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Gambrel v. Knox County

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

March 23, 2018

PEARLIE SUE GAMBREL, as Administrator PLAINTIFF of the Estate of Jessie J. Mills
v.
KNOX COUNTY, KENTUCKY, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          David L. Banning, United States District Judge.

         On June 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.

         Plaintiff 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On June 29, 2016, Jessie Mills retrieved his three-year-old daughter from her guardian's home.[1] (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.

         The 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.

         As 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.

         On June 28, 2017, Plaintiff filed the instant action against Deputy Ashurst, Constable Bolton, and Knox County.[2] (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.

         II. ANALYSIS

         Before 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).

         A 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' Answer.”).

         Although 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.”).

         This 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).[3] 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).”).

         Therefore, 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 12(f).

         A. Standard of Review

         The 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         As is 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 Cir. 2015).

         B. Federal § 1983 Claims

         “To 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).

         In this 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 as true.[4]

         1. Count One: Excessive Force

         An 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).

         To 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.

         “Given 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 889).

         In 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).

         a. The Defendants are not entitled to qualified immunity.

         “The 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.” Id.

         There 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.”[5] 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.

         To 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).

         “Because 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).

         With 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).

         Therefore, 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 ...


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