United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
BOOM, DISTRICT JUDGE
matter is before the Court on related motions. Defendants
Commonwealth of Kentucky (the “Commonwealth”) and
Commissioner Richard Sanders (“Sanders, ”
collectively with Commonwealth, “Defendants”)
have filed a Motion to Dismiss the Commonwealth, the named
and unnamed state official Defendants sued in their official
capacity, and Sanders with prejudice pursuant to Fed.R.Civ.P.
12(b)(6). [R. 4] Following Defendants' Motion to Dismiss,
Plaintiff Dale Ike (“Ike”) moved to amend his
Complaint pursuant to Fed.R.Civ.P. 15(a)(2) and to
voluntarily dismiss Sanders from this action without
prejudice pursuant to Fed.R.Civ.P. 41(a)(2) (“Motion to
Amend and to Dismiss Sanders”). [R. 6] Ike also filed a
Response to Defendants' Motion to Dismiss. [R. 7]
Defendants filed a Reply to their Motion to Dismiss and filed
a Response in opposition to Ike's Motion to Amend and to
Dismiss Sanders. [R. 8; R. 9] Ike filed a Reply in support of
his Motion to Amend and Motion to Dismiss Sanders. [R. 10]
These matters being fully briefed are now ripe for review.
For the reasons stated herein, the Court will GRANT
Defendants' Motion to Dismiss as to the Commonwealth and
to the named and unnamed state official Defendants to the
extent claims are brought against them in their official
capacity, will REMAND the Defendants' Motion to Dismiss
as to Sanders pending Ike's decision on whether to refile
his Motion to Dismiss this Defendant with or without
prejudice, and will DENY WITHOUT PREJUDICE Plaintiff's
Motion to Amend and to Dismiss Sanders with leave to refile
following Defendants' filing of defense costs associated
with the defense of Defendant Sanders up to the date of entry
of this Memorandum Opinion and Order. Upon review of defense
costs, Plaintiff may refile the Motion to Amend and to
Dismiss Sanders without prejudice with the conditions imposed
herein, or may file a Motion to Dismiss Sanders with
this matter is before the Court on Defendants' Motion to
Dismiss pursuant to Rule 12(b)(6), the Court must presume as
true all of the factual allegations contained in the
Complaint. See Total Benefits Planning Agency, Inc. v.
Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434
(6th Cir. 2008). Accordingly, the following background is
drawn from the Complaint, and the factual allegations are
assumed true for purposes of considering the Defendants'
motion. [R. 1, Compl.]
alleges that on or about August 28, 2017, while driving from
Frankfort, Kentucky to his home in Jeffersonville, Indiana,
he began suffering from an “undiagnosed brain injury
which effected [sic] his memory, reasoning, and motor
skills.” [R. 1, Compl., at ¶ 5, 17] As a result,
Ike “drew the interest” of Kentucky State Police
(“KSP”) Trooper E. Whitworth (“Trooper
Whitworth”), also a named Defendant in this action.
Id. at ¶18. Trooper Whitworth attempted to stop
Ike on I-64, but “[d]ue to Mr. Ike's brain injury
[Ike] was unaware of what was happening and did not pull over
for some time.” Id. at ¶18-19. When he
was pulled over, Ike alleges “Trooper Whitworth and/or
Unknown Troopers and/or Unknown Officers” tazed and
violently assaulted him. Id. at ¶¶ 22-23.
Ike alleges the force used was significantly more than was
reasonable or necessary to gain control of the situation.
Id. at ¶ 24. As a result, Ike has suffered
serious and permanent injury. Id. at ¶ 25.
asserts five (5) causes of action against numerous Defendants
(some unnamed) in this action. Relevant to the
Defendants' Motion to Dismiss here, Ike asserts three
distinct claims against Trooper Whitworth and the Unknown
Troopers and Unknown Officers for which he claims the
Commonwealth is jointly and severally liable. First, he
alleges violations of the Fourth and Eighth Amendments.
Id. at ¶¶ 27-30. Next, Ike asserts state
law claims of general negligence and common law battery
against these same Defendants. Id. at ¶¶
32-24, 41-43. Ike also asserts a negligent hiring, training,
and supervision claim against Sanders. Id.
¶¶ 36-39. Finally, he alleges that “[e]ach
and every Defendants' [sic] treatment of Mr. Ike . . .
exemplifies the tort of outrage.” Id. at
¶ 45. Ike seeks damages for past and future reasonable
medical expenses, past and future physical and mental pain
and suffering experienced, and punitive damages under Ky.
Rev. St. §§ 411.184, 186. Id. at ¶
Commonwealth and Sanders moved to dismiss the Complaint,
asserting complete sovereign immunity to all claims against
the Commonwealth and the named and unnamed state official
Defendants sued in their official capacity. [R. 4] Defendants
also asserted pleading infirmities as to all claims made
against Sanders under the appropriate federal standard.
Id. Before filing a Response, Ike filed a Motion to
Amend his Complaint, removing the claims against Defendant
Sanders (negligent hiring, training, and supervising and
outrage) and moved to dismiss this Defendant from the suit
without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). [R. 6]
The remainder of the proposed Amended Complaint was identical
to the original Complaint. See [R. 6-2, Am. Compl.] Ike then
filed a Response in opposition to the Defendants' Motion
to Dismiss the claims asserted against the Commonwealth,
relying on a Kentucky Indemnification Statute, Ky. Rev. St.
§ 16.185. [R. 7] In their Reply to the Motion to
Dismiss, Defendants maintained that all claims against the
Commonwealth and the named and unnamed state officials sued
in their official capacity should be dismissed on the basis
of sovereign immunity. [R. 8] They also filed a Response in
Opposition to Ike's Motion to Amend and Motion to Dismiss
Sanders, arguing that if Sanders is dismissed, it should be
with prejudice. [R. 9] In the alternative, if Ike's
Motion to Dismiss Sanders is granted without prejudice, as
Ike proposes, Defendants requested that the Court order Ike
to pay the Defendants' attorneys' fees and costs.
Id. Ike filed a Reply urging the Court to grant his
Motion to Dismiss Sanders without prejudice, but if discovery
bears a colorable claim against this Defendant, he be allowed
to refile his claim against Sanders, delaying the payment of
attorney fees and costs until this event. [R. 10]
Court will address the Defendants' 12(b)(6) Motion before
turning to Ike's Motion to Amend and to Dismiss Sanders.
Motion to Dismiss under 12(b)(6)
Standard of Review
12(b)(6) provides for dismissal of an action if the Complaint
fails to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). The moving party has the burden of
proving that no claim exists. Total Benefits, 552
F.3d at 434. While the Complaint must be liberally construed
in favor of the non-moving party, “it is still
necessary that the Complaint contain more than bare
assertions or legal conclusions.” Id. (citing
In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th
Cir. 1993)) (other citations omitted). Moreover, the Court
need not accept unwarranted factual inferences. Morgan v.
Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.
1987). “To survive a motion to dismiss, a complaint
must contain 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). A claim
is factually plausible if the Complaint contains factual
allegations that “allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. This does not require
a showing that the defendant is probably liable, but
“it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. To meet
this plausibility standard, the Complaint must contain more
than “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
argue that Ike's federal and state law claims against the
Commonwealth should be dismissed as a matter of law. [R. 4-1,
Mem. in Supp., at pp. 4-6] The Commonwealth relies on the
Eleventh Amendment's grant of absolute sovereign immunity
to the Commonwealth and argues that it has never waived this
immunity for any of the federal or state claims in this suit.
Id. Defendants specify that the defense of sovereign
immunity extends not just to the Commonwealth, but also to