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Anderson v. City of Fulton

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

November 26, 2018

BOB ANDERSON, Administrator of the Estate of Charles Christopher McClure, Deceased, and Next Friend of S.M., B.M., and C.M., Minor Daughters of Mr. McClure PLAINTIFF



         This matter is before the Court on motions to dismiss by Defendants William Payne and Richard Sanders, [R. 27], John Tilley, [R. 28], and Michael Stacy, [R. 29]. Plaintiff Bob Anderson has responded to each motion to dismiss. [R. 31; R. 32; R. 33]. Defendants Payne and Sanders replied, [R. 34], as did Defendant Stacy, [R. 35]. The deadline for Defendant Tilley to reply has passed. This matter is now ripe for adjudication. For the reasons stated herein, Defendants William Payne and Richard Sanders's Motion to Dismiss, [R. 27], is GRANTED. Defendant John Tilley's Motion to Dismiss, [R. 28], is GRANTED. Defendant Michael Stacy's Motion to Dismiss, [R. 29], is GRANTED.


         The factual allegations as set out in the First Amended Complaint, [R. 25], and taken as true are as follows.[1] On January 16, 2017, Charles McClure was allegedly experiencing mental health issues and began striking vehicles in Fulton, Kentucky with a 3'6” long square metal tube with a knife affixed to it. [R. 25 at 3.] Fulton Police Chief Terry Powell arrived on the scene, followed by Lieutenant James Buckingham. [Id. at 4.] Anderson alleges that Buckingham shot McClure without warning, causing McClure to drop the pole and fall to the ground. [Id.] Anderson states that Buckingham then approached McClure and shot him a second time from “less than arm's length away” before McClure could stand up. [Id. at 5.] Anderson claims that all material events at the scene of the shooting were captured on Buckingham's bodycam. [Id.]

         Lonnie Bell, a member of the Critical Incident Response Team (“CIRT”), [2] was assigned the task of investigating the shooting.[3] During the course of his investigation, Bell interviewed Powell, Buckingham, and Fulcher (another officer at the scene), reviewed the footage from Powell's dashcam, and reviewed the footage from Buckingham's bodycam. [Id. at 7.] Anderson claims that although the camera footage refutes any justification by the police officers for the fatal shooting, Bell nonetheless concluded that Mr. McClure “continued to swing the post at a police … officer in a threatening manner, which resulted in Mr. McClure being shot and killed by a police officer.” [Id.] Bell then took the conclusions of his investigation to Commonwealth Attorney Michael Stacy, who presented the case to a Grand Jury. [Id.]

         Anderson alleges that the Grand Jury was never informed of the camera footage or shown the footage, “despite Defendants Bell and Stacy's knowledge of its existence and what it showed.” [Id.] Furthermore, Anderson alleges that Bell explicitly or implicitly made several, factual misrepresentations to the Grand Jury about what occurred at the scene. [Id. at 8.] Anderson alleges that Stacy “made no effort to correct these misrepresentations to the Grand Jury, ” and the one-sided misrepresentation of evidence by Bell and Stacy essentially caused the Grand Jury to find that there was no activity involved in McClure's death that warranted prosecution. [Id.]

         Anderson states that he “believes, and anticipates that he will be able to prove in discovery, that there exists a custom and practice of covering up unwarranted shootings of unarmed Kentucky citizens that pervades the culture of the Fulton Police, the KSP, and the office of the Commonwealth Attorney of Fulton County, ” which “effectively encourages unwarranted police shootings.” [Id.] On October 4, 2018, Anderson filed the First Amended Complaint, in which he alleged eight causes of action, including “[v]iolation of Fourth, Fifth, Eighth, and Fourteenth Amendments Pursuant to 42 U.S.C. § 1983, ” “negligence/gross negligence, ” battery, wrongful death, loss of consortium, hindrance of prosecution, perjury, and abuse of public office, against nine defendants. [Id. at 9-11.][4]


         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In order to survive a motion to dismiss under Rule 12(b)(6), a party must “plead enough ‘factual matter' to raise a ‘plausible' inference of wrongdoing.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the Court must presume all of the factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). “The court need not, however, accept unwarranted factual inferences.” Id. (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Should the well-pleaded facts support no “more than the mere possibility of misconduct, ” then dismissal is warranted. Iqbal, 556 U.S at 679. The Court may grant a motion to dismiss “only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief.” Garceau v. City of Flint, 572 Fed.Appx. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677-79).


