Carr v. Louisville Jefferson County Metro Government et al

Filing 49

MEMORANDUM OPINION AND ORDER by Senior Judge Charles R. Simpson, III on 03/25/2024. Defendants' Motion for a Judgment on the Pleadings, DN 41 , is hereby GRANTED. All claims against defendants James Hellinger, Troy Pitcock, and Shawn Seabolt are hereby DISMISSED without prejudice. Plaintiff Carr's informal request for leave to amend is DENIED. cc: Counsel (HMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:20-CV-00818-CRS
JOHNETTA CARR

PLAINTIFF

v.
LOUISVILLE JEFFERSON COUNTY
METRO GOVERNMENT, et al

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Johnnetta Carr (“Carr”) has brought this action pursuant to 43 U.S.C. § 1983. She
alleges that Defendants violated her constitutional rights by fabricating evidence, coercing false
statements and withholding exculpatory evidence in connection with Carr’s state-law indictment
for the murder of Planes Michael Adolphe (“Adolphe”). This matter is now before the Court on a
Motion for a Judgment on the Pleadings (the “Motion”) filed by three Defendants: Sergeant James
Hellinger, Sergeant Troy Pitcock and Detective Shawn Seabolt (hereafter the “Defendants”).
Defendants contend that the Complaint fails to state a claim upon which relief can be granted
because it does not contain sufficient fact allegations. Carr opposes the Motion but also asks for
leave to amend should the Court disagree with her. For the reasons set forth below, the Court will
dismiss the claims against Defendants and deny Carr’s request to amend, both without prejudice.
BACKGROUND
Officers employed with the Louisville Metro Police Department and its predecessor the
Louisville Police Department (together the “LMPD”) investigated Adolphe’s murder, beginning
in 2005. In her Complaint, Carr alleges that defendant Tony Finch coerced jailhouse informants
and others to falsely accuse Carr, ignored exculpatory evidence, and decided to pin the crime on
Carr when he could not “break” the man who should have been indicted, Steven Louis (“Louis”).

Carr alleges that, ultimately, she “took an Alford plea because the false and fabricated evidence
against her seemed insurmountable and the Defendant[ ] [Officers] conspired to withhold their
egregious misconduct . . . .” Complaint, DN 01, at ¶ 168. Although she was sentenced to 20 years
for second degree manslaughter and other charges, Carr spent less than two years in prison before
being paroled on December 9, 2009. Parole Application, DN 20-2 at 2. Ten years later, on
December 9, 2019, then Kentucky Governor Matt Bevin pardoned Carr. Id. at 1.
A year later, on December 8, 2020, Carr filed this lawsuit. She has sued the Louisville
County Metro Government, the City of Louisville, 5 detectives and 2 police sergeants. Pursuant to
42 U.S.C. § 1983, Carr seeks compensatory and punitive damages for violations of her
constitutional rights based on theories of municipality liability and individual liability. Carr has
also pleaded state-law claims for malicious prosecution, negligent supervision, intentional
infliction of emotional distress and “respondeat superior.” As for Hellinger, Pitcock and Seabolt,
Carr has alleged § 1983 claims against them for (1) maliciously prosecuting her, (2) violating her
14th Amendment right to due process, (3) violating her 4th Amendment rights, (4) failing to
intervene, and (5) conspiring to deprive her of her constitutional rights. Carr has also sued
Hellinger, Pitcock and Seabolt under Kentucky law for malicious prosecution and intentional
infliction of emotional distress. Lastly, Carr has sued Pitcock and Hellinger based on theories of
supervisory liability, including her state law claim for negligent supervision.
ANALYSIS
Although Defendants have styled their Motion as a Rule 12(c) motion for a judgment on
the pleadings, they have asked to be “dismissed” on the ground that the Complaint fails to state a
claim upon which relief may be granted. As such, the Motion seeks relief under FED. R. CIV. P.
12(b)(6). The Civil Rules permit Defendants to proceed this way. FED. R. CIV. P. 12(h)(2).
However, the applicable standard is the Rule 12(b)(6) standard, not the Rule 12(c) standard.
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Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987). Review under Rule 12(b)(6)
requires the Court to “construe the complaint in the light most favorable to the plaintiff and accept
all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). Further, “[w]hile
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007) (cleaned up) (internal citations
omitted). A complaint is insufficient “if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 55 U.S. at 557).
Together, Iqbal and Twombly require a plaintiff to “plead facts sufficient to show that her
claim has substantive plausibility.” Johnson v. City of Shelby, 574 U.S. 10, 12 (2014). “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.” Iqbal, 556 U.S. at
663. Finally, with respect to § 1983 claims for damages, the plaintiff “must allege, with
particularity, facts that demonstrate what each defendant did to violate the asserted constitutional
right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v Northville Reg’l
Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002)).
Stated another way, “only officers with direct responsibility for the challenged action may
be subject to § 1983 liability.” Wilson v. Morgan, 477 F.3d 326, 337 (6th Cir. 2007). Thus,
“‘conclusory allegations of officers’ collective responsibility’” do not pass muster. Gordon v.
Louisville/Jefferson Cnty. Metro Gv’t, 486 Fed. Appx. 534, 539 (6th Cir. 2012) (quoting Hessel v.
O’Hearn, 977 F.2d 299, 305 (7th Cir. 1992)). Carr has pleaded in such a collective manner. In
each Count of the Complaint, Carr pleads the elements of the claim and attributes them to the

