NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0241n.06 No. 10-5346 UNITED STAT ES COURT OF AP P EALS FOR THE SI XTH CI RCUI T RODNEY GRAV ES, Plaintiff-Appellant,

v. AMBE R BOWL ES; EL I Z AB ETH CAPPS ; U.S. BA NK, N.A.; OFF I CER J ASON RI CHARDSON, in his individual and officia l capa city ; CAPTAI N J AMES DUFF , in his indi vidual and officia l capa city ; CAPTAI N DAVI D GRAVES, in his indivi dual and off icial ca pacity ; SGT. J ASON MORGAN, in his individual and officia l capa city ; OFF I CER J I MMY PEDI GO, in his individual and off icial ca pacity ; DETECTI VE EDDI E L I

NDSEY, in his individual and officia l capa city , CI TY OF GL ASGOW, KENTUCKY; TPR. THOMAS PYZI K; TPR. W I L L I AM SHUFF ETT, I I ; TPR. MI CHAEL

McI L RATH; TPR. DEW AN KEL L Y; TPR. J OHN NO KES; TPR. J EREMY SL I

NKER; TPR. NORMAN PR ESTON; TPR. C HAD PEERCY; TPR. BRUCE BUTT ON; TPR. C HAD CARROL L ; and TPR. ANTHONY F ANNI N, Def endants-A

ppellees. ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF KE NTUCKY

/No. 10-5346

Grave s v. Bowles, et al. Pag e 2 Be fore : MARTI

N, SUHRHEI

NRI CH, and KETH L EDGE, Circuit Judges. BO YCE F. MARTI

N, J R., Circuit J udg e. Plaintiff-appe llant Rodney Gra ves was arr ested under the mistaken belief that he robbed the U.S. Ba nk in Glasg ow, Kentucky on Aug ust 10, 2007. The Glasg ow police conducte d the investiga tion that resulted in the war rant for Gra

ves’s arr est, and the Kentuc ky

State Police Special Response Te am ca rried out that arr est on Aug ust 15, outside of Glasg ow’s jurisdiction. The next day , police lear ned that Gra ves was not the U.S. Ba nk robber ; the
actua l robber had just robbed another bank in Paducah, Kentucky that day

. Gra ves was rele ased that day and eventua lly filed suit in United States District Court for the W es t er n Di s trict of Kentucky ag ainst the City of Glasg ow, six members of the Glasg ow police, and eleve n mem b er s of the Kentucky State Police claiming excessive forc e in violation of 42 U.S.C. § 1 9 8 3

. He also filed multipl e state tort c laims ag ainst U.S. Bank a nd two of its employ ees c oncer ning their roles in the criminal investiga tion. The district court g rante d all Def endants summary judgme nt and also denied Gra ves’s motion to alter or amend the judgme nt. Gra ves appea ls both decisions. For the following

rea sons, we AF F IRM

. I. DISCUSSI ON The district court’s memorandum opinions and order s provide excellent rec itations of the underlying fac ts. Grave

s v. Bowles , No. 1:07-CV-207-M, 2010 WL1141216 (W.D. Ky

. Mar. 22, 2010); Grave

s v. Bowles , No. 1:07-CV-207-M, 2010 WL 497719 (W.D. Ky

. Fe b

. 5 , 2 0 1 0 ); There fore , we will only

supplement those fa ctual sy nopses her e as ne eded. Gr aves asser

ts multipl e claims on appea l, some of which are repe titive. I n s u m m ar y , h i s claims are th at t h e district court: (1) applied the incorre ct summary judgme nt standard beca useNo. 10-5346

Grave s v. Bowles, et al. Pag e 3 multipl es issues of materia l f act exis ted as to w hether Gra ves was wrong fully arr ested; (2) applied the incorre ct pleading standard to Gra ves’s complaint when it did not rea d the complaint to include

a char g e of wrong ful arr est; (3) improperly dismiss ed his claim for excessive forc e; (4) improperly dismiss ed his claim ag ainst the City of Glasg ow; (5) impr operly dismiss ed his claims ag ainst the U.S. Ba nk Def endants; (6) i m p ro p er l y g rante d a protec tive order to prohibit the parties from deposing Dar

rell Pickett, May or of Glasg ow; and (7) improperly denied his motion to amend or alter the judg ment. A. Summ ary Judgm ent 1. Stand ard of Review This court revie ws a district court’s g rant o f summary judgme nt de novo. Jakubowski v. Christ Hosp., Inc. , 627 F.3d 195, 200 (6th Cir. 2010). Summary judgme nt is appropr iate when “the pleading s, the discovery and disclosure materia ls on file, and any aff idavits show that t h ere is no g enuine issue as to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 5 6 (c )(2) (2009) (amende d Dec

