McBrearty v. Kappeler et al

Filing 51

MEMORANDUM OPINION & ORDER: Plaintiff's 34 Motion to Vacate and 42 Amended Motion to Vacate are DENIED. Signed by Judge Joseph M. Hood on 1/9/2018. (KM)cc: COR, Pltf via U.S. mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JENEAN MCBREARTY,
Plaintiff,
v.
DR. VICTOR KAPPELER, et al.,
Defendants.
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Civil No. 5:16-121-JMH

MEMORANDUM OPINION & ORDER

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This matter is before the Court upon Plaintiff’s Motion [DE
42] and Amended Motion to Vacate [DE 34] the Court’s March 31,
2017, Memorandum Opinion and Order dismissing all claims against
Victor Kappeler because she learned on July 19, 2017, during the
deposition

of

Defendant

Carole

Garrison,

that

Kappeler

was

Assistant Dean during the relevant time period and because Garrison
testified

that

Kappeler

gave

her

permission

to

take

down

McBrearty’s posts.
The Court understands McBrearty’s Motion and Amended Motion
to Vacate as a motion to amend the complaint to plead that Kappeler
“actively engaged in unconstitutional behavior” in violation of 42
U.S.C. § 1983 and was, thus, directly responsible for any harm
which befell her because he gave Garrison permission to take down
McBrearty’s posts after Garrison consulted with him.

Gregory v.

City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006).

For the

reasons set forth in the Court’s Memorandum Opinion and Order on

McBrearty and Garrison’s cross-Motions for Summary Judgment, the
actions of which McBrearty complains and the undisputed material
facts reveal no violation of federal constitution law to sustain
a claim against Garrison under 42 U.S.C. § 1983. The same analysis
would apply to a claim of direct liability against Kappeler, and
the Court sees no cause to vacate its March 31, 2017, Order or to
permit amendment at this time.
Accordingly, Plaintiff’s Motion [DE 42] and Amended Motion to
Vacate [DE 34] are DENIED.
This the 9th day of January, 2018.