of activity
which annoys only the police. The statute is not intended to cover the situation in
which a private citizen engages in argument with the police so long as the argument
proceeds without offensively coarse language or conduct which intentionally or
wantonly creates a risk of public disturbance.
Kennedy v. City of Villa Hills, 635 F.3d 210, 215 (6th Cir. 2011) (quoting KRS 525.060 cmt.).
Here, Johnson was standing in the threshold of his motel room when he interacted with
Smith. (Smith Video 22:21:11-22:21:30). He spoke in a calm manner and did not raise his voice
until Smith seized him. (Smith Video 22:21:11-22:21:30). Other than a broad reference to the
“totality of circumstances,” Defendants have cited no authority supporting the notion that

7

Defendants do not address whether Smith had probable cause based on this alleged violation, as
it which would be secondary to whether Smith had probable cause to arrest Johnson in the first
place. (Defs.’ Mem. 14 n.6).
15

Defendants’ separate interaction with Chaquita could support a finding that Smith had probable
cause to arrest Johnson for disorderly conduct. (See Defs.’ Mem. 16 n.8). While Defendants had
previously interacted with Chaquita, who was certainly more boisterous than Johnson, and ordered
her to return to the room, Smith had not interacted with Johnson until he appeared in the doorway
moments before he was pulled out of the room. (Smith Video 22:20:30-22:21:30).
Viewing the body camera video in the light most favorable to Johnson, the interaction
between Johnson and Smith could be fairly described as a “situation in which a private citizen
engage[d] in argument with the police . . . without offensively course language or conduct which
intentionally or wantonly create[d] a risk of public disturbance.” Kennedy, 635 F.3d at 215
(footnote omitted) (quoting KRS 525.060 cmt.). Therefore, Defendants have failed to establish
that a prudent person in Smith’s position would believe that Johnson was creating or going to
create a public alarm or disturbance in violation of KRS 525.060.
b.

Obstructing Government Operations

KRS 519.020 provides:
(1)
A person is guilty of obstructing governmental operations when he
intentionally obstructs, impairs or hinders the performance of a governmental
function by using or threatening to use violence, force or physical interference.
(2)
This section shall not apply to:
(a)
Any means of avoiding compliance with the law without affirmative
interference with governmental functions; or
(b)
The obstruction, impairment or hindrance of unlawful action by a
public servant; or
(c)
The obstruction, impairment or hindrance of an arrest.
(3)
Obstructing governmental operations is a Class A misdemeanor.
KRS 519.020. Defendants assert that the relevant government operation was the search of Forte’s
vehicle and argue that Johnson’s refusal to follow instructions in addition to his statement, “I will
take care of this right now,” “constitute[d] a threat of physical interference with a government
operation vehicle.” (Defs.’ Mem. 14-15).
16

Defendants cite Estep v. Combs, 467 F. Supp. 3d 476 (E.D. Ky. 2020), to support the notion
that “verbal threats” are sufficient to establish probable cause for obstructing or interfering. (Defs.’
Mem. 15). In Estep, a sister court found probable cause after describing an encounter between the
arrestee and officer as follows:
The video, here, depicts Estep issuing profanity-laced demands for Combs to depart
the scene of an investigation. Plaintiff’s demeanor and posture are undoubtedly
quite antagonistic; his words (considering both volume and content) and conduct
are unquestionably disruptive. When Combs advised Estep to back-off, Estep
challenged: “Put me out of your face.” Estep’s interjection plainly halted Combs’s
taxidermy investigation in its tracks.
Estep, 467 F. Supp. 3d at 494 (internal footnote omitted).
None of the conduct described in Estep is shown in the body camera footage of Johnson’s
arrest. Before Johnson opened his door, Smith was standing next to the doorway while Stallons
and Eastman searched Forte’s vehicle. (Smith Video 22:20:40-22:21:11; Stallons Video 22:21:0022:21:30; Eastman Video 22:21:00-22:21:30). Stallons and Eastman only stopped their search
once the interaction between Johnson and Smith escalated. (Smith Video 22:20:40-22:21:11;
Stallons Video 22:21:00-22:21:30; Eastman Video 22:21:00-22:21:30). Even accepting that Smith
heard Johnson say, “I will take care of this right now” before he emerged, Johnson interacted
calmly with Smith, making no sudden movements and not exiting the threshold of his motel room
for almost fifteen seconds until Smith wrested him out. (Smith Video 22:21:11-22:21:30).
Defendants have failed to establish that a reasonably prudent person in Smith’s situation
would believe that Johnson had committed, was committing, or was about to commit the offense
of obstructing government operations as defined by KRS 519.020.

