Opinion
CIVIL ACTION NO. 3:98CV-447-H
July 20, 2001
MEMORANDUM OPINION
On May 5, 1996, Officer Brian Frederick arrested Alfred Hamilton ("Plaintiff") after the Louisville Police pursued Plaintiff by automobile and foot chase through West Louisville. Subsequently, Plaintiff was found guilty of carrying a concealed deadly weapon, criminal trespass in the second degree, two counts of criminal mischief in the third degree resisting arrest and disorderly conduct in a juvenile proceeding in Jefferson District Court. Plaintiff then filed this action alleging that the City of Louisville and Officer Frederick had (1) violated his equal protection rights under 42 U.S.C. § 1983, (2) defamed him by communicating to third parties that he was associated with narcotics trafficking, (3) falsely imprisoned him, (4) committed assault and battery against his person, (5) committed outrageous conduct against him.
On May 17, 2001, the City of Louisville and Defendant Frederick moved for summary judgment in light of the record and admissions made by Plaintiff in his deposition. Even though Plaintiff did not respond, the Court cannot sustain all of Defendants' motions based on the papers filed and the testimony of record. The Court has noted in its order that if Plaintiff intends to pursue this case to trial he must substantially comply with all important trial orders. Failure to do so could result in a sanction or order detrimental to his case.
I.
At about 11:00 p.m. on a May evening in 1996, Plaintiff and an unknown companion were traveling in a black Monte Carlo owned by Plaintiff's brother, Adrian Hamilton. Plaintiff was driving the vehicle, but he did not have a Kentucky motor vehicle operator's license. Officers Brian Frederick and Eric Johnson, in separate cruisers, each observed the vehicle driving without headlights in the 2600 block of West Broadway. Officer Frederick began to follow the vehicle and activated his emergency equipment. Plaintiff increased his speed for approximately a block before veering into oncoming traffic. He abruptly stopped the vehicle facing oncoming traffic, exited the vehicle and fled on foot. Plaintiff ran into a residential area, jumped over two fences, found a cellar with an unlocked door at 2427 West Broadway and hid there. Officer Frederick left his vehicle and pursued Plaintiff on foot.
Officer Frederick noticed an open cellar door and believing Plaintiff to be in the cellar, yelled for him to come out. According to Officer Frederick, Plaintiff continued his attempts to escape again on foot, requiring Officer Frederick to catch and tackle Plaintiff. At this time Plaintiff probably suffered small abrasions to his elbows, knees and forehead. Plaintiff was handcuffed and escorted to Officer Frederick's police cruiser. Plaintiff again attempted to escape. Officer Frederick restrained him. Other officers arrived at the scene and Plaintiff was put in the cruiser. Officer Frederick called EMS for assistance and wiped the blood from Plaintiff's face using Plaintiff's T-shirt. A search of the Monte Carlo revealed a loaded .357 magnum revolver under the driver side floorboard and two marijuana cigarettes. A search of Plaintiff's person yielded $220.00 in cash and no driver's license.
Plaintiff testified at his deposition that he gave himself up voluntarily after Officer Frederick threatened to shoot him. He says that he came out of hiding with his hands up. He testified that after he was handcuffed, Officer Frederick struck him in the jaw, beat his head against the concrete sidewalk and struck him three times in the face. Moreover, as he was being led to the front of the house, Officer Frederick allegedly slammed him against the side of the house and spit in his face. Plaintiff claims that Officer Frederick threatened to mace him once he was placed in the cruiser if he did not behave.
Pam Singleton, an EMS paramedic, examined Plaintiff at the scene. She observed a superficial abrasion on his forehead which did not require any treatment other than being cleaned and bandaged. She observed that Plaintiff was rude and uncooperative while she was trying to treat him. Ms. Singleton also observed several spectators encouraging Plaintiff to run away from the police. Ms. Singleton treated Plaintiff while he was handcuffed because the police informed her that Plaintiff was a flight risk. Plaintiff was transported to the Jefferson County Youth Center, which would not accept him because of his injuries. Officer Frederick then transported him to Kosair Children's Hospital. Plaintiff was treated for a "superficial abrasion and contusion to the forehead with no active bleeding," and it was noted that he had a slight swelling on the left jaw. Plaintiff was then released to the custody of his mother.
