Tidaback v. Georgetown et al

Filing 15

MEMORANDUM OPINION & ORDER: (1) Pla 13 MOTION for leave to Seal a Document is GRANTED and copies of competency/criminal responsibility evaluation attached to 13 shall remain SEALED. (2) Pla's 12 FIRST MOTION for Reconsideration is DENIED. Signed by Judge Joseph M. Hood on 4/14/2017.(GLD)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 to Reconsider
filed by Plaintiff [DE 12], in which she requests that the Court
reconsider its March 31, 2017 Judgment dismissing Plaintiff’s
claims [DE 11].

Also before the Court is Plaintiff’s Motion for

Leave to Seal a Document [DE 13], seeking permission to submit a
copy of a competency/criminal responsibility evaluation in support
of her Motion to Reconsider under seal.
I.

Factual and Procedural Background

On March 31, 2017, the Court granted the Motion for Judgment
on

the

Pleadings

Georgetown

Police

filed

by

Defendants,

Department,

and
1

City

Richard

of

Georgetown,

Williams

in

his

individual capacity and as an employee of the City of Georgetown
and Georgetown Police Department (collectively, “Defendants”) [DE
10] and entered a Judgment in favor of Defendants [DE 11].

As

explained more fully in the Court’s Memorandum Opinion & Order [DE
10],

dismissal

of

Plaintiff’s

claims

was

warranted

because

Plaintiff’s claims brought pursuant to 42 U.S.C. § 1983 were
untimely; Plaintiff’s malicious prosecution claim is not yet ripe;
and Plaintiff’s claims for fraud and municipal liability were
insufficiently pled [Id.]. The Court also dismissed the Georgetown
Police Department, as it is a city police department and is,
accordingly, not a legal entity capable of being sued.
Plaintiff has now filed a Motion to Reconsider the Court’s
Order dismissing her case, arguing that the allegations in her
Complaint contain sufficient facts upon which relief may be granted
and that material issues of fact exists, such that Defendants are
not entitled to Judgement in their favor.
II.

Standard of Review

Although Plaintiff fails to specify the legal basis for her
motion, as Plaintiff seeks to alter or amend a judgment, her motion
to reconsider is governed by Fed. R. Civ. P. 59(e).

A motion to

alter or amend a judgment under Rule 59(e) should be granted only
when there has been (1) an intervening change of the controlling
law; (2) discovery of evidence not previously available which has
since become available; or (3) a clear error of law or to prevent
2

manifest injustice.

GenCorp., Inc. v. Am., Int’l Underwriters,

178 F.3d 804, 834 (6th Cir. 1999)(citations omitted).

The motion

does not serve as “an opportunity to re-argue a case.”

Sault Ste.

Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th
Cir.1998).

Accordingly, a party should not use this motion “to

raise arguments which could, and should, have been made before
judgment issued.”

Id. (quoting FDIC v. World Univ. Inc., 978 F.2d

10, 16 (1st Cir.1992)).
Moreover, Fed. R. Civ. P. 60 also provides for grounds for
reconsideration.

Rule 60(b) permits the Court to provide relief

from a final judgment or order when 1) there has been mistake,
inadvertence, surprise or excusable neglect; 2) there is newly
discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b); 3) there has been fraud, misrepresentation, or misconduct
by an opposing party; 4) the judgment is void; 5) the judgment has
been satisfied, released or discharged; it is based on an earlier
judgment

that

has

been

reversed

or

vacated;

or

applying

it

prospectively is no longer equitable or 6) any other reason that
justifies relief.

See Fed. R. Civ. P. 60.

See also GenCorp.,

Inc., 477 F.3d at 372.
III. Analysis
Plaintiff’s motion to reconsider essentially re-hashes the
arguments made in response to Defendants’ Motion for Judgment on
3

the Pleadings.

She does not identify any of the grounds for

altering or amending a judgment under Rule 59(e) as the basis for
her motion, nor does she argue that relief from the Court’s
judgment or order is appropriate for the reasons provided by Rule
60.

For these reasons alone, Plaintiff’s Motion is not well-

taken.
Plaintiff does seek to submit additional evidence regarding
her allegation of “temporary memory loss” in a further attempt to
equate

this

allegation

with

an

allegation

of

“unsound

mind”

sufficient to toll the statute of limitations for her § 1983 claims
pursuant to KRS § 413.170(1).