17

c.

Conclusion

Accordingly, Defendants have failed to establish that Smith had probable cause to arrest
Johnson.
3.

Failure to Intervene

Johnson claims that Eastman8 violated his Fourth Amendment rights by failing to intervene
in Smith and Stallons use of excessive force. (Compl. ¶¶ 28-31). “An officer may be liable for
failing to intervene when, ‘(1) the officer observed or had reason to know that excessive force
would be or was being used, and (2) the officer had both the opportunity and the means to prevent
the harm from occurring.’” Grinnell v. City of Taylor, No. 21-2748, 2022 WL 1562291, at *6 (6th
Cir. May 18, 2022) (quoting Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)).
Defendants focus on the second element. (See Defs.’ Mem. 17-18).
An officer’s proximity to and the total duration of the use of excessive force are relevant
considerations to determine whether that officer had the opportunity and means to prevent the
harm from occurring. See Grinnell, 2022 WL 1562291, at *6 (citing Alexander v. Carter ex rel.
Byrd, 733 F. App’x 256, 265 (6th Cir. 2018)). “[W]here the ‘act of excessive force unfolds in a
matter of seconds, the second requirement is generally not satisfied.’” Id. (alteration in original)
(quoting Alexander, 733 F. App’x at 265). “[A]n excessive use of force lasting ten seconds or less
does not give a defendant enough time to perceive the incident and intervene to stop such force.”
Id. (quoting Pineda v. Hamilton Cnty., 977 F.3d 483, 493 (6th Cir. 2020)). By contrast, the Sixth
Circuit affirmed a denial of summary judgment involving a failure to protect claim where the use

8

Defendants also move for summary judgment to the extent Johnson is alleging a theory of failure
to intervene against Stallons. (Defs.’ Mem. 17). In his response, Johnson does not argue that
Stallons is liable under a theory of failure to intervene. (See Pl.’s Resp. 17-18). Accordingly,
opposition to Defendants’ motion is deemed waived as to this theory with respect to Stallons and
summary judgment is granted to that extent. See Scott, 1989 WL 72470, at *2.
18

of force lasted twenty-one seconds. Goodwin v. City of Painesville, 781 F.3d 314, 328-30 (6th
Cir. 2015).
Here, about eight seconds passed between the moment Smith first grabbed Johnson’s arm
and when Johnson ended up on the ground. (Smith Video 22:21:27-22:21:35). Stallons had his
knee on Johnson’s back for roughly twenty seconds. (Smith Video 22:21:41-22:22:00). Eastman
was moving towards Johnson’s motel room when Smith first grabbed Johnson. (Eastman Video
22:21:30-22:21:35). Eastman walked past the encounter and into the room to attempt to calm the
other occupants. (Eastman Video 22:21:30-22:21:40; see Smith Video 22:21:28-22:21:30). When
Eastman exited the motel room, he stood near the door to the motel room and spoke with Smith
and Stallons as they placed handcuffs on Johnson, who was on the ground with Stallons’ knee in
his back. (Eastman Video 22:21:52-22:22:04; Smith Video 22:21:30-22:22:00).
Johnson was subject to the alleged excessive force for nearly thirty seconds. Based on the
body camera videos, a reasonable jury could find that Eastman was aware of the excessive force
from its genesis because he walked past Smith and Stallons as they grabbed Johnson. (Smith
Video 22:21:27-22:22:00). Eastman was within a few feet of the encounter. (Eastman Video
22:21:30-22:22:04). A reasonable juror could find that the duration and proximity of the encounter
gave Eastman the opportunity and means to “both perceive what was going on and intercede to
stop it.” Pelton v. Purdue, 731 F. App’x 418, 426 (6th Cir. 2018) (quoting Burgess v. Fischer,
735 F.3d 462, 475 (6th Cir. 2013)); see also Parnell v. City of Detroit, 786 F. App’x 43, 52 (6th
Cir. 2019) (“A reasonable officer, as close as Patterson was, could have and should have
intervened.”). Accordingly, Defendants have failed to establish that they are entitled to judgment
as a matter of law on Johnson’s Fourth Amendment claim against Eastman.

