Warren v. Lexington-Fayette Urban County Government Police Department et al

Filing 34

MEMORANDUM OPINION & ORDER: 1. The motion to dismiss filed by the dfts 14 is GRANTED in part and DENIED in part. 2. Plaintiff's claims under the Due Process Clause and Eight Amendment are DISMISSED with prejudice. 3. Plaintiff's claims a gainst Officers Voll and Chelf in their official capacity are DISMISSED with prejudice. 4. Plaintiff's claims for intentional infliction of emotional distress and negligent infliction of emotional distress claims against all Defendants are DISMISSED with prejudice. 5. The Defendants' motion to dismiss claims for a Fourth Amendment violationasserted under §1983 by Plaintiff Warren against LFUCG is DENIED. Signed by Judge Danny C. Reeves on 08/24/2016.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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FATIMA WARREN,
Plaintiff,
V.
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT, et al.,
Defendants.
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Civil Action No. 5: 16-140-DCR

MEMORANDUM OPINION
AND ORDER

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This action arises from an arrest which Plaintiff Fatima Warren claims was unlawful.
Warren brings claims against Defendants Lexington Fayette Urban County Government
(“LFUCG”) and Lexington Police Officers Brian Voll and Tyler Chelf in their official and
individual capacities. In her Amended Complaint, Warren raises federal claims pursuant to §
1983 and related state claims under Kentucky law. Id.
The matter is pending for consideration of the Defendants’ motion to dismiss a number
of the claims raised in Warren’s Amended Complaint. [Record No. 14] The Defendants argue
that: (i) municipal liability cannot be imposed on LFUCG; (ii) the claims against the officers
in their official capacity are inappropriate; and (iii) the state law claims for intentional and
negligent infliction of emotional distress are meritless. Id. at 2. For the reasons outlined below,
the Defendants’ motion will be granted, in part. The Plaintiff’s claims against LFUCG and
the officers in their individual capacity alleging a Fourth Amendment violation and asserting
false imprisonment remain pending.

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I.
On November 21, 2015, Warren went to Platinum Dolls in Lexington, Kentucky. She
contends she was not intoxicated when she arrived and did not consume alcohol at the club.
[Record No. 12, ¶¶ 12, 13] Warren was involved in a confrontation with the establishment’s
security personnel that ended in her being forcibly removed from the premises. [Id., ¶ 16]
Following this incident, she called 911 to report an assault and to request assistance. [Id., ¶
18.] Officers Brian Voll and Tyler Chelf responded to the call. Upon their arrival, the officers
took Warren’s statement regarding the incident. [Id., ¶ 19] The officers did not ask Warren
whether she had been drinking or otherwise evaluate her level of intoxication by conducting
objective tests. Likewise, Warren was not in possession of alcohol nor was there any alcohol
in the surrounding area. [Id., ¶ 20]
Once the officers obtained Warren’s statement, one discussed the incident with
Platinum Dolls’ security personnel. [Id., ¶ 21] During this discussion, a security guard
reported that Warren had assaulted him in response to his attempts to escort her from the club,
requiring that he forcibly remove her from the premises. [Id., ¶ 28] Although the report
concluded that Warren’s action constituted fourth degree assault, it does not indicate that the
conduct was caused by intoxication. Instead, the report specifically states that the incident was
neither alcohol- nor drug-related. [Id., ¶¶ 28, 29] After obtaining the statements, the officers
conferred and decided to arrest Warren on a charge of alcohol intoxication in a public place.
[Id., ¶ 23]1 Officer Chelf advised the Plaintiff that she was under arrest and placed her in
handcuffs. Warren cooperated with the officers and entered the police vehicle at their request.

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  Warren acknowledges that the police report indicates that the arrest was for a charge of alcohol

intoxication in a public place, which is prohibited by KRS § 222.202. [Record No. 23, p. 3].

