Jones et al v. Traud et al

Filing 126

MEMORANDUM OPINION AND ORDER Signed by Judge Rebecca Grady Jennings on 8/19/2022. Plaintiffs' Motion to Compel Discovery (DE 97 ) is DENIED AS MOOT. Metro Government's Partial Motion for Summary Judgment (DE 98 ) is GRANTED. Metro Government's Motion to Stay Discovery (DE 99 ) is DENIED AS MOOT. Plaintiffs' Motion for Leave to file Verified Third Amended Complaint (DE 102 ) is DENIED. cc: Counsel (SMJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:18-CV-265-RGJ
NASHAYLA JONES, et al.

Plaintiffs

v.
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT, et al.

Defendants

* * * * *
MEMORANDUM OPINION AND ORDER
Defendant Louisville/Jefferson County Metro Government (“Metro Government”) moves
for partial summary judgment, on their Monell claim. [DE 98]. Plaintiffs Nashayla and Nascyauni
Jones (“Plaintiffs”) responded [DE 103], and Metro Government replied. [DE 105]. Plaintiffs
move for leave to file a third amended complaint. [DE 102]. Metro Government responded [DE
107], and Plaintiffs replied. [DE 108]. Plaintiffs also moved to compel discovery on their Monell
claim [DE 97], while Metro Government moved to stay discovery on the Monell claim. [DE 99].
Each party responded [DE 100; DE 104], and each replied. [DE 101; DE 106]. These matters are
ripe. For the reasons below, Plaintiffs’ Motion to Compel Discovery [DE 97] is DENIED AS
MOOT, Metro Government’s Motion for Summary Judgment [DE 98] is GRANTED, Metro
Government’s Motion to Stay Discovery [DE 99] is DENIED AS MOOT, Plaintiffs’ Motion for
Leave to File a Third Amended Complaint [DE 102] is DENIED.
I.

BACKGROUND

The background has been previously set forth in the Court’s Orders [DE 44; DE 77] and is
incorporated. In 2017 the Louisville Metro Police Department executed a search warrant on
Plaintiffs’ residence. [See DE 77 at 1062-63]. In 2018, Plaintiffs filed this lawsuit against Metro

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Government and various state and federal law enforcement officers in their individual and official
capacities. [DE 1]. Plaintiffs have amended the complaint three times. [DE 17; DE 29; DE 45].
In their Second Amended Complaint, Plaintiffs brought a variety of claims under the
heading of one federal claim and one state claim. [DE 45 at 656-64]. Against Metro Government,
Plaintiffs brought a claim under 42 U.S.C. § 1983 and the First, Fourth, and Fourteenth
Amendments, alleging unconstitutional policies or customs (“Monell claim”). [DE 45 at 634, 65663]. On motion to dismiss, the Court dismissed all claims against Metro Government except for
one Monell claim for not activating or wearing body cameras. [DE 77 at 1062, 1074-76]. Also
remaining are the Fourth Amendment excessive force claim against Defendant Thomas Schardein,
and all claims of assault, false imprisonment, conversion, and negligence against the individually
named defendants. [Id. at 1061-62].
II.

STANDARD

Under Fed. R. Civ. P. 15(a)(2), “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). “The grant or denial of leave to amend is within the discretion
of the trial court, and review is for abuse of discretion.” Sec. Ins. Co. of Hartford v. Kevin Tucker
& Assocs., Inc., 64 F.3d 1001, 1008 (6th Cir. 1995) (citing Roth Steel Prod. v. Sharon Steel Corp.,
705 F.2d 134, 155 (6th Cir. 1983)). “In deciding whether to grant a motion to amend, courts should
consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing
party, and futility of amendment.” Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996,
1001 (6th Cir. 2005) (citing Coe v. Bell, 161 F.3d 320, 341–42 (6th Cir. 1998)). “A proposed
amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.”

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Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). An action may be
dismissed under Fed. R. Civ. P. 12(b)(6) if the complaint fails to state a claim upon which relief
can be granted. To survive dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), “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 complaint will be dismissed pursuant to Rule 12(b)(6)
if no law supports the claims made, if the facts alleged are insufficient to state a claim, or if the
face of the complaint presents an insurmountable bar to relief.” Southfield Educ. Ass’n v. Southfield
Bd. of Educ., 570 F. App’x 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561-64 (2007)).
The moving party has the burden of proving that no claim exists. Total Benefits Plan. Agency,
Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008).
“When there are pending before the court both a dispositive motion and a motion to amend
the complaint, the court must first address the motion to amend complaint.” Gallaher & Assocs.,
Inc. v. Emerald TC, LLC, No. 3:08-CV-459, 2010 WL 670078, at *1 (E.D. Tenn. Feb. 19, 2010)
(citing Ellison v. Ford Motor Co., 847 F.2d 297, 300 (6th Cir. 1988)). If the court grants a motion
to amend, “the original pleading no longer performs any function in the case.” Clark v. Johnston,
413 F. App’x 804, 811 (6th Cir. 2011) (internal quotation marks and citation omitted). Thus,
“when the court grants leave to amend the complaint, a motion to dismiss the original complaint
will be denied as moot if the amended complaint adequately addresses the grounds for dismissal.”
Stepp v. Alibaba.com, Inc., No. 3:16-CV-00389-CRS, 2016 WL 5844097, at *2 (W.D. Ky. Oct. 4,
2016).
Summary judgment is required when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving

