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Kustes v. Lexington-Fayette Urban County Government

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

October 10, 2014

MATTHEW KUSTES, Plaintiffs,
v.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, JIM GRAY, in his capacity as Mayor of Lexington-Fayette Urban County Government, LEXINGTON POLICE DEPARTMENT, RONNIE BASTIN, in his capacity as Chief of the Lexington Police Department, OFFICER JOSH MITCHELL, individually and in his capacity as an officer of the Lexington Police Department, and, UNKNOWN OFFICERS, individually and in their capacities as officers of the Lexington Police Department, Defendants.

OPINION AND ORDER

KAREN K. CALDWELL, Chief District Judge.

This matter is before the Court on the motion for summary judgment (DE 32) filed by the defendant Josh Mitchell, an officer with the Lexington-Fayette Urban County Government Division of Police.

I. Background.

For purposes of this motion, the Court assumes the truth of the facts set forth in the deposition testimony of the plaintiff Matthew Kustes. The Court has reviewed the other depositions in the record and has relied on the deposition testimony of Officer Mitchell only to fill in certain facts not addressed in Kustes's deposition.

During the relevant time period, the plaintiff Matthew Kustes resided with six roommates at 305 Grosvenor Avenue in Lexington, Kentucky. (DE 51, Kustes Dep. at 14-15.) On October 22, 2011, there was a party at the house next door, which is located at 303 Grosvenor Avenue. (DE 51, Kustes Dep. at 21.) At the time, five people resided at 303 Grosvenor Avenue and all were fraternity brothers of Kustes. (DE 51, Kustes Dep. at 19.) There were probably 20 people at the party. (DE 51, Kustes Dep. at 64.)

Officer Mitchell testified that at about 12:45 a.m. on October 23, the police received a call complaining about the noise at the party. (DE 52, Mitchell Dep. at 51.) He testified that he and Officer Ron Moore arrived at the house at about the same time. (DE 52, Mitchell Dep. at 52-53.) He testified that the officers went to the back of the house because, at "[t]his house, primarily they use the back door because that's where the parking lot is for this house" and that was where the noise was coming from. (DE 52, Mitchell Dep. at 54.) Officer Mitchell testified that there were about five to seven people in the back of the house. (DE 52, Mitchell Dep. at 54.)

Officer Mitchell testified that someone told the officers that the residents were all inside and Officer Moore asked that person to tell the residents to come outside to speak with the officers. (DE 52, Mitchell Dep. at 56.) A few people went inside and the rest left the residence. (DE 52, Mitchell Dep. at 56-57.) The officers then heard the door lock. (DE 52, Mitchell Dep. at 56.) Officer Mitchell then went to the front of the house while Office Moore knocked on the back door. (DE 52, Mitchell Dep. at 57.)

Officer Mitchell testified that the officers continued to knock for a few minutes and then they just listened to see what was happening inside the house. (DE 52, Mitchell Dep. at 58.) Officer Mitchell testified that, during this time period, he would periodically walk to the back of the house to check on Officer Moore as a safety measure. (DE 52, Mitchell Dep. at 60-61.) Officer

The plaintiff Kustes testified that when he returned to his house from the restaurant, the officers were still next door at 303 Grosvenor and, at some point, he walked over. (DE 51, Kustes Dep. at 28-32.) He testified that Officer Mitchell was on the front porch. (DE 51, Kustes Dep. at 34.) He spoke to Officer Mitchell and said, "if they don't want you there, shouldn't you all leave, or something along those lines." (DE 51, Kustes Dep. at 32.) Mitchell testified that he had been at the scene about 20 to 30 minutes when Kustes approached him. (DE 52, Mitchell Dep. at 59.)[1]

Kustes testified that Officer Mitchell told him he should "go home." (DE 51, Kustes Dep. at 57.) Kustes then asked Officer Mitchell for the phone number of the Lexington-Fayette Urban County Government Division of Police. (DE 51, Kustes Dep. at 32.) Officer Mitchell gave him the number and Kustes called and "filed a complaint." (DE 51, Kustes Dep. at 33, 39.) He did this because the officers "had been there for about an hour now standing outside" and he "just thought [he] should." (DE 51, Kustes Dep. at 33.) Kustes testified that, "[w]ell, I mean, they were my fraternity brothers, and they'd been standing out there for - I just thought an hour for them standing out there was a little excessive, so I went over there and asked them to leave...." (DE 51, Kustes Dep. at 45-46.)

Kustes testified that, after he got off the phone, he tried to block Officer Mitchell from going to the back of the house. (DE 51, Kustes Dep. at 40.) He testified that he stepped in front of the officer so that the officer could not get around him and told the officer that he "should probably leave if they don't want you here." (DE 51, Kustes Dep. at 41-42.) Kustes testified that Officer Mitchell told him "to get out of the way again. He was really rude..." (DE 51, Kustes Dep. at 42, 55.) Kustes testified that he then "stepped out of the way." (DE 51, Kustes Dep. at 42.)

Officer Mitchell's testimony regarding the encounter largely agrees with Kustes's testimony. Officer Mitchell agreed that Kustes stepped in front of him and attempted to block the officer's path. (DE 52, Mitchell Dep. at 101.) Officer Mitchell testified that Kustes "stepped into my path... after asking why we were there and being told why we were there - for a noise complaint - he stepped directly into my path to stop what I was doing and very close to me - within inches - said... he was not going anywhere or I was not going anywhere - whatever it was - the situation was not going to continue as we planned, and he just stood there." (DE 52, Mitchell Dep. at 100.)

Kustes testified that Officers Mitchell and Moore were "walking back and forth." (DE 51, Kustes Dep. at 44.) He testified that he also got in Officer Moore's way during the course of the investigation. "I got in his way. I said whatever, you know, you all shouldn't be here." (DE 51, Kustes Dep. at 42-44.) Kustes testified that Officer Moore yelled at him "you need to go home, get out of the way, this is none of your business." (DE 51, Kustes Dep. at 43.) He testified that Officer Moore said, "get out of my way, prick, ' and then walked around." (DE 51, Kustes Dep. at 44.)

Kustes testified that he followed the officers to the back of the house and that the officers pushed open the back door and entered the kitchen. (DE 51, Kustes Dep. at 49-50.) He testified that he again "got in front of them in the kitchen... and I just stood in their way and asked them to leave or [said]... you can't walk into someone's house or something like that...." (DE 51, Kustes Dep. at 50.) He testified that he was in front of both officers at this point. (DE 51, Kustes Dep. at 52.) He testified that he was "blocking [the officers] from walking in, but [the officers] were blocking others from walking out." (DE 51, Kustes Dep. at 59.) Kustes testified that Officer Mitchell was "obviously irritated by me standing in front of them in the kitchen...." (DE 51, Kustes Dep. at 71.) He testified that he told the officers that he knew one of the owners of the house. (DE 51, Kustes Dep. at 57-58.) He testified that he probably told ...


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