Tidaback v. Georgetown et al

Filing 10

MEMORANDUM OPINION & ORDER: IT IS ORDERED: (1) Defendant, Georgetown Police Department is DISMISSED as a party; (2) Defendant's 7 MOTION for Judgment on the Pleadings is GRANTED; (3) Plaintiff's claim for malicious prosecution shall be D ISMISSED WITHOUT PREJUDICE; (4) that the remainder of Plaintiffs claims shall be DISMISSED WITH PREJUDICE; (5)that all scheduled proceedings are CONTINUED GENERALLY; (6) that all pending motions are DENIED AS MOOT; (7) that this Order is FINAL AND APPEALABLE and THERE IS NO JUST CAUSE FOR DELAY. Signed by Judge Joseph M. Hood on 3/31/2017.(KM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JAMIE S. TIDABACK,

)
)
Plaintiff,
)
)
)
v.
)
)
)
CITY OF GEORGETOWN,
)
GEORGETOWN POLICE
)
DEPARTMENT, RICHARD
)
WILLIAMS, in his individual )
capacity, and RICHARD
)
WILLIAMS, as an employee of )
the City of Georgetown and
)
Georgetown Police Department,)
)
Defendants.
)
)
**

**

Action No. 5:15-cv-226-JMH

MEMORANDUM OPINION & ORDER

**

**

**

This matter is before the Court on the Motion for Judgment on
the Pleadings filed by Defendants City of Georgetown, Georgetown
Police Department, and Richard Williams in his individual capacity
and as an employee of the City of Georgetown and Georgetown Police
Department [DE 7].

Plaintiff has filed a Response in Opposition

[DE 8] and Defendants have filed a Reply [DE 9].

Thus, this matter

is fully briefed and is ripe for review.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
According to the allegations of the Complaint, on July 2,
2014, Georgetown Police Officer Richard Williams responded to a
call for assistance at 1075 Degaris Mill Rd. #18 in Georgetown,
1

Kentucky [DE 1-1, Complaint at ¶5].

When Officer Williams arrived

at the residence, Plaintiff was on a couch inside the apartment
[Id.].

Although Plaintiff lived in the same apartment complex,

this particular apartment was not her own [Id.].

Officer Williams

told Plaintiff that she had to leave and that he would walk her to
her own residence which was located in apartment #25 in the same
complex [Id.].

After Plaintiff indicated that she did not want to

leave, Officer Williams threatened to arrest her [Id. at ¶6].

At

this time, Plaintiff agreed to walk back to her residence [Id.].
After Plaintiff left the apartment and reached the bottom
stairs,

Officer

intoxication

Williams

[Id.].

While

arrested

Plaintiff

Plaintiff

was

for

handcuffed,

alcohol
Officer

Williams kicked Plaintiff’s feet and legs, causing her to hit the
ground and causing severe pain [Id. at ¶7].

Once Plaintiff was on

the ground, Officer Williams placed his left knee across her back
[Id.].

When Plaintiff begin to question the police action and

complain of pain and injuries, Officer Williams charged her with
resisting arrest and disorderly conduct [Id. at ¶8].
Officer Williams then placed Plaintiff in a police car and
transported her to the Scott County Detention Center [Id. at ¶9].
The Detention Center refused to take her due to her intoxicated
state and directed that she be taken to the Georgetown Community
Hospital for evaluation [Id.].

After the evaluation, Plaintiff

was transported back to the Detention Center by Officer Williams
2

for booking, arriving at the Detention Center on July 3, 2014 at
approximately 1:12 a.m. [Id. at ¶10].

When Officer Williams

reached the sally port, he reached into the car and grabbed
Plaintiff by her hands, which were still handcuffed behind her
back, pulling her hands almost over her head and yanking her
aggressively out of the vehicle [Id.].

Officer Williams refused

assistance from the Detention Center staff when offered [Id.].
Officer Williams then walked Plaintiff inside to the booking
area and, while grasping Plaintiff’s handcuffed hands with one
hand, took his other hand to Plaintiff’s head, slamming her face
into the counter in the booking area and causing physical injuries
to Plaintiff [Id. at ¶11].

