Estate Of Kelly Allen v. City Of West Memphis

• Decision Date: 20 January 2011
• Docket Number: 05-2585,Nos. 05-2489,,s. 05-2489,
• Parties: ESTATE OF KELLY ALLEN, Deceased, CLAYTON DAVID ALLEN, MARIA NICOLE ALLEN, a minor by Next Friend, Kenneth Allen, ALEXIS LANE ALLEN, a minor by Next Friend, Kenneth B. Allen, Plaintiffs v. CITY OF WEST MEMPHIS, et al., Defendants/Third Party Plaintiffs v. ESTATE OF DONALD RICKARD, deceased, through its Administrator SCOTT B. PEATROSS, Consolidated with WHITNE RICKARD, a minor child, Individually, and as Surviving Daughter of Donald Rickard, Deceased, by and through her mother SAMANTHA RICKARD, As parent and next friend, Plaintiff v. CITY OF WEST MEMPHIS, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

ESTATE OF KELLY ALLEN, Deceased, CLAYTON DAVID ALLEN,
MARIA NICOLE ALLEN, a minor by Next Friend, Kenneth Allen,
ALEXIS LANE ALLEN, a minor by Next Friend, Kenneth B. Allen, Plaintiffs
v.
CITY OF WEST MEMPHIS, et al., Defendants/Third Party Plaintiffs
v.
ESTATE OF DONALD RICKARD, deceased, through its Administrator SCOTT B. PEATROSS,
Consolidated with WHITNE RICKARD, a minor child, Individually,
and as Surviving Daughter of Donald Rickard, Deceased,
by and through her mother SAMANTHA RICKARD, As parent and next friend, Plaintiff
v.
CITY OF WEST MEMPHIS, et al., Defendants.

Nos. 05-2489,
05-2585

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

Dated: January 20, 2011

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS

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Before the Court is Defendants Mayor William H. Johnson, Chief Robert Paudert, and West Memphis Police Officers Tony Galtelli, John Gardner, Lance Ellis, Jimmy Evans, Joseph Forthman, and Vance Plumhoff's (collectively the "Separate Defendants") November 30, 2009 Motion for Summary Judgment.¹Each of the Plaintiffs² makes numerous claims against the Separate Defendants, alleging, inter alia, excessive force claims in violation of the Fourth and Fourteenth Amendments; violations of the Fifth and Sixth Amendments; tort claims arising under the laws of Arkansas or Tennessee, including assault and battery, malicious harassment, intentional infliction of emotional distress, false imprisonment, false arrest, and abuse of process; and violations of the Tennessee Constitution.

The Separate Defendants maintain that actions taken by the West Memphis Police Officers were reasonable given the circumstances existing at the time of the incidents alleged and,

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thus, that their actions did not violate the Plaintiffs' constitutional rights; that the officers are entitled to qualified immunity for their actions; that the Separate Defendants are entitled to summary judgment based on privileges and/or statutory immunity; and that the claims against Mayor Johnson³ and Chief Paudert should be dismissed.

Plaintiffs Alexis Lane Allen, Clayton David Allen, Maria Nicole Allen, and the Estate of Kelly A. Allen (collectively the "Allen Plaintiffs") filed a response to the Separate Defendants' Motion for Summary Judgment on January 25, 2010. Also on January 25, 2010, Plaintiff Whitne Rickard (the "Rickard Plaintiff") filed a response to the Separate Defendants' Motion for Summary Judgment.⁴ The Separate Defendants filed a Reply to the Allen Plaintiffs and the Rickard Plaintiff's responses on February 8, 2010. For the following reasons, the Separate Defendants' Motion is GRANTED IN PART and DENIED IN PART.

I. Background

The following facts are undisputed unless otherwise stated.

The incidents giving rise to this lawsuit occurred around

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midnight on July 18, 2004, when West Memphis Police Officer Joseph Forthman initiated the traffic stop of a white Honda Accord (the "Rickard vehicle") in West Memphis, Arkansas. (Rickard Plaintiff's Response to Defendants' Statement of Facts, Dkt. 61, Exh. 5 ¶ 1.) ("Pl.'s SOF") Forthman was driving patrol unit # 279, which had a video camera that recorded the events from the initial traffic stop through the entire sequence of events. (Defendants' Statement of Facts, Dkt. 59, Exh. 2 ¶ 6.) ("Defs.' SOF") Donald Rickard was the driver of the Rickard vehicle and Kelly Allen was a passenger. Forthman stopped the vehicle because of an inoperable headlight. (Id. ¶ 2.)

Forthman approached the vehicle and asked the driver, Rickard, for his license and registration. (Id. ¶ 13.) As he approached the Rickard vehicle, Forthman noticed an indentation, "roughly the size of a head or a basketball, " in the windshield. (Id. ¶ 14.) Forthman asked Rickard what was wrong with the windshield, and the passenger, Allen, answered that the car had hit a curb, causing damage to the windshield. (Id. ¶¶ 16-17.) Forthman then glanced into the car and asked, "You haven't had any Keystone tonight have you?"; Rickard replied that he had not. (Id. ¶¶ 19-20.) After waiting for Rickard to produce his driver's license, Forthman asked Rickard to step out of the vehicle, "[b]ecause he was so nervous and he went over his I.D. card or driver's license several times without producing it to

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me." (Id. ¶¶ 24, 26.) Forthman states that he then asked Rickard twice to step out of the vehicle before the vehicle sped away. (Id. ¶ 28.)

