United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Boom, District Judge United States District Court
matter is before the Court on Defendants' Motion to
Dismiss, on the parties' cross Motions for Summary
Judgment, and on Plaintiff's Motion to Strike
Defendants' Untimely Motion for Summary Judgment. [R. 13;
R.14; R. 17; R. 22] Defendants Louisville Metropolitan
Government (“Louisville Metro”) and Anthony
Summerall (“Summerall”) moved to dismiss the case
for failure to prosecute and also moved for summary judgment
on all claims. Plaintiff Kevin Gerard Mills
(“Mills”) moved for partial summary judgment on
the issue of liability, and also moved to strike
Defendants' Cross-Motion for Summary Judgement, claiming
that it was untimely filed. For the reasons stated below, the
Court will grant Defendants' Cross Motion for Summary
Judgment on all claims, will deny Mills's Motion for
Summary Judgment, and deny the remaining motions as moot.
parties provide widely diverging accounts concerning the
incidents that led to Mills's arrest and which form the
basis of his claims. The following facts are not in dispute.
On or about September 11, 2016, Summerall, a patrolman with
the Louisville Metro Police Department (“LMPD”),
responded to a call of a domestic disturbance at a local
residence in Louisville, Kentucky. The residence belonged to
Mills, who shared the home with Janice Howard
(“Howard”), his girlfriend. Howard made the call
to the LMPD, claiming domestic abuse.
where the parties' accounts diverge. Defendants filed a
DVD containing the video from Officer Summerall's
body-cam of the incident in support of their Cross Motion for
Summary Judgment. [R. 17-3, Ex. 2, Officer Video-Cam at file
nos. 1-6] The Court has reviewed the video, which includes
all the events in question, beginning with Summerall's
arrival at Plaintiff's residence and continuing through
Plaintiff's arrest. Defendants also filed an affidavit of
Officer Summerall, which conforms to the facts presented by
his body-cam video. [R. 17-2, Aff. Anthony Summerall] As
discussed below, “where, as here, there is ‘a
videotape capturing the events in question,' the court
must ‘view the facts in the light depicted by the
videotape.'” Green v. Throckmorton, 681 F.3d 853,
859 (6th Cir. 2012) (quoting Scott v. Harris, 550 U.S. 372,
378-81 (2007)) (alteration in Green).
Court finds the video depicts the following facts. Officer
Summerall arrived at Mills's residence, and was invited
in by Howard. [R. 17-3, Ex. 2, Officer Video-Cam at file no.
1, 0:55 - 10:12] Mills did not object to Summerall entering
the residence. Id. When Summerall asked what was
going on, Mills and Howard began arguing, or continued an
argument that they had been having just prior to
Summerall's arrival. Id. Summerall asked Howard
to come to the other side of the room away from Mills.
Id. When Summerall asked Mills to identify himself,
Mills immediately informed Summerall that he was “a
police officer, ” though not with the LMPD.
Id. Summerall asked to see his identification, and
Mills provided his driver's license. Id.
Summerall then asked Howard to come outside with him,
separating the two. Id. While outside the residence,
Summerall asked Howard to recount what had happened.
Id. Howard appeared visibly shaken. Id. She
began crying early on during her conversation with Summerall,
making it difficult to hear everything that was said.
Id. However, Howard recounted other alleged
instances of Mills's abuse. Id. at 6:38 - 10:12.
After listening to Howard, Summerall returned briefly to his
LMPD vehicle and called his sergeant, Michelle Kline.
Id. at 3:53. Summerall informed Sergeant Kline that
Mills was an “active police officer” and that
Howard was “all bruised up, marked up, hair pulled,
shirt torn off, the house is a mess . . . He's saying he
didn't do anything, but she has the bruises . . .”
Id. at 3:53 - 4:20. Sergeant Kline instructed
Summerall to “stand by” and not to “lock
him up yet.” Id. at 4:54. Summerall then took
photographs of Howard's bruising and torn hair.
Id. at 11:00 - 13:08.
then spoke with Mills. Id. at 15:05 - 20:08. During
this exchange, Mills informed Summerall that the two had just
had an argument after Howard refused to provide Mills with
his truck keys. Id. Mills denied assaulting Howard.
Id. He claimed Howard fabricated the allegations of
assault in response to his asking her to leave his residence.