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party bears the burden of specifying the basis for its motion and showing the lack of a genuine
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving
party satisfies this burden, the nonmoving party must produce specific facts showing a material
issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “Factual
differences are not considered material unless the differences are such that a reasonable jury could
find for the party contesting the summary judgment motion.” Bell v. City of E. Cleveland, 125
F.3d 855 (6th Cir. 1997) (citing Liberty Lobby, 477 U.S. at 252).
A district court considering a motion for summary judgment may not weigh evidence or
make credibility determinations. See Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th
Cir. 2008); see also Adams v. Metiva, 31 F.3d 375, 384 (6th Cir. 1994). The Court must view the
evidence and draw all reasonable inferences in a light most favorable to the nonmoving party. See
Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000). But the nonmoving party must do
more than show some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party must present
specific facts showing that a genuine factual issue exists by “citing to particular parts of materials
in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine
dispute[.]” Fed. R. Civ. P. 56(c)(1); see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 131–
32 (6th Cir. 2014). “The mere existence of a scintilla of evidence in support of the [nonmoving
party’s] position will be insufficient; there must be evidence on which the jury could reasonably
find for the [nonmoving party].” Liberty Lobby, 477 U.S. at 252.
Rule 56(c)(1) requires that a “party asserting that a fact . . . is genuinely disputed must
support the assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations

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(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.” Fed. R. Civ. P. 56(c)(1)(A).
III.

DISCUSSION

Because Plaintiffs have moved to amend, the Court first considers this motion. See
Gallaher & Assocs., Inc. v. Emerald TC, LLC, No. 3:08-CV-459, 2010 WL 670078 (E.D. Tenn.
Feb. 19, 2010), at *1, Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996, 1001 (6th Cir.
2005). See also AutoZone, Inc. v. Glidden Co., 737 F. Supp. 2d 936, 943 (W.D. Tenn. 2010)
(observing that the court must consider a motion to amend before a dispositive motion, and the
court should consider whether amendment is futile – if so, the pertinent cause of action cannot
survive a motion to dismiss).
Plaintiffs ask to the Court to allow them to file a Third Amended Complaint “in order to
conform with the pleadings and the facts developed in discovery.” [DE 102 at 1885]. Metro
Government argues that Plaintiffs’ Monell claim is futile and thus could not survive a motion to
dismiss for the same reasons it analyzes in its motion for summary judgment. [DE 107 at 251819]. Plaintiffs argue that they are seeking amendment before the deadline, December 1, 2021,
their proposed amended complaint is not futile, relates back, and “merely explains and amplifies
the Monell claim.” [DE 102 at 1885-87].
As the Court explained in its previous order, a municipal government may be liable under
42 U.S.C. § 1983 only if the plaintiff can demonstrate that his or her civil rights were violated “as
a direct result of a municipality’s policy or custom.” Blackmore v. Kalamazoo Cnty., 390 F.3d
890, 900 (6th Cir. 2004) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
694 (1978)).

