Harrison v. Woolridge et al

Filing 81

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Greg N. Stivers on 7/6/2020. For the reasons set forth, Defendants' Motions to Dismiss (DNs 55 , 61 , 62 , 63 , 64 , 65 ) are DENIED. Plaintiff's Motion to File a Second Amended Complaint (DN 74 ) is GRANTED. cc: Counsel; Defendants Christian, Cohen, Fettig (CDF)

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 1 of 14 PageID #: 556

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:18-CV-00388-GNS-LLK
SALISTA LUSTER HARRISON

PLAINTIFF

v.
RICK WOOLRIDGE, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File a Second Amended
Complaint (DN 74) and Defendants’ Motions to Dismiss (DNs 55, 61, 62, 63, 64, 65). The motions
are ripe for adjudication. For the reasons that follow, Plaintiff’s motion is GRANTED, and
Defendants’ motions are DENIED.
I.

BACKGROUND

On April 27, 2008, Plaintiff Salista Luster Harrison (“Harrison”) was assaulted in her
home. (First Am. Compl. ¶ 38, DN 57). Concerned about Harrison’s failure to show up for work,
Harrison’s co-workers called the Louisville Metro Police Department (“LMPD”) on April 29,
2008. (First Am. Compl. ¶ 39). Two LMPD officers, one of them being Defendant Rick
Woolridge (“Woolridge”), responded to the call. (First Am. Compl. ¶¶ 14, 39). After entering
Harrison’s apartment and speaking with her and her alleged boyfriend that was also inside,
Woolridge told the coworkers that “everything is fine” and that Harrison was upset because of a
fight with her boyfriend. (First Am. Compl. ¶¶ 40-45). Unsatisfied by Woolridge’s response,
Harrison’s coworkers gained access to Harrison’s apartment shortly after Woolridge left and found
1

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 2 of 14 PageID #: 557

Harrison lying motionless on her couch in bloodstained clothing. (First Am. Compl. ¶¶ 53-54).
Medical personnel determined that Harrison had been sexually assaulted and suffered serious
injuries, including a traumatic brain injury. (First Am. Compl. ¶¶ 55-56). The next day, LMPD
initiated a criminal investigation into Harrison’s assault. (First Am. Compl. ¶ 58).
Unsatisfied with LMPD’s efforts to resolve her case, Harrison discussed her assault with
then LMPD Chief of Police Robert White (“White”). (First Am. Compl. ¶¶ 17, 82). Toward the
end of 2008, Harrison told LMPD, including White, that she wished to file a citizen complaint
against Woolridge for the willful abdication of his duties on April 29. (First Am. Compl. ¶ 83).
LMPD informed Harrison that her complaint could not be made over the telephone and she would
therefore need to travel to Louisville, despite having moved back to her hometown of Little Rock,
Arkansas, for medical treatment. (First Am. Compl. ¶ 83). Harrison was also told that she had
through the end of February 2009 to make her complaint against Woolridge. (First Am. Compl. ¶
83). Upon traveling to Louisville that month, however, Harrison was told that Woolridge was
allowed an early retirement in January and, therefore, filing a citizen complaint would be pointless.
(First Am. Compl. ¶ 83).
In 2009 and 2010, Harrison and her mother, Cheryl Ellis (“Ellis”), made open record
requests for information and evidence related to the attack and investigation. (First Am. Compl. ¶
85). Harrison alleges that they received incomplete responses and that, specifically, Defendants
LMPD employees Dee Allen (“Allen”) and Carey Klain (“Klain”) attempted to fraudulently
conceal responsive investigation materials.

(First Am. Compl. ¶ 85).

