United States District Court, W.D. Kentucky, Louisville Division
AMANDA M. REICH, ET AL. Plaintiffs
CITY OF ELIZABETHTOWN, ET AL. Defendants
MEMORANDUM OPINION AND ORDER
Rebecca Gratly Jennings, District Judge United States
Elise Davidson, successor administratrix for Joshua
Blough's estate, and Amanda Reich (collectively,
“Plaintiffs”), bring this action against the City
of Elizabethtown (“City”), Officer Scot
Richardson, and Officer Matthew McMillen (collectively,
“Defendants”) alleging that the City and its
officers violated the Fourth and Eighth Amendments to the
United States Constitution when the officers shot and killed
Joshua Blough on July 7, 2015. [DE 35, Amend. Compl. at 217].
Plaintiffs also bring related state-law tort claims.
Discovery has concluded, and Defendants now move for summary
judgment under Federal Rule of Civil Procedure 56. [DE 55,
MSJ]. A timely response [DE 61] and reply [DE 68] were filed.
Oral argument was held on October 30, 2018. [DE 76]. This
matter is ripe for adjudication. Having considered the
parties' filings and the applicable law, the Court GRANTS
Defendants' Motion for Summary Judgment.
6, 2015, Steven Blough went to a Communicare mental health
facility in Leitchfield, Kentucky. [DE 61, Resp. MSJ at
1707]. While being assessed for potential treatment,
Blough-who suffered from chronic schizophrenia, paranoia,
depression, bipolar disorder, and was a chronic
methamphetamine and benzodiazepine user-reported that he had
not taken his medication for four months and had attempted
suicide three times, including once in the prior five days.
[DE 55-7, Comm. Record]. He had previously been hospitalized
for his mental health conditions and drug abuse. [DE 55-6,
KYIBRS Rep.]. The Communicare counselor recommended immediate
admission. [DE 55-7, Comm. Record]. Blough declined, but
agreed to return for admission and treatment the next day.
Id. Before departing, Blough signed a document
agreeing that he would not try to commit suicide or harm
himself or others before checking into a facility.
next day, Blough and his fiancé, Amanda Reich, began
traveling from Leitchfield to a Communicare facility in
Elizabethtown. [DE 61 at 1708]. While stopped at a traffic
light, Blough saw a Kentucky State Police (“KSP”)
vehicle stopped on the side of the Western Kentucky Parkway
near White Mills. [DE 55 at 503]. Blough, high on
methamphetamine, became “really upset, ”
hallucinated that the KSP were after him, and said that
“there were police officers everywhere.” [DE
55-5, Reich Depo. at 606].
Blough and Reich stopped at another traffic light on Highway
62 in Elizabethtown. Id. at 607-08. Blough was still
hallucinating and, referring to the police, said to Reich,
“I'm not gonna let anybody hurt you, but I'm
not gonna let anybody hurt me either.” Id. at
608. Blough, armed with an open and locked three-inch knife,
exited the vehicle. Id. After a brief moment, Reich
successfully talked him into reentering the vehicle, and they
drove on. Id.
armed with the blade open and locked, Blough again exited the
vehicle at the intersection of Ring Road and Patriot Parkway
in Elizabethtown. Id. at 609. Reich said that
“it was like when [Blough] was walking he wasn't
even acknowledging any cars coming by or nothing.”
Id. She pleaded with Blough to reenter the vehicle,
but he refused and left the intersection on foot.
felt that “she couldn't contain the
situation” and immediately called 911. [DE 55-9,
Richardson Depo. at 693]. She told the dispatcher that she
“was afraid that somebody else would get the wrong idea
and call in thinking that [Blough] was a threat to someone
and that he would end up getting shot.” [DE 55-8, First
911 Transc. at 681]. She said that Blough had
“schizophrenia and stuff, ” had “not had
his medicine, ” and thought everybody was “out to
get him.” Id.
response to Reich's 911 call, Hardin County Dispatch
connected Reich to Officer Matthew McMillen, and they spoke
on the phone. [DE 55-5, Reich Depo. at 610]. Officer McMillen
then arrived at the scene to do a welfare check, where Reich
said that Blough was off his medication, paranoid, and
disliked police. [DE 55-6, KYIBRS Rep.]. Reich told Officer
McMillen that she wanted to get Blough to reenter the vehicle
without police involvement. [DE 55-5, Reich Depo. at 621].
Officer McMillen told her that if Blough “is in that
paranoid state and he sees an officer, you know, he could
perceive us as a threat and act upon it, especially if
he's armed with a knife.” [DE 61-7, McMillen
Statem. at 2192-95]. Reich told Officer McMillen that Blough
had not threatened anyone, and Officer McMillen agreed to
follow Reich's plan. Id. Officer McMillen
returned to his vehicle and advised dispatch of the
meantime, Blough had entered a residential subdivision near
Fontaine Drive. He had removed his shirt and was sweating
profusely. [DE 55-5, Reich Depo. at 608]. Reich thought
Blough seemed “agitated and upset.” Id.
at 621. Nearby residents reported that Blough was wandering
onto local properties and attempting to enter residences.
