Blaine v. Louisville Metro Government et al

Filing 65

MEMORANDUM OPINION AND ORDER by Judge David J. Hale. Plaintiff's Objections to Order of Magistrate Judge denying motion to compel (DN 50 ) are sustained. Clerk directed to reinstate defendants Bolton and Conrad. Bolton and Conrad to respond to discovery requests within 30 days. Within 14 days, Blaine to file motion voluntarily dismissing claim against Conrad. cc: counsel (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
DANIELLA BLAINE, Administratrix of the
Estate of Kenneth H. Cross, II,

Plaintiff,

v.

Civil Action No. 3:13-cv-427-DJH-DW

LOUISVILLE METRO GOVERNMENT,
et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiff Daniella Blaine has objected to Magistrate Judge Dave Whalin’s denial of her
motion to compel discovery responses by Defendants Mark Bolton and Steve Conrad. (Docket
No. 50; see D.N. 43) Bolton and Conrad maintain that they are no longer parties to this case and
thus have no obligation to respond to Blaine’s discovery requests. (See D.N. 44, 62) Because
the Court concludes that a state-law negligence claim remains pending against Bolton and
Conrad, Blaine’s objections will be sustained.
I.

BACKGROUND
This lawsuit arises out of the drug-overdose death of Kenneth H. Cross, II, while he was

in the custody of the Louisville Metro Police Department (LMPD). Blaine, as Administratrix of
Cross’s estate, sued Louisville Metro Government, LMPD Chief Conrad, Jail Director Mark
Bolton, two LMPD officers, three jail nurses, and Corizon, Inc., which provided medical services
at the jail. (D.N. 1, PageID # 3-4) Blaine asserted claims under 42 U.S.C. § 1983, as well as a
wrongful death claim and the negligence claim at issue here. The latter, set out in Count II of the
complaint, states simply, “By virtue of the foregoing, Defendants were negligent and grossly
negligent, and the medical professionals responsible for Mr. Cross failed to satisfy the applicable

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standard of care.” (Id., PageID # 8 ¶ 21) The preceding paragraph likewise begins “As a result
of the foregoing” and asserts a claim under § 1983. (Id., PageID # 7 ¶ 20) The prior paragraph
states:
Plaintiff believes and, after reasonable discovery, will show that Mr.
Cross’[s] treatment by Defendants was the result of customs and practices of
Defendants that were contrary to or expressly violated written policies of the
LMPD, Corizon and/or the Jail, and that such customs and practices were the
“moving force” behind Mr. Cross’[s] death. Such practices constitute an arbitrary
use of government power, and evince a total, intentional, deliberate and
unreasonable disregard for and indifference to the lives and constitutional and
common law rights of inmates at the Jail, including Mr. Cross, and the wholesale
violations of those rights likely to result from the regular and systematic pursuit of
such practices.
(Id. ¶ 19)
Louisville Metro Government, Mark Bolton, and Steve Conrad (the “Metro defendants”)
answered the complaint on May 28, 2013, denying the allegations of paragraph 21. (D.N. 7; see
id., PageID # 70) They filed a motion to dismiss for failure to state a claim the same day. (D.N.
6) In their motion, the Metro defendants characterized Count II of Blaine’s complaint as “a
medical malpractice claim [that] does not apply to” any of them. (D.N. 6-1, PageID # 59)
Accordingly, they did not argue for its dismissal.
Blaine did not address Count II in her response to the motion to dismiss except to
concede that Louisville Metro was entitled to sovereign immunity on her state-law claims. (D.N.
12, PageID # 87, 89) Blaine also conceded that any claims of respondeat superior against
Bolton and Conrad should be dismissed; however, she pointed out that her complaint did not
assert any such claims. (Id., PageID # 87 n.1; see id., PageID # 89)
By Order entered January 29, 2014, Judge Simpson granted the Metro defendants’
motion to dismiss. (D.N. 17) The accompanying Memorandum Opinion, like the motion to
dismiss, described Count II as “a state-law medical negligence claim.” (Id., PageID # 107) In
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his analysis of the claims against Louisville Metro, Judge Simpson noted Blaine’s concession
“that dismissal of her state-law negligence claim [was] appropriate.” (Id., PageID # 108) As to
Bolton and Conrad, the opinion addressed only Blaine’s claims under § 1983, concluding: “[T]he
Court will grant Defendants’ Motion to Dismiss Plaintiff’s § 1983 claims against Defendants
Conrad and Bolton.” (See id., PageID # 110-12)
Following entry of the January 29, 2014 Memorandum Opinion and Order, the parties
proceeded as though all claims against Conrad and Bolton had been dismissed. Approximately
eight months later, Blaine’s attorney notified counsel for the defendants that he believed a statelaw negligence claim against Conrad and Bolton remained pending.1 (See D.N. 50, PageID #
231-32; D.N. 50-1) Blaine then served discovery requests on Conrad and Bolton. (See D.N. 502, 50-3) When Conrad and Bolton failed to respond to those requests, Blaine filed a motion to
compel. (D.N. 43) Magistrate Judge Whalin denied the motion, concluding that Conrad and
Bolton had been dismissed from the case pursuant to the Court’s January 29, 2014 Order and
thus were not obligated to respond to Blaine’s discovery requests. (D.N. 49) Blaine timely
objected to Judge Whalin’s ruling.2 (D.N. 50)
The Court held a status conference on January 5, 2016, to discuss the posture of the case.
(See D.N. 60) During the conference, Blaine’s counsel acknowledged that only her claim against
Bolton remains viable in light of the dismissal of Defendants Tinnell and McNamara.3 (Id.,