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[Id. ¶¶ 23-25] Once inside the vehicle, the officers informed Warren that she was being
arrested for public intoxication. [Id., ¶ 26]
Warren spent eight hours in jail before being released on bail. [Id., ¶¶ 31, 33] Upon
release, she was treated at a local hospital for injuries received during the incident and then
called the police to report a physical assault by Platinum employees. [Id., ¶ 32] The police
report indicates that Warren had bruising on her wrists and complained of pain in her knees,
back, head, and neck. [Id.] Ultimately, the charge for alcohol intoxication in a public place
was dismissed. [Id., ¶ 33]
Warren’s Amended Complaint contains five counts against LFUCG and against
Officers Voll and Chelf in their individual and official capacities. [Id., pp. 7-13] In Count I,
Warren brings a § 1983 claim against all defendants based on constitutional violations arising
from the alleged unlawful arrest, citing violations of the Fourth Amendment right to be free
from unreasonable seizures, the Due Process Clause, and the Eighth Amendment right to be
free from cruel and unusual punishment. [Id., ¶ 36] It appears that Warren brings this claim
against Officers Voll and Chelf in their individual and official capacities, and against LFUCG
on a theory of deliberate indifference based on the municipality’s alleged failure to adequately
train its police officers. [Id., ¶¶ 39-44] Warren also asserts state tort claims against Officers
Voll and Chelf in Counts II, V, and VIII, alleging false imprisonment, intentional infliction of
emotional distress, and negligent infliction of emotional distress, respectively. [Id., pp. 9-13]
II.
When evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court must determine whether the Complaint alleges “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
plausibility standard is met “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). Although the Complaint need not contain “detailed factual
allegations” to survive a motion to dismiss, the “plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation
marks and citation omitted).
Further, in considering a Rule 12(b)(6) motion, the Court is required to “accept all of
plaintiff’s factual allegations as true and determine whether any set of facts consistent with the
allegations would entitle the plaintiff to relief.” G.M. Eng’rs & Assoc., Inc. v. W. Bloomfield
Twp., 922 F.2d 328, 330 (6th Cir. 1990). However, the Court is not required to accept as true
legal conclusions that are presented as factual allegations if those conclusions cannot be
plausibly drawn from the facts alleged. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”); see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that, in reviewing
a motion to dismiss, the district court “must take all the factual allegations in the complaint as
true,” but that the court is “not bound to accept as true a legal conclusion couched as a factual
allegation”). Accordingly, Rule 12(b)(6) essentially “allows the Court to dismiss, on the basis
of a dispositive issue of law, meritless cases which would otherwise waste judicial resources
and result in unnecessary discovery.” Glassman, Edwards, Wade & Wyatt, P.C. v. Wolf
Haldenstein Adler Freeman & Herz, LLP, 601 F. Supp. 2d 991, 997 (W.D. Tenn. 2009).

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III.
A.

Federal Claims – Count I
Non-Fourth Amendment Claims

Warren asserts claims against all of the defendants for violations of her constitutional
rights to due process of law and of her Eighth Amendment right to be free from cruel and
unusual punishment, each arising out of the allegedly unlawful arrest. As the defendants
correctly argue, however, claims relating to an unlawful arrest are more appropriately brought
under the Fourth rather than the Fifth or Fourteenth Amendment. See Vidal v. Lexington
Fayette Urban County Gov’t, No. 5: 13-117-DCR, 2014 WL 4418113, at *4 (E.D. Ky. Sept.
8, 2014) (citing Albright v. Oliver, 510 U.S. 266 (1994) (“[S]ubstantive due process does not
extend to claims for false arrest and . . . such claims are properly brought under the Fourth
Amendment.). Similarly, the Eighth Amendment applies “only after the State has complied
with the constitutional guarantees traditionally associated with criminal prosecutions.”
Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977). Accordingly, the Eighth Amendment’s
protections do not apply where, as here, the individual has not been subject to a criminal
prosecution. Warren’s constitutional claims against the defendants must then be raised under
the Fourth Amendment, and those that are not are dismissed.
Fourth Amendment Claims
Based on the alleged unlawful arrest, Warren brings a claim under § 1983 against
LFUCG for violating her Fourth Amendment right to be free from unreasonable seizures.
Generally, a municipality cannot be held liable for an employee’s unconstitutional action.
Instead, the plaintiff must demonstrate that the municipality itself took an unconstitutional
action that directly caused her injury. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 817
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(1985); Doe v. Clairborne Cnty., Tenn., 103 F.3d 495, 507 (6th Cir. 1996) (“[R]espondeat
superior is not available as a theory of recovery under section 1983.”).
But a plaintiff may establish municipal liability by showing that the municipality
adopted a policy that caused its employees to take an unconstitutional action. See Tuttle, 471
U.S. at 817. To impose municipal liability on the basis of a policy, a plaintiff must identify
the particular policy and describe how that policy caused the violation of the plaintiff’s
constitutional rights. Kustes v. Lexington-Fayette Urban Cnty. Gov’t, No. 5: 12-323-KKC,
2013 WL 4776343, at *5 (E.D. Ky. Sept. 3, 2013). Where the alleged policy involves inaction
or deliberate indifference, such as a failure to train, the plaintiff must allege: “(i) a ‘clear and
persistent pattern’ of unconstitutional conduct; (ii) the municipality’s ‘notice or constructive
notice’ of that conduct; (iii) its ‘tacit approval’ of the conduct; and (iv) that the policy of
inaction was the ‘moving force’ behind the constitutional deprivation.” Mitchell v. Mike, No.
5: 14-301-DCR, 2015 WL 6675549, *6 (E.D. Ky. Oct. 30, 2015) (quoting Doe, 103 F.3d at
508).
For a failure to train claim to survive a motion to dismiss, a plaintiff must do more than
vaguely allege that police officers are not adequately trained. For example, in Hutchison v.
Metro. Gov’t of Nashville & Davidson Cnty., the plaintiff merely stated that the defendant
“failed to adequately train its officers in stopping vehicles and/or ordering passengers out of
those vehicles in disregard of their disabilities or injuries.” 685 F. Supp. 2d 747, 751 (M.D.
Tenn. 2010). Because the plaintiff failed to provide any further support for the allegation, the
court dismissed the claim, concluding that it did not satisfy Iqbal pleading requirements. Id.
Similarly, in Mitchell the plaintiff merely alleged that the municipality “was deliberately
indifferent to its police officers’ need for training about interaction with citizens who have
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been handcuffed and are in police custody.” No. 5: 14-301-DCR, 2015 WL 6675549, at *6
(E.D. Ky. Oct. 30, 2015). Because the plaintiff failed to identify a particular policy, the claim
did not satisfy the pleading requirements sufficient to survive a motion to dismiss. Id.
Here, the municipal policy that the plaintiff asserts caused the deprivation of her
constitutional rights is its failure to adequately train police officers in arresting individuals for
public intoxication.