After continuing to

investigate her case, in April 2012, Ellis contacted the newly appointed LMPD Chief of Police
Steve Conrad (“Conrad”) in an attempt to get Conrad to reopen Harrison’s case, which had been

2

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 3 of 14 PageID #: 558

closed on April 13, 2009. (First Am. Compl. ¶ 80). Conrad did not reopen Harrison’s case. (First
Am. Compl. ¶ 86).
In 2015, a statewide audit revealed that Kentucky had a backlog of over 3000 untested rape
kits. (First Am. Compl. ¶ 87). Harrison alleges LMPD finally reopened her case only in response
to the audit. (First Am. Compl. ¶ 87). When Ellis learned of the rape kit backlog through the
audit, she communicated with LMPD about identifying the victims associated with the backlog,
eventually determining that the untested rape kits included Harrison’s. (First Am. Compl. ¶¶ 8890). In January 2016, Defendant LMPD Officer David Ray (“Ray”) was instructed to authorize
testing of Harrison’s rape kit, which Ray refused to do. (First Am. Compl. ¶¶ 22, 91).
Harrison brought this action against the aforementioned Defendants, and others, alleging
essentially a conspiracy on the part of the defendants to deprive her of her purported right to seek
vindication against her attacker and Woolridge. (First Am. Compl. ¶¶ 98-99). Specifically,
Harrison asserts Section 1983 claims against the aforementioned Defendants for: (1) violations of
her constitutional rights of access to the courts and equal protection; (2) a 42 U.S.C. § 1985(3)
claim for gender-based civil conspiracy; and (3) Monell claims1 against White and Conrad. (First
Am. Compl. ¶¶ 104-138). Woolridge, Conrad, Allen, Klain, Ray, and White have all filed motions
to dismiss. (Woolridge Mot. Partial Dismiss, DN 55; Conrad Mot. Dismiss, DN 61; Allen Mot.
Dismiss, DN 62; Klain Mot. Dismiss, DN 63, Ray Mot. Dismiss, DN 64; White Mot. Dismiss, DN
65). Harrison has filed a motion for leave to file a second amended complaint. (Pl.’s Mot. Leave
File Second Am. Compl., DN 74).

1

See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978) (“[A] local
government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government’s policy of custom . . . inflicts the jury that the
government as an entity is responsible under § 1983.”).
3

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 4 of 14 PageID #: 559

II.

JURISDICTION

Subject matter jurisdiction is afforded over this matter through federal question
jurisdiction. See 28 U.S.C. §§ 1331.
III.

STANDARD OF REVIEW

A complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief,” and is subject to dismissal if it “fail[s] to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 8(a)(2); Fed. R. Civ. P. 12(b)(6). When considering a motion to
dismiss, courts must presume all factual allegations in the complaint to be true and make all
reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v.
Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted). “But the
district court need not accept a bare assertion of legal conclusions.” Tackett v. M & G Polymers,
USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation 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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (citation omitted).
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.” Id. (internal quotation marks omitted) (citation omitted). A claim is facially plausible
“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. “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

4

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 5 of 14 PageID #: 560

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).
IV.
A.

DISCUSSION

Woolridge’s Motion to Dismiss

Harrison filed her initial Complaint on June 19, 2018 and named Woolridge as a defendant.
(Compl. 1, DN 1). Before Woolridge was served, however, some of the other Defendants in this
case moved to dismiss Harrison’s race-based Section 1985(3) and equal protection claims, which
this Court granted on June 12, 2019. (Mem. Op. & Order 11-13, DN 26). Woolridge was then
properly served on December 20, 2019, and filed the instant motion to partially dismiss on January
8, 2020. (Summons, DN 51; Woolridge Mot. Partial Dismiss 1-2). In his motion, Woolridge
simply requests that the Court dismiss the same claims against him as it did with respect to the
other Defendants.
Woolridge’s motion, however, has since become moot because of Harrison’s filing of a
First Amended Complaint, in which she does not assert any race-based Section 1985(3) or equal
protection claims, instead making sex-based claims.

(First Am. Compl. ¶¶ 117-32).

A

“[p]laintiff’s amended complaint super[s]edes the original complaint, thus making the motion to
dismiss the original complaint moot.” 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)). Harrison does not even assert race-based Section 1985(3) or equal protection claims in
her First Amended Complaint, so Woolridge’s motion to dismiss will be denied as moot because
the claims he wishes to dismiss no longer exist.

5

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 6 of 14 PageID #: 561

B.