19

B.

State Law Claims9
1.

Assault

Defendants seek summary judgment on Johnson’s assault claim against Smith and Stallons.
(Defs.’ Mem. 22).
Under Kentucky law, “[a]ssault is a tort which merely requires the threat of unwanted
touching of the victim . . . .” Andrew v. Begley, 203 S.W.3d 165, 171 (Ky. App. 2006) (quoting
Banks v. Fritsch, 39 S.W.3d 474, 480 (Ky. App. 2001)).
Defendants argue that Smith and Stallons use of force was privileged under KRS 503.090.
(Defs.’ Mem. 22-23). KRS 503.090 states, in relevant part:
(1)
The use of physical force by a defendant upon another person is justifiable
when the defendant, acting under official authority, is making or assisting in
making an arrest, and he:
(a)
Believes that such force is necessary to effect the arrest;
(b)
Makes known the purpose of the arrest or believes that it is
otherwise known or cannot reasonably be made known to the person to be
arrested; and
(c)
Believes the arrest to be lawful.
KRS 503.090(1). Courts discussing this statute have understood it allow an officer “making an
arrest [to] use such force as may be necessary to make the arrest, but no more.” Gambrel v. Knox
Cnty., No. 17-184-DLB, 2018 WL 1457296, at *12 (E.D. Ky. Mar. 23, 2018) (citations omitted);
Hanna v. Boyd Cnty. Det. Ctr., No. 20-136-DLB, 2023 WL 2309760, at *4 (E.D. Ky. Mar. 1,
2023) (“Kentucky law permits officers to use reasonably necessary force to make an arrest.”
(citing KRS 503.090)). In other words, KRS 503.090 is only applicable if the officers use of force
was not excessive.

See Browning v. Edmonson Cnty., 18 F.4th 516, 531 (6th Cir. 2021)

(“[A]lthough KRS § 503.090(1) permits the use of force in making an arrest, Kentucky courts have

9

Johnson does not bring any state law claims against Eastman. (Compl. ¶¶ 28-31).
20

held that the statute permits only ‘less than excessive force.’” (quoting Brown v. Fournier, No.
2015-CA-001429-MR, 2017 WL 2391709, at *4 (Ky. App. June 2, 2017)).
Defendants argue that Smith and Stallons believed the arrest was lawful for the same
reasons stated in support of their motion with respect to Johnson’s federal claims. (Defs.’ Mem.
23). As explained above, there is at least a genuine issue of material fact as to whether Smith and
Stallons used excessive force. Accordingly, Defendants’ motion is denied as to Johnson’s claim
for assault. Cf. Gambrel, 2018 WL 1457296, at *12 (denying judgment on the pleadings on the
plaintiff’s claim for assault and battery where the defendants’ argument tracked their argument for
dismissal of the plaintiff’s Fourth Amendment excessive force claim).
2.

Malicious Prosecution

Defendants seek summary judgment on Johnson’s malicious prosecution claim against
Smith.10 (Defs.’ Mem. 23-25). To establish a claim of malicious prosecution under Kentucky law,
Johnson must prove that:
1) the defendant initiated, continued, or procured a criminal or civil judicial
proceeding, or an administrative disciplinary proceeding against the plaintiff; 2) the
defendant acted without probable cause; 3) the defendant acted with malice, which
in the criminal context, means seeking to achieve a purpose other than brin[g]ing
an offender to justice; and in the civil context, means seeking to achieve a purpose
other than the proper adjudication of the claim upon which the underlying
proceeding was based; 4) the proceeding, except in ex parte civil actions,
terminated in favor of the person against whom it was brought; and 5) the plaintiff
suffered damages as a result of the proceeding.

