Howard ex rel. Estate of Howard v. Bayes

• Decision Date: 09 August 2006
• Docket Number: No. 05-5076.,05-5076.
• Citation: 457 F.3d 568
• Parties: Heral HOWARD, as Administrator of the Estate of Tammy Howard, Plaintiff-Appellant, v. Paul BAYES, Individually; Pat Montgomery, Individually; Magoffin County Fiscal Court, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

457 F.3d 568

Heral HOWARD, as Administrator of the Estate of Tammy Howard, Plaintiff-Appellant, v. Paul BAYES, Individually; Pat Montgomery, Individually; Magoffin County Fiscal Court, Defendants-Appellees.

No. 05-5076.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2006.

Decided and Filed: August 9, 2006.

ARGUED: Ned B. Pillersdorf, Pillersdorf, Derossett & Lane, Prestonsburg, Kentucky, for Appellant. Jonathan C. Shaw, Porter, Schmitt, Banks & Baldwin, Paintsville, Kentucky for Appellees. ON BRIEF: Ned B. Pillersdorf, Pillersdorf, Derossett & Lane, Prestonsburg, Kentucky, for Appellant. Jonathan C. Shaw, Michael J. Schmitt, Porter, Schmitt, Banks & Baldwin, Paintsville, Kentucky for Appellees.

Before: SUHRHEINRICH, ROGERS, and COOK, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Plaintiff-Appellant Heral Howard ("Plaintiff"), as administrator of the estate of Tammy Howard, appeals the grant of summary judgment for Defendants-Appellees Paul Bayes, Pat Montgomery, and Magoffin County Fiscal Court ("Magoffin County") (collectively, "Defendants") on Plaintiff's federal civil rights claim under 42 U.S.C. § 1983 and Plaintiff's wrongful death claim under Kentucky state law. Because Plaintiff has failed to allege a cognizable procedural due process violation, and because Plaintiff cannot establish a wrongful death claim under Kentucky state law, we AFFIRM.

I.

The relevant facts are not in dispute. On April 29, 2002, Defendant Magoffin County Deputy Sheriff Paul Bayes responded to a 911 call regarding a possible drug overdose¹ at the residence of Tammy Howard ("Howard"). When Bayes arrived, Howard, her then-boyfriend Gerald Williams, and up to four emergency medical technicians ("EMTs") were inside the house. Bayes spoke with both Howard and Williams individually. Howard advised Bayes that there had not been any violence. Williams also told Bayes that "there wasn't nothing [sic] going on," but that he was concerned that Howard had taken some pills.

Howard apparently exhibited no physical signs of recent abuse. Bayes saw no signs of injury. Two of the EMTs stated in separate affidavits that "[o]ther than a little mark under Ms. Howard's eye there was no visible bruising or marks indicating any injury. There were no visible signs of any immediate or recent injuries or abuse. The mark under her eye appeared to have been present for several days." In their opinion, "there were no indications that there had been any fighting at the residence that evening and Ms. Howard did not complain of any fighting." According to one of the EMTs, Howard even appeared "happy."

Deputy Sheriff Carl Adams ("Deputy Adams"), who arrived at the scene after Bayes was already there, likewise testified² that he did not observe any physical injuries on Howard. He further testified that, through his experience in domestic violence cases, he would expect to see "red marks or some indicators" of violence if a person were being abused. However, he saw no "red marks or swelling or bleeding on . . . Howard" that night. Finally, Deputy Adams said that Howard never complained of any injury nor reported an assault.

According to all who saw her that night, Howard had obviously been drinking. She was, however, in the opinion of two EMTs, "in a state of consciousness and . . . was alert to person, place, [and] time." She ultimately refused treatment and signed a refusal-of-treatment form. The sheriffs and EMTs then left the residence.

The next morning, an ambulance was again called to Howard's residence. This time, however, Howard had to be taken to the hospital immediately. The record is unclear on this point, but it seems Howard had been physically beaten and was unconscious when the ambulance arrived. She died in the hospital several days later. Williams was convicted of Howard's murder on March 3, 2004 in Magoffin Circuit Court.

