Williams et al v. Kentucky Association of Counties Insurance Agency, Inc. et al

Filing 22

OPINION & ORDER: 1. The Court ADOPTS Magistrate Judge Atkins's Report and Recommendation (DE 12 ) in part (consistent with the above rulings, only to the extent it recommends dismissing Defendant KACo), and otherwise REJECTS DE 12 ; 2. T he Court GRANTS Defendants' Motion to Dismiss (DE 5 ) in part (consistent with the above rulings, only to the extent it seeks KACo dismissal), and otherwise DENIES DE 5 ; 3. The Court DISMISSES all claims against Defendant KACo WITH PREJUD ICE; 4. The Court GRANTS in part and DENIES in part Plaintiffs' Motion for leave to Amend (DE 15 ): a. The Court DENIES leave to add LCDC as a party Defendant; b. The Court GRANTS leave to amend the claims against Defendant Clark and the U nknown Corrections Officers; 5. Plaintiffs SHALL file an amended complaint consistent with the rulings set forth herein within 14 days; that filing shall simply remove LCDC from the tendered Amended Complaint and otherwise effect no substantive changes; and 6. Plaintiffs SHALL SHOW CAUSE why the Court should not dismiss all amended claims against the Unknown Corrections Officers pursuant to Rule 4(m) within 30 days; failure to show cause will result in dismissal, without prejudice, of claims against the Unknown Corrections Officers. Signed by Judge Robert E. Wier on 6/28/2018.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
GERALD WILLIAMS, et al.,
Plaintiffs,
v.
KENTUCKY ASSOCIATION OF
COUNTIES INSURANCE AGENCY,
INC., et al.,

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No. 6:17-CV-222-REW-EBA
OPINION & ORDER

Defendants.
*** *** *** ***
Plaintiffs Gerald Williams and Chad Ludwick, former Leslie County Detention
Center (LCDC) inmates, initiated this 42 U.S.C. § 1983 action against Defendants,
LCDC employees1 and its insurer, alleging state law negligence and Eighth Amendment2
violations. DE 1, at 3–4 (Complaint). The suit stems from a fire at LCDC. Plaintiffs claim
injuries resulting from facility personnel’s alleged failure to evacuate male inmates from
1

Specifically, Danny Clark, LCDC Jailer, in his individual capacity, and Unknown
Corrections Officers (Doe Defendants). DE 1, at 2.
2
The Court will analyze the claims under the Eighth Amendment, as alleged, but here
notes that pretrial detainees challenging conditions of confinement receive Fourteenth
Amendment due process protections. Ingraham v. Wright, 97 S. Ct. 1401, 1412 n.40
(1977) (“[T]he State does not acquire the power to punish with which the Eighth
Amendment is concerned until after it has secured a formal adjudication of guilt in
accordance with due process of law. Where the State seeks to impose punishment without
such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of
the Fourteenth Amendment.”). Practically, the rubric is the same. City of Revere v.
Massachusetts Gen. Hosp., 103 S. Ct. 2979, 2983 (1983) (“In fact, the due process rights
of a [detainee] . . . are at least as great as the Eighth Amendment protections available to
a convicted prisoner. See Bell v. Wolfish, 441 U.S., at 535, n. 16, 545, 99 S. Ct., at 1872,
n. 16, 1877.”); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010)
(“Although the Fourteenth Amendment's Due Process Clause, rather than the Eighth
Amendment's protection against cruel and unusual punishment, applies to pretrial
detainees, we apply the same standards in both cases[.]” (internal citation omitted)).

