Kirilova v. Braun et al

Filing 27

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 7/9/2018. Defendant Louisville Metro's motion to dismiss (D.N. 15) is GRANTED. The Clerk of Court is DIRECTED to terminate Louisville Metro as a defendant in the record of this matter. Defendant Steve Conrad's motion to dismiss (D.N. 19) is GRANTED. The Clerk of Court is DIRECTED to terminate Conrad as a defendant in the record of this matter. Consistent with the Court's prior order (D.N. 16), this matter is REFERRED to Magistrate Judge Dave Whalin for a status conference. cc: Counsel (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
REINELLA S. KIRILOVA, as Administratrix
of the Estate of William Allen Young, Jr.,

Plaintiff,

v.

Civil Action No. 3:17-cv-481-DJH-DW

RUSSELL BRAUN, et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiff Reinella Kirilova brings this action as Administratrix of the Estate of her son,
William Allen Young, Jr., against Defendants Louisville/Jefferson County Metro Government,
Louisville Metro Police Department Chief Steve Conrad, and LMPD Officers Russell Braun,
Randall Richardson, and Paige Young. (Docket No. 12) Kirilova alleges that the officers fatally
shot William Young without justification in violation of the United States Constitution and
Kentucky law. (See id.) Louisville Metro and Conrad have moved to dismiss Kirilova’s claims
against them pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.N. 15; D.N. 19) For the
reasons set forth below, the Court will grant Defendants’ motions.
I.

Background

The following facts are set out in the complaint and accepted as true for purposes of the
present motions. See 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)).
In 2017, William Young was a 31-year-old individual struggling with drug addiction and
mental illness. (D.N. 12, PageID # 75) Besides occasionally residing with his mother, Young
was homeless and would often sleep inside abandoned buildings. (Id.) On the night of February
11, 2017, Young was sleeping on the second floor of an abandoned building at 1234 Oleander
1

Avenue in Louisville, Kentucky. (Id.) Meanwhile, LMPD Officers Braun, Richardson, and
Young received a report of an alleged burglary at that premises. (Id.) When they arrived at the
scene, the officers entered the building, despite seeing that it was abandoned and partially
boarded-up. (Id.) As they surveyed the building, the officers had their handguns drawn and held
flashlights in each of their free hands. (Id., PageID # 75–76)
The complaint alleges that in searching the building, “[the officers] failed to utilize
features of the house to search and clear the premises without unnecessarily exposing themselves
to a perceived risk.” (Id., PageID # 76) The officers shouted “police” on several occasions, but
there is no evidence that William Young heard their warnings. (Id.) Upon seeing the officers,
Young jumped up and rushed toward them with an object in his hand. (Id.) The officers
proceeded to fire their weapons at Young numerous times. (Id., PageID # 77) Young sustained
gunshot wounds during the altercation. (Id.) The officers handcuffed Young; tragically, Young
died a few minutes later. (Id.)
Kirilova brings this action against Louisville Metro, LMPD Chief of Police Steve
Conrad, and Officers Braun, Richardson, and Young. (See D.N. 12) She asserts claims for relief
under § 1983 against all Defendants. (Id., PageID # 77–78) She also asserts state-law claims
against Conrad and the officers. (Id., PageID # 78) Louisville Metro and Conrad now move to
dismiss Kirilova’s claims against them.1 (D.N. 15; D.N. 19)
II.

Standard

In order to avoid 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.’”
1

Louisville Metro filed an initial motion to dismiss on October 23, 2017, in which it raised
essentially the same arguments at issue in its current motion to dismiss. (D.N. 7) However,
because Kirilova moved to amend her complaint shortly thereafter (D.N. 9), the Court denied
without prejudice the initial motion to dismiss. (See D.N. 11)
2

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). If “the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” the plaintiff has not shown that she is entitled to relief. Id. at 679.
The complaint need not contain “detailed factual allegations,” but it must provide “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Twombly, 550
U.S. at 555). “Although for the purposes of a motion to dismiss [the Court] must take all of the
factual allegations in the complaint as true, [the Court is] not bound to accept as true a legal
conclusion couched as a factual allegation.” Id. (citing Twombly, 550 U.S. at 555). Furthermore,
“[w]hile a complaint will survive a motion to dismiss if it contains either direct or inferential
allegations respecting all material elements necessary for recovery under a viable legal
theory . . . legal conclusions masquerading as factual allegations will not suffice.” Phila. Indem.
Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013) (internal quotations omitted).
III.

