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McNally v. Tabor

United States District Court, E.D. Kentucky, Southern Division

November 15, 2019

MICHAEL McNALLY, Plaintiff,
v.
JAMES TABOR, individually and in his official capacity as Deputy, Whitley County Sheriff Department, and COLAN HARRELL, individually and in his official capacity as Sheriff, Whitley County Sheriff Department, Defendants.

          OPINION AND ORDER

          Robert E. Wier United States District Judge

         I. BACKGROUND

         This lawsuit centers on the roadside seizure of Plaintiff Michael McNally, who claims to have suffered a fractured arm while Defendant Whitley County Sheriff's Deputy James Tabor effected McNally's arrest by force. Tabor charged McNally with a series of offenses, including driving under the influence. At trial, the Whitley District Judge entered a directed verdict in McNally's favor based on a discovery violation, the Commonwealth's failure before trial to identify all officers at the scene of McNally's arrest. Shortly after, McNally sued both Tabor and Whitley County Sheriff Colan Harrell under § 1983 for violations of his constitutional rights and under state law for malicious prosecution, battery, and negligence/gross negligence.

         Only Tabor and McNally were present for the key events, and the parties agree about some of what happened on the night of McNally's arrest.[1] On April 14, 2017, around 9:00 p.m., both McNally and Tabor were driving in Whitley County on U.S. Highway 25. It was dark. The truck that McNally was driving-apparently not his own-did not have its headlamps illuminated, so Tabor initiated a traffic stop. When McNally got out of the truck, it rolled away and struck a guardrail. McNally reentered the vehicle to put it in park. Tabor detected the odor of alcohol as he approached McNally. Tabor asked McNally whether he had weapons in his possession, and McNally handed over his pocket-knife. When Tabor asked McNally for his license and proof of insurance, McNally produced his license but not proof of insurance. Throughout the interaction, Tabor ordered McNally multiple times to keep his hands out of his pockets. McNally still tried to fish his cigarette lighter from a pocket. At some point while McNally was standing outside the truck, McNally, with no notice, moved to reach inside the vehicle, and Tabor brought him to the ground and handcuffed him. Tabor then requested backup and put McNally into his police cruiser, advising McNally that he was under arrest for driving under the influence, menacing, no insurance, and no headlamps. Tabor drove McNally to the hospital for a blood test to determine his potential impairment, but McNally claimed not to understand the implied consent notice that Tabor read to him, so Tabor took him to the detention center instead. McNally never asked to be taken to the hospital for an injury. Upon his release, McNally sought medical treatment and was diagnosed with a broken arm.

         Other facts are disputed or at least unclear in light of the parties' competing accounts. According to Tabor, McNally's truck struck the guardrail multiple times-both in the process of the initial stop, and again after McNally got out of the vehicle. DE 31 at 50. Tabor states that McNally denied having been drinking. Also, Tabor characterizes McNally as argumentative during the stop; McNally continued to reach his hands into his pockets despite Tabor's repeated instructions to the contrary. In response to Tabor's question about McNally's license and insurance, McNally advised that, because the truck belonged to someone else, he did not have proof of insurance. Tabor viewed McNally's “abrupt movement” toward the interior of the truck as a potential attempt to flee or obtain a weapon from inside the vehicle.

         In McNally's version, the truck struck the guardrail only once, and McNally tried (perhaps unsuccessfully) to explain the cause to Tabor: a mechanical issue with the transmission and lack of dashboard lights (to enable the driver to see what gear the truck was in). Per McNally, he did not actually put his hands in his pockets, but he did ask Tabor whether he could smoke a cigarette and whether Tabor wanted to take the lighter that was in McNally's “watch fob pocket, ” supposedly visible to Tabor. McNally admits that he was leaning into the truck's passenger compartment to continue to look for proof of insurance before Tabor grabbed him and took him to the ground. McNally concedes that, even after being told not to reach into his pockets, he tried, with no permission from Tabor, to retrieve his lighter from a front pocket. This was just as McNally had abruptly reached into the truck and just prior to the takedown. See DE 30 at 21; id. at 13 (“[H]e's like ‘Get your hands out of your pockets' and I said, ‘Sir, I just want the lighter.'”).

         Before the Court is Defendants' amended motion seeking summary judgment on all claims (DE 40-1). McNally responded in opposition. DE 44. Defendants replied. DE 45.