10

Johnson also addresses Stallons’ conduct in responding to Defendants’ argument for dismissal
of the malicious prosecution claim. (Pl.’s Resp. 21). The Complaint does not contain a claim for
malicious prosecution against Stallons. (See Compl. ¶¶ 21-27). Accordingly, a claim for malicious
prosecution against Stallons is not before the Court. See, e.g., Collins v. Berryhill, No. 7:17-94DCR, 2017 WL 5501496, at *2 (E.D. Ky. Nov. 16, 2017) (“Because Collins’ constitutional claims
are contained in a response to a motion, and not in his Complaint, they are not properly before this
Court.”).
21

Leath v. Webb, 323 F. Supp. 3d 882, 896-97 (E.D. Ky. 2018) (quoting Martin v. O’Daniel, 507
S.W.3d 1, 11-12 (Ky. 2016)). Defendants argue that Johnson’s claim fails on the third element.11
(Defs.’ Mem. 23-25).
Malice is defined as “the intentional doing of a wrongful act to the injury of another, with
an evil or unlawful motive or purpose.” Estep, 467 F. Supp. at 500 (quoting Stearns Coal Co. v.
Johnson, 37 S.W.2d 38, 40 (Ky. 1931)). Malice is a question of fact and may be inferred by the
absence of probable cause.12 Estep v. Combs, 366 F. Supp. 3d 863, 884 (E.D. Ky. 2018) (quoting
Phat’s Bar & Grill v. Louisville Jefferson Cnty. Metro Gov’t, 918 F. Supp. 2d 654, 665 (W.D. Ky.
2013)); see McIlwain v. Dodd, No. 3:21-cv-406-RGJ, 2022 WL 492986, at *9 (W.D. Ky. Feb. 17,
2022) (citing Mosier, 106 S.W.2d at 642).
The Court has already found that Defendants have failed to establish as a matter of law that
Smith had probable cause to arrest Johnson. Therefore, if it is established at trial that Smith lacked
probable cause, a jury could infer that Smith acted with malice. Further, independent of such an
inference, a reasonable jury viewing the body camera footage could find that Smith acted with
malice when he seized Johnson.
3.

Qualified Official Immunity

Under Kentucky law, “an official sued in his or her individual capacity enjoy[s] only
qualified official immunity, which affords protection . . . for good faith judgment calls made in a
legally uncertain environment.” Rowan Cnty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (alteration

11

Defendants initially argued the fourth element as well but conceded this element in their reply.
(Defs.’ Mem. 23-25; Defs.’ Reply 8).
12
This is not always the case, and a jury may not imply malice from want of probable cause alone.
Estep, 467 F. Supp. 3d at 500 (quoting Mosier v. McFarland, 106 S.W.2d 641, 642 (Ky. 1937)).
For example, this would apply where the individual prosecuted is actually guilty of the crime
charged despite an initial lack of probable cause or favorable termination of criminal proceedings.
See Mosier, 106 S.W.2d at 642-43.
22

