United States District Court, E.D. Kentucky, Northern Division
[Copyrighted Material Omitted]
For Anthony Gonzalez, Theresa Principata, Betsy Miller, Michael Martin, Shai Elias, Lisa Lewis, Plaintiffs: Charles T. Lester, Jr., LEAD ATTORNEY, Fort Thomas, KY; Eric C. Deters, Eric C. Deters & Partners, P.S.C., Cincinnati, OH.
For Officer Michael Lusardi, Officer Joshua Bornhorn, Defendants: Jeffrey C. Mando, Jennifer Haddad Langen, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY.
For Officer Robert Fulton also known as Officer Fulton, Officer Scott Dames also known as Officer Dames, Officer Justin Weitholder also known as Officer Weitholder, Defendants: Philip Taliaferro, III, Steven D. Doan, Taliaferro, Carran & Keys, PPLC, Covington, KY.
For Officer Christopher Gangwish also known as Christopher Gangwish also known as Chris Gangwich, Sgt Marcus C. Jordon also known as Officer Jordon, Defendants: W. Robert Lotz, LEAD ATTORNEY, Covington, KY.
For Captain Allen, Sgt. Spike Jones, Defendants: Frank E. Warnock, LEAD ATTORNEY, Covington, KY.
For Officer Michael Lusardi, Officer Joshua Bornhorn, Official Defendants: Jeffrey C. Mando, Jennifer Haddad Langen, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY.
For Officer Robert Fulton also known as Officer Fulton, Officer Scott Dames also known as Officer Dames, Officer Justin Weitholder also known as Officer Weitholder, Official Defendants: Philip Taliaferro, III, Steven D. Doan, Taliaferro, Carran & Keys, PPLC, Covington, KY.
For Officer Christopher Gangwish also known as Christopher Gangwish also known as Chris Gangwich, Sgt Marcus C. Jordon also known as Officer Jordon, Official Defendants: W. Robert Lotz, LEAD ATTORNEY, Covington, KY.
For Captain Allen, Sgt. Spike Jones, Official Defendants: Frank E. Warnock, LEAD ATTORNEY, Covington, KY.
David L. Bunning, United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs commenced this civil rights case against seven City of Covington police officers, alleging claims for excessive force, deliberate indifference, malicious prosecution and violations of their Fourteenth Amendment due process rights, all under 42 U.S.C. § 1983. Plaintiffs also assert state-law battery claims as well as claims for violations of the Kentucky Constitution.  Finally, Plaintiffs assert a destruction and fabrication of evidence claim, though it is unclear whether they bring this claim under state or federal law.
This action culminated in four summary judgment motions. Officers Jordan, Gangwish, Fulton, Dames and Weitholder moved for summary judgment on all claims against them. (Docs. # 63, 64, 66). Officers Lusardi and Bornhorn moved for partial summary judgment. (Doc. # 65). Plaintiffs responded to each motion with a single response. (Doc. # 81). Officers Jordan and Gangwish (Doc. # 84), and Officers Lusardi and Bornhorn (Doc. # 83) filed a timely reply.
The Court held oral argument on each of the summary judgment motions on March 1, 2013. The parties were represented as noted in the Court's Minute Entry Order (Doc. # 87). At the outset of the argument, Plaintiffs' counsel conceded that many claims asserted in the Second Amended Complaint (Doc. # 32) were no longer viable in light of the discovery and, thus, voluntarily dismissed the following claims:
o All claims against Defendants Gangwish and Jordan;
o Count II (Section 1983 claim), Count IV (Fourteenth Amendment claim), Count VI (fabrication and destruction of evidence claim) as to all Defendants;
o Plaintiffs Principata, Miller, Martin, Elias, and Lewis's claims in Count V (deliberate indifference) as to all Defendants;
o Plaintiff Gonzalez, Principata, Miller, Martin, and Elias's claims in Count VII (malicious prosecution) as to all Defendants; and
o Plaintiff Lewis's claims in Count VII (malicious prosecution) as to Defendants Fulton, Dames, and Weitholder.
Based on Plaintiffs' concessions, the Court granted Defendant Jordan's (Doc. # 63) and Defendant Gangwish's (Doc. # 64) motions for summary judgment, as well as Defendants Bornhorn and Lusardi's (Doc. # 65) motion for partial summary judgment. Defendants Fulton, Dames and Weitholder's (Doc. # 66) motion for summary judgment was taken under advisement at the conclusion of oral argument for the Court to consider three issues: (1) whether Defendants Fulton and Dames are entitled to summary judgment on Plaintiff Miller's excessive force and battery claims; (2) whether Defendant Weitholder is entitled to summary judgment on Plaintiff Martin's excessive force and battery claims; and (3) whether Defendants Fulton, Dames and Weitholder are entitled to summary judgment on Plaintiff Gonzalez's deliberate indifference claim.
Having considered the parties' memoranda and oral arguments, as well as the evidence of record, the Court will deny
Defendants Fulton and Dames motion for summary judgment on Plaintiff Miller's excessive force and battery claims, as well as Defendant Weitholder's motion on Plaintiff Martin's excessive force and battery claims. The Court will grant Defendants Fulton, Dames and Weitholder's motion on Plaintiff Gonzalez's deliberate indifference claim. Additionally, the Court will enter judgment in favor of Defendants Bornhorn and Lusardi on Plaintiff Gonzalez's deliberate indifference claim pursuant to Federal Rule of Civil Procedure 56(f)(1).