         II. STANDARD

         A court “shall grant summary judgment if the movant shows that 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). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).

         The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S.Ct. at 2552; see also Id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” (emphasis in original)).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 106 S.Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”) (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428, 444-45 (6th Cir. 2006).

         III. ANALYSIS

         A fair reading of McNally's complaint yields a slew of distinct theories of recovery. McNally appears to assert each of the complaint's five counts-§ 1983 unlawful seizure/false arrest, § 1983 excessive force, state-law malicious prosecution, state-law battery, and state-law negligence/gross negligence-against both Tabor and Harrell in their individual and official capacities. See DE 1 ¶ 5 (“Plaintiff sues Defendants Harrell and Tabor in their official and individual capacities.”). In effect, this duplication exists for all counts except the two § 1983 official-capacity claims, which do not require individualized treatment as to each Defendant.

         The analysis proceeds in two steps. First, the Court culls McNally's catalog of claims. Of the numerous claims that McNally appears to bring against Tabor and Harrell, nine require only brief discussion. Second, the Court considers the remaining issues, taking the § 1983 and state-law claims in turn, and concludes that none of McNally's claims survives summary judgment.

         A. Preliminary Matters

         1. Individual-Capacity § 1983 Claims Against Harrell

         It is not entirely clear whether McNally seeks to recover from Harrell in his individual capacity under § 1983. See DE 1 ¶ 5. In Count I, McNally alleges unconstitutional behavior by Defendants-emphasis on the plural-and in Count II, McNally likewise demands judgment against Defendants. See DE 1 ¶¶ 53-54, 62. Defendants argue that there is no evidence that Harrell knew about Tabor's supposedly unconstitutional conduct, and it is uncontested that Harrell was not present (or otherwise directly involved) during McNally's arrest. See DE 32 at 41 (Harrell Deposition); DE 40-1 at 28. In response to Defendants' briefing, McNally focuses not on particular acts by Harrell but on perceived deficits in county policy regarding deputies.[2] See DE 44 at 9-15.

         “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law.” Kentucky v. Graham, 105 S.Ct. 3099, 3105 (1985). “Where a supervisor is also a policymaker, it may be easy to ‘improperly conflate[] a § 1983 claim of individual supervisor liability with one of municipal liability' or an official-capacity claim.” Horn v. City of Covington, No. 14-73-DLB-CJS, 2018 WL 3865377, at *32 (E.D. Ky. Aug. 14, 2018) (quoting Phillips v. Roane Cty., 534 F.3d 531, 543 (6th Cir. 2008)). But “liability under § 1983 must be based on active unconstitutional behavior and cannot be based upon ‘a mere failure to act.'” Shehee v Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (internal quotation omitted). “A supervisor is not liable pursuant to § 1983 for failing to train unless the supervisor ‘either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.'” Phillips, 534 F.3d at 543 (quoting Shehee, 199 F.3d at 300).

         Given the equivocal complaint-evidently asserting all counts against both Defendants in both capacities-and McNally's failure to suggest a triable issue on Harrell's actual involvement in McNally's arrest, the Court declines to entertain an individual-capacity § 1983 claim against Harrell. McNally's allegations sound in an official-capacity theory (which the Court addresses below). Moreover, McNally did not respond to Defendants' relevant arguments based on Harrell's lack of involvement and qualified immunity. See DE 40 at 28; DE 44 at 9-15. “[A] plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment.” Brown v. VHS of Mich., Inc., 545 Fed.Appx. 368, 372 (6th Cir. 2013). For these reasons, to the extent McNally brings an individual-capacity § 1983 claim against Harrell, summary judgment in favor of Defendants is warranted.

         2. Official-Capacity State-Law Claims Against Harrell

         McNally argues three state-law claims against Harrell: malicious prosecution (Count III), battery (Count IV), and negligence/gross negligence (Count V). Defendants invoke sovereign immunity as a defense to all official-capacity state-law claims. DE 40-1 at 18.