Remaining Defendants’ Motions to Dismiss and Harrison’s Motion for Leave
to File Second Amended Complaint

Although Conrad, Allen, Klain, Ray, and White (collectively “Defendants”) have filed
separate motions to dismiss, their motions essentially make the same arguments and differ only
with respect to the facts that Harrison has pleaded against each defendant individually. See
(Conrad Mem. Supp. Mot. Dismiss 1-9, DN 61-1; Allen Mem. Supp. Mot. Dismiss 1-8, DN 62-1;
Klain Mem. Supp. Mot. Dismiss 1-8, DN 63-1; Ray Mem. Supp. Mot. Dismiss 1-8, DN 64-1;
White Mem. Supp. Mot. Dismiss 1-9, DN 65-1). These same Defendants also previously filed
motions to dismiss Harrison’s initial Complaint and now attempt to resurrect similar arguments
that were rejected by this Court in ruling on those motions. Compare (Conrad Mem. Supp. Mot.
Dismiss 1-9; Allen Mem. Supp. Mot. Dismiss 1-8; Klain Mem. Supp. Mot. Dismiss 1-8; Ray Mem.
Supp. Mot. Dismiss 1-8; White Mem. Supp. Mot. Dismiss 1-9), with Defs.’ Mem. Support Mot.
Dismiss 1-12, DN 14-1; Def.’s Mem. Supp. Mot. Dismiss 1-8, DN 18-1); see (Mem. Op. & Order
1-14).
1.

Qualified Immunity

Defendants allege that they are entitled to qualified immunity on all of Harrison’s claims.
(Conrad Mem. Supp. Mot. Dismiss 8-9; Allen Mem. Supp. Mot. Dismiss 7; Klain Mem. Supp.
Mot. Dismiss 7-8; Ray Mem. Supp. Mot. Dismiss 7-8; White Mem. Supp. Mot. Dismiss 8-9). The
first problem with this argument is that Defendants ground their argument on Kentucky state law
qualified immunity principles when Harrison has asserted only federal claims against Defendants:
“Qualified immunity standards are different under Kentucky and federal laws. The Court must
apply Kentucky law to determine whether Defendants are entitled to immunity from state tort
liability and apply federal law when assessing immunity for federal law claims.” Funke v. Coogle,
No. 3:11-CV-310-H, 2013 WL 209602, at *2 (W.D. Ky. Jan. 17, 2013) (citing Lexington-Fayette
6

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 7 of 14 PageID #: 562

Urban Cty. Gov’t, No. 06-299-JBC, 2007 WL 101862, at *4 (E.D. Ky. Jan. 10. 2007); King v.
Taylor, 694 F.3d 650, 662-64 (6th Cir. 2012)). Couching their entire argument for dismissal of
Harrison’s federal law claims on state law qualified immunity grounds is wholly lacking in merit.
The second problem with Defendants’ qualified immunity argument is that the Court has
previously rejected it; Defendants rehash almost word for word the same arguments made in
previous motions to dismiss that were overruled. Compare (Conrad Mem. Supp. Mot. Dismiss 89; Allen Mem. Supp. Mot. Dismiss 7; Klain Mem. Supp. Mot. Dismiss 7-8; Ray Mem. Supp. Mot.
Dismiss 7-8; White Mem. Supp. Mot. Dismiss 8-9), with (Defs.’ Mem. Support Mot. Dismiss 1011; Def.’s Mem. Supp. Mot. Dismiss 7-8); see (Mem. Op. & Order 7-8). Because Defendants have
not raised new grounds for the application of qualified immunity, their previously rejected
arguments will be denied here as well.
2.

Sufficiency of Pleaded Facts

Defendants also attack the sufficiency of Harrison’s claims on the alleged facts as pleaded
against them in her Complaint. Defendants’ arguments change slightly as they relate to Harrison’s
specific claims.
a.

Denial of Constitutional Right of Access to the Courts

As it pertains to Harrison’s Section 1983 claim for a violation of her right of access to the
courts, Defendants try to minimalize their involvement with the events giving rise to this case.
Conrad argues that “[t]he only connection Chief Conrad is alleged to have in this matter in that
Plaintiff’s mom requested he reopen a four-year-old case.” (Conrad Mem. Supp. Mot. Dismiss 35). Allen and Klain both argue that the only connection that they are alleged to have in this matter
“is that Plaintiff’s mom requested information through open records three years [after Harrison’s
assault] and does not believe [that Allen and Klain] responded correctly.” (Allen Mem. Supp.

