Firman et al v. Conrad et al

Filing 14

MEMORANDUM OPINION AND ORDER Signed by Judge David J. Hale on 11/20/2020 - Defendants' motion to dismiss (D.N. 10 ) is GRANTED as to Firman and Parker's claims against Officer Hellard and § 1983 failure-to-train claims against Conrad and Hibbs in their official capacities. Those claims are DISMISSED. The motion is DENIED as to Firman and Parker's Fourteenth Amendment claims and claims against Conrad and Hibbs in their individual capacities. (KD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
DEMETRIA FIRMAN and ANTHONY
PARKER, SR.,

Plaintiffs,

v.

Civil Action No. 3:19-cv-564-DJH

STEVE CONRAD et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiffs Demetria Firman and Anthony Parker, Sr., were pulled over by four Louisville
Metro Police Department officers from the Ninth Mobile Division: Defendants Kevin Crawford,
Gabriel Hellard, Josh Doerr, and William Keeling, Jr. (D.N. 1, PageID # 4) The officers frisked
Firman and Parker and extensively searched Firman’s car and purse. (Id., PageID # 15–18)
Firman and Parker allege that the officers had no reasonable suspicion to pull them over and frisk
them and lacked probable cause to search the purse or car. (Id., PageID # 3–4) Firman and Parker
further allege that the LMPD officers took these actions pursuant to an unlawful initiative
implemented by Defendants Steve Conrad, LMPD Chief, and William Hibbs, Major of LMPD’s
Ninth Mobile Division. (Id., PageID # 5, 10) Defendants Conrad, Hibbs, and Hellard move to
dismiss the claims against them; defendant officers additionally move to dismiss Firman and
Parker’s Fourteenth Amendment claims. (D.N. 10-1, PageID # 49) For the reasons explained
below, the Court will grant Defendants’ motion in part and deny it in part.
I.
The Court “take[s] the facts only from the complaint, accepting them as true as [it] must
do in reviewing a 12(b)(6) motion.” Siefert v. Hamilton Cnty., 951 F.3d 753, 757 (6th Cir. 2020)
(citing Fed R. Civ P. 12(b)(6)). On August 12, 2018, Firman attended church with her fiancé,

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Parker, and his minor child. (D.N. 1, PageID # 3) While driving them all home in Firman’s car,
Parker made a proper left turn onto Broadway. (Id.) LMPD officers immediately initiated a traffic
stop. (Id., PageID # 13) Four officers (Crawford, Hellard, Doerr, and Keeling) surrounded
Firman’s car. (Id, PageID # 4, 14) Despite Parker having properly activated his left turn signal
(id.), Crawford “indicated to [Parker] that he was pulled over for failure to use a turn signal.” (Id.,
PageID # 14) Parker “demonstrated that the signal was working while apologizing for its apparent
malfunction,” complied with the officers’ requests, and informed Crawford that there were no
drugs or weapons in the car. (Id., PageID # 14–15)
Notwithstanding Parker’s cooperation and cordial responses to Crawford’s questions (id.,
PageID # 15), Crawford “remove[d] [Parker] from his vehicle without any explanation, probable
cause, or reasonable suspicion that he was engaged in or about to be engaged in any criminal
activity or that he posed a threat to the officers.” (Id.) Crawford went through Parker’s pockets
and frisked him, although he “had no reasonable suspicion of a weapon being on [Parker] when he
frisked him.” (Id., PageID # 16) Meanwhile, Doerr demanded that Firman exit the vehicle and
proceeded to frisk her “without her consent and without any reasonable suspicion that she [was]
in possession of a firearm.” (Id., PageID # 15)
The officers then extensively searched Firman’s car and purse. (Id., PageID # 16) This
search encompassed the entire car and trunk, including items within the vehicle (a wallet, a box of
chicken, a guitar bag). (Id., PageID # 16–17) Firman did not consent to the search of her car,
trunk, or purse. (Id., PageID # 17) The officers detained the family during the search, and Parker
and Firman “were never advised that they were free to leave.” (Id.) The officers found no drugs,
weapons, or evidence of any crime. (Id., PageID # 18)