The Detention Staff called the Scott

County EMS for treatment of Plaintiff’s injuries [Id. at ¶12].
The EMS team evaluated Plaintiff and advised that she would need
further medical care at the hospital [Id.].

Officer Williams

refused to allow the EMS team to transport Plaintiff back to the
hospital,

but

instead

Hospital himself [Id.].

took

her

back

to

Georgetown

Community

After evaluation, it was determined that

Plaintiff had suffered lacerations to her face, nasal fracture,
and inflamed paranasal sinuses [Id. at ¶13].

Plaintiff then

received appropriate treatment [Id.].
Plaintiff further alleges that, in an attempt to cover up and
conceal these actions, Officer Williams, his supervisors and the
other

Defendants

conspired

and
3

committed

fraud

by

adding

additional felony charges and submitting reports claiming that
Plaintiff’s injuries were the result of an accident caused by her
intoxication [Id. at ¶14].

Plaintiff also alleges that, as a

result of the blow to her head inflicted by Officer Williams, she
“lost all memory temporarily of the events at the jail” [Id. at ¶
16].

She claims that, after being released from the Detention

Center, she began to ask about what happened and how she was
injured

[Id.

at

¶17].

She

further

claims

that

the

police

department withheld and did not make the reports submitted by
Officer Williams describing the events surrounding her arrest
available
criminal

to

her

charges

until
that

after
were

September 2, 2014 [Id.].

her

preliminary

brought

against

hearing

her

on

on

or

the

about

She also alleges that she did not receive

a copy of the jail video tape showing the alleged assault, battery
and civil rights violations and, was therefore unaware of the
actions of Defendants until on or after August 1, 2014 [Id. at ¶
18].
Based on these allegations, on July 9, 2015, Plaintiff filed
her

Complaint

in

Scott

Circuit

Court

alleging

that

Officer

Williams’s actions establish a cause of action for violation of
her

federal

constitutional

rights

under

42

U.S.C.

§1983,

specifically false arrest, false imprisonment, assault, battery,
use of excessive force, fraud, abuse of authority, and malicious
prosecution [Id. at ¶15].

She further alleges that, as Officer
4

Williams’s employer, the City of Georgetown and the Georgetown
Police Department are also liable [Id.].

Plaintiff also alleges

that the City of Georgetown and the Georgetown Police Department
failed to properly train, supervise and/or discipline Officer
Williams

in

the

treatment

and

care

of

individuals

including

Plaintiff, which was and is a proximate and direct cause of her
serious physical injuries, as well as the violation of her rights
[Id. at ¶16].
Defendants filed a Notice of Removal of this action on August
6, 2015 pursuant to 28 U.S.C. §§ 1331 and 1441, as it is a civil
action wherein Plaintiff alleges that her action arises under the
laws of the United States, specifically 42 U.S.C. § 1983 [DE 1].
Defendants have now filed a Motion for Judgment on the Pleadings,
arguing that Plaintiff failed to file this action within one year
from the date nearly all of her causes of action accrued and,
accordingly, these causes of action are barred by the statute of
limitations; Plaintiff’s malicious prosecution claim is not yet
ripe; and Plaintiffs claims for fraud and municipal liability are
insufficiently pled [DE 7].
II. STANDARD OF REVIEW
“After the pleadings are closed[,]...a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). “For purposes
of

a

motion

for

judgment

on

the

pleadings,

all

well-pleaded

material allegations of the pleadings of the opposing party must
5

be taken as true, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.” JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)
(quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 479 F.2d 478, 480 (6th Cir. 1973)).

“A Rule 12(c) motion is

granted when no material issue of fact exists and the party making
the motion is entitled to judgment as a matter of law.” Id. at 582
(quoting Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d
1233, 1235 (6th Cir. 1991))(internal quotation marks omitted).
The standard of review applied to a Motion for Judgment on the
Pleadsings “is the same as that for a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).”

EEOC v. J.H. Routh

Packing Co., 246 F.3d 850, 851 (6th Cir.2001).
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests
the sufficiency of the plaintiff’s complaint.

The Court views the

complaint in the light most favorable to the plaintiff and must
accept as true all well-pleaded factual allegations contained
within it.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“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.’”