First, Helen Howlett said that she saw “a
suspicious-looking” man “wandering up-and-down
the street into my yard and the yards of my neighbors.”
[DE 55-11, Howlett Aff. at 823]. Second, Madison Pils said
that she “was walking home and saw a strange guy
walking a little bit of the way down the street...” [DE
55-12, Pils Statem. at 825]. Third, Randal Ray said that, in
response to Blough's behavior, Ray “became
concerned and locked [his truck], closed the garage door, and
went into [his] house to get his pistol.” [DE 55-13,
Ray Aff. at 826]. Finally, David Mills said that he
“saw a man on the patio of [his] brother's house
and it looked like he was trying to get into [the] back
door.” [DE 55-14, D. Mills Aff. at 828]. Later, Mills
said that he “saw a man standing in [his] front
yard” with a knife in his hand. Id. Mills told
Reich that he would call 911 because “there were people
and kids in the neighborhood.” Id. The 911
Call Center received calls from drivers passing the
subdivision, one of whom said that Blough had “a knife
in his hand like he's going to stab somebody or
someone.” [DE 55-15, Second 911 Transc. at 830].
from the subdivision, Severns Valley Baptist Church was
hosting a camp for about 200 children. [DE 55-16, Wilson Aff.
at 837]. Reich had parked “right by Severns
Valley” [DE 55-8, 911 Transcript at 681-82], and the
children were recreating and playing on the lawn adjacent to
Blough's location. [DE 55-16, Wilson Aff. at 837]. The
Church's Executive Pastor said that Severns Valley went
on “lock down” and notified parents that the
children were unharmed. Id.
entered the subdivision and asked Blough to put the knife
down and reenter the vehicle. [DE 55-5, Reich Depo. at 611].
Blough refused, and Reich testified that Blough “must
have seen the police-the police talking to [her] so [Blough]
thought [she] was involved in trying to get him hurt too, you
know.” Id. at 611-12. Officer Scot Richardson
was nearby and reported seeing Blough in the neighborhood,
describing Blough's behavior as “bizarre.”
[DE 55-9, Richardson Depo. at 697]. Officer McMillen returned
and spoke with Reich while Officer Richardson arrived
separately in a marked vehicle. [DE 55-10, McMillen Depo. at
764]. Officer McMillen described Blough's presence in the
residential neighborhood as adding “another
dynamic.” Id. at 784. Similarly, Officer
Richardson said that “the situation changed from an
enclosed vehicle to running across the major roadway, to
entering a field, to the situation changed from
‘he's probably going to be okay in a field'
setting, to now he's in the neighborhood with a knife and
there's residents that live in that neighborhood.”
[DE 55-9, Richardson Depo. at 705].
Officers Richardson and McMillen now present, Reich again
asked the officers not to approach Blough until she tried to
make him drop the knife. [DE 55-5, Reich Depo. at 613]. The
officers agreed, and Reich approached Blough in a
resident's front yard. Id. Blough still refused
to drop the knife or enter the vehicle. Id. As Reich
continued to ask Blough to drop the knife [DE 53, Reich
Interview], Blough moved toward Officer Richardson at a
“very fast pace.” [DE 55-9, Richardson Depo. at
700-02]. He looked at Officer Richardson with the knife blade
in a stabbing position. Id. at 700; [DE 55-10,
McMillen Depo. at 768]. Blough stopped, touched Reich, and
told her to “get the fu** back.” [DE 55-9,
Richardson Depo. at 704].
Richardson perceived Blough as a threat to himself, Reich,
and other persons in the neighborhood, and commanded Blough
to drop the knife. Id. at 709, 715. Blough
refused. [DE 55-5, Reich Depo. at 617]. Officer
Richardson had his pistol raised to the “on
target” position. Id. at 614. Still looking at
Officer Richardson, Blough said, “you're going to
have to kill me motherf**ker.” Id. at 615.
stepped either toward or away from Officer
Richardson. Officer Richardson fired two shots in
rapid succession, each striking Blough. [DE 55-9, Richardson
Depo. at 693]. Blough said “you shot me” and fell
face down in the grass. [DE 55-5, Reich Depo. at 617].
Officer McMillen also fired his weapon but missed Blough. [DE
55-10, McMillen Depo. at 776-77]. Officers Richardson and
McMillen administered first aid, but Blough died shortly
thereafter on the way to Hardin Memorial Hospital.
Id. at 777.
and Jamie Nelson, as Personal Representative of Blough's
Estate, filed this action alleging Fourth and Eighth
Amendment violations under 42 U.S.C. § 1983, as well as
state law tort claims for negligence; battery; negligent
hiring, training, and supervision; negligent infliction of
emotional distress; and outrage, also known as intentional
infliction of emotional distress. [DE 35 at 222-26].