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“Defendant Officers.” And, while each Count incorporates all preceding paragraphs, none of those
paragraphs sets out conduct by either Hellinger, Pitcock or Seabolt that meets the elements of
Carr’s claims. Instead, the fact allegations of wrongdoing are predominately about Finch.1
Carr concedes this point, at least in part. Although she has yet to do so, Carr has agreed to
voluntarily dismiss defendant Seabolt. Response, DN 42, at n.1. Next, Carr’s Response does not
address her § 1983 claims for malicious prosecution (Count I), for due process violations under
the 14th Amendment (Count II), or for violations of the 4th/14th Amendments based on alleged
evidence fabrication (Count III). Similarly, Carr’s Response does not address her state-law claims.
Instead, Carr limits her Response to her § 1983 claims for supervisory liability (Count IV), failure
to Intervene (Count V) and conspiracy (Count VI) against Hellinger and Pitcock. Carr’s efforts to
rescue these three claims, however, are unavailing.
A. Supervisory Liability
Carr argues that she has stated a supervisory liability claim against Hellinger and Pitcock
because she has alleged that they “permitted Defendant Finch to lead on a homicide investigation
despite Defendant Finch’s own contemporaneous criminal misconduct.” Response, DN 42, at 6.
Carr also contends that she has pleaded Finch’s “history of abuse of power,” which supports her
claims. Id. (citation omitted). Carr argues that the “fact that the Adolphe homicide involved a
young teenager made it entirely foreseeable that Defendant Finch would abuse his power in this
homicide investigation, resulting in violations of Ms. Carr’s constitutional rights.” Id. (citation
omitted). In support, Carr relies on her allegations that “Defendant Finch had a track record of
‘official misconduct, abuse of power, and threatening, harassing, and intimidating behavior,’ yet
he was nonetheless permitted to work as the lead detective on a homicide case involving young

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Carr has pleaded fact allegations against defendant Jim Lawson. Complaint, DN 01, at ¶¶ 125-35. Nonetheless, the
majority of alleged bad acts are Finch’s.

