Risch v. Kenton County et al

Filing 286

MEMORANDUM OPINION AND ORDER (MINUTE ENTRY FOR MOTION HEARING) held on 4/14/2011 before Judge William O. Bertelsman: 1) Motions to dismiss by Kenton County and So. Health Partners and their employees #239 #241 #251 #263 are GRANTED AS TO PLF'S FEDERAL CLAIMS. Court declines to exercise its supplemental jurisdiction over plf's state law claims pursuant to 28:1367(c)(3) and those claims are DISMISSED WITHOUT PREJUDICE; 2) Motion to dismiss by St. Elizabeth's and its employees #265 is GRANTED; 3) Motion to dismiss for lack of subject matter jurisdiction #264 is DENIED AS MOOT; and 4) Plf's motion to amend #284 is GRANTED. Plf. shall file an amended complaint adding the U.S. as a dft. w/in ten days of entry of this order. (Court Reporter JOAN AVERDICK.). Signed by Judge William O. Bertelsman on 4/15/2011. (KRS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 2009-50 (WOB)
CYNTHIA A. RISCH
VS.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

KENTON COUNTY, ET AL.

DEFENDANTS

This matter is before the court on the motions to dismiss by
defendants (Docs. 239, 241, 251, 263, 264, and 265) and
plaintiff’s motion to amend (Doc. 284).
The court heard oral argument on these motions on Thursday,
April 14, 2011.

Michael O’Hara represented the plaintiff; Stacy

Tapke represented defendants Kenton County and Terry Carl; Louis
Kelly represented the individual deputy defendants; Robert Duncan
represented defendant Southern Health Partners and its employees
named individually; and Cathy Stickels represented St. Elizabeth
Medical Center and its employees named individually.

Official

court reporter Joan Averdick recorded the proceedings.
At this hearing, all parties agreed that the limitations
issue regarding the Kenton County jail and its staff, as well as
Southern Health Partners and its employees, would depend on the
application of the “continuing violation” theory to the facts in
this case.

The court took the matter under submission in order

to review the authorities.

Although some decisions have recognized the application of
the continuing violation doctrine to § 1983 jail treatment
cases1, the decisions from this district and the Court of Appeals
for the Sixth Circuit have not.

See Cuco v. Fed. Med. Ctr.,

Lexington, No. 05-CV-232, 2006 WL 1635668, at *29-*30 (E.D. Ky.
June 9, 2006) (rejecting application of the doctrine on similar
facts), aff’d, 257 F. App’x 897 (6th Cir. 2007).2

Cf. Cole v.

Growse, No. 07-CV-61-KSF, 2008 WL 695355, at *4 (E.D. Ky. Mar.
12, 2008).
This court considers itself bound by the Sixth Circuit
decision in Cuco and agrees with the rationale of the cited
decisions from this district.

Therefore, the County defendants,

including the medical providers at the jail, are entitled to
dismissal.
Next, the motion to dismiss by St. Elizabeth’s and its
employees on statute of limitations grounds must be granted.

It

is undisputed that plaintiff was released from the care of these
defendants on May 17, 2008, but the claims against them were not
filed until November 10, 2009, long past the expiration of the
applicable one-year limitations period.
1

See, e.g., Jervis v. Mitcheff, 258 F. App’x 3, 5-6 (7th
Cir. 2007); Pratts v. Coombe, 59 F. App’x 392, 395 (2d Cir.
2003); Heard v. Sheahan, 253 F.3d 316, 320 (7th Cir. 2001);
Ellis v. Vadlamudi, 568 F. Supp.2d 778, 785 (E.D. Mich. 2008).
2

The Sixth Circuit affirmed summarily based on the extensive
opinion by Judge Karl Forester.
2

Finally, the court will grant plaintiff’s motion to add the
United States as a defendant so that she may pursue claims
against the health care provider which was the predecessor to
Southern Health Partners, which has been determined to be in
effect an agency of the United States.

Therefore, having heard the parties, and the court being
otherwise sufficiently advised,
IT IS ORDERED that:
(1) The motions to dismiss by Kenton County and Southern
Health Partners and their employees (Docs. 239, 241, 251, 263)
be, and are hereby, GRANTED AS TO PLAINTIFF’S FEDERAL CLAIMS.
The court declines to exercise its supplemental jurisdiction over
plaintiff’s state law claims pursuant to 28 U.S.C. § 1367(c)(3),
and those claims are DISMISSED WITHOUT PREJUDICE.;
(2) The motion to dismiss by St. Elizabeth’s and its
employees (Doc. 265) be, and is hereby, GRANTED;
(3) The motion to dismiss for lack of subject matter
jurisdiction (Doc. 264) be, and is hereby, DENIED AS MOOT; and
(4) Plaintiff’s motion to amend (Doc. 284) be, and is
hereby, GRANTED.

Plaintiff shall file an amended complaint

adding the United States as a defendant within ten (10) days of
entry of this order.

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This 15th day of April, 2011.

TIC: 50 min.

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