. 2010). A genuine issue of m ater ial fac t exis ts if a

rea sonable juror could return a verdict for the nonmoving pa rty

. Anderson v. Li berty L obby, Inc. , 477 U.S. 242, 248 (1986). “When consider ing a motion for summ ary judgme nt, the di strict court must view the evidenc e in the light most favor able to the nonmoving party .” Jakubowski , 627 F.3d at 200. 2. Wrongfu l Arre st Gra ves’s first two claims on appea l are essentially the same: that he was wrong fully arr ested without probable cause , and that the district court ignor ed evidenc e supporting this claim in g rantingNo. 10-5346

Grave s v. Bowles, et al. Pag e 4 summary judgme nt to the Def endants. This wrong ful arr est claim more specific ally attacks alleg ed faults of specific Glasg ow Police Def endants in conducting the investiga tion. The district court did
not addre ss a wrong ful ar re s t claim, noting that Gra ves prese nted evidenc e reg arding the shortcoming s of the Glasg ow Police Depa rtment’s invest iga

tion, but deciding that the only constitutional violation that Gra ves had linked t o an y s p ecif ic defendant was the us e of excessive forc e. We are not wholly convince d of the district court’s conclusion. Neve rtheless, even assuming arg uendo that Gra

ves did establish a link betwee n a wrong ful arr est claim and the City of Glasg ow and specific Glasg ow Police office rs, that claim would fail beca use the Glasg ow Police Def endants had proba ble ca use to arr est Gra

ves. To state a section 1983 claim, Gra ves must establish that a person acting under the color of
state law deprive d him of a rig ht secur ed by the Constit ution or fede ral law. Redding v. St. Eward , 241 F.3d 530, 532 (6th Ci r. 2 0 0 1 ) (citing W est v. Atkins , 487 U.S. 42, 48 (1988))

. Fur thermore , beca use the alleg ed violation is wrong ful arr est, Gra ves must establi s h t h at the police lacke d probable cause . Miller v. Sanilac Cnty. , 606 F.3d 240, 250 (6th Cir. 2010). “Probable cause exis ts if the fac ts and ci rc u m s t ances known to the office r war rant a prudent man in believing that the offe nse has been committed.” Id. (citation omitted). “The exis tence of probable cause in a § 1983 action prese nts a jury question, unless there is only one rea sonable deter mination possible.” W

ilson v. Morgan , 477 F.3d 326, 334 ( 6th Cir. 2007) (citation omitted). Her e, the only rea sonable deter mination is that the Glasg ow Police and Special Re s p o nse Tea m had probable cause t o b el i ev e t hat Gra ves committed the bank robber y at the time they obtained the arr est war

rant and when Gra ves was arr ested. Multipl e people identified Gra ves as theNo. 10-5346

Grave s v. Bowles, et al. Pag e 5 robber

. Gra ves’s cousin, defe ndant-a ppellee Capt a in D a

v id G r a v e s , id e n ti f

ie d G r a v e s in s urveillanc e photogr aphs from the bank, and did so without solicitation or knowing the backg round behind the photogr aphs. Fur

thermore , two bank employ ees, defe ndants-a p p e ll e e s A mb e r B o w le s and Eliz abeth Capps, saw th e ro b b er d uring the robber y and identified Gra

ves in photogr aphic line-ups as the robber

. Moreove r, two other people, Gra ves’s former landlord and a local restaur ant employ ee who had serve d Gra ves, i d en t i fi ed Gra ves as the man in the surveillance photos. These multipl e i d entifica tions are sufficie nt for a prudent man to believe that Gra ves was the robber

