Court: District Court, W.D. Kentucky; May 2, 2019; Federal District Court
Severability of the statute concerning childhood sexual abuse was addressed, with Cape Publications ruling that the statute's title failed to adequately inform about its effect on sealing records, rendering Section (3) unconstitutional. Defendants contended that Section (2) is inseverable from Section (3), thus invalidating the entire statute. This claim was rejected, as Cape Publications' ruling is not binding precedent, and the issue lacks published opinion or Kentucky Supreme Court review. Consequently, Section (3) of KRS 413.249 remains valid. According to Ky. R. Civ. P. 76.28(4)(c), unpublished decisions do not serve as binding precedent. The court deemed it unnecessary to rule on the constitutionality of Section (3) since Section (2) is severable. KRS 446.090 states that unless specified otherwise, if a part of a statute is found unconstitutional, the remaining sections stay in effect unless they are inseparably linked to the invalid part. In this case, neither condition for non-severability applies; KRS 413.249 does not assert non-severability, and Section (2) and Section (3) serve different purposes—Section (3) benefits defendants by sealing records for older allegations, while Section (2) establishes a 10-year statute of limitations to aid victims. They operate independently, affirming the severability of Section (2). Legislative acts are presumed to have severable provisions if the remaining law is fully functional post-severance.
Defendants contend that Sections (1) and (2) of KRS 413.249 constitute 'special legislation' by creating an arbitrary distinction between victims of 'childhood sexual assault' and 'childhood sexual abuse,' specifically by defining 'child' as under eighteen. They argue that individuals assaulted or abused the day after turning eighteen are ineligible for the extended statute of limitations, rendering the statute arbitrary. Plaintiffs maintain that the legislation is a legitimate legislative action concerning the statute of limitations for victims of childhood sexual abuse or assault.
According to Section 59 of the Kentucky Constitution, the General Assembly is prohibited from enacting local or special acts that regulate civil or criminal cause limitations. Kentucky courts apply a two-part test for constitutional compliance under Section 59: (1) the law must apply equally to all within a class, and (2) there must be natural and justifiable reasons for the classification. The second requirement necessitates substantial justification derived from legislative history or the statute's characteristics.
The court concluded that Sections (1) and (2) of KRS 413.249 do not qualify as special legislation. The first test condition is met as it applies equally to individuals under eighteen at the time of the offense. The second condition is also satisfied, with clear legislative intent to extend the statute of limitations for childhood sexual assault and abuse reflected in the statute's title and language. Judge Cunningham previously affirmed this interpretation, rejecting claims that KRS 413.249 is special legislation, drawing parallels to other statutes that provide differing limitations based on injury type. Thus, KRS 413.249 is deemed a valid legislative exercise.
A longer statute of limitations is deemed necessary for victims of child sexual abuse or assault, as they often take years to process their trauma. This rationale is supported by the legislative history of Senate Bill 53, which established KRS 413.249 to provide uniform justice for child victims. Consequently, motions to dismiss based on the constitutionality of KRS 413.249 are denied.
The applicability of KRS 413.249 to claims against non-perpetrators of the alleged abuse is disputed, with no clear guidance from Kentucky's Supreme Court or Court of Appeals. In federal court, when state law is unsettled, courts are tasked with predicting how the Kentucky Supreme Court would rule. The statute itself outlines that it applies to civil actions for damages resulting from childhood sexual abuse or assault. Specifically, childhood sexual assault involves acts against individuals under 18 that constitute felonies per specific KRS provisions, while childhood sexual abuse encompasses acts that meet misdemeanor criteria in certain KRS statutes. Importantly, no prior criminal prosecution or conviction of the civil defendant is necessary to initiate a civil action under this statute.
The 10-year statute of limitations under KRS 413.249 applies solely to claims involving specific enumerated offenses, excluding criminal complicity and facilitation as they are not mentioned in the statute. Kentucky law allows for criminal liability of individuals and corporations for the acts of others through various statutes, but KRS 413.249 does not include these. Two offenses listed in KRS 413.249 pertain to lesser forms of childhood sexual assault: human trafficking and unlawful transactions with minors. Determining whether defendants not directly accused of sexual assault fall under these enumerated offenses involves factual questions inappropriate for resolution at this stage.
The Kentucky Supreme Court has not directly ruled on this issue; however, the Kentucky Court of Appeals addressed it in dicta in cases such as Roman Catholic Bishop of Louisville v. Burden and Knaus v. Great Crossings Baptist Church, indicating that KRS 413.249 does not apply to third parties but rather to perpetrators of sexual offenses. In Burden, a victim sued the Archdiocese for abuse during a church event, with the court acknowledging that while the statute of limitations was tolled, KRS 413.249's applicability to the Archdiocese was not definitively addressed. The Court of Appeals recognized in Knaus that KRS 413.249 was inapplicable to claims against third parties, reaffirming the focus of the statute on perpetrators.
