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Reich v. City of Elizabethtown

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

November 16, 2018

AMANDA M. REICH, ET AL. Plaintiffs
v.
CITY OF ELIZABETHTOWN, ET AL. Defendants

          MEMORANDUM OPINION AND ORDER

          Rebecca Gratly Jennings, District Judge United States District Court

         Plaintiffs, 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.

         BACKGROUND

         A. Factual Background

         On July 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. Id.

         The 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].

         Later, 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.

         Still 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. Id.

         Reich 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.

         In 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 situation. Id.

         In 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].

         Across 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.

         Reich 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].

         With 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].

         Officer 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.[1] [DE 55-5, Reich Depo. at 617]. Officer Richardson had his pistol raised to the “on target” position.[2] Id. at 614. Still looking at Officer Richardson, Blough said, “you're going to have to kill me motherf**ker.” Id. at 615.

         Blough stepped either toward or away from Officer Richardson.[3] 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.

         B. Procedural Background

         Reich 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].

         Discovery 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].

         LEGAL STANDARD

         Summary 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).

         A 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.

         DISCUSSION

         A. Reich's Affidavit Filed in Response to Defendants' Motion for Summary Judgment

         First, 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].

         Generally, “[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 ...


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