Porter v. Louisville Jefferson County Metro Government et al

Filing 280

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 8/11/2017, re Defendants, Louisville/Jefferson County Metro Government and City of Louisville's 272 MOTION for Reconsideration. cc: Counsel, Juan Sanders (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
KERRY PORTER

PLAINTIFF

CIVIL ACTION NO. 3:12-CV-00829-CRS

v.

LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT, et al.

DEFENDANTS

MEMORANDUM OPINION

I.

Introduction

This matter is before the Court on the motion of Defendants Louisville/Jefferson County
Metro Government (“Metro Government”) and the City of Louisville (“the City”) (collectively,
“Defendants”) for reconsideration under Federal Rule of Civil Procedure 54(b), ECF No. 272.
Plaintiff Kerry Porter responded, ECF No. 277. Defendants replied, ECF No. 278. For the
reasons set forth below, the Court will grant Defendants’ motion to reconsider the ruling on their
motion for summary judgment.
II.

Background

On September 26, 2016, Defendants moved for summary judgment on all claims against
them.1 Mot. Summ. J., ECF No. 232. On May 2, 2017, this Court ruled on Defendants’ summary
judgment motion. Order, ECF No. 265. The Court granted Defendants’ motion with the
exception of Count VIII, which asserts a state law claim for negligent supervision. Id. Among the
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Defendants’ motion for summary judgment was also filed by Gary Kearney, Thomas
Schneider, Tony Finch, Lawrence Zehnder, and Gene Sherrard. Mot. Summ. J. 1, ECF No. 232.
The Court will discuss only rulings made on claims against the Metro Government and the City
for the purposes of this memorandum opinion.
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claims dismissed was Count VI which asserted a Monell claim against Defendants under 42
U.S.C. § 1983. Id.; Mem. Op. 59, 66, ECF No. 264.
In granting summary judgment in favor of Defendants on Porter’s Monell claim, the
Court determined that Defendants had presented unchallenged evidence that there was training
on, and a written policy concerning the handling of exculpatory evidence. Mem. Op. 61–62, 66,
ECF No. 264.
In his negligent supervision claim, Porter alleges that Defendants “had a duty to properly
train and supervise” the Louisville Police Department officers and to “provide adequate policies”
and “were grossly negligent and negligent in the training, supervision and discipline of the . . .
officers.” Compl. ¶¶ 125–26, ECF No. 1. He asserts that better training and supervision and the
enactment of additional and different policies would have prevented the officers from
“fabricating evidence, fabricating witness statements, and concealing material impeachment
evidence,” which resulted in Porter “being deprived of his right to due process, and his right to
be free from false arrest, false imprisonment, and wrongful conviction.” Id. ¶¶ 125, 126.
In denying Defendants’ motion on the negligent supervision claim, the Court held:
The City and Metro Government present to the Court the bare assertion that
“Plaintiff has asserted a state law claim of negligent supervision against the
municipal defendants . . . Plaintiff has failed to establish that his rights were
violated, therefore, his claim of negligent supervision fails.” Louisville Defs.’
Mem. Supp. Mot. Summ. J. 52–58, ECF No. 232-1. They offer no other analysis
in support of their motion for summary judgment on this claim. As discussed
above, the evidence indicates that Porter’s rights might have been violated.
Because the City and Metro Government offer nothing else in support of their
motion on the negligent supervision claim against them, the Court will deny
summary judgment to them.
Mem. Op. 67, ECF No. 264. In their motion for reconsideration, Defendants ask this Court to
reconsider the denial of summary judgment on the negligent supervision claim, urging that their

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argument addressing the Monell claim made earlier in their brief also supports summary
judgment as to the claim alleging negligent supervision. Mot. Recons. 2, ECF No. 272.
III.

