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Horn v. City of Covington

United States District Court, E.D. Kentucky, Northern Division, Covington

July 1, 2015

CITY OF COVINGTON, et al., Defendants.


DAVID L. BUNNING, District Judge.

Plaintiff Stephen Mark Horn alleges that his constitutional rights were violated when he was arrested, beaten, and then denied medical care during his five-day incarceration at the Kenton County Detention Center. He brings 42 U.S.C. § 1983 and state-law claims against the municipality, county, detention center, officers, and other public employees involved in his arrest, detention, and prosecution. There are currently three motions to dismiss and a motion for summary judgment before the Court, which are fully briefed and ripe for review. (Docs. # 43, 52, 66, 70, 71, 79, 87, 88, 89, 90, 97, 98). The issues involve federal and state immunity, the adequacy of the facts pled, whether Horn complied with the applicable statute of limitations, and whether the Court has supplemental jurisdiction over Horn's defamation claim.


Horn is a fifty-four year-old Air Force veteran and resident of Burlington, Kentucky. (Doc. # 8 at ¶¶ 11, 30). On April 13, 2013, [1] he received a telephone call from a female 1) For the relevant dates, the Court relies on public records from Horn's case history (Doc. # 51-1), which it may do without converting the Rule 12(b) motions into Rule 56 motions. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999). acquaintance threatening suicide and asking for help. ( Id. at ¶ 36). In response, Horn drove to the woman's home and went inside to speak with her. ( Id. at ¶¶ 37-38). After a long discussion, the woman stepped outside and, unbeknownst to Horn, called 911 and accused Horn of threatening her. ( Id. at ¶ 38). Covington police officers arrived within minutes. ( Id. at ¶ 40).

When the officers arrived, Horn was standing on the front porch, with a cane and a gun holstered on his hip. ( Id. at ¶¶ 4, 41, 43). After Horn asked the officers to identify themselves, Officers Greg Rodgers and William Kelly tackled him from behind. ( Id. at ¶¶ 42-43). The impact caused Horn's head to slam against the ground and he temporarily lost consciousness. ( Id. at ¶¶ 43-44). Although Horn offered no resistance, some of the officers struck him in the back of the head, repeatedly kicked him, and used a Taser on him; meanwhile, the other officers stood by and watched. ( Id. at ¶¶ 44-46). Horn overheard one officer tell the others that he was at a nearby gas station when he "heard the call and wanted to get in on it." ( Id. at ¶ 46).

Horn was inside a police car when he regained consciousness. ( Id. at ¶ 48). At one point, some officers pulled Horn out of the car by his ankles and dragged him across the ground until his hands became raw. ( Id. at ¶ 49). As a result of the officers' actions, Horn has allegedly suffered a traumatic brain injury, hemorrhaging, post-concussion syndrome, headaches, memory loss, post-traumatic stress disorder, depression, tachycardia, and other chronic pain. ( Id. at ¶ 53). The officers eventually took Horn to the Kenton County Detention Center (KCDC). ( Id. at ¶ 50).

Horn remained at the KCDC until his release on April 17, 2013. ( Id. at ¶ 66). When he arrived on April 13, 2013, he was bleeding from his ears and genitalia, and while he was there, suffered repeated hemorrhaging. ( Id. at ¶ 68). Despite asking numerous KCDC employees for help, Horn received no medical attention during his first day in confinement. ( Id. at ¶¶ 74-75). In response to the sight of blood and fluids draining from Horn's body, several inmates began to protest and demand that Horn be given medical assistance. ( Id. at ¶¶ 70-71). On the second day, Horn again lost consciousness and continued to bleed. ( Id. at ¶¶ 75-76).

Horn eventually saw a medical provider from Southern Health Partners Inc. (SHP), a Tennessee corporation contracted by Kenton County to provide medical services to KCDC inmates. ( Id. at ¶¶ 26, 77). The unnamed SHP employee performed some procedures (which included pushing Horn's protruding intestines back inside him and inserting a rod in his genitalia) that allegedly made Horn's conditions worse. ( Id. at ¶¶ 77, 78). Horn repeatedly told KCDC officers (including Officer Bishop) and SHP employees that he needed to see a doctor or nurse. ( Id. at ¶¶ 70, 79). Despite these requests for help, Horn was given no medication nor sent to the hospital. ( Id. at ¶ 78). As a result of this lack of medical care, Horn has allegedly suffered from hemorrhaging, memory loss, and brain damage. ( Id. at ¶ 80).

