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Ross v. Carter

United States District Court, W.D. Kentucky, Paducah Division

July 29, 2015

SHANICE JEANINE ROSS, Administratrix of the Estate of Gloria Ann Ross, and SHANICE JEANINE ROSS, individually, Plaintiffs,


THOMAS B. RUSSELL, Senior District Judge.

This matter comes before the Court upon the Motion to Dismiss filed by the City of Oak Grove, Kentucky, (Docket No. 17; Amended Memorandum at Docket No. 24). Plaintiff Shanice Jeanine Ross has responded, (Docket No. 25), and the City has replied, (Docket No. 26). Fully briefed, this matter stands ripe for adjudication. Fully briefed, the matter stands ripe for adjudication. For the reasons below, the Court will DENY the City's Motion to Dismiss.

Factual Background

Unless otherwise noted, Plaintiff alleges the following facts in support of her claims. Throughout 1993 and 1994, Defendants Edward Carter, Leslie Duncan, and other police officers for the City of Oak Grove, Kentucky, frequented the New Life Massage Parlor, a local business that doubled as a brothel. The officers extorted cash, equipment, and other compensation from New Life employees, threatening criminal prosecution if they did not acquiesce. Such employees included eighteen year-old Gloria Ann Ross and twenty-two year-old Candida Darlene Belt. Gloria Ross's daughter, Plaintiff in this action, was born in Summer 1994. ( See Docket No. 24-1 at 5.) On September 20, 1994, Gloria Ross and Candida Belt were shot and stabbed to death in the massage parlor's back room. Plaintiff now alleges that Defendants Edward Carter and Leslie Duncan, both Oak Grove City Police officers, murdered her mother.

Acknowledging that nearly two decades elapsed between the alleged murders and the filing of her Complaint, Plaintiff submits that Defendant Duncan manipulated and destroyed evidence at the scene in order to conceal the identities of those responsible for the murder. On September 23, 2013, Duncan pleaded guilty to Tampering with Physical Evidence, Concealing Physical Evidence and/or Destroying Physical Evidence. Plaintiff alleges that Duncan's actions hindered the investigations of the Kentucky State Police and the Christian County Sheriff's Office. Plaintiff further contends that without sufficient proof to discern who caused her mother's death, she was unable to file a lawsuit either individually or on behalf of the estate.

This uncertainty persisted until November 15, 2013, when Duncan was indicted for Complicity to Commit Murder and Carter was indicted for First Degree Murder.[1] Plaintiff then filed this action on April 29, 2014, alleging that Defendants deprived Gloria Ross of her constitutional rights to due process of law and raising claims of battery and wrongful death, loss of consortium, and intentional infliction of emotional distress.

Legal Standard

Federal Rule of Civil Procedure 12(b) provides for the dismissal of claims and parties for seven reasons, including dismissal for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Rule 12 continues:

(d) Resulting of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b) or 12(c), matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All the parties shall be given reasonable opportunity to present all material made pertinent to the motion.

Accordingly, Rule 12(d) permits a 12(b)(6) motion to be converted into a motion for summary judgment. Because Defendants have submitted and the Court has considered several newspaper articles extrinsic to the face of the Complaint, the Court will apply summary judgment standards. See Mays v. Buckeye Rural Elec. Co-Op, Inc., 277 F.3d 873, 877 (6th Cir. 2002) (district court may consider motion to dismiss as one for summary judgment when invited to consider matters outside the pleadings).

Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show "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). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The movant must offer more than a mere scintilla of evidence in support of his position; rather, he must present sufficient evidence to allow the trier of fact to reasonably find in his favor. See id. (citing Anderson, 477 U.S. at 252). Summary judgment is inappropriate only if the parties genuinely dispute an issue of material fact; mere speculation will not defeat such a motion. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012).


Defendants primarily argue that the Court must dismiss Plaintiff's claims as time-barred. They point to KRS 413.180, which establishes certain time limitations during which a personal representative of the ...

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