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Moore v. Shelby County, Kentucky

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

February 22, 2019

VICKI MOORE, individually and in her capacity as director of the Shelby County Animal Care Coalition, Plaintiff,


          Gregory F.Van Tatenhove, United States District Judge.

         This matter is before the Court on Defendant's Second Motion for Summary Judgment. [R. 49.] For the following reasons, the Court will GRANT the motion.


         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 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. Federele 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, but this time Mr. Federle cancelled the appointment. [R. 1-3 at 5.] On June 5, 2015, Plaintiff was able to go to the Shelter to transfer the videos. [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 maintain that the files had been inadvertently deleted because the County had decided to switch to a five-day retention period for video files. Id.

         At all relevant times, Mid America Security Systems handled the oversight and maintenance of Shelby County Animal Shelter's security systems. [R. 49-1 at 6.] Following Ms. Moore's records request, the shelter switched from a thirty to five-day retention period for surveillance videos. 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 Ms. Moore requested had been deleted due to the five-day policy instituted by the County. Id. There is a dispute between the parties as to whether Mid-America informed Defendants Federle or Rothenburger that existing videos might be lost in the transition to the five-day retention period, or whether Defendants instructed Mid-America to erase the videos. [See R. 49-1 at 6; R. 63 at 10.] Since the reversal of this Court's order granting summary judgment, Defendants have filed a third-party complaint against Mid-America, bringing it into this action. [R. 35.]

         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 claims arising under 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.]

         This Court granted Defendants' first motion for summary judgment, finding that Plaintiff's First Amendment Retaliation and Supervisory Liability claims failed as a matter of law. [R. 13.] Having granted summary judgment to Defendants on Plaintiff's federal law claims, Plaintiff's state law claims were remanded to the state court. Id. Ms. Moore appealed this Court's decision as to the First Amendment Retaliation claim to the Sixth Circuit, which overturned this Court's order.[1] See Moore v. Shelby County, 718 Fed.Appx. 315 (6th Cir. 2017). The Sixth Circuit found that Ms. Moore had not been afforded adequate opportunity to conduct discovery, and therefore summary judgment was inappropriate at that time. Id.

         Over one year has passed since the Sixth Circuit reversed this Court's order granting summary judgment, and in that time parties have conducted the discovery contemplated in the Sixth Circuit's opinion. In December 2018, Defendants again moved for summary judgment on all claims. Also before the Court is Defendant and Third-Party Defendant's Joint Motion to Dismiss Third-Party Defendant [R. 50] and Plaintiff's Motion for Leave to File a Cross-Claim [R. 52].



         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party 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 ...

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