United States District Court, E.D. Kentucky, Southern Division, London
PEARLIE SUE GAMBREL, as Administrator PLAINTIFF of the Estate of Jessie J. Mills
KNOX COUNTY, KENTUCKY, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
L. Banning, United States District Judge.
29, 2016, law-enforcement officers were dispatched in
response to an alleged child abduction. When the officers
located Jessie Mills and his daughter, they approached him,
tased him, beat him, and shot him twice, ultimately killing
him. This case is about whether the force the officers used
was excessive. The question is whether the Plaintiff has
stated plausible claims upon which relief can be granted.
Pearlie Sue Gambrel, the mother and administratrix of Jessie
Mills's estate, filed the instant action pursuant to 42
U.S.C. § 1983, seeking recompense for alleged violations
of Mills's constitutional rights, as well as various
state-law torts, against the law-enforcement officers
involved in the shooting-Deputy Mikey Ashurst and Constable
Brandon Bolton-and the municipal government they
represent-Knox County (collectively “the
Defendants”). (Doc. # 1). The Court has
federal-question jurisdiction under 28 U.S.C. § 1331 and
supplemental jurisdiction under 28 U.S.C. § 1367.
FACTUAL AND PROCEDURAL BACKGROUND
29, 2016, Jessie Mills retrieved his three-year-old daughter
from her guardian's home. (Doc. # 4 at ¶ 15). Those
actions prompted the child's guardian to call 911.
Id. Deputy Ashurst and Constable Bolton were
dispatched to look for Mills and his daughter. Id.
at ¶¶ 16-17. Shortly after driving away from the
guardian's home, Mills ran out of gas and began walking
towards a gas station, with his daughter in tow. Id.
at ¶ 18. Before Mills reached the gas station he was
approached by Ricky Hobbs, a local resident, and his
daughter's guardian. Id. at ¶¶ 19-20.
Despite the guardian's request that Mills return the
child, he continued walking towards the gas station.
Id. at ¶ 21. Shortly thereafter, Deputy Ashurst
and Constable Bolton arrived on the scene and approached
Mills. Id. at ¶ 22.
situation escalated quickly. According to the Amended
Complaint, Deputy Ashurst grabbed Mills's arm and hit him
on the back of the head with a flashlight. Id. at
¶ 23. Although Mills relinquished control of his
daughter to Deputy Ashurst and the child was returned to her
guardian, the physical altercation continued. Id. at
¶¶ 23-24. Specifically, the Amended Complaint
alleges that Constable Bolton tased Mills multiple times,
which caused him to fall on the ground. Id. at
¶ 26. While Mills was laying on the ground, Deputy
Ashurst and Constable Bolton hit and kicked him repeatedly.
Id. at ¶¶ 27-41. Using “such force
that [the Defendants] eventually lost their breath.”
Id. at ¶¶ 29-30. After retreating and
taking a short break, the Defendants continued kicking Mills
in the head and body, before retreating again. Id.
at ¶¶ 34-35, 37. At that time, Deputy Ashurst
threatened to shoot Mills if he did not get on his stomach,
and drew and pointed his firearm at Mills. Id. at
¶ 38. Because Mills was unresponsive, the Defendants
kicked him once more in their attempt to get him up.
Id. at ¶ 40.
Mills attempted to stand up, he took two stumbling steps
forward, and Deputy Ashurst shot him in his abdomen.
Id. at ¶ 42-44. As Mills stooped over and
attempted to lift his head, Deputy Ashurst fired a second
shot, striking Mills in the chest. Id. at ¶ 46.
Mills squealed, grabbed his body, and fell to the ground.
Id. at ¶ 47. He died from his gun-shot wounds.
Id. at ¶¶ 48-49.
28, 2017, Plaintiff filed the instant action against Deputy
Ashurst, Constable Bolton, and Knox County. (Doc. # 1). On
that same day, and before a responsive pleading was filed,
Plaintiff amended the Complaint as a matter of course under
Federal Rule of Civil Procedure 15(a)(1). (Doc. # 4). In
response to Plaintiff's Amended Complaint, the Defendants
filed a combined Answer and Motion to Dismiss, asserting
various affirmative defenses, claiming that they are immune
from suit, and arguing that the Amended Complaint fails to
state a claim upon which relief can be granted. (Docs. # 11
and 12). The Motion is fully briefed (Docs. # 15 and 16), and
ripe for review. For the reasons stated herein,
Defendants' Motion is hereby granted in part and
denied in part.
addressing the substantive merits of this matter, the Court
must first address a procedural peculiarity. By filing a
combined Answer and Motion to Dismiss- curiously filing the
omnibus document twice, in fact-the Defendants have exhibited
confusion regarding the Federal Rules of Civil Procedure and
have conflated practice under Rule 7(a)(6) and Rule 12(b)(6).