Id. (citing Twombly, 550 U.S. at 570).

III. ANALYSIS
A. Dismissal of Georgetown Police Department
6

As an initial matter, Defendants have correctly noted that
the Georgetown Police Department is a city police department and
is,

accordingly,

not

a

legal

entity

capable

of

being

sued.

Hornback v. Lexington-Fayette Urban Co. Gov’t., 905 F.Supp.2d 747,
749 (E.D.Ky. 2012).

Plaintiff did not address this argument in

her response, apparently conceding the issue.

As Plaintiff has

not objected, the Georgetown Police Department shall be dismissed
as a party.
B. Statute of Limitations
Defendants argue that Plaintiff’s § 1983 claims must be
dismissed

because

limitations.

they

were

filed

outside

of

the

statute

of

“The statute of limitations applicable to a § 1983

action is the state statute of limitations applicable to personal
injury actions under the law of the state in which the § 1983 claim
arises.”

Eidson v. State of Tenn. Dept. of Children’s Servs., 510

F.3d 631, 634 (2007) (citing Kuhnle Bros., Inc. v. Cnty. of Geauga,
103 F.3d 516, 519 (6th Cir. 1997)).

In Kentucky, the statute

requires all personal injury actions to be brought within one year
after the cause of action accrues.

KRS § 413.140(1)(a); see also

Bonner v. Perry, 564 F.3d 424, 430—31 (6th Cir. 2009) (holding
that Kentucky’s one year statute of limitations period applies to
§ 1983 actions).
Although the applicable statute of limitations is determined
by state law, the “date on which the statute of limitations begins
7

to run in a § 1983 action is a question of federal law.”

Eidson,

510 F.3d at 635 (citing Kuhnle Bros., Inc., 103 F.3d at 519).
Generally, federal law prescribes that accrual occurs “when the
plaintiff has ‘a complete and present cause of action,’ that is,
when ‘the plaintiff can file suit and obtain relief.’”

Wallace v.

Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry & Dry
Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192,
201 (1997)).
“State law claims for false arrest and false imprisonment,
which constitutes a single cause of action in Kentucky when law
enforcement is involved, as well as assault and battery arising
out of an arrest, generally accrue at the time of the arrest.”
Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007).

“[T]he accrual

date of a § 1983 cause of action is a question of federal law that
is not resolved by reference to state law.”
388 (emphasis in original).

Wallace, 594 U.S. at

Under federal law, accrual occurs

“when the plaintiff has a complete and present cause of action...,
that is, when the plaintiff can file suit and obtain relief.”
(internal citations omitted).

Id.

“A § 1983 claim for excessive force

in effectuating an arrest accrues at the time of arrest,” and “a
claim for wrongful arrest under § 1983 accrues at the time of the
arrest or, at the latest, when detention without legal process
ends.”

Fox, 489 F.3d at 233 (citing Wallace, 127 S.Ct. at 1095-

96)).
8

Applying these rules to this case, the events alleged in the
Complaint begin when Officer Williams responded to the call for
assistance at the apartment complex at approximately 11:15 p.m. on
July 2, 2014 [DE 1-1, Complaint at ¶ 5] and continue into the early
morning hours of July 3, 2014 [Id. at ¶ 10].

Thus, it is not

entirely clear from the allegations whether Plaintiff was actually
arrested on July 2 or July 3, 2014.

Giving Plaintiff the benefit

of the doubt and assuming, for purposes of this motion, that she
was arrested on July 3, 2014, her § 1983 claims for false arrest,
false imprisonment, assault, battery and use of excessive force
all accrued on July 3, 2014.

Plaintiff did not file her Complaint

in the Scott Circuit Court until July 9, 2015 [DE 1-1, Complaint].
Thus, her claims are untimely.
Plaintiff also asserts a claim for “abuse of authority” in
violation of her rights under § 1983.

As noted by Defendants, the

existence of an independent cause of action under § 1983 for abuse
of authority as a constitutional violation is unclear. Regardless,
Plaintiff
Williams

fails
or

any

to

allege

other

any

facts

Defendant

took

suggesting
any

that

action

Officer

that

constitute an “abuse of authority,” after July 3, 2014.

would

Indeed,

all of her § 1983 claims are based on her allegations of the events
occurring on July 2-3, 2014.