Id. Summerall then took pictures of Mills and some
torn clothing that resulted from the altercation.
Id. At one point, Mills volunteered, “I might
have ripped her shirt while she was in the process of ripping
mine.” Id. at 24:30. Summerall then left the
residence, and asked Mills to have a seat. Id.
During this interview, Summerall made no physical contact
Summerall returned outside, Sergeant Kline had arrived on the
scene and was reviewing something on a cell phone.
Id. at 26:26 through 30:31. Later footage reveals
that Sergeant Kline was playing back a recording Howard had
made of the altercation that took place between Mills and
Howard. Id. at file no. 2, 00:19 - 3:36.
body-cam video depicts long stretches of time where he
remained outside the residence while Sergeant Kline
questioned Mills inside. Id. through file no. 3,
4:10. Summerall only entered the residence twice during this
time. He entered once to ask Mills if Howard could provide
water to her dogs, then returned outside to remain with
Howard. Id. at 4:10-4:45. Another time, Summerall
entered the residence to join the other responding patrolman,
Officer Sanders, who had been waiting with Mills. Summerall
never touched Plaintiff during these periods. Later, Sergeant
Kline can be seen discussing something with Howard.
Id. at file no. 4, 21:58. Sergeant Kline then
conferred with Summerall one final time, explaining what the
charges against Mills would be, and requested that Summerall
“watch me, ” presumably to provide support for
her during the arrest Id. at 24:24 - 25:05. Sergeant
Kline advised Summerall that Mills would be charged with
harassment with physical contact and terroristic threatening.
Id. Sergeant Kline and Summerall then re-entered
Howard's residence. Id. at 25:16. Sergeant Kline
informed Mills that he was under arrest and placed him in
handcuffs. Id. at 25:22 - 28:27. She then removed
Mills from the residence, followed by Officer Sanders and
Summerall, and placed him in her LMPD vehicle. Id.
Summerall was the last to leave the residence. Id.
Throughout the arrest, Summerall stood apart from Mills and
never touched him. Id.
Mills's arrest, Summerall played Howard's recording
of the altercation again while completing the Arrest
Citation. Id. at file no. 5, 4:34 - 10:30. During an
explicit exchange, Mills clearly threatens Howard and says
“If you don't give me the keys to my truck right
now . . . hurt you is not what's going to happen. Kill
you might happen.” Id. at 5:03 - 5:38.
Summerall then forwarded to another portion of the recording
wherein Howard can be heard screaming, “Get off of
me!” repeatedly. Id. at 8:53.
prepared the Arrest Citation, charging Mills with violations
of KY. Rev. St. § 525.070 (Harassment - Physical Contact
- No. Injury) and § 508.078 (Terroristic Threatening,
2nd Degree). [R. 17-4] Officer Sanders prepared the JC-3 form
that accompanied Mills's Arrest Citation and this form
included a charge for “Terroristic Threatening, 3rd
Degree, ” [in violation of KY. Rev. St. §
508.080]. Id. As Defendants explain, Summerall's
Arrest Citation contained a typo. [R. 17-1, at p. 3; R. 17-2,
Aff. Anthony Summerall] Mills focuses much of his argument on
the fact that one of the statutes relied upon (Harassment,
KY. Rev. St. § 525.070) includes the phrase “no
injury, ” as well as the fact that the other statutes
cited in Summerall's Arrest Citation is Terroristic
Threatening, 2nd Degree. [R. 14-4, Pl. Mem. in Supp. of Mot.
Summ. J. (“Pl. Mem. in Supp.”) at p. 2; R. 23-1,
at p. 2] Mills alleges that based on the statutes cited in
Summerall's Arrest Citation, Summerall lacked probable
cause to arrest him. [R. 23-1, at p. 4] However, as explained
below, neither the statutes listed on his Arrest Citation nor
the discrepancy between the two documents affects the
Court's ruling on any of the pending motions, and is
therefore not material to the Court's analysis.