         Sovereign immunity clearly dooms the official-capacity theory regarding Harrell's own conduct. “Official capacity suits ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'” Commonwealth Bd. of Claims v. Harris, 59 S.W.3d 896, 899 (2001) (quoting Graham, 105 S.Ct. at 3105). “Because the county is a political subdivision of the state, it is ‘cloaked' with sovereign or governmental immunity.” Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008). Sheriffs, as county officials, would have absolute immunity from suit for both their torts and their deputies' torts. Id. But a state may waive this immunity, and the Jones court interpreted KRS 70.040 to constitute a partial waiver. See Id. at 345-46. A plaintiff may sue the sheriff's office “for the tortious acts or omissions” of a sheriff's deputies but not for the acts or omissions of the sheriff himself. Id. Sovereign immunity therefore bars the three official-capacity state-law claims against Harrell (for his own conduct) but does not foreclose Tabor's individual liability or the office's (i.e., Harrell's official, vicarious) liability for Tabor's tortious acts or omissions.

         3. Individual-Capacity State-Law Claims Against Harrell (Respondeat Superior)

         According to Counts III, IV, and V, Harrell is liable for Tabor's alleged battery, malicious prosecution, and negligence “under the doctrine of respondeat superior.” DE 1 ¶¶ 68, 74, 84. Other than urging that the claim fails, Defendants say little about McNally's theory. See DE 40-1 at 30, 32. And, aside from the unhelpfully broad assertion in the complaint, see DE 1 ¶ 5, McNally does not further identify the actor for whom Tabor's conduct creates liability: Harrell in his individual capacity, Harrell in his official capacity (in effect, the county), or both. Nonetheless, the Court construes the complaint to allege, at least in part, that Harrell is personally liable for Tabor's supposed battery, malicious prosecution, and negligence.

         Under Kentucky law, “[a]n employer is strictly liable for damages resulting from the tortious acts of his employees committed within the scope of his employment.” Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d 783, 792-93 (Ky. 2011) (emphasis added). Harrell, in his individual capacity, cannot be vicariously liable for Tabor's torts unless Harrell was Tabor's employer. See Lamb v. Interstate S.S. Co., 149 F.2d 914, 917 (6th Cir. 1945) (“While the general rule is that the master is liable for the acts of his employees done within the scope of their employment, it is equally well settled that the rule applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the wrong at the time of the injury and with reference to the very transaction out of which the injury arose; otherwise, the doctrine of respondeat superior does not apply.”) At the time of this incident, the Whitley County Sheriff's Department, not Harrell personally, was Tabor's employer. Therefore, to the extent McNally asserts individual-capacity state-law claims against Harrell on a respondeat superior theory, those claims do not survive summary judgment.

         4. State-Law Negligence/Gross Negligence Claim Regarding Tabor's Conduct

         McNally alleges that Tabor breached his duty of care “with respect to the arrest, use of force and prosecution of Plaintiff.” DE 1 ¶ 79. Defendants contend that qualified official immunity protects them from liability and that Count V fails on the merits anyway because McNally cannot prove breach, offered no expert opinion on the standard of care, and identified no malice or willfulness (for purposes of gross negligence). DE 40-1 at 20-22, 32-35.

         This claim is bothersomely imprecise. A Kentucky negligence claim requires proof of a duty owed to the plaintiff, a breach by the defendant, and “consequent injury.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). Though McNally never identifies the source of Tabor's supposed duty to McNally, see DE 1 ¶¶ 77-79, Defendants appear to concede that a duty exists- observing the “universal duty of care, ” see DE 40-1 at 32-and instead focus their argument on the need for expert testimony as to the applicable standard of care, see DE 40-1 at 32-33. As for gross negligence, Kentucky law requires two findings: a failure to exercise reasonable care, “accompanied by wanton or reckless disregard for the lives, safety, or property of others.” Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 59 (Ky. 2013) (internal citation omitted). On this theory, McNally offers scant factual support, only the bare assertion that Defendants “exercised little to no care, and were grossly negligent.” See DE 1 ¶ 83. Defendants maintain that the existence of probable cause and the reasonableness of Tabor's use of force-latterly discussed issues relevant to the § 1983 and other state-law claims-likewise resolve the negligence claim in their favor. DE 40-1 at 33.