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According to Blaine, this revelation occurred following her “re-examination of” the Metro
defendants’ motion to dismiss and the Court’s January 29, 2014 Memorandum Opinion and
Order. (D.N. 50, PageID # 232)
2
The docket reflects that Blaine’s motion to compel was denied on January 23, 2015, and her
objection was filed two days later. (See D.N. 49, 50) Thus, Conrad and Bolton’s assertion that
Blaine “did not challenge [Judge Whalin’s] ruling pursuant to FRCP 72(a) within the requisite
fourteen day period” is plainly incorrect. (D.N. 62, PageID # 378)
3
Because the Court concludes that Conrad was never dismissed from the case, Blaine must file a
motion to voluntarily dismiss the claim against him.
3

PageID # 374; see D.N. 59) In an amended scheduling order entered February 10, 2016, Bolton
and Conrad were directed to supplement their response to the motion to compel. (D.N. 61,
PageID # 375) Although their supplemental response (D.N. 62) was perfunctory at best, the
issue is now fully briefed and stands submitted for decision.
II.

ANALYSIS
Blaine objected pursuant to Federal Rule of Civil Procedure 72(a), which provides that

the Court must “modify or set aside any part of the [magistrate judge’s] order that is clearly
erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). Clear error exists “when the reviewing
court is left with the definite and firm conviction that a mistake has been committed.” Max
Trucking, LLC v. Liberty Mut. Ins. Corp., 802 F.3d 793, 810 (6th Cir. 2015) (citing Anderson v.
City of Bessemer City, 470 U.S. 564, 573 (1985)). According to Blaine, Judge Whalin clearly
erred in concluding that her complaint asserted no negligence claim against Bolton and Conrad
and that all claims against them had been dismissed. (D.N. 50, PageID # 235-37) The Court
agrees.
Count II of the complaint asserts a negligence claim against all defendants in addition to
a medical negligence claim.

The single sentence in paragraph 21 contains two separate

assertions: (1) that “Defendants were negligent and grossly negligent,” and (2) that “the medical
professionals responsible for Mr. Cross failed to satisfy the applicable standard of care.” (D.N.
1, PageID # 8) With regard to the introductory clause, “By virtue of the foregoing” can be read
as referring either to paragraph 19 (to which paragraph 20, with its similar introduction, also
appears to refer) or “all of the preceding allegations of the complaint,” as Blaine maintains.
(D.N. 50, PageID # 233) Under either reading, the negligence claim applies to Bolton and
Conrad, who are alleged to have been “responsible for the employment, training, supervision and