(Docs. # 11 and 12).
motion to dismiss under Rule 12(b)(6) must “be made
before pleading.” Fed.R.Civ.P. 12(b). The Defendants,
however, filed their Motion to Dismiss at the same time as
their Answer. Consequently, Defendants' post-answer
Motion to Dismiss is untimely. McGlone v. Bell, 681
F.3d 718, 728 n.2 (6th Cir. 2012) (“Defendants filed an
untimely motion to dismiss pursuant to Federal Rule of
12(b)(6), as it was filed after Defendants'
Rule 12(b) does not permit the concurrent filing of a motion
to dismiss and an answer, some courts have permitted such
filing. See, e.g., Hopkins v. Sellers, No.
1:09-cv-304, 2010 WL 3303651, at *1 (E.D. Tenn. Aug. 19,
2010) (considering a motion to dismiss that was combined with
an answer); Ebenisterie Beaubois Ltee v. Marous Bros.
Constr., Inc., No. 02-cv-985, 2012 WL 32818011, at *2
n.4 (N.D. Ohio Oct. 17, 2002) (considering a motion to
dismiss that was filed on the same day as the answer). Other
courts have taken a stricter approach and dismissed untimely
motions to dismiss. See, e.g., Hand v.
Houk, No. 2:07-cv-846-SSB, 2008 WL 5378358, at *2 (S.D.
Ohio Dec. 23, 2008) (denying Rule 12(b)(6) motion to dismiss
because “[t]he Rule does not envision that a motion to
dismiss will be combined with an answer”); BAC Home
Loans Servicing LP v. Fall Oaks Farm LLC, 848 F.Supp.2d
818, 822-23 (S.D. Ohio 2012) (denying a motion-to-dismiss
component of defendant's answer as untimely and
explaining that “[t]his strict approach presents no
substantive prejudice … because [defendant] can simply
make its arguments post-answer through another mechanism that
complies with the Civil Rules.”).
Court, however, joins other courts that have favored a middle
course, remedying the procedural deficiency by construing the
post-answer motion to dismiss as a motion for judgment on the
pleadings under Rule 12(c). See, e.g., Metro.
Prop. & Cas. Ins. Co. v. Pest Doctor Sys., Inc., No.
3:14-cv-143-WHR, 2014 WL 2855003, at *1 (S.D. Ohio June 23,
2014); Ruppe v. Knox Cty. Bd. of Educ., 993
F.Supp.2d 807, 809-10 (E.D. Tenn. 2014); Doe v. Sentech
Emp't Servs., Inc., 186 F.Supp.3d 732, 736 (E.D.
Mich. 2016). Such an approach strikes the proper balance
between respect for the Civil Rules and the interests of
justice. It has also garnered support from the Sixth Circuit.
See Scheid v. Fanny Farmer Candy Shops, Inc., 859
F.2d 434, 437 n.1 (6th Cir. 1988) (Although the motion to
dismiss, which was filed after the answer, was technically
improper, Sixth Circuit held that “as a matter of
motions practice, such a motion may be properly considered as
one for judgment on the pleadings under [Rule] 12(c), and
evaluated, nonetheless, under the standards for dismissal
under Rule 12(b)(6).”).
Defendants' Motion to Dismiss and Answer to First Amended
Complaint (Doc. # 11) is construed as an
Answer and shall be docketed as such. The
Defendants' duplicative Motion to Dismiss and Answer to
First Amended Complaint (Doc. # 12) is
construed as a Motion for Judgment on the
Pleadings and shall be docketed as such.
And, the portions of the Answer (Doc. # 11), which present
identical and redundant arguments as the construed Motion for
Judgment on the Pleadings are stricken from the
Answer pursuant to Federal Rule of Civil Procedure
Standard of Review
standard of review for motions for judgment on the pleadings
under Rule 12(c) is the same as that for motions to dismiss
under Rule 12(b)(6). See Roth v. Guzman, 650 F.3d
603, 605 (6th Cir. 2011). Under that rule, the Court must
determine whether the complaint alleges “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The plausibility standard is met “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). Although a complaint need
not contain “detailed factual allegations” to
survive a motion for judgment on the pleadings, Rule 12(c)
“demands more than an unadorned,
Id. (citing Twombly, 550 U.S. at 555). Put
another way, “the plaintiff must allege facts that
state a claim to relief that is plausible on its face and
that, if accepted as true, are sufficient to raise a right to
relief above the speculative level.” Wesley v.
