Phillips v. PTS of America, LLC et al

Filing 56

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 10/13/2017 granting in part and denying in part 37 Motion to Dismiss. Counts I and III against Louisville Metro are DISMISSED. cc: Counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-00603-JHM
ROSE M. PHILLIPS, administratrix
of the estate of William Culpepper,
deceased, et al.,

PLAINTIFFS

v.
PTS OF AMERICA, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion to dismiss by defendants Louisville/Jefferson
County Metro Government (“Louisville Metro”) and Mark Bolton. (DN 37.) Fully briefed, this
matter is ripe for decision.
I. BACKGROUND
According to the second amended complaint (DN 29), William Culpepper was arrested in
Louisville on an outstanding warrant from Mississippi and taken to Louisville Metro Department
of Corrections (“LMDC”). On January 29, 2016, Culpepper was to be transported by defendant
PTS of America (“PTS”), a prisoner transportation service, from LMDC to Pearl, Mississippi,
with an overnight stop in Mississippi County, Missouri. Before leaving LMDC, Culpepper
began complaining of abdominal pain related to a bleeding ulcer. Medical staff at LMDC
indicated to PTS staff that Culpepper had no history of such pain and that he should be given
antacids. PTS staff were also advised that Culpepper was diabetic and had not been taking his
medications as required.
While being transported, Culpepper continued to complain of abdominal pain and was
given antacids. His blood sugar levels were taken twice during the trip from Louisville to
Missouri, and on both occasions his levels were higher than what was considered normal. When

the PTS transport van arrived in Missouri after a thirteen-hour trip, Culpepper was unable to exit
the van and was barely responsive. He had to be carried into the Missouri County Department of
Corrections, but the jail would not admit him until he was stable and medically cleared.
Culpepper lost consciousness, but he was not taken to the hospital. An ambulance was called,
but by the time it arrived, Culpepper had no pulse. He could not be revived, and Culpepper
ultimately died from a perforated duodenal ulcer.
The present complaint was brought by plaintiffs Rose M. Phillips, administratrix of the
estate of Culpepper; Michelle Myers, the mother of Culpepper’s minor daughter, W.C.; and
Brandon Green, the son of Culpepper. The plaintiffs have twice amended their complaint to
assert claims against various defendants related to PTS, Louisville Metro, and Mississippi
County. As relevant to the present motion to dismiss, the plaintiffs have asserted federal and
state-law claims against Louisville Metro and Mark Bolton, the director of LMDC, in his
individual capacity. Both have moved to dismiss all claims against them pursuant to Fed. R. Civ.
P. 12(b)(6).1
II. STANDARD OF REVIEW
Upon a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
a court “must construe the complaint in the light most favorable to plaintiffs,” League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all
well-pled factual allegations as true,” id., and determine whether the “complaint . . . states a
plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the
plaintiff must provide the grounds for its entitlement to relief, which “requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp.
1

While the complaint and the present motion to dismiss were both filed in the Eastern District of Kentucky, that
Court recently transferred the case in its entirety to this district, including the pending motion to dismiss. (DN 50,
51.)

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v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when it “pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts
“merely consistent with a defendant’s liability” or if the alleged facts do not “permit the court to
infer more than the mere possibility of misconduct.” Id. at 678–79. Instead, a complaint “must
contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’”
Id. at 677 (quoting Fed. R. Civ. P. 8(a)(2)). “But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).
III. DISCUSSION
A. LOUISVILLE METRO
The second amended complaint asserts two claims against Louisville Metro. Count I
seeks to hold Louisville Metro liable for the deprivation of Culpepper’s constitutional rights
pursuant to 42 U.S.C. § 1983, while Count III is a state-law claim for wrongful death. Turning
to the wrongful death claim first, Louisville Metro argues that it is protected against any statelaw claims under the doctrine of sovereign immunity. The plaintiffs concede in their response
that Louisville Metro enjoys sovereign immunity from their state-law claims. See Schwindel v.
Meade Cty., 113 S.W.3d 159, 163 (Ky. 2003) (“A county government is cloaked with sovereign
immunity”). Therefore, Louisville Metro’s motion to dismiss Count III is GRANTED.
As for the § 1983 claim, Louisville Metro argues that the claim should be dismissed, as
the complaint fails to state a claim for municipal liability under § 1983. Municipal governments
are considered “persons” who may be sued under § 1983, but the unconstitutional act at issue

