United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court upon the Motion for Summary Judgment [DE 24] filed by Defendants City of Paris, Kentucky, the Paris Police Department, Officer Michael Dempsey, individually and in his official capacity, and Officer Scott Toadvine, individually and in his official capacity. Plaintiff has filed a Response [DE 40], stating his objections to the Motion, and Defendants have filed a Reply in further support of their Motion [DE 41]. The Court being adequately advised, this matter is ripe for consideration.
This case arises out of a series of events following a fight and which led to the arrest of Plaintiff West. He has sued Defendants asserting that the use of excessive force during his arrest violated his rights under the United States Constitution and Kentucky law and that he was subjected to assault and battery in violation of Kentucky law. For the reasons which follow, his claims against these Defendants shall be dismissed.
On June 22, 2012, Mark King and Regina "Belle" Johnson picked up West and his fiancee, Megan Kincade, at West's residence in Paris, Kentucky. The couples went to dinner at a restaurant while Kimberly Sosby-Jones, Kincade's mother, stayed behind at West's home to watch West and Kincade's children. West, King, and Johnson consumed alcoholic beverages before leaving for dinner and at the restaurant. King and Johnson returned West and Megan to West's home sometime around 11:15 or 11:30 p.m. Kincade had a headache and went to bed. West went to the kitchen to talk to Sosby-Jones where she drew West's attention to King and Johnson yelling and fighting on the front lawn of West's home. West went outside and told them to stop but the fight continued. Eventually, West "got in between both of them." Facing away from the street, he knelt on one knee, holding King on the ground with his right hand and holding his left hand in front of Johnson, who was standing. He explains that he did not have a grasp on Johnson and that she was never on the ground.
Meanwhile, a neighbor had called 911 to report the disturbance. Officers Toadvine, Breslin, and Stephen Morris and Lieutenant Michael Dempsey from the Paris Police Department were dispatched and responded to the scene. Lieutenant Dempsey stated,
We were dispatched to the area of 1876 Rio Vista reference an active fight involving several subjects. While we were en route, dispatch advised a male subject had a female subject down in the street and was on top of her. Initial indication was that she only had on a bra and panties during the altercation. So that was the initial dispatch. And we were also told while we were on the way that that - the whole disorder, altercation, whatever you want to call it, had been going on 20 to 30 minutes before we ever received the first call on it.
The officers hurried to the scene with lights flashing and sirens sounding. As they approached the cul-de-sac where West lived, they turned off their sirens so as not to disturb the residents of the neighborhood further.
As they heard the sirens of the approaching police cars, Kincade - now awake and on the porch - and Sosby-Jones pleaded with West to come inside and unsuccessfully attempted to pull him off of or away from King and Johnson. West did not see the lights or hear the sirens of the approaching police cars and did not realize that police had, in fact, arrived on the scene. The officers did not identify themselves as "police" or otherwise identify themselves as they approached him where he kneeled on the ground between King and Johnson (who was, in fact, fully clothed). Dempsey and Breslin ordered West to get off of King and Johnson, but West never heard those orders, although Dempsey shined his flashlight in West's eyes.
No one disputes the fact that West stayed where he was. Thus, Dempsey felt that he "had to go hands on and get [West] off of them" and, less than thirteen seconds later, Dempsey grabbed West's arms to pull him off of King and Johnson causing West to fall forward onto his belly on the ground as he resisted. Dempsey and West fell to the ground together, and West struggled with Dempsey, not realizing that Dempsey was a police officer, in an effort to get off of the ground and into a standing position. West does not recall what happened as he wrestled in Dempsey to get away from him, but others observed that West had Dempsey pinned to the ground and would not let go. During that struggle, West grabbed Dempsey, hyperextended Dempsey's fingers, and tore a patch from Dempsey's sleeve when he grabbed Dempsey's shirt.
West eventually succeeded in rising to his feet and realized that he had been struggling with a police officer. Simultaneously and without warning, Toadvine deployed his Taser, stunning West twice in what appears to be quick succession. West found himself back on the ground where he claims that three officers gratuitously hit him in the head, kicked him, and struck him with objects. West cannot identify the officers who undertook these actions. Other witnesses have testified that Toadvine was not engaged in kicking or striking West. Only Kincade has identified Dempsey as one of the officers involved in the effort to control West once he was again on the ground after being stunned, but she could not testify that it was Dempsey who kicked or struck West during that time. [Page ID# 497 ("I don't know if it was actually [Mark Dempsey] that was doing it... but it was him and two other cops [trying to get him under control].").] Both Toadvine and Dempsey deny gratuitously hitting, kicking, or striking West at any time.
Ultimately, West was placed in handcuffs and placed upright in a seated position. One of the police officers called for an ambulance to take West to a local hospital for an evaluation of his injuries. A variety of charges were lodged against West, and he ultimately pleaded guilty to disorderly conduct. Later, he filed this action claiming relief under 42 U.S.C. § 1983 for the use of excessive force in violation of the Fourth and ...