1

a smoke-filled room. Named Defendants moved to dismiss. DE 5 (Motion). After full
briefing (DE 9 – Response; DE 11 – Reply), Magistrate Judge Atkins recommended
wholesale dismissal. DE 12 (Report and Recommendation). Specifically, the R&R
endorsed dismissing Defendant Kentucky Association of Counties Insurance Agency,
Inc. (KACo) as an improper party and dismissing the remaining claims for failure to state
a § 1983-cognizable claim. Id. at 3, 6.
Judge Atkins explicitly notified the parties of the waiver implications of any
failure to object. Id. at 6. Nonetheless, Plaintiffs did not substantively object to the
recommendation. See DE 13 (Response). Instead, Plaintiffs moved for leave to amend the
Complaint. See id.; DE 15 (Motion for Leave to Amend). The amendment motion is fully
briefed. DE 16 (Defendants’ Response), DE 18 (Plaintiffs’ Reply).3 The motions and
R&R are ripe for review. 4
I.

GOVERNING STANDARDS
A. Dismissal

3

The parties did not caption the amendment briefing as such. Rather, Defendants
captioned their responsive filing as a “Reply to Plaintiffs’ Response to Magistrate Judge’s
Report and Recommendation.” DE 16. Plaintiffs followed suit, filing a “Response to
Defendants’ Response to Magistrate Judge’s Report.” DE 18. Nonetheless, the Court,
looking through form to substance, considers the DE 16 and 18 filings for purposes of the
amendment motion analysis.
4
The Court could address the pending matters in reverse chronological order and,
potentially, moot the motion to dismiss and R&R. Clark v. Johnston, 413 F. App'x 804,
811 (6th Cir. 2011) (“When a pleading is amended . . . the original pleading no longer
performs any function in the case[.]”). Nonetheless, the Court turns first to the dismissal
issues. Although all parties agree that current-Defendant KACo is not a proper party, the
only pending dismissal effort, as to KACo, relies on the original Complaint. Also,
Defendants’ opposition to the amendment effort relies heavily on the R&R and
previously asserted dismissal bases. Stated otherwise, judicial economy concerns do not
strongly favor preemptively addressing amendment, and taking up the matters
sequentially ensures a proper vehicle for KACo dismissal.
2

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.’” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct.
1955, 1974 (2007)). “A claim has facial plausibility 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. However, “a formulaic recitation of a cause of action’s
elements will not do[.]” Twombly, 127 S. Ct. at 1965. Courts “must construe the
complaint in the light most favorable to the plaintiff and accept all allegations as true.”
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). Yet, courts need not accept
“legal conclusion[s] couched as [ ] factual allegation[s].” Papasan v. Allain, 106 S. Ct.
2932, 2944 (1986). Finally, “[m]atters outside of the pleadings are not to be considered
by a court in ruling on a . . . motion to dismiss.” Weiner v. Klais and Co., Inc., 108 F.3d.
86, 88 (6th Cir. 1997).
Hinging on Rule 8’s minimal standards, Twombly and Iqbal require a plaintiff to
“plead facts sufficient to show that her claim has substantive plausibility.” Johnson v.
City of Shelby, 135 S. Ct. 346, 347 (2014). Where plaintiffs state “simply, concisely, and
directly events that . . . entitled them to damages,” the rules require “no more to stave off
threshold dismissal for want of an adequate statement[.]” Id.; El-Hallani v. Huntington
Nat. Bank, 623 F. App’x 730, 739 (6th Cir. 2015) (“Although Twombly and Iqbal have
raised the bar for pleading, it is still low.”).
B. Amendment
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its
pleadings with the court’s leave, which “[t]he court should freely give . . . when justice so

3

requires.” Fed. R. Civ. P. 15(a)(2). Nonetheless, courts may deny amendment for a
variety of reasons—“such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.” Foman v. Davis, 83 S. Ct. 227, 230 (1962). “Amendment of a
complaint is futile when the proposed amendment would not permit the complaint to
survive a motion to dismiss.” Miller v. Calhoun Cnty., 408 F.3d 803, 807 (6th Cir. 2005)
(citing Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23
(6th Cir. 1980)). Ultimately, “the grant or denial of an opportunity to amend is within the
discretion of the District Court.” Foman, 83 S. Ct. at 230.5
C. Deliberate Indifference
To survive a motion to dismiss Eighth Amendment conditions of confinement
claims, such as Plaintiffs now bring, prisoners must allege “facts that, if proven, would
show that prison officials acted with ‘deliberate indifference’ towards conditions at the
prison that created a substantial risk of serious harm. . . . This test involves both an
objective and subjective component.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.
2000) (internal citations omitted). To satisfy the objective component, “[f]or a claim (like
the one here) based on a failure to prevent harm, the inmate must show that he [was]
incarcerated under conditions posing a substantial risk of serious harm.” Farmer v.

