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Humber v. Lexington-Fayetteurban County Government

Court of Appeals of Kentucky

June 29, 2018



          BRIEFS FOR APPELLANTS: Charles W. Arnold Christopher D. Miller Lexington, Kentucky

          BRIEF FOR APPELLEE: Keith Moorman Lexington, Kentucky Sheryl G. Snyder Jason P. Renzelmann Louisville, Kentucky



          NICKELL, JUDGE.

         Sean Humber, Dominico Morbley, Aaron Ruffin, Gregory Stokes, Kem Anderson and Tim Anderson, individually and through their guardians have appealed from the March 21, 2016, order of the Fayette Circuit Court dismissing their complaint against Lexington-Fayette Urban County Government ("LFUCG"). Following a careful review, we affirm.

         The factual and procedural history underlying this matter are lengthy and convoluted. However, because the issue presented in this appeal is purely one of law, only a truncated recitation of facts is necessary. Ron Berry was Executive Director of Micro-City Government ("MCG"), a private, non-profit organization which received grant funding from LFUCG. During his tenure, Berry abused numerous youths, including Appellants, who participated in programs sponsored by MCG. In 1998, Berry was arrested and convicted on twelve counts of sodomy. Shortly thereafter, a putative class action lawsuit was filed in United States District Court.[1] That action was settled in 2000, shortly after class certification was denied.

         Three more putative class actions followed between May 2000 and January 2003. Each of these actions were filed by individuals claiming abuse by Berry. The first such action[2] settled following denial of class certification. The remaining two actions[3] were dismissed on statute of limitations grounds. However, on appeal, the United States District Court's dismissal was reversed and remanded with instructions to reopen the Guy case and permit the Doe I and Doe II plaintiffs to intervene. On remand, the United States District Court denominated the two groups of plaintiffs "John and Jane Doe" and "Rex and Rita Roe" to distinguish the groups while preserving their anonymity. The Doe and Roe plaintiffs filed intervening complaints in 2006.

         The intervening complaints asserted claims on behalf of putative classes of persons abused by Berry while participating in any program administered or operated by Berry, MCG or LFUCG. Claims against LFUCG were premised on the refusal or failure of LFUCG to take action to stop Berry's improper activities while continuing to fund MCG. The complaint included nearly a dozen causes of action based on a variety of theories grounded in both state and federal law.

         In early 2008, judgment was granted in favor of LFUCG on all Doe and Roe plaintiffs' state and federal law claims, except a single federal civil rights claim. In May 2009 the United States District Court granted LFUCG partial summary judgment on statute of limitations grounds as to the majority of the Doe and Roe plaintiffs. Only those plaintiffs who had asserted a basis for tolling the limitations period-either due to age or mental incapacity-were spared from the judgment. Three months later, class certification was denied. The statute of limitations and class certification decisions were affirmed in an interlocutory appeal.[4]

         Following final denial of class certification, additional plaintiffs individually joined the litigation. The Appellants in the instant appeal were undisputedly named as "Rex Roe" plaintiffs in the original 2006 complaint or were some of the later joined plaintiffs. All asserted entitlement to tolling of the limitations period. LFUCG renewed motions for summary judgment which had originally been filed in early 2010 but had been stayed during pendency of the interlocutory appeal wherein it was asserted plaintiffs' remaining claims failed as they could not show Berry was a "state actor." On May 30, 2013, the United States District Court concluded Berry was not a "state actor" and the receipt of funds by MCG from LFUCG did not somehow transform the former into an agency of the latter. Summary judgment was granted against all plaintiffs-except John Doe 39 and Rex Roe 92 who presented facts tying their abuse to a single program-a free summer lunch program funded by LFUCG-for which Berry might potentially have been working as an employee of LFUCG.

         The Roe plaintiffs moved to alter or vacate the May 30, 2013, ruling, asserting they had insufficient opportunity to take discovery on the state action issue-even though the issue had been raised as early as 2010-and sought to add several new, alternate legal theories supporting their federal civil rights claim. The United States District Court denied the motion.

         More than five months later, the Roe plaintiffs moved for relief from the summary judgment, asserting connections between their abuse and the summer lunch program. Supporting information for the motion consisted of excerpts from depositions and discovery responses long predating entry of summary judgment. The United States District Court denied the motion, finding no justification for reconsideration and no explanation for why the proffered evidence could not have been presented earlier. Subsequently, LFUCG settled with most of the plaintiffs, including John Doe 39 and Rex Roe 92, to stave off further litigation and appeals. However, several non-settling Roe plaintiffs-including some of the instant Appellants-appealed the summary judgment order and the denial of their post-judgment motions for relief.

         On August 20, 2015, over seventeen years after the initial complaint was filed, the Sixth Circuit rendered an opinion affirming the United States District Court's rulings, effectively ending the Guy litigation.[5] The Sixth Circuit concluded the United States District Court correctly found Berry was not a "state actor." The opinion further rejected the contention the Roe plaintiffs had insufficient opportunity to discover and present facts, holding ample time had been afforded to research and submit evidence, and nothing had prevented ...

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