7

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 8 of 14 PageID #: 563

Mot. Dismiss 3-5; Klain Mem. Supp. Mot. Dismiss 3-5). Ray argues that “[t]he only connection
[he] is alleged to have in this matter is that eight years after th[e assault] incident he allegedly did
not authorize testing after he was instructed to do so.” (Ray Mem. Supp. Mot. Dismiss 3-5).
Finally, White argues that “[t]he only connection Chief White is alleged to have in this matter is
that Woolridge elected to take an early retirement.” (White Mem. Supp. Mot. Dismiss 3-5).
Similar arguments were made in previous motions to dismiss and were addressed and
rejected by this Court in its prior order. (Defs.’ Mem. Supp. Mot. Dismiss 3-6; Def.’s Mem. Supp.
Mot. Dismiss 3-4; Mem. Op. & Order 8-10). As this Court previously stated, Defendants’ attempts
to minimalize their involvement with the events giving rise to this case “oversimplifies Harrison’s
allegations:”
In this case, Harrison avers it was the LMPD’s obstruction and wholesale failure to
investigate that prevented her from having any idea whatsoever regarding the
identity of her attacker. If Defendants did indeed conspire in the manner alleged
by Harrison, one could draw a plausible inference that the conspiracy and refusal
to investigate created an obstruction that prevented Plaintiff from finding redress
for her injury in state court.
(Mem. Op. & Order 9-10). Like before, Harrison’s general allegation that LMPD as a whole
sought to obstruct her ability to redress her injuries, buttressed by her identification of specific acts
taken by Conrad, Allen, Klain, Ray, and White during her attempts to investigate her case, suffices
to establish “a claim [for denial of access to the courts] against White and the other named
Defendants” that survives Defendants’ motions to dismiss. (Mem. Op & Order 10).
b.

Sex-Based Equal Protection and Section 1985(3) Claims

In its prior memorandum opinion and order, the Court construed Counts II and III of
Harrison’s initial Complaint as having asserted three claims: (1) a general equal protection claim
not based on Harrison belonging to a protected class; (2) an equal protection claim based
specifically on Harrison’s race; and (3) a Section 1985(3) claim based specifically on Harrison’s
8

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 9 of 14 PageID #: 564

race. (Mem. Op. & Order 10-13). Although allowing her general equal protection claim to
survive, the Court dismissed Harrison’s race-based equal protection and Section 1985(3) claims
because “[b]eyond conclusory statements when outlining the counts asserted, Harrison has not
identified a single fact that allows for a plausible inference that the alleged misconduct was racially
motivated” and “while Harrison offers multiple allegations of racial animus, none of them alleges
any specific facts to support the conclusion.” (Mem. Op. & Order 12). In her First Amended
Complaint, Harrison again alleges a general equal protection claim, in addition to having now
alleged sex, instead of race, based equal protection and Section 1985(3) claims. (First Am. Compl.
¶¶ 117-132). As it pertains to Harrison’s general equal protection claim, Defendants, once again,
rehash arguments that have previously been rejected. Compare (Conrad Mem. Supp. Mot. Dismiss
5-6; Allen Mem. Supp. Mot. Dismiss 5-6; Klain Mem. Supp. Mot. Dismiss 5-6; Ray Mem. Supp.
Mot. Dismiss 5-6; White Mem. Supp. Mot. Dismiss 5-6), with (Defs.’ Mem. Support Mot. Dismiss
4-5; Def.’s Mem. Supp. Mot. Dismiss 6-7); see (Mem. Op. & Order 10-11). Defendants have
offered no reason to distinguish their present arguments from the Court’s earlier rulings on this
issue.
Regarding Plaintiff’s sex-based equal protection and Section 1985(3) claims, unlike her
race-based equal protection and Section 1985(3) claims in her initial Complaint, Harrison has
sufficiently alleged “that a discrimination of some substance has occurred which has not occurred
against other individuals who were similarly situated.” Hall v. Callahan, 727 F.3d 450, 457 (6th
Cir. 2013) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). As a sister
court has explained:

