Mulaosmanovic v. Warren County, Kentucky et al
MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 3/12/2018 granting in part and denying in part 7 Defendants' Motion to Dismiss. (Defendant Warren County, Kentucky dismissed.) cc: Counsel (CDF)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00169-GNS
WARREN COUNTY, KENTUCKY, et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss (DN 7). For the
reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.
Plaintiff Nadir Mulaosmanovic (“Plaintiff”) brought this action against Warren County,
Jackie Strode (“Strode”), and Stephen Harmon (“Harmon”) (collectively “Defendants”),
asserting that Defendants violated 42 U.S.C. § 1983 and Kentucky law. (Compl. ¶¶ 13-23, DN
1). At all times relevant to this litigation, Plaintiff was an inmate at the Warren County Regional
Jail (“WCRJ”), and Strode and Harmon worked as jailers at that facility. (Compl. ¶ 2, 5, 7-8).
Though not altogether clear, the foundation of the Complaint appears to be that
Defendants failed to hire and train qualified persons to work at the WCRJ, as evidenced by the
fact that the facility’s medical personnel provided Plaintiff with subpar treatment on October 12,
2016. (Compl. ¶ 6). Plaintiff claims that another inmate assaulted him on that date, and that the
jailers at the WCRJ “failed to stop the assault,” causing him to suffer serious injuries to the “left
side of his face.” (Compl. ¶¶ 9-10). Plaintiff avers that the WCRJ’s unqualified medical staff
then failed to treat his injuries and refused to permit him to undergo an x-ray at an outside
facility. (Compl. ¶ 12). As evidence of the medical staff’s deficient treatment, Plaintiff notes
that the Warren District Court permitted him to visit an emergency room on October 14, 2016.
(Compl. ¶¶ 13-14). X-rays taken during that visit confirmed that Plaintiff had “fractures on [the]
left side of his face,” for which he underwent surgery. (Compl. ¶¶ 13-14, 16).
Plaintiff filed this action on October 13, 2017, asserting four claims against Defendants
and one claim against an unnamed defendant. (See Compl. ¶¶ 13-23). Strode and Harmon are
sued in both their official and individual capacities.
(Compl. ¶ 6).
Plaintiff claims that
Defendants failed to hire qualified employees and train their employees, which constitute: (1) a
violation of Section 1983 because the alleged misconduct infringes the Eighth Amendment’s
prohibition on cruel and unusual punishment; (2) negligence and gross negligence;1 and (3) the
tort of outrage.
(Compl. ¶¶ 13-21).
Plaintiff also charges that Defendants are liable for
negligence per se, as aspects of the WCRJ’s medical department do not comply with 501 KAR
3:090. (Compl. ¶¶ 22-23). Finally, Plaintiff asserts a medical malpractice claim against an
unnamed nurse at WRCJ.2 (Compl. ¶ 17).
Defendants have moved to dismiss all claims. (Defs.’ Mem. Supp. Mot. Dismiss 1-12,
DN 7-1 [hereinafter Defs.’ Mot. Dismiss]). Defendants assert that the statute of limitations bars
all of Plaintiff’s claims except his claim of outrage. (Defs.’ Mot. Dismiss 2-5). They also state
as grounds for dismissal that: (1) Plaintiff’s Section 1983 claim fails to state a claim on which
relief can be granted, and (2) sovereign immunity bars Plaintiff’s state law claims against Warren
The Court interprets Plaintiff’s negligence claim—which simply states that “Defendants were
negligent”—as a claim that Defendants acted negligently when they failed to hire and train
qualified personnel to work at the WCRJ. (See Compl. ¶¶ 6, 17).
With respect to Plaintiff’s purported medical malpractice claim, the allegation simply states that
a “[n]urse at the Warren County Regional Jail failed to satisfy the standard of care applicable to
the nursing profession.” (Compl. ¶ 17). The parties treat this allegation as a medical malpractice
claim in their filings, and the Court will address it as such. (See, e.g., Pl.’s Resp. Mot. Dismiss
9-11, DN 10 [hereinafter Pl.’s Resp.]).
