Walling et al v. City of Newport et al
MEMORANDUM OPINION AND ORDER/MINUTE ENTRY ORDER FOR ORAL ARGUMENT HEARING held on 9/4/2015 before Judge William O. Bertelsman: Parties present as noted. <Lb>IT IS ORDERED: 1) Defs' Motion for Summary Judgment 32 , is granted i n part and denied in part. Defs Newport Police Department, Lt. Ripberger, and Officer Markebury are dismissed as parties in this action; 2) Plf's claim against the City of Newport pursuant to Title II of the ADA, and only that claim, remains before the Court; and 3) The parties shal promptly contact the assigned U.S. Magistrate Judge to schedule a settlement conference. (Court Reporter JOAN AVERDICK.) Signed by Judge William O. Bertelsman on 9/9/2015. (ECO)cc: COR
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:14-cv-43 (WOB-JGW)
CITY OF NEWPORT, ET AL.
MEMORANDUM OPINION AND ORDER
This is a civil-rights action filed pursuant to 42 U.S.C. § 1983
and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 1210112213.
Plaintiff Connie Walling alleges that members of the Newport
Police Department (“NPD”) discriminated against her on the basis of
her disability and violated her Fourth Amendment right to be free from
excessive force during an encounter at the private peer-support group
PIER (Personal Involvement Empowering Recovery) on July 9, 2013.
This matter is before the Court on Defendants’ motion for summary
The Court heard oral argument on this motion on
Friday, September 4, 2015.
Jay T. Bosken represented Plaintiff Connie
Walling, and Jennifer Langen represented Defendants.
Also present was
The Court now issues the following Memorandum Opinion and Order.
For the reasons stated herein, the Court will grant Defendants’ motion
for summary judgment in part and deny it in part.
Walling’s and Russell’s Medical Conditions
Plaintiff suffers from a mental disability, dissociative identity
disorder, and becomes very anxious around large groups of people.
Doc. 36, at 14; Doc. 43, at ¶ 3.
nine different personalities.
She testified that she has at least
Two of Plaintiff’s personalities,
“Amanda” and “Andrea,” have homicidal tendencies, and “Amanda” has
suicidal tendencies as well.
Plaintiff also has a physical disability.
Her left arm is in a
fixed position in front of her, and “it is very painful” when moved
Doc. 43, at ¶ 4.
Additionally, Plaintiff “customarily
wear[s] a neck brace” and alleges that she was wearing a neck brace on
the day of the incident with NPD.
Id. ¶ 5.
Plaintiff testified that Kevin has personality disorder,
schizophrenia, bipolar disorder, and ADHD.
Doc. 36, at 6.
Walling’s and Russell’s Participation at PIER
PIER is a “peer driven recovery center” in Newport, Kentucky.
depression, alcoholism, and substance abuse -- but not any medical
The parties largely agree on the undisputed facts for the purposes of
Defendants’ summary-judgment motion.
Defendants’ motion presents the facts
in an evenhanded manner, drawing inferences in Plaintiff’s favor, Doc. 32,
at 3-7, and Plaintiff “concur[red]” in Defendants’ statement with some
additions, Doc. 41, at 2-4.
Some PIER volunteers form closer relationships
with their clients and take on the “self-appointed” role of “advocate”
for that client.
Id. at 3-4.
Walling began going to PIER for support for her son early in
See id. at 17; Doc. 33, at 3.
When Kevin was in crisis, she
would drive him to PIER to see his personal advocate, Chad Ponchot.
Doc. 33, at 3-4.
Eventually, Walling developed a relationship with
another PIER volunteer, Louis Wolff, and Wolff became her personal
Doc. 35, at 6.
The Events of July 9, 2013
On the morning of July 9, 2013, Russell had been yelling and
screaming and had punched a hole in the wall of Plaintiff’s home.
Doc. 36, at 16.
Plaintiff testified that when her son behaves this
personalities to surface.
Plaintiff called PIER, explained what
was happening with Russell, and then drove him to PIER so that his
advocate, Ponchot, could calm him.
Russell testified that Plaintiff “was not herself on the way
down” to PIER.
Doc. 34, at 5.
who is a child, emerged.
Another of her personalities, “Marie,”
Russell further testified that he was
scared because “Marie” does not know how to drive a car.
Russell also testified that Plaintiff was “very frantic because
she was -- she was becoming herself and then becoming somebody else
interchangeably” when they arrived at PIER.
After their arrival,
Plaintiff sat down next to the door while her son went to speak to
Russell explained the situation, and Ponchot stated
that, if her condition worsened, PIER “would have to call someone to
violent or anything; it’s just that it was too much for [Ponchot] to
Plaintiff testified that she was trying to talk to Ponchot, but
Doc. 36, at 16.
She was trying to communicate verbally with Ponchot
but did not feel like he could hear her, so she started to bang her
hand on a nearby table.
the Fire Department arrived.
Plaintiff testified that at this point
The addition of these people to the
room -- Plaintiff testified that there were approximately fifteen or
significantly increased her anxiety.