A grand jury ultimately charged Horn with menacing, wanton endangerment, disorderly conduct, alcohol intoxication in a public place, and resisting arrest. ( Id. at ¶ 57). After one of Horn's court hearings, prosecutor Frank Trusty "yelled across the courtroom to [Horn's] defense attorney, When are you going to get rid of that fag?'" ( Id. at ¶ 63). Horn claims that this statement was heard by several family and friends, and that his reputation has been damaged as a result. All charges against Horn were ultimately dismissed. ( Id. at ¶ 64).

Horn filed a pro se Complaint on April 11, 2014 (Doc. # 1), and then through counsel filed an Amended Complaint on August 26, 2014 (Doc. # 8). In his pro se Complaint, he brought § 1983 and state-law claims against the City of Covington, Covington Officer Greg Rodgers, and eight John Does.

In his Amended Complaint he names the following defendants: City of Covington; Covington Police Chief Michael Spike Jones (in his official capacity and individually), Covington police officers Greg Rodgers, Jason Gray, William Kelley, and David Pennington (collectively, the "Covington Defendants"); Kenton County, the Kenton County Detention Center, Jailer Terry Carl (in his official capacity and individually), Captain Smith, Correctional Officer Bishop, Unknown employees of the Kenton County Detention Center (collectively, the "Kenton County Defendants"); Southern Health Partners, Inc., unknown employees of South Health Partners, Inc., unknown employee of Southern Health Partners, Inc.; and Frank Trusty.


A. Standard of review

To survive a Rule 12(b)(6) motion to dismiss, "a complaint must 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). The plausibility standard is met when the facts in the complaint allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The complaint need not contain "detailed factual allegations, " but must contain more than mere "labels and conclusions." Id. Put another way, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Summary judgment is appropriate when "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 party has the initial burden of demonstrating that there is no evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden, the non-moving party must cite to evidence in the record upon which "a reasonable jury could return a verdict" in its favor; a mere "scintilla of evidence" will not do. Anderson v. Liberty Lobby, 477 U.S. 242, 248-52 (1986). At summary judgment, a court "views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor." Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008).

B. City of Covington and Police Chief Michael Spike Jones

Horn brings § 1983 claims against the City of Covington for: (1) use of excessive force (Count I); (2) failure to intervene (Count V); (3) conspiracy (Count VI); and (4) failure to supervise resulting in false arrest (Count VII). He also asserts that Covington is liable for all torts committed by its officers under the doctrine of respondeat superior. (Count XII).

Horn brings the same § 1983 claims against Jones in his official and individual capacity, as well as claims for malicious prosecution (Count III) and Second Amendment retaliation (Count II). In addition, he raises the following state-law claims against Jones: (1) malicious prosecution (Count IX); (2) intentional infliction of emotional distress (IIED) (Count X); and (3) negligent infliction of emotional distress (NIED) (Count XI).

The Court will address these claims in the following order: (1) the § 1983 claims against Jones in his official capacity, (2) the § 1983 claims Covington, (3) the § 1983 claims against Jones in his individual capacity, (4) the state-law claims against Jones, and (5) the state-law respondeat superior claim against Covington.

I. Section 1983 claims against Chief Jones in his official capacity

"Suing a municipal officer in his official capacity for a constitutional violation pursuant to 42 U.S.C. § 1983 is the same as suing the municipality itself...." Kraemer v. Luttrell, 189 F.Appx. 361, 366 (6th Cir. 2006) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). Therefore, when a plaintiff brings § 1983 claims against a municipal entity and a municipal official in his official capacity, courts will dismiss the official-capacity claims as duplicative. Thorpe ex rel. D.T. v. Breathitt Cnty. Bd. of Educ., 932 F.Supp.2d 799, 802 (E.D. Ky. 2013); see Ky. v. Graham, 473 U.S. 159, 167 n. 14 (1985) ("There is no longer a need to bring official-capacity actions against local government officials, for... local government units can be sued directly [under § 1983] for damages and injunctive or declaratory relief."). Because Horn brings § 1983 claims against Jones in his official capacity as Covington Police Chief and also brings § 1983 claims against Covington, Horn's official-capacity claims against Jones are dismissed.

ii. Section 1983 claims against Covington

"A local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). To assert a § 1983 claim against a municipality, a plaintiff must demonstrate that the alleged violation occurred "because of a municipal policy or custom." Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell, 436 U.S. at 694). A plaintiff can do so by showing one of the following: "(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights violations." Id.