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teenagers.” Id. (citation omitted). Carr contends that these allegations state a claim for supervisory
liability against Hellinger and Pitcock. The Court disagrees.
To succeed on a supervisory liability claim, Carr must show that each Defendant “at least
implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of
[Finch].” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); see also Gregory v. City of
Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (“Plaintiff must show that the supervisors somehow
encouraged or condoned the actions of their inferiors.”); Doe v. City of Roseville, 296 F.3d 431,
440 (6th Cir. 2002) (encouragement satisfies this requirement). This showing “requires some
‘active unconstitutional behavior’ on the part of the supervisor.” Peatross v. City of Memphis, 818
F.3d 233, 241 (6th Cir. 2016) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
Supervisory liability does not attach for “a mere failure to act.” Id. at 241. Similarly, a “supervisor
cannot be held liable simply because he or she was charged with overseeing a subordinate who
violated the constitutional rights of another.” Id.
Here, Carr argues that Hellinger and Pitcock should be held liable because they allowed
Finch to conduct the Adolphe investigation despite Finch’s criminal behavior. Response, DN 42,
at 6. However, there are no allegations that either Pitcock or Hellinger were aware of any such
behavior and essentially all of the alleged criminal conduct postdates the Adolphe investigation.
Carr cites ¶¶ 195-209 of her Complaint in support of her argument. Those paragraphs allege
that Finch stalked and harassed his wife and abused his office in connection with that conduct.
According to Carr’s allegations, with one vaguely stated exception, most of that criminal conduct
took place in 2008 and 2009 – years after the Adolphe murder investigation. The investigative
events on which Carr relies took place in 2005, 2006 and 2007. The one exception is the allegation
that Finch stalked and harassed his wife “between 2005 and 2008.” Complaint, DN 01, at ¶ 196.

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But Carr has not alleged that either Hellinger or Pitcock knew that Finch was stalking and harassing
his wife or had reason to suspect that Finch would frame Carr because she was “a young teenager.”
Moreover, there is only one allegation about Finch’s abuse of his office, i.e. about a
likelihood that either Hellinger or Pitcock knew Finch was untrustworthy. According to Carr,
Finch abused his office “to conduct surveillance and investigation into his former wife, between
August and September 2008.” Complaint, DN 01, at ¶ 200. The problem remains that this alleged
abuse postdates Carr’s harm. The Adolphe murder investigation began in October 2005 and Carr
took an Alford plea “in April 2008,” id. at ¶ 167, months before Finch allegedly abused his office.
Based on Carr’s pleading, one cannot reasonably infer that at any point during the Adolphe
investigation either Hellinger or Pitcock knew that Finch would abuse his office.
Carr’s allegations as to Hellinger’s role in the Adolphe investigation likewise fail to rescue
her supervisor liability claim. Indeed, Carr does not even allege that Hellinger was Finch’s or any
other defendant’s supervisor. Nor does she allege that Hellinger supervised the Adolphe
investigation generally. Instead, Carr alleges nothing more than Hellinger’s being employed as
either a police officer or sergeant. Complaint, DN 21, at ¶ 21. As for Hellinger’s participation in
the investigation, Carr alleges that interviewed two witnesses. Those witnesses told Hellinger
about where they saw Adolphe’s car parked on the night of his murder. Id. at ¶ 54. The Complaint
is devoid of further factual enhancement as to how this event caused constitutional harm to Carr.
Carr does allege that Hellinger was present while Finch aggressively interrogated her, but
she does not allege that Hellinger actively participated in the questioning. Id. at ¶ 163. Even if the
Court construes this allegation as Hellinger’s tacit approval of untoward “aggressive” techniques,
that is not enough to state a supervisor-liability claim. There “must be a ‘causal connection’
between the defendant’s ‘active unconstitutional behavior’ and the plaintiff’s injuries.” Crawford,