Campbell, 779 F.3d 421, 427 (6th Cir. 2015) (quoting
Handy-Clay v. City of Memphis, 695 F.3d 531, 538
(6th Cir. 2012).
the case with a motion to dismiss under Rule 12(b)(6), in a
Rule 12(c) motion for judgment on the pleadings, the Court
“must construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the
plaintiff.” Id. at 428. After all, the
“defendant has the burden of showing that the plaintiff
has failed to state a claim for relief.” Id.;
see also Coley v. Lucas Cty., 799 F.3d 530, 537 (6th
Federal § 1983 Claims
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged violation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988);
Miller v. Sanilac Cty., 606 F.3d 240, 247 (6th Cir.
2010). “If a plaintiff fails to make a showing on any
essential element of a § 1983 claim, it must
fail.” Redding v. St. Eward, 241 F.3d 530, 532
(6th Cir. 2001).
case, there is no dispute that Defendants were acting under
color of state law. Therefore, the only question is whether
Jessie Mills was “deprived of a right secured by the
Constitution or the laws of the United States.”
Id. The Court will address each of Plaintiff's
claims in turn, construing the Amended Complaint in the light
most favorable to the Plaintiff and accepting its allegations
Count One: Excessive Force
excessive-force claim is “most properly characterized
as one invoking the protections of the Fourth Amendment,
which guarantees citizens the right ‘to be secure in
their persons … against unreasonable …
seizures.'” Graham v. Connor, 490 U.S.
386, 394 (1989) (quoting U.S. Const. amend IV). “A
seizure triggering the Fourth Amendment's protections
occurs only when government actors have, by means of physical
force or show of authority, in some way restrained the
liberty of a citizen.” Slusher v. Carson, 540
F.3d 449, 454 (6th Cir. 2008) (internal citations omitted).
The “apprehension” of Jessie Mills “by the
use of deadly force is a seizure subject to the
reasonableness of the Fourth Amendment.” Tennessee
v. Garner, 471 U.S. 1, 7 (1985).
satisfy the Fourth Amendment, a law-enforcement officer's
use of force must have been objectively reasonable under the
circumstances in which it occurred. Garner, 471 U.S.
at 8-9. “Determining whether the force used to effect a
particular seizure is ‘reasonable' under the Fourth
Amendment requires a careful balancing of the nature and
quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental
interests at stake. Graham, 490 U.S. at 396.
Reasonableness “must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. Therefore,
“[t]he calculus of the reasonableness must embody
allowance for the fact that police officers are often forced
to make split-second judgments-in circumstances that are
tense, uncertain, and rapidly evolving-about the amount of
force that is necessary in a particular situation.”
Id. at 396-97.
the extreme intrusion caused by use of deadly force, the
countervailing governmental interests must be weighty indeed;
‘only in rare instances may an officer seize a suspect
by use of deadly force.'” Davenport v.
Causey, 521 F.3d 544, 551 (6th Cir. 2008) (quoting
Whitlow v. City of Louisville, 39 Fed.Appx. 297,
302-03 (6th Cir. 2002)). Although “the same balancing
test is applied, ” the use of deadly force is deemed
reasonable only when “‘the officer has probable
cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or others.'”
Bell v. Cumberland Cty., 665 Fed.Appx. 421, 425 (6th
Cir. 2016) (quoting Garner, 471 U.S. at 7); see
also Chappell v. City of Cleveland, 585 F.3d 901, 908
(6th Cir. 2009) (citing Garner, 471 U.S. at 7, 11).
Therefore, “whether the use of deadly force at a
particular moment is reasonable depends primarily on [an]
objective assessment of the danger a suspect poses at that
moment.” Bouggess v. Mattingly, 482 F.3d 886,
889 (6th Cir. 2007). The “critical question is wh ether
a reasonable officer in the defendant's position would
have had probable cause to believe that the suspect posed a
threat of serious physical harm, either to the officer or to
others.” Zulock v. Shures, 441 Fed.Appx. 294,
302 (6th Cir. 2010) (citing Bouggess, 482 F.3d at
addition to challenging the veracity of the Amended
Complaint's factual allegations, the Defendants assert
that they are entitled to qualified immunity and argue that
Plaintiff's excessive-force claim does not contain
sufficient factual matter “to put the Defendants on
notice as to how they allegedly violated the Plaintiff's
constitutional rights.” (Doc. # 12 at 3-5). In
response, the Plaintiff argues that the allegations in the
Amended Complaint are sufficient to state an excessive-force
claim and that the Defendants are not entitled to qualified
immunity. (Doc. # 15 at 4-8, 13-16).
