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Oxford asks judge to toss wrongful death lawsuit




  • In US
  • 2021-09-15 01:07:00Z
  • By Northeast Mississippi Daily Journal, Tupelo

Sep. 14-OXFORD - The city of Oxford and its police chief have asked a federal judge to throw out a lawsuit that blames them for a former policeman shooting and killing his mistress.

In the motion to dismiss - or in the alternative summary judgement - the city argues that Shyjuan Clayton's "legal theory is meritless," and the complaint lacks facts or evidence to support its allegations.

"Because neither the facts nor the law support Clayton's case, a final judgement ... should be entered in favor of the city and (Police Chief Jeff) McCutchen," Oxford counsel Todd Butler wrote in the motion.

The civil suit was filed Aug. 5 by the family of Dominique Clayton and names the city of Oxford, Chief McCutchen and former officer Matthew Kinne as defendants. Kinne, 40, pleaded guilty to capital murder on July 30 in Clayton's death. He was sentenced to life in prison without the chance of parole by Circuit Court Judge Kent Smith.

One of the principle arguments of the lawsuit is that Kinne's first wife died under mysterious circumstances, and although her death was ruled a suicide, Kinne was a suspect and was forced to resign from the Olive Branch Police Department. The complaint, authored by Grenada-based attorney Carlos Moore, further argued that Oxford knew about Kinne's past and hired him anyway.

But Butler says not only did Kinne's ex-wife not commit suicide, she's not even dead.

"If Clayton's counsel had conducted the required pre-suit investigation, it easily would have been learned that Kinne's ex-wife did not commit suicide and is in fact very much alive," Butler wrote.

Butler said he quickly found evidence in court records that the first wife was alive well after Kinne was arrested in May 2019 for Clayton's death. He called the argument "undisputedly false."

Butler added that Moore was previously warned by courts for filing suit without conducting a "reasonable inquiry into the facts." Instead Butler says, the lawsuit tries to pass off hearsay as facts by sprinkling the familiar state court phrase "upon information and belief."

The Clayton lawsuit claims the city and McCutchen are liable for the negligent training, supervision and retention of Kinne. But the complaint does not cite a specific policy or point to deliberate indifference by the city of police department. The city argues that Kinne was a certified officer and had received all the training the state requires of any officer.

Butler said neither the city nor McCutchen were liable for Kinne's "abhorrent conduct."

"Clayton died from a criminal act by someone she was having an affair with," Butler said. "There is no allegation that Chief McCutchen was involved with Kinne's criminal plan to kill his girlfriend."

The city argues that because the complaint includes claims that are not plausible, the case should be dismissed. It further argues that since Moore and the Clayton family did not provide specific evidence and facts that there is a genuine issue for a trail, it cannot avoid summary judgement in the city's favor.

There is no timeframe for when U.S. District Court Senior Judge Glen H. Davidson will rule on the city's motion.

The wrongful death lawsuit claims that Kinne was acting under the color of law when he conducted a welfare check on Clayton, 32, and shot her in the head while she slept in her own bed in May 2019. It alleges he was in uniform and in a marked Oxford Police Department vehicle, making witnesses believe he was there on official business.

william.moore@djournal.com

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