The Plaintiff contended that the one-year statute of limitations was applicable and should be tolled under KRS 413.190(2) due to fraudulent concealment. The trial court in Knaus allowed discovery to investigate whether Great Crossings had concealed knowledge of abuse or obstructed abuse investigations to ascertain if the statute of limitations was tolled. The court deemed KRS 413.249 inapplicable to third parties, such as a church employer, despite its title relating to childhood sexual assault. It ruled that the one-year statute of limitations was not tolled under KRS 413.190(2) due to a lack of evidence for concealment or obstruction. The Kentucky Court of Appeals concurred with the trial court's conclusion that KRS 413.249 did not apply to claims against Great Crossing, reaffirming that the statute is relevant only to the perpetrator of the abuse. The Supreme Court of Kentucky is likely to interpret KRS 413.249 to apply exclusively to claims involving conduct specified in certain criminal statutes concerning childhood sexual assault or abuse, involving factual determinations.
In Counts I of the complaints, claims for assault, sexual assault, harassment, and battery are asserted against various defendants by multiple plaintiffs, with allegations of sexual assault involving minors falling under KRS 413.249. However, E.B.'s claim may not be included as E.B. does not claim to have been a minor. The one-year statute of limitations for personal injuries under KRS 413.140(1) applies to assault, harassment, and battery claims, with prior case law confirming this for battery and recognizing sexual assault as a form of battery. For E.B., if not a minor during the relevant timeframe, the one-year statute would also apply to sexual assault claims.
The court must also determine which version of KRS 413.249's statute of limitations applies, following an amendment effective June 19, 2017, which extended the period from five to ten years and allowed for a ten-year window following a civil defendant's conviction for childhood sexual abuse or assault. Schuhmann and other defendants argue for the application of the prior five-year statute of limitations to the claims of B.L., N.C., and F.A.
The claims of A.B., K.W., or C.F. remain timely regardless of the five-year statute of limitations. Kentucky law, specifically KRS 446.080, mandates that statutes be interpreted liberally to fulfill legislative intent and prohibits retroactive application of amendments unless explicitly stated. The Kentucky Supreme Court has clarified that no specific language is required for retroactivity, but the General Assembly must clearly indicate such intent. The Court may also use traditional statutory interpretation methods to discern legislative intent, even if the literal application seems unreasonable. The 2017 Amendment to KRS 413.249 lacks explicit retroactive language, while the original 1998 statute indicated that it applied to actions accruing before or after its enactment. Subsequent amendments in 2007, 2013, and 2017 expanded victims' rights but did not address retroactivity, and no legislative history has been provided to clarify the intent behind the 2017 Amendment. Kentucky law permits retroactive application of 'remedial' statutes that only affect procedures rather than substantive rights.
The new standard for reopening workers' compensation awards is retroactively applicable. The Kentucky Supreme Court in Vinson established that substantive amendments to statutes, which alter existing rights and obligations, cannot be applied retroactively to events prior to the amendment's effective date. Conversely, "remedial" amendments that do not impact substantive rights may be applied retroactively. The Kentucky Court of Appeals has held that amendments to statutes of limitations are generally considered remedial as long as no right has vested. Specifically, a right is not considered vested until the statute of limitations has fully run and barred the action.
In the context of workers' compensation, Kentucky courts have upheld that a defendant cannot be divested of the vested right associated with an expired statute of limitations through legislative changes. If a plaintiff's statute of limitations under KRS 413.249 expired before filing suit, that right is vested and protected from the 2017 amendment.
In the cases at hand, N.C. filed suit on March 8, 2017, and it is unclear whether his statute of limitations expired before this date. Consequently, the Court will not dismiss N.C.'s complaint based solely on the statute of limitations. For F.A., born in 2012, the five-year statute of limitations also appears to have expired before the 2017 amendment took effect, but again, the necessary determination cannot be made solely from the complaint's face. Similarly, B.L.'s claims may also be time-barred based on interpretations of his age, but this too requires factual determination beyond what is presented in the complaint. As such, motions to dismiss for all three plaintiffs are denied at this stage.
The Court has denied motions to dismiss B.L.'s complaint, indicating that a determination is premature at this stage. Regarding vicarious liability claims against Flaherty, Metro Louisville, and the Boy Scout Defendants, Kentucky law establishes that vicarious liability is based on the tortious acts of employees rather than the employer's direct wrongdoing. A Kentucky Supreme Court ruling clarifies that if an employee is insulated from liability due to the statute of limitations, the employer may still be held vicariously liable, provided the plaintiff filed against the employer before the limitations period expired for the employee.
Kentucky's one-year statute of limitations applies to personal injury claims, including assault, battery, harassment, negligence, and negligent supervision. These claims generally accrue at the time of the injury. However, under KRS 413.170(a), claims related to childhood sexual assault/abuse can be tolled until the victim's eighteenth birthday, meaning the claims do not accrue until then. The appropriateness of this tolling cannot be determined at this stage as the complaints do not confirm the plaintiffs' ages.
The plaintiffs also contend that their claims were equitably tolled due to fraudulent concealment as per KRS 413.190(2), which allows for tolling when a defendant obstructs the prosecution of the action. This provision prevents the statute of limitations from applying during the period of obstruction but does not affect other parties not involved in such actions.