County, as well as the official-capacity state law claims against Strode and Harmon. (Defs.’ Mot
Dismiss 6-12). The parties have briefed the issues attendant to Defendants’ motion, and it is ripe
This action arises under the laws of the United States, and this Court has jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367.
STANDARD OF REVIEW
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” and is subject to dismissal if it “fail[s] to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 8(a)(2); Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss under Rule 12(b)(6), the plaintiff must allege “enough facts to state a claim to relief that
is plausible on its face.” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep’t of Educ., 615
F.3d 622, 627 (6th Cir. 2010) (internal quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). A claim is implausible if an affirmative defense bars it. Southfield Educ. Ass’n v.
Southfield Bd. of Educ., 570 F. App’x 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 56164); Conner v. U.S. Dep’t of the Army, 6 F. Supp. 3d 717, 722 (W.D. Ky. 2014) (“[A] complaint
that shows on its face that relief is barred by the affirmative defense of the statute of limitations
is properly subject to a Rule 12(b)(6) motion to dismiss . . . .” (citation omitted)).
Defendants argue that the statute of limitations and the doctrine of sovereign immunity
bar all of Plaintiff’s claims. (Defs.’ Mot. Dismiss 2-8). The Court will address each argument.
Statute of Limitations
The limitations period for Section 1983 actions—as well as for negligence, negligence
per se, and medical malpractice claims—is one-year based on Kentucky’s personal injury statute
of limitations. Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990) (citation
omitted); Vannoy v. Milum, 171 S.W.3d 745, 748 (Ky. 2005) (noting that medical malpractice
actions are subject to a one-year limitations period); see also KRS 413.140(1)(a). Federal law
“determines when [a Section 1983] cause of action” accrues, state law determines when a state
law cause of action accrues, and state tolling laws apply to both inquiries. See Perreault v.
Hostetler, 884 F.2d 267, 270 (6th Cir. 1989). Under both Kentucky and federal law, “the
limitations period begins to run when a plaintiff knew or should have known of the injury that
forms the basis of the claim.” See Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007) (citation
omitted); see also McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) (“A § 1983 claim
for failure to train . . . begins to run when the facts that would support a cause of action are or
should be apparent.” (citation omitted)); Louisville Tr. Co. v. Johns-Manville Prods. Corp., 580
S.W.2d 497, 500 (Ky. 1979) (citation omitted).
The statute of limitations in this instance bars Plaintiff’s Section 1983 claim, as well as
the claims for negligence and medical malpractice. According to the Complaint, Defendants’
failure to train the WCRJ’s medical staff subjected Plaintiff to substandard medical care on
October 12, 2016. (Compl. ¶ 7, 11). Plaintiff’s medical malpractice claim accrued on that date
because he then knew that a WCRJ nurse provided him with subpar treatment, as evidenced by
the fact that Plaintiff requested “a full medical observation and x-ray of his left side of his face
and eye” immediately after visiting the nurse. (Compl. ¶ 12). Further, Plaintiff’s Section 1983
and negligence claims accrued at that time because he knew then that he received poor medical
treatment, on October 12, 2016, due to Defendants’ failure to hire and train qualified personnel.
See McCarty, 646 F.3d at 1289 (reasoning that plaintiff had facts necessary to support claim that
defendant failed to train employees when the employees engaged in the underlying tortious
conduct). Nonetheless, Plaintiff filed the Complaint on October 13, 2017—one day outside the
limitations period. Therefore, Plaintiff’s Section 1983 claim and claims for negligence and
medical malpractice are time-barred.
