Bishop v. Lexington-Fayette County Urban Government et al
OPINION AND ORDER: 1) 3 MOTION for Partial Dismissal is GRANTED. 2) All of pla's claims against LFUCG, against dfts Charles Farley and Mark Barnard in official capacities and against Mark Barnard in his individualy capacity are DISMISSED. 3) Pla's claims under 42 USC 1983 against Charles Farley in his individual capacity for violations of the 5th and 14th Amendments are DISMISSED. Signed by Judge Karen K. Caldwell on 8/29/2016.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
DAVID MICHAEL BISHOP,
CIVIL ACTION NO. 5:15-371-KKC
OPINION AND ORDER
CHARLES FARLEY, in his official and
individual capacity, and
MARK BARNARD, in his official and
*** *** ***
This matter is before the Court on the motion for partial dismissal (DE 3) filed by
defendants Lexington-Fayette Urban County Government, Lexington police officer Charles Farley,
and Lexington police chief Mark Barnard. For the following reasons, the motion will be granted.
With his complaint, the plaintiff David Michael Bishop alleges that he was sleeping near a
laundromat on South Ashland Avenue in Lexington, Kentucky when he was awoken by Officer
Farley. Bishop alleges that he was not under the influence of alcohol or any controlled substance at
the time. He alleges that Officer Farley nonetheless handcuffed him and placed him under arrest
for public intoxication. Bishop alleges that Officer Farley placed him in a patrol car and drove him
to the Fayette County Detention Center where he was administered a breath test to determine his
blood alcohol content. Bishop states that jail personnel told him that the test did not show the
presence of any alcohol in Bishop’s body. Bishop alleges that Officer Farley nonetheless charged
him with being under the influence of a controlled substance. Bishop alleges that he remained
incarcerated for nine days until he was transported to the Fayette District Court for a pretrial
hearing. At the hearing, Bishop alleges that the Fayette County Attorney’s Office moved to dismiss
the charge against him and he was released.
Bishop filed this action against Officer Farley, Chief Barnard, and the Lexington-Fayette
Urban County Government. He asserts seven claims. With Count 1, Bishop asserts a claim under
42 U.S.C. §1983, alleging that the defendants violated his rights under the fourth, fifth and
fourteenth amendments by unlawfully arresting him. With Count 2, Bishop asserts another claim
under 42 U.S.C. §1983. This time, he appears to assert the claim against only Officer Farley
alleging that the officer violated his Fifth and Fourteenth Amendment rights by unlawfully
detaining and confining him. He also asserts state-law claims of malicious prosecution, false arrest
and imprisonment, battery, negligence, and negligent infliction of emotional distress against all
The defendants move to dismiss several of the claims.
A. § 1983 Claims against County and Defendants in their Official Capacity
The defendants first move to dismiss the § 1983 claims against the county government and
against Chief Barnard and Officer Farley in their official capacities. As to the official-capacity
claims, in his response, Bishop does not object the dismissal of these claims. A suit against an
individual “in his official capacity” is essentially a suit brought directly against the local government
unit. Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245 (6th Cir.1989). A § 1983 action “normally
should be brought against either or both of two defendants: the local public official in his individual
capacity and the local government which employs or is sought to be held responsible for the acts of that
local public official.” Id. at 1244-45. “[A]n official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). “There is no longer
a need to bring official-capacity actions against local government officials. . . .” Id. at 167 n. 14.
Because Bishop has asserted a § 1983 claim against the LFUCG, his § 1983 claims against Officer
Farley and Chief Barnard in their official capacities will be dismissed.
As to the claim against the county, a county can be held liable under § 1983 “only where its
policy or custom causes the constitutional violation in question.” Miller v. Calhoun Cty., 408 F.3d
803, 813 (6th Cir. 2005). It cannot be liable solely because an employee committed a constitutional
violation. “While a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional
violation directly attributable to it, § 1983 does not impose vicarious liability on a municipality for
the constitutional torts of its employees.” Stemler v. City of Florence, 126 F.3d 856, 865 (6th
In Count 1, Bishop makes only one allegation against the county. He alleges that “LFUCG
and the Lexington Division of Police negligently trained Defendant Officer Charles Farley.” The
first problem with this allegation is that it is conclusory. “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the >grounds= of his >entitle[ment] to relief= requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.@ Bell Atlantic Corp. v.