Legal Standard

Federal Rule of Civil Procedure 54(b) reads, in relevant part, “any order . . . that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . .
may be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.” Generally, courts will find justification for reconsideration when
there is “(1) an intervening change of controlling law; (2) new evidence available; or (3) a need
to correct a clear error or prevent manifest injustice.” Rodriguez v. Tenn. Laborers Health &
Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004) (citing Reich v. Hall Holding Co., 990 F.
Supp. 955, 965 (N.D. Ohio 1998)). Reconsideration motions are disfavored and a motion will be
denied “unless it either calls . . . attention to an argument or controlling authority that was
overlooked or disregarded in the original ruling, presents evidence or argument that could not
previously have been submitted, or successfully points out a manifest error of fact or law.” Davie
v. Mitchell, 291 F. Supp. 2d 573, 634 (N.D. Ohio 2003).
Concluding that we must reconsider our denial of summary judgment on Count VIII, the
standard for summary judgment also applies herein.
Before granting a motion for summary judgment, the Court must find that “there is no
genuine issue of material fact such that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[W]here the moving party has the burden—the plaintiff on a claim
for relief or defendant on an affirmative defense—his showing must be sufficient for the court to
hold that no reasonable trier of fact could find other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986) (internal quotations and emphasis omitted).

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The Court must view the evidence in a light most favorable to the non-moving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). However, the non-moving party “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must show
that a genuine factual issue exists by “citing to particular parts of materials in the record” or by
“showing that the materials cited do not establish the absence ... of a genuine dispute[.]” Fed. R.
Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving
party’s] position will be insufficient; there must be evidence on which the jury could reasonably
find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
IV.

Discussion

Defendants ask this Court to reconsider its ruling on Porter’s negligent supervision claim
and request that this Court grant summary judgment in their favor. Mot. Recons. 2, ECF No. 272.
They argue that (1) Porter waived his negligent supervision claim by not offering an argument in
his response to Defendants’ motion for summary judgment and (2) they incorporated their
analysis of Porter’s Monell claim into their analysis of the negligent supervision claim. Id. at 5–
6.
First, the Court recognizes an error it made in disregarding a controlling legal principle.
Defendants correctly point out that Porter waived his negligent supervision claim when he did
not respond to Defendants’ motion for summary judgment on that claim. Mot. Recons. 5–6, ECF
No. 272. “[A] non-moving party waives an argument by failing to address the argument in [his]
response brief.” Keys v. Dart Container Corp., No. 1:08-CV-00138-JHM, 2012 WL 2681461, at
*7 (W.D. Ky. July 6, 2012) (citing Maher v. Int’l Paper Co., 600 F. Supp. 2d 940, 948 (W.D.
Mich. 2009)). Defendants presented an argument—however brief—and Porter did not refute it in

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his response. Accordingly, the Court finds that Porter waived his negligent supervision claim
against Defendants.
Second, Defendants assert that they adopted the argument regarding the “similar, albeit
more stringent Monell claim” in seeking judgment on the negligent supervision claim, rather than
restating it in full. Mot. Recons. 5, ECF No. 272. Thus, they argue, this Court “inadvertently
overlooked or mistakenly disregarded” their argument, invoking the “need to correct a clear error
or prevent manifest injustice” justification for reconsideration. Reply 1, 3, ECF No. 278. In his
response, Porter argues that Defendants’ vague reference to “the reasons set forth above” does
not provide an adequate analysis. Resp. Opp. Mot. Recons. 5, ECF No. 277.
Incorporation by reference to an argument applying facts under a different claim and
different legal standard is unhelpful. Nevertheless, the Court recognizes that it did not properly
consider the application to the negligent supervision claim of the unrefuted facts undergirding
the Monell analysis. Indeed, the Court finds that these facts apply equally to the negligent
supervision claim. In their summary judgment briefs on the Monell claim, both parties focused
on Defendants’ policies, practices, and training. See id. at 45; Resp. Mot. Summ. J. 110, 113,
119, ECF No. 240-1. The evidence presented by Defendants establishes that City police officers
attended a two-week, 80-hour homicide investigation class after joining the Homicide division.
Pierce Dep. 37, ECF No. 242-2. Detectives were required to attend this training class as soon as
practicable after joining the division. Id. Detectives also received on-the-job training in the form
of shadowing more experienced detectives. Kidd Dep. 19, ECF No. 241-19. Additionally, the
City had a policy on exculpatory evidence. Burbrink Dep. 79–81, ECF No. 243-11. The Court
granted summary judgment in favor of Defendants on the Monell claim because the undisputed
evidence established that a written policy was in existence and training was required on the use