Unlike the plaintiffs in Mitchell and Hutchison, however, Warren

specifically identifies a municipal policy. She contends that “LFUCG has instituted a policy
or policies that permit its Officers to arrest individuals for the offense of public intoxication
without first requiring any evidence of intoxication . . . such as the presence of intoxicationinducing substances on the scene of an arrest or the smell of intoxicating substances on the
breath of a suspect prior to arrest[] . . . .” [Record No. 12, ¶ 43] This assertion is
distinguishable from those in Mitchell and Hutchison in that it goes beyond a mere vague
accusation that the municipality failed to train its officers. Instead, it directly identifies a
particular deficiency: the municipality fails to train or require its officers to obtain objective
evidence of intoxication before conducting arrests for alcohol intoxication in a public place.
And consistent with the holding in Mitchell, the plaintiff identifies a pattern of
unconstitutional conduct. Warren alleges LFUCG was aware of the unconstitutional conduct
of the officers and the result of LFUCG’s inadequate training. Specifically, she alleges that
this policy has led to a pattern of unconstitutional conduct, stating that the policy results in
“numerous wrongful arrests for public intoxication . . . by LFUCG Officers each year,” and
that LFUCG is aware of this pattern “but continues to maintain the aforementioned policies to
train its Officers, including Officers Voll and Chelf, in accordance with these policies.” [Id.]
Warren contends that LFUCG’s policy amounts to deliberate indifference of citizens’
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constitutional right to be free from unreasonable seizures. [Id.]. Additionally, she alleges that
this policy was the moving force behind her unconstitutional arrest. [Id., ¶44] Specifically,
she asserts that the municipality has a policy of failing to train or require its officers to establish
objective evidence of intoxication before conducting an arrest on this basis, and that the
officers’ failure to determine that she was intoxicated before arresting her was the direct result
of this policy. [Id.] Thus, Warren alleges, the municipality’s policy caused the violation of
her Fourth Amendment right to be free from arrests without probable cause. [Id.] Based on
the foregoing, the Defendants’ motion to dismiss this claim will be denied.
Warren also brings claims against Officers Voll and Chelf under §1983 for allegedly
violating her Fourth Amendment rights while acting in their official capacities. However, a
suit against an individual in an official capacity is only appropriate if the person qualifies as
an official policy maker. See Fitch v. Kentucky State Police, No. 3: 10-49-DCR, 2010 WL
4670440, at *5 (E.D. Ky. Nov. 10, 2010). Whether an individual is an official policy maker
is a question of state law, but resolution of the issue ultimately depends on whether the
individual “had final policymaking authority . . . .” City of St. Louis v. Praprotnik, 485 U.S.
112, 124 (1988). Here, there is no allegation that Officers Voll and Chelf possessed final
policymaking authority. See Fitch, No. 3: 10-49-DCR, 2010 WL 4670440, at *5 (citing
Swagler v. Harford County, 2009 WL 1575326, *9 (D. Md. Jun. 2, 2009) and Lytle v. Gilmore,
77 F. Supp. 2d 730, 741-42 (E.D. Va. 1999), which both dismissed official capacity claims
against police officers after concluding that they were not official policy makers).
Accordingly, Warren cannot maintain a suit against the officers in their official capacities and
those claims will be dismissed.