5

The Supreme Court, of course, recognizes the adverbial laxity in the rule and has
applied it “to ward off . . . insistence on a punctiliously stated ‘theory of the
pleadings[.]’” Johnson v. City of Shelby, 135 S. Ct. at 347. The Sixth Circuit has
suggested that a timely request to amend, in response to potential dismissal, is a factor in
assessing the trial court’s exercise of discretion on denying or freely granting
amendment. See Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 551–52 (6th Cir.
2008).

4

Brennan, 114 S. Ct. 1970, 1977 (1994). To satisfy the subjective component, the inmate
must show that prison officials acted (or failed to act) with “deliberate indifference to
inmate health or safety[.]” Id. (internal citations and quotation marks omitted).
Per the cases, deliberate indifference, in turn, has subjective and objective
components. Perez v. Oakland Cnty., 466 F.3d 416, 423 (6th Cir. 2006).6 “[T]he
deliberate indifference standard ‘describes a state of mind more blameworthy than
negligence[.]” Brown, 207 F.3d at 867. Plaintiffs must show that prison officials knew of
and disregarded conditions objectively posing “an excessive risk to inmate health or
safety[,]” and that the officials did so with a sufficiently culpable state of mind. Id.; see
also Youngberg v. Romeo, 102 S. Ct. 2452, 2458 (1982) (“[I]t is cruel and unusual
punishment to hold convicted criminals in unsafe conditions.”).
“In considering the subjective component, [the Sixth C]ircuit has emphasized that
a plaintiff must produce evidence showing that the official being sued subjectively
perceived facts from which to infer substantial risk to the prisoner, that he did in fact
draw the inference, and that he then disregarded that risk.” Perez, 466 F.3d at 424;
Rouster, 749 F.3d at 446 (setting out test). Deliberate indifference is “a stringent standard
of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (quoting
Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 117 S. Ct. 1382, 1391 (1997)); see

6

Case law does not consistently use the same terminology, but the objective component
of deliberate indifference substantially dovetails with the sufficiently serious deprivation
inquiry. See, e.g., Napier v. Madison Cnty., Ky., 238 F.3d 739, 742 (6th Cir. 2001);
Daniels v. Mahone, No. 1:14-CV-2753, 2015 WL 3619529, at *2-3 (N.D. Ohio June 8,
2015).
5

also Farmer, 114 S. Ct. at 1980 (adopting “subjective recklessness” as the test for
deliberate indifference).7
“[T]he subjective intentions of prison authorities must be demonstrated by
objective manifestations of such intent, and cannot be proved by factually unsupported,
conclusory opinions of the court or of the prisoners or their representatives.” United
States v. Michigan, 940 F.2d 143, 154 n.7 (6th Cir. 1991). However, “courts may infer
the existence of this subjective state of mind from the fact that the risk of harm is
obvious[,]” Warren, 576 F. App’x at 553 (internal quotation marks omitted) (quoting
Hope v. Pelzer, 122 S. Ct. 2508, 2514 (2002)), or in other “usual ways, including
inference from circumstantial evidence.” Id. (quoting Farmer, 114 S. Ct. at 1981).
II.

