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Estate of Liko Kenney v. Gregory Willis Floyd et al.

February 28, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 46


Liko Kenney shot and killed Franconia Police Corporal Bruce McKay during the course of a traffic stop. Kenney was then shot and killed by Gregory Willis Floyd, a bystander who witnessed the first shooting. Kenney's estate ("Estate") has sued McKay, two of McKay's supervisors, the Town of Franconia, and Floyd, alleging both federal and state law causes of action. All of the defendants except Floyd have moved for summary judgment. For the reasons set forth, I grant the defendants' motion with respect to the Estate's federal claims and decline to exercise supplemental jurisdiction over its state law claims.


Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence submitted in support of the motion must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001). Inferences must be drawn in favor of the nonmoving party, however, only "to the extent supportable by the record." Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (emphasis in original).

Regarding issues on which the nonmoving party has the burden of proof at trial, the moving party "need do no more than aver 'an absence of evidence to support the nonmoving party's case.'" In re Varrasso, 37 F.3d 760, 763 n.1 (1st Cir. 1994) (quoting Celotex Corp. v. Cartrett, 477 U.S. 317, 325 (1986)); see Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009); Ingram v. Brink's, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005); Mottolo v. Fireman's Fund Ins. Co., 43 F.3d 723, 725 (1st Cir. 1995). "Once the moving party avers an absence of evidence to support the non-moving party's case, the non-moving party must offer 'definite, competent evidence to rebut the motion.'" Meuser, 564 F.3d at 515 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)); see Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011) ("A genuine issue of material fact can be created only by materials of evidentiary quality."); Medina-- Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (summary judgment cannot be defeated by relying on "conclusory allegations, improbable inferences, and unsupported speculation"). If the nonmoving party cannot "produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it," the motion must be granted. Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 322-23.


The Estate alleges that McKay violated Kenney's Fourth Amendment rights by stopping his vehicle without sufficient cause, using his police cruiser to push Kenney's vehicle off the road after Kenney fled the initial stop, and spraying Kenney with pepper spray after moving his vehicle off the roadway. The Estate also asserts that McKay's supervisors and the Town violated Kenney's Fourth Amendment rights by failing to properly hire, train, and supervise McKay. In addition to its federal claims, the Estate asserts state law claims for negligence, wrongful death, and intentional infliction of emotional distress.

The defendants challenge the Estate's Fourth Amendment claims by averring that the Estate lacks sufficient evidence to prove a Fourth Amendment violation against any of the defendants. The Estate responds first by claiming that facts material to the resolution of defendants' motion remain in genuine dispute and then by arguing that the defendants' challenge is premature in any event because discovery has not been completed.

I begin by examining the sufficiency of the evidence that the Estate has produced to support its Fourth Amendment claims. I then address the Estate's argument that summary judgment must be denied because discovery is ongoing. Finally, I briefly explain why I decline to exercise supplemental jurisdiction over the Estate's state law claims.

A. Fourth Amendment Claims

1. Initial Stop Claim

A traffic stop effects a seizure of the vehicle's occupants and "thus must be supported by reasonable suspicion that a traffic violation has occurred." United States v. Chaney, 584 F.3d 20, 24 (1st Cir. 2009). "[R]easonable suspicion requires more than a mere hunch but less than probable cause." United States v. Ruidiaz, 529 F.3d 25, 29 (1st Cir. 2008). Reasonableness is judged based on the totality of the circumstances. Id.

The defendants contend that McKay initiated the traffic stop because he observed that Kenney's vehicle registration had expired. The Estate responds by claiming that the defendants have failed to offer any proof to support their contentions. The fatal flaw in this argument is that it is based on a misunderstanding as to ...

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