The statute of limitations may be tolled if a defendant absconds, conceals themselves, or obstructs prosecution through indirect means. The doctrine of fraudulent concealment pertains to actions by the defendant that prevent the discovery of the injury or responsible party. Equitable estoppel prevents a defendant from invoking the statute of limitations if their actions mislead the injured party into inaction. Once the obstruction is removed, plaintiffs must act with reasonable diligence to pursue their claims. Defendants contend that the statute of limitations should not be tolled since plaintiffs had prior knowledge or means to discover the facts related to their claims. However, the timeline of what defendants knew and when plaintiffs gained requisite knowledge are factual questions suitable for trial. The court deems it premature to determine the applicability of equitable tolling for claims under the one-year statute of limitations and denies motions to dismiss for assault, battery, harassment, and negligence-based claims on these grounds.
For claims of intentional infliction of emotional distress, fraud by omission, fraudulent concealment, and failure to report, Kentucky's five-year statute of limitations under KRS 413.120 applies. This statute mandates that actions must commence within five years after the cause of action accrues. Claims of intentional infliction of emotional distress and failure to report accrue when the injury occurs. Specific claims from various plaintiffs are noted to be timely filed within five years of the last injury date, without considering tolling during infancy. For instance, claims related to B.L. and F.A., who allege their last acts of sexual assault/abuse occurred in 2009 and 2010 respectively, accrued in 2009 and 2010, with the statute of limitations expiring in 2014 and 2015, respectively.
B.L. and F.A. are entitled to tolling of the statute of limitations under KRS 413.170(a), meaning their claims do not accrue until their eighteenth birthdays. The Court denies motions to dismiss the intentional infliction of emotional distress (IIED) and failure to report claims based on statute of limitations, as relevant information is not evident in their complaints. The Court notes factual issues regarding equitable tolling in failure to report claims, referencing Roman Catholic Diocese of Covington v. Secter, where the Diocese's concealment of abuse obstructed the victim’s ability to discover his cause of action. The court emphasized that a failure to report abuse can constitute concealment under KRS 413.190(2). Whether equitable tolling applies is a factual matter. For fraud claims, the statute of limitations does not begin until the fraud is discovered, necessitating fact-finding regarding the plaintiffs' knowledge and defendants' reporting duties. The Court will not dismiss fraud claims on statute of limitations grounds due to these factual issues. Additionally, federal claims under 20 U.S.C. 1681(a) and 42 U.S.C. 1983 will use Kentucky's one-year statute of limitations for personal injury (KRS 413.140), with accrual and tolling also being factual questions. The Court denies motions to dismiss based on statute of limitations and insufficient pleading.
The Court addresses several key arguments regarding the Plaintiffs' claims.
1. **Childhood Sexual Assault Claims**: The Plaintiffs, excluding E.B., assert claims for "childhood sexual abuse" and "childhood sexual assault" under KRS 413.249 against all Defendants. Betts seeks dismissal of these claims, arguing that KRS 413.249 does not establish a standalone tort but serves solely as a statute of limitations for such claims. The Court agrees, noting that KRS 413.249 defines "childhood sexual assault" and "childhood sexual abuse" to determine the applicable statute of limitations, without creating a separate cause of action. Therefore, the Court will dismiss the Plaintiffs' claims under KRS 413.249.
2. **Kentucky Civil Rights Act Claims**: Metro Government moves to dismiss claims by B.L., A.S., K.W., N.C., and C.F. for age and sex discrimination under KRS 344.040 and KRS 344.070. The Plaintiffs allege coercion to perform sexual acts for benefits in the Explorer Program, which was designed for career education.
- **Age Discrimination**: Claims under KRS 344.040 and KRS 344.070 are limited to individuals aged 40 and over. To succeed, Plaintiffs must demonstrate they were 40+, discharged, qualified for their position, and replaced by a significantly younger person. Since the Plaintiffs were minors at the time of the incidents, they fail to meet the requirements for age discrimination claims.
- **Sex Discrimination**: The Plaintiffs claim quid pro quo sexual harassment under KRS 344.040, which prohibits unlawful practices by employers, including failure to hire. The Court will evaluate these claims in the context of the provided legal standards.
Overall, the Court is poised to dismiss the childhood sexual assault claims and is analyzing the viability of the civil rights claims based on age and sex discrimination.
KRS 344.040 prohibits employers from discriminating against individuals based on race, color, religion, national origin, sex, age (40 or older), disability status, or smoking status, provided the individual adheres to workplace smoking policies. The Kentucky Supreme Court has clarified that this statute protects only those in an employer-employee relationship, as established in Brooks v. Lexington-Fayette Urban Cty. Housing Auth. and further supported by Butler v. Drive Auto. Indus. of Am. Inc. In the present case, the plaintiffs do not assert that discrimination occurred within an employee-employer context or that Metro Government was their employer; therefore, their claims under KRS 344.040 do not provide sufficient grounds for gender discrimination against Metro Government.
KRS 344.070 addresses discrimination in apprenticeship or training programs, prohibiting employers, labor organizations, and joint labor-management committees from discriminating based on race, color, religion, national origin, sex, age (40 or older), or disability in program admissions or employment. For Metro Government to be liable under this section, it must qualify as an employer, labor organization, or joint labor-management committee. Since the plaintiffs have not claimed that Metro Government was their employer or a joint labor-management committee, it would not be subject to KRS 344.070. The term "joint labor-management committee" lacks a specific definition under the Kentucky Civil Rights Act and is interpreted in federal case law to involve both management and labor components.