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Conrad and Hibbs, while not present at the stop, “explicitly and implicitly authorized,
approved, and/or knowingly acquiesced in the . . . unconstitutional conduct [by] the LMPD
Officers.” (Id., PageID # 10) Specifically, Conrad and Hibbs implemented a “People, Places and
Narcotics” initiative. (Id.) The initiative conflicted with official LMPD policy but “was the
practiced custom of the Ninth Mobile Division under directives from Defendants Conrad and
Hibbs,” and Conrad and Hibbs “were both responsible for [the initiative’s] policies, practices and
customs.” (Id.) The initiative included “explicit and implicit directives to Ninth Mobile officers”
to engage in actions including “perform[ing] frisks on every stop without regard for reasonable
suspicion . . . seek[ing] searches of vehicles on every stop without regard for reasonable suspicion
or probabl[e] cause . . . [and] search[ing] vehicles inside and out, as well as belongings inside the
vehicle.” (Id., PageID # 10–12) “All the LMPD Officers’ unlawful conduct [described above]
was pursuant to training, direction, and ratification of Hibbs and Conrad which each knew
amounted to a malicious and deliberate indifference to the rights of citizens, including Plaintiffs.”
(Id., PageID # 19)
Firman and Parker assert claims under 42 U.S.C. § 1983 as well as a state-law claim of
negligent training and supervision. (Id. at 22–25) Defendants have moved to dismiss the claims
against Conrad, Hibbs, and Hellard, as well as the Fourteenth Amendment claims (D.N. 10-1,
PageID # 49), arguing that (1) Conrad and Hibbs are entitled to sovereign immunity for state-law
claims raised against them in their official capacities; (2) Conrad and Hibbs are entitled to qualified
immunity for all claims raised against them in their individual capacities; (3) Firman and Parker
failed to plead facts supporting their claim of negligent training and supervision; (4) Firman and
Parker failed to plead facts supporting any claim against Hellard; and (5) Firman and Parker do
not state a Fourteenth Amendment claim upon which relief can be granted. (Id., PageID # 50–59)

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II.
To survive a motion to dismiss 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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is plausible on its face “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. Factual allegations are essential; “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice,” and the Court need not accept such
statements as true. Id. A complaint whose “well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct” does not satisfy the pleading requirements of
Federal Rule of Civil Procedure Rule 8 and will not withstand a motion to dismiss. Id. at 679; see
Fed. R. Civ. P. 8.
A.

Immunity
1.

Sovereign Immunity

Defendants correctly argue that as employees of Louisville Metro, Conrad and Hibbs are
entitled to sovereign immunity for state-law claims asserted against them in their official
capacities. (D.N. 10-1, PageID # 50); see Thieneman v. Smith, No. 3:17-CV-292-DJH, 2018 WL
1522357, at *4 (W.D. Ky. Mar. 28, 2018); Scherzinger v. Bolton, No. 3:11-CV-11-H, 2013 WL
3166163, at *13 (W.D. Ky. June 20, 2013). But this argument does not help Conrad and Hibbs
because Firman and Parker have not raised state-law claims against them in their official
capacities, but rather only in their individual capacities. (See D.N. 1, PageID # 23–24) Firman
and Parker’s responses to Defendants’ motion confirm what is apparent from their complaint—
they assert only federal claims against Conrad and Hibbs in their official capacities. (See D.N. 11,

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PageID # 62–65; D.N. 12, PageID # 76–79) Conrad and Hibbs have correctly declined to raise a
defense of sovereign immunity to these claims. See Scherzinger, 2013 WL 3166163 at *12 (“[T]he
Louisville/Jefferson County Metro Government does not enjoy [sovereign] immunity [from § 1983
claims] because it is not considered an entity of the state.”).
2.

Qualified Immunity

Defendants assert that Conrad and Hibbs are entitled to qualified immunity for Firman and
Parker’s state and federal claims against them in their individual capacities.1 (D.N. 10-1, PageID
# 51–55) “Qualified immunity, pleading requirements, and Rule 12(b)(6) have a complicated
relationship.” Siefert, 951 F.3d at 761. The Sixth Circuit has, at times, instructed courts to “refrain
from using qualified immunity at the motion-to-dismiss stage” because it is an affirmative defense,
and “Federal Rule of Civil Procedure 8(a) requires only that a plaintiff state a claim, not that a
plaintiff show that he can overcome an affirmative defense.” Id. Additionally, “the fact-intensive
nature of qualified immunity makes it often a bad fit for Rule 12(b)(6).” Id. (citing Guertin v.
State, 912 F.3d 907, 917 (6th Cir. 2019)).
But “[d]efendants may raise the qualified immunity defense in response to a 12(b)(6)
motion because it is ‘an immunity from suit rather than a mere defense to liability.’” Id. at 761–
62 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Thus, despite the general preference
to save qualified immunity for summary judgment, sometimes it’s best resolved in a motion to
dismiss.” Id. “This happens when the complaint establishes the defense.” Id. (citing Peatross v.

