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Horn v. City of Covington

United States District Court, E.D. Kentucky, Northern Division, Covington

June 3, 2019

STEPHEN MARK HORN PLAINTIFF
v.
CITY OF COVINGTON, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon five motions, three filed by Plaintiff Stephen Horn and two filed by Defendant Trey Smith. Defendant Smith filed a Motion to Dismiss and a Motion to Alter Judgment. (Doc. # 324). Plaintiff Horn has moved to strike Defendant Smith's Motions (Doc. # 327) and submitted a Motion for Default Judgment (Doc. # 326) as well as a Motion for Reconsideration (Doc. # 332). These motions come on the heels of a lengthy Memorandum Opinion and Order, in which this Court granted summary judgment for all Defendants except Police Officer Greg Rogers and Correctional Officer Trey Smith. (Doc. # 321). The motions having been fully briefed, see (Docs. # 324, 326, 327, 330, 331, 332, 334, and 335), and are now ripe for the Court's review.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The facts and procedural history in this case have been recounted extensively in the Court's earlier opinions, see (Docs. # 99 and 321) and will be repeated only to the extent they relate to the pending motions. On the evening of April 13, 2013, Plaintiff Horn was forcibly arrested by Covington, Kentucky police officers while at a friend's house. He was subsequently taken to the Kenton County Detention Center (“KCDC”), where he remained for four days before being released. Following these events, Horn filed a pro se complaint on April 11, 2014, alleging constitutional violations by the City of Covington, Covington Police Officer Greg Rogers, and various John Does. (Doc. # 1 at 1-2). On August 26, 2014-over four months after the one-year statute of limitations had run- Horn, through counsel, filed a First Amended Complaint, bringing constitutional claims and pendant state-law claims against the City of Covington, Covington Police Chief Michael “Spike” Jones, and Covington Police Officers Greg Rogers, Jason Gray, William Kelley, Rob Linton, David Pennington, and John Does (collectively “the Covington Defendants”). (Doc. # 8-1 at 1). The First Amended Complaint also named the following defendants in relation to Horn's alleged inadequate medical treatment at the KCDC: Kenton County, various KCDC personnel, including Lieutenant Trey Smith (collectively “the County Defendants”), and the contracted medical provider at the KCDC, Southern Health Partners (“SHP”). Id.

         Prior to the start of discovery, the County Defendants filed a Motion to Dismiss, and SHP filed a Motion for Summary Judgment. (Docs. # 66 and 87). Both the County Defendants and SHP argued that because they were not sued before the expiration of Kentucky's one-year statute of limitations, Plaintiff's § 1983 and state-law claims against them were time-barred. The Court rejected Defendants' argument in its July 1, 2015 Memorandum Opinion and Order, finding that “it is plausible the statute of limitations was tolled due to [Plaintiff's] unsound mind.” (Doc. # 99 at 27). In denying SHP's Motion for Summary Judgment, the Court concluded that Plaintiff had put forth sufficient evidence of his unsound mind during the relevant time period. For example, Horn submitted medical records indicating that he had suffered traumatic brain injury in April 2013. Id.

         Horn's medical expert opined that such an injury could prevent someone from managing his daily affairs. Id. Horn also procured affidavits from two acquaintances who interacted with Horn both before and after his arrest and who testified to Plaintiff's compromised mental state. Id.

         After the resolution of their Motion to Dismiss, the County Defendants, including Correctional Officer Smith, answered the First Amended Complaint on July 21, 2015. (Doc. # 107). Over two years later on August 8, 2017, Plaintiff, with leave of Court, filed a Second Amended Complaint. (Doc. # 255). The Second Amended Complaint is substantively identical to the First Amended Complaint, the only change being the correction of Defendant Smith's title from “Captain Smith” to “Lieutenant Smith.” See (Doc. # 250 at 2-4). The Covington Defendants and SHP filed Answers to the Second Amended Complaint. See (Docs. # 260, 264, and 265). The County Defendants, including Defendant Smith, however, never answered the Second Amended Complaint.

         After the conclusion of discovery, the Covington Defendants, [1] County Defendants, and SHP all filed Motions for Summary Judgment. See (Docs. # 274, 278, 281, and 283). Plaintiff filed a Consolidated Response to the Motions for Summary Judgment on November 20, 2017. (Doc. # 307). The Kenton County Defendants and SHP then filed a Motion to Strike, and for Stay of Filing of Reply Memorandum Pending Ruling. (Doc. # 309). In the Motion to Strike, Defendants argued that an affidavit submitted by Horn as part of his Response in Opposition to the Motions for Summary Judgment was improper and that it should be stricken. (Doc. # 309-1 at 2). Defendants further requested that the Court stay the reply deadline until its ruling on the Motion to Strike the Affidavit. Id. at 309-1 at 3. The Court never ruled on the Motion to Stay the Reply Deadline. It denied the Motion to Strike the Plaintiff's affidavit in its Memorandum Opinion and Order adjudicating the summary judgment motions. See (Doc. # 321 at 17). Notwithstanding the Court's failure to rule on its Motion to Stay the reply deadline, SHP filed a timely reply memorandum. (Doc. # 314). The County Defendants, however, did not.