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15 F.4th at 761-62 (citation omitted). As pleaded, Carr’s “supervisory liability” claim rests on the
following:
. . . constitutionally [in]adequate law enforcement practices, particularly those
which concerned interviews of suspects and the production of exculpatory
evidence, thereby encouraging and/or permitting these employees and other
defendants . . . to coerce and fabricate false inculpatory evidence and to
withhold exculpatory and impeachment evidence, which caused the
constitutional deprivations suffered by Plaintiff.
Complaint, DN 01, at ¶ 248. But Finch’s interrogation of Carr, witnessed by Hellinger, did not
elicit a false statement from her. Instead, despite Finch’s aggressive questioning, Carr maintained
her innocence throughout this interrogation. Id. at ¶ 164. Further, Carr has pleaded that the harm
at issue is her Alford plea which, in turn, deprived her of a right to a fair trial. Id. at ¶ 235. Yet, at
the same time, Carr alleges that she took an Alford plea not because of Finch’s interrogation but
because the false evidence Finch coerced or fabricated “seemed insurmountable” and exculpatory
evidence was hidden. Id. at ¶ 168.
As for Pitcock, Carr has alleged that he was Finch’s supervisor, but she has not alleged
facts that indicate that Pitcock actively engaged in unconstitutional conduct. Rather, Carr alleges
no more than Pitcock’s approving surveillance on a third-party Carla Sowers’ home. Complaint at
¶ 36, ¶¶ 93-94. These allegations are also devoid of further factual development. Carr cannot rely
on the allegations in Count IV either. They are recitations of the elements of supervisory liability.
As such, they are legal conclusions couched as factual allegations – rendering them insufficient to
survive a motion to dismiss. Papasan v. Allain 478 U.S. 265, 286 (1986) (on a motion to dismiss,
courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). As
well, they are pleaded collectively against the “Defendant Officers” and fail to put Hellinger and
Pitcock on notice as to the specific unconstitutional conduct with which they are charged here.
Thus, Carr’s allegations fail to state a claim for this reason too. Gordon, 486 Fed. Appx. at 539.
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B. Failure to Intervene
Officers cannot be liable under a failure-to-intervene theory “if they do not have ‘a realistic
opportunity to intervene and prevent harm.’” Wells v. City of Dearborn Heights, 538 Fed. Appx.
631, 640 (6th Cir. 2013) (quoting Ontha v. Rutherford Cnty. Tenn., 22 Fed. Appx. 498, 507 (6th
Cir. 2007)). This standard presupposes a threshold harm. Absent a constitutional harm, there can
be no liability. Bonner-Turner v. City of Ecorse, 627 Fed. Appx. 400, 413 (6th Cir. 2015) (“because
there is no underlying constitutional violation, [officer] may not be liable for failure to intervene.”).
As well, Carr must plead facts to show a causal connection. Crawford, 15 F.4th at 761-62.
Carr’s pleading fails to state a claim against either Hellinger or Pitcock. Carr argues that
“Defendant Hellinger participated in Plaintiff’s interrogation, yet never stopped Defendant Finch’s
threats to put Plaintiff – a teenage girl – in jail for life or his crude and demeaning threats toward
her.” Id. (citing Compl. at ¶¶ 161-64). But, as set out above, Carr does not allege that any
constitutional harm resulted. Instead, despite Finch’s techniques, Carr maintained her innocence.
Complaint, DN 01, at ¶ 164.
Carr argues that Pitcock “failed to intervene in the investigation despite Defendant Finch’s
disturbing criminal conduct involving abuse of law enforcement power.” Response, DN 42 at 7
(citing Compl. at ¶¶ 195-209). However, as explained above, Finch’s alleged “abuse of law
enforcement power” occurred after the Adolphe murder investigation and after Carr took an Alford
plea. Pitcock cannot plausibly be charged with failing to intervene based on conduct by Finch that
had not yet occurred. Lastly, Carr relies on her contention that “Pitcock authorized Defendant
Finch’s surveillance and subsequent arrest of Carla Sowers (resulting in her fabricated statement).”
Response, DN 42, at 7. But the Complaint does not allege Pitcock coerced a false statement from