. See, e.g . , Ahlers v. Schebil , 188 F.3d 365, 370 (6th Cir. 1999) (“A law enfor ceme nt of fice r is e ntitled to rely

on an ey ewi t n es s identification to establish adequate probable cause with which to sustain an

arr est.”) (citation omitted). Gra ves finds fault with the Glasg ow Police’s investiga tion. Howeve r,

we must ask what the pol i ce ac t u al l y knew , see id. at 371, 373-74, and Gra ves cannot ref ute the identifications. Acc ording ly , Gra ves’s wr ong ful arr est claim fa ils. 3. Excessive F orce Gra ves’s third claim is that the district court improperly dismiss ed his excessive forc e claim

on g rounds of qualified immunit y . He first arg ues that the State Police unrea sonably used excessive forc e when they deploy ed a “fla sh-bang ” device that broke the rea r windshield of his car , surrounde d his car with wea

pons draw n, broke two of his car windows, forc ibly remove d him from his car , and h an d cu ff ed him. Second, he arg

ues t hat t he Glasgow Police used ex cessive force by utiliz ing the State Police’s Special Response Tea m. He claims that both g roups of Def endants sh o u l d have known that the Special Response Tea m was unnece ssary based on his prior compliance with reque sts to come in for que stioning.No. 10-5346

Grave s v. Bowles, et al. Pag e 6 A defe ndant is entitled to qualified immunit y unless: (1) the defe ndant violated a constitutional right; and ( 2) the rig ht was cle arly established. Pearson v. Callahan , 555 U.S. 223, 129 S. Ct. 808, 815-16 (2009). We may consider the circ umstances of the case and use our discretion to dec ide which pr ong to addre ss first. Id. at 818. The issue of whether the forc e used by police in c arr y ing out a n arr est is e x cessive invokes the rea sonablene ss standard of the Four th Amendment. Graham v. Connor , 490 U.S. 3 8 6 , 395 (1989). That rea sonablene ss sta ndard require s us to balance the plaintiff’s inter est to be fr ee from unlawful seiz ure with the gover nment’s i ntere sts, one of which is saf et y o f its police officer s. Id.
at 396. “[T] he rig ht to make an arr est or investiga tory stop nece ssarily car ries with it the rig ht to use some deg ree of phy sical coer cion or threa t the reof to e ffe ct it.” Id. (citing Terry v. Ohio , 392 U.S. 1, 22-27 (1968)). Whether t hat coercion is rea sonable depends on a tot ality of t he circums tance s, such as “the sever ity of the crime at issue, whether the suspect poses an imm ed i at e t h re at to the safe ty of the office rs or others, and whether he is actively resisting arr est or at t em pting to evade

arr est by flig ht.” Id. (citing Tennessee v. Garne r , 471 U.S. 1, 8-9 (1985))

. Her e, the forc e used by the Glasg ow P o l i ce and Special Response Tea m was not

unrea sonable beca

use of their interest in pr otecting themselves. The suspect who robbed the bank

car ried a g un, which g ave the Glasg ow Police and Special Response Tea m rea son to suspect that he might be arme d when they tried to arr est him. They also knew that Gra ves had brandished a g un in

a rec ent domestic disturbance , and had been involved in prior assaults. Additionally , they knew that Gra ves had indicated an unwillingness to turn himself in, and had y elled and swore at Glasg ow Police in prior encounte rs. They further knew that Gra ves used drug s at times, causing him toNo. 10-5346

Grave s v. Bowles, et al. Pag e 7 possibly be unpredic table. The totality of these fac ts g ave the Glasg ow Police and Special Response Tea m r eason to be lieve that Gra ves might be dang erous whe n they tried to arr est him, and explain why it was reasona

ble for them to use a flash- bang device and surround Gra ves’s car. Cf. Dudley

v. Eden , 260 F. 3 d 7 2 2 , 7 2 7 (6th Cir. 2001) (holding that “it was rea sonable for [defendant] to conclude that [pl aintiff] posed a serious threa t to himself and others” beca use of “[plaintiff]’s bank robber y , his ref usal to comply with the commands of arme d policemen, his attempt to evade arr est, and his rec kless driving ,” even though defe ndant did not actua lly know of plaintiff possessin g a

wea pon in the past or during the robbe ry ). These fac ts might not have been sufficie nt to war r a nt the Special Response Tea m’s next steps of brea ki n g Gr av es ’s car windows and pulling him from the car by forc e and handcuf fing him. Howeve r, after the Special Response Te am surrounde d his car, the y order ed him to cover his fac e with his hands, and Gra ves failed to c omply