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of exculpatory evidence. Mem. Op. 61–62, 66, ECF No. 264. What Porter urges, however, is that
the City should have done more, in light of the fact that Porter was later exonerated. He
contends that the City should have had more or better supervision of officers or additional
policies to avoid the wrong suffered by Porter. For the reasons stated below, however, Porter’s
20/20 hindsight view fails to establish that additional supervision or policies would more likely
than not have changed the course of the investigation. In evaluating the possible grounds for
liability for negligent supervision under the Restatement (Second) of Agency § 213, it becomes
clear that Porter has argued nothing more than that the City could have built a better mousetrap.
However, the City was not required to have a better supervisory system than it had, nor one as
good as other police departments. Porter has not shown that various perceived flaws in the City’s
supervisory system in the homicide division contributed to the wrongful conviction of Porter.
Similar to the parties’ arguments on the Monell claim, Porter alleges in his negligent
supervision claim that Defendants “had a duty to properly train and supervise” the Louisville
Police Department officers and to “provide adequate policies” and “were grossly negligent and
negligent in the training, supervision and discipline of the . . . officers.” Compl. ¶¶ 125–26, ECF
No. 1. As Defendants showed in their Monell analysis, the City had policies and training. And as
discussed below, Porter has not shown this Court that those policies and training were
inadequate.
As pointed out in the Court’s May 2, 2017 memorandum opinion, “Kentucky has adopted
the Restatement (Second) of Agency § 213 which illustrates the requirements for establishing a
claim of negligent supervision.” Booker v. GTE.net LLC, 350 F.3d 515, 517 (6th Cir. 2003).
Section 213 reads:
A person conducting an activity through servants or other agents is subject to
liability for harm resulting from his conduct if he is negligent or reckless:
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(a) in giving improper or ambiguous orders or in failing to make proper
regulations; or
(b) in the employment of improper persons or instrumentalities in work involving
risk of harm to others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by
persons, whether or not his servants or agents, upon premises or with
instrumentalities under his control.
Restatement (Second) of Agency § 213 (1958). There is insufficient evidence to support Porter’s
claim for negligent supervision under any of these subsections. In his response to Defendants’
motion to reconsider, Porter has outlined the evidence that he believes demonstrates Defendants’
negligence. Resp. Opp. Mot. Recons. 8–13, ECF No. 277. As the Court determined previously
that there can be no claim under respondeat superior, Porter’s argument is limited to allegations
that Defendants should have employed better or different policies, training, discipline, and
supervisory practices. See id. The evidence Porter offers does not satisfy any of the four
subsections of Section 213 of the Restatement (Second) of Agency.
First, Porter has not identified any “improper or ambiguous orders or [failure] to make
proper regulations.” See Restatement (Second) of Agency § 213(a). Porter presents a list of
policies and training that his expert, W.D. Libby, contends Defendants should have had in place,
as the City’s policies and practices purportedly did not meet the generally accepted standards of
investigations at the time of Defendants’ investigation of Porter. Libby Report 31, ECF No. 24121. Libby opines that the lack of such controls directly led to Porter’s wrongful conviction. Id.
But Libby’s opinion offers nothing more than hindsight. To establish negligent
supervision, the plaintiff must show that the employer’s “failure to exercise ordinary care . . .
create[d] a foreseeable risk of harm to a third person.” Dempsey v. City of Lawrenceburg, No.
3:09-33-DCR, 2010 WL 3825473, at *7 (E.D. Ky. Sept. 23, 2010) (citing Oakley v. Flor-Shin,
Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998)). Foreseeability is determined “by viewing the
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facts as they reasonably appeared to the party charged with negligence, not as they appear based
on hindsight.” James v. Wilson, 95 S.W.3d 875, 892 (Ky. Ct. App. 2002). In order to meet the
negligent supervision standard, Porter needs to have shown that Defendants knew or had reason
to know of a risk of wrongful conviction that their policies created. See Booker v. GTE.net LLC,
350 F.3d 515, 517 (6th Cir. 2003). Porter has not made such a showing. He merely offers
additional preferable policies that could have been put in place. He has not shown, however, how
any given policy would have altered the course of the investigation. Neither has Porter shown
that Defendants knew or should have known, at the time of the investigation, that their policies
created a risk of wrongful conviction to Porter. Thus the allegation that additional policies should
have been in place is too speculative to support a claim that the City was negligent in “failing to
make proper regulations.” See Restatement (Second) of Agency § 213(a).
Porter has not alleged Defendants were negligent or reckless “in the employment of
improper persons or instrumentalities in work involving risk of harm to others,” thus
Restatement (Second) of Agency § 213(b) is not in play.
Finally, Porter has not provided evidence to support an argument that Defendants were
negligent or reckless “in the supervision of the activity” or “in permitting, or failing to prevent,
negligent or other tortious conduct by persons, whether or not his servants or agents, upon
premises or with instrumentalities under his control.” See Restatement (Second) of Agency §
213(c)–(d). Porter presents as evidence a list of what he perceives to be supervisory
shortcomings of how Defendants Pierce, Fraction, and Sherrard supervised officers.2 Resp. Opp.
Mot. Recons. 10–13, ECF No. 277.

