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Kelley v. Morton

United States District Court, D. Oregon, Portland Division

August 28, 2014

MICHAEL MORTON and THE CITY OF FAIRVIEW, by and through the Fairview Police Department, Defendants.


JANICE M. STEWART, Magistrate Judge.


This case involves the fatal shooting of Larry McKinney ("McKinney") on January 27, 2012, during an encounter between McKinney and two police officers for the City of Fairview, Michael Morton ("Morton") and Joe Kaiser ("Kaiser"). McKinney's mother, Sandra Kelley ("Kelley"), filed this action on September 12, 2012, as the Personal Representative of McKinney's estate, as well as on her own behalf and on behalf of McKinney's minor children, Chance, Stormy, and Stevie McKinney.[1] Although initially named as a defendant, Kaiser was dismissed with prejudice on August 29, 2014 (docket #23). The remaining defendants are the City of Fairview and Morton.

The Complaint alleges the following claims under 42 USC § 1983 against Morton: (1) arrest without probable cause in violation of the Fourth and Fourteenth Amendments (First Claim); (2) unreasonable use of deadly force in violation of the Fourth and Fourteenth Amendments (Second Claim); (3) deprivation of Kelley's substantive due process rights in violation of the Fourteenth Amendment (Third Claim); and (4) deprivation of the substantive due process rights (loss of a parent) of McKinney's minor children in violation of the Fourteenth Amendment (Fourth Claim). It also alleges a § 1983 claim against the City of Fairview based on an unconstitutional custom, policy or procedure by the City of Fairview (Fifth Claim) and supplemental state claims against both Morton and the City of Fairview for battery (Sixth Claim) and wrongful death (Seventh Claim).

Defendants have filed a Motion for Partial Summary Judgment (docket #34), seeking summary judgment against plaintiffs' request for punitive damages, as well as against each of plaintiffs' claims with the exception of the portion of the Second Claim premised upon the Fourth Amendment and the Sixth and Seventh Claims insofar as they are alleged against the City of Fairview. In response to the motion, plaintiffs have withdrawn the Fifth Claim (docket #46, p. 2). For the following reasons, defendants' motion should be granted in part and denied in part.[2]


Summary judgment may be granted if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." FRCP 56(c). The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only determine[] whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir 1999) (citation omitted). A " scintilla of evidence, ' or evidence that is merely colorable' or not significantly probative, '" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir 1989) (citation omitted). The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir 2000) (citation omitted). The court must view the inferences drawn from the facts "in the light most favorable to the non-moving party." Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir 2011) (citations omitted).


I. Undisputed Material Facts

Many of the events leading up to the encounter between McKinney and the two police officers are undisputed. Officers Morton and Kaiser responded to a call of a domestic disturbance involving a "drunk son" who had kicked in a door. Kaiser Depo., pp. 45, 52, 61; Morton Depo., pp. 55, 59. Neither officer had any prior contact with McKinney or Kelley. Kaiser Depo., p. 48; Morton Depo., p. 51. Within a minute or two of arriving on the scene, Morton shot McKinney who, carrying a knife, had come out of Kelley's apartment onto a second-story landing above a flight of stairs. Burrows Decl., Ex. 1.

Upon arriving on the scene, Morton and Kaiser made contact with Kelley, who, in response to Kaiser's question, told them there were no weapons in the apartment. Kelley Depo., p. 183; Kaiser Depo., pp. 59-61; Morton Depo., pp. 60-61, 66-67. Kelley contends that, because the officers already "had their guns out, " she told not to "shoot him, " but instead just "make him leave." Id. at 183-84. She then saw McKinney come out of the apartment with a kitchen knife and told him to "put the knife down." Kelley Depo., p. 186. Next, in "very fast succession, " the officers yelled at McKinney to "[d]rop the weapon, drop the weapon, " and Morton fired shots at McKinney, fatally wounding him. Kelley Depo., pp. 186-87.

As discussed in more detail below, two critical facts are disputed. First, it is disputed if or how far the officers had ascended the stairs at the time of the shooting. Kelley testified that the officers did not ascend the stairwell, while the officers testified that Kaiser ascended to one step below the landing, then retreated back down the stairs past Morton, and that Morton was about halfway up the staircase. Kaiser Depo., pp. 64-83; Kelley Depo., p. 185 & Kelley Depo. Ex. 15; Kelley Grand Jury Testimony, pp. 36-37; Morton Depo., pp. 67-78; Kaiser Grand Jury Testimony, p. 87. Second, it is disputed whether McKinney, who never left the top of the staircase, was "charging" or "lunging" toward the officers with the knife. Kaiser Depo., p. 79; Kelley Depo., p. 192; Morton Depo., p. 78; Burrows Decl., Ex. 15.

No further recitation of the facts is necessary to decide the bulk of defendants' motions. Accordingly, the necessary factual information is discussed only as ...

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