Newton v. Dennison et al

Filing 29

MEMORANDUM OPINION AND ORDER granting in part and denying in part 17 Motion to Dismiss for Failure to State a Claim; Signed by Chief Judge Joseph H. McKinley, Jr on 7/30/14: The claims asserted by Ms. Newton individually are dismissed as untimely but the claims asserted on behalf of the children remain. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:14-CV-15-JHM
KATHY NEWTON, L.G., M.G., and P.H.

PLAINTIFFS

V.
DARWIN DENNISON and
UNKNOWN AGENTS OF GRAYSON
COUNTY DETENTION CENTER

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion to dismiss by the Defendants, Darwin
Dennison and Unknown Agents of Grayson County Detention Center (“Defendants”). [DN 17].
Having been fully briefed, the motion is ripe for decision.
I. BACKGROUND

On November 15, 2012, Ms. Newton’s (“Plaintiff”) infant P.H. was left at home alone by

the infant’s father Karl Hack. Mr. Hack’s abandonment of the infant led Plaintiff’s parents to
call the Grayson County Attorney to report the suspected neglect. As a result of the incident, a
court order was issued requiring Plaintiff to submit a urine sample to the Grayson County
Detention Center. On January 16, 2013, Plaintiff obeyed the court order and provided a urine
sample to unknown agents of the Grayson County Detention Center. According to the complaint,
two unknown agents of the Grayson County Detention Center wrongfully accused Plaintiff of
submitting a suspicious urine sample. Plaintiff alleges that this false accusation resulted in the
removal of her children from her custody by the Cabinet for Health and Family Services
(“CHFS”).

1 

Plaintiff asserts that the urine sample provided to the two unknown agents was
negligently handled leading to her children being wrongfully taken from her by CHFS.
Furthermore, she states that she was not made aware of the agents’ conduct until March 1, 2013,
during the final disposition hearing regarding custody of her children.
On February 21, 2014, both individually and on behalf of her minor children, Plaintiff
filed a 42 U.S.C. § 1983 claim against Darwin Dennison, Jailer of the Grayson County Detention
Center, and two unknown agents of the Grayson County Detention Center. In addition to
Plaintiff’s federal claim, she has brought state law claims of negligence, negligent supervision,
and outrage.
II. STANDARD OF REVIEW
Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a
court “must construe the complaint in the light most favorable to plaintiff[ ],” League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), accepting
all of the plaintiff's allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this
standard, the plaintiff must provide the grounds for its entitlement to relief, which “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard when it
“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 678. A complaint falls short if it pleads
facts that are merely “consistent with a defendant's liability” or if the facts do not “permit the
court to infer more than the mere possibility of misconduct.” Id. at 678–79. The allegations must
“‘show that the pleader is entitled to relief.’” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

2 

III. DISCUSSION
Defendants have brought a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), asserting
that all claims are time barred by the statute of limitations. The statute of limitations for a 42
U.S.C. § 1983 action is governed by the limitations period for personal injury claims in the state
in which the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387 (2007). In Kentucky, §
1983 actions are limited by the one year statute of limitations found in KRS § 413.140(1).
Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990).
A. KATHY NEWTON’S CLAIMS
“[The] statute of limitations commences to run when the plaintiff knows or has reason to
know of the injury which is the basis of his action.” Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.
1984). “This inquiry is focused on the harm incurred, rather than the plaintiff’s knowledge of the
underlying facts which gave rise to the harm.” Friedman v. Estate of Presser, 929 F.2d 1151,
1159 (6th Cir. 1991) (citing Shannon v. Recording Indus. Ass’n of Am., 661 F.Supp. 205, 210
(S.D. Ohio 1987)).
In the present case, Plaintiff claims that she was deprived of a familial relationship with
her three minor children by the negligent conduct of the Grayson County Jailer and his
employees. [Complaint ¶ 22]. Plaintiff argues that even if she had exercised due diligence, she
could not have discovered that she lost custody of her children because of the negligence of the
unnamed Defendants until Defendants’ actions were disclosed to her on February 21, 2013.
Accordingly, Plaintiff asserts that the statute of limitations did not begin until February 21, 2013.
However, as noted, the statute of limitations begins to run when a Plaintiff discovers he
or she has been injured. In this case, Plaintiff’s injury occurred on January 16, 2013, when her
children were removed from her custody.