Thus, to the extent that this claim

exists, it would also have accrued on July 3, 2014.
this claim is also untimely.
9

Accordingly,

In

an

attempt

to

save

her

claims

from

the

statute

of

limitations bar, Plaintiff argues that she has pled fraud on behalf
of Defendants, in that they conspired to hide their action by
filing false police reports, wrongfully arresting Plaintiff, and
falsely attributing her injuries to her intoxication.

She further

points to her allegation that Defendants continued the fraud upon
her by failing to provide documents to her regarding her arrest
until September 2, 2014 and by failing to provide a copy of the
video tape of her jail visit until August 1, 2014 and argues that
should could not have found out what happened to her until after
August 1, 2014, thus her cause of action did not accrue until after
that date.

She also argues that, because she has alleged fraud,

the five-year limitation period provided by KRS § 413.120(11)
applies, rather than the one-year limitation provided by KRS §
413.140.
However,

Plaintiff’s

Complaint

clearly

alleges

that

the

actions of Officer Williams “constitute...fraud...in violation of
Tidabacks [sic] rights under 42 U.S.C. 1983 and the same is plead
[sic] herein.”

Thus, Plaintiff pled fraud as a § 1983 claim, not

as a separate state law claim. 1

“The Supreme Court, in a series

of cases, has determined that federal courts should ‘borrow and

1

Moreover, as noted by Defendants, to the extent that Plaintiff
argues that she has alleged “fraud” as a separate cause of action,
“fraud” by itself is not a federal cause of action and is instead
subsumed within Plaintiff’s § 1983 claims.
10

apply to all § 1983 claims the one most analogous state statute of
limitations of limitations.’”

Bonner, 564 F.3d at 430 (6th Cir.

2009)(quoting Owens v. Okure, 488 U.S. 235, 240 (1989)). In Owens,
the Supreme Court noted that the Court had previously attempted to
address confusion over the appropriate limitations period for §
1983 claims in Wilson v. Garcia, 471 U.S. 261, (1985), explaining
that “[b]ecause ‘§ 1983 claims are best characterized as personal
injury actions,’ we held that a State’s personal injury statute of
limitations should be applied to all § 1983 claims.”
U.S. at 240-41 (quoting Wilson, 471 U.S. at 280).

Owens, 488
However, the

Court in Owens further clarified that “where state law provides
multiple statutes of limitations for personal injury actions,
courts considering § 1983 claims should borrow the general or
residual statute for personal injury actions.”

Id. at 249-50.

Thus, Kentucky’s one-year limitations period for personal injury
actions

provided

by

KRS

§

413.140(1)(a)

applies

to

all

of

Plaintiff’s § 1983 claims, including her claim for fraud, not the
five-year limitations period provided for fraud claims by KRS §
413.120(11).
Plaintiff also attempts to save her § 1983 claims by referring
to her allegation that “as a result of the blow to her head that
was inflicted by Williams, Tidaback lost all memory temporarily of
the events at the jail” [DE 1-1, Complaint at ¶16].

11

Plaintiff

argues that this memory loss qualifies as a disability for purposes
of KRS § 413.170(1), which provides:
[i]f a person entitled to bring any action mentioned in
KRS 413.090 to 413.160, except for a penalty or
forfeiture, was, at the time the cause of action accrued,
an infant or of unsound mind, the action may be brought
within the same number of years after the removal of the
disability or death of the person, whichever happens
first, allowed to a person without the disability to
bring the action after the right accrued.
KRS § 413.170(1).
Plaintiff is correct that, under Kentucky law, the statute of
limitations for a cause of action for personal injury is tolled if
Plaintiff is “of unsound mind” at the time the cause of action
accrued.

See Powell v. Jacor Communications Corporate, 320 F.3d

599, 603-604 (6th Cir. 2003).

“The term ‘unsound mind’ within the

meaning of KRS 413.170(1) has been interpreted by [the Kentucky
Supreme Court] to mean that the person claiming the disability
must show that he has been rendered incapable of managing his own
affairs.”

Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295,

297 (Ky. Ct. App. 1993)(citing Southeastern Kentucky Baptist Hosp.
v. Gaylor, Ky., 756 S.W.2d 467 (1988)).
However, Plaintiff’s vague allegation of “temporary memory
loss” with respect to the events at the jail do not equal an
allegation of “unsound mind” sufficient to toll the statute of
limitations under KRS § 413.170(1).

Plaintiff does not allege any

specific facts regarding her memory loss, such as the duration and

12

severity of the memory loss.

Nor does she allege any facts to

support a finding that she had been rendered incapable of managing
her own affairs.

Indeed, she specifically alleges that after her

release, she began to inquire about what happened to her and the
source of her injuries, suggesting that she was capable of at least
understanding that she may have a potential cause of action [DE 11, Complaint at ¶17].
In fact, it is only in response to Defendants’ Motion to
Dismiss

does

Plaintiff

first

claim

that

since

the

incident,

Plaintiff has been diagnosed with neurocognitive impairment due to
traumatic brain injury and post-traumatic stress disorder, that
she has an IQ of 75, and that she suffers mild cognitive impairment
and

memory

loss.

Plaintiff

provides

no

further

information

regarding the basis for these assertions, such as details regarding
when Plaintiff was diagnosed and by whom.

Moreover, none of this

information was pled in her Complaint and her effort to raise it
only in response to a statute of limitations argument, and with no
evidentiary support, is questionable at best.
Regardless, this Court must examine Plaintiff’s allegations
as pled in her Complaint, which only vaguely allege temporary
memory loss.

While Fed. R. Civ. P. 8 requires only that a pleading

contain “a short and plain statement of the claim showing that the
pleader

is

complaint

entitled
must

“give

to

relief,”

the

Fed.

defendant
13

R.

fair

Civ.

P.

notice

8(a)(2),

of

what

a

the

plaintiff's claim is and the grounds upon which it rests.”

Carter

v. Ford Motor Co., 561 F.3d 562 (6th Cir.2009)(internal citations
omitted).

Moreover, the factual allegations set forth in the

complaint must “raise a right to relief beyond the speculative
level.” Twombly, 550 U.S. at 555. The Court finds that Plaintiff’s
vague allegation of temporary memory loss is insufficient to
support tolling the limitations period of her § 1983 claims due to
“unsound mind.” Thus, Plaintiff is not entitled to relief pursuant
to KRS § 413.170(1).
For all of these reasons, the Court finds that Plaintiff’s §
1983

claims

for

false

arrest,

false

imprisonment,

assault,

battery, use of excessive force, fraud and abuse of authority are
untimely and, accordingly, will be dismissed.
C. Plaintiff’s Malicious Prosecution Claim
Plaintiff has also alleged a malicious prosecution claim
under § 1983.

The Sixth Circuit Court of Appeals has outlined

four elements that a plaintiff must prove to succeed on a § 1983
malicious prosecution claim:
(1) a criminal prosecution was initiated against the
plaintiff, and the defendant made influenced, or
participated in the decision to prosecute; (2) there was
a lack of probable cause for the criminal prosecution;
(3) the plaintiff suffered a deprivation of liberty, as
understood under Fourth Amendment jurisprudence, apart
from the initial seizure; and (4) the criminal
proceeding was resolved in the plaintiff's favor.

14

Sanders v. Jones, 845 F.3d 721, 728 (6th Cir. 2017), as amended on
denial of reh'g (Mar. 20, 2017)(citing Sykes v. Anderson, 625 F.3d
294, 308-309 (6th Cir. 2010)).
Here, Plaintiff’s criminal case in the Scott Circuit Court is
still pending.

Accordingly, her potential claim for malicious

prosecution is not ripe and will be dismissed without prejudice
pursuant to Fed. R. Civ. P. 12(b)(1) as the Court lacks subject
matter jurisdiction over these claims.

