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Boggs v. Stevens

United States District Court, E.D. Kentucky, Southern Division, Pikeville

February 6, 2018

CECIL BOGGS, Plaintiff,
JIM STEVENS, Individually, and in his Official Capacity as a Jenkins Police Officer, Defendant.



         This 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.


         This 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).

         Boggs' 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 at 2).

         When 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).

         Stevens 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).

         Stevens 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).

         Plaintiff 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).

         II. ANALYSIS

         a. Legal standards

         Summary 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).

         Once 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).

         When 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 ...

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