United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
matter is before the Court pursuant to Defendant Jim
Stevens' Motion for Summary Judgment (DE 31) filed on
November 27, 2017, and his Motion to Strike Supplemental
Disclosures accompanying Plaintiff Cecil Boggs' response
in opposition to summary judgment (DE 40). For the following
reasons, Stevens' motion for summary judgment (DE 31) is
GRANTED IN PART and DENIED IN
PART. Summary judgment is GRANTED
as to Plaintiff's claims relying solely on supervisory
liability under 42 U.S.C. § 1983. Summary judgment (DE
31) is DENIED as to all other claims.
Stevens' Motion to Strike Supplemental Disclosures (DE
40) is DENIED as MOOT. The
Court will entertain motions for qualified immunity following
the Plaintiff's presentation of his case-in-chief.
case involves the alleged use of excessive force during an
arrest in violation of state and federal law. Plaintiff Boggs
originally filed this action in Letcher Circuit Court on
September 9, 2016. (DE 1-1 at 2). In his original complaint,
Boggs filed suit against Jim Stevens, individually and in his
official capacity as a Jenkins City Police Officer, and Matt
Martin, individually and in his official capacity as a
Kentucky State Police Officer. Id. After defendants
removed to this Court (DE 1), Boggs filed an amended
complaint in which Jim Stevens was the only remaining
defendant. (DE 14).
most recent complaint alleges that on September 11, 2015,
Stevens arrested him in Letcher County, Kentucky. (DE 14 at
1). The authorities initially arrived at Boggs' home in
response to a domestic violence complaint lodged by
Boggs' wife. Id. Initial reports indicated that
there may have been a weapon involved. (DE 30 at 6-7; DE 39
Boggs learned that there were multiple officers outside his
home, including Stevens and Martin, Boggs came out onto his
second-story porch. (DE 39 at 1). Stevens directed Boggs to
leave the porch and come down to the ground level.
Id. Stevens contends that initially Boggs did not
know what was going on, and “he was verbally non
compliant [sic], verbally loud.” (DE 30 at 6). After he
issued repeated verbal orders, Stevens states that Boggs came
out and got on the ground. Id. Stevens then began
handcuffing Boggs, who was lying prone on the ground.
Id. It is undisputed that Boggs attempted to keep
his head off the ground when laying facedown. Boggs argues he
did this to keep his face out of the gravel below. (DE 29 at
82). Stevens said he thought that by raising his head, Boggs
was attempting to get up. (DE 30 at 6).
asserts that because Boggs was trying to resist and get off
the ground, he employed a pressure technique behind
Boggs' ear called the “mastoid” process,
which enabled him to handcuff Boggs. (DE 30 at 6-7, 14).
Boggs, on the other hand, alleges that he complied with all
of the officers' requests, and that his head was
gratuitously slammed into the ground two or three times
causing injury. (DE 29 at 72).
alleges that he left the handcuffed Boggs with Deputy Chief
Davis, and went an unspecified distance away to interview
Boggs' wife about her domestic violence complaint. (DE 30
at 7). During this time, Boggs complains that Kentucky State
Police Officer Martin threw Boggs to the ground and
repeatedly delivered blows to Boggs' ribs with his
flashlight resulting in further injuries. (DE 29 at 74).
Boggs admits that Stevens was not around when he was thrown
to the ground by Officer Martin. (DE 29 at 46). Boggs further
admits that Stevens eventually ran over in an attempt to
restrain Officer Martin. (DE 29 at 79). Medical records from
an emergency room visit following the arrest find Boggs to
have suspected hairline rib fractures, a displaced nasal
fracture, swelling around the nose area, and blood in the
sinuses and nasal cavity. (DE 37-1).
Boggs' amended complaint alleges violations of state tort
law, federal civil rights claims through 42 U.S.C. §
1983, and that his Fourth Amendment right against excessive
force was violated during the arrest. (DE 14). Officer
Stevens, the only remaining defendant in the case, now moves
the Court to dismiss Boggs' claims through summary
judgment, asserting among other things that he is entitled to
qualified immunity on all claims. (DE 31). In his response to
Stevens' motion for summary judgment, Boggs has included
two affidavits-one of a responding officer, former Deputy
Chief Crystal Davis, and a civilian ride-along who witnessed
the arrest, Jessica Hicks. (DE 39). Stevens moves the Court
to strike the affidavits from the record. (DE 40).
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 initial burden and must
identify “those portions of the pleadings...which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (internal citation omitted).
the movant meets the initial burden, the opposing party
“must set forth specific facts showing that there is a
genuine issue for trial.” Fed.R.Civ.P. 56(e). When, as
here, a defendant moves for summary judgment, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). In this Court's
consideration of the motion, “the evidence should be
viewed in the light most favorable to the non-moving
party.” Ahlers v. Schebil, 188 F.3d 365, 369
(6th Cir. 1999) (citing Anderson, 477 U.S. at 255).
the motion for summary judgment is based on the defense of
qualified immunity, the analysis is somewhat altered, and the
existence of a disputed, material fact does not
necessarily preclude summary judgment. See
Woosley v. City of Paris,591 F.Supp.2d 913, 918 (E.D.
Ky. Dec. 2, 2008). In such a case, even if there is a
material fact in dispute, summary judgment is appropriate if
the Court finds that-viewing the facts in the light most
favorable to the plaintiff-the plaintiff has failed to