RECOMMENDED DISMISSAL
Plaintiffs pursue recovery based on a relatively straightforward factual scenario:

Certain female inmates, on August 13, 2016, started a mattress fire in the “female
communal room” at LCDC. During—and for three hours after—the conflagration, LCDC
staff allegedly refused to evacuate the male prisoners, including Plaintiffs, from the
adjacent, smoke-filled, male communal room. Defendants moved for Rule 12(b)(6)
dismissal. DE 5. Upon full briefing, Judge Atkins recommended dismissing Defendant
KACo “because it is not a real party in interest” and dismissing the balance of the
For the subjective component of deliberate indifference, the standard of “deliberateness
tantamount to an intent to punish” is “not good law.” Warren v. Prison Health Servs.,
Inc., 576 F. App’x 545, 559 (6th Cir. 2014). Instead, as set out above, “deliberate
indifference . . . is satisfied by something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result.” Farmer, 114 S. Ct. at 1978.
Farmer described the boundary line, recklessness, as when “the official knows of and
disregards an excessive risk to inmate . . . safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk . . . exists, and he must
also draw the inference.” Id. at 1979.
7

6

Complaint as alleging only negligent conduct, which is not actionable under § 1983. DE
12, at 3–6.
The Court must conduct a de novo review of “those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C §
636(b). However, “[i]t does not appear that Congress intended to require district court
review of a magistrate's factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.” Thomas v. Arn, 106 S. Ct. 466,
472 (1985). A party that fails to “file objections with the district court . . . waive[s] [the]
right to appeal.” United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). Despite
Plaintiffs’ non-objection, the Court has examined the recommendation in full. The Court
agrees that all claims against KACo should be dismissed. Indeed, the Complaint contains
not a single factual allegation against KACo. Plaintiffs agree that KACo dismissal is
appropriate. DE 9, at 1. [The proposed Amended Complaint (DE 15-1) seeks to substitute
LCDC for KACo.] Accordingly, the Court adopts Judge Atkins’s recommendation in part
and dismisses KACo from this action.
On the other hand, the Court finds dismissal as to Clark and the Doe Defendants
unwarranted. The Court reads the original Complaint as alleging distinct state law
negligence and § 1983 deliberate indifference claims that satisfy the 12(b)(6) standard
and, thus, rejects the dismissal recommendations as to Clark and the Unknown
Defendants. See DE 1, at ¶¶ 8–14 (“Count I – Negligence”), at ¶¶ 15–17 (“Count II –
Violation of the Eighth Amendment”). As Judge Atkins noted, stressing the Kentucky
law references in the Complaint, “negligence claims may arise under state law negligence
theories.” DE 12, at 4 (citing Woodrum v. City of Frankfort, No. Civ.A.05-CV-32-KKC,

7

2005 WL 1514309, at *2 (E.D. Ky. June 24, 2005)). The Court also agrees that “the
factual allegations solely found in Plaintiffs’ Eighth Amendment claim, [ ] construed in
Plaintiffs’ favor, . . . [plausibly state a claim] that Defendant Clark, in his individual
capacity, and the Unknown Corrections Officers exhibited deliberate indifference toward
Plaintiffs’ health sufficient to constitute cruel and unusual punishment under the Eighth
Amendment.” DE 12, at 5. Judge Atkins saw plausible negligence and a plausible
deliberate indifference claim but then melded the allegations to find that Plaintiffs were
alleging only a negligent level of culpability. In the Court’s view, the Complaint
adequately stated each claim.
The Complaint, construed in Plaintiffs’ favor, alleges8 that Clark and the
Unknown Defendants9 violated the Eighth Amendment “by refusing to remove Plaintiffs
from [a] smoke filled cell for approximately three (3) hours following the inception of the
fire, despite their knowledge of such.” DE 1, at ¶ 17. Plaintiffs further allege that
“Defendants’ acts or omissions . . . were grossly negligent, reckless, wanton, or willful.”
Id. at ¶ 19 (emphasis added). The law equates deliberate indifference with recklessness.
See Farmer, 114 S. Ct. at 1978 (“It is, indeed, fair to say that acting or failing to act with
deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent
of recklessly disregarding that risk.”). Here, Plaintiffs claim that Defendants, during and
in the aftermath of a jail fire, recklessly (or willfully) refused to evacuate them from a
smoke-filled cell for three hours. At the pleading stage, this supports a plausible liability

8

In addition to the unchallenged Kentucky negligence claims. See, e.g., DE 1, at ¶ 10.
The Complaint vacillates between “Unknown Corrections Officers,” “corrections
officers,” and “Corrections Officers.” DE 1, at ¶¶ 5, 9, 13. The Court fairly infers that
each of these references the jail officers involved in the alleged failure to evacuate.
9

8

inference and suffices. The allegations of employee knowledge and recklessness cause
the Court to reject the final step in Judge Atkins’s analysis.
III.