2

The Court notes a misstatement in the summary judgment opinion (ECF No. 264) in its analysis
of the negligent supervision claims made against Defendants Fraction and Sherrard individually.
The Court stated that “Defendants Fraction and Sherrard were at least negligent.” See Mem. Op.
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Porter suggests that had there been greater and more particularized oversight of the
investigating officers, he would not have been wrongfully convicted. But Porter fails to show
how more supervisory involvement would have changed the outcome of the investigation. The
evidence of record establishes that it was the practice of the Louisville Police Department, at the
time of this homicide investigation, to allow the lead detective on a case discretion in the
investigation. See Hollingsworth Dep. I 213, ECF No. 241-11. The supervisors considered the
detectives in the homicide division to be “seasoned investigators.” Fraction Dep. 62, ECF No.
243-15; Sherrard Dep. 26, ECF No. 242-3.
In this case, Defendant Kidd exercised discretion in pursuing Porter as the prime suspect,
and not crediting or pursuing Hollingsworth’s suggestion that another individual may have
committed the crime.3 Given that the evidence shows that Defendant Kidd was aware of other
leads but still pursued Porter, Porter is hard pressed to show that any amount of additional
supervision would have yielded a different result. Hindsight shows that pursuit of another lead
may have provided a viable alternative suspect in the case. However, Defendant Kidd’s decision
to pursue Porter, based upon all of the information of which he was apprised, was essentially
where the rubber met the road in this case. While the nature and degree of supervision of
Defendant Kidd’s work could have been different, it is sheer speculation that such supervision
would have impacted Defendant Kidd’s decision-making. There has been no evidence presented
to the Court that Defendant Kidd felt he was inadequately trained or needed more guidance or

68, ECF No. 264. This reads as an affirmative finding of negligence on the part of these
defendants. For the reasons stated in the opinion, that remains an open question to be decided by
a jury, not the Court. Rather, on summary judgment, the Court assumed, arguendo, that the
supervisory officers were negligent, finding that Porter had failed to come forward with evidence
that the officers’ conduct was in bad faith, and concluding that they were entitled to qualified
immunity. Id.
3
Whether he properly exercised that discretion remains a jury question. See Mem. Op. 53, ECF
No. 264.
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supervision. There is thus insufficient evidence to support a claim for negligent supervision
under the Restatement (Second) of Agency § 213(c) or (d).
Based upon the foregoing analysis, to correct a clear error or prevent manifest injustice,
the Court will grant Defendants’ motion for reconsideration of the summary judgment ruling.
And the Court will grant summary judgment in favor of Defendants on Count VIII alleging
negligent supervision.
V.

Conclusion

The Court finds that reconsideration is appropriate and that Porter has failed to come
forward with evidence on the negligent supervision claim which, in the words of the Supreme
Court in Matsushita, supra., presents more than “some metaphysical doubt as to the facts.” The
Court will grant Defendants’ motion to reconsider the ruling on their motion for summary
judgment and grant summary judgment to Defendants on the negligent supervision claim by
separate order.

August 11, 2017

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