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Mills v. Louisville Metropolitan Government

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

March 29, 2019

KEVIN GERARD MILLS, Plaintiff,
v.
LOUISVILLE METROPOLITAN GOVERNMENT, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Claria Boom, District Judge United States District Court

         This 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.

         I. Factual Background

         The 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.

         This is 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).

         The 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.

         Summerall 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 with Mills.

         When 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.

         Summerall's 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.

         Following 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.

         Summerall 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.

         II. Procedural Background

         Mills 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.

         Following 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]

         Mills 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.[1] [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]

         III. Analysis

         A. Plaintiff's Motion to Strike

         Before 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]

         Second, 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 deadlines ...


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