The complaint does not clearly identify whether Count 4, alleging that Conrad and Hibbs
negligently trained and supervised the LMPD Officers, raises a state-law claim, a § 1983 claim, or
both. (D.N. 1, PageID # 24–25) Defendants point out that Firman and Parker’s complaint “do[es]
not specifically raise a § 1983 failure to train claim,” but interpret the claim as having done so for
the purposes of Defendants’ motion to dismiss. (D.N. 10-1, PageID # 55–56) Firman and Parker’s
responses show that they intended to raise a § 1983 failure-to-train claim as well as a state-law
claim. (See D.N. 11, PageID # 70; D.N. 12, PageID # 83)
1

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City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016)). As explained below, that has not happened
here.
a.

§ 1983 Claims

“In the interest of protecting public officers in the course of performing their discretionary
duties from unduly onerous lawsuits under § 1983, the Supreme Court has recognized ‘qualified
immunity’ for such officers, ‘shielding them from civil damages liability as long as their actions
could reasonably have been thought consistent with the rights they are alleged to have violated.’”
Lyons v. City of Xenia, Ohio, 258 F. Supp. 2d 761, 775 (S.D. Ohio 2003) (quoting Anderson v.
Creighton, 483 U.S. 635, 638 (1987)). “Qualified immunity is a defense only to individual
capacity claims.” Meogrossi v. Aubrey, No. 3:09cv-301-JDM, 2011 WL 1235063, at *6 (W.D.
Ky. Mar. 31, 2011).
“Under federal qualified immunity, ‘government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Penman v. Correct Care Sols., No. 5:18-CV-58-TBR, 2018 WL 6242153, at *6
(W.D. Ky. Nov. 28, 2018) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The
[p]laintiff bears ‘the burden of showing that’ the [d]efendants are ‘not entitled to qualified
immunity.’” Hoskins v. Knox Cnty., Ky., No. 17-84-DLB-HAI, 2018 WL 1352163 at *19 (E.D.
Ky. Mar. 15, 2018) (quoting Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)); see also
Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). “At the pleading stage, this
burden is carried by alleging facts plausibly making out a claim that the defendant's conduct
violated a constitutional right that was clearly established law at the time, such that a reasonable

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officer would have known that his conduct violated that right.” Hoskins, 2018 WL 1352163 at
*19 (quoting Johnson, 790 F. 3d at 653).
Firman and Parker allege that Conrad and Hibbs administered an initiative that directed the
LMPD officers to perform frisks without regard for reasonable suspicion and to search vehicles
without regard for probable cause. (See D.N. 1, PageID # 10–12) Such an initiative would violate
clearly established constitutional rights. See Arizona v. Johnson, 555 U.S. 323, 327 (2009);
California v. Acevedo, 500 U.S. 565, 569 (1991); Terry v. Ohio, 392 U.S. 1, 30–31 (1968); Carrol
v. United States, 267 U.S. 132, 159 (1925). A reasonable officer would have known of this longstanding Supreme Court precedent, particularly given that the initiative allegedly contradicted
official LMPD policy. (D.N. 1, PageID # 10) Firman and Parker have therefore met their burden
of showing that Conrad and Hibbs are not entitled to a defense of qualified immunity against the
§ 1983 claims at this stage. See Hoskins, 2018 WL 1352163, at *19.
b.

State-Law Claims

Under state law, “an official sued in his or her individual capacity ‘enjoy[s] only qualified
official immunity, which affords protection from damages liability for good faith judgment calls
made in a legally uncertain environment.’” Jefferson Cnty. Fiscal Ct. v. Peerce, 132 S.W.3d 824,
833 (Ky. 2004) (quoting Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)). This qualified
immunity “protects officers from liability for discretionary acts, taken in good faith, within their
scope of authority.” Williams v. Sandel, 433 F. App’x 353, 363 (6th Cir. 2011)). “Thus, if the
discretionary act is taken in bad faith, qualified immunity does not apply. Bad faith is ‘[t]he
opposite of [‘]good faith,[’] and it is not prompted by an honest mistake as to one’s rights or duties,
but by some interested or sinister motive.’” Penman v. Correct Care Sols., No. 5:18-CV-58-TBR,
2018 WL 6220921, at *9 (W.D. Ky. Nov. 28, 2018) (quoting Rowan Cnty. v. Sloas, 201 S.W.3d

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469, 483 (Ky. 2006) (citations omitted) (emphasis omitted)). “‘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.” Id.
As discussed above, Firman and Parker allege that Conrad and Hibbs directed the LMPD
officers to take actions—including performing frisks without regard for reasonable suspicion and
searching vehicles without regard for probable cause—that violated clearly established
constitutional rights. See supra at section II part (A)(2)(A). Again, a reasonable person in Conrad
or Hibbs’s position would have known that such actions were unconstitutional. Id. This violation
of constitutional rights which a person “in [Conrad or Hibbs’] position presumptively would have
known was afforded to [Firman and Parker]” amounts to bad faith. Penman, 2018 WL 6220921,
at *9. Thus, Firman and Parker’s complaint has not established a qualified-immunity defense for
Conrad or Hibbs, and it would therefore be inappropriate at this stage to dismiss Firman and
Parker’s state-law claims against Conrad and Hibbs on this ground. See Seifert, 951 F.3d at 762.
B.

