Fakhri v. Louisville-Jefferson Cnty. Metro. Gov't

• Decision Date: 30 April 2020
• Docket Number: CIVIL ACTION NO. 3:19-CV-00050-GNS-RSE
• Parties: FADI FAKHRI as administrator of the estate of Raad Fakhri Salman; and QADERYIA FADAAM PLAINTIFFS v. LOUISVILLE-JEFFERSON COUNTY METROPOLITAN GOVERNMENT; LOUISVILLE METRO POLICE DEPARTMENT; and BRANDON HOGAN DEFENDANTS
• Court: U.S. District Court — Western District of Kentucky

FADI FAKHRI as administrator of the estate of Raad Fakhri Salman;and QADERYIA FADAAM PLAINTIFFS v. LOUISVILLE-JEFFERSON COUNTY METROPOLITAN GOVERNMENT;LOUISVILLE METRO POLICE DEPARTMENT; and BRANDON HOGAN DEFENDANTS

CIVIL ACTION NO. 3:19-CV-00050-GNS-RSE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

April 30, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Brandon Hogan's Motion for Summary Judgment (DN 16) and Plaintiffs' Objection to the Magistrate Judge's Discovery Ruling (DN 28). The motion and objection are now ripe for adjudication. For the reasons that follow, the motion is GRANTED and the objection is OVERRULED.

I. BACKGROUND

This action arises out of the July 5, 2018, fatal shooting of decedent Raad Fakhri Salman ("Salman") by Defendant Brandon Hogan ("Hogan"), an officer with the Louisville Metro Police Department, while Hogan was responding to a dispatch report that Salman was threatening his wife, Plaintiff Qaderyia Fadaam ("Fadaam"), with a knife. (Compl. ¶¶ 13, 17, 25, 27, 38, DN 1).¹ Plaintiffs brought this action against Hogan² asserting: (1) a claim under 42 U.S.C. § 1983 for excessive force; (2) a state law claim for "battery causing wrongful death and loss of consortium[;]" (3) a state law negligence claim; and (4) a state law claim for "intentional or negligent infliction of emotional distress[.]" (Compl. ¶¶ 46-58, 100-113). All of these claims are asserted against Hogan in his individual capacity. (Compl. ¶¶ 46-58, 100-113). Hogan has since moved for summary judgment on all of Plaintiffs' claims against him. (Def.'s Mot. Summ. J. 1, DN 16). Plaintiffs have also objected to a discovery ruling from the Magistrate Judge. (Pls.' Obj. 1-3, DN 28).

II. JURISDICTION

The Court has federal question jurisdiction over Plaintiffs' Section 1983 claims, and supplemental jurisdiction is afforded over Plaintiffs' state law claims. See 28 U.S.C. §§ 1331, 1367(a).

III. STANDARD OF REVIEW

In ruling on a motion for summary judgment, the Court must determine whether there is any genuine issue of material fact that would preclude entry of judgment for the moving party as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating the basis for the motion and identifying the evidence demonstrating an absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies its burden, the nonmoving party must then produce specific evidence proving the existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

While the Court must view the evidence in the light most favorable for the nonmoving party, the nonmoving party must do more than merely show the existence of some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Rather, the nonmoving party must present facts proving that a genuine factual dispute exists by "citing to particular parts of the 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 [nonmoving party's] position will be insufficient" to overcome summary judgment. Anderson, 477 U.S. at 252.

IV. DISCUSSION

Generally, when both federal and state law claims are before a federal court, a federal court is to apply federal law to the plaintiff's federal law claims and state substantive law to the plaintiff's state law claims. Super Sulky, Inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 737, 741 (6th Cir. 1999) (citations omitted).

A. Section 1983 Excessive Force Claim

Plaintiffs first assert a Section 1983 claim for excessive force and identify the Fourth and Fourteenth Amendments as the constitutional amendments underlying their claim.³ (Compl. 10). The U.S. Supreme Court has made clear, however, that "all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989). In other words, Plaintiffs' excessive force claim, which arises from the seizure of Salman, should be analyzed under the rubric of the Fourth Amendment and not the Fourteenth Amendment's Due Process Clause.

