Jones v. Kulesa

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

TAMALA T. JONES, personally, and as the PLAINTIFF

Administratrix of the ESTATE OF

TRAMON TYQUEZE SAVAGE

v. CASE NO. 4:22-CV-00545-BSM

LOGAN K. KULESA; SHAWN M. JONES;

and CITY OF JACKSONVILLE, ARKANSAS DEFENDANTS

ORDER

Defendants’ motion for summary judgment [Doc. No. 23] is granted on plaintiff’s

municipal liability claim and denied on plaintiff’s excessive force claim. Summary judgment

is granted on plaintiff’s survival liability and wrongful death claims against the City of

Jacksonville, Arkansas and denied on her claims against Logan Kulesa and Shawn Jones.

Defendants’ motion to strike [Doc. No. 35] is denied. The clerk is directed to terminate the

City of Jacksonville as a party.

I. BACKGROUND

Jacksonville police officers were dispatched to a car dealership to investigate a

burglary in progress call at approximately 11:56 p.m. on June 13, 2019. Defs.’ Statement

Undisputed Material Facts ¶ 1, Doc. No. 25 (“Defs.’ SOF”). As he drove to the dealership,

officer Logan Kulesa was flagged down by a woman in a gas station parking lot near the

dealership. Id. ¶ 2. The woman informed Kulesa that she and her husband were members

of the dealership’s cleaning crew, that someone was trying to break into the dealership, and

that her husband had locked himself inside a closet in the dealership. Id. Kulesa then asked

the woman to unlock the gate to the dealership, so he could enter its parking lot. Id.

When Kulesa parked in the dealership’s parking lot at approximately 11:57 p.m., a

man approached him and identified himself as the cleaning crew member whose wife had

spoken to Kulesa at the gas station. Id. ¶ 3. The man advised Kulesa that no one was

supposed to be in the building, and that when he heard someone banging inside the

dealership building, he was frightened and hid in a closet. Id. The man told Kulesa that after

he made sure no one was outside the closet, he fled the building. Id.

After Kulesa failed to locate anyone at the front of the building, the cleaning crew

member walked him to the service department where he looked inside the window and saw

the subject. Id. ¶ 4. The subject, later identified as Tramon Savage, was not wearing a shirt

and he was attempting to start several vehicles. Id. ¶ 5.

About a minute later, Sergeant Robert Slash and officers Shawn Jones and Joshua

Isom arrived. Id. ¶ 6. Slash did not know how many suspects were inside of the building,

so he instructed Jones and Isom to assist Kulesa on the south side of the building while he

covered the front of the building in case any suspects attempted to leave through the front.

Id. ¶ 7.

Shortly thereafter, Kulesa observed Savage attempting to start a truck. Id. ¶ 9. Jones

arrived at his location. Id. ¶ 10. Savage then exited the truck, walked over to the bay door,

and pushed the button to raise the bay door. Id. ¶ 11. Kulesa and Jones walked to the open

bay door. Id. ¶¶ 12–13. Before entering, Kulesa and Jones loudly identified themselves as

2

Jacksonville police. Id. ¶ 14; Pl.’s Resp. Defs.’ Statement Facts & Pl.’s Statement Additional

Facts ¶ 14, Doc. No. 31 (“Pl.’s SOF Resp.”). Kulesa and Jones then entered the service area

with their weapons drawn, and they commanded Savage multiple times to stop and show has

hands. Defs.’ SOF ¶ 16. Savage did not answer the officers nor did he respond to their

commands. Id. ¶ 17.

Kulesa approached the driver’s side of the truck in which Savage was sitting while

Jones approached the passenger side. Id. ¶ 18. Savage then drove the truck forward in an

apparent attempt to drive through the open service bay door. Pl.’s SOF Resp. ¶ 19. Jones

moved out of the truck’s way to the driver’s side. Id. ¶ 20. Kulesa ended up on the

passenger side, and at this point, Jones and Kulesa were on opposite sides of the truck and

could not see each other. Id. Jones then observed the truck drive toward the last location

where he had seen Kulesa and he perceived that the suspect was trying to run over him, so

he began firing shots into the truck driver’s side door. Id. ¶ 21. Kulesa heard a gunshot and

did not know whether Savage or Jones fired the shot. Defs.’ SOF ¶ 22. At that point, Kulesa

believed Savage was going to run over him and that he had possibly just taken a shot at

Jones. Id. ¶ 23. Consequently, Kulesa began firing shots through the passenger side door.

Id. ¶ 24. Kulesa then started backing up, and the truck continued by him and crashed. Id.

Kulesa testified that he continued firing his gun after the truck crashed because he

observed Savage leaning down towards the passenger seat floorboard and believed that

Savage was attempting to grab something. Pl.’s SOF Resp. ¶ 25. Kulesa then saw Savage

sit up with both of his hands partially in view. Id. Kulesa ran out of bullets and the officers

3

stopped firing. Id. ¶ 26. All of Kulesa’s shots, including the one that may have killed

Savage, were fired in under five seconds. David Balash Expert Rep. (Ballistics) 7, Doc. No.

