Deskins v. Crouch et al

Filing 16

ORDER: 1. The Magistrate Judge's Report and Recommendation [R. 15] as to Lesley Deskins is ADOPTED as and for the opinion of this Court; 2. The Defendants' unopposed Motion for Summary Judgment [R. 11] is GRANTED; 3. The Plaintiff's action is DISMISSED in its entirety with prejudice; and 4. JUDGMENT in favor of the Defendants will be entered contemporaneously herewith, and this matter will be STRICKEN from the Court's active docket. Signed by Judge Gregory F. VanTatenhove on 8/7/2017.(AKR)cc: COR, paper copy to plaintiff via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
LESLEY DESKINS,
Plaintiff,
v.
CLAY CROUCH and
LAWRENCEBURG POLICE DEPT.,
Defendants.

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No. 3:16-CV-83-GFVT-HAI
ORDER

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This matter is before the Court pending review of the Recommended Disposition
(“R&R”) of United States Magistrate Judge Hanly A. Ingram. [R. 15.] Pro se Plaintiff Lesley
Deskins filed the instant civil rights action alleging the following federal claims: (1) False Arrest
(against Officer Crouch); (2) Violation of the Right to Bear Arms (against Officer Crouch); (3)
Malicious Prosecution (against Officer Crouch); (4) Failure to Train (against the Lawrenceburg
Police Department); and (5) Failure to Supervise (against the LPD) – and the following state
claims: (6) False Arrest (against Officer Crouch); (7) Violation of the Right to Bear Arms
(against Officer Crouch); (8) Malicious Prosecution (against Officer Crouch); (9) Tort of
Outrage (against Officer Crouch); (10) Negligent Training (against the LPD); and (11) Negligent
Supervision (against the LPD).1 Deskins’s case was referred to United States Magistrate Judge
Hanly A. Ingram for the purpose of conducting further proceedings, including preparing

As Deskins, proceeding pro se, does not name each specific claim in her complaint, the Court
will utilize the list of Plaintiff’s claims as interpreted liberally by Defendants and identified in
Defendants’ motion for summary judgment. [R. 11 at 4-5.]
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proposed findings of fact and recommendations on any dispositive motions. [R. 5.] The
Defendants have filed a joint motion for summary judgment, arguing they are entitled to
judgment as a matter of law on each respective claim by the Plaintiff. Deskins has not made any
filings nor had any contact with the Court since the case was removed, and failed to respond to
Defendants’ motion for summary judgment [R. 11], despite a court order which warned Deskins
that failure to respond “may result in granting the motion and entry of judgment in Defendants’
favor.” [R. 12.]
Judge Ingram issued his R&R on June 13, 2017. [R. 15.] Since that time, neither party
has filed any objections to the R&R and the time for doing so has now expired. Generally, this
Court must make a de novo determination of those portions of a recommended disposition to
which objections are made. 28 U.S.C. § 636(b)(1)(c). When no objections are made, however,
this Court is not required to “review … a magistrate’s factual or legal conclusions, under a de
novo or any other standard ….” Thomas v. Arn, 474 U.S. 140, 150 (1985). Parties who fail to
object to a Magistrate’s report and recommendation are also barred from appealing a district
court’s order adopting that report and recommendation. United States v. Walters, 638 F.2d 947
(6th Cir. 1981). Nevertheless, this Court has examined the record, and it agrees with the
Magistrate Judge’s Recommended Disposition.
Judge Ingram’s R&R recommends that the Court grant the Defendants’ motion for
summary judgment because Deskins failed to respond to the summary judgment motion, and
further, because her claims fail on the merits.2 First, to succeed, each of the Plaintiff’s claims

The R&R notes that while “Defendants’ motion for summary judgment can be granted on the
basis that Deskins failed to respond [under Joint Local Civil Rule 7.1(c)]. … [W]hen granting a
motion [that] will dispose of an action, the Court should exercise some caution to at least ensure
that the moving party has met its burden under the Federal Rules.” [R. 15 at 4.]
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require that the arrest that is the basis of the claim, here, the arrest by Officer Crouch, be
unlawful. [See R. 15 at 9.] Judge Ingram finds that, because Officer Crouch lawfully arrested
Deskins based on probable cause, her respective claims against Officer Crouch and the LPD are
defeated. Judge Ingram notes that the existence of probable cause at the time of the arrest is
evidenced by both the uncontradicted affidavits of the Defendants’ and subsequent proceedings
in which, significantly, Deskins was indicted under the probable cause standard by a grand jury
on the first-degree wanton endangerment charge and then convicted by a petit jury beyond a
reasonable doubt of second-degree wanton endangerment. [R. 15 at 7, 9.]
Second, Judge Ingram finds that, as it specifically concerns Deskins’s claims against the
LPD under 42 U.S.C. § 1983, to impose liability against a municipality3, “a plaintiff must allege
that the violation of her constitutional rights was part of a governmental custom, policy,
ordinance, regulation or decision.” See Monell v. Dep’t of Soc. Svcs., 436 U.S. 658, 690 (1978);
Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993), cert. denied, 510 U.S. 1177
(1994). In light of this obligation on the part of the claimant, Deskins’s claims against the LPD
fail for yet another reason, as she has not pointed to any official policy or procedure that led to or
caused the denial or deprivation of one of her constitutional rights. [R. 15 at 5.] Lastly,
concerning Deskins’s claim of continued violation of her right to bear arms, her complaint does
not say why she remains deprived of this right, and Defendants indicate they are “unaware as to
why Ms. Deskins has not been allowed to possess a firearm since her arrest” because she was not
convicted of a felony. [R. 11 at 10 n.33.] As detailed above, Deskins has failed to respond to the
motion for summary judgment, and thus, has not put forward any evidence to dispute or

The Court has chosen to liberally construe the complaint as a suit against the city of
Lawrenceburg, of which the Lawrenceburg Police Department is a department or subdivision.
[R. 15 at 6.]
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challenge the above findings.
The R&R advises the parties that objections must be filed within fourteen (14) days of
service or further appeal is waived. [Id. at 13.] Neither party has filed objections nor sought an
extension of time to do so. Thus, pursuant to 28 U.S.C. § 636(b)(1), and because the Court
agrees with the conclusions on the Magistrate Judge, this Court will adopt the Report and
Recommendation. Accordingly, it is hereby ORDERED as follows:
1. The Magistrate Judge’s Report and Recommendation [R. 15] as to Lesley Deskins is
ADOPTED as and for the opinion of this Court;
2. The Defendants’ unopposed Motion for Summary Judgment [R. 11] is GRANTED;
3. The Plaintiff’s action is DISMISSED in its entirety with prejudice; and
4. JUDGMENT in favor of the Defendants will be entered contemporaneously herewith,
and this matter will be STRICKEN from the Court’s active docket.
This the 7th day of August, 2017.