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Marshall v. O'Connell

United States District Court, W.D. Kentucky at Louisville

October 21, 2014



JOHN G. HEYBURN, II, Senior District Judge.

Plaintiff, Connie Marshall, has filed no less than twenty-nine (29) pro se lawsuits in the Western District of Kentucky between February 4, 2003 and December 18, 2010. The majority of the lawsuits make the same allegations as those raised in this suit - that the Plaintiff is the target of a vast conspiracy involving false imprisonment, violations of her civil rights, and set ups. So far none has reached even the trial stage. Defendants, Jefferson County Attorney Mike O'Connell, the Commonwealth of Kentucky, Louisville Metro Police Department ("LMPD"), LMPD Chief Steve Conrad, and LMPD Officers Brandon Hogan and Edward Wagner, have moved on all claims against them. Though Plaintiff has not responded, the Court has reviewed the motion to determine its merit. The Court agrees with the arguments set forth in Defendants' brief. For the reasons that follow and others, Plaintiff's claims should be dismissed.


On June 25, 2013, Plaintiff filed this lawsuit in Jefferson Circuit Court. Following some discovery, Defendants removed the matter to federal court. Thereafter, this Court granted the Commonwealth of Kentucky's motion to dismiss on the grounds of immunity. Plaintiff's claims against O'Connell, the LMPD, Conrad, Hogan, and Wagner remained.

In her complaint, Plaintiff first alleges that excessive force was used against her when she was arrested on June 26, 2012, and just generally alleges that the Louisville Metro Police caused her serious injury. She then goes on to allege that Louisville Metro Police are sending her threatening emails and phone calls and is attempting to set her up. Plaintiff does not cite to any specific officers as engaging in this behavior. Instead, she alleges it against LMPD as a whole. She alleges that alleged violations of state laws and unconstitutional practices have occurred because of the failure of the "Defendants" to properly train, supervise, and discipline individual police officers.

Plaintiff engaged only in limited written discovery and has admitted that she was suing the remaining Defendants only in their official capacities. As part of those same discovery requests, Plaintiff sets forth an arm's length list of allegations against various police officers, dating back to 2007. She does not list Conrad or O'Connell on her list of officers who have allegedly violated her rights. She later moved to file additional "evidence, " and submitted unverified emails and letters not linked to any of the named Defendants in this case.


Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The issue is whether the evidence submitted presents a sufficient disagreement about the material facts so that submission to a jury is necessary, or whether the evidence is so one-sided that a party must prevail as a matter of law. Anderson, 477 U.S. at 251-52. For a fact to be material it must affect the outcome of the suit; "[f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.

The moving party has the initial burden of showing that there is an absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party - Plaintiff here - must proffer evidence that points to disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Plaintiff "may not rest upon mere allegations or denial of his pleadings, but... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248.

Plaintiff filed this lawsuit pro se. Although courts are to hold pro se pleadings "to less stringent standards than formal pleadings drafted by lawyers, " Haines v. Kerner, 404 U.S. 519 (1972), this duty to be less stringent "does not require [courts] to conjure up unpled allegations, " McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for a plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require courts "to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).


Plaintiff names the Louisville Metro Police Department as a defendant. However, that entity is not one capable of being sued. The proper party is the Louisville Jefferson County Metro Government ("Louisville Metro"). See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) ("Since the Police Department is not an entity which may be sued, Jefferson County is the proper party to address the allegations of Matthews's complaint.") and Smallwood v. Jefferson County Government, 743 F.Supp. 502, 503 (W.D.Ky.1990).

Sovereign immunity precludes an action "against the state unless the state has given its consent or otherwise waived its immunity." Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001). As political subdivisions of the state, county governments are likewise entitled to sovereign immunity. Id. at 526. Louisville Metro is a consolidated local government established pursuant to K.R.S. Chapter 67C. The General Assembly expressly addressed the applicable immunity of such governments in K.R.S. 67C.101(2)(e), which provides that consolidated local governments "shall be accorded the same sovereign immunity granted counties, their agencies, officers, and employees." See also Jewish Hosp. Healthcare Services, Inc. v. Louisville/Jefferson County Metro Government, 270 S.W.3d 905, 906 (Ky. App. 2008); Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004).

Under the doctrine of sovereign immunity, Louisville Metro is immune from suit for all state law claims. It appears that Plaintiff attempts to set forth state law claims against Louisville Metro for assault and battery, negligence, and violation of Kentucky statutory and common law, including KRS 446.070. To the extent ...

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