Kirkwood v. United States of America

Filing 16

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 11/6/17: Hopkins County, Joe Blue (Jailer, Hopkins County Jail) and City of Madisonville terminated. The Clerk of Court shall issue summons and effect service of process on Defendants, by way of the U.S. Marshals Service in accordance with Rule 4 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 4(c)(3). cc: counsel, Plaintiff (pro se) (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
KEITH EDWIN KIRKWOOD
v.

PLAINTIFF
CIVIL ACTION NO. 4:17-CV-86-JHM

UNITED STATES OF AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
On initial review of the complaint under 28 U.S.C. § 1915(e), the Court dismissed the
United States, the only named Defendant, because the complaint made no allegations against the
United States and because the United States may not be sued under 42 U.S.C. § 1983.1
However, the Court gave Plaintiff an opportunity to amend his complaint to name particular
employees of the Madisonville Police Department and the Hopkins County Jail in their
individual capacities whom Plaintiff alleges were responsible for the alleged constitutional
violations while he was a pretrial detainee.
In response, Plaintiff has filed three amended complaints. In his first amended complaint
(DN 13), Plaintiff sues in their individual capacities the following employees of the Hopkins
County Jail: Crystal G. Vickrey; Joe Blue; Jarrett Blackhurst; Jeremy McLaughlin; Tracy
Griffith; Bradley Ross; and Gary Lutz. He alleges that in violation of the Fourth, Eighth, and
Fourteenth Amendments Defendant Vickrey placed him in the restraint chair as punishment; that
Defendants Blackhurst, McLaughlin, Griffith, and Ross placed him in a restraint chair and
pepper sprayed him as punishment; that Defendant Griffith also tased him while in the restraint
chair; and that Defendant Lutz “drive stun[ned]” him while in the restraint chair.

1

The original civil-rights complaint in this action was filed in the United States Court of Federal Claims. That court
granted Plaintiff leave to proceed in forma pauperis but transferred the case to this Court because the allegations
concerned incidents occurring in this district.

“Because the [Eighth Amendment’s] Cruel and Unusual Punishments Clause ‘is
concerned’ with punishment by the state ‘after it has secured a formal adjudication of guilt in
accordance with due process of law,’ it does not apply to pretrial detainees.” Spencer v.
Bouchard, 449 F.3d 721, 727 (6th Cir. 2006) (footnote and citations omitted), abrogated on
other grounds by Jones v. Bock, 549 U.S. 199 (2007). “However, state pretrial detainees are
shielded from cruel and unusual punishments by the Fourteenth Amendment’s Due Process
Clause, which provides similar if not greater protections than the Cruel and Unusual
Punishments Clause.” Id. (footnote and citations omitted). Therefore, Plaintiff’s claims do not
fall under the Eighth Amendment. Thus, the Court will dismiss the Eighth Amendment claims
against these Defendants but allow the Fourteenth Amendment and/or Fourth Amendment claims
to go forward.2
With regard to Defendant Blue, Plaintiff asserts that he “was the jailer at the time I was
incarcerated as a pre-trial detainee and is accountable for the jail staff’s actions.” This indicates
to the Court that Plaintiff is attempting to hold Defendant Blue liable based on his supervisory
position as jailer.
“Respondeat superior is not a proper basis for liability under § 1983.”3 McQueen v.
Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006). “Nor can the liability of supervisors be
based solely on the right to control employees, or simple awareness of employees’ misconduct.”
Id. (internal quotations omitted). “In order for supervisory liability to attach, a plaintiff must
2

It appears from the original complaint that Plaintiff was booked into the Hopkins County Jail on April 16, 2012.
The earliest referenced date of an alleged constitutional violation is April 21, 2012, although he also alleges that
when he arrived at the Hopkins County Jail he was put directly into isolation. It is unclear when a probable-cause
hearing was held. The Court therefore does not know whether the Fourth or Fourteenth Amendment applies. See
Aldini v. Johnson, 609 F.3d 858, 867 (6th Cir. 2010) (“setting the dividing line between the Fourth and Fourteenth
Amendment zones of protection at the probable-cause hearing”).

3

Respondeat superior is “the doctrine under which liability is imposed upon an employer for the acts of his
employees committed in the course and scope of their employment.” Ballentine’s Law Dictionary (3d ed. 1969).