Louisville Metro’s Motion to Dismiss

In order to establish municipal liability under § 1983, Kirilova must show that the alleged
constitutional violation occurred because of a municipal custom or policy. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978).

Kirilova may make the requisite showing by

demonstrating one of the following: “(1) the existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a custom of
tolerance or acquiescence of federal rights violations,” such as ineffective screening during the
hiring process. Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013).
In her complaint, Kirilova presents three theories upon which to hold Louisville Metro
liable under § 1983: (i) ratification, (ii) failure to train, and (iii) ineffective screening. (See D.N.

3

12) Even viewing Kirilova’s complaint in the light most favorable to her, see Tackett, 561 F.3d
at 488, the Court concludes that Kirilova has failed to allege sufficient facts to support her
claims. Additionally, while the Court is not required to grant Kirilova a second opportunity to
amend her complaint, see Burkeen v. A.R.E. Accessories, LLC, No. 5:16-CV-00017-GNS-LLK,
2017 WL 5076516, at *2 (W.D. Ky. Nov. 3, 2017) (“Contrary to Plaintiffs’ contentions, the
Sixth Circuit has never held that district courts must grant leave to amend sua sponte when
justice so requires.”), the Court has considered whether it would be appropriate here.
“[L]eave to amend a complaint may be denied where there is . . . repeated failure to cure
deficiencies by amendments previously allowed.” Beydoun v. Sessions, 871 F.3d 459, 469 (6th
Cir. 2017) (internal quotations omitted). The arguments raised in Louisville Metro’s initial
motion to dismiss are substantially similar to those at issue in its current motion to dismiss. (See
D.N. 7-1; D.N. 15-1) Although Kirilova filed an amended complaint in response to the initial
motion to dismiss (D.N. 9), for the reasons explained below, her amended complaint fails to cure
her original complaint’s deficiencies.

The Court thus concludes that granting Kirilova an

additional attempt to conform her complaint to federal pleading standards would be futile given
her repeated failure “to allege a nexus between any [municipal] policy and the claimed events or
injuries.” Gerald Williams v. Kentucky Ass’n of Ctys. Ins. Agency, Inc., No. 6:17-CV-222-REWEBA, 2018 WL 3155818, at *5 (E.D. Ky. June 28, 2018); see also Hogan v. Jacobson, 823 F.3d
872, 885 n.3 (6th Cir. 2016) (finding that the district court did not err in declining to grant leave
to amend sua sponte where “[t]he plaintiff never sought leave to amend before the district court
and provide[d] nothing from which [the appellate court] could infer that she could amend her
complaint [to conform to federal pleading standards]”).