         In response to Anderson's First Amended Complaint, four of the defendants have filed motions to dismiss, all pursuant to Federal Rule of Civil Procedure 12(b)(6). Although the motions involve four defendants, there are only three motions, as Sanders and Payne (hereinafter “the Commissioners”) jointly filed a motion to dismiss, [R. 27]. The Court will address each motion in turn.

         I. Sanders and Payne Motion to Dismiss

         As an initial matter, the Court recognizes Anderson's observation that the Commissioners have relied on matters outside the pleadings in arguing that their specific positions with Kentucky State Police (“KSP”) do not allow direct supervision over Bell. [R. 31 at 1 (Anderson Response to Commissioners).] For example, the Commissioners reasoned in their Motion to Dismiss that Sanders and Payne would not have supervised Bell because they “are not direct supervisors of any Lieutenants.” [R. 27-1 at 7.] Furthermore, the Commissioners stated:

Commissioner Sanders and Dep. Commissioner Payne were, at all times relevant to this action, in overall command of more than 850 sworn police officers and approximately 900 civilian employees. There is no conceivable situation in which the Commissioner or Deputy Commissioner could have been in direct supervision of Lieutenant Bell. It must also be understood that a State Police Trooper is an independent unit. He is trained to make independent, discretionary judgment calls and has to be free to do that. There are very few situations in which a Trooper will be under the direct supervision of anyone.

[Id. at 7-8.]

         Federal Rule of Civil Procedure 12(d) states:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d). This decision rests within the discretion of the district court, which “remains free to refuse to accept materials outside the pleadings.” Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 503 (6th Cir. 2006) (quoting 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1371 (3d ed. 2004)). Here, the statements by the Commissioners claiming Sanders and Payne had no direct supervision over Bell due to their position in the hierarchy of KSP involve matters outside the pleadings. Thus, these statements are excluded and were not considered by the Court, and this motion remains one to dismiss, rather than a motion for summary judgment.

         In his First Amended Complaint, Anderson alleges against the Commissioners claims of “[v]iolation of Fourth, Fifth, Eighth, and Fourteenth Amendments Pursuant to 42 U.S.C. § 1983, ” “negligence/gross negligence, ” battery, wrongful death, loss of consortium, hindrance of prosecution, perjury, and abuse of public office. [R. 25 at 9-11.] Anderson states that the Commissioners were “responsible for the establishment of policies either formally or by custom for, and [were] responsible for the employment, training, supervision and conduct of, Defendant Bell, or those responsible for the employment, training, supervision and conduct of, Defendant Bell.” [Id. at 3.][5] Under the section labeled “Nature of Defendants' Conduct, ” Anderson alleges the following in regard to all nine defendants as a group:

Defendants, individually and in conspiracy with one another, engaged in the misconduct described above under color of the law of the Commonwealth of Kentucky, and knowingly participated or acquiesced in, contributed to, encouraged, implicitly authorized, approved, or ratified such misconduct. This misconduct described above resulted from the failure of Defendants to employ qualified persons for positions of authority, and/or to properly and conscientiously train and supervise the conduct of such persons after their employment, and/or to promulgate appropriate policies and procedures either formally or by custom to protect the constitutional rights of citizens like Mr. McClure whom they are sworn to protect, and/or to implement, follow, and enforce existing policies and procedures that would have prevented Mr. McClure's death. Defendants' conduct was intentional and grossly negligent, indicated active malice toward Mr. McClure and others like him and a total, deliberate and reckless disregard for and indifference to his life, his constitutional and common law rights and those of his estate and minor daughters, and to the principles of transparency and accountability in law enforcement, and justifies an award of actual and punitive damages.

[Id. at 8-9.] However, in the facts section, the Commissioners are scarcely mentioned. In fact, they are only mentioned in the following passage:

Investigation of the shooting was assigned to Defendant Lonnie Bell. Defendant Bell is a member of the Critical Incident Response Team (“CIRT”) formed by KSP solely for the purpose of investigating police shootings. According to Defendant Tilley, the purpose of the CIRT is to promote transparency and accountability when responding to police-related shootings. According to Defendant Sanders, the CIRT is composed of “six of the best investigators KSP has to offer”, which presumably includes Defendant Bell. Defendant Payne ...

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