Twombly, 550 U.S.544, 555 (2007) (internal citations omitted). In order to survive a motion to
dismiss, the factual allegations in the complaint Amust be enough to raise a right to relief above
the speculative level.@ Id. The plaintiff must plead Aenough facts to state a claim to relief that is
plausible on its face@ and to nudge his claim Aacross the line from conceivable to plausible.@ Id. at
570. “[O]n a motion to dismiss, courts are not bound to accept as true a legal conclusion couched
as a factual allegation.” Id. (citation and quotations omitted). Bishop makes no other allegation
about the manner by which the county trained Officer Farley. Accordingly, he has not pleaded sufficient
facts to state a § 1983 claim against the county for failure to train.
More importantly, however, even accepting as true Bishop’s allegation that the county
negligently trained Officer Farley, he has failed to plead sufficient facts to assert a § 1983 claim for
failure to train. In City of Canton v. Harris, 489 U.S. 378 (1989), the Court held that “[o]nly where a
failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality – a ‘policy’ as defined by
our prior cases – can a city be liable for such a failure under § 1983.” Id. at 389. In Canton, the
court recognized that “[i]t may seem contrary to common sense to assert that a municipality will
actually have a policy of not taking reasonable steps to train its employees. But it may happen
that in light of the duties assigned to specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be said to have been deliberately
indifferent to their need.” Id. at 390.
Again, in Count 1, Bishop makes only one allegation against the county – that it “negligently
trained Defendant Officer Charles Farley.” He does not allege that the county deliberately chose to fail
to train its employees even though the need for more or different training was obvious or make any
allegations from which such deliberate indifference could be inferred. Instead, Bishop alleges only that
the LFUCG acted negligently. Accordingly, his § 1983 claim against the county for failing to train
Officer Farley must be dismissed.
Bishop also asserts a § 1983 claim in Count 2 of his complaint. However, he makes no allegation
against the county at all in Count 2. Accordingly, Bishop fails to assert any claim against the county in
Count 2 and any such claim must also be dismissed.
B. § 1983 Claims against Chief Barnard in his Individual Capacity
As to any § 1983 claims that Bishop attempts to assert against Chief Barnard in Count 1 or
2 of the complaint, he makes no allegations about Chief Barnard at all in either count.
Accordingly, any § 1983 claim against Chief Barnard in his individual capacity must also be
C. § 1983 Claims against Officer Farley in his Individual Capacity for violations
of the Fifth and Fourteenth Amendments
As to Bishop’s claim that Officer Farley violated his rights under the Fifth and Fourteenth
Amendments, in his response Bishop does not object to the dismissal of this portion of his § 1983
claim against Officer Farley in his individual capacity. The complaint asserts that Officer Farley
unlawfully arrested, detained, and prosecuted Bishop. “Where a particular Amendment ‘provides
an explicit textual source of constitutional protection’ against a particular sort of government
behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process' must be
the guide for analyzing these claims.’ “ Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)). Claims arising out of an “arrest or investigatory stop
of a free citizen” invoke the “protections of the Fourth Amendment, which guarantees citizens the
right ‘to be secure in their persons ... against unreasonable ... seizures.’” Graham, 490 U.S. at 394.
Likewise, “[t]he Sixth Circuit recognizes a separate constitutionally cognizable claim of malicious
prosecution under the Fourth Amendment.” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir.2010)
(citation and quotations omitted).