II. FACTUAL BACKGROUND
On the evening of July 17, 2009, Plaintiffs Anthony Gonzalez, Lisa Lewis, Michael Martin, Betsy Miller, and Theresa Principata gathered at the residence of Plaintiff Shai Elias on Greenup Street in Covington, Kentucky, for a barbeque. The Plaintiffs socialized around a bar on the backyard patio while eating, drinking alcoholic beverages and listening to music.
At approximately 11:00 p.m. that evening, a neighbor called the Covington Police Department to complain about loud noise coming from the 700 block of Greenup Street. At approximately 11:38 p.m., Officers Michael Lusardi, Joshua Bornhorn and an unidentified ride-along arrived on-scene and identified the Elias residence as the source of the loud music. Officer Lusardi " spied" on the Plaintiffs for approximately 12 minutes before confronting them, fearing that they might have an Uzi machine gun. 
Officers Lusardi and Bornhorn, and the ride-along eventually entered the backyard through a side gate. Other officers entered the backyard soon thereafter. As Officer Lusardi entered, he told Theresa Principata that the music was too loud and it needed to be turned down. Principata said, " okay." Lusardi then pushed Principata aside and moved toward the group standing around the bar.
Spotting a cooler full of beer, Lusardi said, " look what we got here: Beer . . . I hope everybody is 21 and older, and are there any drugs here?" (Doc. # 74-1 at 20). Anthony Gonzalez responded, " everybody here [is] at least 21 and older, and . . . there are no drugs here, officer." ( Id. ). Officer Lusardi then asked whether Gonzalez was the owner of the home, provoking the following encounter as described by Gonzalez:
He asked me if I was the owner of the house. I said no. He told me to shut up, keep my mouth quiet, and go inside. That's when I said, you don't have to be an ass about it. That's when the police officer grabbed me and threw me in the ground and handcuffed me. I was picked up, hit in the stomach; I dropped to the ground, and that's when one of the officers kicked me right in the face.
( Id. ). Gonzalez later clarified that he began to go into the house as directed by Lusardi, but was prevented from doing so when he was taken to the ground by Officers Lusardi and Bornhorn. Gonzalez also testified that he was lying motionless on the ground as the officers kicked and punched him. However, another Plaintiff recalls hearing that Gonzalez was " scooting kind of on his butt while he was handcuffed and pounding his feet into somebody's chest." (Doc. # 75-1 at 54-55).
Officers eventually picked Gonzalez off the ground and searched his pockets. Officer Bornhorn found Gonzalez's photo ID in his wallet and identified him as Aglisberto Gonzalez. Bornhorn told Gonzalez, " I hate fucking spics," - a derogatory term used to describe Spanish-speaking Latinos.
(Doc. # 74-1 at 24, 66). Gonzalez was then placed in a police vehicle. While there, Officer Sarah Lusardi - not a defendant in this matter - approached Gonzalez to photograph his injuries, consisting of a black eye and bruises to his back and arms. Gonzalez explained his interaction with Sarah Lusardi as follows:
When Sarah Lusardi opened the door, she was wanting to take my picture. I told her that I needed medical attention, that I was badly hurt; I was kicked in the face, and I needed an ambulance. At that moment, all she was worried about was taking the picture. And I told her that if she can please call an ambulance; I needed medical attention, that was basically it. She just took my pictures and slammed the door and left.
( Id. at 25).
In shock from Officer Lusardi and Bornhorn's actions, Betsy Miller told the officers that what they were doing " wasn't right." Miller was then pushed from behind, although she does not know who pushed her. She fell face first to the ground, hitting her nose and chin. Miller tried to lift her head up to see what was going on, but officers pushed her head back down. An officer " took [her] arms really hard and arrested [her] with the cuffs." (Doc. # 75-1 at 30). Miller yelled " ow," expressing her discomfort to the officers, but her complaints went unnoticed. According to Miller, she never physically resisted arrest or screamed at the officers. ( Id. at 31). However, a uniform citation indicates that Miller yelled at officers and had to be physically restrained by a friend at some point. When officers attempted to place her under arrest, " she began pulling away and twisting her arm in an attempt to get away." (Doc. # 65-3).
During her deposition, Miller was never able to identify her arresting officer or any other officer that exerted force on her (Doc. # 75-1 at 28, 31, 61). At best, Miller recalled that Officers Fulton and Dames signed a uniform citation which charged her with resisting arrest, disorderly conduct and alcohol intoxication. However, the Court has reviewed the uniform citation and sees no indication that it was either Officer Fulton or Dames who arrested Miller. In fact, the citation states generally that " when officers grabbed a hold of [Miller] and informed her she was under arrest she began pulling away and twisting her arms in an attempt to get away." (Doc. # 65-3). Fulton and Dames made it abundantly clear in their motion for summary judgment that Miller was unable to identify which officer used force against her. (Doc. # 66-1 at 11).
However, at oral argument, Fulton and Dames' counsel effectively conceded that they arrested Miller. Counsel discussed Dames' testimony during Miller's state criminal trial at length, wherein Dames indicated that he and Fulton restrained Miller and arrested her, to argue that the force used was reasonable. Although the state-court testimony is not a part of the record, defense counsel's reliance on details of the testimony amounts to a concession that Dames and Fulton were, in fact, the officers who arrested Miller and used force against her. This concession is an " admission" under Federal Rule of Civil Procedure 56(c)(1)(A) and may, therefore, be considered in adjudicating the summary judgment motion. See, e.g., United States v. Burns, 109 F. App'x 52, 58 (6th Cir. 2004) (holding that statements made in a brief may be deemed judicial admissions so long as the statement is deliberate, clear and unambiguous); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Arioli, 941 F.Supp. 646, 655 ...