Bradford v. Bracken County

• Decision Date: 14 January 2011
• Docket Number: Civil Action No. 09–115–DLB.
• Citation: 767 F.Supp.2d 740
• Parties: Valerie BRADFORD, et al., Plaintiffsv.BRACKEN COUNTY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

767 F.Supp.2d 740

Valerie BRADFORD, et al., Plaintiffs

v.BRACKEN COUNTY, et al., Defendants.

Civil Action No. 09–115–DLB.

United States District Court,E.D. Kentucky,Northern Division,at Covington.

Jan. 14, 2011.

Eric C. Deters, Charles T. Lester, Jr., Eric C. Deters & Associates, P.S.C., Independence, KY, for Plaintiffs.Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Philip Taliaferro, Taliaferro, Shirooni, Carran & Keys, Michael P. Bartlett, Taliaferro, Carran & Keys, Covington, KY, Roger G. Wright, Justice & Public Safety Cabinet, Frankfort, KY, Daniel Dickerson, Florence, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

Plaintiffs initiated this 42 U.S.C. § 1983 action against Bracken and Campbell counties and multiple police officers after Robert Bradford was killed in a shooting incident in Bracken County, Kentucky on May 31, 2009. Plaintiffs assert ten state and federal claims against Defendants, including constitutional violations, battery, negligence, excessive force, and loss of consortium. The Court has federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367.

This matter is before the Court on Motions to Dismiss by Defendant Kentucky State Police officers Beighle (Docs. # 50, 53), Robb (Docs. # 50, 53), and McDonald (Doc. # 57). The motions have been fully briefed (Docs. # 61, 62, 64) and are ripe for review. For the reasons that follow, the Court will (1) grant Beighle and Robb's motions in part; (2) deny Beighle and Robb's motions in part; and (3) grant McDonald's motion.

I. BACKGROUND

Robert Bradford was shot and killed near his house on Eden Ridge Road in Bracken County, Kentucky on the night of May 31, 2009. At approximately 7 p.m. that evening, deputy Herb Rumford was dispatched to respond to a domestic disturbance near the intersection of Eden Ridge Road and the AA highway in Bracken County. Upon arrival, he spoke with Valerie Bradford, Robert Bradford's wife, who expressed concern that her husband might hurt himself. A Defendant State Trooper arrived on the scene, and he and Rumford instructed Valerie to stay put while the two drove down Eden Ridge Road toward the Bradford residence. Thereafter, Valerie Bradford received a call on her cell phone from unknown law enforcement personnel requesting that she proceed to a public place. Valerie then drove to Lauren and Mark Elliot's resident.

Upon arrival at the Bradford residence, Rumford and the Trooper allegedly found Robert Bradford holding a rifle. The facts, although not entirely clear, allege that one or more of the Defendant State Troopers shot at Bradford, causing him to flee to his business garage located on his property. Bradford refused to surrender to Rumford and the Trooper, who then called for backup. Allegedly, the Bradfords' neighbors, Ann and Wayne Bice, heard the Trooper fire at Bradford. Later that evening, the Bices exited their home after hearing what they thought was either a police or ambulance radio. As the two approached the noise source, they heard Bradford's name called over a megaphone, but reported that it was difficult to make out what was being said. The two further witnessed an unattended police cruiser near the Bradfords' driveway, and several police officers stationed outside Bradford's business garage.

At about 9:30 p.m., Bradford exited the garage in his front-end loader, driving down his driveway in an attempt to escape. As Bradford approached the officers stationed near the garage, he slowed down, the loader jogged a few times, cut to the left, and proceeded on to Eden Ridge. Bradford continued down Eden Ridge until he reached the empty police cruiser just short of his residential driveway. At this point, Bradford went off the road, around the police cruiser without making contact, and then re-entered Eden Ridge Road and began driving back toward the police officers. During this time, the Bices had started walking home when they reportedly heard at least twenty shots fired in less than a minute. Bradford was struck and lost control of his front-loader. The Complaint alleges that Bradford did not fire his weapon on the evening of May 31, 2009.

At the sound of the shots, the Bices headed back toward the Bradford residence and saw an unknown person in the cab of the front-loader with a flashlight. The loader was turned off and Bradford was removed on a gurney. The Amended Complaint alleges that Defendants shot Bradford multiple times in the chest and that he died from his injuries within minutes. A visibly shaken police officer allegedly approached the Bices and said “[i]f anyone asked you what you saw here, don't tell them anything, but have them call the state patrol's office.” (Doc. # 26 ¶ 34). During the standoff, several of Bradford's friends and family tried to enter the property and talk to him, but were stopped by Defendants and told they could not proceed. Deputy Rumford told Larry Dusing, one of Bradford's friends, that “if you go down there, you[']r[e] on his side, not ours.” (Doc. # 26 ¶ 38). They were, however, allowed to call Bradford on his cell phone.