         On August 14, 2018, this Court granted summary judgment for all of the Covington Defendants with the exception of Officer Rogers, who the Court ruled must stand trial on Horn's § 1983 excessive-force claim. The Court determined that the excessive-force claims in the First Amended Complaint against Lieutenant Kelley were barred by the statute of limitations because they did not relate back to those in Horn's original pro se complaint. Notably, the Court did not analyze whether Plaintiff's excessive-force claims against Kelley were timely under the “unsound mind” theory, as it had previously done in its Order denying SHP's first Motion for Summary Judgment. See (Doc. # 99 at 29). The Court also granted summary judgment for SHP, Kenton County, Jailer Carl, and Correctional Officer Bishop, but denied summary judgment for Correctional Officer Smith regarding Horn's § 1983 deliberate-indifference claim. (Doc. # 321).

         Plaintiff and Defendant Smith have now filed various motions seeking to alter the result reached in the Court's summary-judgment Order. (Docs. # 324, 327, and 332). In addition, Plaintiff has filed a Motion for Default Judgment against Defendant Smith. (Doc. # 326). The Court discusses each motion below.

         II. ANALYSIS

         A. Defendant Smith's Motion to Dismiss

         Defendant Correctional Officer Smith seeks dismissal of Plaintiff's claims against him in his individual capacity. See (Doc. # 324). In doing so, he presents two separate but related arguments. First, although he is named in the First and Second Amended Complaints, Smith claims that Plaintiff never properly sued him as an individual because “neither the caption nor the body of the [complaints] identified that Smith [was] sued in an individual capacity.” (Doc. # 324-1 at 2). According to Smith, it was not until his Response to Smith's Motion for Summary Judgment that Plaintiff “expressly articulated that he was asserting claims against Smith in an individual capacity.” (Doc. # 324-1 at 3). Accordingly, Smith argues that the Court should void the portion of its summary-judgment Order that requires Smith to stand trial in his individual capacity on Plaintiff's deliberate-indifference claim.

         Second, Smith contends that the court lacks personal jurisdiction over him because he was never served with process. (Doc. # 324-1 at 12). Although Smith answered the First Amended Complaint (Doc. # 107) and waived service of the Second Amended Complaint (Doc. # 273), he claims he did so only in his official capacity and did not consent to the Court's jurisdiction over him as an individual. (Doc. # 324-1 at 12).

         The Court starts by examining Defendant's assertion that the Complaint failed to name him in his individual capacity. The First Amended Complaint refers to “Captain Smith” both in the caption and in the body, but does not expressly state in which capacity Smith is being sued. See (Doc. # 8-1). In situations where a § 1983 plaintiff “‘fails to affirmatively plead capacity in the complaint, [courts] look to the course of proceedings to determine whether' the defendants received sufficient notice that they might be held individually liable.“ Goodwin v. Summit Cty., 703 Fed.Appx. 379, 382 (6th Cir. 2017) (quoting Moore v. City of Harriman, 272 F.3d 769, 771 (6th Cir. 2001) (en banc)). The “course of proceedings” test considers a number of factors such as (1) the nature of the plaintiff's claims, (2) requests for compensatory or punitive damages, and (3) the nature of any defenses raised in response to the complaint, including claims of qualified immunity. Moore, 272 F.3d at 772 n.1. Notably-and particularly relevant to the result in this case-“[t]he test also considers whether subsequent pleadings put the defendant on notice of the capacity in which he or she is sued.” Id. Hence, “[a] plaintiff may sufficiently notify a defendant of an argument by raising it in a response to summary judgment.” Copeland v. Regent Elec., Inc., 499 Fed.Appx. 425, 435 (6th Cir. 2012) (citing Moore, 272 F.3d at 774); accord Vencor, Inc. v. Standard Life & Accident Ins. Co., 317 F.3d 629, 641 n.11 (6th Cir. 2003).

