DeSpain v. City of Louisville et al

Filing 8

MEMORANDUM OPINION & ORDER by Judge David J. Hale on 1/27/2015; The individual-capacity claims against Defendants Conrad and Stemile are DISMISSED; All official-capacity claims are DISMISSED without prejudice to the continuing claim against the Louisville Metro Government; Claims under the Thirteenth Amendment to the U.S. Constitution and Sections 17, 27, and 28 of the Kentucky Constitution are DISMISSED; All claims against Defendants Conrad and Stemile are dismissed, the Clerk of Court is DIRECTED to terminate them as parties to this action. The Clerk of Court is DIRECTED to amend the caption to reflect the Louisville Metro Government as the proper Defendant in this action; Plaintiff to amend complaint with 120 days from this date; Clerk is DIRECTED to send Plaintiff a 1983 packet. cc:Plaintiff (pro se), Defendants, JCA (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MICHAEL RAY DESPAIN
v.

PLAINTIFF
CIVIL ACTION NO. 3:14CV-P602-DJH

CITY OF LOUISVILLE et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is currently before the Court on initial review pursuant to 28 U.S.C. § 1915A
of Plaintiff Michael Ray DeSpain’s pro se complaint. For the reasons that follow, the Court will
dismiss a portion of the complaint and allow the remaining claims to proceed.
I. SUMMARY OF CLAIMS
Plaintiff is a pretrial detainee currently incarcerated in the Kentucky State Reformatory
(KSR). He brings suit under 42 U.S.C. § 1983 against the following Defendants: City of
Louisville; Louisville Metro Police Chief Steven Conrad; Lt. Kit Stemile, Supervisor of
Louisville Metro Police Department (LMPD) Viper Squad; Det. Chad Stewart; M. Nobles; A.
Browning; D. Hyche; D. Henzley; T. McKnight; J. Mattingly; T. James; J. Casse; J. Judah; Lt.
Ryan C. Bates, Supervisor/Commander of SWAT; and 25 Unknown SWAT Team Agents. He
sues each Defendant in his or her individual and official capacities.
According to the complaint, on September 18, 2013, Defendants “Chad Stewart et.al and
twenty-five (25) unknown SWAT team officers came to the plaintiffs’ home and executed a
search warrant they claim was from Hon Mitch Perry . . . .” At approximately 4:30 p.m., while
Plaintiff was at home, “the front windows crashed and two flash grenades exploded near
plaintiffs face and back and set furniture on fire and defendants intentionally tear sofa cushions
as they toss them threw the window.” Defendants “Chad Stewart et.al. intentionally knock out

windows from the inside with their guns after plaintiffs already in custody, then come back and
knock out window casings from the mortar.” Plaintiff claims that “[a]t no time did Chad Stewart
et.al. ever attempt to knock or announce his presence before knocking out windows.” He
continues:
5. Plaintiff sat on sofa after flash bangs with hands up guarding his face. Plaintiff
was blinded and stunned when one member of the twenty-five (25) unknown
SWAT team defendants ran up and kicked plaintiff twice in the chest
6.
Plaintiff was removed from the sofa and thrown into the floor; plaintiff
was kicked, stomped and fisted numerous times by two (2) SWAT team members.
Plaintiff was then dragged out onto the front porch and kicked, stomped and fisted
numerous times by Four (4) SWAT team members. One of the SWAT team
members held onto the porch column to gain balance as he continued to stomp
plaintiff. Plaintiff remembers being woke up from unconsciousness, then tazed
and beat more while still on front porch.
7. Plaintiff was then dragged out into front yard and placed in a sitting position.
Plaintiff was denied E.M.S. medical treatment other than removing tazer darts
from his back and given neck brace. Plaintiff was transported to jail, but was only
there for 13 days and then transported to K.S.R. for medical do to his medical
condition. Plaintiff previously had three major neck surgeries with (plate, screws,
cables and spacers) inserted.
Plaintiff reports that he requires “further studies with M.R.I. or CT scan but due to monetary
constraints of D.O.C. [presumably the Department of Corrections] plaintiff has been placed in
wheel chair in order to prevent paying for any further studies.” He claims that it feels like his
plate, screws, cables, and spacers “have been stomped loose,” and he reports that he continues to
experience “excruciating pain.”
Plaintiff asserts that he noticed Defendant Stewart “added words to his investigation
report after he completed his search and seizure.” Defendant Stewart allegedly added “’plaintiff
was trafficking in marijuana’” and “’plaintiff has a grow operation in his residence.’” According
to Plaintiff, these statements were added “to justify the excessive damages that was done to
residence and the plaintiff.” He further maintains that on March 31, 2014, after receiving

