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Harden v. Hillman

United States District Court, W.D. Kentucky, Louisville Division

July 24, 2018

JOHN K. HARDEN PLAINTIFF
v.
OFFICER KEITH HILLMAN, individually and in his official capacity as a police officer of Heritage Creek, et al DEFENDANTS

          MEMORANDUM OPINION & ORDER

          Joseph H. McKinley, Jr., Chief Judge.

         This matter is before the Court on motions for summary judgment by defendants Keith Hillman, the City of Heritage Creek (“Heritage Creek”) (DN 95), and Thorntons, Inc. (“Thorntons”). (DN 93.) Fully briefed, these matters are ripe for decision.

         I. Background

         In the early morning hours of August 2, 2014, plaintiff John Harden entered the Thorntons gas station and convenience store at 100 West Broadway in Louisville. Harden was attempting to buy beer but was refused service by the cashier, as he appeared intoxicated. Defendant Hillman was working inside the store providing security, outside of his regular hours as an officer for Heritage Creek. Hillman intervened in the situation and directed Harden to leave the store. Harden did leave but returned a short time thereafter. Hillman verbally directed Harden to leave the premises, but Harden refused. Hillman then physically removed Harden from the store and placed Harden under arrest. Once under arrest, Harden complained about being in pain. Hillman called for emergency medical services, who arrived and transported Harden to University of Louisville Hospital. At the hospital, Hillman was issued a citation and released.

         Harden filed this action against Hillman, Heritage Creek, and Thorntons on July 8, 2015. (DN 1.) Harden asserts claims against Hillman for deprivation of constitutional rights (Count I), assault (Count II), false arrest (Count III), and malicious prosecution (Count IV). The complaint asserts that Heritage Creek and Thorntons are liable on all counts for the actions of Hillman. Thorntons previously moved for summary judgment on all counts. (DN 58.) The Court granted the motion as to Counts I and IV but denied it as to Counts II and III. (DN 68.) The parties now move for summary judgment on all remaining claims. (DN 93, 95.)

         II. Standard of Review

         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying the portion of the record that demonstrates the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies this burden, the non-moving party must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving party to show that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

         III. Discussion

         A. Count I - Deprivation of Constitutional Rights

         Count I asserts that Hillman acted under color of state law when he physically removed Harden from the convenience store and placed him under arrest, thus depriving him of various constitutional rights. (Pl.'s Compl. [DN 1] ¶¶ 7-11.) Count I also asserts that Heritage Creek and Thorntons are vicariously liable for any constitutional violations committed by Hillman, as he was acting within the scope of his employment with both entities. (Id. ¶¶ 12-13.) The Court granted summary judgment to Thorntons on Count I, as Sixth Circuit precedent does not allow for private corporations to be held vicariously liable for the constitutional violations committed by its employees or agents. (DN 68, at 4-5) (quoting Meinhart v. Campbell, 2008 WL 1860273, at *1 (W.D. Ky. Apr. 24, 2008), and Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996)).

         1. Heritage Creek

         Heritage Creek is entitled to summary judgment on similar grounds. Municipal governments are considered “persons” who may be sued under § 1983, but the unconstitutional act at issue must be performed pursuant to a governmental policy or custom in order to establish municipal liability. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). Further, “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691. Thus, to the extent Harden seeks to hold Heritage Creek vicariously liable for constitutional violations committed by Hillman, such claims are precluded by Monell.

         Harden also asserts in his complaint that Heritage Creek is liable under Count I for its own negligence in failing to train and supervise Hillman. (Pl.'s Compl. [DN 1] ¶ 14.) While a municipality may be liable under § 1983 when the “city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants, ” City of Canton v. Harris, 489 U.S. 378, 392 (1989), Harden has presented no facts upon which a reasonable juror could conclude that Heritage Creek failed to train or supervise Hillman. He only mentions this theory of liability once in his response to Thornton's motion, stating that the testimony of the Heritage Creek Police Chief demonstrates that Heritage Creek “did not properly train Officer Hillman for his job as a police officer when moonlighting.” (DN 100, at 6.) But his only support for this is a deposition that he has failed to make part of the record, limiting the Court's ability to examine the evidence and conclude whether the Police Chief's deposition supports his failure to train claim. The record before the Court contains no evidence on which a reasonable juror could conclude that Heritage Creek acted deliberately indifferent to Harden by failing to train and supervise Hillman. (See Dep. Hillman [DN 95-4] at 14:16-20:5) (discussing training received, including that from Heritage Creek). Therefore, summary judgment is appropriate.

