Dahl v. Kilgore
| Decision Date | 12 November 2020 |
| Docket Number | CIVIL ACTION NO. 3:18-CV-00501-CRS |
| Parties | VERNON H. DAHL, III PLAINTIFF v. JERMAINE KILGORE, et al. DEFENDANTS |
| Court | U.S. District Court — Western District of Kentucky |
This matter is before the Court on motions for summary judgment filed by Defendants Nicholas Lietz ("Lietz"), Cher Fillmore ("Fillmore"), and Jermaine Kilgore ("Kilgore"). DN 43, 44, 46. Plaintiff, Vernon Dahl III ("Dahl"), responded to the motions filed by Kilgore and Fillmore. DN 47, 48. Only Kilgore filed a reply. DN 49. The matter is now ripe for review. For the reasons stated herein, the Court will grant in part and deny in part the motions for summary judgment.
This action has its origin in an encounter between Dahl and Kilgore that occurred during the night on February 12, 2017 or early-morning hours of February 13, 2017 at The Grove at Lyndon, an apartment complex where Fillmore lived. DN 43-2 at 3-10. Dahl had driven there that night to see whether the lights were on in Fillmore's apartment. DN 43-2 at 3. Dahl and Fillmore were romantically involved at some point. DN 1-2 at 2. The status of their relationship on February 12, 2017 is unclear from the record.
Kilgore, a Kentucky State Trooper, served as The Grove at Lyndon's part-time security officer at that time and was acting in that capacity on the night of February 12-13. DN 46-1 at 14, 71. While surveying the area from his vehicle, Kilgore noticed Dahl's van in the parking lot. DN 46-1 at 14-15. Kilgore had seen Dahl's van at the apartment complex on numerous occasions and previously witnessed Dahl and Fillmore at the complex together, but noticed that on the night in question Dahl's van was parked "on a road behind . . . the court that he typically parks." DN 46-1 at 14-16, 64. Kilgore decided to drive past Dahl's van, but did not see Dahl sitting inside. DN 46-1 at 17.
Kilgore first noticed Dahl walking through the parking lot towards the maintenance shop. DN 46-1 at 18, 23. As Dahl approached the maintenance shop, he ventured onto the grass along near a row of trees, disappearing from Kilgore's sight. DN 46-1 at 18. Kilgore then exited his truck and started to walk towards the maintenance shop. DN 46-1 at 19. Dahl meanwhile had walked to the back of Fillmore's apartment, discovered that Fillmore's lights were off, assumed she was asleep, and began to return to his van. DN 43-2 at 3.
Kilgore saw Dahl reemerge in the breezeway between the apartment buildings. DN 46-1 at 19. Kilgore, dressed in caramel pants and a state police polo shirt, and equipped with an officer's badge and gun belt, approached Dahl to inquire about his behavior. DN 46-1 at 19-20. As the two drew closer, Kilgore asked Dahl "what he was doing behind the [apartment] building." DN 46-1 at 20. Dahl explained that he was there "checking on his girlfriend," Fillmore, and provided his driver's license to Kilgore. DN 46-1 at 24. Kilgore then asked if he could search Dahl for any weapons. DN 43-2 at 4. Upon Dahl's consent, Kilgore conducted a pat down of Dahl's person and did not discover any weapons or contraband. DN 46-1 at 24.
Around this time, Lietz, an officer with the Louisville Metro Police Department ("LMPD"), arrived in a marked LMPD cruiser. DN 46-1 at 24. Lietz drove through The Grove at Lyndon's parking lot periodically because the apartment complex was part of his beat. DN 46-3 at 8. As Lietz pulled up, he saw Kilgore and Dahl standing in the middle of the parking lot. DN 46-3 at 9. Believing that Kilgore was speaking with a friend, Lietz exited his vehicle to say hello. DN 46-3 at 9. As Lietz walked closer, he overheard Kilgore questioning Dahl about why he was at the apartment complex and heard Dahl respond that he was there "to visit or check on his girlfriend." DN 46-3 at 9-10, 25. After reaching the men, Kilgore handed Dahl's driver's license to Lietz and asked him to run Dahl's information through the National Crime Information Center database. DN 46-3 at 10. The search returned no outstanding warrants or other adverse information, and Lietz returned Dahl's driver's license. DN 43-2 at 5.