Failure to State a Claim
1.

§ 1983 Claim Against Conrad and Hibbs

Defendants argue that Firman and Parker have failed to plead facts that support a § 1983
failure-to-train claim. (D.N. 10-1, PageID # 8–10) The legal elements of a § 1983 failure-to-train
claim depend on whether the claim is brought against a defendant in his or her individual or official
capacity. Essex v. Cnty. of Livingston, 518 F. App’x 351, 355 (6th Cir. 2013). The complaint here
does not specify into which category it falls (see D.N. 1, PageID # 24–25), but in their briefing
both parties invoke the standard for an official-capacity claim. (See D.N. 10-1, PageID # 56; D.N.
12, PageID # 84)

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An official-capacity failure-to-train claim is “a broad[] claim concerning the custom or
policy of a municipality” and “implicate[s] the conduct of a defendant supervisor insofar as he
acted with deliberate indifference in his official capacity as a policymaker.” Essex, 518 F. App’x
at 355. “Such claims do not require direct participation in or encouragement of the specific acts;
rather, these claims may be premised on a failure to act.” Id. “A plaintiff must establish that the
municipality, through its policymakers, failed to train or supervise employees despite 1) having
actual or constructive knowledge of a pattern of similar constitutional violations by untrained
employees . . . or 2) the fact that the constitutional violation alleged was a patently obvious and
‘highly predictable consequence’ of inadequate training.”

Id. at 355–56 (internal citations

omitted). The second category applies to a “narrow range of circumstances” where “a violation of
federal rights may be a highly predictable consequence of a failure to equip law enforcement
officers with specific tools to handle recurring situations.” Board of the Cnty. Comm’rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 409 (1997).
Firman and Parker’s complaint does not contain sufficient facts to support an officialcapacity failure-to-train claim. They have not alleged any facts indicating that the municipality,
i.e. Louisville Metro, had actual or constructive knowledge of a pattern of constitutional violations
by untrained LMPD officers.2 While Firman and Parker have alleged that Conrad and Hibbs
implemented the People, Places, and Narcotics initiative and therefore would have been aware that
the resulting “traffic stops routinely violated the constitutional rights of citizens” (D.N. 1, PageID
# 10, 12), they have not shown that this alleged pattern of constitutional violations was by
Parker’s response states that “Plaintiffs are prepared to prove prior instances of unconstitutional
conduct and ignoring a history of abuse of which [Defendants] were clearly on notice of defective
training [sic] and that the training would cause injury by using People, Places and Narcotics.”
(D.N. 12, PageID # 84) But Firman and Parker have not included facts supporting this assertion—
as it applies to the municipality—in their complaint.
2

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“untrained employees.” Essex, 518 F. App’x at 355. Rather, Firman and Parker acknowledge that
the LMPD Officers were “bound by their Standard Operating Procedures” (D.N. 1, PageID # 7),
which conflicted with the initiative’s unconstitutional directives. (See id., PageID # 22 (“The frisk,
searches, and seizures were in violation of LMPD SOPs.”)) They do not allege that the LMPD
officers were unaware of or untrained in the SOPs. Firman and Parker have therefore failed to
demonstrate that the LMPD officers were “untrained employees” or had received “inadequate
training,” see Essex, 518 F. App’x at 355–56, and their official-capacity failure-to-train claim
fails.3
2.

Claims Against Officer Hellard

Defendants argue that “there are no factual allegations which support the legal claims made
against Officer Hellard.” (D.N. 10-1, PageID # 58) The Sixth Circuit “has consistently held that
damage claims against government officials arising from alleged violations of constitutional rights
must allege, with particularity, facts that demonstrate what each defendant did to violate the
asserted constitutional right.” Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 564 (6th Cir.
2011) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)). This means that Ҥ 1983
plaintiffs may not ‘lump[] all defendants together in each claim and provid[e] no factual basis to
distinguish their conduct.” Lang v. City of Kalamazoo, 744 F. App’x 282, 292 (6th Cir. 2018)
(quoting Marcilis v. Twp. of Redford, 693 F.3d 589, 596 (6th Cir. 2012). The Court therefore
“cannot ascribe the acts of all [i]ndividual [d]efendants to each individual defendant,” but rather