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discovery, he learned that his home security recorder had been tampered with after he viewed the
DVD.
Plaintiff identifies Defendant Det. Stewart as the “assigned assessor and lead detective
for plaintiffs residence” on September 18, 2013, and claims that Defendant Det. Stewart had a
duty and was legally responsible “for the complete operations, supervision of Viper Squad, and
SWAT Team; this is including the conduct of those under his supervision.” He further identifies
Defendant Bates as the “Unit Supervisor/Commander of the LMPD SWAT Team” on
September 18, 2013, and claims that Defendant Bates had a duty and was legally responsible
“for all operations, commands and equipment along with the proper training to prevent civil right
violations.”
Additionally, Plaintiff asserts that Defendants City of Louisville and Chief Conrad, on
September 18, 2013, had a duty and legal responsibility for the “operations, up-keep and proper
training” for the employees of the LMPD. He further asserts that Defendant Lt. Stemile, on
September 18, 2013, was commander/supervisor and had a duty and legal responsibility “for
proper Organization and training to prevent civil rights from being violated by the LMPD Viper
Squad unit, and is legally responsible for all operations handled by the Viper Squad . . . .”
As relief, Plaintiff seeks monetary and punitive damages.
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under
§ 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of
the complaint, if the court determines that it is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune from

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such relief. See § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a
claim, “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, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. (citing Twombly, 550 U.S. at 556). “[A]
district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take
all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555, 557).
III. ANALYSIS
A. Claims Against the City of Louisville and
the Official-Capacity Claims Against All Other Defendants
The Court construes the claims against the City of Louisville as being brought against the
merged Louisville Metro Government and will direct the Clerk of Court to amend the caption

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accordingly.1 See Metro Louisville/Jefferson Cnty. Gov’t v. Abma, 326 S.W.3d 1, 14 (Ky. Ct.
App. 2009) (indicating that “Louisville/Jefferson Metro Government is the post-merger
successor to the City of Louisville”); St. Matthews Fire Prot. Dist. v. Aubrey, 304 S.W.3d 56, 60
(Ky. Ct. App. 2009) (stating that “Jefferson County and the City of Louisville have merged to
form the Louisville Metro Government”). As to the official-capacity claims against all other
Defendants, such claims “‘generally represent [] another way of pleading an action against an
entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
(quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
Therefore, Plaintiff’s claims against all Defendants in their official capacities also are brought
against the Louisville Metro Government. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir.
2008).
When a § 1983 claim is made against a municipality, this Court must analyze two distinct
issues: (1) whether Plaintiff’s harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). A municipality cannot be held responsible for a constitutional
deprivation unless there is a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation. Monell, 436 U.S. at 694.
There are at least four avenues a plaintiff may take to prove the existence of a
municipality’s illegal policy or custom. The plaintiff can look to (1) the
municipality’s legislative enactments or official agency policies; (2) actions taken
by officials with final decision-making authority; (3) a policy of inadequate
training or supervision; or (4) a custom of tolerance or acquiescence of federal
rights violations.

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In 2003, the City of Louisville government merged with the surrounding Jefferson County
government and formed what is now referred to as the Louisville/Jefferson County Metro
Government (Louisville Metro Government). See http://www.louisvilleky.gov. Therefore, the
separate governmental entity of the City of Louisville no longer exists.
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Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005); Alman v. Reed, 703 F.3d 887,
903 (6th Cir. 2013) (“[T]he Supreme Court has held that a municipality can be liable under
§ 1983 on a failure-to-train theory when the ‘failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact.’”) (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)).
Here, Plaintiff is alleging that Louisville Metro Government and Chief Conrad had a duty
and legal responsibility for “proper training” of LMPD employees and to prevent civil rights
from being violated and that Lt. Stemile had a duty and legal responsibility for “training to
prevent civil rights from being violated by the LMPD Viper Squad unit.” The Court liberally
construes Plaintiff’s complaint, as it must, as asserting a claim against the Louisville Metro
Government for a failure-to-train LMPD officers/Viper Squad officers in the execution of a
search warrant and will allow that claim to continue. As this claim is proceeding directly
against the Louisville Metro Government, the Court will dismiss the official-capacity claims
against all other Defendants without prejudice as redundant to and subsumed by the continuing
claim against their employer, the municipality. See Von Herbert v. City of St. Clair Shores, 61 F.
App’x 133, 140 n.4 (6th Cir. 2003) (Krupansky, dissenting) (“Herbert’s official-capacity federal
claims against [the individual defendants] were redundant, because they were subsumed by her
§ 1983 charge against the city.”); Smith v. Brevard Cnty., 461 F. Supp. 2d 1243, 1251 (M.D. Fla.
2006) (dismissing claims against individuals sued in their official capacity as redundant where
their employer was also named as a defendant); Smith v. Bd. of Cnty. Comm’rs of Cnty. of Lyon,
216 F. Supp. 2d 1209, 1219-20 (D. Kan. 2002) (dismissing the claim against the sheriff sued
only in his official capacity as redundant since the governmental entity of which he was an
officer or agent was also a defendant in the action).