filed this action on September 11, 2017 alleging: (1) a
Section 1983 claim against Summerall for Fourth and
Fourteenth Amendment violations, (2) state law claims against
Summerall, (3) a Section 1983 claim against Louisville Metro
for failing to “adequately hire, train and supervise
its police officers, including Defendant Summerall, as to the
proper use of probable cause, force and arrest . .”;
and 4) a state law claim of negligent hiring against
Louisville Metro based on Summerall's conduct during the
arrest. [R. 1, Compl., at ¶¶ 7-15, 17, 20-21, 23,
24, 27] Mills also sought punitive damages against both
Defendants. Id. at ¶ 29.
the discovery deadline, the Court set a telephonic status
conference for July 11, 2018. [R. 11] Counsel for Mills
failed to appear at this status conference, so the status
conference was not held. [R. 12] The Court ordered counsel
for Mills to file a report on the status of discovery no
later than July 23, 2018. Id. Counsel for Mills
failed to do so. Thereafter, the parties filed a flurry of
motions. On July 30, 2018, Defendants filed a Motion to
Dismiss pursuant to Fed.R.Civ.P. 41(b). [R. 13] That same
day, and presumably in response, Mills filed a Motion for
Summary Judgment on the issue of liability as well as a late
Status Report in an attempt to comply with the Court's
July 16, 2018 Order. [R. 14; R. 15] Mills attached his
affidavit and the Arrest Citation in support of his Motion
for Summary Judgment. [R. 14-2, Pl. Aff.; R. 14-3] In his
untimely Status Report, Mills advised the Court that he had a
“pending summary judgment motion” and
“Plaintiff is prepared and ready for trial.” [R.
15] Mills failed to address the Court's Order regarding
the status of discovery. See [R. 12]
then filed a response to the Defendants' Motion to
Dismiss on August 20, 2018. [R. 16] That same day, Defendants
filed a Cross-Motion for Summary Judgment and In Response to
Mills's Motion for Summary Judgment. [R. 17] For
support, Defendants filed the affidavit of Anthony Summerall,
a DVD Exhibit of Officer Summerall's body-cam video
capturing the incident in question, the post-arrest
citations, and subsequent court filings from Mills's
criminal proceedings. [R. 17-2, Summerall Aff.; R. 17-3, Ex.
2, Officer Video-Cam., nos. 1-6; R. 17-4; R. 17-5; R. 17-6]
Mills then filed a Motion to Strike Defendants' Untimely
Motion for Summary Judgment (“Motion to Strike”)
before filing a Response in opposition. [R. 22; R. 23]
Defendants filed a Response in opposition to Mills's
Motion to Strike. [R. 24]
Plaintiff's Motion to Strike
addressing the merits of the parties' cross Motions for
Summary Judgment, the Court will address Mills's Motion
to Strike Defendants' Cross Motion for Summary Judgment
as untimely. [R. 22] Defendants filed their Cross Motion for
Summary Judgment on August 20, 2018. [R. 17] Per the
Court's Scheduling Order, dispositive motions were due on
July 30, 2018. See [R. 9] First, pursuant to the Rule 16, a
schedule may be modified for “good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4). The Court
finds good cause exists here. Mills created these issues by
the manner in which he prosecuted his case. When Defendants
filed their Cross Motion for Summary Judgment and Response to
Mills's Motion for Summary Judgment, Mills had failed to
conduct any discovery in this matter; failed to attend the
parties' telephonic status conference [R. 11]; failed to
follow the Court's directives following this conference
[R. 12]; then failed to fully comply when he filed an
untimely Status Report [R. 15]. At the time his Motion for
Summary Judgment was filed, Defendants had pending a Motion
to Dismiss for failure to prosecute. Mills failed to respond
to this motion before filing his own Motion for Summary
Judgment. Considering all of this, Defendants believed they
had legitimate grounds to move for summary judgment on all
claims. [R. 24, at p. 1]
Mills's Motion to Strike ignores his own untimely
practice in this case. Mills's Motion to Strike was filed
109 days after Defendants' Cross-Motion for Summary
Judgment was filed. [R. 17; R. 22] Further, Mills's Reply
in Support of his Motion for Summary Judgment was filed 88
days late in violation of LR 7.1(c) - - (it was due on
September 4, 2018, and was filed on December 1, 2018). [R.
21] Similarly, Mills's Response to Defendants' Cross
Motion for Summary Judgment was due on Monday, September 10,
2018, but was not filed until December 17, 2018. [R. 24]
Mills cannot use the Scheduling Order as both sword and
shield when he himself wholly disregarded the Court's