         Here, the course of proceedings indicates that Defendant Smith had sufficient notice that he was sued in his individual capacity. First, Count IV of the First Amended Complaint, which alleges deliberate indifference to Horn's serious medical needs, appears to allege both individual and official-capacity claims, but distinguishes which defendants it brings these claims against. For example, when alleging the official-capacity claim within Count IV, Horn consistently omits Captain Smith, stating that the “Kenton County Sheriff, the Kenton County Jailer, and SHP, put in place policies and encouraged practices at the Kenton County Detention Center that resulted in the routine denial of medical care to detainees.” (Doc. # 8-1 ¶ 109). By contrast, Horn includes Smith when describing his individual-capacity claim in Count IV, stating that “the Kenton County Defendants [which includes Captain Smith] . . . had notice of Plaintiff's need for medical treatment . . . yet they failed to provide him with the necessary medical attention.” Id. ¶ 101. Horn also alleges elsewhere in the First Amended Complaint that “Plaintiff told Kenton County Defendant Correctional Officers Bishop and Smith . . . on more than one occasion that he needed to see a doctor or a nurse and [they] were otherwise on notice of [Plaintiff]s' serious medical need.” (Doc. # 8-1 ¶ 79). Thus, the “nature of the plaintiff's claims” suggests that Smith was sued in his personal capacity. Moore, 272 F.3d at 772 n.1.

         Second, Plaintiff in his First Amended Complaint requests “punitive damages against all Defendants except Kenton County.” (Doc. # 8-1 at 37) (emphasis added). Because punitive damages are available only against individuals, and not counties, see Newport v. Fact Concerts, 453 U.S. 247, 271 (1981), the Complaint's language leads to the inference that Captain Smith is sued in his individual capacity. See Moore, 272 F.3d at 773. Third, although Smith's Answer does not raise a defense of qualified immunity to Plaintiff's § 1983 claim, Smith's Answer does raise the defense of “qualified official immunity, ” see (Doc. # 107 at 2), which applies only to those sued in their individual capacities under Kentucky state law. See Autry v. Western Ky. Univ., 219 S.W.3d 713, 719 (Ky. 2007); Bolin v. Davis, 283 S.W.3d 752, 757 (Ky. Ct. App. 2008). Finally, Defendant Smith admits that he became aware of Horn's intention to sue him in his individual capacity upon reading Plaintiff's Response to his Motion for Summary Judgment. (Doc. # 324-1 at 3-4). Accordingly, Plaintiff's Response was sufficient to “rectify deficiencies in the initial pleadings.” Moore, 272 F.3d at 774.

         Having determined that the First Amended Complaint put Defendant Smith on notice of the individual-capacity claims against him, the Court next turns to Smith's argument that the Court lacked jurisdiction over him due to insufficient service of process. “In the absence of ‘proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant.'” Boulger v. Woods, 917 F.3d 471, 476 (6th Cir. 2019). Smith argues that he was never served because the Complaint he answered did not provide notice of suit in his individual capacity. (Doc. # 324-1 at 4). This argument rings hollow, however, in light of the Court's finding that the Complaint did in fact provide adequate notice of individual-capacity claims against Smith. See supra at 7. Thus, by failing to raise the service defense in his Answer, Smith waived his ability to assert this defense later on. See Fed. R. Civ. P. 12(h); Boulger, 917 F.3d at 476; Williams v. Simpson, No. 5:09-cv-31-R, 2010 WL 5186722, at *4 (W.D. Ky. Dec. 15, 2010).

         Defendant Smith has also forfeited his right to challenge insufficient service of process through his extensive participation in this litigation. “[A] defendant's appearances, filings, and actions in the district court may constitute ‘legal submission to the jurisdiction of [that] court.'” Boulger, 917 F.3d at 477 (alteration in original) (quoting Gerber v. Riordan, 649 F.3d 514, 519 (6th Cir. 2011)). In determining whether a defendant's conduct serves as constructive consent to personal jurisdiction, the court asks “whether a defendant's conduct has given the plaintiff a reasonable expectation that the defendant will defend the suit on the merits or whether the defendant has caused the court to go to some effort that would be wasted if personal jurisdiction is later found lacking.” Id. (internal quotation marks omitted). A court is more likely to find forfeiture of a service defense, such as the one Smith now raises, as compared to a personal- jurisdiction defense, which “concerns the fairness of requiring a defendant to appear and defend in a distant forum.” King v. Taylor, 694 F.3d 650, 659 (6th Cir. 2012).