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B. Individual-Capacity Claims
1. Police Chief Conrad and Lt. Kit Stemile
Plaintiff seeks to hold Defendants Conrad and Stemile liable based on their supervisory
positions as Chief of Police and Commander/Supervisor of the LMPD Viper Squad Unit,
respectively. The doctrine of respondeat superior, or the right to control employees, however,
does not apply in § 1983 actions to impute liability onto supervisors. Monell, 436 U.S. at 691;
Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995); Bellamy v. Bradley, 729 F.2d
416, 421 (6th Cir. 1984). Additionally, “simple awareness of employees’ misconduct does not
lead to supervisor liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citing
Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996)). “[P]roof of personal
involvement is required for a supervisor to incur personal liability.” Grinter v. Knight, 532 F.3d
567, 575 (6th Cir. 2008). “[A] plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at
676; Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (stating that supervisory liability “must
be based on active unconstitutional behavior and cannot be based upon ‘a mere failure to act’”)
(quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)).
In reading the complaint liberally, the Court finds no indication that either Defendant
Conrad or Stemile were present during or had any direct involvement in the alleged wrongful
conduct occurring in September 2013 and March 2014. The Court, therefore, will dismiss the
individual-capacity claims against Defendants Conrad and Stemile for failure to state a claim
upon which relief can be granted.
2. Current Denial of Medical Treatment at KSR
Plaintiff claims that he needs an MRI or CT scan but that “due to monetary constraints of
D.O.C. plaintiff has been placed in wheel chair in order to prevent paying for any further
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studies.” He reports currently being denied medical treatment in violation of the U.S. and
Kentucky Constitutions. Plaintiff does not name any Defendant responsible for the current
denial of medical treatment. Instead, since Plaintiff is currently incarcerated in KSR, any claim
of currently denied medical treatment must be brought against persons at the KSR in a separately
filed action. Accordingly, should Plaintiff wish to file suit regarding his current medical
treatment, the Court will direct the Clerk of Court to send Plaintiff a § 1983 packet for his use.
3. Remaining Claims
Plaintiff alleges that “Chad Stewart and defendants” or “Chad Stewart et.al.” performed
an illegal search and seizure, caused excessive property damage and used excessive force during
the illegal search and seizure, intentionally destroyed physical evidence, and refused EMS
medical treatment and that Defendant Stewart falsified his investigative report. The Court
liberally construes the claims against “Chad Stewart and defendants” and “Chad Stewart et.al.”
as against Defendants Stewart, Nobles, Browning, Hyche, Henzley, McKnight, Mattingly,
James, Casse, Judah, Bates, and the 25 Unknown SWAT Team members. Reading the
complaint in a light most favorable to Plaintiff, the Court concludes that Plaintiff is alleging that
all of the foregoing Defendants were present during the allegedly illegal search and seizure and
involved in the allegedly wrongful conduct listed above.
As to the remaining claims, Plaintiff alleges violations of the Fourth, Fourteenth, and
Thirteenth Amendments to the U.S. Constitution. The Court will allow the Fourth and
Fourteenth Amendment claims to continue. See, e.g., Rakas v. Illinois, 439 U.S. 128, 159-60
(1978) (“Though the [Fourth] Amendment protects one’s liberty and property interests against
unreasonable seizures of self and effects, ‘the primary object of the Fourth Amendment [is] . . .
the protection of privacy.’”) (quoting Cardwell v. Lewis, 417 U.S. 583, 589 (1974) (plurality
opinion)) (alteration in Rakas); Boone v. Spurgess, 385 F.3d 923, 934 (6th Cir. 2004)
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(“Ultimately, there seems to be no logical distinction between excessive force claims and denial
of medical care claims when determining the applicability of the Fourth Amendment. Because
we conclude that under either [the Fourth or Fourteenth Amendment] standard, Boone has not
made out a claim, we do not decide this issue, but instead reserve it for a more appropriate
case.”). The Court will dismiss the Thirteenth Amendment claim as wholly inapplicable to the
facts raised in the complaint. See United States v. Kozminski, 487 U.S. 931, 942 (1988) (“The
Thirteenth Amendment declares that ‘[n]either slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.’”).
Plaintiff also alleges violations of Kentucky Constitution Sections 10 (“Security from
search and seizure; conditions of issuance of warrant”); 17 (“Excessive bail or fine, or cruel
punishment, prohibited”); 27 (“Powers of government divided among legislature, executive, and
judicial departments”); and 28 (“One department not to exercise power belonging to another”).
As only Section 10 is applicable to the facts alleged, the Court will dismiss the claims under
Sections 17, 27, and 28.
To summarize, the Court will allow the remaining claims to continue against Defendants
Stewart, Nobles, Browning, Hyche, Henzley, McKnight, Mattingly, James, Casse, Judah, Bates,
and the 25 Unknown SWAT Team members in their individual capacities under the Fourth and
Fourteenth Amendments to the U.S. Constitution and Section 10 of the Kentucky Constitution.
As to the 25 Unknown SWAT Team members, the Court advises that Federal Rule of Civil
Procedure 4 provides, in relevant part:
If a defendant is not served within 120 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.
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Fed. R. Civ. P 4(m). Because the Court is required to screen the complaint prior to service, the
Court will count the 120 days from the date of this Memorandum Opinion and Order.
Accordingly, Plaintiff has 120 days from the date of this Memorandum Opinion and Order
within which to move to amend his complaint to name specific Defendants or show good cause
for his failure to do so.2
IV. ORDER
For the foregoing reasons, IT IS ORDERED as follows:
(1) The individual-capacity claims against Defendants Conrad and Stemile are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief
may be granted.
(2) All official-capacity claims are DISMISSED without prejudice to the continuing
claim against the Louisville Metro Government.
(3) The claims under the Thirteenth Amendment to the U.S. Constitution and Sections
17, 27, and 28 of the Kentucky Constitution are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted.
(4) As all claims against Defendants Conrad and Stemile are dismissed, the Clerk of
Court is DIRECTED to terminate them as parties to this action.
(5) The Louisville Metro Government, as legal successor to the City of Louisville, is the
proper Defendant and the Clerk of Court is DIRECTED to amend the caption to reflect the
Louisville Metro Government as the proper Defendant in this action.