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A plaintiff generally has four ways to establish a municipal entity’s unlawful policy or
custom: “[t]he 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.” Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 2009) (quoting Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).
Even after showing an unlawful policy or custom, a “plaintiff must also demonstrate a
direct causal link between the policy and the alleged constitutional violation in order to show that
the municipality’s deliberate conduct can be deemed the ‘moving force’ behind the violation.” Id.
(cleaned up).
Plaintiffs Second Amended Complaint alleged:
Louisville Metro has a custom, practice, or policy of disabling or not activating
their wearable video cameras before executing searches and using force, for the
purpose of motivating, enabling, and concealing violations of clearly established
constitutional rights, including but not limited to the use of excessive force.
[DE 45 at 657 (emphasis added)]. Plaintiffs’ proposed Third Amended Complaint alleges:
Metro encouraged, implicitly authorized, approved, and knowingly acquiesced to
the following customs, practices, or policies, which were the moving force,
substantial factor, and proximate cause of the Plaintiffs’ injuries:
a. Metro has, and had at the time of the raid, a custom, practice, or policy of
failing to equip its police officers with body cameras or WVS, resulting in
violations of clearly established constitutional rights, including but not
limited to the use, motivation, enablement, and concealment of excessive
force.
b. Metro has, and had at the time of the raid, a custom, practice, or policy
of its officers failing to wear body cameras or WVS, resulting in violations
of clearly established constitutional rights, including but not limited to the
use, motivation, enablement, and concealment of excessive force.
c. Metro has, and had at the time of the raid, a custom, practice, or policy of
its officers failing to record body camera or WVS footage, resulting in
violations of clearly established constitutional rights, including but not
limited to the use, motivation, enablement, and concealment of excessive
force.
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[DE 102-2 at 1916 (emphasis added)]. The difference between the Second Amended Complaint
and the proposed Third Amended Complaint is Plaintiffs’ effort to conform with the developed
discovery. [DE 102 at 1885]. Plaintiffs previously alleged that Metro Government had a custom
or practice of disabling or not activating body cameras they had provided. [DE 45 at 657].
Plaintiffs now allege that Metro Government had a custom or practice of failing to provide
cameras, wear cameras, and record footage. [DE 102-2 at 1916]. The problem with this claim, as
pled in either complaint, is that both parties agree on an essential fact: “the SWAT operators were
not equipped with body cameras.” [DE 98-1 at 1391; DE 102 at 1885]. While Plaintiffs reasonably
believed when they filed their Second Amended Complaint that the officers “were equipped with
body cameras”1 and either failed to wear or failed to turn these cameras on, Plaintiffs explain
“Metro has since provided discovery in this lawsuit, in the form of responses to written
interrogatories and production of documents, which substantiates the contrary.” [DE 102 at 1885].
The Court has already addressed this type of Monell claim on motion to dismiss. Failing
to provide cameras or record footage cannot alone be a constitutional violation. [DE 77 at 107475]; see Graham v. Rowe, No. CV 19-6757 (RMB-KMW), 2019 WL 3059801, at *4 (D.N.J. July
10, 2019) (“There is no constitutional right to be free from an arrest that is not recorded by a
camera.”); and Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (“There can be no liability
under Monell without an underlying constitutional violation.”); see also Baldwin v. Colley, No.
15-CV-02762-KAW, 2015 WL 5836923, at *4 (N.D. Cal. Oct. 7, 2015) (on motion to dismiss,
“Plaintiffs have not cited any authority that squarely supports their position . . . . that the City’s
non-use of body cameras provides a basis for Monell liability.”); Wright v. Covarrubias, No.

As explained by Plaintiffs, this belief was “based on the prosecutor’s statement that the SWAT operators’
body cameras malfunctioned.” [DE 102 at 1885].
1

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219CV4227JLSGJS, 2020 WL 2133002, at *7 (C.D. Cal. Mar. 23, 2020), report and
recommendation adopted, No. 219CV4227JLSGJS, 2020 WL 2128645 (C.D. Cal. May 4, 2020),
(dismissing Monell claim where “Plaintiff insist[ed] that the County’s failure to require body
camera equipment violate[d] Plaintiff and other victim’s constitutional rights”); Mitchell v. Las
Vegas Metro. Police Dep’t, No. 218CV00646RFBEJY, 2021 WL 808735, at *2 (D. Nev. Mar. 3,
2021), report and recommendation adopted, No. 218CV00646RFBEJY, 2021 WL 1894242 (D.
Nev. May 11, 2021) (dismissing Monell claim where plaintiff “alleges [police department] should
be held liable for the Officers’ failures to ‘preserve adequate body camera footage.’”). Thus,
Plaintiffs proposed third complaint is futile, and the court DENIES Plaintiffs Motion for Leave to
File their Third Amended Complaint [DE 102].
Whether the Court granted Plaintiffs’ motion, Metro Government’s Motion for Summary
Judgment would succeed for the same reason that Plaintiffs’ proposed Third Amended Complaint
is futile. Plaintiffs agree that officers were not equipped with body cameras, so their Monell claim
can only rest on the custom or practice of failing to provide cameras and record footage. Plaintiff
argues that the motion for summary judgment should be denied because it ignores the portion of
the claim relating to failing to wear body cameras. However, again, the officers did not have body
cameras to choose to wear, there is no constitutional right to a recorded arrest (as addressed above),
and Plaintiffs’ Monell claim cannot survive without an underlying constitutional violation.2 Thus,
Metro Government’s Motion for Summary Judgment [DE 98] is GRANTED. The remaining
claim against Metro Government is DISMISSED. Plaintiffs’ Motion to Compel Discovery related

2

This conclusion is based solely on the structure of the law. In reaching this conclusion, the Court does
not pass judgment on the facts of this case, which the Court finds concerning. The conclusion is not
intended to suggest that what happened to Plaintiffs is appropriate, but only that the facts cannot support
this specific legal claim.

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to the Monell claim [DE 97] and Metro Government’s Motion to Stay Discovery related to the
Monell claim [DE 99] are DENIED as MOOT.
IV.

CONCLUSION

For all these reasons, and the Court being otherwise sufficiently advised, IT IS
ORDERED as follows:
(1)

Plaintiffs’ Motion to Compel Discovery [DE 97] is DENIED AS MOOT;

(2)

Metro Government’s Partial Motion for Summary Judgment [DE 98] is
GRANTED;

(3)

Metro Government’s Motion to Stay Discovery [DE 99] is DENIED AS MOOT;
and

(4)

Plaintiffs’ Motion for Leave to file Verified Third Amended Complaint [DE 102]
is DENIED.

August 19, 2022

Cc:

Counsel of record

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