As to this conversation, Ponchot testified:
I probably talked to her for about 40 minutes. I’m trained
in mental health first aid, so I’m in the process of doing
an assessment to determine whether or not I think she is
suicidal or able to harm someone else. And then I give her
a moment to talk, so I can listen and see, you know, where
she’s going with things, if they’re rational, if they’re
And then as the conversation went, the more
she talked, the more she was being interrupted.
be like a brief silence or a quick turn and you would know
that she had changed persons.
Now, at that time, I was
very versed on who her multiple personalities were.
this time, I couldn’t call them by name.
But she has one
that is homicidal and suicidal. And when that one surfaced
-- always trying to err to the side of safety -- we had her
But because that one had surfaced, we
decided to go ahead and we really went across the street to
the paramedics and just said, hey, can you come and take a
look at this person, you know.
Doc. 33, at 5.
approximately forty-five minutes thereafter by three police officers.
Doc. 36, at 18, 20.
Plaintiff had a conversation with the EMTs,
during which the EMTs attempted to convince her to go to the hospital.
Id. at 19.
Walling was willing to go to the hospital, but she did not
want to be transported in an ambulance due to the expense.
Plaintiff also stated that she made physical movements -- such as
showing the EMTs her inner arms -- to indicate that she did not intend
to harm herself.
Id. at 20.
When the police arrived, they entered the front room of PIER.
Id. at 23.
Plaintiff testified that Officer Marksbury had his hand on
his stun gun when he entered, and she told him that he could not use
it on her because it would kill her -- Plaintiff has a steel rod in
Officer Marksbury responded that he had no intention
of using the stun gun and removed his hand from it.
then asked the police officers if they would leave the room, and they
complied with her request.
The police offers
Plaintiff agreed to take her anti-anxiety medications (Baclofen and
Valium) an hour earlier than scheduled in order to help calm her.
Id. at 24.
For approximately fifteen to twenty minutes, all parties
waited for Plaintiff’s medication to start working.
Id. at 24-25.
the end of that time, Plaintiff had to go to the restroom.
Id. at 24.
The police, EMTs, and PIER staff allowed her to enter the restroom
alone and lock the door.
When Plaintiff exited the bathroom, she testified that she was
“tackled like a linebacker” from behind by a police officer.
Plaintiff, her son, and Wolff all filed affidavits stating that they
heard a police officer say, “Take the nut down,” before Walling was
Doc. 43, at ¶ 27; Doc. 44, at ¶ 25; Doc. 44, at ¶ 26.
Plaintiff also stated that Officer Marksbury was by the back door and
in her line of sight during this time, so -- according to Plaintiff -he was not the officer who tackled her.
Doc. 36, at 25-26.
Plaintiff testified that, after she was tackled, she struggled
with the police officer who was trying to handcuff her.
Id. at 26.
The officer wrenched her left arm -- the one in a fixed position -behind her, and “just popped it.”
Plaintiff was able initially
to get her left arm free of the handcuffs, and tried to tell the
Plaintiff, the police officer did not listen, said, “Oh, I’ll get you
this time,” and then wrenched her arm behind her again in order to
securing her in handcuffs, the police officer pushed her face forward
into the ground and twisted it such that her cheek was against the
floor, causing her neck to “pop” as well.
Id. at 28.
She testified that she scooted on the floor towards Officer
Marksbury, but did not get close enough to kick or strike him.
transferred her to a gurney and replaced the handcuffs with softer
seventy-two hour psychiatric hold.
See id. at 30.
Plaintiff pled claims against Defendants for discrimination on
the basis of her known disability, citing 42 U.S.C. § 12188.
§ 12188 is a part of Title III of the ADA and applies only to private
entities that own, lease, or operate a place of public accommodation.
Id. § 12182(a).
There is no evidence in the record that any Defendant
But, although it remains an open question in the Sixth Circuit,
Title II of the ADA arguably applies to police officers who seize an
individual with a disability recognized by the ADA.
See Tucker v.
Tennessee, 539 F.3d 526, 534-36 (6th Cir. 2008) (addressing whether
Plaintiffs had made out a case of intentional discrimination on the
Everson v. Lies, 412 F. App’x 771, 774-75 (6th Cir. 2011) (relying on
Tucker to hold that Plaintiff had not adduced sufficient evidence of
intentional discrimination without deciding whether Title II applies
Because the Court finds that the evidence, when viewed
in the light most favorable to Plaintiff, establishes that there is a
genuine dispute of material fact as to whether a member (or members)
of NPD discriminated against Plaintiff on the basis of her disability,
the Court will construe her disability claims as arising under Title
II of the ADA.
In order to state a claim under Title II of the ADA based on the
use of force at issue, Walling must show that she “was intentionally
discriminated against solely because of . . . her disability in the
[accommodations] that were as effective as those provided to nondisabled persons.”
Tucker, 539 F.3d at 535 (citing Bircoli v. Miami-
Dade Cnty., 480 F.3d 1072, 1085 (11th Cir. 2007); Dillery v. City of
Sandusky, 398 F.3d 562, 567-68 (6th Cir. 2005)).
