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Wilburn v. United States

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

July 31, 2018

DAVID J. WILBURN, JR., et al. PLAINTIFFS
v.
UNITED STATES OF AMERICA DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         This matter is before the court on motion of the Defendant, the United States of America, for summary judgment in favor of the Defendant on the Plaintiffs' claims, pursuant to Fed.R.Civ.P. (“Rule”) 56(c). For the reasons stated herein, the court will GRANT the Defendant's motion.

         I. BACKGROUND

         1. Factual Background

         On September 11, 2007, United States Army Sgt. Brent Burke (“Burke”) fatally shot his estranged wife, Tracy Burke (“Tracy”), and Tracy's mother-in-law from a former marriage, Karen Comer (“Comer”), in Comer's home in Rineyville, Kentucky. (DN 22, ¶ 2.) Tracy and Burke's two minor children, Eion M. Burke and Raegan A. Burke, and Tracy's minor son from her former marriage, Matthew T. Pete, were present at Comer's home at the time of the shooting. (Id. at ¶ 3.) On May 8, 2012, a seven-person military tribunal found Burke guilty of the murders of Tracy and Comer. (Id. at ¶ 4.)

         According to the Plaintiffs, the underlying tragedy of this action did not come without warning. The Plaintiffs contend that Burke began demonstrating violent tendencies in 2005, while he was deployed in Egypt. There, Burke allegedly made numerous concerning statements to others, including comments that he would kill himself and/or Tracy if Tracy left him. (DN 90-4, 5.) These statements twice caused Burke to be put under supervision. (DN 90-6.) After purportedly telling another soldier that he had found the perfect location to murder his platoon leader, the Army removed Burke from his platoon, transferred him to mental health counseling, and ultimately returned him early to Fort Campbell, Kentucky. (DN 90-4, 5.) For a time, Burke continued to receive mental health counseling and prescription medication to treat various mental health issues. (Id. at 6 - 7.) In January 2006, the Army released Burke to active duty and deployed him to Afghanistan. (DN 90-4, 7.) Yet, Burke allegedly continued to exhibit violent tendencies, especially towards detainees at the detention center where he was acting as a detention center guard. (Id. at 8.)

         Upon returning from deployment, Burke lived off-base with Tracy and their children in Burke's home in Clarksville, Tennessee. Throughout the summer of 2007, the Plaintiffs allege that the Army knew that Tracy feared Burke. (DN 90-4, 12.) The Army also was aware of two domestic violence incidents between Tracy and Burke in which the police were called to intervene.

         The first reported domestic violence incident occurred in May 2007. The police responded to a call at Burke's home where “[b]oth parties gave written statements and stated no physical activity occurred.” (DN 86, Exh. 5.) This incident was reported to Burke's chain of command and the Army investigated the situation pursuant to a written internal policy called “Policy 7: Command Response to Incidents of Domestic Violence” (“Policy 7”). (DN 90-4, 10; DN 90-2.) Under Policy 7, all Unit Commanders are required to respond to credible reports of domestic violence. (DN 90-4, 10.) The investigation resulted in the Army ordering a “72-hour cooling off period” in which Burke was provided a room in the Fort Campbell barracks. (Id.) Burke was required to attend counseling and social services sessions and was not allowed to contact Tracy until after he spoke to a counselor. (Id.) Fort Campbell's Family Advocacy Program's Case Review Committee subsequently closed the matter, finding that “no further services [were] needed or requested by the family at this time.” (DN 86, Exh. 5.)

         After this incident, Tracy and Burke physically separated and Tracy filed for divorce. (DN 86-9.) Burke moved back into the Army barracks and a Marital Dissolution Agreement was entered on July 23, 2007. (DN 90-4, 11; DN 86-10.) On August 11, 2007, local law enforcement responded to another domestic violence incident between Tracy and Burke, to which the Army was notified. (DN 90-4, 12.) The Clarksville Police Department in Clarksville, Tennessee did not prepare a report related to this call, and the Army did not take any action in response. (Id.)

         On September 11, Burke shot and killed Tracy and Comer in Comer's home in Rineyville, Kentucky. On April 5, 2013, the Plaintiffs, representatives of Tracy's minor children and administrators of the estates of Tracy and Comer, filed a Complaint against the United States for damages related to the shooting under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 - 2680.

         2. Procedural History

         In 2013, the United States filed a motion to dismiss the Plaintiffs' Amended Complaint pursuant to Rule 12(b)(6). Therein, the United States argued that the Plaintiffs' claims were barred by the intentional tort and discretionary function exceptions of the FTCA. The court granted the United States' motion, finding that the Plaintiffs' claims were barred by the intentional tort exception, and dismissed the case.[1] (DN 32.)

         The Plaintiffs timely appealed the court's order dismissing the action. In August of 2015, the Sixth Circuit reversed and remanded the case back to this court, finding that “it is not evident from the pleadings that either the FTCA's intentional tort exception or its discretionary function exception would bar these claims.” (DN 35, 2.) Over the next several years, the parties engaged in discovery efforts. Now before the court is the United States' Motion for Summary Judgment.

         II. STANDARD

         A party moving for summary judgment must show 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 burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally, the Court must draw all factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). It is the burden of the nonmoving party to ...


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