4

A. Ratification
To proceed with her ratification claim against Louisville Metro, Kirilova “must
adequately allege . . . that an official with final decision making authority ratified illegal
actions.” D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (quoting Burgess, 735 F.3d
at 478). “[R]atification of a subordinate’s action requires more than acquiescence—it requires
affirmative approval of a particular decision made by a subordinate.” Feliciano v. City of
Cleveland, 988 F.2d 649, 656 (6th Cir. 1993) (citing City of St. Louis v. Praprotnik, 485 U.S.
112, 130 (1988)).
Here, Kirilova has not adequately alleged that Louisville Metro ratified the officers’
actions. She presents no facts, for example, to indicate that the officers’ actions were “appealed
to and affirmed by a[] [Louisville Metro] official.” See Arendale v. City of Memphis, 519 F.3d
587, 602 (6th Cir. 2008). Nor does Kirilova present facts indicating that Louisville Metro ruled
in the officers’ favor following a formal investigation. See Meyers v. City of Cincinnati, 14 F.3d
1115, 1118–19 (6th Cir. 1994). At most, Kirilova alleges that the officers “have received no
punishment . . . nor have any changes been made to LMPD’s policies, procedures, customs and
practices,” following the incident at issue. (D.N. 12, PageID # 77) However, the Court finds no
binding precedent holding that a municipality’s failure to change its policies following an alleged
constitutional violation equals affirmative approval of the violation. Similarly, although the
Sixth Circuit has recognized municipal liability under § 1983 for a city’s failure to meaningfully
investigate allegations of unconstitutional conduct, see Leach v. Shelby Cty. Sheriff, 891 F.2d
1241 (6th Cir. 1989), municipal liability cannot be found solely from a single instance of failure
to investigate. Thomas v. City of Chattanooga, 398 F.3d 426, 434 (6th Cir. 2005); see also
Burgess, 735 F.3d at 478 (“[Plaintiffs] simply have not demonstrated a pattern of inadequate

5

investigation of similar claims as required.”). In her complaint, Kirilova presents a single
instance of an alleged failure to investigate. (See D.N. 12) This shortcoming alone warrants
dismissal of her ratification claim against Louisville Metro. See Thomas, 368 F.3d at 434; see
generally Payne v. Sevier Cty., Tenn., 681 F. App’x 443, 446 (6th Cir. 2017) (“A plaintiff cannot
establish a custom solely by pointing to the facts of [her] own case.”).

By alleging a single

instance of failure to investigate, Kirilova has failed to plausibly allege a ratification claim.
Moreover, to be held liable, Louisville Metro’s alleged failure to investigate must have
been the “moving force” behind the constitutional deprivation at issue. See Searcy v. City of
Dayton, 38 F.3d 282, 287 (6th Cir. 1994) (“Regardless of whether the City failed to investigate
the allegations of misconduct, and regardless of whether such failure amounted to a policy or
custom, plaintiffs have not presented any evidence to indicate that the failure to investigate other
unconnected misconduct was the moving force behind the shooting of plaintiffs.”); see also Ellis
ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 701 n. 5 (6th Cir. 2006) (“We
have not found any legal support for the proposition that, in the absence of deliberate
indifference before a constitutional violation, a municipality may be liable for simply failing to
investigate or punish a wrongdoer after the violation.”). Because “subsequent ratification of past
wrongdoing cannot logically be the moving force behind the [wrongdoing],” see Swann v. City of
Columbus, No. 2:04-cv-578, 2007 WL 1831131, at *3 (S.D. Ohio June 25, 2007), a plaintiff
asserting a failure-to-investigate claim must generally allege that a municipality’s failure to
investigate prior allegations of unconstitutional conduct caused the constitutional violation at
issue.

See, e.g., Hullett v. Smiedendorf, 52 F. Supp. 2d 817, 828 (W.D. Mich. 1999)

(“[M]unicipal liability for failing to investigate or discipline its officers cannot be derived from a
single act by a non-policy-making municipal employee . . . . Proof of the existence of the policy

