SEAN HUMBER, DOMINICO MORBLEY, AARON RUFFIN, GREGORY STOKES, KEM ANDERSON AND TIM ANDERSON, INDIVIDUALLY AND THROUGH THEIR GUARDIANS APPELLANTS
LEXINGTON-FAYETTEURBAN COUNTY GOVERNMENT APPELLEE
FROM FAYETTE CIRCUIT COURT HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 15-CI-04253
FOR APPELLANTS: Charles W. Arnold Christopher D. Miller
FOR APPELLEE: Keith Moorman Lexington, Kentucky Sheryl G.
Snyder Jason P. Renzelmann Louisville, Kentucky
BEFORE: JOHNSON, KRAMER, AND NICKELL, JUDGES.
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.
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. That action was settled in 2000, shortly
after class certification was denied.
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 settled following
denial of class certification. The remaining two
actions 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.
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.
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.
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.
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
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.
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. 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 ...