Forthman returned to his vehicle and informed dispatch that he had a "runner, " meaning someone fleeing the scene of a traffic stop. (Id. ¶ 29.) Officer Vance Plumhoff was close to the location where Forthman had stopped Rickard and heard that Forthman had a runner. (Id. ¶ 32.) Plumhoff quickly became involved in the pursuit and became "primary, " meaning the lead vehicle in the chase. (Id. ¶ 33.) Plumhoff was driving patrol unit # 290, which did not have a video camera. (Id. ¶ 31.) Officer Jimmy Evans saw the Rickard vehicle, being pursued by two police vehicles, turn onto the Interstate 40 ("I-40") ramp heading east toward Memphis, Tennessee, and joined the pursuit. (Id. ¶ 34.) Evans was driving patrol unit # 205, which was not equipped with a video camera. (Id. ¶ 35.) Officer Lance Ellis was in route to aid Forthman in his stop, when he learned of the pursuit and joined the other officers in the pursuit. (Id. 1 36.) Ellis was driving unit # 284, which was equipped with a video camera that was able to record some of the events at issue in this suit. (Id. ¶ 37.) Officers Troy Galtelli and John Gardner also joined the pursuit after finishing a traffic stop. (Id. ¶¶ 38-41.) Galtelli was driving unit # 286, which was equipped with a camera that was able to record some of the

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events; Gardner was driving unit # 287, which was equipped with a video camera that was nonoperational. (Id. ¶¶ 39, 41.)

Forthman, Plumhoff, Evans, Ellis, Galtelli, and Gardner pursued the Rickard vehicle as it headed east on I-40 toward Memphis. Forthman said over the radio, "we got enough [meaning vehicles to perform a rolling roadblock] lets shut him down before he gets to Memphis." (Id. ¶ 42 (alteration in original).) Evans then got in front of the Rickard vehicle to perform a rolling roadblock. (Id. ¶ 47.) As Evans was getting in front of the vehicle, Plumhoff said on the radio, "he just tried to ram me." (Id.) Although it is undisputed that Plumhoff made such a statement, the alleged attempted ramming is not clearly demonstrated on the video of unit # 279, which was behind Plumhoff and Rickard, and Plaintiffs dispute whether such an attempt was made. (Pl.'s SOF ¶ 47.) After nearing Plumhoff's car on the right side of the road, the Rickard vehicle moved left. Forthman can be heard on the radio saying, "he is trying to ram another car." (Defs.' SOF ¶ 54.) Plaintiffs again do not challenge that Forthman made such a statement, but assert that the stated activity is not clearly depicted on the video and dispute whether such an attempt was made. (Pl.'s SOF ¶ 54.)

After the officers' assertions that the Rickard vehicle had attempted to ram Plumhoff and then Evans, Forthman said over the

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radio, "[w]e do have aggravated assault charges on him West Memphis advise Memphis that we do have felony charges." (Defs.' SOF ¶ 62.) Whether there were in fact felony charges at this point is disputed. (Pl.'s SOF ¶ 62.) As the pursuit continued over the I-40 bridge spanning the Mississippi River, Plumhoff can be heard saying that Rickard had another count of aggravated assault. (Defs.' SOF ¶ 64.) That activity is not clearly depicted on the video and is disputed. (Pl.'s SOF ¶ 64.)

Once in Memphis, Tennessee, the Rickard vehicle turned and exited I-40 onto Danny Thomas Boulevard. (Defs.' SOF ¶ 69.) The pursuit was momentarily on Alabama Avenue before the Rickard vehicle turned right onto Danny Thomas Boulevard. (Id. ¶ 71.) At that point, Plumhoff made a statement on the radio about ending the pursuit. Evans replied, "terminate the pursuit?" Another voice can then be heard on the radio saying, "negative. See if you can get in front of him." (Id. ¶ 72.) As the Rickard vehicle approached Jackson Avenue, it made a quick right turn onto Jackson Avenue and contact occurred between the Rickard vehicle and a police vehicle. (Id. ¶ 76.) The contact caused the Rickard vehicle to spin around in a parking lot at the intersection of Danny Thomas Boulevard and Jackson Avenue. (Id. ¶ 77.) Separate Defendants assert that the Rickard vehicle then turned directly toward Plumhoff's vehicle and had a head-on collision with it. (Id. ¶¶ 83-85.) Plaintiffs dispute these

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statements and aver that the Rickard vehicle was still moving forward from the momentum caused by the spinout after contact with Evans' vehicle and that this momentum caused the collision with Plumhoff's vehicle. (Pl.'s SOF ¶ 86.)

At or near this stage of events, the other officers formed a semicircle around the Rickard vehicle, attempting to use the building in the parking lot to prevent the vehicle from fleeing. (Defs.' SOF ¶ 90.) Because of the building and the location of the police cars, the only unobstructed way for Rickard to escape was to back up. (Id. ¶ 93.) Rickard reversed in an attempt to escape, and as he did so Evans and Plumhoff exited their vehicles and approached the Rickard vehicle. (Id. ¶¶ 94-95.) Evans tried to get into the vehicle by...