6

prior to the incident that is the subject of the complaint is necessary.”); see generally Miller v.
Sanilac Cty., 606 F.3d 240, 255 (6th Cir. 2010) (“To establish deliberate indifference, the
plaintiff must show prior instances of unconstitutional conduct demonstrating that the
[municipality] ha[d] ignored a history of abuse.”).
Kirilova does not allege any facts indicating that Louisville Metro failed to investigate
previous allegations of unconstitutional conduct and that the failure was the “moving force”
behind her son’s death. (See D.N. 12) Cf. Warren v. Lexington-Fayette Urban Cty. Gov’t, No.
5:16-140-DCR, 2016 WL 4491837, at *4 (E.D. Ky. Aug. 25, 2016) (“Warren alleges LFUCG
was aware of the unconstitutional conduct of the officers and the result of LFUCG’s inadequate
training . . . . Additionally, she alleges that this policy was the moving force behind her
unconstitutional arrest.”). Moreover, Kirilova presents no facts indicating that Louisville Metro
“knew or should have known of previous allegations of criminal misconduct” by its officers yet
“failed to take adequate measures to investigate or prevent such misconduct” thereby causing her
son’s death. Brown v. City of Memphis, 440 F. Supp. 2d 868, 874 (W.D. Tenn. July 7, 2006).
Kirilova’s omission warrants dismissal of her ratification claim.
B. Failure to Train
Kirilova alleges that Louisville Metro failed to “train and supervise the conduct of [the
officers at issue]” with a “total, deliberate and reckless disregard . . . to [William Young’s] life.”
(D.N. 12, PageID # 75) “A municipality’s culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train . . . . [A] municipality’s failure to train its
employees in a relevant respect must amount to ‘deliberate indifference to the rights of persons
with whom the untrained employees come into contact.’” Connick v. Thompson, 563 U.S. 51, 61

7

(2011) (alteration omitted) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
Moreover, deliberate indifference based on a single violation of rights requires “a complete
failure to train the police force, training that is so reckless or grossly negligent that future police
misconduct is almost inevitable or would properly be characterized as substantially certain to
result.” Harvey v. Campbell Cty., Tenn., 453 F. App’x 557, 567 (6th Cir. 2011).
To proceed with her failure-to-train claim, Kirilova must present sufficient “factual
content that allows the court to draw the reasonable inference that [Louisville Metro] is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678. Specifically, “[Kirilova] must identify and
describe the official policy or custom that resulted in a constitutional violation.” Horn v. City of
Covington, No. 14–73–DLB–CJS, 2015 WL 4042154, at *4 (E.D. Ky. July 1, 2015). In the
context of failure-to-train claims, this court has consistently dismissed complaints that failed to
allege a factual background indicating that the injury at issue occurred as a result of a custom or
policy implemented by the municipality. See, e.g., Neal v. Bolton, No. 3:17CV-P496-TBR, 2018
WL 314829, at *3 (W.D. Ky. Jan. 5, 2018) (“None of the allegations in the complaint
demonstrate that any alleged wrongdoing or injury occurred as a result of a policy or custom
implemented or endorsed by the Louisville Metro Government.”); Phillips v. PTS of Am., LLC,
No. 3:17-cv-00603-JHM, 2017 WL 4582801, at *2 (W.D. Ky. Oct. 13, 2017) (“There are
statements that suggest these policies or customs were related to the training and supervision of
staff at LMDC, but the complaint contains no factual content upon which the Court could find
that the plaintiffs are plausibly entitled to relief, such as what these policies or customs regarding
training and supervision were, why they were inadequate, and how they contributed to the
violation of [the decedent’s] constitutional rights.”); Blaine v. Louisville Metro Gov’t, No. 3:13–
CV–00427–CRS, 2014 WL 321142, at *2 (W.D. Ky. Jan. 29, 2014) (“In her Complaint, Plaintiff

