Kyle v. Hicks et al

Filing 26

MEMORANDUM OPINION AND ORDER denying 15 and 24 Motions to Reinstate Official Capacity Claims; denying 16 Motion to Suppress Evidence/Witness; denying 17 Motion to Transfer. Signed by Chief Judge Joseph H. McKinley, Jr on 1/13/12. cc:counsel, Plaintiff (pro se) (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO

JUSTIN DAVID KYLE
v.

PLAINTIFF
CIVIL ACTION NO. 4:11CV-P92-M

DEPUTY HICKS et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court are a number of motions filed by Plaintiff, Justin David Kyle. Each will
be considered below.
Motions to reinstate official-capacity claims (DNs 15 and 24)
On initial review, the Court found that because Plaintiff had not alleged that a custom or
policy was the moving force behind the alleged constitutional violations, his official-capacity
claims must be dismissed. In his first motion to reinstate his official-capacity claims, Plaintiff
argues: “Without official capacity the Defendants could not act in such cruel and inhumane
ways. To chain a man . . . in such a disfigured way and against his . . . will is a serious crime
against humanity. . . So, the Plaintiff begs this court to reinstate the claims against Defendants
official capacity.” In response (DN 21), Defendants argue that Plaintiff has not established that a
policy or custom of Daviess County Detention Center (DCDC) was the moving force behind the
alleged constitutional violations.
Plaintiff has filed another motion to reinstate his official-capacity claims, in which he
argues that a facility such as DCDC must keep inmates and staff safe and secure and that the
staff at DCDC failed to do that by placing Plaintiff and Chad Smith in the same cell. Plaintiff
asserts that it was known to the DCDC staff that placing Chad Smith in Plaintiff’s cell would

endanger Plaintiff and others.
As the Court explained on initial review, “[A] municipality cannot be held liable solely
because it employs a tortfeasor – or, in other words, a municipality cannot be held liable under
§ 1983 on a respondeat superior theory.” Monell v. New York City Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978) (emphasis in original); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.
1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). The plaintiff must “identify
the policy, connect the policy to the [county] itself and show that the particular injury was
incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358,
364 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987),
overruled on other grounds, Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir. 2001)). The
policy or custom “must be ‘the moving force of the constitutional violation’ in order to establish
the liability of a government body under § 1983.” Searcy, 38 F.3d at 286 (quoting Polk County
v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)); Bd. of County Comm’rs of Bryan
County, Okla. v. Brown, 520 U.S. 397, 404 (1997) (indicating that plaintiff must demonstrate
“deliberate conduct”).

Plaintiff’s motions have not alleged a policy or custom that was

the moving force of the alleged constitutional violations. Plaintiff’s argument that Defendants
could not have chained him in such a cruel way without it being a policy is completely
conclusory and speculation. It does not in a credible way identify a policy of DCDC resulting in
the alleged injury. Plaintiff’s assertion that DCDC is supposed to keep inmates and staff safe
and failed to do so when Chad Smith was placed in Plaintiff’s cell in fact tends to show that the
placement of Chad Smith was not done pursuant to a custom or policy. Accordingly,
Plaintiff’s motions (DNs 15 and 24) are DENIED.

2

Motion to “suppress evidence/witness” (DN 16)
Plaintiff asks the Court “to obtain video evidence and written statements by Deputy Hill
and Major Billings and all findings by DCDC in reference to events that took place on or about
July 15th 2011 at or about 4:00pm to 11:00pm.” He asks the Court “to suppress witness and take
statements from Deputy Hill, Deputy Johnson as they were present in T-cell when Plaintiff was
treated so cruel and unusually . . . .” In response (DN 23), Defendants argue that they believe
that Plaintiff has mis-named his motion since it appears that he is actually requesting that
information be produced to him. Morever, they assert that Plaintiff’s request is moot in that a
copy of his inmate file and a copy of the DCDC internal investigation into his allegations were
provided to Plaintiff. They state that there are no additional documents or videotapes to be
produced. They also assert that his request that witness statements be taken on his behalf is
improper since Plaintiff had the opportunity to undertake discovery but did not do so.
The Court finds that Plaintiff is indeed asking that information be produced not
suppressed and that his requests are moot in as much as Defendants have stated that the
requested information has been turned over to Plaintiff and that there are no additional
documents or videotapes to be produced. Moreover, it is Plaintiff’s responsibility to seek
witness testimony through discovery. Plaintiff’s motion (DN 16) is DENIED.

3

Motion for transfer (DN 17)
Plaintiff wishes to be transferred away from the Daviess County Detention Center. Since
he filed this motion, however, he has notified the Court that he has been transferred to a different
facility. Plaintiff’s motion to transfer (DN 17) is DENIED as moot.
Date:

January 13, 2012

cc:

Plaintiff, pro se
Counsel of record
4414.009

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