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must be performed pursuant to a governmental policy or custom in order to establish municipal
liability. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690–91 (1978). Count I does seek to hold
Louisville Metro liable for the violations of Culpepper’s constitutional rights that resulted from
LMDC’s “written policies, procedures . . . customs and practices.” (Pl.’s Second Am. Compl.
[DN 29] ¶ 27.) However, the complaint does not state what those policies or customs were.
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 Culpepper’s constitutional rights. District courts in the Sixth
Circuit have consistently interpreted Iqbal so as to require “more than bare statements that the
alleged constitutional violation was caused by a policy or custom to survive a motion to
dismiss.” Vidal v. Lexington Fayette Urban Cty. Gov., 2014 WL 4418113, at *3 (E.D. Ky. Sep.
8, 2014). Allegations that a municipality “negligently trained and/or supervised” its employees,
or that it “failed to instruct, supervise, control, and discipline” its employees, id. at *3 (quoting
complaint), are “naked assertions devoid of further factual enhancement [that] contribute nothing
to the sufficiency of the complaint.” Id. at *4. Such a complaint “merely recites the legal
requirements for a claim against a municipality without any factual allegations that would raise a
right to relief above the speculative level.” Id. See also Kustes v. Lexington-Fayette Urban Cty.
Gov., 2013 WL 4776343, at *5 (E.D. Ky. Sep. 3, 2013) (“The Plaintiff must describe what the
official custom or policy was and describe how it was violated”); Hutchinson v. Met. Gov. of
Nashville and Davidson Cty., 685 F. Supp. 2d 747, 751 (M.D. Tenn. 2010) (failure to “include
any facts related to a . . . municipal custom, policy or practice” required court to dismiss

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complaint); Ghaster v. City of Rocky River, 2010 WL 2802685, at *7 (N.D. Ohio May 12, 2010)
(“Plaintiffs are in fact required to identify the practice or policy that forms the basis of their
claim”). Under this pleading standard, the complaint fails to state a claim for municipal liability
under § 1983. Therefore, Louisville Metro’s motion to dismiss Count I is GRANTED.
B. DIRECTOR BOLTON
The plaintiffs assert three claims against Director Bolton. Count I seeks to hold Bolton
liable pursuant to § 1983 for violations of Culpepper’s constitutional rights, while Count II
asserts a state-law claim of negligence. Count III asserts a claim for wrongful death. Bolton
seeks dismissal of the § 1983 claim, as the plaintiffs have failed to plausibly allege a claim for
which relief could be granted, and he seeks dismissal of the two state-law claims on the grounds
of qualified immunity. The Court will discuss each in turn.
1. § 1983 CLAIM
Beginning with the § 1983 claim, the plaintiffs allege that Culpepper’s rights under the
Eighth and Fourteenth Amendments were violated, as various individuals, including Bolton,
were deliberately indifferent to his medical needs while he was a pre-trial detainee. (See Pl.’s
Second Am. Compl. [DN 29] ¶¶ 1–2.) Count I asserts two different theories under which Bolton
could be liable for this deprivation of constitutional rights. First, Bolton is alleged to have been
deliberately indifferent to Culpepper’s medical needs through his own “acts.” (Id. ¶ 27.) And
second, Bolton’s alleged failure to adequately train and supervise his staff at LMDC amounted to
deliberate indifference. (Id.)
Turning to the first theory, a claim for deliberate indifference to medical needs must
plead facts that demonstrate two elements:
[A] plaintiff must satisfy an objective component and a subjective
component. The objective component is satisfied by showing a