Because the Fourth Amendment protects against unlawful pretrial deprivations of liberty
and malicious prosecution, such claims are properly brought under that amendment. See Albright,
510 U.S. at 274–75; Jackson v. County of Washtenaw, 310 F. App'x 6, 7 (6th Cir.2009) (“[A]
plaintiff may no longer bring a cause of action claiming a violation of substantive due process
rights under the Fourteenth Amendment when detained without probable cause. Rather, a
plaintiff claiming that his constitutional rights were violated when state officials detained him
without probable cause must assert a Fourth Amendment claim. Gregory v. City of Louisville, 444
F.3d 725, 750 (6th Cir.2006)”). Accordingly, Bishop’s claim against Officer Farley in his individual
capacity alleging that the officer violated Bishop’s Fifth and Fourteenth Amendment rights by
unlawfully arresting, detaining, and prosecuting him will be dismissed.
D. State-law Claims against County and Defendants in their Official Capacity
As to Bishop’s state-law claims against the county, in his response Bishop does not object to
dismissal of these claims. “Kentucky counties are cloaked with sovereign immunity.” LexingtonFayette Urban County Gov’t v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004). Accordingly, the state-law
claims against the county will be dismissed.
As to the state-law claims against Officer Farley and Chief Barnard in their official capacities, in
his response Bishop does not object to dismissal of these claims either. State-law claims against local
officials in their official capacity are also essentially claims against the county. Commonwealth v.
Harris, 59 S.W.3d 896, 899 (Ky.2001). Accordingly, all state-law claims against Officer Farley and
Chief Barnard in their official capacities will be dismissed.
E. State-law Claims against Chief Barnard in his Individual Capacity
Bishop asserts state-law claims of malicious prosecution, false arrest and imprisonment,
battery, and negligent infliction of emotional distress against Chief Barnard in his individual
capacity. For each of these claims, Bishop makes only one allegation against Chief Barnard: he is
“liable under the doctrine of respondeat superior.” (DE 1-1, Complaint ¶¶ 43, 48, 51, 66.) “The rule is
that public officers are responsible only for their own misfeasance and negligence and are not
responsible for the negligence of those who are employed by them if they have employed persons of
suitable skill.” Moores v. Fayette Cty., 418 S.W.2d 412, 414 (Ky. 1967). See also Yanero v. Davis, 65
S.W.3d 510, 531 (Ky. 2001). “[T]here must be some element of personal fault on the part of the officer
or agent, such as negligence or deliberate wrongdoing.” Moores, 418 S.W.2d at 414 (citation and
Bishop does not allege that Chief Barnard should be liable for hiring Officer Farley. Nor does he
allege any deliberate actions on Chief Barnard’s part that caused Bishop’s alleged injury. Accordingly,
the state-law claims for malicious prosecution, false arrest and imprisonment, battery, and
negligent infliction of emotional distress against Chief Barnard in his individual capacity must be
As to the negligence claim against Chief Barnard in his individual capacity, in Count 6
Bishop alleges that that Chief Barnard owed a duty to properly train, supervise, and advise police
officers to identify probable cause before arresting a citizen and that he breached that duty. (DE 11, Complaint ¶¶ 55-56.) This is a mere recitation of the elements of a negligence action. Twombly,
550 U.S.at 555. Further, these are legal conclusions that the court need not accept as true. Id.
Because Bishop has failed to raise above the speculative level his right to relief on his negligence
claim against Chief Barnard, the claim must be dismissed.
As a result of this opinion, the sole claims remaining in this action are Bishop’s claim under
42 U.S.C. § 1983 against Officer Farley in his individual capacity alleging that Officer Farley
violated his Fourth Amendment rights and Bishop’s state-law claims of malicious prosecution,
false arrest and imprisonment, battery, negligence, and negligent infliction of emotional distress
against Officer Farley in his individual capacity.
For all these reasons, the Court hereby ORDERS as follows:
1) the defendants’ motion for partial dismissal (DE 3) is GRANTED;
2) all of the plaintiff’s claims against the Lexington-Fayette Urban County Government,
against defendants Charles Farley and Mark Barnard in their official capacities, and
against Mark Barnard in his individual capacity are DISMISSED; and
3) the plaintiff’s claims under 42 U.S.C. § 1983 against Charles Farley in his individual
capacity for violations of the Fifth and Fourteenth Amendments are DISMISSED;
Dated August 29, 2016.
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