Officer Frederick charged Plaintiff with reckless driving, no operator's license, attempting to elude the police, carrying a concealed weapon, criminal trespass second degree, and two counts of criminal mischief in the third degree. On July 22, 1996, in a juvenile criminal proceeding, the Jefferson District Court found Alfred Hamilton guilty of carrying a concealed deadly weapon, criminal trespass in the second degree, two counts of criminal mischief in the third degree, resisting arrest and disorderly conduct. Plaintiff was sentenced to fifty hours of volunteer service.
II.
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The issue is whether the evidence submitted presents a sufficient disagreement about the material facts so that a submission to a jury is necessary, or whether the evidence is so one-sided that a party must prevail as a matter of law. Id. at 251-52. Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The moving party has the initial burden of showing that there is an absence of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "The burden on the moving party may be discharged if the moving party demonstrates that the nonmoving party has failed to establish an essential element of his or her case for which he or she bears the ultimate burden of proof at trial." Morales v. American Honda Motor Co., Inc., 71 F.3d 531, 535 (6th Cir. 1995).
III.
On a motion for summary judgment, "[t]he pivotal question is whether the party bearing the burden of proof has presented a jury question as to each element of its case. The Plaintiff must present more than a mere scintilla of evidence in support of his position; the Plaintiff must present evidence on which the jury could reasonably find for Plaintiff." Employers Insurance of WAUSAU v. Petroleum Specialties, Inc., 69 F.3d 98, 102 (6th Cir. 1995) (intervening citation omitted). In Count I of the complaint, Plaintiff alleged discrimination on the basis of his race and violation of his rights under the Equal Protection Clause of the Fourteenth Amendment.
For a plaintiff to prevail in a § 1983 action he must allege and show that he was deprived of a federal statutory right or rights protected by the U.S. Constitution. Wilson v. Garcia, 471 U.S. 261, 278 (1985). The burden is on the plaintiff to produce some proof of an alleged violation. Plaintiff alleges that the City of Louisville committed the "aforementioned acts upon the Plaintiff . . . because of their race. Defendant (City) would not have treated and does not treat white citizens in the same context in the same manner," and that the City of Louisville "has engaged in a pattern or practice of arresting or detaining African-Americans at a significantly greater rate than it arrests or detains white shoppers."
A.
Plaintiff alleges that Defendant Frederick used excessive force against him, used racial slurs and spit on him. Defendants deny the allegations. No one, except Plaintiff and Frederick, knows what really happened.
Plaintiff has testified that he attempted to surrender voluntarily. Plaintiff says that Officer Frederick hit him three times while he was handcuffed. Frederick says that a struggle occurred during the arrest, which resulted in abrasions to Plaintiff's face. The medical examination immediately upon arrest did reveal minor abrasions consistent with both sides' testimony and some swelling in the jaw, which could be consistent with Plaintiff's story.
To hit a detainee in handcuffs is clearly excessive force and known to be so by any officer. Therefore, Plaintiff's assertion that Defendant hit him several times after Plaintiff voluntarily surrendered and was in handcuffs absolutely states a claim for use of excessive force. One might say that is unlikely that a jury will believe Plaintiff's story in these circumstances. Perhaps so. However, the Court cannot dismiss a case solely on its perception of witness credibility. The Court cannot assume that a jury would disbelieve Plaintiff unless his testimony is so unbelievable or so discounted by other evidence that a reasonable jury could not believe it. The Court does not find other evidence creating that result.
On the other hand, to suffer abrasions during a struggle clearly does not amount to excessive force.
The medical evidence could support either side. No other direct evidence corroborates Defendant Frederick except for several bystanders who say that Plaintiff was uncooperative. A nearby homeowner's testimony that he saw no unnecessary force does not resolve the factual dispute. None of this is enough for the Court to conclude that it can completely disregard Plaintiff's story as lacking credibility and believability. Where Plaintiff's testimony states a case of excessive force, the Court may not resolve the case by finding one witness more credible than another. This is for the jury to decide. Kain v. Nesbitt, 156 F.3d 669, 672 (6th Cir. 1998). For the same reasons, the Court cannot yet dismiss Plaintiff's Count IV state tort claim for assault and battery.
B.
Even if a constitutional violation is proven, for Plaintiff to prevail on a § 1983 claim against a municipality, he must establish the existence of a municipal policy or custom which led to the alleged constitutional deprivation. Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Plaintiff alleges that the City of Louisville, acting through the Louisville Police Department, has engaged in a pattern of treating African-Americans differently than similarly-situated white individuals.