8

clearly states that Defendant Louisville Metro Government was responsible for the policies,
customs, and practices which ultimately caused [the decedent’s] death, but fails to specifically
identify the relevant policy, custom, or practice.”).
In her complaint, Kirilova cites one instance of allegedly unconstitutional conduct on the
part of the officers.2 (See D.N. 12) Thus, to proceed with her claim, Kirilova must plead
deliberate indifference based on a single violation of rights. Kirilova’s complaint contains no
factual content, however, upon which the Court could conclude that William Young’s death was
the result of reckless or grossly negligent training on the part of Louisville Metro. See Harvey,
453 F. App’x at 567. The principal argument Kirilova presents in response to Louisville Metro’s
motion to dismiss is that “[t]he relevant written policies of Louisville Metro have not yet been
produced in this case, nor has [she] been permitted to conduct discovery on the practices that
may have caused or contributed to Mr. Young’s death.” (D.N. 18, PageID # 108) Kirilova
misstates her burden, however. As explained above, Kirilova must, at the pleading stage, present
sufficient “factual content that allows the court to draw the reasonable inference that [Louisville
Metro] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. She has failed to do so.
Moreover, this Court has previously rejected Kirilova’s exact argument. See Blaine, 2014 WL
321142 at *2 (“Plaintiff argues that Defendants’ Motion to Dismiss is premature because they
‘have been afforded no opportunity to discover the policies, customs, and practices that may
have caused [the decedent’s] death . . . . [However,] motions to dismiss are based on allegations
contained in the relevant pleadings as opposed to facts developed in discovery.”).

2

Although Kirilova does cite other instances of alleged unconstitutional conduct, these appear in
her response brief. (D.N. 21, PageID # 130) Kirilova may not amend the deficiencies in her
complaint by including additional facts in her response to a motion to dismiss. See Brown v.
Accenture Fed. Servs., No. 15-24-GFVT, 2016 WL 3298543, at *10 (E.D. Ky. June 13, 2016).
9

Kirilova fails to provide any factual allegations to support her assertion beyond a
“formulaic recitation” that Louisville Metro acted with deliberate indifference. Twombly, 550
U.S. at 555. (See also D.N. 12) This Court and others within this Circuit have consistently
dismissed such bare-bones assertions of deliberate indifference. See Cook v. Louisville/Jefferson
Cty. Metro Gov’t, No. 3:17-cv-471-DJH-DW, 2018 WL 523210 (W.D. Ky. Jan. 23, 2018);
Phillips, 2017 WL 4582801 at *2; Sollenberger v. Sollenberger, 173 F. Supp. 3d 608 (S.D. Ohio
2016); Flanigan v. Cty. of Oakland, No. 15-12504, 2016 WL 304763 (E.D. Mich. Jan. 26, 2016);
Okolo v. Metro. Gov’t of Nashville, 892 F. Supp. 2d 931 (M.D. Tenn. 2012); see also Pack v.
City of Louisa Police Dep’t., No. 05–23–HRW, 2006 WL 2349618 (E.D. Ky. Aug. 11, 2006)
(dismissing the action at the summary judgment stage because of the plaintiff’s conclusory
allegations of deliberate indifference).
Because Kirilova fails to adequately allege that William Young’s death occurred as a
result of a policy or custom implemented by Louisville Metro, the Court will dismiss Kirilova’s
failure-to-train claim. See Neal, 2018 WL 314829 at *3; Phillips, 2017 WL 4582801 at *2;
Blaine, 2014 WL 321142 at *2.
C. Ineffective Screening
Kirilova’s final allegation against Louisville Metro is that the officers’ actions resulted
from Louisville Metro’s failure to “employ qualified persons for positions of authority.” (D.N.
12, PageID # 74) “The Supreme Court has placed a heavy burden on plaintiffs seeking to
impose municipal liability as a result of hiring decisions.” Doe v. Magoffin Cty. Fiscal Court,
174 F. App’x 962, 967 (6th Cir. 2006) (citing Bd. of Cty. Comm’rs of Bryan Cty., Okla. v.
Brown, 520 U.S. 397, 404 (1997)). To survive Louisville Metro’s motion to dismiss, Kirilova
must plausibly allege that knowledge of the officers’ history would “lead a reasonable

