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Kavanaugh v. Lexington Fayette Urban County Government

United States District Court, E.D. Kentucky

November 5, 2014



KAREN K. CALDWELL, Chief District Judge.

This matter is before the Court on two motions for summary judgment brought by two different groups of defendants. One of the motions is brought by the Lexington-Fayette Urban County Government ("LFUCG") and Ronnie J. Bastin ("Chief Bastin"). Chief Bastin was sued individually and in his official capacity as Chief of LFUCG Division of Police. (DE 43). The other is brought by Elizabeth Adams ("Detective Adams") and William Persley ("Detective Persley"). Both Adams and Persley are LFUGG police officers, who have been sued in their individual and official capacities along with other John Doe(s). (DE 44). For the reasons explained below, both motions for summary judgment will be granted.


This case arose from two incidents that occurred within a couple of months of each other in downtown Lexington, Kentucky. The first occurred early in the morning hours of October 24, 2009, when Morgan Persley, the daughter of defendant Detective William Persley, left a downtown bar after fighting with her boyfriend. Morgan, who was sitting alone on a Lexington street, had noticed a man walk past her several times before he grabbed her, wrapped his arm around her throat, and pulled her into a concrete driveway. The man called her a "bitch" and tried to drag her to the rear of a building, but Morgan escaped. (DE 44-2). She did not see her attacker's face and there were no developments in the investigation of the incident until December, 2009 when another woman was attacked in downtown Lexington. (DE 45-9, p. 52).

On December 8, 2009, Laura Baker was waiting for a bus at the Lexington Transit Center when a man sat down beside her and asked if she knew where he could get some "dope." When she replied no, he pulled out a large baggie that appeared to be cocaine. The man then pulled out a pocket knife, pressed it to Laura's side and told her that she was leaving with him. About that time, a bus arrived and Laura was able to escape onto the bus as the man fled. Laura described the suspect as a 6'3" slim light-skinned black male, who was about 28 to 32 years old. She said that he was wearing a black bubble coat, white shirt, dark jeans, and a baseball cap. She noted that he wasn't wearing glasses and didn't have facial hair, but added that he had a gold tooth and a silver earring. (DE 44-5). The day after the attack, Laura assisted Detective Kari Leah Anderson in making a composite sketch of the perpetrator. (DE 44-5, 49-1).

Detective Adams took lead on the first incident involving Morgan Persley, and Detective Persley took the lead on the second incident involving Laura Baker. (DE 45-5, p. 71). Upon reviewing the composite sketch, Detective Adams thought the drawing resembled Pleas Kavanaugh, a suspect in an earlier investigation. (DE 45-5, p. 109).

Defendants assert that Adams developed a "six-pack" line-up with photographs of six suspects, including Kavanaugh. (DE 45-5, p. 110). On December 10, 2009, Morgan and Laura were shown the "six-pack" line-up and both identified Kavanaugh as the perpetrator. (DE 44-10, 44-11). Kavanaugh contends, however, that the photographic line-up never took place.

On December 10, 2009, Detective Adams swore out a criminal complaint against Kavanaugh for robbing Morgan Persley, and Detective Persley swore out a criminal complaint against Kavanaugh for unlawfully imprisoning Laura Baker. (DE 43-7, 43-8). Subsequently, warrants for Kavanaugh's arrest were issued by the Fayette District Court. (DE 43-9). Plaintiff was arrested on December 15, 2009. (DE 44-15).

Following plaintiff's arrest, Detective Adams sought and obtained a search warrant for two sets of buccal swabs that contained plaintiff's DNA. Plaintiff's buccal swabs were then sent to the Kentucky State Police Laboratories to be compared with blood evidence obtained from the Morgan Persley crime scene. (DE 44-16). Thereafter, Adams and Persley testified before a Fayette County grand jury, which indicted Kavanaugh. (DE 45-5, p. 121). Detective Adams told the grand jury that the DNA results comparing plaintiff's buccal swabs with the blood evidence from the crime scene involving Morgan were not available. (DE 45-5, p. 122). Kavanaugh asserts that Adams's grand jury testimony was false because the DNA test results had become available several weeks earlier and contained only Morgan's DNA. (DE 44-17).

Plaintiff was first tried for the robbery of Morgan. Before trial, however, plaintiff moved to suppress Morgan's out-of-court identification based on the photographic line-up. The trial court suppressed Morgan's identification of Kavanaugh, finding the photographic line-up impermissibly suggestive because only two of the six photographs presented were of light-skinned African American males. The court, however, permitted Morgan to identify her assailant during the proceedings. (DE 43-13). Although Morgan positively identified Kavanaugh as the perpetrator during the trial, the jury found in favor of plaintiff and acquitted him of the robbery charge on August 25, 2011. After Kavanaugh's acquittal in Morgan's case, the prosecutor dismissed the unlawful imprisonment charge concerning Laura Baker.

On March 8, 2012, Kavanaugh filed this action. Despite having asserted approximately ten distinct causes of action, plaintiff now, in his response to the motions for summary judgment, asserts only claims of malicious prosecution under state law and 42 U.S.C. § 1983 and violations of 42 U.S.C. § 1983 based on LFUCG's policy or custom of inaction in responding to officer dishonesty and failure to train or supervise the officers. For the reasons that follow, the Court will grant defendants' motions for summary judgment.


Summary judgment is appropriate where the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving parties bear the initial burden and must identify "those portions of the pleadings, dispositions... which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations omitted). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 322-25. Once the movant meets the initial burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324. Summary judgment must be entered "against a party who fails to make a showing ...

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