Plaintiff has failed to produce any evidence to support this allegation and has admitted in his deposition that the City of Louisville did not have prior knowledge of Officer Frederick's alleged racial bias. Plaintiff also admitted that he did not have prior knowledge that the City of Louisville engaged in a pattern or practice of racial discrimination. Plaintiff has also failed to produce any evidence that any act or omission of the City of Louisville in the areas of recruiting, hiring, training, supervising or disciplining constituted reckless conduct or gross negligence. Plaintiff has not demonstrated "a direct causal link between the municipal action and the deprivation of federal rights." Bryan County v. Brown, 520 U.S. 397 (1997). Using these two criteria, the City of Louisville is not liable to Plaintiff under § 1983., v. Four elements are necessary to establish an action for defamation under Kentucky law: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation. Columbia Sussex Corp. v. Hay, Ky. App., 627 S.W.2d 270 (1981). In Kentucky, truth is a complete defense for defamation, be it libel or slander per se. Bell v. Courier-Journal and Louisville Times Company, Ky., 402 S.W.2d 84, 87 (1966).
Plaintiff, by his own admission, is unaware of Officer Frederick ever making a false statement about him to another. In her statement to the Louisville Police Department's Department of Internal Affairs, Plaintiff's mother never mentioned any defamatory statements made by Officer Frederick about Plaintiff. Nor did Plaintiff ever mention defamatory statements in his statement to Internal Affairs.
Plaintiff has failed to produce any evidence of defamatory remarks made by Officer Frederick to third parties which harmed his character. There is no issue of fact for the Court to rule on with regard to this issue. Therefore, the City and Officer Frederick are entitled to summary judgment on Plaintiff's defamation claims.
VI.
To sustain a recovery for the tort of false imprisonment, a complainant must establish that he was detained and that the detention was unlawful. Wal-Mart Stores, Inc. v. Mitchell, Ky. App., 877 S.W.2d 616, 617 (1994); Great Atlantic Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759, 767 (1939). On the other hand, a police officer is authorized to arrest a subject if he/she has probable cause to believe the subject committed a crime. Avery v. King, 110 F.3d 12 (6th Cir. 1997).
The City does not dispute the fact that Plaintiff was detained. However, the detention was lawful. Plaintiff admitted that the detention was lawful under the circumstances. Plaintiff was convicted of the charges. A conviction in an inferior court for an offense is conclusive evidence of the fact that there was probable cause for the prosecution, absent fraud, corruption or perjured evidence. Duerr v. Kentucky Indiana Bridge R. Co., Ky. App. 116 S.W. 325 (1909). Since there is not an issue of material fact in dispute with regard to the alleged false imprisonment of Plaintiff, the City and Officer Frederick are entitled to summary judgment in their favor on this count of the complaint.
VII.
To state a cause of action for the tort of outrage under Kentucky law, a plaintiff must show: (1) the wrongdoer's conduct must be intentional or reckless; (2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and (4) the emotional distress must be severe. Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1, 2-3 (1990). Kentucky courts also generally hold that in cases where a special relationship between the parties exists so that the tortfeasor is aware of the plaintiff's susceptibility to emotional distress, the tortfeasor may be held liable where he proceeds in the face of that knowledge where it would not be so if he did not know. Osborne v. Payne, Ky., 31 S.W.3d 911 (2000). However, the tort of outrage (now intentional infliction of emotional distress) is a "gap-filler" tort intended to provide a remedy when no other tort is adequate. Brewer v. Hillard, Ky.App., 15 S.W.3d 1 (1999). The exception is when actions or contact are intended only to cause extreme emotional distress in the victim. Id. citing Rigazio v. Archdiocese of Louisville, Ky.App., 853 S.W.2d 295 (1993). Plaintiff has introduced no such evidence in this case.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
The Court has considered the motions for summary judgment filed by Defendants, City of Louisville and Officer Brian Frederick, and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant, City of Louisville's motion for summary judgment is SUSTAINED and all claims against the City are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendant, Brian Frederick's motion for summary judgment is SUSTAINED as to the state claims of false imprisonment, defamation and outrage and those claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendant Frederick's motion for summary judgment of Plaintiff's § 1983 claim and his state assault and battery claim are DENIED.
IT IS FURTHER ORDERED that this case is set for trial August 27, 2001. The Court has entered a trial order requiring the parties (whether represented by counsel or not) to file lists of witnesses and other items.
IT IS FURTHER ORDERED that failure to follow the Court's pretrial orders may result in a dismissal of the case or a sanction. If Plaintiff elects not to go forward with trial, he should notify Martha Hasty (625-3540) at the District Court Clerk's office.