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B.

State Claims – Counts V and VIII

While the tort of intentional infliction of emotional distress is generally available only
when a plaintiff is unable to obtain an adequate remedy through a more traditional tort, it “is
still a permissible cause of action . . . as long as the defendants solely intended to cause extreme
emotional distress.” Green v. Floyd Co., Ky., 803 F. Supp. 2d 652, 655 (E.D. Ky. 2011) (citing
Brewer, 15 S.W.3d at 7-8). To establish a claim for intentional infliction of emotional distress,
a plaintiff must demonstrate that the wrongdoer’s conduct was intentional or reckless, and that
the conduct was “so extreme in degree[] as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.” Runkle v.
Fleming, 558 F. App’x 628, 634 (6th Cir. 2014).
To satisfy pleading requirements for this claim, the plaintiff must plead facts that
suggest the plausibility of the claim. Bare conclusory recitation of the elements of the cause
of action not sufficient. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. In this case, Warren
fails to meet the pleading requirements, as she does no more than recite the elements of the
tort: she merely describes the Defendants’ conduct as “outrageous and utterly intolerable in a
civilized society,” and state that it was done “with the intent to cause physical injury and
emotional distress or. . . with a reckless disregard of the probability of causing physical injury
and emotional distress to Warren.” [Record No. 12, ¶¶ 56-58] At no point does she allege
facts in support of these mere restatements of the elements of the cause of action. Warren does
not allege facts suggesting that the officers intended to cause her emotional distress, nor does
she allege facts suggesting that the officers’ conduct was outrageous and intolerable. [See id.]
Her conclusory assertion is the type of pleading that Twombly and Iqbal made clear does not

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state a claim upon which relief may be granted. Accordingly, Warren’s claim for intentional
infliction of emotional distress will be dismissed.
Warren also brings a claim against the defendants for negligent infliction of emotional
distress. Pleading this claim requires that the plaintiff assert the “recognized elements of a
common law negligence cause of action: (1) the defendant owed a duty of care to the plaintiff,
(2) breach of that duty, (3) injury to the plaintiff, and (4) legal causation between the
defendant's breach and the plaintiff's injury.” Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012).
Further, the plaintiff must demonstrate “a ‘severe’ or ‘serious’ emotional injury,” which
“occurs where a reasonable person, normally constituted, would not be expected to endure the
mental stress engendered by the circumstances of the case.” Id.
Warren’s allegation of negligent infliction of emotional distress suffers from the same
pleading deficiencies as those of her claim for intentional infliction of emotional distress.
While she is permitted to plead claims in the alternative and need not elect between an
intentional and negligent claim, this claim is still subject to pleading requirements.
Accordingly, Warren must allege facts that make her claim plausible, rather than merely recite
the elements of the cause of action. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Warren merely recites the elements of the cause of action, stating that the defendants
“were reckless and/or grossly negligent in their course of conduct” and that “[a]s a direct,
proximate, and foreseeable result of the aforementioned reckless or grossly negligent conduct”
of the Defendants, “Warren suffered and continued to suffer severe emotional distress.”
[Record No. 12, ¶¶ 66-67] While she reports going to the hospital for treatment, Warren
nowhere alleges facts suggesting a severe or serious emotional injury, that the officers’ conduct
was extreme or outrageous, or that their unreasonable behavior caused her injury, as the claim
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requires. [See id., ¶ 32] Accordingly, her claim for negligent infliction of emotional distress
will be dismissed.
IV.
While Warren has stated a claim against LFUCG for municipal liability under § 1983,
she may not proceed with this claim against Officers Voll and Chelf in their official capacities.
Likewise, Warren fails to state claims under the Due Process Clause and Eight Amendment.
Further, Warren fails to state claims against the defendants for intentional infliction of
emotional distress and negligent infliction of emotional distress under Kentucky law.
Accordingly, it is hereby
ORDERED as follows:
1.

The motion to dismiss filed by the Defendants [Record No. 14] is GRANTED,

in part, and DENIED, in part.
2.

Plaintiff’s claims under the Due Process Clause and Eight Amendment are

DISMISSED with prejudice.
3.

Plaintiff’s claims against Officers Voll and Chelf in their official capacity are

DISMISSED with prejudice.
4.

Plaintiff’s claims for intentional infliction of emotional distress and negligent

infliction of emotional distress claims against all Defendants are DISMISSED with prejudice.
5.

The Defendants’ motion to dismiss claims for a Fourth Amendment violation

asserted under §1983 by Plaintiff Warren against LFUCG is DENIED.

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This 24th day of August, 2016.

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