Ellis v. City of Providence
| Docket Number | Civil Action 4:17-CV-00042-GNS |
| Decision Date | 01 August 2023 |
| Parties | TIMOTHY ELLIS PLAINTIFF v. CITY OF PROVIDENCE, KENTUCKY et al. DEFENDANTS |
| Court | U.S. District Court — Western District of Kentucky |
This matter is before the Court on the Motion for Summary Judgment (DN 80) and Motion Exclude Expert Testimony (DN 82) on behalf of Defendants Dustin Winstead and City of Providence. The motions are ripe for decision.
Defendants William Dukes (“Dukes”) and Dustin Winstead (“Winstead”) were police officers for Defendant City of Providence, Kentucky (“Providence”) at the time of the events giving rise to this case. (Compl ¶ 2, DN 1). On March 26, 2016, the two officers responded to a call from Takiesha Sims (“Sims”) in Providence. (Defs.' Reply Mot. Summ. J. 2, DN 91). Sims told the officers that Plaintiff Timothy Ellis (“Ellis”), her ex-boyfriend, was “crazy drunk” and had just beaten her, smashed her cell phone and ran over her foot with his car. (Defs.' Reply Mot. Summ. J. 2 (citations omitted)). The officers observed bruising on Sims' face and damage on a nearby trailer that Ellis had evidently struck with his car. (Defs.' Reply Mot. Summ. J. 2).
Sims directed the two officers toward Westerfield Drive in Providence, where they found Ellis walking on the sidewalk. (Winstead Dep. 23:8-20, July 17, 2019, DN 80-5). He was indeed drunk; Ellis admitted that he had “eight or nine” beers and multiple shots of liquor earlier that evening. (Ellis Dep. 80:13:81-11, Mar. 28, 2018, DN 80-4). The officers approached Ellis, directed him to take his hands out of his pockets, and then told him to put his hands on the police car, to which he responded “[f]or what?”. (Ellis Dep. 80:4-11). According to Winstead, when Ellis did not place his hands on the car when asked, Winstead reached for Ellis' shoulder to try to turn him towards the vehicle. (Winstead Dep. 24:7-23). When Ellis yanked away from Winstead's reach, Dukes tased him. (Winstead Dep. 24:19-25:3).
The taser knocked Ellis unconscious, causing him to slide to the ground. (. After handcuffing Ellis, the officers performed sternum rubs to wake him, and after a few seconds, Ellis regained consciousness. (Pl.'s Resp. Defs.' Mot. Summ. J. 3; Winstead Dep. 26:6-24). The officers then informed Ellis that he was under arrest and instructed him to get in Dukes' squad car. (Dukes Bodycam Video 1 - pt. 2, DN 81 [hereinafter DN 81 Bodycam]). When Ellis did not stand up, the officers picked him up and carried him to the car, with Winstead holding his torso and Dukes carrying his feet. (DN 81 Bodycam; Winstead Dep. 29:8-11). Ellis can be heard on the audio kicking and screaming as the officers tried to place him in the car. (DN 81 Bodycam). At one point, Ellis kicked Dukes in the genitals. (DN 81 Bodycam; see also Ellis Dep. 115:21-116:5, Mar. 28, 2018, DN 80-4). Dukes deployed his taser seven additional times during the struggle to get Ellis into his car, but Ellis continued to struggle even after the subsequent taser deployments. ).
Before heading back to the police station, the officers called the local EMS team to meet them there and tend to Ellis. (Winstead Dep. 29:4-7). Upon arrival at the station, the EMTs sought to remove the taser barbs from Ellis' body, but there were none to remove; all of the barbs were caught in Ellis' thick jacket. (Tapp Dep. 4:25-5:13, Feb. 14, 2019, DN 80-10). One of the EMTs testified that Dukes delivered knee strikes to Ellis' upper leg area after the check for taser barbs had concluded, specifically that Dukes shoved Ellis to the ground and gave him half a dozen knee strikes, even though Ellis was in handcuffs and not resisting the police in any way. (Tapp Dep. 9:1-10:25). The EMT did not see Ellis do anything to cause or provoke the knee strikes, and he left the scene believing that what Dukes did “wasn't right.” (Tapp Dep. 10:2211:16). Winstead also testified that Dukes hit Ellis with his knees while they were at the station, but he claims there were only two knee strikes. (Winstead Dep. 33:20-34:7, 35:5-10).
