Powell v. City of Radcliff

CYNTHIA POWELL PLAINTIFF v. CITY OF RADCLIFF, KY, et al. DEFENDANTS

CIVIL ACTION NO. 3:19-CV-00386-GNS-RSE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

November 10, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' Motion to Dismiss (DN 9), and Plaintiff's Motion for Leave (DN 14). The motions are ripe for adjudication. For the following reasons, Plaintiff's motion is GRANTED IN PART and DENIED IN PART, and Defendants' motion is GRANTED.

I. STATEMENT OF FACTS

On August 23, 2018, Defendant Wyatt Rossell ("Officer Rossell"), a police officer employed by Radcliff Police Department, responded to a shoplifting call from Defendant Jessica Jackson ("Jackson"), a loss-prevention employee at a retail store operated by Defendant Rural King Administration, Inc. ("Rural King"). (Compl. ¶ 7, DN 1). When Officer Rossell arrived, he spoke with Jackson and other loss prevention staff, who informed him that a white female entered the store, picked up some clothes, entered a changing room, and exited the room after putting most of the clothes in her purse. (Compl. ¶¶ 8-11). The employees reported that they found the discarded tags from the stolen clothes, and that the suspect only paid for one item. (Compl. ¶ 11). Jackson reported to Officer Rossell that she observed the suspect leave the store and enter a maroon SUV. (Compl. ¶ 12). Jackson gave the license plate number of the car to Officer Rossell. (Compl. ¶ 12). After Officer Rossell ran the plate, he obtained a photo I.D. of Plaintiff Cynthia Powell ("Powell") and showed it to Jackson. (Compl. ¶ 12). Powell alleges that Jackson told Officer Rossell that the suspect from the CCTV footage and the image from Powell's driver's license were the same person, even though Powell contends that CCTV footage did not match her photo. (Compl. ¶¶ 13-14).

An arrest warrant was issued for Powell, who was arrested two days later. (Compl. ¶¶ 14-15). Powell was charged with shoplifting but the charge was later dismissed by the Hardin District Court. (Compl. ¶ 17).

Powell filed this lawsuit against Defendants City of Radcliff, Officer Rossell, Rural King, and Jackson, asserting federal claims under 42 U.S.C. § 1983, and state law claims of assault, battery, and intentional infliction of emotional distress ("IIED").¹ (Compl., DN 1). In the present motions, Rural King and Jackson (jointly "Defendants") have moved to dismiss the claims asserted against them in the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Defs.' Mot. Dismiss, DN 9). Plaintiff has moved for leave to file an Amended Complaint to supplement her original allegations. (Pl.'s Mot. Leave, DN 14).

II. DISCUSSION

A. Plaintiff's Motion for Leave

Powell has moved for leave to file an Amended Complaint, which Defendants oppose on the basis of delay and futility. (Pl.'s Mot. Leave 1-2; Defs.' Resp. Pl.'s Mot. Leave 4). In general, Fed. R. Civ. P. 15 provides that after a responsive pleading has been served, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). A district court should freely grant a plaintiff leave to amend a pleading "when justice so requires." Fed. R. Civ. P. 15(a)(2). Whether justice would require the allowance of an amendment is a decision vested in the sound discretion of the district court. See Hayden v. Ford Motor Co., 497 F.2d 1292, 1294 (6th Cir. 1974).

In determining whether to grant leave under Rule 15, a court may consider undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice, futility of the amendment, or the repeated failure to cure deficiencies by amendments previously allowed. See Foman v. Davis, 371 U.S. 178, 182 (1962). While Defendants oppose the granting of leave to amend on the grounds of delay and futility, "delay alone is an insufficient basis on which to deny a motion to amend . . . ." CP Sols. PTE, Ltd. v. Gen. Elec. Co., 237 F.R.D. 534, 537 (D. Conn. 2006).