2

prove that the official ‘did more than play a passive role in the alleged violation or showed mere
tacit approval of the goings on.’” Loy v. Sexton, 132 F. App’x 624, 626 (6th Cir. 2005) (quoting
Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). In other words, “liability under § 1983
must be based on active unconstitutional behavior.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999). Here, Defendant Blue cannot be held liable based solely on his capacity as jailer.
See Curtis v. Curtis, 37 F. App’x 141, 142 (6th Cir. 2002) (affirming district court’s dismissal of
individual-capacity claims against jailer based on his position of authority). The claims against
Defendant Blue will be dismissed.
The second amended complaint (DN 14) filed by Plaintiff again names as Defendants the
City of Madisonville and the Hopkins County Government.
The constitutional claims against the City of Madisonville and the Hopkins County
Government must be dismissed because Plaintiff does not allege a policy or custom. As was
explained in the Court’s prior Memorandum Opinion and Order (DN 12), a municipality, like the
City of Madisonville or Hopkins County, cannot be held responsible for a constitutional
deprivation unless there is a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978); Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). Because
Plaintiff has not alleged that a policy or custom was the moving force behind the alleged
constitutional violations, he has failed to state a claim against these Defendants. See Searcy v.
City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994).
The Court additionally notes that Plaintiff also alleges that the use of pepper spray and
restraint chair as punishment is not allowed under “international rights.” There is nothing

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international about the allegations described herein. All parties reside in and the alleged
incidents occurred in Kentucky.
Moreover, to the extent that Plaintiff may be alleging his rights under the Universal
Declaration of Human Rights (UDHR) have been violated, such a claim would also fail. The
UDHR is not a treaty or international agreement which imposes legal obligations. Rather, it is a
statement of principles aimed at providing a common standard for international human rights.
See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004). Because it is not enforceable in
American courts, any claims under the UDHR would be subject to dismissal, as well.
Plaintiff’s third amended complaint (DN 15) again names as Defendants the City of
Madisonville and Hopkins County, as well as Madisonville police officers Russell Nichols and
Scott Gipson. He alleges that Officer Gipson came to his home, searched his vehicle, and took a
38 pistol from “the console of [his] car . . . (4th Amendment).” Plaintiff alleges that Defendant
Nichols unnecessarily tased him during his arrest in violation of the Fourth Amendment. He
alleges that the City of Madisonville and Hopkins County are responsible for “the deprivation of
rights involving county and city employees.” Once again, Plaintiff has not identified a policy or
custom of the City of Madisonville or the Hopkins County Government, and the constitutional
claims against them may not proceed. The Court will allow Plaintiff’s Fourth Amendment
claims to go forward against Defendants Nichols and Gipson in their individual capacities.
Accordingly, IT IS ORDERED that the claims against Joe Blue, the City of
Madisonville, and Hopkins County, as well as the Eighth Amendment claims, are
DISMISSED for failure to state a claim.
The Clerk of Court is DIRECTED to terminate Joe Blue, the City of Madisonville, and
Hopkins County as parties to this action.

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The Court will allow the following claims to go forward: the individual-capacity claims
against Defendants Vickrey, Blackhurst, McLaughlin, Griffith, Ross, and Lutz under the
Fourteenth and/or Fourth Amendments and the individual-capacity claims against Defendants
Nichols and Gipson under the Fourth Amendment. In allowing these claims to go forward, the
Court expresses no opinion on their ultimate merit.
Therefore, IT IS FURTHER ORDERED as follows:
(1) The Clerk of Court shall issue summons and effect service of process on Defendants,
by way of the U.S. Marshals Service in accordance with Rule 4 of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 4(c)(3).
(2) The parties shall serve upon each party, or their counsel, a copy of each document
filed in this action as required by the Federal Rules of Civil Procedure, including a certificate of
service stating the date on which a copy was sent to opposing parties. Any paper received by the
Court which has not been filed with the Clerk, or which fails to include a certificate of service,
may be disregarded by the Court.
(3) Plaintiff must provide written notice of a change of address to the Clerk and to
Defendants’ counsel. See Local Rule 5.2(e).
(4) Plaintiff’s failure to notify the Clerk of any address change or failure to comply with
this or any subsequent Order of the Court may result in a dismissal of this case.
Date:

November 6, 2017

cc:

Plaintiff, pro se
Defendants
4414.009

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