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Moore v. Shelby County

United States District Court, E.D. Kentucky, Central Division, Frankfort

February 9, 2017

VICKI MOORE, individually and in her capacity as director of the Shelby County Animal Care Coalition, Plaintiff,
v.
SHELBY COUNTY, KENTUCKY d/b/a SHELBY COUNTY ANIMAL SHELTER, et al., Defendants.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge.

         Vicki Moore, individually, and in her capacity as Director of the Shelby County Animal Care Coalition, brings suit against Shelby County, Kentucky, d/b/a Shelby County Animal Shelter; Rob Rothenburger, individually and in his capacity as Shelby County Judge Executive; and Leon Federle, individually, and in his official capacity as Shelby County Animal Control Director. The Defendants have moved for summary judgment on the Plaintiff's claims, and for the reasons that follow, the Court GRANTS the Defendants' motion as to the First Amendment retaliation claim and the § 1983 supervisory liability claim and REMANDS the Plaintiff's remaining state law Kentucky Open Records Act claims for further consideration by the state court.

         I

         A

         Vicki Moore is the director of the Shelby County Animal Care Coalition, an advocacy group that “supports the humane treatment of animals” at the Shelby County Animal Shelter. [R. 1-3 at 3.] ¶ 2013, Ms. Moore became aware of “disturbing conditions” at the Shelby County Animal Shelter, including malnourished dogs, dirty cages, and dogs with chemical burns due to unsanitary conditions and unsafe cleaning practices. [Id.] Shelby County Animal Care Coalition was organized shortly after these findings and publicized these findings through their website. [Id. at 4.] The Shelby County Animal Care Coalition worked with the Shelby County Animal Shelter for a time to improve conditions in the shelter, but the relationship ended with Defendant Federle, the director of the animal shelter, barring the Coalition from entering the shelter. [Id.]

         On February 6, 2015, an open records request was made to Defendant Rothenburger to inspect and copy all images, graphic representations, and audio on the security camera system at the Shelter. [Id.] Defendant Rothenburger advised Ms. Moore and the Animal Care Coalition that Defendant Federle should be contacted to retrieve the surveillance videos rather than him and that it would take six to eight weeks to locate and redact such videos. [R. 1-3 at 5; R 1-3 at 15.]

         On May 11, 2015, a dog fight occurred at the Shelby County Animal Shelter, resulting in several dogs being injured. [Id. at 5.] Ms. Moore again attempted to obtain video surveillance of the Shelter pursuant to the Open Records Act. [Id.] Ms. Moore obtained an external hard drive and a technician to accompany her to copy the surveillance videos. [Id.] Mr. Federle agreed to meet Ms. Moore on May 21, 2015, to copy the surveillance videos, but Ms. Moore cancelled this meeting. [R. 1-3 at 5; R. 7 at 2.] The appointment was rescheduled for May 28, 2015, and Mr. Federle cancelled the appointment. [R. 1-3 at 5.] On June 5, 2015, Plaintiff was able to go to the Shelter in an attempt to transfer the surveillance videos to her hard drive. [R. 1-3 at 5.] Upon arrival, Ms. Moore and the technician who accompanied her found that all the surveillance videos had been deleted on May 31, 2015, at 1:53 a.m. [Id. at 6.] The Defendants maintains that the files had been inadvertently deleted because the County had decided to switch to a five-day retention period for video files. [Id.]

         Mid America Security Systems administered the video files for the Animal Shelter and sent a letter dated June 18, 2015, that the video files had been deleted due to the five-day policy instituted by the County. [Id.] Mid America Security Systems also indicated that Defendant Federle did not know that the previous recordings had been erased when the new policy had been implemented. [R. 1-3 at 17.]

         This matter was referred to the Kentucky Attorney General, who issued a decision dated October 1, 2015. [R. 1-3 at 15.] The decision found that Mr. Federle and the Animal Shelter had subverted the intent of KRS 61.872(3)(a) by restricting access to open records. [Id. at 16.] The decision also found that the failure to preserve the camera record did not violate the Open Records Act, but referred the issue to the Department for Libraries and Archives as a record management problem. [Id. at 18.]

         On February 17, 2016, Defendants removed the Plaintiff's suit to federal court, based on this Court's original jurisdiction over Plaintiff's First Amendment Retaliation claim and supervisory liability claims pursuant to 42 U.S.C §1983; and supplemental jurisdiction over KRS §§ 61.870-884, 61.991, 519.060, and 171.990. [See R. 1] Defendants then moved for summary judgment on all claims. [R. 6.]

         B

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if 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 fact's materiality is determined by the substantive law, and a dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

         In deciding a motion for summary judgment, the Court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden is initially on the moving party to inform “the district court of the basis of its motion, and [to identify] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of a material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this burden is met, the nonmoving party, “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Further, “the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Instead, “the non-moving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.” In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).

         II

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