Plaintiff is Howard's father and the administrator of her estate. He brought a § 1983 claim against Bayes for violations of Howard's civil rights under the Fourth and Fourteenth Amendments. Specifically, Plaintiff argues that Bayes breached his duty under Kentucky law to arrest Williams the night before Williams killed Howard, which violated Howard's procedural due process rights. Plaintiff also brought a state law wrongful death action against Bayes. Plaintiff brought suit against Magoffin County Sheriff Pat Montgomery for negligent supervision and training under Kentucky state law. Finally, Plaintiff brought suit against the Magoffin County Fiscal Court as Bayes' employer.³

Defendants filed a motion for summary judgment on all claims, alleging, inter alia, sovereign and qualified immunities. The district court granted Defendants' summary judgment on all claims and dismissed the case. See Howard v. Bayes, 378 F.Supp.2d 753 (E.D.Ky.2005). Plaintiff filed this timely appeal.

II.

There are two issues on appeal: (1) whether the district court erred in granting Defendants' motion for summary judgment on Plaintiff's civil rights claim; and (2) whether the district court erred in granting Defendants' motion for summary judgment on Plaintiff's wrongful death claim.

This Court reviews a grant of summary judgment de novo. Perry v. Jaguar of Troy, 353 F.3d 510, 513 (6th Cir.2003). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). This Court must view all facts and inferences drawn therefrom in the light most favorable to the non-moving party, but uphold the grant of summary judgment "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A.

The first issue is whether Plaintiff can survive summary judgment on his § 1983 claim. Plaintiff argues that Howard had a procedural due process right under Kentucky law to have Williams arrested the night before her murder. Had this right not been violated, Plaintiff continues, Howard would not have been killed.

Section 1983 creates a federal cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." A violation of procedural due process with respect to property interests created under state law, if established, may form the basis of a § 1983 action. See Zinermon v. Burch, 494 U.S. 113, 125-26 & n. 11, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

In support of their motion for summary judgment, Defendants alleged, inter alia, qualified immunity from suit. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation," Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and is "`an immunity from suit rather than a mere defense to liability,'" Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. 2806). The Supreme Court has created a two-step process for analyzing claims of qualified immunity. First, the court must determine whether a constitutional violation has occurred. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a constitutional violation has occurred, then the court determines whether it was clearly established at the time of the violation that the conduct was unconstitutional. Id. If the court determines that it was clearly established, the defendant is not entitled to qualified immunity. Once raised, the plaintiff bears the burden of proving that the defendant is not entitled to qualified immunity. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir.2006).

Plaintiff relies on two Kentucky statutes to support his claim that Howard had a procedural due process right to have Williams arrested the night before Williams killed her. First, he cites Ky. Rev.Stat. § 403.785(2) [hereinafter "KRS"], which states:

When a law enforcement officer has reason to suspect that a family member, member of an unmarried couple, or household member has been the victim of domestic violence and abuse, the officer shall use all reasonable means to prevent further abuse, including but not limited to:

(a) Remaining at the location of the domestic violence and abuse so long as the officer reasonably suspects there is danger to the physical safety of individuals present without the presence of a law enforcement officer;

(b) Assisting the victim of domestic violence and abuse in obtaining medical treatment, including transporting the victim to the nearest medical facility capable of providing the necessary treatment; and

(c) Advising the victim immediately of the rights available to them [sic], including the provisions of KRS 403.715 to 403.785.⁴

Second, he cites KRS § 431.005(4), which states:

If a law enforcement officer has probable cause to believe that a person has violated a condition of release imposed in accordance with KRS 431.064 and verifies that the alleged violator has notice of the conditions, the officer shall, without a warrant, arrest the alleged violator whether the violation was committed in or outside the presence of the officer.

Plaintiff argues that the language "shall use all reasonable means to prevent further abuse," and "shall . . . arrest" if the "officer has probable cause to believe that a person has violated a condition of release," creates "a mandatory duty to protect those involved." Citing Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), Plaintiff argues this "mandate" in turn creates an entitlement that rises to the level of a protected property interest under the Due Process Clause. See id. at 463, 109 S.Ct. 1904 ("[T]he use of explicitly...