KEITH RENE GUY, SR., ET AL. Plaintiffs
LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT, ET AL. Defendants.
OPINION AND ORDER
WILLIAM O. BERTELSMAN, District Judge.
This matter is before the Court on the individual defendants' motion for summary judgment on plaintiffs' civil rights claims (Docs. 538, 540); the individual defendants' motion for summary judgment on all claims other than civil rights claims (Doc. 542); all defendants' motion for summary judgment as to the claims of John Doe 33, John Doe 45, Rex Roe 94, and Rex Roe 95 (Doc. 545); and the LFUCG's renewed motion for summary judgment as to plaintiffs' civil rights claims (Doc. 546).
The Court heard oral argument on these motions on Wednesday, May 15, 2013. (Doc. 635). Having done so, the Court now issues the following Opinion and Order.
This case arises out of alleged sexual abuse perpetrated by Ronald Berry, founder of a summer program for disadvantaged youth called "Micro-City Government" ("MCG") in Lexington, Kentucky. This program was funded in part by the Lexington-Fayette Urban County Government ("LFUCG").
The lengthy procedural background of this case need not be repeated in full here. However, several of the Court's prior rulings are relevant:
March 13, 2008: The Court granted motions for judgment on the pleadings by LFUCG, dismissing: (1) all state tort law claims against LFUCG on the grounds of sovereign immunity; (2) all claims based on respondeat superior; (3) claims for punitive damages against the LFUCG under the federal civil rights statutes; (4) RICO claims; (5) Title IX claims; (6) Title VII claims; (7) claims under 18 U.S.C. § 2255 and § 2258, statutes involving sexual abuse of minors. (Doc. 313).
May 1, 2009: The Court granted in part and denied in part certain motions for summary judgment, holding that: (1) all claims, except those of four plaintiffs who were minors at relevant times, were untimely; (2) for purposes of the § 1983 claim, a triable issue of fact exists as to whether LFUCG had a "custom or policy" of inaction in the face of notice of Berry's unlawful activities and whether defendants' conduct constituted "deliberate indifference"; and (3) triable issues of fact exist on plaintiffs' claims under 42 U.S.C. §§ 1985 and 1986 based on evidence that LFUCG officials, in failing to respond to Berry's abuse, were motivated by a desire to capture the vote of the black community. (Doc. 382). The Court noted, however that "because all individual defendants were previously dismissed, defendants have not yet had either the reason or opportunity to brief the issues of qualified and perhaps other types ( e.g., legislative) of immunity." (Doc. 382).
The Court thereafter allowed additional discovery; denied class certification; allowed the addition of more plaintiffs, including those whose limitations periods were allegedly tolled due to mental disabilities; and set a trial date on the issue of liability only as to nine plaintiffs for August 2, 2010.
In September 2009, however, the Court agreed to certify to the Sixth Circuit the rulings on the statute of limitations and class certification. (Doc. 425). On February 8, 2010, the Sixth Circuit granted the petition to hear that appeal, and this case was stayed.
At the time of the stay, defendants had filed four motions for summary judgment, but the plaintiffs had not responded.
On May 2, 2012, the Sixth Circuit issued an opinion affirming this Court's rulings as to the statute of limitations and class certification. Guy v. Lexington-Fayette Urban County Gov't., 488 F.Appx. 9 (6th Cir. 2012).
Thereafter, the Court ordered that briefing on defendants' 2010 motions for summary judgment be completed, and those motions are now ripe for decision.
Facts Relevant to Present Motions 
A. LFUCG Structure
Under the LFUCG Charter, the Mayor is the chief executive officer. The Executive Branch consists of seven departments, each headed by a Commissioner appointed by the Mayor. Within each Department are Divisions, which are headed by Division Directors. Departments relevant to this action are the Department of Law, the Department of Finance, the Department for Social Services, and the Department of Public Safety, which includes the Division of Police.
The legislative body of LFUCG is the Urban County Council, which consists of 15 members. The Council enacts ordinances, levies taxes, and appropriates funds. The Mayor presides over Council meetings but has no vote, except in the case of a tie.
B. Micro-City Government
It is not disputed that MCG, despite its name, was a private, non-profit corporation. MCG had an independent Board of Directors which chose its own members and which was responsible for oversight and management of MCG. MCG made its own employment decisions for its staff as well as for its youth programs.
MCG received funding from LFUCG by submitting a funding request to the LFUCG Department of Social Services, whose Commissioner forwarded such requests to the Mayor. The Mayor would then determine whether to include funding requests in the preliminary budget that he or she drafted and submitted to the Urban County Council. Appropriations for MCG were approved as part of the LFUCG budget by a vote of the majority of the Council.
Berry was Executive Director of MCG at all relevant times. In addition, he was actually on LFUCG's payroll during summer months from 1982-1997 as administrator of a Summer Lunch Program.
C. Individual Defendants
There are fourteen individual defendants named in this case. Their positions, and the information allegedly conveyed to them regarding Berry, are summarized as follows:
H. Foster Pettit: Mayor 1972-1977.
John Doe 21 testified that he saw Pettit at a party hosted by Berry in 1974 or 1975, where Berry was dressed in drag, and that sexual abuse occurred in Pettit's presence. John Doe 21 also testified that he again saw Pettit at a party at Berry's house in 1978. (Doc. 334, Exh. B).
Carol Wigginton, who was Commissioner of Social Services in 1976 under Pettit, testified that she learned that sex and slave "games" were going on at MCG and that she informed Pettit. Pettit told her that there wasn't anything they could do about it. (Doc. 334, Exh. J).
