United States District Court, E.D. Kentucky, Central Division
ROSE M. PHILLIPS, et al, Plaintiffs,
PTS OF AMERICA, LLC, et al, Defendants.
REPORT AND RECOMMENDATION
CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on: 1) Motion of Defendants
Louisville Metro Government (“LMG”) and Mark E.
Bolton, in his individual capacity, to dismiss for failure to
state a claim upon which relief can be granted (R. 37); and
2) Motion of Defendants Mississippi County, Missouri
(“Mississippi Co.”) and William Dorris to dismiss
for lack of venue (R. 40). Plaintiffs have filed Responses to
the Motions (R. 44; R. 45). Defendants LMG and Bolton have
filed a Reply (R. 47). Defendants Mississippi Co. and Dorris
have not filed a Reply and their time to do so has expired.
These Motions have been referred to the undersigned for
preparation of a Report and Recommendation pursuant to 28
U.S.C. § 636(b)(1). (R. 9). For the reasons that follow,
it will be recommended that the Motion to Dismiss filed by
Defendants Mississippi Co. and Dorris (R. 40) be
denied. It will be further recommended that
this matter be transferred to the United
States District Court for the Western District of Kentucky,
and that the Motion to Dismiss filed by Defendants LMG and
Bolton (R. 37) be adjudicated by that court after transfer.
Factual and Procedural Background
their Second Amended Complaint, Plaintiffs Rose M. Phillips,
administrator of the estate of William Culpepper, Jr.;
Michelle Meyer, as parent and next friend of W.C., minor
daughter of William Culpepper, Jr. (“Culpepper”);
and Brandon Green, the adult son of Culpepper, who was a
minor at the time of William Culpepper, Jr.'s death,
claim pursuant to 42 U.S.C. § 1983 that Defendants
violated Culpepper's rights under the Eighth and
Fourteenth Amendments to the United States Constitution. (R.
29, at 3) . Plaintiffs also allege several state law claims.
was arrested in Louisville, Kentucky on December 20, 2015, on
an outstanding warrant issued by the State of Mississippi.
(Id. at 8). He was housed at the Louisville Metro
Department of Corrections (“LMDC”) pending
transport to Mississippi. (Id.) At approximately
10:00 a.m. on January 29, 2016, a PTS of America, LLC
(“PTS”) van arrived at LMDC to transport
Culpepper. (Id.). PTS is a company that provides
prisoner transportation services. (Id. at 4). The
van was operated by three PTS employees, Defendants Richard
Haskins, James Crook, and Elva Earnhart. (Id. at 8).
While Culpepper's intended destination was Central
Mississippi Correctional Facility in Pearl, Mississippi,
there was one overnight stop planned at the Mississippi
County Detention Center (“MCDC”) located in
Mississippi County, Missouri. (Id.).
Culpepper was released from LMDC custody into the custody of
PTS for transport, Culpepper allegedly reported to Defendants
Haskins, Crook, and Earnhart that he had a bleeding ulcer and
was experiencing abdominal pain. (Id.). Defendants
Haskins, Crook, and Earnhart spoke with Defendant McKinney, a
LMDC nurse and employee of Defendant Correct Care Solutions,
LLC, regarding Culpepper's complaints. (Id.).
Nurse McKinney responded that Culpepper had no medical
history to support his complaint and directed Culpepper be
given antacids during the trip. (Id. at 8-9).
Defendants Haskins, Crook, and Earnhart were also informed,
prior to transport, that Culpepper was a diabetic and had
been non-compliant with his medications. (Id. at 9).
transport to MCDC, Culpepper continued to complain about
abdominal pain. (Id.). At one point, Defendants
Haskins, Crook, and Earnhart claim they contacted a nurse at
LMDC about Culpepper's complaints, who allegedly directed
them to continue to administer antacids. (Id.).
Defendants also took Culpepper's blood sugar twice during
the trip and, on both occasions, his blood sugar was high-in
excess of 600 mg/dl. (Id.).
van arrived at MCDC around midnight that night.
(Id.). Defendants Haskins, Crook, and Earnhart
escorted two other inmates from the van into MCDC, wherein
they told an officer and employee of the Jail, Defendant
Dorris, and other MCDC employees that Culpepper was still in
the van, “refusing to come in.” (Id.).
Defendant Dorris went to the van to help move Culpepper into
the jail and found Culpepper barely responsive.
Culpepper was taken inside MCDC around 12:18 a.m., Dorris and
the Administrator at MCDC, Defendant Cory Hutcheson, refused
to admit Culpepper to the Jail “until he was stable and
medically cleared.” (Id. at 10). By
approximately 12:25 a.m., Culpepper was unconscious.
(Id.). An ambulance was called at approximately
12:40 a.m. and Defendants Hutcheson, Dorris, and other MCDC
employees placed Culpepper into a wheelchair and transported
him to the MCDC lobby to await arrival of the ambulance.
(Id.). When the ambulance arrived at 12:50 a.m.,
Culpepper was unresponsive, had no pulse, and could not be
revived. (Id.). The coroner subsequently determined
that Culpepper died due to a perforated duodenal ulcer.
pointed out above, Defendants LMG and Bolton, in his
individual capacity, have now filed a Motion to Dismiss for
failure to state a claim upon which relief can be granted (R.
37) and Defendants Mississippi Co. and Dorris have filed a
Motion to Dismiss for lack of venue (R. 40). In the Motion to
Dismiss for lack of venue, Defendants submit that the Eastern
District of Kentucky is not the proper venue for this action
under 28 U.S.C. § 1391 and, as a result, the Court
should dismiss the Second Amended Complaint against
Defendants Mississippi Co. and Dorris. (Id. at 2).
The Court's analysis reveals that venue is improper under
28 U.S.C. § 1391, but as explained below, transfer
rather than dismissal is the appropriate remedy under the
Venue in the Eastern District of Kentucky is
is no special venue statute for § 1983 civil rights
actions. Gamble v. Whitmer, No.3:12-cv-P481-H, 2012
WL 4460460, at *1 (W.D. Ky. Sept. 25, 2012); Schaeffer v.
Kentucky, No. 3:11-cv-P516-R, 2011 WL 5975380, at *1
(W.D. Ky. Sept. 21, 2011). Looking therefore to the general
venue statute, a civil action may be brought in:
(1) a judicial district where any defendant resides, if all
defendants are residents of the State in which the district
is located, (2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the
subject of the action is situated, or (3) if there is no
district in which an action may otherwise be brought in this
section, any judicial district in which any defendant is
subject to the court's personal jurisdiction with respect
to such action.
U.S.C. § 1391(b). Based on the above language,
subsection (3) of the venue statute is not applicable unless
both subsections (1) and (2) do not provide a judicial
district in which an action may be brought. Schultz v.
Ary, 175 F.Supp.2d 959, 965 (W.D. Mich. 2001) (stating
“subsection (3) only applies ‘if there is no
district in which the action may otherwise be
brought'”); see alsoMaisano v.
Corizon Health, Inc., No. 3:13-cv-0947, 2013 U.S. Dist.
LEXIS 137502, at *8 (M.D.Tenn. Sept. 25, 2013) (referring to
28 U.S.C. § 1391(b)(3) as a “last-resort venue
provision”). “Once venue is challenged by a
defendant, plaintiff has the burden of ...