The salient issue is whether the allegations in the Amended Complaint are futile. As the Sixth Circuit has noted, "[t]his Circuit has addressed the issue of 'futility' in the context of motions to amend, holding that where a proposed amendment would not survive a motion to dismiss, the court need not permit the amendment." Thiokol Corp. v. Dep't of Treasury, 987 F.2d 376, 383 (6th Cir. 1993) (citing Neighborhood Dev. Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23 (6th Cir. 1980)). Under Fed. R. Civ. P. 12(b)(6), a complaint may be attacked for failure "to state a claim upon which relief can be granted." To satisfy this standard, a complaint must state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). However, "a Rule 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ricco v. Potter, 377 F.3d 599, 602 (6th Cir.2004) (quotation omitted). In applying this standard, a court must construe all allegations in the light most favorable to the plaintiff, accept the allegations as true, and draw all reasonable inferences in favor of the plaintiff. See Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir. 2005). The defendant has the burden of showing that the plaintiff has failed to state a claim for relief. Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir.1991). While all factual allegations in the complaint are accepted as true, "we need not accept as true legal conclusions or unwarranted factual inferences." Gregory v. Shelby Cty., 220 F.3d 433, 446 (6th Cir.2000) (citation omitted).

1. Federal Claims

Reading the Amended Complaint in conjunction with the Complaint, Powell purports to assert two separate Section 1983 claims against Rural King and Jackson: (i) for wrongful arrest and unlawful imprisonment in violation of her Fourth and Fourteenth Amendment rights; and (ii) for negligent hiring and retention.² (Am. Comp. ¶¶ 11-17, 25-33; Compl. ¶¶ 18-21, 25-28). In addition, Powell purports to assert a Monell claim against Rural King. (Am. Compl. ¶¶ 25-33; Compl. ¶¶ 25-28).

a. Section 1983 - Fourth and Fourteenth Amendments

To state a plausible claim for relief under Section 1983, a claimant must allege facts demonstrating that a defendant both: (1) "violat[ed] a right secured by the Constitution and law of the United States" (2) while "acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). In general, "[a] plaintiff may not proceed under § 1983 against a private party 'no matter how discriminatory or wrongful' the party's conduct." Tahfs v. Proctor, 316 F.3d 584, 591 (6th Cir. 2003) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). "Nevertheless, there are circumstances under which private persons may, by their actions, become 'state actors' for § 1983 purposes." Id. To determine whether a private person can be held liable as a state actor under Section 1983, the Sixth Circuit has recognized three tests: the public function test, the state compulsion test, and the nexus test. See Memphis, Tenn. Area Local, Am. Postal Workers Union, AFL-CIO v. City of Memphis, 86 F. App'x 137, 143 (6th Cir. 2004). From Powell's response, it is unclear which test she relies upon, so the Court will consider all three tests in evaluating the sufficiency of her allegations.

i. Public Function Test

For the public function test to apply, "[a] private entity [must] exercise powers which are traditionally exclusively reserved to the state." Tahfs, 316 F.3d at 591. This test would apply to activities like holding elections or exercising the power of eminent domain. See Howell v. Father Maloney's Boy's Haven, Inc., 424 F. Supp. 3d 511, 516 (W.D. Ky. 2020) (citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)).

In the Amended Complaint, Powell appears to allege that Rural King's loss prevention efforts and Jackson's participation in those efforts qualify as a public function. (Am. Compl. ¶ 28). Under the public function test, however, loss prevention efforts and security systems do not transform a private person into a state actor. See Ragesdale v. Macy's Dep't Store, No. 1:11-CV-33, 2011 WL 573594, at *2-3 (W.D. Mich. Jan. 20, 2011), report and recommendation adopted, No. 1:11 CV 33, 2011 WL 573598 (W.D. Mich. Feb. 15, 2011) ("Plaintiff identifies defendant Byington as a loss prevention employee. She does not allege that he was acting pursuant to a state license authorizing him to exercise the power of arrest or any other function reserved solely to the state. Under governing Sixth Circuit authority, such loss prevention employees are private citizens, and their actions cannot be 'fairly attributable to the state.'"); Chapman v. Higbee Co., 319 F.3d 825, 834 (6th Cir. 2003) (holding that the public function test is not satisfied by the "mere fact that the performance of private security functions may entail the investigation of a crime. . . ."). Thus, as alleged, Powell's claim does not satisfy this test against Rural King or Jackson for either to be a state actor.

ii. State Compulsion Test

A second test to evaluate Section 1983 claims is the state compulsion test. "The state compulsion test requires proof that the state significantly encouraged or somehow coerced the private party, either overtly or covertly, to take a particular action so that the choice is really that of the state." Tahfs, 316 F.3d at 591. "More than mere approval or acquiescence in the initiatives of the private party is necessary to hold the state responsible for those initiatives." Wolotsky, 960 F.2d at 1335 (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).

In the Amended Complaint, Powell alleges that "[t]he involvement of Defendants Rural King and Jackson, with the significant encouragement of the Radcliff police was so substantial and their nexus is so...