3

To the extent that plaintiffs also assert individual-capacity failure-to-train claims, those claims
are not at issue here, but would seem a better fit for Firman and Parker’s allegations. See Essex,
518 F. App’x at 355 (quoting Phillips v. Roane Cnty. Tenn., 534 F.3d 531, 543 (6th Cir. 2008))
(quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)) (explaining that for an individualcapacity failure-to-train claim to succeed, “[a] plaintiff must demonstrate that the defendant
supervisor ‘at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.’”).
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“must analyze separately whether [Firman and Parker] ha[ve] stated a plausible constitutional
violation by each individual defendant.” Heyne, 655 F.3d at 564.
The complaint identifies Hellard as one of four LMPD officers who participated in the stop
(see D.N. 1, PageID # 4, 5), and states that the officers, collectively, unlawfully stopped the car,
searched it, and detained the family. (Id., PageID # 14, 16, 18) But the complaint references
Hellard specifically just four times (see id., PageID # 2, 4, 5–6), stating only that he was “present
and participated in the stop.”4 (Id., PageID # 4) Firman and Parker have thus failed to meet the
Sixth Circuit standard, and the complaint against Hellard must be dismissed. See Heyne, 655 F.3d
at 564; see also Lanman, 529 F.3d at 687 (“While it is alleged that [defendant] was present and
perhaps involved in [the action], plaintiff has failed to allege, with any particularity, the
unconstitutionality of [defendant’s] individual actions.”); Marcilis, 693 F.3d 589, 595–97 (holding
district court did not err in dismissing § 1983 claims against two defendants when complaint made
only categorical references to them).
C.

Fourteenth Amendment Claims
Firman and Parker have brought claims against the officers for the stop, search, seizure,

and detention under both the Fourth and Fourteenth Amendments. (D.N. 1, PageID # 22–23)
Defendants argue that “unlawful search and seizure challenges are properly analyzed under the
Fourth Amendment” and therefore Firman and Parker’s claims “brought under the Fourteenth
Amendment . . . must be dismissed.” (D.N. 10-1, PageID # 58–59) But the rights guaranteed by

Parker’s response more precisely identifies some actions that Hellard took during the stop (e.g.
accepting Parker’s identification card and assisting in ushering Parker’s son to the side of the road).
(D.N. 12, PageID # 84–85) But a court evaluating a motion to dismiss “must focus only on the
allegations in the pleadings.” Bates v. Green Farms Condominium Ass’n, 958 F.3d 470, 484 (6th
Cir. 2020). “Plaintiffs cannot . . . amend their complaint in an opposition brief or ask the court to
consider new allegations . . . not contained in the complaint.” Id.
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the Fourth Amendment have “been declared enforceable against the States through the Due
Process Clause of the Fourteenth [Amendment].” Mapp v. Ohio, 367 U.S. 643, 655 (1961).
Firman and Parker have brought claims against state officers. (See D.N. 1, PageID # 1–2)
Asserting these claims under both the Fourth and Fourteenth Amendment is appropriate. See
Vincent R. Fontana, MUN. LIABILITY L & PRAC. § 6.01 (4th ed. Supp. 2020-1 Supp., Wolters
Kluwer 2020) (“Section 1983 incorporates the Fourteenth Amendment and makes violations of its
provisions actionable, and the Fourteenth Amendment, in turn, incorporates most of the Bill of
Rights.”). Defendants’ motion to dismiss on this ground therefore fails.5
III.
For the reasons discussed above, and the Court being otherwise sufficiently advised, it is
hereby
ORDERED that Defendants’ motion to dismiss (D.N. 10) is GRANTED as to Firman and
Parker’s claims against Officer Hellard and § 1983 failure-to-train claims against Conrad and
Hibbs in their official capacities. Those claims are DISMISSED. The motion is DENIED as to
Firman and Parker’s Fourteenth Amendment claims and claims against Conrad and Hibbs in their
individual capacities.
November 20, 2020

Firman and Parker’s complaint only explicitly mentions the Fourteenth Amendment in relation
to their Fourth Amendment search and seizure claims (see D.N. 1, PageID # 22–23), and this is
the only Fourteenth Amendment claim discussed in Defendants’ motion to dismiss. (See D.N. 101, PageID # 58–59) In their responses, Firman and Parker argue that they have adequately pleaded
an equal protection claim under the Fourteenth Amendment. (See D.N. 11, PageID # 70–71; D.N.
12, PageID # 85–86) The Court need not address this issue now because neither the Defendant’s
motion to dismiss nor reply raised it.
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