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Durmov v. Duncan

United States District Court, E.D. Kentucky, Central Division, Lexington

June 4, 2014



KAREN K. CALDWELL, Chief District Judge.

This matter is before the Court on two motions for summary judgment, one filed by each remaining defendant. (DE 30 & 31). Both defendants contend that Plaintiff Christian Durmov cannot succeed as a matter of law on his claims for violations of the Fourth Amendment under § 1983 and state-law torts of assault and battery. For the following reasons, the Court will grant the defendants' motions.


Christian Durmov was arrested on July 30, 2011 for alcohol intoxication after a brief but non-violent altercation with two police officers. The evening started when Durmov and a friend, Alen Fatovavich, went drinking at the club Saddle Ridge in Lexington, Kentucky. At around 2:15 a.m., they left the club to head home. Although Durmov had driven to Saddle Ridge that night, he determined he was too intoxicated to make it home and asked Fatovavich to drive. Fatovavich took Durmov's keys to his Ford Explorer, and the two of them headed out of the parking lot. But when Fatovavich started to drive off, the tires squealed loudly in the presence of several police officers. This prompted Defendant Anthony Bottoms, a Lexington police officer, to pull them over. Bottoms asked Fatovavich to step out of the car so he could administer a field sobriety test.

David Duncan, a police officer with the University of Kentucky, observed Bottoms make the traffic stop and came over to assist. He approached the passenger side of the Explorer, where Durmov was sitting. Upon his approach he saw several open alcoholic containers in the car. Duncan asked Durmov to step out of the car so he could retrieve the containers, but Durmov refused to comply. According to Durmov's own testimony, Officer Duncan "politely" and "professionally" asked Durmov to step out of the car at least three times, and Durmov refused each request. (Durmov Depo., DE 30-3, 77:8-21). Durmov mistakenly believed that as the passenger of the vehicle, Duncan had no legal authority to order him to step outside. When Durmov refused to leave the car three times, Duncan opened to the door to remove him.

The parties disagree as to what happened next. Durmov alleges that Duncan grabbed him by the arm, pulled him out of the vehicle, and threw him on the ground. (Durmov Depo., DE 30-3, 77:25-78:1). Duncan, on the other hand, contends that Durmov eventually complied with his request to step out of the car, but when Duncan attempted to assist him by holding his right arm, Durmov "yanked" it away, which caused him to fall to the ground. (Trial Transcript, DE 30-4, at 68:12-25). There are significant reasons to doubt Durmov's testimony in this matter: he admits he was intoxicated; yanking his arm away would be consistent with his other aggressive and uncooperative behavior; and he repeatedly stated in his deposition that he could not remember many of the events that happened on the night in question. But because this is a motion for summary judgment, the Court must draw all reasonable factual inferences in favor of the nonmoving party, and will therefore adopt Durmov's version of events, despite any credibility issues it may have. See Scott v. Harris, 550 U.S. 372, 378 (2007) ("[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.") (internal quotations omitted).

The parties agree that when Durmov fell to the ground, Duncan fell with him. Bottoms left Fatovavich and came to assist. According to Durmov, Bottoms placed a knee on his back to restrain him. Bottoms then asked Durmov whether he was going to calm down, and when Durmov responded in the affirmative, Bottoms ordered him to have a seat on the nearby curb. Although Durmov contends in his pleadings that he was handcuffed at this point, during his deposition he testified that he was not placed in handcuffs until later. (Durmov Depo., DE 30-3, 84:21-25 & 107:19-108:14)

Durmov admits that during the traffic stop he was loud and argumentative with the officers. (Durmov Depo., DE 30-3, 86:19-87:19). He was clearly intoxicated, believed that Duncan did not have the right to order him out of the vehicle, and was not shy about expressing his frustration. When the field sobriety test was completed, Bottoms released Fatovavich but placed Durmov under arrest for alcohol intoxication in violation of K.R.S. § 222.202(1). Durmov was handcuffed and moved into the rear seat of Bottoms' police cruiser. He called his father to inform him of the circumstances, but Duncan took away his phone at the request of Bottoms. No one disputes that it was Bottoms who made the initial traffic stop; Bottoms who placed Durmov under arrest; and Bottoms who transported him to the Fayette County Detention Center.

Following his arrest, Durmov was acquitted by a jury in Fayette District Court. He subsequently brought the instant action against Duncan, Bottoms, the University of Kentucky, and the Lexington-Fayette Urban County Government. The University and the municipal government have been dismissed, and the remaining claims are those brought against Duncan and Bottoms individually. Durmov asserts claims under § 1983 for violations of his Fourth Amendment rights, along with state-law claims of assault and battery. Duncan and Bottoms have moved for summary judgment on all remaining claims.


Summary judgment is appropriate where the moving party "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 initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). The moving party may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the nonmovant's claim. Id. at 322-25. Once the movant meets this burden, the opposing party must "go beyond the pleadings and... designate specific facts showing that there is a genuine issue for trial." See id. at 324 (internal quotations omitted). The duty of this Court is to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In making such a determination, however, courts must "view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.'" Scott, 550 U.S. at 378 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).


In bringing his claim under § 1983, Durmov alleges four separate violations of his Fourth Amendment rights. He asserts that (1) Duncan used excessive force in removing him from the car; (2) Bottoms used excessive force when using his knee to restrain Durmov on the ground; (3) his handcuffs were excessively tight; and (4) that he was arrested without probable cause. None of these claims are supported by the record, and the Court will grant summary judgment in favor of both Duncan and Bottoms as to all claims arising under § 1983.

"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In determining whether qualified immunity is appropriate, courts engage in a two-step analysis. First, "courts must address the threshold question of whether... the alleged facts show the officer's conduct violated a constitutional right." Fox v. DeSoto, 489 F.3d 227, 235 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If a constitutional violation exists, "the next step is to determine whether the right was clearly established in a particularized sense, such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Id. Importantly, on a motion for summary judgment the court must engage in this analysis ...

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