10

policymaker to conclude that the plainly obvious consequence of the [hiring] decision . . . would
be the deprivation of a third party’s federally protected right[s].” Brown, 520 U.S. at 411. To do
so, the facts alleged must plausibly show that the officers were “highly likely to inflict the
particular injury suffered [by the decedent].” Sweat v. Butler, 90 F. Supp. 3d 773, 783 (W.D.
Tenn. Mar. 9, 2015) (quoting Brown, 520 U.S. at 412).
As other courts within the Circuit have observed, dismissal is warranted where a
complaint lacks a “factual underpinning from which a conclusion could plausibly be drawn that
there was anything in the backgrounds of the police officers to alert [the municipality] that hiring
them would result in the deprivation of a citizen’s constitutional rights and that [the
municipality] was deliberately indifferent to the risk posed.” Hall v. Metro. Gov’t of Nashville &
Davidson Cty., No. 3:17–cv–01268, 2018 WL 305751, at *20 (M.D. Tenn. Jan. 5, 2018); see
also Sweat, 90 F. Supp. 3d at 783 (“Plaintiffs do not provide any facts displaying a connection
between prior incidents of misconduct and the harm suffered in this case.”); Mitchell v. Grasha,
No. 1:12CV2181, 2013 WL 2552040, at *4 (N.D. Ohio June 10, 2013) (“There is no allegation
of any ‘red flags’ or warning signs in the officers’ background or personnel files . . . . [T]he
§ 1983 negligent hiring claims against the City [and the supervisors] are dismissed for failure to
state a claim.”). District courts in Kentucky have dismissed complaints that failed to allege that
the municipality knew of the officers’ unfitness at the time of hiring. See Jackson v. Jernigan,
No. 3:16-cv-00750-JHM, 2017 WL 1962713, at *4 (W.D. Ky. May 11, 2017) (“[T]he complaint
contains no allegations that there were red flags that would have indicated that either [officer]
would cause the particular constitutional violations alleged by [the plaintiff].”); Compton v. City
of Harrodsburg, Ky., No. 5:12–cv–302–JMH, 2013 WL 663589, at *7 (E.D. Ky. Feb. 22, 2013)
(“It is clear, however, that Plaintiff’s Complaint and Amended Complaint are completely devoid

11

of allegations that [the officer] engaged in any sexual misconduct prior to his employment, and
was thus unfit for duty as a police officer. Nor does the Plaintiff allege that [the supervisor] or
the City knew or should have known of any such misconduct.”).
Here, Kirilova alleges that the incident at issue “resulted from the failure of . . . Louisville
Metro and Conrad to employ qualified persons for positions of authority.” (D.N. 12, PageID
# 74) Kirilova fails, however, to plead “‘sufficient factual matter’ to render the legal claim
plausible, i.e., more than merely possible.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718,
722 (6th Cir. 2010) (citing Iqbal, 556 U.S. at 678). Kirilova’s complaint contains no allegation
that Louisville Metro or Conrad knew of the officers’ unfitness at the time of hiring. Indeed,
Kirilova fails to even allege any “red flags” or prior misconduct on the part of the officers.
These omissions are fatal to her claim concerning Louisville Metro’s hiring decisions.3 See
Jackson, 2017 WL 1962713 at *4; Compton, 2013 WL 663589 at *7.
Because Kirilova has failed to adequately allege a theory upon which Louisville Metro
may be held liable, the Court will grant Louisville Metro’s motion to dismiss.
IV.

Conrad’s Motion to Dismiss

Conrad argues that Kirilova fails to plausibly allege a § 1983 claim against him. (D.N.
19-1) He also argues that Kirlova’s state-law claims against him fail as a matter of law. (Id.)
Kirilova relies on two theories of supervisory liability in support of her § 1983 claim against
Conrad: (i) ratification and (ii) failure to train. (See D.N. 12)

3

To the extent that Kirilova asserts a claim against Conrad for his alleged role in hiring the
officers at issue, her claim fails for the same reason. Kirilova presents no factual content
regarding Conrad’s decision to hire the officers. (See D.N. 12)
12