The Defendants are not entitled to qualified
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)). Qualified immunity also balances two
important interests-the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
is a “two-tiered inquiry” for resolving claims of
qualified immunity. Martin v. City of Broadview
Heights, 712 F.3d 951, 957 (6th Cir. 2013) (citing
Austin v. Redford Twp. Police Dep't,
690 F.3d 490, 496 (6th Cir. 2012)). First, the Court must
determine whether “the facts alleged make out a
violation of a constitutional right.” Id. If
the plaintiff has shown a violation of a constitutional
right, then the Court must proceed to the second step and
“ask if the right at issue was ‘clearly
established' when the event occurred such that a
reasonable officer would have known that his conduct
violated” the right. Id.
survive a motion to dismiss on qualified-immunity grounds,
both inquiries must be resolved in the Plaintiff's favor.
See Wesley, 779 F.3d at 489. The Plaintiff bears
“the burden of showing that” the Defendants are
“not entitled to qualified immunity.”
Johnson, 790 F.3d at 653; see also Courtright v.
City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016).
“At the pleading stage, this burden is carried by
alleging facts plausibly making out a claim that the
defendant's conduct violated a constitutional right that
was clearly established law at the time, such that a
reasonable officer would have known that his conduct violated
that right.” Id. (citing Wesley, 779
F.3d at 428).
qualified immunity is ‘an immunity from suit rather
than a mere defense to liability … it is effectively
lost if a case is erroneously permitted to go to
trial.'” Pearson, 555 U.S. at 231 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Accordingly, the Supreme Court has repeatedly “stressed
the importance of resolving immunity questions at the
earliest possible stage in litigation.” Id. at
232 (citing Hunter, 502 U.S. at 227). The Sixth
Circuit, however, has clarified that only truly
“insubstantial claims against government officials
should be resolved … prior to broad discovery, ”
Johnson, 790 F.3d at 653, and has cautioned that
“it is generally inappropriate for a district court to
grant a 12(b)(6) motion to dismiss on the basis of qualified
immunity.” Wesley, 779 F.3d at 433. Thus,
“[a]lthough an officer's entitlement to qualified
immunity is a threshold question to be resolved at the
earliest possible point, that point is usually summary
judgment and not dismissal under Rule 12.” Id.
at 433-34 (internal citations and quotation marks omitted).
respect to the second prong of the qualified-immunity
analysis, the Defendants have not argued that the
constitutional rights allegedly violated were not clearly
established at the time of the alleged incident. Nor could
they. At the time Deputy Ashurst and Constable Bolton
approached Jessie Mills, “the right of people who pose
no safety risk to the police to be free from gratuitous
violence during arrest” was clearly established.
Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681,
688 (6th Cir. 2006) (“Cases in this circuit”
clearly established “the unconstitutionality of the use
of gratuitous force against helpless and incapacitated
suspects during arrest” by 1991.); Phelps v.
Coy, 286 F.3d 295, 301 (6th Cir. 2002) (finding
“no governmental interest in continuing to beat [the
arrestee] after he had been neutralized, nor could a
reasonable officer have thought there was”). Likewise,
at the time Deputy Ashurst shot Jessie Mills, it “ha[d]
been clearly established in this circuit for some time that
individuals have a right not be shot unless they are
perceived as posing a threat to officers or others.”
King v. Taylor, 694 F.3d 650, 664 (6th Cir. 2012);
see also Mullins v. Cyranek, 805 F.3d 760, 765 (6th
Cir. 2015) ((“[I]t is axiomatic that individuals have a
clearly established right not to be shot absent probable
cause to believe that they pose a threat of serious physical
harm, either to the officer or to others.”); Sample
v. Bailey, 409 F.3d 689, 698 (6th Cir. 2005).
the Court's qualified-immunity analysis will focus on the
first prong- whether the facts alleged make out a
constitutional violation. Again, at this early stage in the
litigation, the Court “must construe the complaint in
the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Wesley, 779 F.3d at
428. Despite the Defendants' argument to the contrary
(Doc. # 12 at 4), there is no heightened pleading standard
for § 1983 cases. Back v. Hall, 537 F.3d 552,
558 (6th Cir. 2008) (quoting Goad v. Mitchell, 297
F.3d 497, 502-03 (6th Cir. 2002) (“Because we are at
the pleading stage of this case, and because there is no
‘heightened pleading requirement … for civil
rights plaintiffs in cases in which the defendant raises the
affirmative defense of qualified immunity, ' [plaintiff]
was not ...