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sufficiently serious condition that denial of needed medical care
would result in the unnecessary and wanton infliction of pain or
pose a substantial risk of serious harm. To satisfy the subjective
component, a plaintiff must allege and ultimately prove that the
defendant was aware of facts from which the inference could be
drawn that a substantial risk of harm would exist if needed care
were not provided, that the defendant actually drew the inference,
and that the defendant acted in disregard of that risk.
Amick v. Ohio Dep. of Rehab. & Corr., 521 F. App’x 354, 358 (6th Cir. 2013) (internal citations
omitted). Bolton does not argue that the plaintiffs fail to establish the objective component of a
sufficiently serious condition; he only argues that the complaint fails to adequately plead facts
that would establish the subjective component, as the plaintiffs do not allege that he was even
aware of Culpepper’s presence in the jail, much less his condition and the substantial risk posed
by it.
There is only one factual allegation in the complaint related to Bolton:
Despite the fact that PTS policies and procedures discouraged van
transport of diabetic inmates, much less a diabetic inmate
complaining of stomach pain and a bleeding ulcer, Defendants
Louisville Metro Government, Bolton, Correct Care and
McKinney nonetheless surrendered custody, and Defendants PTS,
Haskins, Crook and Earnhart accepted custody, of Mr. Culpepper .
..
(Pl.’s Second Am. Compl. [DN 29] ¶ 19.) The paragraph does state that Bolton surrendered
custody of Culpepper; while it may be ambiguous as to whether Bolton was the person who
actually decided to surrender custody or whether he was simply responsible for all individuals
who came and went from LMDC as its director, the Court examines this phrase in a light most
favorable to the plaintiffs, see Bredesen, 500 F.3d at 527, and concludes that it does successfully
plead that Bolton was the person, or one of many people, who actually made the decision to
surrender custody of Culpepper on January 29.

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However, the paragraph fails to plead any facts that would establish that Bolton did this
with an awareness of the risk of harm posed by surrendering Culpepper without providing him
medical treatment. The first clause of the paragraph indicates that PTS had policies discouraging
van transport of diabetic inmates and suggests that this policy should have been enforced due to
Culpepper’s diabetes and stomach condition, but it does not state that Bolton knew of these
policies or that he knew of Culpepper’s condition. Bolton is not among the specific defendants
that are identified in the complaint as having been made aware of Culpepper’s complaints about
his stomach ulcer and its associated pain. (See Pl.’s Second Am. Compl. [DN 29] ¶ 18.) At best,
the complaint establishes that Bolton was physically present and made the decision to surrender
custody of Culpepper, but without facts indicating he was aware of the risk of harm posed by
Culpepper’s condition if it went untreated, the complaint does not state a claim for deliberate
indifference against Bolton based upon his own actions. Compare with Scott v. Ambani, 577
F.3d 642, 648 (6th Cir. 2009) (plaintiff stated a claim for deliberate indifference when he alleged
that defendant doctor was aware of plaintiff’s recent treatment “for prostate cancer, and [that he]
had severe back and leg pain, as well as a testicular lump that was hard and painful”).
As to whether Bolton’s alleged failure to train or supervise his staff can form the basis of
any liability, the Sixth Circuit has held that “a prerequisite of supervisory liability under § 1983
is unconstitutional conduct by a subordinate of the supervisor.” McQueen v. Beecher Cmty.
Schs., 433 F.3d 460, 470 (6th Cir. 2006). Additionally, though, a plaintiff must show that “the
supervisor either encouraged the specific incident of misconduct or in some other way directly
participated in it. At a minimum a plaintiff must show that the [supervisor] at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
officers,” as liability cannot be premised on a theory of respondeat superior. Id. (quotations