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Sowers or even knew that Finch had done so. Thus, there are no fact allegations which establish
conduct by Pitcock that caused constitutional harm.
In short, absent further factual enhancement, Carr’s failure-to-intervene allegations “stop
short of the line between possibility and plausibility.” Twombly, 550 U.S. at 546.
C. Conspiracy
Carr’s conspiracy claims must also be dismissed for failure to state a claim upon which
relief may be granted. Carr contends that her allegations state “a plausible claim that Defendants
had at least a tacit agreement to participate in the common plan to unlawfully convict [her] of Mr.
Adolphe’s homicide.” Response, DN 42, at 9. To support this contention, Carr relies on allegations
that are legal conclusions couched as factual assertions, allegations that do not mention Hellinger
or Pitcock, and allegations that do not speak to the elements necessary to a conspiracy clam. As
such, these allegations do not suffice.
First, Carr relies on paragraph 258 of her Complaint. Id. at 8. That paragraph states:
After Mr. Adolphe was murdered, the Defendant Officers reached an agreement
amongst themselves to frame Ms. Carr for the crimes, and to thereby deprive
Ms. Carr of her constitutional rights and his [sic] liberty to be continuously
taken away from her, all as described in the various Paragraphs of this
Complaint.
Complaint, DN 01, at ¶ 258. This paragraph couches the agreement element of a conspiracy claim
as a fact allegation. This Court need not accept legal conclusions as true and declines to do so.
Papasan, 478 U.S. at 286; Terry v. Tyson Farms, Inc., 604 F.3d 272, 276 (6th Cir. 2010) (legal
conclusions “‘masquerading as factual allegations’” do not suffice) (citation omitted). There are
no specific fact allegations of a plan or agreed upon scheme to violate Carr’s constitutional rights.
Next, Carr points to paragraphs 55-77 of the Complaint. These allegations say nothing
about either Hellinger or Pitcock, however. They are about defendant Finch and his alleged failure

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to further investigate Louis despite having strong evidence against him. Carr also relies on
Paragraphs 125-135, but those paragraphs are about defendant Lawson. Carr cites paragraphs 136149, but those allegations concern Finch or make blanket allegations as to what the “Defendants”
did not learn but should have learned during the Adolphe investigation. None of those paragraphs
allege that Hellinger and/or Pitcock entered into an agreement or formed a single plan to frame
Carr. Thus, Carr has not plausibly stated a conspiracy claim based on these allegations.
Carr also relies on Pitcock’s alleged approval to survey Sowers but that allegation likewise
fails to allege an agreement to frame Carr. Finally, Carr echoes her assertion that Hellinger and
Pitcock permitted Finch to investigate “despite knowledge that he was criminally abusing his status
as an LMPD officer.” Response, DN 42, at 9. Again, the abuse-of-office conduct postdates Carr’s
Alford plea, making it implausible that these facts somehow allege a plan to frame Carr.
D. Request to Amend
Carr requests leave to amend her Complaint should the Court grants Defendants’ Motion.
Carr has not filed a formal motion, however. Also, Carr has not identified the nature of any
proposed amendments. Thus, Defendants have not had the opportunity to respond and the Court
is unable to analyze the request under the applicable standards. For these reasons, the Court will
deny the request at this juncture. However, compliant with any scheduling order, Carr may file a
properly supported motion for leave to amend.
CONCLUSION
Carr has agreed that her claims against defendant Seabolt should be dismissed. By limiting
her Response to arguments about her § 1983 claims for supervisor liability, failure-to-intervene,
and conspiracy, Carr has also conceded that all of her other claims against Hellinger and Pitcock
should be dismissed. Finally, for the reasons set forth above, Carr has failed to sufficiently plead

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claims for supervisor liability, failure-to-intervene, and conspiracy against either Hellinger or
Pitcock. Accordingly, Defendants’ Motion for a Judgment on the Pleadings, DN 41, is hereby
GRANTED. All claims against defendants James Hellinger, Troy Pitcock, and Shawn Seabolt are
hereby DISMISSED without prejudice. Plaintiff Carr’s informal request for leave to amend is
DENIED.
IT IS SO ORDERED.
March 25, 2024

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