UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JOHN K. HARDEN, ┐ Plaintiff-Appellant, │ v. │ > No. 20-5056 │ KEITH HILLMAN, Individually and in his Official │ Capacity as a Police Officer of Heritage Creek, │ Kentucky; CITY OF HERITAGE CREEK, KENTUCKY, │ │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:15-cv-00594—Joseph H. McKinley, Jr., District Judge.

Argued: January 14, 2021

Decided and Filed: April 6, 2021

Before: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges. _________________

COUNSEL ARGUED: Aubrey Williams, Louisville, Kentucky, for Appellant. Mark A. Osbourn, BUSH & OSBOURN, PLLC, Louisville, Kentucky, for Appellees. ON BRIEF: Aubrey Williams, Louisville, Kentucky, for Appellant. Mark A. Osbourn, BUSH & OSBOURN, PLLC, Louisville, Kentucky, for Appellees.

CLAY, J., delivered the opinion of the court in which DONALD, J., joined, and SUHRHEINRICH, J., joined in all but Part III.C. SUHRHEINRICH, J. (pp. 24–28), delivered a separate opinion concurring in part and dissenting in part. No. 20-5056 Harden v. Hillman, et al. Page 2

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OPINION _________________

CLAY, Circuit Judge. In this action, Plaintiff John Harden, an African American man, asserted a number of claims under 42 U.S.C. § 1983 against Officer Keith Hillman, the City of Heritage Creek, and Thorntons, Inc., alleging violations of his constitutional rights, as well as claims under Kentucky law. Harden’s claims arose out of his arrest and prosecution following an incident at a Thorntons convenience store in Louisville, Kentucky. Besides Harden’s excessive force claim against Hillman, all of his claims were dismissed prior to trial. Following a trial, the jury returned a verdict in favor of Hillman on the excessive force claim.

Harden now appeals the district court’s grant of summary judgment on his claim that his Fourth Amendment right to be free from arrest without probable cause was violated; the district court’s denial of his first Motion for New Trial, which was based on both the district court’s refusal to order the U.S. Marshals Service to serve his witnesses with subpoenas and allegedly improper comments made by Hillman’s counsel at trial; and the district court’s denial of his second Motion for New Trial, which was based on an affidavit from a juror detailing various issues she experienced and discovered during the jury’s deliberation.

For the reasons set forth in this opinion, we AFFIRM the district court’s grant of summary judgment to Hillman on Harden’s claim that he was arrested without probable cause, AFFIRM the district court’s order denying Harden’s first Motion for New Trial, VACATE the district court’s order denying Harden’s second Motion for New Trial, and REMAND the case to the district court for further proceedings consistent with this opinion.

BACKGROUND

A. Factual Background

On August 1, 2014, after finishing work, Harden went home, drank a couple of beers, and fell asleep.