. Fur thermore , all parties ag ree that Gra ves moved his hand toward the car console at that time. At that point, the Special Response Tea m knocked out his windows and y elled at him ag ain to cover his fac e. Gra ves admits he still did not comply afte r hear ing the ir commands and responded, “Whatever , motherfuc kers.” The Spec ial Response tea m then remove d Gra ves from the car , and handcuf fed him. These additional measure s wer e rea sonable in light of the S p ec i al R es p o n s e Tea m’s belief that Gra ves might have a wea pon in the car . His ref usal to comply with order s and unexpected motion toward his con s o l e ca u s ed the Special Response Tea

m to believe that Gr aves ma y be re aching for a

wea pon. Cf. id. We re co gn i ze that this event was in no way pleasa nt or cordial, but the Defenda nts used a

rea sonable a mount of forc e to protec t themselves fr om a suspect whom they believed to be arme dNo. 10-5346

Grave s v. Bowles, et al. Pag e 8 and dang erous. Acc ording ly , the district c ourt corr ectly dismiss ed Gra ves’s excessive forc e claim on g rounds of qua lified immunit y . 4. The City of Glasgow as a Defendan t Gra ves’s fourth claim conce rns his claims ag ainst the City of Glasg ow for failing to train its employ ees, the Glasg ow Police Def endants. A local g overnme nt may be liable pursuant to section 1983 if its employ ees or ag ents injure the plaintiff throug h “execution of [t he] g overnme nt’s policy

or custom.” Monell v. Dep’ t of Soc. Servs. , 436 U.S. 658, 694 (1978). Howeve r, we have decide d that Gra ves’s claims ag ainst the Glasg ow P o l i ce Def endants fail beca

use they did not violate his constitutional rights. Ther efor e, his claims ag ainst the City of Glasg ow fa il. 5. U.S. Ban k Defend ants Gra ves filed numerous state law claims ag ainst U.S. Ba nk and two of its employ ees, Bow les and Capps, who wer e prese nt for the robber y . He arg

ues that Bow les’s an d C apps’s err oneous identification of him as t he bank robber constituted defa mation, defa

mation per se, libel, libel per se, slander, sl an d er per se, neg lige nt false arr est, neg lige nt false imprisonment, and the tort of outrag e. The district court g rante d U.S. Ba nk, Bow les, and Capps summary judgme nt on all counts. I n the Commonwealth of Kentucky , “the pub l i c i ntere st require s that expressions of suspicions founded upon fac ts detailed and prudently m ad e i n go o d faith and as confide ntially as circu m s t an ce s wi ll permit, to aid i n detec ting felonies do not g ive rise to an action for slander [ or libel] ag ainst the person expressing his suspicions.” Dossett v. N.Y

. Mining & Mfg. Co. , 451 S.W .2d 843, 846 (Ky

. 1970) (citation omitted). The Ke n t u ck y Supreme Court rec og nized in Tucker v.No. 10-5346

Grave s v. Bowles, et al. Pag e 9 K i l gore , 388 S.W .2d 112, 114-15 (Ky

. 1965), that these expressions are entitled to qualified privileg e if they

are : made in g ood faith, without a ctual malice, with r easona ble or proba

ble g rounds for believing t h em t o be true, on a subject matter in which the author of the communication has an interest, or in respe ct to which he has a duty , public, persona l, or private , either leg al, judicial, political, mor al, or social, made to a per son having a cor responding

interest or duty

. Statements made in the course of work or for the en fo rc em ent of law war rant this privileg e. See Dossett , 451 S.W .2d at 846. Bow les and Capps identified Gra ves as part of a police investiga tion into a dang erous crime. They did so based upon their rec ollection of the robber ’s appea ranc e, and without any kind of articula ble malice. There fore , Gra ves’s various defa

mation, libel, and slander claims all fail. Fur thermore , th e re st of his claims ag ainst the U.S. Ba nk Def endants fail as well. I t is unclea r that Gra ves has alleg ed a duty owed to him by the U.S. Ba nk Def endants, espec ially in light of the privileg e aff

orded to g ood faith statements made to law enfor ceme nt. Howeve r, assuming that the U.S

. Ba

nk Defen d an t s d i d o we him a duty in this situation to not make reckle ss statements t o police, Gr av es h as failed to alleg e any brea ch of this duty

. The U.S. Ba nk Def endants identified Gra ves as the robber in g ood faith and based on the events they ac t u al l y wi t n essed. There fore , Gra ves’s neg lige nce claims fail. Additionally , his claim of outrag e fails wh ere the U.S. Ba nk d ef en d an t s wer e assisting a police investiga tion in g ood faith. See Goodman v. Goldberg & Simpson, P.S