31-2; see Defs.’ Reply Pl.’s Resp. Defs.’ Statement Undisputed Material Facts ¶ 69, Doc. No.

38 (questioning plaintiff’s expert’s conclusion that Kulesa fired the fatal shot).

After determining that the perceived threat was neutralized and that Savage was

injured, the officers radioed for an ambulance and began to render medical aid. See Defs.’

SOF ¶¶ 27–34. Savage died later that day. Id. ¶ 34.

Tamala Jones is suing personally and on behalf of her deceased son, Tramon Savage.

Compl. ¶ 5, Doc. No. 1. Savage’s mother brings the following claims: (1) an excessive force

claim against officers Kulesa and Jones; (2) a municipal liability claim against the City of

Jacksonville; (3) a state law survival claim against all defendants; and (4) a state law

wrongful death claim against all defendants. Id. ¶¶ 83–115. Defendants move for summary

judgment on all claims. Doc. No. 23.

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to any material

fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). Once the moving party

demonstrates that there is no genuine dispute of material fact, the non-moving party may not

rest upon the mere allegations or denials in her pleadings. Holden v. Hirner, 663 F.3d 336,

340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence

demonstrating a genuine factual dispute requiring a trial. Id. All reasonable inferences must

4

be drawn in a light most favorable to the non-moving party. Holland v. Sam’s Club, 487

F.3d 641, 643 (8th Cir. 2007). The evidence is not weighed, and no credibility

determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).

III. DISCUSSION

Defendants’ motion for summary judgment is granted on plaintiff’s municipal liability

claim and denied on plaintiff’s excessive force claim. Summary judgment is granted on

plaintiff’s survival liability and wrongful death claims against the city and denied on her

claims against Kulesa and Jones. Defendants’ motion to strike is denied.

A. Excessive Force Claim

Summary judgment is denied on plaintiff’s excessive force claim because there are

genuine disputes of fact that must be resolved by a jury which preclude summary judgment

based on qualified immunity.

Police officers are immune from suit unless they violate a clearly established

constitutional or statutory right. See Estate of Morgan v. Cook, 686 F.3d 494, 496 (8th Cir.

2012). In determining whether an officer’s use of force is constitutional, one must determine

whether the force was objectively reasonable from the perspective of an officer on the scene.

See Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012) (citing Graham v. Connor,

490 U.S. 386, 396–97 (1989)). In making this determination, courts consider the severity of

the crime at issue, whether the suspect posed an immediate threat to the officer or others, and

whether the suspect resisted or attempted to evade arrest. See id. Qualified immunity is

5

inappropriate when a genuine dispute exists concerning facts material to the issue of qualified

immunity. See Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000).

Plaintiff advances two main arguments as to why summary judgment should be

denied. First, she says that the officers should be held liable for failing to plan their entry and

intentionally placing themselves in jeopardy. Second, she says that the officers should have

at least stopped firing their guns after the truck passed them, struck a wall, and came to a

stop.

The first argument fails because the officers’ decision to enter the open door to the

service area with their guns drawn did not violate a clearly established right. Although some

may disagree with the officers’ initial decision, there was no constitutional violation. See

Schulz v. Long, 44 F.3d 643, 648 (8th Cir. 1995) (“the reasonableness inquiry extends only

to those facts known to the officer at the precise moment the officers effectuate the seizure”);

see also Khansari v. City of Houston, 14 F. Supp. 3d 842, 857 (S.D. Tex. 2014) (allegations

that the defendant officers failed to properly plan, evaluate, or gauge the situation were not

sufficient to state a claim for violation of rights protected by the Fourth Amendment because

these alleged failures neither constituted a seizure, nor a use of force that caused plaintiff to

suffer an injury that was excessive to the need or objectively unreasonable).

The second argument, however, is enough to overcome summary judgment. This is

true because whether it was objectively reasonable for the officers to believe that Savage

posed a serious and immediate threat after the truck passed them, struck a wall, and came to

a stop is in dispute. See, e.g., Pl.’s SOF Resp. ¶¶ 19–21, 25; see also Cole Estate of Richards

6

v. Hutchins, 959 F.3d 1127, 1134 (8th Cir. 2020) (“a few seconds is enough time to

determine an immediate threat has passed, extinguishing a preexisting justification for the

use of deadly force”); Ribbey v. Cox, 222 F.3d 1040, 1043 (8th Cir. 2000) (holding that it

was permissible for a reasonable finder of fact based on the evidence and on the finder of

fact’s assessment of witness credibility to conclude that a shooting was objectively

unreasonable when a state trooper fatally shot a passenger who the trooper believed was

potentially reaching for a weapon in a vehicle which had come to a stop when it hit a fence

after a high-speed pursuit); Eberhardinger v. City of York, 782 F. App’x 180, 182 (3d Cir.

2019) (holding that a reasonable jury could find that an officer used deadly force to stop a

fleeing suspect rather than out of fear of immediate personal harm when he fired four shots

at the driver as the vehicle was passing him or had completely passed him). Indeed, “the

record here does not conclusively establish the reasonableness of the officer[s’] actions.”