Covington seeks dismissal of Horn's § 1983 claims, arguing that Horn's Amended Complaint merely "recites the elements of a § 1983 action" without supporting facts. (Doc. # 43 at 6). In response, Horn suggests that § 1983 claims are subject to a more liberal pleading standard than other civil litigation and that "nothing in Twombly or Iqbal changed this...." (Doc. # 70 at 5 citing Sanders v. Sheehan, No. 09-C-7707, 2010 WL 2990121, at *2 n.1 (N.D. Ill. July 26, 2010)). Although heightened pleading standards do not apply to § 1983 claims, Leatherman v. Tarrant Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993), district courts in the Sixth Circuit have rejected Horn's argument that a lower pleading standard applies. See e.g., Hutchison v. Metro. Gov't of Nashville & Davidson Cnty., 685 F.Supp.2d 747, 751 (M.D. Tenn. 2010) ("In the context of Section 1983 municipal liability, district courts in the Sixth Circuit have interpreted Iqbal's standards strictly."); Vidal v. Lexington Fayette Urban Cnty. Gov't, No. 5:13-117-DCR, 2014 WL 4418113, at *3 (E.D. Ky. Sept. 8, 2014); Kustes v. Lexington-Fayette Urban Cnty. Gov't., No. 5:12-323-KKC, 2013 WL 4776343, at *5 (E.D. Ky. Sept. 3, 2013).

Therefore, like all civil plaintiffs, Horn must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 55 U.S. at 570. In other words, his complaint must contain more than mere labels, conclusions, and the elements of his cause of action. Id. at 555. To adequately state a Monell theory of liability, he must identify and describe the official policy or custom that resulted in a constitutional violation. See Kustes, 2013 WL 4776343, at *5.

In support of his Monell claims, Horn points the Court to the following allegations in his Amended Complaint: (1) Covington "directly encourages... the very type of misconduct at issue by failing to adequately train, supervise... control... [and] punish" its officers (Doc. # 8 at ¶ 85); (2) governmental policymakers "exhibited indifference to the problem" ( Id. at ¶ 86); and (3) supervisors in Covington failed to "supervise... thereby encouraging and/or permitting these employees and other defendants to engage in a reckless investigation, to coerce and fabricate false inculpatory evidence and to withhold exculpatory impeachment evidence" ( Id. at ¶ 133). Horn argues that these allegations "satisfy Rule 8's notice pleading standards for Monell claims." (Doc. # 70 at 6). Case law from this circuit, however, demonstrates that Horn's complaint is insufficient to survive Covington's Rule 12(b)(6) motion to dismiss.

In Hutchison, the plaintiff alleged that a municipality "failed to provide adequate training to... officers about stopping vehicles and/or ordering passengers to step out of those vehicles in disregard of their disabilities or injuries." 685 F.Supp.2d at 750. The court granted the municipality's motion to dismiss, concluding that with "no additional factual support.... Plaintiff's pleadings have stop[ped] short of the line between possibility and plausibility regarding municipal liability." Id. at 751.

In Vidal, the plaintiff's compliant stated that a municipality "adopted policies, practices, or customs that allow... the use of excessive force"; "failed to instruct, supervise, control, and discipline [officers]"; and "lacked a proper policy, procedure, or custom... to instruct, train, [and] supervise [officers in] properly finding probable cause." 2014 WL 4418113, at *3-4. The court held that the complaint failed to state a claim because it merely recited the legal requirements for Monell liability without further factual enhancement. Id. at *4.

And in Kustes, the plaintiff alleged that a municipality "sanction[ed] the officers' unlawful conduct"; "negligently trained and/or supervised... officers"; and "failed to comply with policies and/or customs regarding the proper training and supervision of... officers." 2013 WL 4776343, at *4. The court granted the defendant's motion to dismiss because "the plaintiff d[id] not state how the [defendant] did this" nor "allege any facts regarding what th[e] policies or customs were or how the [defendant] violated them." Id.