Employers and unions are held accountable for joint training and apprenticeship programs under Section 2000e-2(d), but this case does not involve a "joint labor-management committee." The Plaintiffs fail to establish that Metro Government qualifies as a "labor organization" as defined by KRS 344.030, which necessitates employee participation in an organization dealing with employers regarding employment terms. The Plaintiffs do not claim to have been employees of Metro Government nor assert that discrimination occurred within an employee-employer relationship, thus their claims for gender discrimination under KRS 344.070 are unsupported.
Regarding Intentional Infliction of Emotional Distress (IIED), all Defendants except Metro Government seek dismissal, arguing that the IIED claims are precluded by other tort claims and inadequately pled. Kentucky law treats IIED as a gap-filler tort, applicable only when other traditional tort claims do not suffice for emotional distress recovery. A plaintiff cannot pursue an IIED claim alongside a negligence claim stemming from the same facts. However, IIED can be pled in the alternative to traditional tort claims. The Plaintiffs allege that Defendants intentionally or recklessly caused severe emotional distress, and despite overlapping facts with traditional tort claims, the assertion that some Defendants may have acted solely to inflict emotional harm allows the IIED claims to survive dismissal at this stage. The Court will permit the IIED claims to proceed, notwithstanding challenges to the sufficiency of the pleadings.
The Boy Scout Defendants contend that the Plaintiffs have not adequately demonstrated the necessary mental state to support their claim of Intentional Infliction of Emotional Distress (IIED). Under Kentucky law, as per the Restatement (Second) of Torts, a defendant is liable for IIED if their extreme and outrageous conduct intentionally or recklessly causes severe emotional distress, and potentially bodily harm. To establish a valid claim for IIED, a plaintiff must prove: 1) the conduct was intentional or reckless, 2) the conduct was outrageous and intolerable, 3) a causal connection exists between the conduct and the emotional distress, and 4) the distress suffered was severe.
The Boy Scout Defendants argue that the Plaintiffs merely make general assertions about the defendants' deliberate actions without providing specific factual support for the alleged mental state. However, the Plaintiffs claim the Defendants acted deliberately or with reckless disregard for their well-being, particularly regarding the administration of the Explorer Program. They allege the Defendants were aware of the risk of sexual molestation, established policies to prevent it, but failed to enforce these policies, leading to violations.
Furthermore, the Boy Scout Defendants assert that the Plaintiffs have not sufficiently alleged conduct that meets the legal threshold of being "outrageous and intolerable." For conduct to qualify as IIED, it must be so extreme that it surpasses all bounds of decency. Examples of conduct that do not meet this standard include mere insults or annoyances. Specific allegations include B.L. being subjected to an intense interrogation about sexual abuse during an Explorer Camp, which caused her significant emotional distress.
Defendants Schmidt and Betts allegedly engaged in verbal abuse and victim shaming of B.L., blaming her for the abuse inflicted by Defendant Schuhmann. During this time, Defendant Flaherty began questioning B.L. Following an interrogation, B.L. claims that Wood and other Defendants forced her to take them to her hotel room, where they searched her belongings and confiscated her phone. K.W. reported to Wood that Betts was abusing her and accuses Wood of involvement in a "sting" operation in 2013 related to Betts. C.F. asserts that Wood was aware of Betts's sexual abuse of F.A. but failed to report it, prompting C.F. to seek a second amended complaint with additional claims against Wood, including assault and harassment. The court permits this amendment, rendering previous dismissal arguments moot regarding C.F.'s allegations.
Regarding the IIED (Intentional Infliction of Emotional Distress) claims, the court finds it premature to dismiss K.W.'s and C.F.'s claims against Wood under Kentucky law, thus denying Wood's motion to dismiss these allegations. While F.A. also claims Wood knew of Betts's abuse and failed to report it, this alone does not sufficiently support an IIED claim. However, F.A.'s assertion that all Defendants concealed allegations of sexual abuse could constitute sufficiently outrageous conduct, leading to the denial of Wood's motion to dismiss F.A.'s IIED claim.
In relation to fraudulent omission and concealment claims, the Boy Scout Defendants and Betts argue that the Plaintiffs have not adequately pleaded their fraud claims, which must adhere to Federal Rule of Civil Procedure 9(b). This rule requires detailed allegations concerning the time, place, and context of any false representations, the fraudulent scheme, the intent of the defendants, and the resulting injury. Although mental states can be alleged generally, they must still be supported by sufficient factual basis to permit an inference of knowledge. Rule 9(b) must be interpreted alongside Rule 8, ensuring that both are applied harmoniously in fraud allegations. Courts have favored a liberal interpretation of Rule 9(b) due to its interplay with Rule 8.