See Norton v. Ashcroft,

298 F.3d 547, 554 (6th Cir.2002)(citing Bigelow v. Michigan Dep't
of Natural Res., 970 F.2d 154, 160 (6th Cir.1992))(“A court lacks
jurisdiction over the subject matter if a claim is not yet ripe
for judicial review.”); Mt. Healthy City Sch. Dist. Bd. of Ed. v.
Doyle, 429 U.S. 274, 278 (1977)(holding that the court has an
independent duty “to inquire sua sponte whenever a doubt arises as
to the existence of federal jurisdiction).
D. Plaintiff’s Fraud Claim
As held above, Plaintiff’s fraud claim is subsumed by her §
1983 claims and, accordingly, is dismissed as untimely.

However,

to the extent that Plaintiff attempts to state a claim for fraud
under Kentucky state law, she fails to plead fraud with sufficient
particularity.

In alleging fraud, Federal Rule of Civil Procedure

9(b) requires a party to state with particularity the circumstances
constituting fraud.

Fed. R. Civ. P. 9(b); see also Bennett v. MIS

Corp., 607 F.3d 1076, 1100 (6th Cir. 2010).
15

To be pled with

particularity, the complaint must “(1) specify the statements that
the plaintiff contends were fraudulent, (2) identify the speaker,
(3) state where and when the statements were made, and (4) explain
why the statements were fraudulent.”

Indiana State Dist. Council

of Laborers and Hod Carriers Pension and Welfare Fund v. Omnicare,
Inc., 583 F.3d 935, 942-43 (6th Cir. 2009)(quotation marks and
citation omitted).

Thus, while the Sixth Circuit reads Rule 9(b)

“liberally” it nevertheless requires that “a plaintiff, at a
minimum...allege the time, place, and content of the alleged
misrepresentation on which he or she relied; the fraudulent scheme;
the fraudulent intent of the defendants; and the injury resulting
from the fraud.” Coffey v. Foamex L.P., 2 F.3d 157, 161-162 (6th
Cir.1993)(emphasis added).
When faced with a motion to dismiss for failure to plead fraud
“with particularity” as required by Rule 9(b) of the Federal Rules
of

Civil

Procedure,

“a

court

must

factor

in

the

policy

of

simplicity in pleading which the drafters of the Federal Rules
codified in Rule 8” of the Federal Rules of Civil Procedure.
Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 679 (6th
Cir. 1988).

Federal Rule of Civil Procedure 8 requires a “short

and plain statement of the claim,” and calls for “simple, concise,
and

direct”

allegations.

Thus,

Rule

9(b)'s

particularity

requirement must be “read in harmony” with Rule 8.

Id.

The

purpose of Rule 9(b)'s particularity requirement is to provide the
16

defendant fair notice of the substance of the plaintiff's claim in
order that the defendant may prepare a responsive pleading.
Here, in support of her fraud claim, Plaintiff alleges that
“[i]n an attempt to cover up and conceal these actions Williams,
his supervisors and the other Defendants conspired and committed
fraud by adding additional felony charges and submitted reports
claiming that [Plaintiff’s] injuries were the result of an accident
caused by her intoxication” [DE 1-1, Complaint at ¶ 14].

These

bare allegations fail to allege the “time, place and manner” of
the purported fraud with particularity.
Plaintiff

alleges

that

Defendants

For example, although

added

“additional”

felony

charges, she fails to identify any felony charges, much less those
that she purports were added fraudulently. Neither does she allege
any facts to establish that these unidentified felony charges were
fraudulent.
submitted

Similarly, although Plaintiff alleges that Defendants

false

reports,

she

fails

to

makes

any

allegations

regarding to whom and when such reports were purportedly made.
Moreover,

Plaintiff

fails

to

allege

that

any

of

the

purportedly false statements were made to her, or that she relied
on them to act, or refrain from acting, in a way that caused any
injury to her.

Plaintiff’s vague allegations simply fail to state

her claim of fraud with particularity, thus Plaintiff’s fraud claim
fails to state a claim.