         The Court perceives a different problem with the negligence count. Namely, an “officer is liable for the intentional tort of battery, not for negligence, when he deliberately exceeds the privileged amount of force by committing an unwarranted violence on the arrestee.” Ali v. City of Louisville, No. 3:03CV-427-R, 2006 WL 2663018, at *8 (W.D. Ky. Sept. 15, 2006) (“To permit a separate claim for negligence creates the risk that a jury would assume that, even if no excessive force were used, the officer might somehow still be liable for some undefined negligence.”). Kentucky courts have recognized that there is no such creature as negligent assault, Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 732-33 (Ky. 2009), and this reasoning applies with similar force to the intentional torts of which McNally complains. See also District of Columbia v. Chinn, 839 A.2d 701, 706-10 (D.C. 2003) (discussing invalidity of negligent assault). No. amount of vague pleading can transform false-arrest or malicious-prosecution claims into causes of action properly sounding in negligence. See Jones v. Clark Cty., No. 5:15-337-DCR, 2016 WL 4146119, at *9 (E.D. Ky. Aug. 3, 2016) (discussing false arrest and malicious prosecution); Lewis v. Laurel Cty. Sheriff's Dep't, No. 09-280-GFVT, 2011 WL 3475370, at *6 (E.D. Ky. Aug. 8, 2011) (explaining this concept as it applies to malicious prosecution).

         As to Tabor, McNally relies on the same conduct that forms the basis of his constitutional and state-law claims and attempts to repackage the allegations as a negligence/gross-negligence count. This strategy may have been permissible if McNally had set forth an independent theory that met the requirements of a negligence or gross-negligence claim under Kentucky law. To the extent McNally asserts that Tabor negligently falsely arrested him, negligently used unnecessary force against him, or negligently maliciously prosecuted him, the Court rejects the effort and finds no possible personal liability for Tabor on Count V.

         Under KRS 70.040 (as interpreted in Jones), the sheriff's office may have vicarious liability for Tabor's negligence. But, because the individual-capacity negligence count against Tabor needlessly duplicates Counts III and IV and fails as a matter of law, Harrell-really, the office or county-can have no official-capacity liability on this count. See Haugh v. City of Louisville, 242 S.W.3d 683, 687 (Ky. Ct. App. 2007) (“[V]icarious liability is not possible without primary liability.”).[3] Accordingly, McNally cannot prevail on Count V against Tabor on the individual-capacity theory or against Harrell on the official-capacity theory.

         5. Summary

         Here's what remains: two individual-capacity § 1983 claims against Tabor; two official-capacity § 1983 claims, effectively against the office; state-law causes of action for malicious prosecution and battery against Tabor in his individual capacity and against Harrell in his official capacity (vicariously, for Tabor's conduct); and a state-law negligence claim against Harrell in his individual capacity.

         B. Section 1983 (Counts I and II)

         “Section 1983 creates a federal cause of action against state or local officials who deprive a person of a federal right while acting under the color of state law.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (citing 42 U.S.C. § 1983).

         1. Individual-Capacity Claim Against Tabor

         The complaint alleges two § 1983 counts against Tabor: unlawful seizure/false arrest (Count I) and excessive force (Count II). See DE 1. There is no dispute that Tabor was acting under color of state law, so the pertinent question is whether Tabor violated McNally's constitutional rights. Counts I and II both implicate McNally's Fourth Amendment rights, but the theories are distinct. Count I's viability depends on whether Tabor had probable cause to arrest McNally. Count II prompts an inquiry into the objective reasonableness of Tabor's force in arresting and handcuffing McNally.[4]

         a. Probable cause to arrest

         Tabor arrested McNally and lodged four charges: no headlamps, no insurance, driving under the influence, and menacing. See DE 40-5 (Uniform Citation).

         The Fourth Amendment protects against unreasonable searches and seizures, which includes an arrest without probable cause. Alman v. Reed, 703 F.3d 887, 896 (6th Cir. 2013). To prove false arrest under § 1983, a plaintiff must show that the officer lacked probable cause. Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). In other words, “[a]n arrest is valid so long as there is probable cause for a single charge of an arrestable offense.” Miller v. Sanilac Cty., 606 F.3d 240, 248 (6th Cir. 2010). “A police officer has probable cause if there is a ‘fair probability' that the individual to be arrested has either committed or intends to commit a crime.” Fridley, 291 F.3d at 872 (internal citation omitted). “To determine whether probable cause exists, [a court] consider[s] only ‘the facts known to the arresting officer at the time of the arrest.'” Hartman v. Thompson, 931 F.3d 471, 481 (6th Cir. 2019). “Probable cause is assessed ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'” Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (internal quotation omitted). “The existence of probable cause is a jury question, unless there is only one reasonable ...


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