Range v. Douglas

878 F.Supp.2d 869

Laurie RANGE, et al., Plaintiffs,

v.Kenneth DOUGLAS, et al., Defendants.

No. 1:10cv473.

United States District Court,

S.D. Ohio,

Western Division.

July 13, 2012.

Alphonse Adam Gerhardstein, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Joseph M. Hutson, Cohen Todd Kite & Stanford LLC, Cincinnati, OH, for Plaintiffs.

Jerome A. Kunkel, Mark Carl Vollman, Hamilton County Prosecutor's Office, Michael Gerard Florez, Assistant Prosecutor, Hamilton County Ohio, Pamela J. Sears, Hamilton County Prosecutor, Alexander M. Triantafilou, Alicia Marie Stefanski, Brian Scott Sullivan, Dinsmore & Shohl, LLP, Cincinnati, OH, for Defendants.

OPINION & ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court upon Defendants' Motion to Dismiss and Motion for Summary Judgment. (Doc. 82.) Plaintiffs filed a Response in Opposition (Doc. 83) and Defendants filed a Reply (Doc. 90). Defendants also filed a Notice of Supplemental Authority in support of their Motions. (Doc. 96.) Also before the Court is Plaintiffs' Motion to Add Lakshmi Sammarco, M.D. as a Party. (Doc. 94.) Defendants filed a Response in Opposition (Doc. 97) and Plaintiffs filed a Reply (Doc. 99).

I. BACKGROUND

Plaintiffs are the family members of Karen Sue Range, Charlene Appling and Angel Hicks.¹ It is undisputed that Defendant Kenneth Douglas had sex with the dead bodies of these women while they were housed at the Hamilton County Morgue. Douglas was employed by the Hamilton County Coroner's Office as a Morgue Attendant from 1976 until 1992. During that time period, Morgue Attendants were responsible for receiving dead bodies and inventorying personal items. Morgue Attendants also assisted in autopsies and releasing bodies to funeral homes. (Doc. 49, Tyrone Smith Depo. at 49–51.) Prior to being hired, Morgue Attendants were subject to background checks and a drug test. ( Id. at 18–21; Doc. 48, Clyde Gamble Depo. at 80–81.) ²

As a Morgue Attendant, Douglas was supervised by Bernard Kersker, who was the Morgue Director. Kersker reported to Carol Maratea, the Morgue Administrator, who in turn reported to Dr. Frank Cleveland, who was the Coroner. (Doc. 46, Bernard Kersker Depo. at 41.) Throughout his fifteen-year tenure at the Morgue, Douglas had problems with tardiness and attendance. In a 1980 performance evaluation, Kersker rated Douglas low for dependability, and noted that “Kenneth has had problems over the past year which affected his dependability and interest in the job.” (Doc. 85–23.) In a 1984 evaluation, Kersker noted that “Ken has had a chronic tardy problem over the years.... I also cautioned Ken about a possible misuse of sick time.” (Doc. 85–25.) In a 1990 evaluation, Kersker cautioned Douglas that he had used twenty-five sick days. (Doc. 85–30; Kersker Depo. at 103–104.) In 1992, Kersker noted that Douglas had used twenty-three sick days. ( Id. at 105.)

Douglas was disciplined for his tardiness by being made to stay late or having his pay docked. (Kersker Depo. at 93–94.) Kersker discussed Douglas' attendance and tardiness problems with Dr. Cleveland. ( Id. at 110.) Douglas also talked with Dr. Cleveland about the problems. (Doc. 47, Kenneth Douglas Depo. at 60–61.) Dr. Cleveland told Douglas to “get it right or be fired.” ( Id. at 60–63.)

Douglas explains that he was late or missed work because of problems with alcohol. ( Id. at 59.) Douglas claims he told Kersker that his drinking caused him to be late and miss work. ( Id. at 58–59.) Douglas explained that he had two DUI convictions, and as a result of the second conviction, he served a ten-day jail sentence. ( Id. at 43–44.) Douglas claims he told Kersker about the DUI conviction because he needed to use four days of vacation time to cover the time he was in jail. ( Id. at 43–44.) Douglas also claims he told Kersker that he participated in the Alcoholics Anonymous program. ( Id. at 54.)

Douglas testified he started using crack and powder cocaine in the mid-' 80s. ( Id. at 39, 65.) Also around this time, Douglas overdosed on pills and was hospitalized for three days. ( Id. at 52.) During his hospitalization, Douglas received mental health treatment. ( Id.) Douglas testified he told Kersker about the incident, and believes the hospital called the Coroner's Office. ( Id. at 53–54.)