The discovery rule does not toll the statute of
3 

limitations to allow an injured plaintiff to discover the identity of the wrongdoer unless there is
fraudulent concealment or misrepresentation of some sort, which the Plaintiff has not argued. A
person who has knowledge of an injury is put on notice to investigate and discover the identity of
the wrongdoer. Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 n.7 (Ky. 2010).
Therefore, Plaintiff’s §1983 claim and related state law negligence claims are untimely,
including her outrage claim. Bennett v. Malcolm, 320 S.W.3d 136 (Ky. Ct. App. 2010); see also
Peak v. Tru-Check, Inc., 2014 WL 235442 (E.D.Ky., 2014).
B. MINORS’ CLAIMS
Although the claims asserted by Ms. Newton individually are untimely, the claims
asserted on behalf of L.G., M.G., and P.H., by Ms. Newton, are not. Defendants rely on Tallman
v. City of Elizabethtown which held that KRS § 413.170 did not toll the statute of limitations for
a minor because, “[T]he children’s claims were prosecuted on their behalf by their mother, as
guardian and next friend.” Tallman v. City of Elizabethtown, 2007 WL 3227599, at *3 (Ky. Ct.
App. Nov. 2, 2007). Three recent federal cases have cast doubt on the holding in Tallman.
In Bradford v. Bracken County, the United States District Court for the Eastern District
of Kentucky found that Tallman is not indicative of what KRS § 413.170 is intended to do. The
court stated, “Absent direct state precedent on the issue, the Court is left to ‘anticipate how the
relevant state’s highest court would rule in the case.’” The court followed similar logic used in
Martin v. Celadon Trucking Servs., Inc., 2006 WL 181864, at *2 (W.D. Ky. Jan. 17, 2006),
finding a minor’s statute of limitations is tolled until a year after reaching majority, even if their
claim had been prosecuted by a parent, guardian, or next of friend.
Directly supporting this position is T.S. v. Doe, 2010 WL 3941868, at *2-4 (E.D. Ky.
Oct. 6, 2010). The court in T.S. stated:
4 

It is the opinion of this Court that the rationale in Newby is more persuasive than
the absence of any discussion whatsoever and lack of supporting authority
in Tallman. The tolling statute, KRS [§] 421.170, is designed to protect a
minor during the period of minority. Unlike KRS [§] 342.210, this statute
has no exceptions for a committee, guardian or next friend. Defendant's
interpretation would require this Court to add an exception to the statute
that the legislature did not provide. Although the action was brought by
the Plaintiffs' mother as next friend, the minors are the plaintiffs and the
real parties in interest. It is the further opinion of this Court that the
Supreme Court of Kentucky would not remove a minor's statute of
limitation protection simply because a suit was filed by a next friend.
T.S., 2010 WL 3941868 at *4.
Furthermore, after Tallman was decided, the Kentucky Supreme Court clarified, “[T]he
minor himself is the plaintiff in cases filed by minor’s next of friend.” Branham v. Stewart, 307
S.W.3d 94, 97-98 (Ky. 2010). Following the sound logic of the abovementioned cases, it is the
opinion of this Court that neither the 42 U.S.C. § 1983 claim nor the state law claims asserted on
behalf of the children are time barred by the statute of limitations. Therefore, Defendants’ motion
to dismiss in regard to these claims is DENIED.
IV. CONCLUSION
For the reasons set forth above, the Defendants’ motion to dismiss is granted in part
and denied in part. The claims asserted by Ms. Newton individually are dismissed as untimely
but the claims asserted on behalf of the children remain.

CC: Counsel of record
July 30, 2014

5