         2. Officer Hillman

         Finally, Hillman has moved for summary judgment as to Count I. Harden has sued Hillman in both his individual and official capacities. However, “[a]s long as the government entity [for which the defendant works] receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citations omitted). Therefore, the same analysis applies to the official capacity claims against Hillman as that of the claims against Heritage Creek, and Hillman's motion for summary judgment will be granted on those claims.

         As for the individual capacity claim, Hillman argues that he is entitled to qualified immunity. “In determining whether qualified immunity applies, [the court] employ[s] a two-part test, asking (1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established.” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008) (internal quotation marks omitted). However, when “a defendant raises qualified immunity as a defense, the plaintiff bears the burden of demonstrating that the defendant is not entitled to qualified immunity.” Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2006) (citing Baker v. City of Hamilton, 471 F.3d 601, 605 (6th Cir. 2006)). Hillman focuses on the first prong of the test for qualified immunity and argues that no constitutional violations occurred. Harden's response fails to address the § 1983 claim against Hillman.[1] However, because he has presented facts related to the force used during the arrest and whether probable cause existed to arrest him, the Court will consider whether Harden's Fourth Amendment protections against excessive force and arrest without probable cause were violated.

         a. Excessive Force

         “The Fourth Amendment prohibits law enforcement officers from using excessive force when making an arrest.” Smith v. City of Troy, 874 F.3d 938, 943 (6th Cir. 2017) (per curiam) (citing Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006)). “In order to comply with the Fourth Amendment, an officer's use of force must be objectively reasonable under the totality of the circumstances.” Id. (citing Kent v. Oakland Cty., 810 F.3d 384, 390 (6th Cir. 2016)). “In evaluating whether a police officer used excessive force on a particular occasion, the court must view the situation from the perspective of a reasonable officer on the scene at the time and without the benefit of 20/20 hindsight.” Id. at 943-44 (citations omitted). The Court should consider “the severity of the crime at issue, whether the suspect posed a threat to the officers or others, and whether the suspect was actively resisting arrest or attempting to avoid arrest by fleeing.” Id. at 944 (citations omitted).

         There are genuine factual disputes that preclude finding that Hillman is entitled to qualified immunity on the excessive force claim. The parties dispute how much force was used and why it was used. (Dep. Harden I [DN 95-2] at 93:6-94:5 (indicating that Hillman “grasped me with a bear hug, fully wraps me up, picks me up about three or four feet in the air, slams me down on the floor, directly to my left side, my left shoulder, back of my head, ” and that no resistance was offered to the arrest); Dep. Hillman [DN 95-4] at 36:3-42:23 (stating that he used a “left straight arm bar takedown” on Harden, made “fluid” motions without hesitation, used only “the necessary force to take him to the ground, ” and that Harden necessitated the use of force by resisting the arrest).) Of particular importance is the testimony of Harden in which he indicates that he was not resisting arrest but instead told Hillman to “take me to jail” while placing his hands on the checkout counter. (Dep. Harden I [DN 95-2] at 93:14-18.) Further, there are disputes as to whether Harden posed a threat to Hillman or others. Hillman testified that other customers were becoming “alarmed and annoyed” by Harden's behavior, but the record is unclear as to whether Harden ever posed a physical threat to anyone in the store. (Dep. Hillman [DN 95-4] at 51:25-52:2.) And finally, the crime Hillman told Harden he was being arrested for, criminal trespass in the third degree, is a violation, and the three crimes actually listed in the citation (disorderly conduct in the first degree, resisting arrest, and public intoxication) are all misdemeanors, raising doubts as to whether the amount of force used was commensurate with the severity of the crimes. See KRS §§ 511.080, 520.090, 525.055, 525.100. Therefore, the Court finds that a reasonable juror could conclude that Hillman violated Harden's Fourth Amendment right to be free from excessive force. See Smith, 874 F.3d at 944-45 (officer employed more force than was necessary when he took plaintiff to ground with leg sweep when there was factual dispute as to whether plaintiff resisted the officer); Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681, 687 (6th Cir. 2006) (passive resistance does not justify substantial use of force).

         Further, taking the evidence in a light most favorable to Harden, he has shown that Hillman violated his clearly established rights. “[T]he right to be free from physical force when one is not resisting the police is a clearly established right.” Baker v. Union Tp.,587 Fed.Appx. 229, 235 (6th Cir. 2014) (quoting Wysong v. City of Heath,260 Fed.Appx. 848, 856 (6th Cir. 2008)). Harden testified that he was told by Hillman that he could either leave or go to jail. He then said, “Well, take me to jail, ” with his hands on the store counter. At that time, Hillman grabbed him, lifted him, and took him to the ground with enough force to injure the left side of his body. A reasonable juror could ...


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