Pleading requirements for fraud claims, particularly those based on omissions, are less stringent when the information is exclusively within the opposing party's knowledge, especially when no discovery has occurred. Plaintiffs allege two types of fraud against all Defendants: fraud by omission and fraudulent concealment. For the fraud by omission claim, the court recognizes that plaintiffs cannot detail specific times or places for omissions, as they pertain to failures to act rather than affirmative misrepresentations. Plaintiffs assert that the Boy Scout Defendants concealed their longstanding awareness of child sexual abuse within the Explorer Program, allegedly keeping this information hidden from scouts and the public. They claim that Defendants had knowledge of the risks posed by police officers involved in the program and that reports of abuse date back to 1920. The Plaintiffs argue that a system was established to track these allegations, and by the time they joined the program, Defendants knew about the dangers posed to minors. They contend that the failure to disclose this history of abuse constituted fraud, influencing their decision to participate in the program. Given the relaxed standards under Rule 9(b) for fraud by omission and the complexities of proving the absence of a fact, the Plaintiffs’ allegations provide a sufficient basis for discovery and inform Defendants of the specific claims against them. The Plaintiffs have identified the fraudulent omissions, the involved Defendants, the reasons for the fraud, and the resulting injuries, thus meeting the pleading requirements under Rule 9(b). Discovery has recently commenced, and only the Defendants have access to additional relevant information.
Plaintiffs' fraudulent-concealment claims require evidence of specific affirmative acts or misrepresentations by Defendants; mere silence is insufficient. The Plaintiffs allege Defendants made material misrepresentations regarding a program's nature and the extent of child sexual abuse but fail to detail the specific acts, such as the time, place, and content of any false representations. As a result, they do not meet the heightened pleading requirements of Rule 9(b) for fraudulent concealment, which mandates specific factual allegations rather than general assertions about past knowledge or non-compliance with reporting obligations. Consequently, Defendants' motions to dismiss the fraudulent-concealment claims are granted, while the motions regarding fraud by omission are denied. The Court allows Plaintiffs to amend their complaint to address deficiencies in their fraud claims, as no party will be prejudiced, and discovery is still in its early stages. Plaintiffs must file any amendments within 20 days of the order.
Regarding the claims under 42 U.S.C. § 1983, Betts contends that Plaintiffs have not adequately pled these claims as they fail to identify a constitutional provision or statute that secures their claimed rights. To establish a claim under § 1983, a plaintiff must demonstrate a violation of a constitutional right and that the violation was committed by someone acting under state law. If any essential element of a § 1983 claim is not adequately shown, the claim will fail. Since § 1983 does not itself confer substantive rights but allows for the enforcement of rights granted elsewhere, the Court’s primary task is to pinpoint the specific rights allegedly violated, recognizing that merely asserting claims under various constitutional provisions does not suffice to guide the Court's inquiry.
The critical question in this legal context is whether the claims made by the plaintiffs are rooted in clearly established constitutional rights. The plaintiffs assert violations of their rights under the Fourteenth Amendment and potentially other constitutional amendments, as well as the Kentucky Constitution. They specifically claim deprivations of rights including privacy, personal integrity, protection from unwanted physical contact, physical assault, and sexual contact, as outlined in multiple complaints.
The Due Process Clause of the Fourteenth Amendment prohibits certain government actions, irrespective of procedural fairness. The Sixth Circuit recognizes two types of substantive due process claims: 1) those asserting denial of a constitutional or federal statutory right, and 2) those challenging official acts that are impermissible regardless of procedural safeguards. The plaintiffs argue their claims fall into the second category, which does not necessitate a violation of a specific constitutional guarantee outside the Due Process Clause. This category encompasses a substantive due process right to bodily integrity.
Significantly, the right to not be subjected to sexual assault by law enforcement is emphasized as fundamental and deeply protected under the Due Process Clause. The Supreme Court has long upheld that individuals possess a sacred right to control their own bodies, free from unwarranted interference. The Sixth Circuit has noted that sexual abuse represents a severe abuse of governmental power, constituting a profound infringement on personal liberty and personhood.
The 'right to bodily integrity' includes the right to be free from sexual assault by state actors, which is viewed as a violation of fundamental liberty and lacks any social value, thus not constitutionally permissible under the Due Process Clause. The case Doe v. Claiborne County established that sexual abuse by a teacher constituted a substantive due process violation. Plaintiffs have alleged a violation of their Fourteenth Amendment rights regarding sexual abuse. Betts contends that the claims fail due to a lack of evidence of malicious intent or conduct that "shocks the conscience." However, the determination of whether Betts’ actions meet this threshold involves factual issues not suitable for dismissal at this stage. The court denies Betts's motion to dismiss based on these claims.
Regarding qualified immunity, defendants Flaherty, Schmidt, Paris, Scott, and Gelhausen seek dismissal on these grounds. However, it is typically inappropriate for a district court to grant a motion to dismiss based on qualified immunity at this early stage, as such defenses are usually better resolved at summary judgment. There is no heightened standard for plaintiffs to meet to survive a qualified immunity motion to dismiss; the standard remains that of plausibility as established in Iqbal. Even though qualified immunity protects defendants from litigation burdens, the fact-intensive nature of this defense complicates claims for dismissal without discovery. Qualified official immunity applies to public officers performing discretionary acts in good faith and within their authority.
An officer or employee cannot claim immunity from tort liability for negligent performance of a ministerial act, which involves merely following orders or executing a specific act based on established facts. Qualified immunity hinges on the function performed and the official's good faith. If an official violates clearly established rights that they should have known about, they are not protected by qualified immunity. Supervision and training activities are typically considered discretionary functions, and the determination of good or bad faith in these acts influences qualified immunity under Kentucky law. Bad faith may be indicated by a violation of clearly established rights or a malicious intent to harm. The plaintiffs' claims survive at this stage because they have alleged facts sufficient to support a plausible claim, asserting that the defendants failed to report sexual abuse and conspired to cover it up. The determination of the defendants' good or bad faith is a factual question, preventing a conclusion on qualified immunity at this stage.
