COMPLAINT
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
CIVIL ACTION NO.: 1:21-cv-48-GNS
REBECCA ENGLAND
PLAINTIFF
VS.
DEPUTY KENNY PERKINS, ET AL.
DEFENDANTS
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Plaintiff hereby submits the following Brief in Opposition to Defendants’ Motion to Dismiss Plaintiff’s Complaint. For the reasons set forth below, Plaintiff requests that this Court deny the Motion to Dismiss in its entirety.
INTRODUCTION
Plaintiff filed her Complaint and Summons electrically on or about March 19, 2021. (Exhibit A). In the Complaint, Plaintiff alleged, inter alia, that excessive force was used against her in violation of 42 U.S.C. § 1983; intentional torts; unlawful search and seizure; and cruel and unusual treatment.
On or about June 2, 2021, Defendants filed a Motion to Dismiss Plaintiff’s Complaint, and its Memorandum of Points and Authorities thereof. (Exhibit B). Defendants made the following allegations in their response:
- That Defendants are entitled to the protection of Sovereign Immunity based on their official capacities;
- That Russell County cannot be liable as alleged by Plaintiff unless Plaintiff establishes that her damages were the direct result of an unconstitutional policy or custom;
- That some of Plaintiff’s claims are time barred;
- That Plaintiff failed to state a claim upon which relief can be granted, for Plaintiff’s claim of unreasonable search and seizure;
- That Plaintiff failed to state a claim upon which relief can be granted, for Plaintiff’s claim of intentional infliction of emotional distress;
- That Punitive damages are not recoverable against Defendants in their official capacities; and
- That Plaintiff is not entitled to Declaratory Relief.
LEGAL ARGUMENT
- STANDARD OF REVIEW
In determining whether to grant a motion to dismiss, a court must accept all the factual allegations in the complaint as true and consider all reasonable inferences derived therefrom in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994).
Generally, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996). The plaintiff must provide the grounds for his or her entitlement to relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S.544, 555 (2007). A plaintiff satisfies this standard only when he or she “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
- DEFENDANTS ARE NOT ENTITLED TO SOVEREIGN IMMUNITY
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. This means that each of the states possesses certain immunities from suit that “flow[] from the nature of sovereignty itself as well as the Tenth and Eleventh Amendments.” Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (en banc). It follows; under the Eleventh Amendment, states and state agencies or departments have sovereign immunity from suit in federal court. Boler v. Earley, 865 F.3d 391, 409-10 (6th Cir. 2017) (citing Ernst, 427 F.3d at 358 (en banc) and Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). However, “political subdivisions, such as counties and cities, are not entitled to Eleventh Amendment immunity.” Ernst, 427 F.3d at 355. (Emphasis added).
Consequently, a state may not be sued for money damages in federal court by a private individual, subject to a few exceptions. Id. at 358-59; see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996) (“For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States ‘was not contemplated by the Constitution when establishing the judicial power of the United States.'” (quoting Hans v. Louisiana, 134 U.S. 1, 15 (1890)); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Sovereign immunity extends not only to a state itself but to “arms of the state,” such as certain state agencies. Ernst, 427 F.3d at 358 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). Sovereign immunity does not, however, extend to mere “political subdivisions” of the state such as counties and municipal corporations. Id. at 358.
In the instant action, Defendants claim that they are entitled to protection from the instant suit under sovereign Immunity. However, there are exceptions to the sovereign immunity claims of the state and its agencies. One of these exceptions is that sovereign immunity does not extend to municipalities. It follows; Defendants’ claim of sovereign immunity fails.
- THE MONELL BAR DOES NOT APPLY TO PLAINTIFF’S CASE
It is well settled that a municipality cannot be held liable under § 1983for an injury caused by its agents or employees based on a theory of respondeat superior. Monell v. New York City Dept. of Social Servs.,, 436 U.S. 658, 691 (1978). However, the U.S. Supreme Court has held that local government body may be liable under 42 U.S.C. § 1983 when the individual actor who caused the constitutional violation was a “final policy maker” for the body. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Also, the local government body may also be liable if they failed to properly train the employees and that failure in training caused the constitutional violation. See Jackson v. Hawe, 388 F.3d 676, 686 (9th Cir. 2004).
The grounds for liability of municipalities were also stated in D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir.2014), where the Court stated thus: “A plaintiff may invoke a … claim for Monell liability by alleging “… (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance [of] or acquiescence [to] federal rights violations.” (alterations in original) (quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.2013) ).
Plaintiff contends that Defendants are liable based on the exceptions to the Monell bar. Notably, Defendant Sheriff Derek Polston was a “final policy maker” for the County. Also, it is evident from the Defendants’ conduct that the County failed to conduct proper training on the protection of individuals’ constitutional rights. Lastly, the mere fact that the Defendants committee the acts alleged in the Complaint prove that the County tolerated the said actions and did not put strict measures in place to address the situation.
