United States District Court, E.D. Kentucky, Northern Division, Ashland Division
BRANDY BOND and B.E.R.B., a Minor, by and through her Natural Guardian and Next Friend, Carla Ann Baker Plaintiffs.
CARTER COUNTY, KENTUCKY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Carter County, Kentucky and the Carter County Sheriff's Office (collectively, "the Carter County Defendants") move to dismiss state tort claims asserted by Brandy Bond and her minor sister B.E.R.B. The Carter County Defendants first argue that Carter County, Kentucky is entitled to sovereign immunity under Kentucky law. They then contend that the Carter County Sheriff's Office cannot be held liable on a respondeat superior theory because Deputy Sheriff Matthew Morrison did not act in furtherance of its interests. Finally, the Carter County Defendants ask the Court to dismiss Plaintiffs' claim for negligent retention, training and supervision because the Complaint does not set forth sufficient facts stating a plausible claim for relief. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1367.
II. Factual and Procedural Background
On September 14, 2013, Carter County Deputy Sheriff Matthew Morrison paid a visit to Bond's residence, where she lived with her mother, her minor sister B.E.R.B. and her five children. (Doc. # 1, p. 4, ¶ 12-13). Because Deputy Morrison was on duty at the time, he arrived at her house in his official law enforcement vehicle, dressed in his uniform and wearing his sidearm. (Id. ). Deputy Morrison stated that he was there on official law enforcement business concerning B.E.R.B. (Id. ). He then spoke with Bond about an outstanding warrant issued against her in nearby Rowan County. (Id. ). Specifically, he told her that she could either perform oral sex on him or go to jail. (Id. at p. 4, ¶ 14).
Although Bond did not want to engage in oral sex with Deputy Morrison, she was afraid of what might happen to her children if she was arrested, so she reluctantly acquiesced to his demand. (Id. ). She and Deputy Morrison retreated to an empty room in the house, but the door would not close completely, so she asked B.E.R.B. to guard it and make sure that her children were not exposed to the scene. (Id. ). B.E.R.B. did as Bond requested, fearing that she might be next. (Id. ). Deputy Morrison allegedly kept one hand on Bond's breast and another on his sidearm throughout their tryst. (Id. ). When they were finished, he told her that he would "put her warrant at the bottom of the pile" and left the house. (Id. ).
Bond and B.E.R.B. filed this civil action on September 12, 2014. (Id. at p. 1). Bond brings a 42 U.S.C. § 1983 against Deputy Morrison, individually and in his official capacity, alleging a violation of her substantive due process rights. (Id. at p. 5-6, ¶ 16-22). She then asserts state law claims for battery, assault, unlawful imprisonment and outrage against Deputy Morrison. (Id. at p. 6-9, ¶ 23-41). B.E.R.B. also brings a claim for outrage against Deputy Morrison. (Id. at p. 9-10, ¶ 42-45). Both Plaintiffs seek to hold the Carter County Defendants liable for their state tort claims on a respondeat superior theory. (Id. at p. 6-10, ¶ 23-45). They then assert a claim for negligent retention, training and supervision against the Carter County Defendants. (Id. at p. 10-12, ¶ 46-51).
A. Standard of Review
A complaint must include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). It must also contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly v. Bell Atl. Corp., 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "[A] formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Moreover, the Court "is not bound to accept as true unwarranted factual inferences, or legal conclusions unsupported by well-pleaded facts." Terry v. Tyson Farms, Inc., 604 F.3d 272, 276 (6th Cir. 2010).
B. 42 U.S.C. § 1983 Claim
As explained in their Motion to Dismiss, the Carter County Defendants focus solely on the state law tort claims:
The text of Count I of the Plaintiff's Complaint does not assert a claim under 42 U.S.C. § 1983 against the Carter County Defendants, which is reasonable as courts have held that employers cannot be held vicariously liable for claims under that section. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (stating that "a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory."). However, in the Plaintiffs' Prayer for Relief, they seek "[j]udgment against Defendant Carter County, Kentucky and/or Defendant Carter County Sheriff's Office under Counts I through VII as alleged herein including compensatory and punitive damages." As only Counts II through VII recite any claims against the Carter County Defendants, it is presumed that this ...