A. Ratification
The Sixth Circuit has “long held that supervisory liability requires some ‘active
unconstitutional behavior’ on the part of the supervisor,” and that “a mere failure to act will not
suffice to establish supervisory liability.” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th
Cir. 2016) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). Active involvement
means that the supervisor “encouraged the specific incident of misconduct or in some other way
directly participated in it.” Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010) (quoting
Cardinal v. Metrish, 564 F.3d 794, 802–03 (6th Cir. 2009)). At a minimum, a plaintiff must
allege that the supervisor “implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999). However, knowledge of the unconstitutional conduct and a subsequent failure to act
does not constitute acquiescence in the conduct. Id. Moreover, “[a]s part of this inquiry, this
[C]ourt also considers whether there is a causal connection between the defendant’s wrongful
conduct and the violation alleged.” Peatross, 818 F.3d at 242.
Here, Kirilova presents no factual content indicating that Conrad encouraged or directly
participated in the officers’ actions. (See D.N. 12) Indeed, Kirilova fails to even allege that
Conrad encouraged or directly participated in the officers’ actions. (Id.) At most, Kirilova
asserts that Conrad “endorsed and ratified” the misconduct because the officers “received no
punishment, additional training, or additional supervision as a result of [the] incident.” (Id,
PageID # 77) Conrad may not be held liable for his mere failure to act, however. Federal courts
in Kentucky have consistently dismissed supervisory-liability claims where the plaintiff merely
alleged that the supervisor failed to act following an alleged constitutional violation. See Thorpe
v. Breathitt Cty. Bd. of Educ., 8 F. Supp. 3d 932, 943 (E.D. Ky. Mar. 21, 2014) (“While, if true,

13

[the supervisors’] inaction in the investigation of the . . . incident can be called negligent and
even morally disturbing, one incident of inaction, without more, does not rise to the level of
deliberate indifference to [the plaintiff’s] constitutional rights and does not amount to ‘active
unconstitutional behavior’ for purposes of a claim under Section 1983.”); see also Begley v.
Tyree, No. 6:14-191-KKC, 2016 WL 7013469, at *4 (E.D. Ky. Nov. 30, 2016) (“[T]he amended
complaint asserts only that [the supervisor] refused to investigate [the plaintiff’s] excessive force
claim. [The plaintiff] does not allege that [the supervisor] was personally involved in the alleged
excessive force.”). Moreover, even viewing Kirilova’s complaint in the light most favorable to
her, the Court cannot find that she has adequately alleged that Conrad failed to investigate prior
instances of officer misconduct and that his failure was the “moving force” behind William
Young’s death. See Peatross, 818 F.3d at 242. Accordingly, the Court will dismiss Kirilova’s
ratification claim against Conrad.
B. Failure to Train
“In order to establish personal liability for a failure to train and supervise, ‘there must be
a showing that the supervisor encouraged the specific incident of misconduct or in some other
way directly participated in it.’” Coley v. Lucas Cty., Ohio, 799 F.3d 530, 542 (6th Cir. 2015)
(alteration omitted) (quoting Taylor v. Mich. Dep’t of Corrs., 69 F.3d 76, 81 (6th Cir. 1995)).
“At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending
subordinate.” Id. (quoting Taylor, 69 F.3d at 81). In fact, “[b]ecause § 1983 liability cannot be
imposed under a theory of respondeat superior, proof of personal involvement is required for a
supervisor to incur personal liability.” Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3 (6th Cir.
2005). “[A]bsent evidence of personal involvement in the underlying misconduct, failure-to-