         In this case, Horn's decision to wait until after the summary-judgment stage to raise his service-of-process defense “caused the district court to go to at least ‘some effort that would be wasted if proper service of process is later found lacking.'” King, 694 F.3d at 660 (internal brackets omitted) (quoting Gerber, 649 F.3d at 519). Smith therefore forfeited his service defense. Smith argues that had the Court ruled on his motion to stay the summary-judgment-reply deadline (Doc. # 309), he would have filed a reply memorandum which “would have revealed the fatal procedural and factual deficiencies in the newly asserted individual capacity claim against Smith, including, inter alia: that Smith was never served with the First Amended Complaint.” (Doc. # 324 at 2-3). This argument strains credulity, as Defendant Smith's motion to stay the reply deadline does not once mention Plaintiff's “newly asserted” individual-capacity claim. Rather, the sole basis for the motion was to provide additional time to reply once the court had ruled on the admissibility of Plaintiff's allegedly sham affidavit. See (Doc. # 309-1 at 3). Thus, Smith's actions have the appearance of gamesmanship, where “a litigant ask[s] the court to proceed on the merits, and then, only if the court's decision is unfavorable, seek[s] to [] assert jurisdictional defenses.” Boulger, 917 F.3d at 478. Smith's Motion to Dismiss for lack of personal jurisdiction and insufficient service of process is therefore denied.

         B. Defendant Smith's Motion for Relief from Entry of Summary Judgment and Plaintiff's Motion to Strike

         Defendant Smith also moves for “relief from the entry of Summary Judgment (Doc. 321), pursuant to Fed.R.Civ.P. 59 and/or Fed.R.Civ.P. 60.” (Doc. # 324 at 1). In his Motion, Smith argues that the Court was mistaken in finding a triable issue of fact regarding whether Smith was deliberately indifferent to Horn's serious medical needs. (Doc. # 324-1 at 13-24). Plaintiff has responded by filing a Motion to Strike, arguing that there is no basis to reconsider this aspect of the Court's prior Order and that Defendant Smith forfeited his right to contest Horn's individual-capacity claim by failing to file a reply memorandum at the summary-judgment stage. (Doc. # 327).

         As an initial matter, Smith's reliance on Federal Rules of Civil Procedure 59 and 60 is misplaced. Under Rule 59(e), a court may alter a judgment based on: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice. Clark v. United States, 764 F.3d 653, 661 (6th Cir. 2014). However, Rule 59(e) does not apply to an interlocutory order such as the denial of Smith's Motion for Summary Judgment. See Cameron v. Ohio, 344 Fed.Appx. 115, 117-18 (6th Cir. 2009); Tarter v. AP/AIM Rivercenter Suites, LLC, No. 16-78-DLB-CJS, 2019 WL 114468, at *3 (E.D. Ky. Jan. 4, 2019). Likewise, Rule 60(b), which provides relief from “a final judgment, order, or proceeding, ” (emphasis added) does not govern denials of motions for summary judgment. See Farley v. Country Coach Inc., 403 Fed.Appx. 973, 977 n.2 (6th Cir. 2010); Moore v. Alstom Power Turbomachines, LLC, No. 1:12-cv-292, 2013 U.S. Dist. LEXIS 202412, at *2-3 (E.D. Tenn. May 14, 2013). As such, Defendant Smith's Motion is “effectively a renewed motion for summary judgment and ‘the district court [is] therefore free to reconsider or reverse its decision for any reason.'” Cameron, 344 Fed.Appx. at 118 (internal brackets omitted) (quoting Russell v. GTE Gov't Sys. Corp., 141 Fed.Appx. 429, 436 (6th Cir. 2005)).

         Defendant Smith has filed his renewed motion for summary judgment over eleven months after the deadline for dispositive motions has passed and without seeking leave of court. See (Docs. # 252 at 2 and 324). “Based on the district court's power to manage its own docket, the court ha[s] ample discretion to strike Defendant[‘s] late renewed motion for summary judgment.” ACLU of Ky. v. McCreary Cty, 607 F.3d 439, 451 (6th Cir. 2010). In deciding whether to entertain an untimely renewed motion for summary judgment, courts typically apply Federal Rule of Civil Procedure 16(b), which prohibits modification of a scheduling order “except upon a showing of good cause and by leave of the district court.” See Neal v. Ellis, No. 17-2331, 2018 U.S. App. LEXIS 23984, at *6-7 (6th Cir. Aug. 23, 2018) (finding that the district court abused its discretion by considering an untimely renewed motion for summary judgment without applying Rule 16's “good cause” standard); Andretti v. Borla Performance Indus., 426 F.3d 824, 830 (6th Cir. 2005); Sadler v. Advanced Bionics, LLC, No. 3:11-cv-450-H, 2013 U.S. Dist. LEXIS 36797, at *1-2 (W.D. Ky. Mar. 18, 2013); Hatchett v. Potluck Enters., Inc., No. 3:09-cv-680, 2010 WL 4822431, at *3 (M.D. Tenn. Nov. 19, 2010); In re Northwest Airlines Corp. Antitrust Litig., No. 96-cv-74711, 2005 WL 1981304, at *1 (E.D. Mich. Aug. 8, 2005). “‘The primary measure of Rule 16's “good cause” standard is the moving party's diligence in attempting to meet the case management order's requirements.'” Andretti, 426 F.3d at 830 (quoting Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)). In addition, the Court considers whether allowing a late motion for summary judgment would prejudice the opposing party. Id.