AMENDMENT MOTION
Plaintiffs, with the proposed Amended Complaint (DE 15-1), attempt to retool the

case and bolster the § 1983 claims. Williams & Ludwick now explicitly contend that
LCDC personnel were deliberately indifferent toward their health and welfare. Plaintiffs
also claim that Defendant Clark “implicitly authorized and approved, or knowingly
acquiesced in the unconstitutional conduct of the offending” officers. DE 15-1, at ¶ 11.
Plaintiffs, however, appear to abandon their state law negligence theory. The proposed
amended pleading strips references to state or common law negligence theories. Compare
DE 1, at ¶ 10 (“Under Kentucky Revised Statutes and common law, LCDC and its
employees and agents have a duty to use reasonable care to prevent an injury to an inmate
that the jailer could have reasonably anticipated.”), with DE 15-1, at ¶¶ 7–13.
Accordingly, the Court, hereafter, limits analysis to the federal claims under the tendered
pleading.
Defendants, essentially, claim the proposed amendment would be futile. They
argue the Court should deny amendment because: (1) the Amended Complaint is time
barred, DE 16, at 3–4; (2) negligence (again) does not warrant § 1983 relief, id. at 4; (3)
Plaintiffs did not exhaust their administrative remedies, id. at 5–6; and (4), as to
Defendant Clark, the Amended Complaint alleges only supervisory involvement, which
does not of itself support § 1983 liability, id. at 6–7.
The Court has fully reviewed the record and finds that the interests of justice
require granting leave to amend only as to the claims asserted against Defendant Clark

9

and the Unknown Corrections Officers. As detailed below, the proposed Amended
Complaint fails to state a claim upon which relief could be granted against LCDC, and,
thus, amendment would be futile. The Court otherwise rejects Defendants’ challenges to
Plaintiffs’ motion for leave.
A. LCDC / Time-Bar
Regarding the claims against LCDC, the Court makes the following observations.
Generally, respondeat superior liability does not lie in § 1983 actions. Cf. Monell v. Dep't
of Soc. Servs. of City of New York, 98 S. Ct. 2018, 2036 (1978) (“[A] municipality cannot
be held liable solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.”). Thus, any LCDC
liability must result from some official policy that caused a deprivation of Plaintiffs’
Eighth Amendment rights. See Starcher v. Corr. Med. Sys., Inc., 7 F. App'x 459, 465 (6th
Cir. 2001) (“For liability to attach against Hamilton County under § 1983, the plaintiff
must show that deliberate action attributable to the municipality directly caused a
deprivation of federal rights.” (internal citations and quotation marks omitted)).10 As to
LCDC, the amendment effort is clearly futile. Plaintiffs entirely fail to allege a nexus
between any jail policy and the claimed events or injuries. Indeed, the revised complaint
explicitly claims that “the Jailer and his Corrections Officers failed to comply with” their
duty to follow policies and procedures. See DE 15-1, at ¶ 12. Plaintiffs lodging no factual

The Court also notes that Plaintiffs do not pursue any amendment to their “Parties,
Jurisdiction, and Venue” section, DE 15-1, at ¶¶ 2–6, that might explain why LCDC, as
opposed to Leslie County, itself, is a proper party to this action. See, e.g., Blay v. Daviess
Cty. Det. Ctr., No. CIV.A. 4:07CV-P69-M, 2007 WL 2809765, at *1 n.1 (W.D. Ky. Sept.
25, 2007) (“[T]he detention center is not an entity subject to suit[.]”); KRS 67B.020(3).
10