Accordingly, Plaintiff’s fraud claim is

dismissed.
17

E. Municipal Liability of the City of Georgetown
In addition to her claims against Officer Williams, Plaintiff
alleges that the City of Georgetown and the Georgetown Police
Department “failed to properly train, supervise and/or discipline
Williams

in

the

treatment

and

care

of

individuals

including

[Plaintiff], which was and is a proximate and direct cause of the
serious

physical

injuries

to

and

violation

[Plaintiff]” [DE 1-1, Complaint at ¶ 16].

of

the

rights

of

In order to recover on

a § 1983 municipal liability claim, Plaintiff must show that the
alleged violations of her civil rights occurred pursuant to and as
a direct result of an official and unconstitutional municipal
policy, practice, or custom; there can be no liability under a
theory of respondeat superior.

Monell v. Dep't of Soc. Servs.,

City of New York, 436 U.S. 658, 691 (1978); Matthews v. Jones, 35
F.3d 1046, 1049 (6th Cir.1994); Oklahoma City v. Tuttle, 471 U.S.
808, 822–23 (1985).

Plaintiff must demonstrate a direct causal

connection between a policy or a custom of the Government and the
Plaintiffs' alleged injuries.

Tuttle, 471 U.S. at 823; Johnson v.

Hardin Cnty., Kentucky, 908 F.2d 1280, 1285 (6th Cir.1990).

A

plaintiff's failure to demonstrate constitutional harm defeats
municipal liability.

City of Los Angeles v. Heller, 475 U.S. 796,

799 (1986).
“To establish municipal liability pursuant to § 1983, a
plaintiff must allege an unconstitutional action that ‘implements
18

or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers' or a
‘constitutional deprivation [ ] visited pursuant to governmental
custom even though such a custom has not received formal approval
through the body's official decisionmaking channels.’”

Bright v.

Gallia County, Ohio, 753 F.3d 639, 660 (6th Cir. 2014)(quoting
Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir.2003)).

Thus,

to survive a motion to dismiss for failure to state a claim, “a
plaintiff must adequately plead (1) that a violation of a federal
right took place, (2) that the defendants acted under color of
state law, and (3) that a municipality's policy or custom caused
that violation to happen.” Bright, 753 F.3d at 660 (citing Lambert
v. Hartman, 517 F.3d 433, 439 (6th Cir.2008)).
As

an

initial

matter,

the

Court

has

already

found

that

Plaintiff’s § 1983 claims for false arrest, false imprisonment,
assault, battery, use of excessive force, fraud, and abuse of
authority fail, as they are barred by the statute of limitations.
Accordingly, Plaintiff fails to state a municipal liability claim,
as she can allege no constitutional harm.
In addition, Plaintiff’s Complaint makes the bare allegation
that the City of Georgetown “failed to properly train, supervise,
and/or discipline Williams in the treatment and care of individuals
including Plaintiff” [DE 1-1, Complaint at ¶ 16].

This vague

allegation fails to identify any sort of policy or custom of the
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City of Georgetown pursuant to which Officer Williams was allegedly
acting, much less identify facts to support a finding that this
policy

or

custom

constitutional

caused

rights.

any

Thus,

violations

Plaintiff’s

of

Plaintiff’s

municipal

liability

claim does not meet the minimal requirements of factual specificity
and sufficiency “to raise a right to relief above the speculative
level,” and is subject to dismissal on this basis.

Twombly, 550

U.S. at 545.
For

all

Plaintiff

has

liability.

of

the

failed

foregoing

reasons,

the

Court

to

a

for

§

state

claim

1983

finds

that

municipal

Accordingly, this claim is dismissed.

IV. Conclusion
For the reasons stated above, IT IS ORDERED:
(1) that Defendant Georgetown Police Department is DISMISSED
as a party;
(2) that Defendants Motion for Judgment on the Pleadings [DE
7] shall be GRANTED;
(3) that Plaintiff’s claim for malicious prosecution shall be
DISMISSED WITHOUT PREJUDICE;
(4)

that

the

remainder

of

Plaintiff’s

claims

shall

be

DISMISSED WITH PREJUDICE;
(5)

that all scheduled proceedings are CONTINUED GENERALLY;

(6)

that all pending motions are DENIED AS MOOT; and

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(7)

that this Order is FINAL AND APPEALABLE and THERE IS

NO JUST CAUSE FOR DELAY.
This the 31st day of March, 2017.

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