9

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 10 of 14 PageID #: 565

The Sixth Circuit has held that a plaintiff fails to plead an equal protection claim
for gender discrimination where the pleadings simply allege that the plaintiff is a
woman but fail to allege that the defendant acted with a discriminatory purpose or
that similarly situated males received more favorable treatment.
Morreim v. Univ. of Tenn., No. 12-2891-STA-DKV, 2013 WL 5673619, at *17 (W.D. Tenn. Oct.
17, 2013) (citing Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 682 (6th Cir. 2011); Brooks
v. Knapp, 221 F. App’x 402, 408-09 (6th Cir. 2007)).
Harrison here pleads that the type of rape kit she was administered is administered by
LMPD only to female, not male, rape victims. (First Am. Compl. ¶ 4). Harrison also pleads that
her rape kit was one of 3000 untested rape kits that a 2015 statewide audit revealed. (First Am.
Compl. ¶ 87). Although Harrison did not explicitly state that all 3000 of those untested rape kits
were female rape kits, when considering her other pleaded facts in conjunction with the
aforementioned, that is what she implies: Harrison alleges that the LMPD and its employees
systematically had a history of tampering with, concealing, compromising, and/or destroying a
female rape victims’ rape kits. (First Am. Compl. ¶¶ 67-68). At this point, Harrison has
sufficiently alleged that the LMPD and its employees treat male rape victims more favorably than
female rape victims like Harrison, carried out through the various roles that each Defendant played
at the LMPD, by prioritizing and employing better investigative methods to male rape victim cases.
(First Am. Compl. ¶¶ 4-5, 72-80, 82-83, 85-91).
The only remaining argument Defendants make is that Harrison has pleaded insufficient
facts to suggest the existence of a conspiracy to be able to proceed on her Section 1985(3)
conspiracy claim. (Conrad Mem. Supp. Mot. Dismiss 6-7; Allen Mem. Supp. Mot. Dismiss 6-7;
Klain Mem. Supp. Mot. Dismiss 6-7; Ray Mem. Supp. Mot. Dismiss 7; White Mem. Supp. Mot.
Dismiss 7). Defendants’ argument here is essentially a reiteration of their arguments previously
10

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 11 of 14 PageID #: 566

overruled that their involvement in the totality of the events giving rise to Harrison’s action was
minimal. As previously discussed, Harrison has sufficiently pleaded an officewide conspiracy on
the part of the LMPD to deny equal treatment to female rape victims and has identified the
individual role of each Defendant in that conspiracy.
For these reasons, Harrison’s gender-based equal protection and Section 1985(3) claims
will survive.
c.

Monell Claims

Unlike her initial Complaint, Harrison asserted Monell claims against White and Conrad
in her First Amended Complaint. (First Am. Compl. ¶¶ 133-138). In their motions to dismiss,
Conrad and White made two arguments for the dismissal of these claims. (Conrad Mem. Supp.
Mot. Dismiss 7-8; White Mem. Supp. Mot. Dismiss 7-8). Recognizing the shortcomings of her
claims, Harrison has since withdrawn her Monell claims as pleaded in her First Amended
Complaint and seeks leave to file a Second Amended Complaint that asserts the same Monell
claims but which purports to correct these shortcomings. (Pl.’s Resp. Defs.’ Mots. Dismiss 6, DN
73; Pl.’s Mot. Leave File Second Am. Compl. ¶¶ 11-13, DN 74; Second Am. Compl. ¶¶ 133-146,
DN 74-1). Conrad and White assert that Harrison’s proposed Second Amended Complaint does
not actually salvage her Monell claims. (Defs.’ Resp. Pl.’s Mot. Leave File Second Am. Compl.
2-3, DN 77).
The first infirmity Conrad and White point to is that they are sued in their individual
capacities while a Monell claim only affords municipality, not individual, liability. (Conrad Mem.
Supp. Mot. Dismiss 7-8; White Mem. Supp. Mot. Dismiss 7-8); see Phillips v. City of Cincinnati,
No. 1:18-cv-541, 2019 WL 2289277, at *5-6 (S.D. Ohio May 29, 2019) (“[T]he raison d’etre of
Monell is to impose liability on a municipality under certain circumstances—not individuals.”);