10

criticisms against the custodial entity, state no claim against LCDC upon which the Court
could grant relief.
The Court also agrees that relation back would not spare claims against LCDC, as
an added party, from a time bar. The Sixth Circuit generally denies relation back to a
newly added party. See In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448,
1449 (6th Cir. 1991) (“[T]he precedent of this circuit clearly holds that ‘an amendment
which adds a new party creates a new cause of action and there is no relation back to the
original filing for purposes of limitations.’”) (quoting Marlowe v. Fisher Body, 489 F.2d
1057, 1064 (6th Cir. 1973)). Although Rule 15(c)(1)(C) offers possible relation back for
correcting mistakes in the defendant roster, that Rule aims at inadvertent misdescription
or erroneous misidentification. See Asher v. Unarco Material Handling, Inc., 596 F.3d
313, 319 (6th Cir. 2010) (“[T]he type of ‘changes’ permitted [under Rule 15] are limited
to corrections of misnomers or misdescriptions.”); Cox v. Treadway, 75 F.3d 230, 240
(6th Cir. 1996) (describing the Rule 15(c)(1) predecessor as carrying a “mistaken identity
requirement” (internal citations and quotation marks omitted)). Here, Plaintiffs clearly
understood that KACo was the insurance company for LCDC. See DE 18, at 3
(describing KACo role). Rather than naming the alleged wrongdoing entity Plaintiffs
initiated a direct action against the involved insurance company. This shows an informed
election among parties (knowing the custodial entity, LCDC, but choosing to sue the
entity’s insurer—though alleging no wrongful conduct against the insurer entity). Poor
but sentient strategy is not the type of “mistake” Rule 15(c) countenances.11 As such, any

“Indeed, tactical decisions by plaintiffs as to whom to sue do not constitute mistakes at
all for purposes of the rule.” § 1498.3 Relation Back of Amendments Changing Parties—
The Knowledge-of-Mistake Requirement, 6A Fed. Prac. & Proc. Civ. § 1498.3 (3d ed.)
11

11

claim against LCDC would not relate back.12 Accordingly, for all these reasons,
amendment, as to LCDC, would be futile, and the Court rejects the effort.
B. Failure to State a Claim
On the other hand, the Court finds that Plaintiffs allege plausible § 1983 claims
against Defendant Clark and the Doe Defendants in the Amended Complaint. As
explained above, the Court reads the original Complaint as containing sufficient
allegations to overcome the Rule 12(b)(6) hurdle. Certainly, the proposed Amended
Complaint—with its amplified claim basis and more detailed culpability allegations—
fares no worse.
The defense overstates its criticisms of the amendment. Defendants insist that
when Plaintiffs claim deliberate indifference they really mean gross negligence. DE 16, at
4. However, the lenient amendment (and futility/dismissal) standards mandate plaintifffavorable (not defendant-proposed) inferences. Defendants offer no authority to support
their invitation to ignore the pleading’s plain language. The claims explicitly allege that
Clark and the Doe Defendants were deliberately indifferent; the Court reads them
accordingly. “To read the complaint any other way would suggest that the defendant[s],
not the [plaintiff]s, are the master[s] of their complaint.” Ohio ex rel. Skaggs v. Brunner,
(citing, inter alia, Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 371–72 (4th Cir.
2014) (“Tatum's decision not to include as defendants the individual committee members
reflected a deliberate choice to sue one party instead of another while fully understanding
the factual and legal differences between the two parties.” (internal citations and
quotation marks omitted)), cert. denied, 135 S. Ct. 2887 (2015)).
12
To the extent Defendants contend that the full amended claim slate would be timebarred as a consequence of Plaintiffs erroneous attempt to add LCDC, they reach too far.
See DE 16, at 5 (“Thus, the Plaintiffs’ Amended Complaint is barred by the statute of
limitations[.]”). While party addition, via amendment, may create a new cause of action,
such action is “independent” of claims made against pre-amendment parties. United
States ex rel. Statham Instruments, Inc. v. Western Cas. & Surety Co., 359 F.2d 521, 523
(6th Cir. 1966). The original claims facially were timely.
12

