Howell v. Father Maloney's Boys' Haven, Inc. et al

Filing 30

MEMORANDUM OPINION AND ORDER by Chief Judge Greg N. Stivers on 3/25/2019. Plaintiffs Motion for Leave to Amend Complaint (DN 24 ) is GRANTED IN PART and DENIED IN PART. The Clerk shall file the Amended Complaint (DN 24 -4) but terminate Defendants Commonwealth of Kentucky Cabinet for Health & Family Services, Scott Brinkman, and Vicky Yates Brown Glisson as parties to this action. Defendants Motions to Dismiss (DN 1 -8, 4 ) are DENIED AS MOOT. cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:18-CV-00192-GNS
ADRIENNE HOWELL

PLAINTIFF

v.
FATHER MALONEY’S BOYS’ HAVEN, INC., d/b/a
FATHER MALONEY’S BOYS & GIRLS HAVEN, et. al.

DEFENDANTS

MEMORANDUM OPINION & ORDER
This matter is before the Court on Defendants’ Motions to Dismiss (DN 1-8, 4), and
Plaintiff’s Motion for Leave to Amend Complaint (DN 24). The motions are ripe for adjudication.
For the reasons discussed below, Plaintiff’s Motion for Leave to Amend Complaint (DN 24) is
GRANTED IN PART and DENIED IN PART, and Defendants’ Motions to Dismiss are
DENIED AT MOOT.
I.

BACKGROUND

This action arises from a sexual assault that Plaintiff Adrienne Howell (“Howell”)
allegedly experienced while working for Father Maloney’s Boys & Girls Haven (“BGH”)—a
residential institution that provides treatment to at-risk youth. (Compl. ¶¶ 1-2, 10, DN 1-2; Am.
Compl. ¶¶ 1-2, DN 24-3). Specifically, the Complaint alleges that one of BGH’s residents—
R.B.L.—choked Howell unconscious and sodomized her while she was working in a secluded
barn on the BGH campus. (Compl. ¶¶ 20-23; Am. Compl. ¶¶ 19-21).
Howell filed a personal injury suit in Jefferson Circuit Court against several defendants,
including: (i) BGH and its Chief Executive Officer, Jeff Hadley (collectively “BGH Defendants”),

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(ii) R.B.L., and (iii) the Kentucky Cabinet for Health and Family Services (the “Cabinet”), Scott
Brinkman (“Brinkman”), and Vickie Yates Brown Glisson (“Glisson”)1 (collectively “CHFS
Defendants”). (Compl. ¶¶ 2-7, 34-86). In the Complaint, Howell asserted claims against the CHFS
Defendants and BGH Defendants under 42 U.S.C. § 1983. (Compl. ¶¶ 36-54). Further, Howell
sets forth several state-law claims against BGH Defendants. (Compl. ¶¶ 55-83). Finally, Howell
asserts BGH Defendants are liable because R.B.L. assaulted her and subjected her to false
imprisonment.2 (Compl. ¶¶ 77-83).
BGH Defendants moved to dismiss the claims asserted against them in the Complaint.
(Defs.’ Mot. Dismiss, DN 1-8). CHFS Defendants then removed the action to this Court. (See
Notice Removal, DN 1). In support of removal, CHFS Defendants pointed out that the Complaint
raised a federal question—thereby subjecting the case to this Court’s removal jurisdiction—and
noted that they had obtained consent for removal from all defendants “to have been served properly
with process . . . .” (Notice Removal 1-2).
After removing the case to this Court, CHFS Defendants also moved to dismiss the
Complaint. (Def.’s Mot. Dismiss, DN 4). Plaintiff moved to remand this matter to state court, and
the Court postponed ruling on Defendants’ motions until after addressing whether to remand this
case. The Court subsequently denied Plaintiff’s motion to remand. (Mem. Op. & Order, DN 21).
Plaintiff then moved for leave amend the Complaint. (Pl.’s Mot. Leave Amend, DN 24).
Defendants’ motions to dismiss and Plaintiff’s motion to amend are now ripe.

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Glisson is the Cabinet’s former secretary, and Brinkman is the Cabinet’s current secretary.
(Compl. ¶ 6).
2
Although the original Complaint names R.B.L. as a defendant, it does not appear that Howell
asserted a cause of action against him or that R.B.L. was ever served in this action.
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II.

JURISDICTION

This action arises under the laws of the United States, and this Court has jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367.
III.
A.