         Here, Defendant Smith has not demonstrated “good cause” sufficient to modify the Court's Scheduling Order. First and foremost, Smith has not shown diligence in attempting to meet the dispositive-motion deadline set forth in the Scheduling Order. As mentioned, Defendant's Motion comes over eleven months after dispositive motions were due. See Kay v. United of Omaha Life Ins. Co., 709 Fed.Appx. 320, 326-27 (6th Cir. 2017) (finding a seven-month delay in filing a renewed motion for summary judgment to be excessive). Furthermore, despite admitting that Plaintiff's summary-judgment Response put him on notice of the individual-capacity claim against him, Smith chose not to file a reply memorandum addressing that claim and never sought an extension of time on that basis.[2] Smith's decision to wait until after an adverse decision on the merits to file his renewed motion for summary judgment suggests that he has not acted in good faith. See Neal, 2018 U.S. App. LEXIS 23984, at *10-11 (finding evidence of bad faith on the part of the movant to factor against a finding of good cause under Rule 16). Finally, allowing another round of summary-judgment briefing would further push back the start of trial, thus causing undue delay and prejudice to the Plaintiff. See Neal, 2018 U.S. App. LEXIS 23984, at *9; Kay, 709 Fed.Appx. at 327. Thus, the Court declines to consider Smith's renewed motion for summary judgment and Plaintiff's Motion to Strike is granted.[3]

         C. Plaintiff's Motion for Default Judgment

         Shortly after Defendant Smith filed his Motion to Alter Judgment, Horn moved for default judgment against Defendant Smith on the basis that Smith never filed an answer to the Second Amended Complaint. (Doc. # 326 at 3). Plaintiff cites to Federal Rule of Civil Procedure 8(b)(6), which states that “[a]n allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied.” According to Plaintiff, “Defendant Smith was required to file a responsive pleading to Plaintiff's Second Amended Complaint” and therefore “all allegations in the Second Amended Complaint are thereby deemed admitted.” (Doc. # 326 at 3). Plaintiff's argument is clever, but ultimately unpersuasive.

         First, as Plaintiff acknowledges, Defendant Smith waived service of the Second Amended Complaint. (Doc. # 273). As the waiver was sent to Smith on September 18, 2017, see id., he would have had sixty days-or until November 17, 2017, to file his answer. See Fed. R. Civ. P. 4(d)(3). Rather than file an answer, however, Defendant Smith moved for summary judgment on October 5, 2017. (Doc. # 281). Under Federal Rule of Civil Procedure 56(b), “a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” (emphasis added). Thus, “It is clear that no answer need be filed before a defendant may move for summary judgment.” Invst Fin. Grp. v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th Cir. 1987). Accordingly, as Smith moved for summary judgment within the deadline for filing an answer, he has not “failed to plead or otherwise defend” the action and default judgment is inappropriate. Fed.R.Civ.P. 55(a).

         Second, while Smith did not answer the Second Amended Complaint, it is undisputed that he filed an answer to the substantively-identical First Amended Complaint. (Doc. # 107). Plaintiff points to no authority supporting an entry of default in this situation. Moreover, there are numerous examples of courts excusing a defendant's failure to answer an amended complaint when the defendant answered a substantially similar earlier complaint and continued to actively litigate the case. See, e.g., Nat'l Sec. Fire & Cas. Ins. Co. v. Townsend, No. 4:17-cv-64-DMB-JMV, 2018 WL 4481872, at *2 n.1 (N.D. Miss. Sept. 17, 2018); United States v. Bangalan, No. 13-cv-2570-H (JMA), 2014 U.S. Dist. LEXIS 192218, at *2 n.1 (N.D. Cal. Oct. 6, 2014); Wilson v. Brown, No. 04-3637 (JAP), 2007 WL 1035026, at *1 n.1 (D.N.J. Apr. 3, 2007). Despite not answering the Second Amended Complaint, Defendant Smith has been actively engaged in this litigation and the Court finds that Plaintiff has not suffered any ...


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