Craighead v. Lee, 399 F.3d 954, 963 (8th Cir. 2005). And “[w]here the record does not

conclusively establish the lawfulness of an officer’s use of force, summary judgment on the

basis of qualified immunity is inappropriate.” Banks v. Hawkins, 999 F.3d 521, 525 (8th Cir.

2021) (citing Nance v. Sammis, 586 F.3d 604, 612–13 (8th Cir. 2009)). Finally, in addition

to answering whether the officers’ actions were objectively reasonable, the jury must also

determine whether it was Kulesa or Jones, or both, who effectuated the seizure on Savage.

B. Municipal Liability Claim

Summary judgment is granted on plaintiff’s municipal liability claim. Plaintiff would

be permitted to pursue her claims against the city if she could show that the city’s policy,

7

widespread practice or custom, or deliberately indifferent training of its employees was the

“moving force” behind the constitutional violation. Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658, 694 (1978); see City of Canton v. Harris, 489 U.S. 378, 387–88 (1989).

Nothing in the record supports a municipal liability claim. Specifically, the city’s policy did

not “affirmatively sanction” unconstitutional action, and it instead relied on the discretion

of the officers. Moyle v. Anderson, 571 F.3d 814, 818 (8th Cir. 2009); see Jacksonville

Police Dep’t Resp. to Resistance Pol’y, Doc. No. 25-14. Therefore, the city’s lack of a de-

escalation policy was constitutional, even if it did not conform with generally accepted law

enforcement practices. Additionally, there is no evidence in the record showing a widespread

practice or custom of excessive force within the city’s police department or of deliberately

indifferent training of officers. See Pl.’s Resp. Defs.’ Mot. Summ. J. 10–12, Doc. No. 32;

Defs.’ Reply Pl.’s Resp. Defs.’ Mot. Summ. J. 10, Doc. No. 37.

C. Survival Liability and Wrongful Death Claims

Summary judgment is granted in part and denied in part on plaintiff’s survival liability

and wrongful death claims.

Two causes of action may arise when a person’s death is caused by the wrongful act

of another. See Meredith v. Buchman, 101 F. Supp. 2d 764, 766 (E.D. Ark. 2000) (citing

Matthews v. Travelers Indem. Ins. Co., 432 S.W.2d 485, 487 (Ark. 1968)). “First, there is

a cause of action for the estate under the survival statute, and, second, there is a cause of

action for the statutory beneficiaries under the wrongful death statute.” Id. Plaintiff is

bringing a survival liability claim as the administratrix of Savage’s estate, see Compl. ¶¶

8

102–07, and she is bringing a wrongful death claim as personal representative of Savage’s

statutory beneficiaries, see id. ¶¶ 108–15. Summary judgment is granted for the city and

denied for Kulesa and Jones on plaintiff’s survival liability and wrongful death claims for the

same reasons that summary judgment is granted on plaintiff’s municipal liability claim and

denied on plaintiff’s excessive force claim. See Brown v. Pine Bluff Nursing Home, 199

S.W.3d 45, 48 (Ark. 2004) (a wrongful death action is derivative in nature, and where the

underlying claim is no longer preserved, the wrongful death action is barred as well); Martin

v. Hallum, 374 S.W.3d 152, 158 (Ark. Ct. App. 2010) (“qualified immunity under Arkansas

law is akin to its federal counterpart and rests on the same principles as federal law”).

D. Motion to Strike

Defendants’ motion to strike is denied because it appears that plaintiff complied with

her expert disclosure obligations, or at the very least, any failure to meet her obligations was

substantially justified. See Pl.’s Resp. Defs.’ Mot. Strike 1–10, Doc. No. 39; see also

Firefighter’s Inst. for Racial Equality ex rel. Anderson v. City of St. Louis, 220 F.3d 898, 902

(8th Cir. 2000) (citing Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008–09 (8th Cir. 1998))

(“Unless the failure to meet [an expert report disclosure] deadline was either harmless or

substantially justified, the court may sanction a party by excluding its evidence.”); Bliv, Inc.

v. Charter Oak Fire Ins. Co., No. 4:22-CV-869-HEA, 2023 WL 8715762, at *2 (E.D. Mo.

Dec. 18, 2023) (citation omitted) (“the Eighth Circuit has held that expert testimony should

be liberally admitted”); cf. Gillum v. United States, 309 F. App’x 267, 270 (10th Cir. 2009)

(“The parties to a litigation are not merely players in a game, trying to catch each other out.

9

Rather, litigation should promote the finding of the truth, and, wherever possible, the

resolution of cases on their merits.”’).

IV. CONCLUSION

For these reasons, defendants’ motion for summary judgment is granted on plaintiff's

municipal liability claim and denied on plaintiffs excessive force claim. Summary judgment

is granted on plaintiff's survival liability and wrongful death claims against the city and

denied on her claims against Kulesa and Jones. Defendants’ motion to strike is denied. The

clerk is directed to terminate the City of Jacksonville as a party.

IT IS SO ORDERED this 28th day of January, 2025.

Barer 2

UNITED STATES DISTRICT JUDGE

10