DISCUSSION

Plaintiff’s Motion for Leave to Amend Complaint (DN 24)

Howell moves for leave to amend the Complaint. In support of her motion, she asserts that
the motion was necessitated by the Court’s denial of her motion to remand. (Pl.’s Mem. Supp.
Mot. Leave Am. Compl. 3, DN 24-1). In the motion, Howell seeks to amend the Complaint to:
(i) drop her claims against CHFS due to the Court’s ruling on the Eleventh Amendment defense
and against Brinkman because he was not Secretary of CHFS at the time of the sexual assault; (ii)
correct some of allegations to Counts IV and V of the Complaint; (iii) update the Complaint to
reflect the guilty plea entered by R.B.L. related to the criminal charges arising from the sexual
assault; and (iv) provide clarification to Count I(A) and (B).3 (Pl.’s Mem. Supp. Mot. Leave Am.
Compl. 3-4). While CHFS Defendants oppose the motion, neither BGH Defendants nor R.B.L.
filed a response. (Defs.’ Resp. Pl.’s Mot. Leave Am. Compl., DN 26).
A motion for leave to file an amended complaint is governed by Fed. R. Civ. P. 15(a)(2),
which provides that “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” A district court should freely grant a plaintiff leave to amend a
pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, a district court may deny

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In the Amended Complaint, Count I purports to assert a claim under 42 U.S.C. § 1983 against
Glisson and BGH Defendants. (Am. Compl. ¶¶ 32-54). Counts II and III assert claims against
BGH Defendants only. (Am. Compl. ¶¶ 55-76). Count IV and V assert claims against R.B.L.
Finally, Count VI seeks exemplary or punitive damages against Glisson and BGH Defendants
under state law. (Am. Comp. ¶¶ 84-86). A claim for punitive damages under Kentucky law,
however, is not a separate cause of action but rather a remedy available for a claim. See Dalton v.
Animas Corp., 913 F. Supp. 2d 370, 378-79 (W.D. Ky. 2012) (citation omitted).
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a motion to amend where there is “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6)
motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
In order to survive a motion to dismiss, “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, 677 (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. Further, 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).
1.

Glisson

In the Amended Complaint, Howell asserts in Count I a claim against Glisson in both her
official and individual capacities under 42 U.S.C. § 1983. (Am. Compl. ¶¶ 32-42). Howell
contends that Glisson had a duty to protect children at BGH, to ensure that they are properly
housed, and to ensure the safety of all staff members interacting with those children. (Am. Comp.
¶¶ 36-37).
Based on the Court’s review of the Amended Complaint, Howell has not alleged any facts
that Glisson was personally involved in any decisions related to R.B.L. or to staff safety at BGH.
Rather, Howell makes only generalized allegations that Glisson was the Secretary of CHFS and is