The same result attaches to Plaintiff’s negligence per se claim which is premised on
Defendants’ violation of 501 KAR 3:090.3 (Compl. ¶ 23). Though the Complaint does not
specify subsections of the regulation, the only provisions relating to Plaintiff’s general
allegations provide: (1) “[a]ll health care staff working in the jail shall comply with state
licensure and certificate requirements”—i.e., be qualified for the job, and (2) “[i]f emergency
care is needed, it shall be provided.”4 501 KAR 3:090(4), (21). As noted above, Plaintiff knew
that he needed emergency medical care—and experienced the effects of WCRJ’s allegedly
The Court has previously noted that a prison’s violation of this regulation may not give rise to a
private right of action. Johnson v. Prison Health Servs., Inc., No. CIV.A. 3:06-CV-516H, 2009
WL 3856188, at *2 (W.D. Ky. Nov. 17, 2009). The Court will nonetheless analyze Plaintiff’s
negligence per se claim under the assumption that it is viable.
Plaintiff explains in his briefing that he suspects that Defendants violated the regulations
because they do not maintain a “daily medical log” and did not transfer Plaintiff so that he could
resolve his medical issues. (Pl.’s Resp. 9). Whether Defendants violated 501 KAR 3:090(5)
when they failed to keep a medical log is irrelevant to Plaintiff’s negligence per se claim because
Plaintiff has not alleged any injury caused by that purported failure. See Stivers v. Ellington, 140
S.W.3d 599, 601 (Ky. App. 2004) (“As with common-law negligence, causation and injury must
still be proved in negligence per se claims.”). In addition, the regulations do not require jails to
permit prisoners to transfer elsewhere due to their medical conditions.
unqualified medical staff—on October 12, 2016, the date that he received treatment and
requested further treatment immediately thereafter. (Compl. ¶ 12).
Seeking to avoid this outcome, Plaintiff raises two arguments. First, he claims that he did
not discover his injury until October 14, 2016—when the x-ray screening confirmed that he had
“fractures on [the] left side of his face.” (Compl. ¶¶ 13-14; Pl.’s Resp. 5-8). As discussed
above, however, Plaintiff’s own allegations refute that proposition. While Plaintiff may have
discovered the extent of his facial injuries on October 14, his “lack of knowledge of the extent of
[an] injury does not toll a statute of limitation . . . .” See Louisville Tr. Co., 580 S.W.2d at 500.
Second, Plaintiff asserts that the limitations period should be tolled until October 14, 2016
pursuant to Kentucky’s “continuous course of treatment” doctrine. (Pl.’s Resp. 7-8). That
doctrine “operates to toll the statute of limitations” in situations “where a patient[,] . . . knowing
that the physician has rendered poor treatment, . . . continues treatment in an effort to allow the
physician to correct any consequences of the poor treatment . . . .” Harrison v. Valentini, 184
S.W.3d 521, 525 (Ky. 2005). Plaintiff ceased treatment with the medical staff at WCRJ on
October 12, 2016, and any subsequent treatment he received at an outside facility “cannot be
imputed to [Defendants] for the purpose of applying the” doctrine. Mullins v. Graber, No. 2015CA-000346-MR, 2016 WL 4098760, at *3 (Ky. App. July 29, 2016). Plaintiff’s arguments
Plaintiff’s Section 1983 claim and claims for negligence, negligence per se, and medical
malpractice fall outside the one-year limitations period in KRS 413.140.
The Court will
therefore dismiss these claims.5 Conner, 6 F. Supp. 3d at 722 (noting that a complaint fails to
state a claim if all claims contained within fall outside of the applicable limitations period).
Defendants argue that Plaintiff’s outrage claim is barred by the doctrine of sovereign
immunity. The Kentucky Supreme Court has held that a county is a political subdivision of the
Commonwealth protected by the same sovereign immunity as the state.
Urban Cty. Gov’t v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004) (citation omitted). As a result,
counties and county employees sued in their official capacity are immune from tort liability
unless the General Assembly waives such immunity via statute. Id. (citations omitted); Yanero
v. Davis, 65 S.W.3d 510, 518 (Ky. 2001) (noting that sovereign immunity “extends to public
officials sued in their [official] capacities, when the state is the real party against which relief in
such cases is sought” (citations omitted)).