549 F.3d 468, 475 (6th Cir. 2008) (emphasis in original) (internal citations and quotation
marks omitted).13 The Amended Complaint alleges conscious refusal by Defendants to
remove Plaintiffs from a smoke-filled cell for 3 hours. Plaintiffs accuse Defendants of
voluntary and reckless conduct. This crosses the bar.
C. Exhaustion
Finally, Defendants, citing the Prisoner Litigation Reform Act (PLRA) exhaustion
requirements, object to the amendment because “[t]he Complaint on its face, makes no
allegation that either of the Plaintiffs filed any complaints or grievances with the”
Defendants. DE 16, at 5. The Supreme Court has clearly held that “failure to exhaust is
an affirmative defense under the PLRA, and that inmates are not required to specially
plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 127 S. Ct. 910, 921
(2007). “In light of Jones, the Sixth Circuit has concluded that the exhaustion affirmative
defense is best raised in a motion for summary judgment.” Jackson v. Aramark, No. 3:17CV-P322-DJH, 2017 WL 4288921, at *1 (W.D. Ky. Sept. 27, 2017). The Court, at the
dismissal stage, is limited to the pleadings. Exhaustion—as an affirmative defense—will

13

Regarding the Clark-specific arguments, it is true that a supervisory liability claim
typically does not lie under § 1983 absent an allegation that the supervisor “encouraged
the specific incident of misconduct or in some other way directly participated in it.”
Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995); see also Gregory v.
City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006). “Allegations of supervisory liability
by themselves, moreover, will not do the trick. Instead of holding supervisors liable on a
theory of vicarious liability, the supervisors must have actively engaged in
unconstitutional behavior to be liable under § 1983.” Mitchell v. Hininger, 553 F. App’x
602, 607 (6th Cir. 2014) (internal quotation marks removed). “[S]imple awareness of
employees’ misconduct does not lead to supervisor liability.” Leary v. Daeschner, 349
F.3d 888, 902 (6th Cir. 2003). As Judge Atkins did (as to the original Complaint), the
Court reads the pleading as alleging not only supervisory but also direct involvement by
Clark: “Defendants violated this amendment by consciously . . . refusing to remove the
Plaintiffs[.]” DE 15-1, at ¶ 19. Plaintiffs have plausibly alleged that Clark, himself, was
deliberately indifferent. This warrants the requested amendment.
13

likely require resort to sources and proof not yet properly before the Court. See, e.g.,
Woodford v. Ngo, 126 S. Ct. 2378, 2386 (2006) (“Proper exhaustion demands compliance
with an agency's deadlines and other critical procedural rules[.]” (emphasis added)). The
Court rejects (at this time)14 Defendants’ premature exhaustion argument.
D. Unknown Defendants
The Court takes up one final issue (understandably) unaddressed by the named
Defendants. Plaintiffs’ amendment efforts do not include any attempt to name the, as yet,
Unknown Corrections Officers. The LCDC fire, and the alleged injuries, occurred on
August 13, 2016. Plaintiffs filed the Complaint on August 11, 2017. Between fire and
filing, Plaintiffs’ counsel (on May 3, 2017) corresponded with LCDC. DE 18, at 3.
Plaintiffs have “yet to identify [the Doe Defendants], and thus ha[ve] yet to serve them,
clearly in violation of the [90]-day window provided by Rule 4(m).”15 Petty v. Cty. of
Franklin, Ohio, 478 F.3d 341, 345 (6th Cir. 2007), abrogated on other grounds, Bailey v.
City of Ann Arbor, 860 F.3d 382, 389 (6th Cir. 2017). In short, it appears, on this record,
that Plaintiffs have had a reasonable opportunity to discover the identities of the
corrections officers working at LCDC in August of 2016.
Further, “Sixth Circuit precedent clearly holds that new parties may not be added
after the statute of limitations has run[.]” Cox, 75 F. 3d at 240. Here, the statute has

