United States District Court, E.D. Kentucky, Central Division
VICKI MOORE, individually and in her capacity as director of the Shelby County Animal Care Coalition, Plaintiff,
SHELBY COUNTY, KENTUCKY d/b/a SHELBY COUNTY ANIMAL SHELTER, et al., Defendants.
MEMORANDUM OPINION & ORDER
Gregory F.Van Tatenhove, United States District Judge.
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.
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.
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.]
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
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.]
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.
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.]
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. 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.
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.
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