Regarding sovereign immunity, the Metro Government argues that the plaintiffs' state law claims, except for those under the Kentucky Civil Rights Act, should be dismissed based on this doctrine. Under Kentucky law, county governments enjoy sovereign immunity as they are considered arms of the state government. Without explicit statutory waiver, Metro Government is entitled to sovereign immunity and cannot be held vicariously liable for the ministerial acts of its employees.
In *Cordle v. Clark*, the court examined issues surrounding the waiver of sovereign immunity in relation to discovery and state law claims. Plaintiffs contended that an implied waiver of immunity could arise from various documents produced during discovery, specifically referencing LMPD contracts and policies. They cited *Lexington-Fayette Urban County Government v. Smolcic* to support their argument that legislative waivers do not need to be explicit, and that local governments may be granted authority to waive immunity. Conversely, Metro Government argued that any waiver must be explicitly stated in statute, referencing *Withers v. University of Kentucky* and *Jewish Hospital*, which emphasize the necessity of clear language or overwhelming implications for waiver to be recognized. The court found that plaintiffs did not present statutory evidence of waiver, resulting in the dismissal of all state law claims against Metro Government, except for claims under the Kentucky Civil Rights Act.
Regarding official capacity claims against Metro Government officers, the court noted that plaintiffs did not contest the dismissal as long as Metro Government remained a party, and pointed out that claims against officials in their official capacities are treated as claims against the government agency itself. Consequently, claims against the specified officers were dismissed.
On the issue of failure to report child abuse claims against Defendant Betts, the court ruled that no private right of action exists under KRS 620.030 or KRS 620.040, meaning Betts owed no duty to the plaintiffs. This led to the dismissal of claims related to failure to report, as well as allegations of fraud by omission and fraudulent concealment, due to insufficient pleading. Betts supported his position with precedent from *Compton v. City of Harrodsburg*.
The Kentucky Supreme Court determined that no private right of action exists for the statutory duty to report child abuse under KRS 620.030. However, this position was modified in Compton v. City of Harrodsburg, where the court indicated it would recognize a claim under KRS 446.070 for violations of KRS 620.030. The court allowed a minor, alleging sexual abuse by a police officer, to proceed with a claim under this statute, which permits recovery for injuries caused by a statutory violation if the injured party falls within the class intended to be protected by that statute. Additionally, the arguments presented by Betts regarding a lack of duty linked to fraud claims were dismissed as incorrect.
Regarding claims of hostile educational environment and sex discrimination brought against Metro Government and the Boy Scout Defendants, the statute of limitations was not decided, and the claims against the Boy Scout Defendants were voluntarily dismissed, rendering related arguments moot. Each Plaintiff also asserted Title VII claims against Metro Government, which are not applicable to other Defendants. The court noted that for Title VII claims to be valid in federal court, Plaintiffs must have filed timely charges with the EEOC and acted upon its statutory notices. The Plaintiffs acknowledged that these claims were not raised with the EEOC, thus affecting the court's jurisdiction over the matter.
The Court will dismiss claims against Metro Government. BSA and LHC assert that Judge Cunningham's December 28, 2017 Order, which dismissed C.F.'s state-law claims against them, is binding in this case. Despite the dismissal, C.F. was later granted leave to file an amended complaint on March 28, 2018, asserting the same claims. The parties did not receive notification of the December Order until May 2018, leading to disputes about its validity. Federal law governs proceedings after a case is removed to federal court, overriding state court orders. Judge Cunningham's December Order was deemed final and required C.F. to appeal by February 7, 2018; since this was not done, the claims against BSA and LHC became unappealable by February 8, 2018. Although C.F. filed a motion for leave to amend the complaint, no service was issued for BSA and LHC after their dismissal, indicating they were not intended to be reintroduced to the case. The reasoning behind Judge Cunningham's decision to grant the amendment is unclear, and the case was removed before the parties could seek clarification. According to res judicata principles, a final judgment precludes relitigation of issues that could have been raised in the initial action.
Claim preclusion prohibits a party from re-litigating a previously adjudicated cause of action, thereby barring a new lawsuit on the same grounds. For claim preclusion to apply, three elements must be met: (1) identity of the parties, (2) identity of the causes of action, and (3) resolution of the action on its merits. In this case, C.F.'s claims against BSA and LHC were dismissed by Judge Cunningham on December 28, 2017, without appeal from C.F., satisfying the first two elements since both the parties and claims are identical in his original and amended complaints. The dismissal was also a final judgment on the merits, as defined under Kentucky law. Consequently, res judicata bars C.F. from reasserting these claims, leading the court to modify Judge Cunningham's March 2018 Order to exclude the dismissed state-law claims from C.F.'s amended complaint.
