United States District Court, E.D. Kentucky, Central Division, Lexington
LISA K. WILLIAMS, Administratrix of the Estate of Keith G. Burns, Plaintiff,
CITY OF GEORGETOWN, KENTUCKY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Danny C. Reeves United States District Judge
case arises out of a series of events tragically resulting in
Keith Burns being struck and killed by a vehicle just before
midnight on October 2, 2017. [Record No. 11 ¶ 19]
Plaintiff Lisa Williams, the administratrix of Burns's
estate, contends that the defendants violated Burns's
rights guaranteed under the Fourth, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution
pursuant to 42 U.S.C. § 1983. [Record No. 11 ¶ 2]
Williams also alleges several state law claims for relief.
The defendants have moved to dismiss the plaintiff's
first amended complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure [Record Nos. 23, 34].
Additionally, Williams has filed a motion for leave to file a
second amended complaint [Record No. 32]. For the reasons
that follow, the defendants' motions to dismiss will be
granted and the Williams's motion for leave to file a
second amended complaint will be denied.
Georgetown Police Department and Scott County Sherriff's
Office received a report of a reckless driver in a dark
colored pickup truck at approximately 7:45 p.m. on October 2,
2017. [Record No. 11 ¶ 9] The report indicated that the
truck's lights were not illuminated and that the driver
of the truck was weaving, driving on the wrong side of the
road, slamming on his brakes, and had almost hit several
other cars. [Id.] Georgetown Police Officer Tommy
Enricco responded and pulled over a truck driven by Burns.
[Id. at ¶ 10] Georgetown Police Officer Jon
Noel and Scott County Sherriff's Deputy Jeremy Nettles
subsequently joined Enricco. [Id.]
did not make eye contact with Enricco and was unable to
locate his driver's license or proof of insurance during
the stop. [Id. at ¶ 11] Burns stated that he
lived in London, Kentucky, but could not explain what he was
doing in Georgetown, Kentucky. [Id.] Additionally,
Enricco observed a scab on Burns's head and questioned
him about it. [Id.] Burns responded that it was from
an earlier fall and he had recently been hospitalized for a
neurological disorder. [Id.] Burns further informed
Enricco that he took medication for his blood pressure and a
blood thinner, but he denied taking any medications that
could affect his driving. [Id.]
and Nettles also spoke with Burns. [Id.] Burns told
Noel that he was taking medication for diabetes, but that he
had missed two doses of his medication that day.
[Id.] Enricco, Noel, and Nettles summoned the
Georgetown Scott County Emergency Medical Service
(“EMS”) to examine Burns but Burns refused any
treatment or transport to a medical facility. [Id.
at ¶ 12]
brother-in-law Les Williams received a call from Noel who
advised Mr. Williams of the situation, specifically that
Burns was pulled over, his truck was impounded due to
improper tags, and he was in police custody. [Id. at
¶ 15] Noel then told Mr. Williams that he needed to pick
up Burns in Georgetown. [Id.] Mr. Williams informed
Noel that Burns had recently been hospitalized for a stroke
and it would take about an hour for him to get to Georgetown
after his wife, Lisa Williams, got home from church.
[Id.] Noel advised Mr. Williams that he should call
Georgetown Police dispatch for further instructions when he
got to Georgetown. [Id.]
Williams arrived in Georgetown around 11:00 p.m. on October
2, 2017, and called Georgetown Police dispatch who informed
him that Burns had been dropped off at a McDonald's
restaurant at 171 Southgate Drive in Georgetown.
[Id. at ¶¶ 16, 17, 20] However, Mr.
Williams could not find Burns when he arrived at the
restaurant. [Id. at ¶ 17] Sadly, just before
midnight, Burns was struck and killed by a van while he was
walking in the roadway about two miles south of the
restaurant. [Id. at ¶ 19]
Williams filed suit on March 8, 2018, naming as defendants:
the City of Georgetown, Kentucky; Michael D, Bosse; Nicholas
Lodal; Gary Crump; and Jane/John Does Nos. 1 and 2. [Record
No. 1] She subsequently sought leave to amended the complaint
to dismiss the claims against Lodal and Crump and to add
Georgetown Police Officers Noel and Enricco, as well as Scott
County Deputy Sherriff Nettles, Scott County Deputy Tony
Hampton, and Scott County, Kentucky, as defendants. [Record
No. 9] The Court granted the request and the plaintiff filed
her amended complaint on April 6, 2018. [Record Nos. 10, 11]
The plaintiff asserts that the defendants violated
Burns's rights guaranteed under the Fourth, Fifth,
Eighth, and Fourteenth Amendments of the United States
Constitution pursuant to 42 U.S.C. § 1983. She also
alleges several state law claims, including negligence, gross
negligence, and wrongful death. Bosse, Noel, Enricco,
Hampton, and Nettles are sued in their individual capacities.
[Record No. 9]
Scott County, Hampton and Nettles (collectively, the
“Scott County Defendants”) moved to dismiss the
amended complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure on June 27, 2018. [Record No. 23]
The plaintiff filed her response on July 16, 2018, and the
Scott County Defendants filed their reply on July 27, 2018.
The plaintiff moved for leave to file a second amended
complaint on August 13, 2018, to remove the statement that
the defendants “nonetheless decided that Mr. Burns was
not a danger to himself or to others.” [Record No. 32
¶ 1] Defendants City of Georgetown, Bossee, Noel and
Enricco (collectively, the “Georgetown
Defendants”) also moved to dismiss the amended
complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure on August 13, 2018. [Record No. 34] All
motions have been fully briefed.
STANDARD OF REVIEW
Motions to Dismiss
12(b)(6) motion to dismiss requires the Court to determine
whether the complaint alleges “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
plausibility standard is met “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). While a complaint need not contain
“detailed factual allegations” to survive a
motion to dismiss, “a plaintiff's obligation to
provide the grounds of his entitlement of relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (internal quotation marks
and alteration omitted). Plaintiffs are not required to plead
facts showing that the defendant is likely to be responsible
for the harm alleged, but they must demonstrate “more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
Motion for Leave to File Second Amended Complaint
response to a complaint has been filed or a plaintiff has
previously filed an amended complaint, a plaintiff may amend
the complaint “only by leave of court or by written
consent of the adverse party.” Fed.R.Civ.P. 15(a);
see also Thiokal Corp. v. Dep't of Treasury, State of
Mich., Revenue Div., 987 F.2d 376, 383 (6th Cir. 1993).
While Rule 15(a) states that the “court should freely
give leave when justice so requires, ” denying leave is
appropriate in instances of “undue delay, bad faith or
dilatory motive on party of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962).
Motions to Dismiss
The Officers' Liability
Noel, and Nettles (collectively, “the officers”)
contend that they are shielded from the plaintiff's
federal claims ...