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therefore responsible for all activities carried out within the cabinet’s authority, including the
safety of all employees. (Am. Comp. ¶¶ 35-36). Howell has not detailed any personal information
that Glisson had or alleged any facts supporting the inference that Glisson had dealings with R.B.L.
or Howell or was acquainted with them in any shape, form, or fashion.
Under Iqbal and Twombly, a plaintiff is required to plead facts that allow the Court to draw
a reasonable inference that a defendant is liable for the alleged misconduct. “Absent vicarious
liability, each Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.” Marcilis v. Twp. of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (internal quotation
marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). It is proper for this Court
to dismiss a complaint when a plaintiff fails to “allege, with particularity, facts that demonstrate
what each defendant did to violate the asserted constitutional right.” Id. at 596-97 (internal
quotation marks omitted) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)).
Here, the Court can take judicial notice that CHFS has thousand of employees and
contractors with numerous departments, which in turn are headed by a commissioner. See
Commonwealth of Kentucky, Organizational Chart for Cabinet for Health and Family Services,
https://personnel.ky.gov/DHRAOrgCharts/OC-53.pdf. (last visited Mar. 25, 2019). It is not only
implausible, but in fact unrealistic to suggest that a cabinet secretary is personally responsible—
i.e., personally involved in—the detailed management of actions taken by all employees in every
department operating under CHFS.
The Court must then consider the capacities in which Glisson has been sued in this action.
First, the Amended Complaint purports to assert claims against Glisson in her official capacity.
(Am. Compl. ¶ 4). As the Supreme Court has explained:
Official-capacity suits . . . “generally represent only another way of pleading an
action against an entity of which an officer is an agent.” As long as the government
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entity receives notice and an opportunity to respond, an official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity. It is not a suit
against the official personally, for the real party in interest is the entity.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal citations omitted). Thus, the claim
asserted against Glisson in her official capacity is a claim against CHFS. As Howell recognized
in her motion to amend, however, claims against CHFS are barred by the Eleventh Amendment.
See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (“The Eleventh
Amendment bars a suit against state officials when ‘the state is the real, substantial party in
interest.’ Thus, ‘[t]he general rule is that relief sought nominally against an officer is in fact against
the sovereign if the decree would operate against the latter.’” (internal citations omitted) (citations
omitted)). Accordingly, the claims asserted against Glisson in her official capacity are futile, and
the Court will deny the motion to amend as to these claims.
In contrast to official-capacity claims, “[p]ersonal-capacity suits seek to impose personal
liability upon a government official for actions he takes under color of state law.” Graham, 473
U.S. at 165. “In a lawsuit against a government official . . . , ‘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. “A government official may only be held liable for his or
her own individual acts of misconduct.’” Jackson v. Murray State Univ., 834 F. Supp. 2d 609, 614
(W.D. Ky. 2011) (citation omitted).
With regard to the allegations in the Amended Complaint, Iqbal and Twombly require
allegations of facts that plausibly could support a claim for relief for which Glisson could be
personally accountable. See Iqbal, 556 U.S. at 678 (“[A] complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at
556)).
In the context of Howell’s injury, she must plead specific facts plausibly indicating that
Glisson was personally involved in the decisions or actions which exposed Howell to the danger
by R.B.L. It would seem far from plausible—in fact, farfetched—that Glisson had some active
role in the assignment of R.B.L. to BGH, the direct management of BGH, or the circumstances
which exposed Howell to an attack by a resident of BGH, R.B.L. There is no allegation or
suggestion that Glisson had any actual acquaintance with Howell or R.B.L. or was personally
involved with any facet of BGH. The only allegations of fact are those that would support claims
of vicarious liability, which does not exist in this context. See Iqbal, 556 U.S. at 676; Robertson
v. Sichel, 127 U.S. 507, 515-16 (1888) (“A public officer or agent is not responsible for the
misfeasances or position wrongs, or for the nonfeasances or negligences or omissions of duty, of
the subagents or servants or other persons properly employed by or under him, in the discharge of
his official duties.”

(citation omitted)).

Absent some allegation that Glisson had some

involvement in the operation of BGH or the attack by R.B.L., Plaintiff’s Amended Complaint does
not plead facts plausibly stating a claim against Glisson in her individual capacity.
Thus, to the extent the Amended Complaint purports to assert a 42 U.S.C. § 1983 claim
against Glisson, the Amended Complaint fails to state a claim. The motion to amend will be denied
because the claims against Glisson are futile.
2.

BGH Defendants

BGH Defendants have not responded to Howell’s motion. Accordingly, the Court will
grant the motion to allow Howell to amend her claims against those Defendants. See LR 7.1(c)
(“Failure to timely respond to a motion may be grounds for granting the motion.”).

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B.

Defendants’ Motions to Dismiss (DN 1-8, 4)

The other ripe motion is Defendants’ Motions to Dismiss (DN 1-8, 4). Because the
Amended Complaint subsumes the allegations in the original Complaint, the Court will deny these
motions as moot. See Herran Props., LLC v. Lyon Cty. Fiscal Court, No. 5:17-CV-00107-GNS,
2017 WL 6377984, at *2 (citing Cedar View, Ltd. v. Colpetzer, No. 5:05-CV-00782, 2006 WL
456482, at *5 (N.D. Ohio Feb. 24, 2006)); Ky. Press Ass’n, Inc. v. Kentucky, 355 F. Supp. 2d 853,
857 (E.D. Ky. 2005) (citing Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir.
2000)).
IV.

CONCLUSION

For the reasons discussed above, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Motion for Leave to Amend Complaint (DN 24) is GRANTED IN

PART and DENIED IN PART. The Clerk shall file the Amended Complaint (DN 24-4) but: (i)
terminate Defendants Commonwealth of Kentucky Cabinet for Health & Family Services and
Scott Brinkman as parties to this action because Plaintiff has voluntarily dismissed all claims
against those Defendants; and (ii) terminate Defendant Vicky Yates Brown Glisson as a party to
this action because the claims asserted against her in the Amended Complaint are futile.
2.

Defendants’ Motions to Dismiss (DN 1-8, 4) are DENIED AS MOOT.

March 25, 2019

cc:

counsel of record

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