Douglas testified that he drank at work when he was alone on second shift and on weekends. ( Id. at 112–13, 116.) Douglas also testified he would drink and smoke marijuana before coming into work. ( Id. at 39.) Douglas explained he was under the influence of alcohol when he had sex with the dead body of Karen Sue Range, and under the influence of alcohol and cocaine when he has sex with the dead body of Charlene Appling and Angel Hicks. ( Id. at 94.) Douglas claims the alcohol and drugs caused him to have sex with the dead bodies: “[I]f I had not been under the influence none of this would have ever happened. When I was sober, no, none of this happened.” ( Id. at 117.)

Kersker does not recall being told by Douglas that he had an alcohol problem. (Kersker Depo. at 105.) Kersker testified he never saw Douglas consume alcohol, or smelled alcohol on him. ( Id. at 69–72.) Kersker also testified he did not know that Douglas had a drug problem. ( Id. at 149.) Kersker testified he assumed Douglas' problems were marital. ( Id. at 91–92.) Kersker knew Douglas had a reputation as a “ladies man” and often took calls from women trying to reach Douglas at the Morgue. ( Id. at 72.) Kersker testified he told Douglas to “tell these girls not to keep calling here. You talk to them after work.” ( Id. at 72–73.)

In 1987, Douglas' wife, Pat Chavis called Kersker and explained that Douglas was coming home drunk from work. (Doc. 51, Pat Chavis Depo. at 20–21.) Kersker told Chavis that he “would look into it.” ( Id. at 21.) After about six months, Chavis called Kersker a second time because Douglas was still coming home drunk. ( Id. at 23.) Chavis told Kersker that Douglas was still drinking at work and that Douglas “smelled like sex” when he came home. ( Id. at 23, 26–27.) Chavis testified that Kersker responded by telling her that “whatever happens on county time, on county property, is county business and you are an insecure, jealous wife and I don't want you to call here anymore.” ( Id. at 27.)

In 1989, Chavis told Maratea her concerns about Douglas. ( Id. at 33.) Chavis told Maratea that Douglas was having relationships and coming home “smelling like sex.” ( Id. at 32.) Chavis told Maratea that she suspected it was Maratea's secretary or “it may be somebody he's bringing in at night.” ( Id.) Maratea told Chavis that she “would look into it.” ( Id.)

In 1992, Douglas resigned from his employment with the Coroner's Office. (Douglas Depo. at 65.) Douglas claims his drug problem was one of the reasons he resigned. ( Id.)

Years later, it was discovered that Douglas had had sex with the dead bodies of Karen Sue Range, Charlene Appling, and Angel Hicks. Douglas was convicted of Gross Abuse of a Corpse on September 8, 2008.

Plaintiffs have brought claims for (1) violation of civil rights under 42 U.S.C. § 1983; (2) intentional infliction of emotionaldistress; (3) negligent infliction of emotional distress; and (4) negligent retention and supervision.

Defendants argue that Plaintiffs' federal claims should be dismissed because there was no constitutional violation and this Court should not retain jurisdiction over Plaintiffs' remaining state law claims.

II. ANALYSISA. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the initial burden of showing the absence of a genuine issue of material fact, but then the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. However, the nonmoving party may not rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

B. Named parties

There is some dispute between the parties as to whether Plaintiffs have named the proper parties. The individually-named Defendants are Douglas, Kersker, and Dr. Cleveland. Both Kersker and Dr. Cleveland have passed away during the pendency of the suit.³ Plaintiffs have also named as a defendant the “Hamilton County/Board of Hamilton County Commissioners.”

1. Kenneth Douglas

In their motion, Defendants explain that the Hamilton County Coroner's Office is not providing a defense to Douglas because his criminal acts were acts outside the scope of his employment. (Doc. 90.)

While Plaintiffs' Complaint was served on Douglas, no response has been filed by him. Plaintiffs have not sought an entry of default. This Opinion and Order will not address the claims pending against Douglas.

2. “Hamilton County/Board of Hamilton County Commissioners”

Defendants argue that the Hamilton County Board of Commissioners is not a proper party and should be dismissed. Defendants explain that the Commissioners are not responsible for the operation of the Coroner's Office. However, Plaintiffs respond that the Commissioners are only being sued in their official capacity.

A suit against an individual in his or her official capacity is the equivalent of a suit against the governmental entity. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.1994) ( citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 68, 109 S.Ct. 2304, 105...