There are differing versions of what occurred next. After additional questioning by Kilgore, Dahl contends that the following occurred:
I took out my phone at that point and said, Matter [sic] of fact, I think it's time for me to get a hold of my attorney. And I had my phone in my right hand with just two fingers. And I was scrolling through with my left. And, um, at that point, I feel my phone being tugged. And I look up. And he's pulling my phone. So I pull back. And he basically lunges towards me with his other arm and pushes my phone back into my thumb, which jams my thumb back. And, urn [sic], I raised my arms up and let go of the phone. And he takes my phone.
Kilgore and Lietz testified that Dahl handed his phone to Kilgore to show him text messages Dahl had exchanged with Fillmore to corroborate Dahl's explanation about why he was on the premises. DN 46-1 at 26, DN 46-3 at 26.
The text messages contain the following correspondence1:
DN 46-5. Kilgore asserts that he believed the messages contradicted Dahl's explanation that he was at the apartment complex at Fillmore's invitation because the messages appeared to him to suggest that "[Dahl] and [Fillmore were] in an argument" and that "she wanted to be left alone." DN 46-1 at 28, 54. Kilgore testified that he investigated further to "make sure [Fillmore and] her daughter were okay" because "Dahl acted [] suspicious in an uncommon area," "text messages [that] basically [said] leave [her] alone," and he was "unaware of [Dahl's] intentions or what [Dahl] was capable of." DN 46-1 at 44-48, 90-91. Lietz never saw these messages or handled Dahl's phone. DN 46-3 at 26-27.
Kilgore accessed Fillmore's phone number on Dahl's cell phone and placed a call to her. DN 46-1 at 26-27. Kilgore contends that Dahl became "agitated," so he "pushed [Dahl] with the side of [his] hand" that was holding a flashlight to create distance between them.2 DN 46-1 at 87-89.
Next, Kilgore went to Fillmore's apartment and knocked on the door. DN 46-1 at 55, 46-3 at 35. Fillmore still did not respond. DN 44-2 at 10. Kilgore then went back to the parking lot and returned Dahl's phone to him. DN 46-1 at 34. Shortly thereafter, Dahl received a text message from Fillmore. DN 46-1 at 34. Kilgore testified that he "let Dahl go home" at this point because the text message "confirm[ed] that [Fillmore] was alive and [] could send texts." DN 46-1 at 47. Neither Kilgore nor Lietz issued Dahl a citation or placed Dahl under arrest. DN 46-1 at 44.
On the morning of February 13th, Kilgore went to Fillmore's apartment to inform her about Dahl's conduct the night before. DN 46-1 at 59, 97-99. Kilgore provided her with information concerning how to obtain an Interpersonal Protective Order ("IPO"). DN 44-2 at 26, 46-1 at 65.
On February 18, 2017, Fillmore went to the Jefferson County District Court Clerk's office where she obtained a temporary IPO against Dahl. DN at 46-2 at 43-49. Several weeks later, Jefferson County District Court Judge Annette Karem held a hearing at which both parties appeared—Dahl was represented by counsel—and were given the opportunity to present their version of events. DN 46-2 at 9-10, 26-28. Judge Karem entered an IPO, an order to remain in effect for three years. DN 46-2 at 26-28. Dahl appealed the issuance of the IPO. DN 46-2 at 23. The decision was upheld on appeal on December 28, 2017. DN 46-2 at 9-11.
At some point after the incident, Kilgore spoke in-person with management at The Grove at Lyndon regarding Dahl's presence at the complex during the early morning hours on February 13, 2017. DN 46-1 at 77. Fillmore was not present with Kilgore, nor did she speak to anyone at the apartment complex office about these events. DN 44-2 at 26, 29. On February 17, 2017, the apartment complex management issued a letter to Dahl notifying him that he was not permitted to be on the property, or he would be arrested for criminal trespass. DN 44-4.
Kilgore's version of events is documented in an incident report prepared by the Kentucky State Police when he called the incident in. DN 46-2 at 30. The report stated that he DN 46-2 at 30. Two weeks later, Kilgore added to the report that 3 DN 46-2 at 30. Neither officer filed a JC3 form, which, according to KRS 209A.120, is used to "document any information or injuries related to domestic violence and abuse or dating violence and abuse." DN 46-1 at 66-67.
A party moving for summary judgment must demonstrate "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). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 263 (1986). An issue of material fact is genuine if a rational fact finder could find in favor of either party on the issue. Id. at 248.
In undertaking this analysis, the Court...
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