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omitted). As stated above, the complaint does adequately allege that Bolton was at least one of
many individuals who was involved in the decision to surrender custody of Culpepper; as such,
the plaintiffs have sufficiently stated that Bolton “directly participated in” the release of
Culpepper. And further, the complaint states that Bolton was “responsible for the . . . training
[and] supervision . . . of Correct Care and McKinney,” defendants that Culpepper alleges were
aware of the risk of harm posed by his stomach ulcer and were deliberately indifferent to his
medical needs. (Pl.’s Second Am. Compl. [DN 29] ¶¶ 7, 14.) Thus, at this stage at least, the
plaintiffs have adequately alleged unconstitutional conduct by a subordinate of Bolton.2 Accord
Horn v. City of Covington, 2015 WL 4042154, at *7 (E.D. Ky. July 1, 2015) (denying motion to
dismiss claim of supervisor liability, as plaintiff “pled that [the defendant], a supervisor, actively
‘participated’ with the other officers in the beating and arrest”).
Since the complaint plausibly alleges unconstitutional conduct by a subordinate of
Bolton’s and his direct involvement in Culpepper’s release, the claim for supervisory liability
may proceed. Therefore, Bolton’s motion to dismiss Count I is DENIED.
2. STATE-LAW CLAIMS
Bolton has also moved to dismiss the plaintiffs’ state-law claims for negligence and
wrongful death, as he is entitled to qualified immunity from those claims. Under Kentucky law,
[q]ualified official immunity applies to the negligent performance
by a public officer or employee of (1) discretionary acts or
functions, i.e., those involving the exercise of discretion and
judgment, or personal deliberation, decision, and judgment . . . ;
(2) in good faith; and (3) within the scope of the employee’s
authority.

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Bolton argues that he has no supervisory authority over any Correct Care employee, but given that this case is only
at the pleading stage, the Court cannot credit any factual statements made in the motion to dismiss. Taking the
complaint in a light most favorable to the plaintiffs, the allegation that Bolton did in fact possess supervisory
authority over Correct Care employees is sufficient at this stage for the claim to proceed.

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Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). Bolton argues that the act of supervising
employees is a discretionary act. He also argues that there are no allegations in the complaint
that he acted in bad faith or outside the scope of his employment. However, as the Court has
noted, the complaint does not simply allege that Bolton supervised employees; it alleges that
Bolton was involved in the decision to surrender custody of Culpepper. Further, the complaint
adequately alleges bad faith on the part of Bolton, as it states that his “conduct was intentional
and grossly negligent, indicated active malice toward Mr. Culpepper and a total, deliberate and
reckless disregard for and indifference to his life and his constitutional and common law rights . .
.” (Pl.’s Second Am. Compl. [DN 29] ¶ 15.) See Wales v. Pullen 390 S.W.3d 160, 167 (Ky. Ct.
App. 2012) (bad faith element of qualified immunity looks to whether the official “acted in an
objectively unreasonable way in carrying out his duties”); Yanero, 65 S.W.3d at 523 (“Bad faith
can be predicated on a violation of a constitutional, statutory, or other clearly established right
which a person in the public employee’s position presumptively would have known was afforded
to a person in the plaintiff’s position . . . or if the officer or employee willfully or maliciously
intended to harm the plaintiff or acted with a corrupt motive”). Given that there is a factual
dispute as to what action Bolton actually took and whether any such actions were taken in bad
faith, the Court cannot at this time determine if he is entitled to qualified immunity. See Jenkins
Ind. Schs. v. Doe, 379 S.W.3d 808, 812 (Ky. Ct. App. 2012) (refusing to determine whether
defendants acted in bad faith before development of sufficient factual record); Wesley v.
Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015) (in discussing federal qualified immunity,
noting that “it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss
on the basis of qualified immunity” due to fact-intensive nature of the defense). Therefore,
Bolton’s motion to dismiss the state-law claims is DENIED.

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IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the motion to dismiss
by defendants Louisville/Jefferson County Metro Government and Mark Bolton (DN 37) is
GRANTED IN PART and DENIED IN PART. Counts I and III against Louisville Metro are
DISMISSED.

October 13, 2017

cc: counsel of record

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