Claim against City of Newport
Because the ADA imposes liability on employers and “any agent” of
a covered employer, 42 U.S.C. § 12111(5)(A), the City of Newport is
vicariously liable under Title II of the ADA for the actions of its
See Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574-75
(5th Cir. 2002);
(9th Cir. 2001); Rosen v. Montgomery Cnty., 121 F.3d 154, 157 n.3
(7th Cir. 1996).
The City is therefore liable to Plaintiff if any of
its employees violated Walling’s rights under the ADA.
Viewing the facts in the light most favorable to Plaintiff, the
conclude that a member (or members) of NPD intentionally discriminated
Plaintiff, her son, and Wolff filed affidavits stating that they heard
Doc. 43, at ¶ 27; Doc. 44, at ¶ 25; Doc. 44, at ¶ 26.
Doc. 47, at 1 n.1.
There thus exists a jury
question as to whether the City of Newport intentionally discriminated
against Plaintiff on the basis of her mental-health disability.
A reasonable jury could also conclude that a member (or members)
of NPD intentionally discriminated against Plaintiff on the basis of
her physical disability.
Plaintiff’s description of being tackled by
an officer who forcibly pulled her left arm -- obviously in a fixed
position in front of her body -- behind her twice, causing Plaintiff’s
shoulder to pop, and who pushed her face into the ground after she was
Doc. 36, at 26-28.
There thus likewise exists a jury question as to
Plaintiff on the basis of her physical disability.
judgment as to Plaintiff’s ADA claim against the City of Newport.
Claims against Other Defendants
Department, Lt. Ripberger, and Officer Marksbury.
These parties are
not proper defendants in an action under the ADA.
Sullivan v. River
Valley Sch. Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1999) (reasoning
that an ADA claim against a government official in his individual
capacity must be dismissed); Matthews v. Jones, 35 F.3d 1046, 1049
municipal police department is not an entity capable of being sued).
Section 1983 Claims
Claim against Newport Police Department
The Court grants summary judgment to Defendant Newport Police
Department on Plaintiff’s § 1983 claim, because it is not an entity
capable of being sued under § 1983.
Matthews, 35 F.3d at 1049.
Claim against Lt. Ripberger
The Court grants summary judgment to Defendant Lt. Ripberger on
Plaintiff’s § 1983 claim, because Plaintiff does not contest that
Lt. Ripberger was not present at PIER on July 9, 2013.
Doc. 41, at 9
(“The Plaintiff concurs with [Defendants] that Lt. Ripberger was not
present . . . .”).
Claim against Officer Marksbury
The Court grants summary judgment to Defendant Officer Marksbury,
Officer Marksbury “never got close to [her]” and that he did not
Doc. 36, at 25-26, 28, 30.
Plaintiff argues that Officer Marksbury is liable under § 1983
for failing to intervene to stop a violation of Plaintiff’s Fourth
Doc. 41, at 8 (citing Bruner v. Dunaway, 684 F.2d
422, 425-27 (6th Cir. 1982)).
But Plaintiff does not cite evidence in
Marksbury had an opportunity to intervene and chose not to do so.
Claim against the City of Newport
Plaintiff asserted a § 1983 claim against the City of Newport for
failure to train its officers, primarily relying on City of Canton v.
Harris, 489 U.S. 378 (1989).
A § 1983 failure-to-train claim requires
a plaintiff “to prove ‘three distinct facts’: ‘that a training program
is inadequate to the tasks that the officers must perform; that the
inadequacy is the result of the city’s deliberate indifference; and
that the inadequacy is ‘closely related to’ or ‘actually caused’ the
Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013)
(quoting Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989)).
Plaintiff has not adduced any evidence related to the City of
Newport’s training of its police officers.
She therefore cannot show
that its training program is inadequate, that the program’s inadequacy
is due to the City of Newport’s deliberate indifference, or that the
inadequacy caused her injuries.
The Court accordingly grants summary
judgment to the City of Newport on Plaintiff’s § 1983 claim.
Claim under KRS § 15.520
The Court grants summary judgment to Defendants on Plaintiff’s
That statute does not grant any rights to private citizens.
Rather, the law sets out the procedures that police departments must
citizens or other law enforcement officials file complaints against
Ky. Rev. Stat. Ann. § 15.520(4)-(8).
For the foregoing reasons, the Court grants in part and denies in
part Defendants’ motion for summary judgment.
Having heard from the parties, and the Court being advised,
IT IS ORDERED THAT:
Defendants’ motion for summary judgment, Doc. 32, be, and
is hereby, granted in part and denied in part.
Police Department, Lt. Ripberger, and Officer Marksbury are hereby
dismissed as parties in this action;
Plaintiff’s claim against the City of Newport pursuant to
Title II of the ADA, and only that claim, remains before the Court;
The parties shall promptly contact the assigned United
States Magistrate Judge to schedule a settlement conference.
This 9th day of September, 2015.
TIC: 20 min.
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