. C

. , 3 23 S.W .3d 740, 746 (Ky

. App. 2009) (explaining that the tort of outrag e, also ref err ed to as intentional infliction of emotional distress, require s that the defe ndant’s intentional or

rec kless conduct “must be outrag eous and intolerable in that it offe nds ag ainst the g ener ally acc eptedNo. 10-5346

Grave s v. Bowles, et al. Pag e 10 standards of dece ncy and morality ”). Acc ording ly , the district court did not err in g ranting summary judgme nt to the U.S. Bank D efe ndants. B. The Pr otec tive Order for Mayor P ickett Gra ves claims that the dist ri ct co u rt improperly issued a protec tive order prohibiting him from deposing May or Pickett durin g d i s co v ery . We revie w a district court’s decisions reg arding discovery matters for abuse of discretion. Dortch v. Fowler , 588 F.3d 396, 400 (6 t h C i r. 2009) (c i t at i o n s omitted). Reversa l is proper “only if we are firmly convince d of a mistake that aff ec t s substantial rig hts and amounts to more than harmless err or.” Id. (cit ation and internal quotation marks omitted). A district court may “prote ct a party or person from annoy ance , embar rassment, oppression,

or undue burden or expense” by issuing a protec tive order “for bidding

. . . discovery ” if the court has “g ood cause .” Fe d. R. Civ. P. 26(c) (1)( A). Her e, the district court issued the protec tive order afte r concluding that May or Pi ck ett could not provide any information rele vant to Gra ves’s claims. May or Pickett submitt ed aff idavits aver

ring that he had no persona l knowledg e of the events or investiga tion underlying the case . Gra ves responde d that May or Pickett co u ld provide valuable testimony beca use he w as for

merly the chief of the Gla sg ow Police, although not during Gra ves’s mistaken arr est, and had previously demande d the resig nation of Glasg ow Police Chief Gar y Be wley for r easons unr elated to Gr aves’ s case . On appea l, Gra ves arg ues that the protec tive order was improper beca use Pickett was may or, “a car eer law enfor ceme nt office r and former police chief of the [C ]i ty of Glasg ow, and “spec ifically knowledg eable about the fac ts of this case , as he was quoted in the local pape r as having suchNo. 10-5346

Grave s v. Bowles, et al. Pag e 11 knowledg e.” We disa gre e t h at the order was improper. The parties briefe d the issue of the protec tive order befor e the district court issued the order

. This g ave Gra ves an opportunity to rebut May or Pickett’s aff

idavits. Howeve r, he could not ref ute P i ck et t ’s lack of rele vant knowledg e reg arding the case , and even today , he has failed to explain to us prec isely what fac ts May or Pickett may possibly reve al. Acc ording ly , the district court did not abuse its di s cr et i o n i n issuing the protec tive order

afte r finding that May or Pickett could not provide r eleva nt testimony

. C. Motion to Alte r or A m end Following the district court’s g rant of summary j u d gment to Def endants, Gra ves filed a motion to alter or amend the judgme nt pursuant to Rule 59(e)

. We usually revie w a denial of a Rule 59(e) motion for abuse of discretion, but we apply de novo revie w when the Rule 59(e) motion seeks

rec onsideration o f a g rant of summary judgme nt. ACLU of Ky. v. McCreary C nty., K y. , 607 F.3d 439, 450 (6th Cir. 2010) (c itation omit ted). “A court may g rant a motion to alter or amend judgme nt only if there was ‘(1) a clea r err or of l aw; (2) newly discovere d evidenc e; (3) an int erve ning chang e in controlli ng law; or (4) a nee d
to preve n t m an ifest injusti ce.’ ” Id. (citation omitted). Gra ves arg ues that the district court’s judgme nt should be altered o r am en d ed beca use the district court took a view of the fac ts most favor able to the Def

endants in g ranting them summary judgme nt, or, alterna tively , b eca

use there was

a question of materia l f

act that should ha

ve been prese nted to a jury

. He does not pr esent any new fac ts or a chang e in the law. We have alre ady considere d t h i s s ame arg ument above, and we conclude d that the district court did not err in g ranting the Def endants summary judgme nt. Gra vesNo. 10-5346

Grave s v. Bowles, et al. Pag e 12 prese nts no other arg ument in support of his motion to alter or amend. Acc ording ly , the district court did not err in deny

ing G rave s’s motion to alter or ame nd.

II. CONCLUSION For the fore g oing rea sons, we AFFI RM the district court’s order s g ranting summary judgme nt to Defe ndants and de ny ing G rave s’s motion to alter or ame nd.