Additionally, K. Betts filed a motion to dismiss N.C.'s case under Federal Rule of Civil Procedure 41(b) due to violations of a Kentucky state court order sealing the case. Betts alleges that N.C.'s former counsel improperly disseminated the complaint's contents between the sealing on March 9, 2017, and the unsealing on April 10, 2017. Betts, who faced criminal charges following this period, argues that the dissemination was willful and in bad faith, referencing news articles from that timeframe. The court must consider several factors before dismissing for noncompliance, including the duration of the failure, whether the plaintiff was warned of potential dismissal, possible prejudice to the defendants, the balance between docket management and fair hearing interests, and whether less severe sanctions were considered. Although the public dissemination may warrant sanctions, there is insufficient evidence to determine the exact timing of the dissemination relative to the sealing, and it appears N.C. was not adequately warned about the dismissal consequences.
Betts was indicted in Jefferson Circuit Court shortly after N.C. filed a case, which was part of the public record, and the case was sealed only one month before the seal was lifted. The court concluded that even if all factors favored Betts, the prejudice he claimed did not justify dismissing N.C.'s case. Consequently, Betts's motion to dismiss under Fed. R. Civ. P. 41(b) was denied.
Regarding K.W.'s negligence claim, Betts argued it should be dismissed because it conflicted with the intentional tort of battery. However, under Federal Rule of Civil Procedure 8(d)(2), parties may plead alternative theories of relief, allowing for the sufficiency of any one claim. Therefore, Betts's motion to dismiss K.W.'s negligence claim was also denied.
C.F. sought to amend his complaint to include claims against Defendant Wood for assault, sexual assault, harassment, and battery. Rule 15(a) of the Federal Rules of Civil Procedure favors granting leave to amend when justice requires. The Sixth Circuit supports a liberal amendment policy to ensure cases are tried on their merits. The court assesses factors like undue delay, lack of notice to the opposing party, bad faith, repeated failures to cure deficiencies, undue prejudice, and futility of amendment. A proposed amendment is considered futile if it wouldn't survive a Rule 12(b)(6) motion to dismiss.
C.F. explained his delay in filing due to repressed memories and fear of implicating Wood. Wood was already a defendant in the suit, albeit not for sexual assault, and there appeared to be no bad faith in C.F.'s amendment attempt. Thus, the court's discretion would guide the decision on whether to allow the amendment.
C.F. is permitted to amend his complaint without undue prejudice to Wood, as no discovery had commenced at the time of the request. The court grants C.F.'s motion to file a second amended complaint but dismisses certain claims within it that have been previously deemed futile.
In the conclusions, the court orders the following motions regarding dismissals:
1. Wood's Motion to Dismiss is denied.
2. The City of Louisville/Jefferson County's Motion to Dismiss is partially granted concerning B.L.'s claims for violation of 42 U.S.C. 2000(e)2(a), 42 U.S.C. 2000(e)2(d), state law claims, and official capacity claims against certain defendants, but denied on other grounds.
3. Kenneth Betts' Motion to Dismiss is partially granted regarding B.L.'s official capacity claim, fraudulent concealment claim, and childhood sexual assault claim, but denied on other grounds.
4. Julie Schmidt's and Curtis Flaherty's Motions to Dismiss are denied.
5. The Boy Scouts of America's Motion to Dismiss is partially granted concerning B.L.'s fraudulent concealment claim but denied on other grounds.
6. Matthew Gelhausen's Motion to Dismiss is denied.
7. Bradley Schuhmann's Sealed Motion to Dismiss is denied.
8. The City of Louisville/Jefferson County's Sealed Motion to Dismiss is partially granted concerning A.S.'s claims similar to those of B.L. but denied on other grounds.
9. Kenneth Betts' Motion to Dismiss is partially granted regarding A.S.'s official capacity claim and fraudulent concealment claim, but denied on other grounds.
10. The Boy Scouts of America’s Motion regarding A.S. is partially granted concerning the fraudulent concealment claim but denied on other grounds.
11. Curtis Flaherty's Motion to Dismiss is denied.
12. Brandon Wood's Motion to Dismiss is denied.
13. The City of Louisville/Jefferson County's Motion concerning KW. is partially granted regarding specific claims but denied on other grounds.
The court granted in part and denied in part several motions to dismiss by various defendants regarding claims by multiple plaintiffs. Specifically:
- Defendant Kenneth Betts' motion [DE 81] is granted for Plaintiff K.W.'s official capacity and fraudulent concealment claims, but denied on other grounds.
- Defendant Julie Schmidt's motion [DE 82] is denied.
- Defendant Paul Brandon Paris' motion [DE 83] is denied.
- The motion by Boy Scouts of America and related entities [DE 84] is granted for Plaintiff K.W.'s fraudulent concealment claim but denied on other grounds.
- Defendant Curtis Flaherty's motion [DE 85] is denied.
- Defendant Brandon Wood's motion [DE 104] is denied.
- The City of Louisville's motion [DE 105] is granted for Plaintiff N.C.'s claims under 42 U.S.C. and state law, as well as official capacity claims against specific individuals, but denied on other grounds.
- The Boy Scouts of America motion [DE 106] is granted for Plaintiff N.C.'s fraudulent concealment claim but denied on other grounds.
- Kenneth Betts' motion [DE 107] is granted for Plaintiff N.C.'s official capacity and fraudulent concealment claims but denied on other grounds.