KRS § 413.170(1) tolls the statute

of limitations applicable to Plaintiff’s § 1983 claims while the
person entitled to bring the claim is “an infant or of unsound
mind.”

Id.

“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)).
The Court held that Plaintiff’s allegations of “temporary
memory loss” regarding the injuries sustained the night of her
arrest and booking did not rise to the level of “unsound mind” for
purposes of KRS § 413.170(1).

In her Motion to Reconsider,
4

Plaintiff now attempts to submit additional evidence that she was
of

“unsound

mind,”

Competency/Criminal
prepared

by

John

specifically

Responsibility
D.

Ranseen,

a

February

evaluation

Ph.D.,

a

of

Licensed

5,

2016

Plaintiff
Clinical

Psychologist, pursuant to an order entered by the Honorable Paul
F. Isaacs of the Scott Circuit Court in Plaintiff’s criminal case
[DE 13-2, Evaluation].

According to Plaintiff, this evaluation is

the basis for the diagnosis of Plaintiff’s condition, which she
claims includes neurocognitive impairment due to traumatic brain
injury,

posttraumatic

stress

disorder

(PTSD),

mild

cognitive

impairment and memory loss [DE 12 at p. 2, 3].
As an initial matter, the competency evaluation submitted by
Plaintiff is not “newly discovered” evidence that would justify
altering or amending the Court’s prior Order and Judgment.

“To

constitute ‘newly discovered evidence,’ the evidence must have
been previously unavailable.”

GenCorp, Inc., 178 F.3d at 834

(citations omitted). Plaintiff does not argue that this evaluation
was previously unavailable to her when she filed her response to
Defendants’

Motion

for

Judgment

on

the

Pleadings.

In

fact,

Plaintiff’s counsel is specifically copied on the February 5, 2016
Report [DE 13-2, Evaluation at p. 10].

Thus, to the extent that

Plaintiff wished to rely on this evaluation, she should have done
so in her response to the Motion for Judgment on the Pleadings.

5

Regardless of the untimeliness of Plaintiff’s submission, the
Court has, nevertheless, reviewed the evaluation and finds that it
does not justify altering or amending its prior Order and Judgment.
The “Diagnostic Impressions (DSM-5)” section of the evaluation
does not relate Plaintiff’s Psychiatric Diagnoses to the incident
leading to her arrest on July 2-3, 2014.

Rather, the evaluation

states that Plaintiff’s “primary problem is clearly Polysubstance
Abuse with Alcohol as the primary substance of abuse” [DE 13-2, at
p. 5].

The evaluation also states that Plaintiff likely has a

mild degree of generalized cognitive impairment, given a probable
severe traumatic brain injury suffered in a four-wheeler accident
in 2005, her diabetic condition, and her substance abuse history
[Id.].

It also states that Plaintiff’s history (which includes an

abusive childhood, alcohol and drug abuse, the aforementioned
severe four-wheeler accident after which Plaintiff reported being
in a coma for approximately 3.5 weeks, and three other motor
vehicle accidents) suggests that “some of her problems in life
likely relate to a chronic or complicated Posttraumatic Stress
Disorder (PTSD)” [Id.].
However, despite these diagnostic impressions, the evaluator
concludes that Plaintiff is competent to stand trial based, in
part, on the finding that, although Plaintiff’s “focus and memory
may be slightly limited, there is nothing to suggest that her
cognitive functions are impaired in a manner to preclude her
6

rational consideration of her options” [Id. at p. 8]. With respect
to Plaintiff’s criminal responsibility for the events leading to
her arrest on July 2-3, 2014, the evaluator concludes that “at the
time of the alleged events [Plaintiff] was not suffering from any
mental disease or defect that would preclude her from appreciating
the

nature

or

wrongfulness

of

her

actions

or

behavior to the standard of the law” [Id. at p.9].

conforming

her

The evaluator

notes that it seems highly likely that Plaintiff was “significantly
intoxicated” at the time of the events surrounding her arrest and
that it also seems likely that she does not have full recall for
these events [Id.].

However, the evaluator further concludes that

“it definitely appears that she was drinking and likely using other
drugs in a volitional manner.