Plaintiffs do not refute this conclusion, but rather assert for the first time in this litigation that their Section 1983 claim includes an allegation of the violation of the Fourteenth Amendment's Equal Protection Clause. (Pls.' Resp. Def.'s Mot. Summ. J. 4-5). Specifically, Plaintiffs assert that Hogan violated the Equal Protection Clause by discriminating against Salman because of Salman's race—the allegation appears to be that Hogan is quicker to shoot non-white individuals versus white individuals. (Pls.' Resp. Def.'s Mot. Summ. J. 4-5). The problem with Plaintiffs' argument here is that this is the first time in the entirety of this litigation that Plaintiffs have specifically asserted an Equal Protection claim. As Hogan notes, there is absolutely nothing in Plaintiffs' Complaint or in any subsequent filings that would put Hogan on notice of having to defend against an Equal Protection claim. (Def.'s Reply Mot. Summ. J. 5-6, DN 24); see Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 787-89 (6th Cir. 2005) (affirming the district court's refusal to consider a new claim asserted for the first time in a response to a motion for summary judgment because plaintiff "advanced [a] new claim[] 'that w[as] never pled[]'" and because "there was 'nothing in [plaintiff's] Complaint to put Defendants on notice' of [plaintiff's] . . . claim."); see also Edwards v. Niles Sales & Serv., Inc., 439 F. Supp. 2d 1202, 1224-25 (S.D. Fla. 2006), overruled on other grounds by Lewis v. City of Union City, 918 F.3d 1213, 1217-18 (11th Cir. 2019) (holding that plaintiff was precluded from asserting new additional grounds for a claim in a response to a motion for summary judgment when those grounds were not contained within the complaint). Because Plaintiffs never pleaded claims under the Fourteenth Amendment, their Section 1983 excessive force claim will be analyzed under the rubric of the Fourth Amendment rather than the Fourteenth Amendment.

Hogan contends that he is protected by qualified immunity from this claim. (Def.'s Mem. Supp. Mot. Summ. J. 4-8). Although Section 1983 "provides 'a vehicle for a plaintiff to obtain damages for violations of the Constitution or a federal statute[,]' . . . the law provides government officials with qualified immunity from § 1983 claims." Casey v. Rouse, No. 7:17-145-KKC-EBA, 2020 WL 1236306, at *2 (E.D. Ky. Mar. 13, 2020) (quoting Boler v. Earley, 865 F.3d 391, 401 (6th Cir. 2017)). "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). "Defendants bear the initial burden of coming forward with facts to suggest that they were acting within the scope of their discretionary authority during the incident in question." Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992) (citation omitted). "However, a plaintiff has the burden of proving that the defendant is not entitled to qualified immunity and must show that the right at issue is clearly established." Casey, 2020 WL 1236306, at *2 (citing Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009)).

As the Sixth Circuit has explained:

[T]he plaintiff must effectively pass two hurdles when facing a defendant on summary judgment who claims qualified immunity. First, the allegations must state a claim of violation of clearly established law. Second, the plaintiff must present evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.

Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 1992) (internal quotation marks omitted) (citations omitted). "Claims of excessive force are analyzed under an objective-reasonableness standard, which depends on the facts and circumstance of each case viewed from the perspective of a reasonable officer on the scene." Miller v. Sanilac Cty., 606 F.3d 240, 251 (6th Cir. 2010) (citation omitted). "[T]he use of deadly force is only constitutionally reasonable if 'the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.'" Sample v. Bailey, 409 F.3d 689, 696-97 (6th Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). The Sixth Circuit "ha[s] upheld the use of deadly force by a police officer when the factual situation revealed a perceived serious threat of physical harm to the officer or others in the area from the perspective of a reasonable officer." Id. at 697 (citing Boyd v. Baeppler, 215 F.3d 594, 604 (6th Cir. 2000); Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991)).

Naturally, the parties dispute the reasonableness of Hogan's use of deadly force against Salman and the clarity of the law in defining such reasonableness. (Def.'s Mem. Supp. Mot. Summ. J. 4-8; Pls.' Resp. Def.'s Mot. Summ. J. 5-12). The record contains the statements of five individuals: (1) witness and Salman and Fadaam's apartment complex property manager Jennifer Johnson ("Johnson"); (2) witness Jason Hart ("Hart"); (3) witness Henrietta Kelly ("Kelly"); (4) Fadaam; and (5) Hogan. (Def.'s Mot. Summ. J. Ex. 2, at 3, 10-11, DN 16-3 [hereinafter Johnson Interview]; Conventional Filing Ex. 2, DN...