Plaintiff Valerie Bradford was named administratrix of Bradford's estate on June 23, 2009. Plaintiffs Valerie Bradford and N.B. filed their original Complaint on July 20, 2009. (Doc. # 1). The Court subsequently dismissed the Bracken and Campbell County Sheriffs, and selected claims on February 1, 2010. (Doc. # 19). As permitted by the Court's Scheduling Order (Doc. # 23), on June 1, 2010, Plaintiffs filed a Motion for Leave to File an Amended Complaint and attached a proposed First Amended Complaint. (Doc. 24). ¹ The Court granted the motion on June 10, 2010 and Plaintiffs filed their First Amended Complaint the same day. (Docs. # 25, 26). Though the original Complaint named several Kentucky State Police officers and “Kentucky State Police Officers, Names Unknown,” it was the First Amended Complaint that named, for the first time, Defendants Beighle, McDonald, Robb, and Jaskowiak. (Doc. # 26).

On August 27, 2010 Plaintiffs sent requests for waiver of service to the four Defendants added in the First Amended Complaint: Beighle, McDonald, Robb, and Jaskowiak. (Docs. # 37, 38, 39, 40). All four requests for waiver of service were returned unexecuted, as indicated in docket entries on October 1, 2010. (Docs. # 41, 42, 43, 44). Summonses were issued to the four Defendants the same day. (Doc. # 47). Defendants Beighle, McDonald, and Robb subsequently moved to dismiss on several grounds. (Docs. # 50, 53, 57).

II. ANALYSISA. Motion to Dismiss Standard

A motion to dismiss may only be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle plaintiff to relief. Ang v. Procter & Gamble Co., 932 F.2d 540, 544 (6th Cir.1991) (citing Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). For purposes of a motion to dismiss, “all allegations in the complaint must be taken as true and construed in a light most favorable to the nonmovant.” Id. (citing Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976)). While the Court must accept the plaintiff's factual allegations as true, it need not accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir.1998) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)).

B. Plaintiff Valerie Bradford's and the Estate's State Law Claims Against Defendants Beighle, McDonald, and Robb are Time Barred

Defendants argue that Plaintiffs' state law claims are time barred because they were not commenced within the applicable statute of limitations. Plaintiffs respond that regardless of whether they timely commenced their claims, their Amended Complaint relates back to their original Complaint, which was timely filed. The Court takes these arguments in turn.

All Plaintiffs' state claims are subject to the one-year statute of limitations found in KRS § 413.140. Though Plaintiffs appear to concede this point—or, at least, do not argue it—it requires explanation. The first category of claims, Counts One (battery), Three (negligence), and Four (excessive force), are straightforward personal injury claims that fall under KRS § 413.140(1)(a)'s one-year statute of limitations. Count Six, which alleges loss of consortium on behalf of Valerie Bradford, decedent's wife, is also subject to KRS § 413.140(1)(a)'s one-year statute of limitations under Floyd v. Gray, 657 S.W.2d 936, 938 (Ky.1983).

Count Seven, which alleges loss of parental consortium on behalf of N.B., decedent's minor child, is less clear, but also subject to a KRS § 413.140(1)(a)'s one-year statute of limitations. The Kentucky Supreme Court first recognized a minor child's claim for loss of parental consortium in Giuliani v. Guiler, M.D., 951 S.W.2d 318, 319, 323 (Ky.1997) as a natural evolution of the common law. While the Kentucky Supreme Court has not specifically addressed the statute of limitations for loss of parental consortium claims, a one-year statute of limitations is consistent with Kentucky law holding that the personal injury statute of limitations (KRS § 413.140(1)(a)) “appl[ies] to injuries causing the death of the person, for which his widow or child may sue.” Irwin v. Smith, 150 Ky. 147, 150 S.W. 22, 24 (Ky.App.1912). Neither independent research nor the parties' briefs having uncovered authority or argument to the contrary, the Court finds all Plaintiffs' state law claims subject to KRS § 413.140(1)(a)'s one-year statute of limitations.

1. Under Kentucky Law, the Action Commenced When Summonses Were Issued

Kentucky Revised Statute § 413.140(1) requires a personal injury claim to be “ commenced within one (1) year after the cause of action accrued.” Under Federal Rule of Civil Procedure (Rule) 3, an action “is commenced by filing a complaint with the court.” By contrast, Kentucky...