This Order shall in no way constitute a determination that Plaintiff’s claims against any later
named defendants would be timely.
2

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(6) The following claims shall proceed: the failure-to-train claim against the
Louisville Metro Government and the individual-capacity claims under the Fourth and
Fourteenth Amendments to the U.S. Constitution and Section 10 of the Kentucky
Constitution against Defendants Stewart, Nobles, Browning, Hyche, Henzley, McKnight,
Mattingly, James, Casse, Judah, Bates, and the 25 Unknown SWAT Team members for
illegal search and seizure, excessive property damage, excessive force, intentional
destruction of physical evidence, and refusal of EMS medical treatment and against
Defendant Stewart for falsifying his investigative report. In allowing these claims to
continue, the Court passes no judgment on the merit and ultimate outcome of this proceeding.
The Court will enter a separate Order Directing Service and Scheduling Order to govern the
development of these continuing claims.
(7) Within 120 days from the entry date of this Memorandum Opinion and Order,
Plaintiff must move to amend his complaint to name specific Defendants or show good cause for
his failure to do so. Plaintiff is put on notice that his failure to meet the requirements of the
Federal Rules of Civil Procedure may result in dismissal of this action as to the 25 Unknown
SWAT Team Defendants.
(8) The Clerk of Court is DIRECTED to send Plaintiff a § 1983 packet should he wish
to file a new action regarding his current medical treatment at KSR.
Date:

cc:

January 27, 2015

Plaintiff, pro se
Defendants
Jefferson County Attorney
4415.005

David J. Hale, Judge
United States District Court

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