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conduct of” jail employees and medical professionals (Bolton) and LMPD officers and
employees (Conrad). (D.N. 1, PageID # 4 ¶¶ 5, 9) And under any reading, Conrad and Bolton
are included in paragraph 21’s reference to “Defendants.” (Id., PageID # 8) Thus, insofar as the
magistrate judge concluded that Blaine’s complaint did not contain a negligence claim against
Bolton and Conrad, the Court “is left with the definite and firm conviction that a mistake has
been committed.” Max Trucking, 802 F.3d at 810.
Having found that Blaine asserted a state-law negligence claim against Bolton and
Conrad, the Court has little difficulty concluding that the claim is still pending. The defendants,
presumably due to their mistaken belief that Count II did not apply to them, never sought its
dismissal, and Judge Simpson never dismissed it.4 (See D.N. 6-1, PageID # 59; D.N. 17)
With the claim still pending, then, the question becomes what should be done with it.
Bolton and Conrad argue that the claim should be deemed dismissed because Blaine ought to
have raised the issue sooner. (See D.N. 44, 62) They cite no legal basis or authority for this
position, however.
In the Court’s view, the most analogous situation is failure to prosecute—the defendants
essentially argue that Blaine abandoned her state-law negligence claim (to the extent one ever
existed) and should not be permitted to pursue it after an eight-month delay. (See D.N. 62
(arguing that Blaine “has repeatedly failed to timely contest the dismissal of Defendants Bolton
and Conrad” and therefore “must be precluded from challenging their termination from suit”))
In the Sixth Circuit, however, a plaintiff’s claim may be dismissed for failure to prosecute “only
in extreme situations showing a clear record of contumacious conduct by the plaintiff.”
Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (quoting Tung-Hsiung Wu v. T.W.
4

The Court notes that had Blaine simply corrected the defendants’ mischaracterization of Count
II in her response to the motion to dismiss, the current confusion likely would have been averted.
5

Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005)). “Contumacious conduct” is “behavior that is
‘perverse in resisting authority and stubbornly disobedient.’” Id. at 704-05 (quoting Wu, 420
F.3d at 643). The record reflects no such behavior by Blaine or her counsel in this case; rather,
the defendants merely argue that Blaine was slow to seek relief. This is not enough to warrant
dismissal of her claims. See id. at 705 (explaining that under Sixth Circuit precedent, “mere
dilatory conduct involving a failure to file a specified document” does not rise to the level of
contumacious conduct (quoting Cotson v. Detroit Edison Co., 789 F.2d 377, 379 (6th Cir.
1986)).
Nor would dismissal be warranted under the doctrine of laches, “the ‘negligent and
unintentional failure to protect one’s rights.” Nartron Corp. v. STMicroelectronics, Inc., 305
F.3d 397, 408 (quoting Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 894 (6th
Cir. 1991)). For laches to apply, the defendants must show that they suffered prejudice as a
result of Blaine’s lack of diligence in pursuing her claims. See id. (citing Induct-O-Matic Corp.
v. Inductotherm Corp., 747 F.2d 358, 367 (6th Cir. 1984)). Conrad and Bolton do not purport to
have been prejudiced by the delay, however. (See D.N. 44, 62) In the absence of any legal or
equitable basis for dismissing Blaine’s negligence claim, the Court concludes that dismissal of
the claim would be inappropriate.
III.

CONCLUSION
While the Court questions whether a motion to compel was the most efficacious means of

raising the issue, it agrees that Blaine’s negligence claims against Bolton and Conrad were never
dismissed and that the magistrate judge’s finding to the contrary was clearly erroneous.
Moreover, the Court finds no reason to dismiss the claims at this juncture. Accordingly, it is
hereby

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ORDERED as follows:
(1)

The Clerk of the Court is DIRECTED to reinstate Mark Bolton and Steve Conrad

as defendants in the record of this matter.
(2)

Plaintiff’s Objections to Order of Magistrate Judge Denying Her Motion to

Compel (D.N. 50) are SUSTAINED.
(3)

Defendants Bolton and Conrad shall respond to Blaine’s discovery requests

within thirty (30) days of the date of entry of this Memorandum Opinion and Order.
(4)

Consistent with the position taken at the recent status conference, within fourteen

(14) days of the date of entry of this Memorandum Opinion and Order, Blaine shall file a motion
to voluntarily dismiss her claim against Defendant Conrad.
April 19, 2016

David J. Hale, Judge
United States District Court

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