14

Defendants, of course, may raise an exhaustion defense, as appropriate, on a more
complete record.
15
Fed. R. Civ. P. 4(m), in pertinent part, provides: “If a defendant is not served within 90
days after the complaint is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.”
14

expired.16 “Replacing a ‘John Doe’ defendant with a new, previously unknown party is
considered a change of parties and must comply with the requirements of Rule
15(c)(1)(C) when the change is made after the expiration of the applicable statute of
limitations.” Brown v. Cuyahoga Cty., Ohio, 517 F. App'x 431, 433 (6th Cir. 2013). In
the Sixth Circuit “an absence of knowledge is not a ‘mistake’ as used in Rule
15(c)(1)(C)(ii).” Id. at 434.17 Accordingly, an attempt to amend to add identified officers
would likely be time-barred.
In short, Plaintiffs satisfactorily pleaded § 1983 claims against the Doe
Defendants, but obviously have not timely served the unidentified individuals or pursued
identifying amendments within the limitations period. Thus, Plaintiffs must show cause
why the amended claims against the Unknown Corrections Officers should not be
dismissed under Rule 4(m).
IV.

CONCLUSION
For all these reasons the Court ORDERS as follows:

For § 1983 claims, federal courts borrow forum states’ personal injury statutes of
limitation. See Wilson v. Garcia, 105 S. Ct. 1938, 1949 (1985). Here, the relevant statute
surely is the one-year limitation period provided by KRS 413.140. Ham v. Marshall Cty.,
Ky., No. 5:11-CV-11, 2012 WL 5930148, at *3 (W.D. Ky. Nov. 27, 2012) (citing Collard
v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990)).
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The Brown Court noted, in 2013, that the Sixth Circuit “has not spoken authoritatively
on” the continuing validity of the Circuit’s rule that “an absence of knowledge is not a
mistake, as required by Rule 15(c)(1)(C)(ii)” since the Supreme Court decision in
Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485 (2010). 517 F. App'x at 434. Based on
the Court’s review, the Court of Appeals has not, 5-years hence, published an opinion on
the question. [The sole published opinion citing Krupski did not address the substantive
impact of the decision. See Durand v. Hanover Ins. Grp., Inc., 806 F.3d 367, 375 (6th
Cir. 2015) (quoting Krupski’s description of relation-back effect).] Given that the Sixth
Circuit has “recognized the continued validity” of the “absence of knowledge” rule in
unpublished opinions, the Court would apply it here. Brown, 517 F. App’x at 434.
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15

1. The Court ADOPTS Magistrate Judge Atkins’s Report and
Recommendation (DE 12) in part (consistent with the above rulings,
only to the extent it recommends dismissing Defendant KACo), and
otherwise REJECTS DE 12;
2. The Court GRANTS Defendants’ Motion to Dismiss (DE 5) in part
(consistent with the above rulings, only to the extent it seeks KACo
dismissal), and otherwise DENIES DE 5;
3. The Court DISMISSES all claims against Defendant KACo WITH
PREJUDICE;
4. The Court GRANTS in part and DENIES in part Plaintiffs’ Motion
for leave to Amend (DE 15):
a. The Court DENIES leave to add LCDC as a party Defendant;
b. The Court GRANTS leave to amend the claims against
Defendant Clark and the Unknown Corrections Officers;
5. Plaintiffs SHALL file an amended complaint consistent with the
rulings set forth herein within 14 days; that filing shall simply remove
LCDC from the tendered Amended Complaint and otherwise effect no
substantive changes; and
6. Plaintiffs SHALL SHOW CAUSE why the Court should not dismiss
all amended claims against the Unknown Corrections Officers
pursuant to Rule 4(m) within 30 days; failure to show cause will result
in dismissal, without prejudice, of claims against the Unknown
Corrections Officers.

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This the 28th day of June, 2018.

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