11

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 12 of 14 PageID #: 567

see also Amory v. Katz, No. 3:15-cv-01535 (VAB), 2016 WL 7377091, at *5 (D. Conn. Dec. 19,
2016) (“Monell does not apply to . . . individuals who are sued in their individual capacity . . . .”).
Harrison has indeed cured this defect by suing Conrad and White in their official capacities with
respect to her Monell claims.2 (Pl.’s Resp. Defs.’ Mots. Dismiss 6; Pl.’s Mot. Leave File Second
Am. Compl. ¶ 5; Pl.’s Resp. Defs.’ Obj. Pl.’s Mot. Leave File Second Am. Compl. 4 n.1, DN 79);
see Funke, 2013 WL 209602, at *3 (suit against Elizabethtown police officers in their official
capacities “is the same as suing” the City of Elizabethtown).
The second infirmity Conrad and White claim is the same minimalization argument they
have maintained throughout their motions to dismiss and that has been consistently rejected—that
Conrad and White had little to no involvement with the events giving rise to Harrison’s claims.
(Conrad Mot. Dismiss 7-8; White Mot. Dismiss 7-8; Defs.’ Reply Pl.’s Resp. Defs.’ Mots. Dismiss
3, DN 75; Defs.’ Obj. Pl.’s Second Am. Compl. 2-3, DN 77). Harrison has alleged that Conrad
and White, among other things: (1) disregarded, ignored, and/or covered up allegations of police
misconduct; (2) allowed violations of police policy, including those intended to protect female
rape victims and ensure a legitimate investigation of their criminal cases; and (3) allowed a
historical pattern of tampering, concealing, compromising and/or destroying female rape victims’
rape kits while they were in the possession and control of LMPD. (Second Am. Compl. ¶ 135).
“[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate
decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice
is so widespread as to have the force of law.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520

2

It is unclear whether Harrison is also attempting to maintain Monell claims against Conrad and
White individually, but that does not appear to be the case. In any event, Monell claims against
Conrad and White in their individual capacities would be improper. See Phillips, 2019 WL
2289277, at *5-6; Amory, 2016 WL 7377091, at *5.
12

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 13 of 14 PageID #: 568

U.S. 397, 404 (1997) (citations omitted). Harrison has sufficiently alleged, for the purpose of
allowing the filing of her Second Amended Complaint, that Conrad and White, both former police
chiefs of the LMPD, participated in or allowed a widespread LMPD practice of covering up
allegations of police misconduct and refusing to investigate or intentionally botching female rape
victim cases so as to establish Monell liability. See Burgess v. Fischer, 735 F.3d 462, 478 (6th
Cir. 2013) (“A plaintiff can make a showing of an illegal policy or custom by demonstrating . . .
the existence of a custom of tolerance or acquiescence of federal rights violations.” (citation
omitted)).
Other than the arguments just addressed, the defendants do not otherwise oppose
Harrison’s filing of a Second Amended Complaint. See (Defs.’ Resp. Pl.’s Mot. Leave File Second
Am. Compl. 1-3); Fed. R. Civ. P. 15(a)(2) (“The Court should freely give leave [to a party to
amend a pleading] when justice so requires.”); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(“In the absence of any apparent or declared reason . . . the leave sought should, as the rule require
by ‘freely given.’”).3 Harrison will therefore be granted leave to file her Second Amended
Complaint.4

3

Although the Court could have simply granted Harrison’s motion for leave to file a Second
Amended Complaint, thus mooting all of the defendants’ motions to dismiss, because the motions
to dismiss were fully briefed and the defendants’ arguments mostly applied in the same way to the
First and Second Amended Complaints, judicial economy dictated that the defendants’ motions to
dismiss should be addressed.
4
The only other substantive change to her pleading is Harrison’s clarification of the identity of
two of the defendants in this case, to which the defendants have not objected. (Pl.’s Mot. Leave
File Second Am. Compl. ¶¶ 1-5).
13

Case 3:18-cv-00388-GNS-LLK Document 81 Filed 07/07/20 Page 14 of 14 PageID #: 569

V.

CONCLUSION

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

Defendants’ Motions to Dismiss (DNs 55, 61, 62, 63, 64, 65) are DENIED.

2.

Plaintiff’s Motion to File a Second Amended Complaint (DN 74) is GRANTED.

July 6, 2020

cc:

counsel of record

14