Ellis was charged with domestic violence for his alleged beating of Sims, but those charges were ultimately dismissed. (Defs.' Mem. Supp. Mot. Summ. J. 9-10). He later filed suit in this Court under 42 U.S.C. § 1983, alleging excessive force and state-law assault against Dukes and Winstead. (Compl. ¶¶ 6-23). In addition to respondeat superior claims against Providence for Dukes' and Winstead's actions, Ellis asserted a separate claim that Providence “had prior notice of actions by its Officer Dukes and they did nothing to prevent same from occurring to” Ellis. (Compl. ¶¶ 21-22). While this suit has been pending, Dukes was convicted and sentenced to forty-two months in prison by this Court for violating another arrestee's constitutional rights during an arrest that occurred roughly two months after the incident giving rise to the instant action. United States v. Dukes, 779 Fed.Appx. 332, 336 (6th Cir. 2019).
The Court has jurisdiction over the parties pursuant to 28 U.S.C § 1331 as this case arises under the Constitution of the United States. This Court has supplemental jurisdiction over all state law claims under 28 U.S.C. § 1367(a).
Providence and Winstead move for summary judgment against them on all claims.[1]Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying the portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute ....” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
Because Ellis was indisputably a free citizen at the time at the time of his arrest, his excessive-force claims will be analyzed under the Fourth Amendment. See Murphy v. Pike Cnty. Det. Ctr., 474 F.Supp.3d 876, 884 (E.D. Ky. 2020) (citing Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)).
Ellis initially accused both Dukes and Winstead of using excessive force and assaulting him. (Compl. ¶¶ 7-15). Discovery has revealed, however, that Winstead did not tase or knee strike Ellis or perform any of the physical acts that make up his claims; only Dukes tased and kneed Ellis. (Pl.'s Resp. Defs.' Mot. Summ. J. 3-4, 12, 19). Because of this, Ellis abandons his direct excessive-force claim against Winstead, but asserts that Winstead witnessed Dukes using excessive force and failed to intervene. (Pl.'s Resp. Defs.' Mot. Summ. J. 18-20).
Importantly, Ellis did not plead this failure-to-intervene theory in the Complaint. However, “a plaintiff may not expand his claims to assert new theories for the first time in response to a summary judgment motion.” Desparois v. Perrysburg Exempted Vill. Sch. Dist., 455 Fed.Appx. 659, 666 (6th Cir. 2012) (quoting Bridgeport Music, Inc. v. WB Music Corp., 508 F.3d 394, 400 (6th Cir. 2007)). The Sixth Circuit has specifically held that excessive-force litigants may not argue failure to protect claims at summary judgment after not pleading such a claim. See Alexander v. Carter for Byrd, 733 Fed.Appx. 256, 264-65 (6th Cir. 2018); see also Hornback v. Czartorski, No. 3:20-CV-703-RGJ, 2022 WL 3084592, at *22 (W.D. Ky. Aug. 3, 2022) (). Winstead is entitled to summary judgment on the excessive-force claim on this ground alone.
Even if Ellis pleaded a failure-to-intervene claim before summary judgment, he has not presented enough evidence for a reasonable jury to find for him on that theory. See Anderson, 477 U.S. at 252. Under 42 U.S.C. § 1983 a police officer may be held liable for the use of excessive force if he “(1) actively participated in the use of excessive force, (2) supervised the officer who used excessive force, or (3) owed the victim a duty of protection against the use of excessive force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) (citations omitted). Winstead cannot be liable under the first theory because he indisputably did not tase or knee strike Ellis, nor did he direct Dukes to do so. See Toon v. City of Hopkinsville, No. 5:09-CV-37, 2011 WL 1885406, at *2 (W.D. Ky. May 18,...
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