Like the plaintiffs in Hutchinson, Vidal, and Kustes, Horn has not identified a specific Covington policy or custom that resulted in excessive force, a failure to intervene, or false arrest. Indeed, he provides no facts or examples to support his statement that Covington failed to properly train officers in the use of force. He alleges that Covington has failed to discipline officers for using improper force, and that due to a lack of training and supervision Covington officers have withheld, coerced, and fabricated evidence. But he fails to cite a single prior instance or statistic in support of those claims. See Burgess, 735 F.3d at 478 ("A failure-to-train claim... requires a showing of prior instances of unconstitutional conduct.... [A] custom-of-tolerance claim requires a showing that there was a pattern of inadequately investigating similar claims.") (quotations marks and citations omitted). Because there are no factual allegations that would "raise a right to relief above the speculative level, " Twombly, 550 U.S. at 555, the Court will grant Covington's motion to dismiss Horn's § 1983 claims.

iii. Section 1983 claims against Chief Jones in his individual capacity

Jones asserts that Horn has either failed to support his § 1983 claims with sufficient facts, or that he is entitled to qualified immunity. Government officials have immunity from § 1983 civil liability "when performing discretionary duties so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Burgess, 735 F.3d at 472 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Determining whether an official is entitled to qualified immunity involves a twostep inquiry: "(1) whether, considering the allegations in a light most favorable to the injured party, a constitutional right has been violated, and if so, (2) whether that right was clearly established." Campbell v. City of Springboro, Ohio, 700 F.3d 779, 786 (6th Cir. 2012).

a. Section 1983 excessive force and failure to intervene (Counts I and V)

Jones argues that Horn's excessive force and failure to intervene claims should be dismissed because there is "no assertion that [he] was physically present when Plaintiff was arrested on the evening of April 13, 2013." (Doc. # 43 at 8, 11). Were this true, dismissal may be appropriate. However, Horn does allege that Jones was present at his arrest. In his Amended Complaint, Horn includes Jones (in his individual capacity) among a group of officers that he labels the "Covington Defendants." (Doc. # 8 at 2). He then alleges that the Covington Defendants were the officers who came to the scene and arrested him. ( Id. at ¶¶ 40, 57). While it seems unlikely that the police chief would respond to a situation like the one here, the Court must accept as true Horn's allegation that Jones was present.

Turning to the allegations supporting Horn's use of excessive force and failure to intervene claims, Horn contends that although he did not resist arrest, the "Covington Defendants" struck him in the back of his head, repeatedly kicked him, used a Taser on him, and dragged him across the ground until his hands were raw. ( Id. at ¶¶ 44-46, 49). He maintains that the officers who did not actively participate stood by and watched this beating. ( Id. at ¶ 47). Horn states that he lost consciousness as a result of the Covington Defendants' actions and now suffers from a traumatic brain injury and post-concussion syndrome, among other ailments. ( Id. at ¶¶ 44, 53).

Jones challenges Horn's failure to specifically link him to one of these acts. After stating that Officers Rodgers and Kelley were the ones who tackled him to the ground, Horn attributes the remaining actions to the "Covington Defendants" collectively. At this stage of the case, that is sufficient. Horn is not required in his Amended Complaint to give a blow-by-blow account, each time naming the individual officer responsible-especially when he suggests that he was laying on the ground and going in and out of consciousness. Naming the officers at the scene, describing the type of force used, and alleging that the officers collectively used that force is sufficient to state a claim against each individual officer and to put each officer on notice of the nature of the suit against him. At the pleading stage, Horn need not make "detailed factual allegations" about which officer committed which act. Iqbal, 556 U.S. at 678. That burden is reserved for later stages of the litigation.

Jones argues in the alternative that even if the Court concludes that he did participate in the arrest, there are no facts showing that he "acted unreasonably under the circumstances." (Doc. # 43 at 8). This argument completely ignores the gravity of Horn's allegations. If Jones was one of the officers at the scene and participated in the use of force described-which is what Horn pleads in his Amended Complaint-then the facts are more than sufficient for a jury to find that he acted unreasonably and therefore violated Horn's clearly established Fourth Amendment rights. See Aldini v. Johnson, 609 F.3d 858, 866-67 (6th Cir. 2010) (holding that the Fourth Amendment's "reasonableness" standard applies to excessive force claims brought by individuals who have been arrested without a warrant and have not yet had a probable cause hearing). And if Jones was one of the officers who "stood by and watched" (Doc. # 8 at ¶ 47), then it is certainly plausible that he had an opportunity and means to prevent the harm but failed to take action, also in ...

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