Thus, although the use of drugs

undoubtedly would have contributed to impulsive behavior and poor
decision making, this does not absolve her of responsibility”
[Id.].
Contrary to Plaintiff’s argument, these findings simply do
not support a finding by the Court that Plaintiff was of “unsound
mind” for purposes of tolling the statute of limitations pursuant
to KRS § 413.170(1).

The evaluation acknowledges that Plaintiff’s

memory of the events surrounding her arrest is fragmented, but
further recognizes that she was drinking and likely using drugs in
a

volitional

significantly

manner

and

intoxicated

it

is

during
7

highly
these

likely

that

events.

she

was

However,

“significant intoxication” is not the same as “of unsound mind” as
that term is used in the statute.

Plaintiff points to no finding

in the evaluation or otherwise that states that she was ever
incapable of managing her own affairs, which is the relevant
inquiry under KRS § 413.170(1).
Moreover,

the

evaluation

says

nothing

about

Plaintiff’s

mental or physical state from the time she was arrested on July 3,
2014 until August 1, 2014, the date on which she argues that the
statute of limitations should begin to run.

Plaintiff seeks to

have the statute of limitation tolled until August 1, 2014, as it
is the date that she claims she viewed a videotape of her booking
and first discovered that she potentially had a claim.

However,

this evaluation simply makes no findings regarding Plaintiff’s
mental state during this time period.

Nor does the evaluation

make any findings regarding Plaintiff’s ability to manage her own
affairs during this time period.
Glaringly missing from any of Plaintiff’s allegations in her
Complaint or the evidence submitted to the Court via her competency
evaluation is any evidence that Plaintiff has ever been declared
incompetent, to be of unsound mind or incapable of handling her
own affairs.

For all of these reasons, the Court sees no reason

to disturb its prior holding that Plaintiff is not entitled to
relief pursuant to KRS § 413.170(1), as her vague allegation of

8

temporary memory loss is insufficient to support tolling the
limitations period of her § 1983 claims due to “unsound mind.”
Plaintiff also re-states (almost word-for-word) her argument
that, because she has alleged fraud, the five-year limitation
period provided by KRS § 413.120(11) applies to her claims, rather
than the one-year limitation provided by KRS § 413.140.

However,

as set forth more fully in the Court’s prior Opinion [DE 10], this
argument ignores the clear law governing the statute of limitations
for § 1983 claims (including those alleging fraud).
also

overlooks

Plaintiff’s

failure

to

plead

particularity, as required by Fed. R. Civ. P. 9(b).

This argument
fraud

with

Regardless,

Plaintiff simply re-argues her case against Defendant’s Motion for
Judgment on the Pleadings, which is inappropriate on a motion to
reconsider.

Sault Ste. Marie Tribe of Chippewa Indians, 146 F.3d

at 374.
Finally, Plaintiff takes issue with the dismissal of the
Georgetown Police Department.

The Court’s Order held that, as a

city police department, the Georgetown Police Department is not a
legal entity capable of being sued and, accordingly, dismissed it
as a party.

Hornback v. Lexington-Fayette Urban Co. Gov’t., 905

F.Supp.2d 747, 749 (E.D.Ky. 2012). The Court noted that Defendants
raised this argument in their motion and Plaintiff did not object.
Plaintiff now argues that dismissal “without further facts” was
improper and that her failure to respond “does not mean the law
9

should not be applied, which this court did not do” [DE 12].
However, the Court did, in fact, apply the law.

The Georgetown

Police Department is a department of the municipal government and
is not a proper legal entity to be sued.
defendant

is

Georgetown).

the

municipality

itself

Rather, the proper

(here,

See Hornback, 905 F.Supp.2d at 749.

the

City

of

See also State

v. Elizabethtown Police Dep’t, No. CIV.A.3:09-CV-569-H, 2010 WL
1196193,

at

*2

(W.D.

Ky.

Mar.

23,

2010).

Accordingly,

the

Georgetown Police Department was properly dismissed as a party.
IV.

Conclusion

For all of the foregoing reasons, IT IS ORDERED as follows:
(1)

Plaintiff’s Motion for Leave to Seal a Document [DE 13]
is GRANTED and the copies of her competency/criminal
responsibility evaluation attached to Plaintiff’s Motion
for Leave to Seal a Document [DE 13-1 and DE 13-2] shall
remain SEALED; and

(2)

Plaintiff’s Motion to Reconsider [DE 12] is DENIED.

This the 14th day of April, 2017.

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