14

train claims against individual defendants are properly deemed brought against them in their
official capacities, to be treated as claims against the county.” Harvey, 453 F. App’x at 563
(citing Miller, 408 F.3d at 817 n.3). Accordingly, a plaintiff must allege facts indicating that the
supervisor was personally involved in the alleged unconstitutional activity. Phillips v. Roane
Cty., Tenn., 534 F.3d 531, 544 (6th Cir. 2008).
As explained above, Kirilova fails to allege that Conrad was personally involved in the
death of William Young. (See D.N. 12) Besides her conclusory language that Conrad failed to
train the officers at issue, Kirilova does not provide facts suggesting that Conrad encouraged or
directly participated in the officers’ conduct or that at a minimum he implicitly authorized,
approved, or acquiesced in the conduct. (Id.) The Court will therefore dismiss Kirilova’s
failure-to-train claim against Conrad. See Harvey, 453 F. App’x at 563; see also Smith v. Bolton,
No: 3:17-CV-00468-JHM, 2017 WL 5180960, at *3 (W.D. Ky. Nov. 8, 2017) (“While Plaintiff’s
Complaint offers a formulaic recitation of the elements claiming that ‘defendants directly
participated in unconstitutional conduct described herein, encouraged it, implicitly authorized it,
approved it, and/or knowingly acquiesced in it,’ the Complaint utterly fails to support these
conclusory allegations with any factual assertions.” (alteration omitted)); Harper v. Conrad, No.
3:14–CV–P523–H, 2014 WL 5100625, at *4 (W.D. Ky. Oct. 10, 2014) (“Plaintiff’s complaint is
void of any allegation that Defendant Conrad directly participated or implicitly authorized,
approved, or acquiesced in the alleged wrongful behavior. Accordingly, the failure-to-train
claim against Defendant Conrad in his individual capacity will be dismissed from this action for
failure to state a claim upon which relief may be granted.”).

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C. State-Law Claims
Kirilova alleges two state-law claims against Conrad: (i) negligence/gross negligence and
(ii) wrongful death. (D.N. 12, PageID # 78) As an initial matter, Kirilova provides no factual
assertion that Conrad’s own negligence led to William Young’s death. (Id.) Rather, it appears
that Kirilova seeks to hold Conrad liable for the alleged negligent actions of his subordinates.
Under Kentucky law, however, “a claim against a public official must contain some allegation
that the official was directly involved in the negligent acts of subordinates, otherwise, there is no
vicarious liability for the public official.” Juillerat v. United States, No. 3:16-cv-00276-TBR,
2016 WL 6156179, at *6 (W.D. Ky. Oct. 21, 2016) (internal quotations omitted) (citing Moores
v. Fayette Cty., 418 S.W.2d 412, 414 (Ky. 1967)); see also Yanero v. Davis, 65 S.W.3d 510, 528
(Ky. 2001) (“Public officers are responsible only for their own misfeasance and negligence and
are not responsible for the negligence of those employed by them if they have employed persons
of suitable skill.”). Thus, “for Chief Conrad to be liable for any actions of his subordinates, he
must have either employed persons he knew to be incompetent for their positions or he must
have been somehow directly involved in the alleged negligent acts of his subordinates.”
Juillerat, 2016 WL 6156179 at *6. As explained above, Kirilova has failed to plead any facts
that raise the plausible inference that Conrad had reason to question the officers’ competence.
(See D.N. 12) Nor has Kirilova provided facts showing that Conrad was directly involved in the
incident at issue. (See id.) The Court will therefore dismiss Kirilova’s state-law claims against
Conrad. See Smith, 2017 WL 5180960 at *3 (“[T]he Complaint . . . does not allege any facts to
support a claim that Defendants ratified or participated in the acts of Unknown Officers. Thus,
Plaintiff’s allegations of negligence against [the] Defendants . . . fail to state a claim and are
dismissed.”).

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V.

Conclusion

For the reasons set forth above, and the Court being otherwise sufficiently advised, it is
hereby
ORDERED as follows:
(1)

Defendant Louisville Metro’s motion to dismiss (D.N. 15) is GRANTED. The

Clerk of Court is DIRECTED to terminate Louisville Metro as a defendant in the record of this
matter.
(2)

Defendant Steve Conrad’s motion to dismiss (D.N. 19) is GRANTED. The Clerk

of Court is DIRECTED to terminate Conrad as a defendant in the record of this matter.
(3)

Consistent with the Court’s prior order (D.N. 16), this matter is REFERRED to

Magistrate Judge Dave Whalin for a status conference.
July 9, 2018

David J. Hale, Judge
United States District Court

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