- PLAINTIFF’S CLAIMS ON INCIDENCE I AND II ARE NOT TIME BARRED
Although Defendants correctly identify the Kentucky State statute of limitations applicable to 42 USC § 1983 causes of action (KRS 413.140(a)), the Defendants cannot rely on the said statute, as the State is not a “person” for purposes of that statute. Notably, on the definition of a state, KRS 413.140(a) refers to Kentucky Statutes 446.010, which defines a person as: “’Person’ may extend and be applied to bodies-politic and corporate, societies, communities, the public generally, individuals, partnerships, joint stock companies, and limited liability companies;”.
Defendants claim that Plaintiff’s claims on incidence I and II are subject to the one year time limitation under Kentucky personal injury claims statute. However, Defendants erroneously rely on the statute because it does not identify the County as a person for the purpose of satisfying a 42 USC § 1983 claim. In that regard, the one year limitation time does not apply to Plaintiff.
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- PLAINTIFF STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED, FOR PLAINTIFF’S CLAIM OF UNREASONABLE SEARCH AND SEIZURE AND FOR HER INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS
“[T]rial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975).
A “civil complaint only survives a motion to dismiss if it ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629-30 (6th Cir. 2009) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 678 (2009).
In considering motion to dismiss, the court must determine whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
To survive a motion to dismiss, the plaintiff’s complaint must set forth more than “a formulaic recitation of the elements” of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Defendants allege that Plaintiff did not state a claim upon which relief can be granted, for her allegations of unreasonable search and seizure; and infliction of emotional distress. On the contrary, Plaintiff contends that her complaint sufficiently alleges how the Defendants entered her house without probable cause and arrested her, only for the case to be dismissed and no indictment charged on Plaintiff. Also, on the first incidence, Plaintiff alleges how the Defendants conducted a search and seizure without probable cause when they stopped Plaintiff’s vehicle and arrested Plaintiff for driving under the influence of alcohol though Plaintiff was only a passenger.
- PUNITIVE DAMAGES ARE RECOVERABLE AGAINST DEFENDANTS
Punitive damages may be awarded in a § 1983 action “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005) (quoting Smith v. Wade, 461 U.S. 30, 56 (1986)).
The law is settled that a plaintiff may not recover punitive damages against a municipality under § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270-71 (1981). However, a plaintiff may be able to recover punitive damages against a municipality official in his individual capacity, because a suit against a sheriff in his individual capacity is not treated as a claim against the municipality. See Smith v. Wade, 461 U.S. 30 (1983); Gaines v. Choctaw County Comm’n, 242 F. Supp. 3d 1153 (S.D. Ala. 2003); Scheideman v. Shawnee County Bd. of County Commr’s, 895 F. Supp. 279, 283 (D. Kan. 1995).
Defendants contend that they are not entitled to Punitive damages because Plaintiff sues them in their official capacities. However, it is worth noting that Plaintiff has not specifically limited his suit to the Defendants’ official capacities. Notably, Plaintiff has not expressly stated in her Complaint that she sues Defendants solely in their official capacities. It follows; Defendants erroneously conclude that Plaintiff only sues them in their official capacities.
- THAT PLAINTIFF IS NOT ENTITLED TO DECLARATORY RELIEF.
“[A] federal court can issue prospective injunctive and declaratory relief compelling a state official to comply with federal law . . . [because] it is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.” S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507-08 (6th Cir. 2008).
“Plaintiffs seeking injunctive or declaratory relief must show ‘actual present harm or a significant possibility of future harm.” Vaduva v. City of Xenia, 2019 WL 3714790, at *6 (6th Cir. Aug. 7, 2019) (quoting Grendell v. Ohio Supreme Ct., 252 F.3d 828, 833 (6th Cir. 2001)). “[P]rospective relief aims to directly bring an end to a present violation of federal law by dictating an official’s future conduct.” Derezic v. Ohio Dep’t of Educ., No. 2:14-cv-51, 2014 WL 4206580, at *5 (S.D. Ohio Aug. 25, 2014).
Defendants aver that they are not entitled to a declaratory relief alleging that Plaintiff’s claim fails to state a just cause for the relief sought. Plaintiff contends that the declaratory relief should be awarded because Defendants are prone to continue their actions. Notably, the fact that Defendants committed the alleged acts more than one time is enough reason for this honorable court to grant declaratory relief to prevent prospective violation of Plaintiff’s rights in the future.
WHEREFORE, Plaintiff respectfully request that Defendants’ Motion to Dismiss be denied. Also, Plaintiff prays for any further Order that the Court deems just.
Respectfully Submitted,
CERTIFICATE OF SERVICE
This certifies that I have this day filed the within and foregoing Plaintiff’s Response to Defendants’ Motion to Dismiss electronically using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record through the Court’s electronic filing system.
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