- Curtis Flaherty's motion [DE 108] is denied.
- The City of Louisville's motion [DE 135] is granted for Plaintiff E.B.'s state law and official capacity claims against certain individuals, but denied on other grounds.
- The Boy Scouts' motion [DE 136] is granted for Plaintiff E.B.'s fraudulent concealment claim but denied on other grounds.
- Kenneth Betts' motion [DE 139] is granted for Plaintiff E.B.'s official capacity and fraudulent concealment claims but denied on other grounds.
- Curtis Flaherty's motion [DE 140] is denied.
- Brandon Wood's motion [DE 161] is denied.
- The City of Louisville's motion [DE 162] is granted for Plaintiff F.A.'s state law and official capacity claims against specific individuals but denied on other grounds.
- Kenneth Betts' motion [DE 163] is granted for Plaintiff F.A.'s official capacity and fraudulent concealment claims but denied on other grounds.
- Curtis Flaherty's motion [DE 166] is denied.
- The final motion by the Boy Scouts [DE 167] is not detailed in the excerpt.
Overall, many motions to dismiss were denied, while several claims were dismissed against specific defendants, particularly regarding official capacity and fraudulent concealment claims.
Learning for Life, and Learning for Life Lincoln Chapter, Inc. is partially granted regarding Plaintiff F.A.'s fraudulent concealment claim while all other claims are denied. Defendant Casey Scott's Motion to Dismiss is denied. The City of Louisville/Jefferson County's Motion to Dismiss is granted in part concerning claims under 42 U.S.C. 2000(e)(2)(a) and (d), as well as certain state law claims and official capacity claims against specific defendants, but denied on other grounds. The same defendants' Motion to Dismiss regarding Plaintiff C.F.'s fraudulent concealment claim is also partially granted. The Boy Scouts of America and Lincoln Heritage Council's Motion to Dismiss is fully granted, resulting in their dismissal from C.F.'s case. Brandon Wood's Motion to Dismiss is denied. Kenneth Betts' Motion to Dismiss is partially granted against C.F.'s official capacity and fraudulent concealment claims, with other claims denied. Plaintiff C.F. is permitted to file a Second Amended Complaint within 20 days, conforming to previous rulings. Several counts of Childhood Sexual Assault and Abuse against various plaintiffs are dismissed. Plaintiffs are granted leave to file amended complaints within 20 days that meet the pleading requirements of Federal Rule of Civil Procedure 9. The court clarifies that KRS 413.249 does not differentiate between "non-perpetrators" and "perpetrators" of sexual assault, defining "childhood sexual assault" solely for statute of limitations purposes without using the term "perpetrator."
The Kentucky Court of Appeals has addressed the interpretation of statutes under Kentucky law, emphasizing that statutes should be liberally construed to fulfill legislative intent. Clear statutory language is paramount, and courts should not speculate on unexpressed intentions. Literal interpretation is favored unless ambiguity exists, in which case the plain meaning of the statute prevails. Contextual reading of the entire act is essential, recognizing that omissions can be as significant as included language.
Human trafficking is defined as engaging individuals in forced labor or coerced commercial sexual activities, with specific provisions for minors. Statements made in dicta, as well as unpublished decisions, do not bind Kentucky courts. Regarding statutes of limitation, a specific statute prevails over a general one when conflicts arise. In the case of N.C., the five-year limitation had not expired at the time of filing suit on March 8, 2017, as the last alleged act occurred in 2013. B.L.'s claims, however, were time-barred since the last act of abuse was in 2009, and the limitation expired in 2014. Claims against Metro Louisville will be dismissed based on sovereign immunity. While Kentucky law governs the statute of limitations for civil rights actions under 42 U.S.C. § 1983, federal law determines when the statute begins to run, typically applying the "discovery rule" for claims accrual.
The statute of limitations for a plaintiff's action begins when they know or should have known of the injury forming the basis of their claim, as established in Sharpe v. 319 F.3d 266, following the precedent set by Sevier v. Turner. A plaintiff is considered to have reason to know of their injury through the exercise of reasonable diligence. The discovery accrual rule states that the limitation period starts upon the discovery of the injury itself, not the legality of that injury, as affirmed in Rotella v. Wood and Amini v. Oberlin College. For plaintiffs to hold unnamed defendants liable under the ten-year statute of limitations in KRS 413.249(2), they must assert specific claims against those defendants related to activities enumerated in KRS 413.249. Kentucky courts interpret KRS Chapter 344's civil rights provisions in alignment with federal anti-discrimination laws, as noted in cases like Williams v. Wal-Mart Stores, Inc.
The Kentucky Civil Rights Act (KCRA) defines "employer" and prohibits discrimination in employment based on race, color, religion, sex, or national origin, mirroring federal law. While the KCRA's provisions are similar to federal statutes, the term "joint labor-management committee" is not defined. Furthermore, Section 1983 does not apply to violations of state law or state constitutional violations unless they also violate federal constitutional rights. Kentucky's legislature has waived sovereign immunity for claims under KRS 344.040, meaning it does not apply to those claims. The Metro Government did not challenge the plaintiffs’ federal claims on sovereign immunity grounds, and a Title IX claim included in the first amended complaint against BSA and LHC was voluntarily dismissed.