in original) (internal quotation marks omitted) (quoting Jefferson Cnty. Fiscal Ct. v. Peerce, 132
S.W.3d 824, 833 (Ky. 2004)). As recognized by the Kentucky Supreme Court in Estate of Clark
ex rel. Mitchell v. Daviess County, 105 S.W.3d 841 (Ky. 2003):
Qualified official immunity applies to the negligent performance by a public officer
or employee of (1) discretionary acts or function, i.e., those involving the exercise
of discretion and judgment, or personal deliberation, decision, and judgment; (2) in
good faith; and (3) within the scope of the employees [sic] authority. An act is not
necessarily discretionary just because the officer performing it has some discretion
with respect to the means or method to be employed. Qualified official immunity
is an affirmative defense that must be specifically pled.
Conversely, an officer or employee is afforded no immunity from tort liability for
the negligent performance of a ministerial act, i.e.[,] one that requires only
obedience to the orders of others, or when the officers [sic] duty is absolute, certain,
and imperative, involving merely execution of a specific act arising from fixed and
designated facts. That a necessity may exist for the ascertainment of those facts
does not operate to convert the act into one discretionary in nature.
Id. at 845 (quoting Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)).
Having found that Defendants have failed to establish qualified immunity with respect to
Johnson’s constitutional claims, “factual questions exist as to whether [Smith and Stallons] [] acted
in good faith.” Hill v. Adkins, 59 F. Supp. 3d 814, 820 (E.D. Ky. 2014) (denying qualified official
immunity where genuine issues of fact existed as to whether the defendants used excessive force).
4.

Medical Expenses

Defendants move for summary judgment on Johnson’s claims for medical expenses and
for pain and suffering because Johnson has not disclosed an expert witness to testify about
causation. (Defs.’ Mem. 30-31).
Defendants assert that “Kentucky law usually requires expert or medical testimony to
establish that an incident legally caused a medical injury.” (Defs.’ Mem. 30 (quoting Garrison v.
Sam’s E., Inc., No. 1:16-CV-00152-GNS-HBB, 2019 WL 3535991, at *2 (W.D. Ky. Aug. 2,
2019))). Defendants argue that where a plaintiff has a history of medical treatment or injuries that
23

are similar to the injuries underlying his claims, expert causation testimony is necessary. (Defs.’
Mem. 30-31). Johnson concedes Defendants’ motion except as to medical expenses incurred in
the emergency room immediately following the incident and for pain and suffering that resulted
from colliding with the ground during his encounter with Defendants. (Pl.’s Resp. 23-25).
Johnson points out that Kentucky law allows certain claims for pain and suffering to proceed
without expert causation testimony where causation is sufficiently obvious. (Pl.’s Resp. 23 (citing
Garrison, 2019 WL 3535991, at *3)). Johnson argues that no expert causation testimony should
be necessary to establish a causal connection between the incident with Defendants and his visit
to the emergency room on the night of the incident or that he suffered pain and suffering from
colliding with the ground. (Pl.’s Resp. 23-25).
Both parties cite to Garrison, which involved a plaintiff who suffered a fall at a grocery
store and sued for damages. Garrison, 2019 WL 3535991, at *1. The defendant moved for
summary judgment arguing that the plaintiff lacked expert causation testimony. Id. This Court
granted the motion except as to her claim for pain and suffering, reasoning that “whether the fall
could result in pain and suffering is not the sort of question requiring expert testimony. Jurors do
not need a medical degree to find that falling results in pain, so Plaintiff does not need expert
testimony on this particular question.” Id. at *3 (citation omitted). This same logic applies here.
The causal relationship between a fall and pain is “within the realm of common knowledge.”
Roark v. Speedway, LLC, No. 13-139-ART, 2015 WL 12978822, at *2 (E.D. Ky. Apr. 6, 2015)
(quoting Tatham v. Palmer, 439 S.W.2d 938, 939 (Ky. 1969)).
Accordingly, summary judgment is denied as to Johnson’s claim for pain and suffering and
related claim for medical expenses incurred at the emergency room immediately following the fall
due to Johnson’s alleged pain and suffering.

24

V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1.

Defendants’ Motion for Summary Judgment (DN 40) is GRANTED IN PART and

DENIED IN PART, and Plaintiff’s claims are DISMISSED as follows: (a) the constitutional
claims asserted against all Defendants to the extent that the claims are based on the Fifth
Amendment; (b) the state law claims for libel and abuse of process against Defendant Brian Smith;
and (c) any damages for medical expenses, and pain and suffering except to the extent those
damages were incurred as a direct result of Plaintiff’s fall.
2.

Plaintiff’s Motion for Leave to File Excess Pages (DN 49) is GRANTED.

March 27, 2024

cc:

counsel of record

25