Plaintiff counters that Defendants’ immunity argument fails because Warren County may
have “purchased insurance for coverage of the claims made in the lawsuit, [and] such purchase
of insurance could act as a waiver of immunity from tort liability.” (Pl.’s Resp. 13). In support
of his contention, Plaintiff cites Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001)—a case in
Plaintiff’s Section 1983 claim is also subject to dismissal because Plaintiff failed to adequately
plead it. To properly present a “failure to” claim against Warren County, and against Strode and
Harmon in their official capacities, Plaintiff must allege, inter alia, facts showing that inadequate
training “was the result of [Defendants’] deliberate indifference . . . .” Regets v. City of
Plymouth, 568 F. App’x 380, 394 (6th Cir. 2014) (quoting Ellis ex rel. Pendergrass v. Cleveland
Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006)). Given that he has not alleged that
Defendants “ignored a history of abuse,” he has failed to meet this standard. Miller v. Sanilac
Cty., 606 F.3d 240, 255 (6th Cir. 2010) (internal quotation marks omitted) (quoting Fisher v.
Harden, 398 F.3d 837, 849 (6th Cir. 2005)). Plaintiff must also present facts showing that
Strode and Harmon were personally involved in the “underlying unconstitutional act” in order to
state claims against them in their individual capacities, and he has failed to do so. Dillingham v.
Millsaps, 809 F. Supp. 2d 820, 846 (E.D. Tenn. 2011).
which the Kentucky Supreme Court interpreted KRS 67.1866 as expressly waiving counties’
sovereign immunity from suits against county hospitals in some circumstances. See id. at 342.
Defendants are immune from Plaintiff’s outrage claim. Given the narrow holding in
Reyes and the fact that Kentucky courts have since explained that Reyes did not hold that a
county’s purchase of “insurance coverage alone constitute[s] a waiver of immunity,” the Court
must conclude that Defendants are immune from Plaintiff’s claims—despite the fact that the
county may have purchased insurance to cover such claims. See Holbrook v. Perry Cty., No.
2003-CA-000119-MR, 2004 WL 1909344, at *1 (Ky. App. Aug. 27, 2004). Accordingly,
Plaintiff’s claim of outrage against Warren County and Strode and Harmon in their official
capacities must be dismissed.7 See Oshop v. Tenn. Dep’t of Children’s Servs., No. 3:09-CV0063, 2009 WL 1651479, at *2 (M.D. Tenn. June 10, 2009) (explaining that Rule 12(b)(6) is an
“appropriate mechanism to dismiss claims barred by . . . sovereign immunity”).
Nonetheless, Plaintiff’s claim of outrage against Strode and Harmon in their individual
capacities is not subject to dismissal. Strode and Harmon are not entitled to sovereign immunity
as to claims against them in their individual capacities.8 See Yanero, 65 S.W.3d at 518 (noting
that sovereign immunity “extends to public officials sued in their [official]  capacities . . . .”).
Neither Strode nor Harmon has asserted any other basis on which the Court might conclude that
this claim should be dismissed. As a result, Plaintiff may proceed with discovery on his claims
The statute at issue in Reyes is inapplicable to this action.
Given this analysis, even if Plaintiff’s negligence, negligence per se, and medical malpractice
claims against Warren County and Strode and Harmon in their official capacities were not timebarred, sovereign immunity would bar those claims.
Strode and Harmon appear to recognize this result in their briefing, as they specifically invoke
sovereign immunity as a bar to Plaintiff’s “claims against them in their official capacities.”
(Defs.’ Reply Br. Supp. Mot. Dismiss 13, DN 12 (emphasis in original)).
of outrage against Strode and Harmon in their individual capacities, but all other claims are
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion to
Dismiss (DN 7) is GRANTED IN PART and DENIED IN PART.
Greg N. Stivers, Judge
United States District Court
March 12, 2018
counsel of record
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