Plaintiffs then filed a Motion to substitute Elise Davidson
for Jamie Nelson as Personal Representative of Blough's
Estate [DE 22], which the Court granted [DE 30]. Later, the
Court granted an Agreed Order of Partial Dismissal for all
claims against Tracy Shiller, Chief of the Elizabethtown
Police Department. [DE 38].
concluded on February 1, 2018, and Defendants now move for
summary judgment under Federal Rule of Civil Procedure 56.
[DE 55]. Plaintiffs filed a Response that includes an
affidavit attested to by Reich. [DE 61]. The affidavit
includes new assertions that Defendants claim contradict
Reich's earlier deposition testimony, and Defendants
argue in their Reply that the Court should therefore
disregard the affidavit. [DE 68, Reply MSJ at 3915]. Oral
argument on the Motion for Summary Judgment was held on
October 30, 2018. [DE 76].
judgment is required when “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 specifying the basis for its
motion and demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Once the moving party satisfies this burden,
the nonmoving party must produce specific facts demonstrating
a material issue of fact for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Factual
differences are not considered material unless the
differences are such that a reasonable jury could find for
the party contesting the summary judgment motion.”
Bell v. City of E. Cleveland, 125 F.3d 855
(6th Cir. 1997) (citing Liberty Lobby, 477 U.S. at 252).
district court considering a motion for summary judgment may
not weigh evidence or make credibility determinations.
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702
(6th Cir. 2008); Adams v. Metiva, 31 F.3d 375, 379
(6th Cir. 1994). The Court must view the evidence and draw
all reasonable inferences in a light most favorable to the
nonmoving party. Williams v. Int'l Paper Co.,
227 F.3d 706, 710 (6th Cir. 2000). But the nonmoving party
must do more than show some “metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986);
see also Loyd v. Saint Joseph Mercy Oakland, 766
F.3d 580, 588 (6th Cir. 2014). Instead, the nonmoving party
must present specific facts showing 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[.]” Shreve v. Franklin Cty.,
Ohio, 743 F.3d 126, 136 (6th Cir. 2014). “The mere
existence of a scintilla of evidence in support of the
[nonmoving party's] position will be insufficient; there
must be evidence on which the jury could reasonably find for
the [nonmoving party].” Liberty Lobby, 477 U.S. at 252.
Reich's Affidavit Filed in Response to Defendants'
Motion for Summary Judgment
the Court must decide whether it is proper to accept
Reich's new affidavit filed as part of Plaintiffs'
Response to Defendants' Motion for Summary Judgment. [DE
61-15, Reich Aff.]. Defendants argue in their Reply that the
Court should disregard the affidavit because it includes new
assertions that Defendants claim contradict Reich's
earlier deposition testimony. [DE 68, Reply MSJ at 3915].
“[a] party cannot create a factual dispute by filing an
affidavit, after a motion for summary judgment has been made,
which contradicts earlier testimony.” Dotson v.
U.S. Postal Serv.,977 F.2d 976, 978 (6th Cir. 1992)
(per curiam) (citing Gagne v. Nw. Nat. Ins. Co., 881
F.2d 309, 315 (6th Cir. 1989)); see also Reid v. Sears,
Roebuck & Co.,790 F.2d 453, 460 (6th Cir. 1986);
Biechele v. Cedar Point, Inc.,747 F.2d 209, 215
(6th Cir. 1984). “If a witness, who has knowledge of a
fact, is questioned during her deposition about that fact,
she is required to ‘bring it out at the deposition and
[cannot] contradict her testimony in a subsequent
affidavit.'” Holt v. Olmsted Township Bd. of
Trs.,43 F.Supp.2d 812, 817 (N.D. Ohio 1998) (quoting
Reid, 790 F.2d at 460). Put differently, “a party
cannot avoid summary judgment through the introduction of
self-serving affidavits that contradict prior sworn
testimony.” U.S. ex rel. Compton v. Midwest
Specialties, Inc.,142 F.3d 296, 303 (6th Cir. 1998).
Numerous courts have declared that self-serving affidavits
without factual support in the record will not defeat a
motion for summary judgment. See, e.g., Devine v.
Jefferson Cnty., Kentucky,186 F.Supp.2d 742, 744 (W.D.
Ky. 2001); Jadco Enterprises, Inc. v. Fannon, 991
F.Supp.2d 947, 955 (E.D. Ky. 2014); Syvongxay v.
Henderson,147 F.Supp.2d 854, 859 (N.D. Ohio 2001);
Wolfe v. Village of Brice,37 F.Supp.2d 1021, 1026
(S.D. Ohio 1999) (“Self-serving affidavits, alone, are
not enough to create an issue of fact sufficient to survive
summary judgment.”) (citing Liberty Lobby, 477 U.S. at
251; Copeland v. Machulis,57 F.3d 476, 479 (6th