James Parsons, who was Director of the Mayor's Training Center, testified that he received calls from parents asking that their children not be placed at MCG because they suspected Berry was engaging in sex acts with young boys. Parsons recommended to Pettit that MCG be de-funded (it is not clear from his testimony if he told Pettit about the alleged abuse, but it is implied), and Pettit told him that he did not think it was "politically sustainable." (Doc. 334, Exh. E).
James Amato: Mayor 1978-1981
Former Vice-Mayor Ann Ross testified that she became aware that Berry was reputed to be gay and to "like young boys." (Doc. 334, Exh. D). She asked Amato's assistant if these things were true, and he said yes. Ross's testimony is ambiguous as to whether she told Amato.
Basha Roberts, who worked as a grant writer within LFUCG in the late 1970s, testified that youth counselors came to her stating that parents did not want their children assigned to MCG and asked if she could see that no money went to the program. The parents related that young men assigned to MCG were expected to perform sexual acts with other men. She testified that she heard such complaints "daily" during the fourteen months that she was employed by LFUCG. As a result she and her Executive Director recommended to Amato that MCG not receive funding because of these concerns. Roberts testified that her Director told her that Amato overrode that recommendation and directed that she be told to "shut her mouth." (Doc. 334, Exh.).
Scotty Baesler: Mayor 1982-1993
James Parsons testified that he told Baesler about the concerns about Berry having sex with young boys at MCG. (Doc. 334, Exh. E).
Carolyn Hope, who worked for Berry at MCG for four months, had concerns because she observed young boys going home with Berry. She mentioned this to Berry, and he told her to mind her own business. Soon thereafter, she was transferred and eventually fired without being paid. Eventually, she called Baesler directly and told him that she had been fired for complaining about Berry's sexual misconduct with the young boys. (Doc. 334, Exh. F).
Gayle Slaughter testified that she met with Baesler in the early 1980s and asked him why the city was "still subsidizing Ronald Berry at Micro-City Government." (Doc. 334, Exh. G). Baesler responded: "Oh you mean because he likes to mess with little boys, is that all?"
Pam Miller: Mayor 1993-2002
Carolyn Hope testified that she called Miller, who was then a councilwoman, at her home and told Miller that she had been demoted for complaining about the drug use and sexual activity going on at MCG. (Doc. 334, Exh. F).
Gayle Slaughter testified that she shared with Miller the conversation she had, above, with Scotty Baesler, and that Miller expressed knowledge of the pedophilia issue. (Doc. 334, Exh. G).
Carol Wigginton testified that in the late 1970s she saw Miller, then a councilwoman, at a party in Lexington and asked her if LFUCG was still funding MCG. Miller said yes, and Wigginton said, "But, Pam don't you realize - I know you realize that he is harming and doing bad things to the children." Miller responded, "Carol, it's worth the $43, 000 just to not have to put up with all his noise." (Doc. 334, Exh. J).
James Parsons also testified that he expressed his concerns about the alleged sexual misconduct at MCG to Miller. (Doc. 334, Exh. E).
George Brown, Jr.: Council member 1994-2006
Basha Roberts testified that in the late 1970s she told Brown, who then worked in LFUCG but was not yet a council member, about the complaints of sexual abuse by Berry against young males at MCG. (Doc. 334, Exh. O).
Robert Jefferson: Council member 1988-2000
Greg Bolton, who worked for MCG from 1971 to 1973, and who later also worked for LFUCG from 1977 to 1979, testified that he was present at a "conference" at Georgetown College organized by MCG and attended by Berry. Numerous youth participants from MCG were bussed there for a weekend, and later a busload of homosexual men dressed as women arrived. Bolton observed one of the homosexual men having sex with a teenaged MCG participant, and he observed an orgy-like party where Berry was being tossed in the air and the young boys were running around in their underwear being grabbed by the adults. Bolton testified that Jefferson, who at that time was on MCG's board, was present at this conference and was told of Berry's activities. (Doc. 334, Exh. I).
Michael Wilson: Council member 1986-1993
John Doe 21 testified that Wilson constantly approached him, told him that he "goes both ways, " and that Wilson told plaintiff that he (Wilson) had sex with several boys at MCG. John Doe 21 also testified that Wilson had sex with plaintiff's brother, John Doe 22. (Doc. 334, Exh. C).
Donna Counts: Commissioner of Finance 1993-2006
There does not appear to be any record evidence as to alleged knowledge of this defendant.
Barbara Curry: Commissioner of Social Services 1978-2000
Carolyn Hope testified that she complained to Curry about sexual misconduct, drug use, and possible physical abuse at MCG.
Greg Bolton, who worked for MCG from 1971 to 1973, and who later also worked for LFUCG from 1977 to 1979, testified that he showed Curry documentation of Berry's actions in the late 1970s in connection with a complaint made against him by Berry, and Curry asked him if she could have it and Bolton said no. After he showed Curry this documentation, she told him his job was not in jeopardy. (Doc. 334, Exh. I).
Mary Ann Delaney: Commissioner of Law 1989-2003
There does not appear to be any record evidence as to alleged knowledge of this defendant.
Arnold Gaither: Director of Mayor's Training Ctr. 1990-2007.
John Doe 20 testified that he saw Gaither at one of Berry's parties in the 1970s where children were drinking and using drugs. (Doc. 334, Exh. B).
Carolyn Hope brought her concerns about Berry taking young boys home to Gaither, then the Director of the Mayor's Training Center, and soon after that, she was transferred out of her job. (Doc. 334, Exh. F).
Basha Roberts testified that Gaither actually told her that he had been sexually propositioned by Berry when he had been a participant in MCG. (Doc. 334, Exh. O).
Sandra Nichols: Financial analyst, administrator 1987-2008
There does not appear to be any record evidence as to alleged knowledge ...