# Chick v. Taylor County Fiscal Court

> District Court, W.D. Kentucky · January 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10792141

## Case

- **Court:** District Court, W.D. Kentucky
- **Decided:** January 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10792141

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:24-CV-00067-GNS

AVERY JASPAR CHICK PLAINTIFF

v.

TAYLOR COUNTY FISCAL COURT et al. DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss (DN 4). The motion is
ripe for adjudication.
I. BACKGROUND
On or about April 29, 2023, Plaintiff Avery Jaspar Chick (“Chick”) was arrested on
criminal charges and detained at the Taylor County Jail. (Compl. ¶¶ 7-8). Chick alleges that
during the intake process at the jail, he was verbally harassed and mistreated by two employees
identified as Unknown Defendants No. 1 and 2. (Compl. ¶¶ 9-16).
Chick filed this action alleging federal and state law claims against Defendants: Taylor
County Fiscal Court (“Fiscal Court”); Taylor County Jailer Hack Marcum (“Marcum”);1 and
Unknown Defendants No. 1 and No. 2 in their individual and official capacities. (Compl. ¶¶ 2-

1 Chick does not specify in what capacity Marcum is being sued. The Complaint suggests that
Marcum is being sued only in his official capacity as Jailer and fails to provide sufficient notice
of any claim being asserted against him in his individual capacity. (Compl. ¶ 3). Accordingly,
the Court will construe any claim against Marcum as an official capacity claim. See Carmack v.
Trombley, 363 F. Supp. 2d 904, 907 (E.D. Mich. 2005) (“This Court must assume that Defendant
Trombley is being sued in his official capacity unless the Complaint gives Trombley sufficient
notice of being sued in his individual capacity.” (citing Wells v. Brown, 891 F.2d 591, 593 (6th
Cir. 1989))).
4). Chick has asserted federal claims under 42 U.S.C. § 1983 and 18 U.S.C. § 241, and state law
claims of intentional infliction of emotional distress (“IIED”) and negligent infliction of
emotional distress (“NIED”). Defendants have moved to dismiss all claims pursuant to Fed. R.
Civ. P. 12(b)(6).
II. STANDARD OF REVIEW

To survive dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted) (citation omitted). A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. When considering a motion to dismiss, a court must “accept all the
Plaintiff’s factual allegations as true and construe the complaint in the light most favorable to the
Plaintiff[].” Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005)
(citation omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the

elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation
marks omitted) (citation omitted).
III. DISCUSSION
A. Real Party in Interest
As a preliminary matter, Defendants seek dismissal of claims as being duplicative
because the real party in interest of the claims against the Fiscal Court and any official capacity
claims against Individual Defendants is Taylor County. (Defs.’ Mem. Supp. Mot. Dismiss 4-5,
DN 4-1). Chick does not address this issue in his response.
It is well-established under Kentucky law that a fiscal court is the legislative body for a
county. See C & H Ent., Inc. v. Jefferson Cnty. Fiscal Ct., 169 F.3d 1023, 1024 (6th Cir. 1999)
(“In Kentucky, ‘fiscal courts’ are local legislative bodies that govern counties.” (citing KRS
65.410(1))). As a sister court has explained:
Official-capacity suits “ ‘generally represent only another way of pleading an
action against an entity of which an officer is an agent.’ As long as the
government entity receives notice and an opportunity to respond, an official-
capacity suit is, in all respects other than name, to be treated as a suit against the
entity.” As a result, when a § 1983 complaint asserts a claim against a municipal
entity and a municipal official in his or her official capacity, federal courts will
dismiss the official-capacity claim.

Thorpe ex rel. D.T. v. Breathitt Cnty. Bd. of Educ., 932 F. Supp. 2d 799, 802 (E.D. Ky. 2013)
(internal citations omitted) (citations omitted); see also Webb v. Jessamine Cnty. Fiscal Ct., 802
F. Supp. 2d 870, 887 (E.D. Ky. 2011) (“[B]ecause Plaintiff’s claims against the Jessamine
County Fiscal Court and the individual defendants in their official capacities allege wrongful
operation of the jail, they are claims against the Defendant Jessamine County Fiscal Court and
any immunity belonging to the county will also be enjoyed by the individual defendants in their
official capacity.”). Thus, all official capacity claims asserted in this action against Individual
Defendants are actually claims against Taylor County.
In seeking dismissal on this basis, however, Defendants fail to acknowledge that Taylor
County is not a defendant in this action, so these claims are not duplicative of a named party
even though Taylor County is the real party in interest. See Foster v. Michigan, 573 F. App’x
377, 390 (6th Cir. 2014) (“Where the entity is named as a defendant, an official-capacity claim is
redundant.”); Faith Baptist Church v. Waterford Twp., 522 F. App’x 322, 328 (6th Cir. 2013)
(“Plaintiffs’ claims against Bedell in his official capacity were properly dismissed because they
were in actuality claims against the Township of Waterford, which is itself a defendant.”).
Accordingly, these claims will not be dismissed on this basis.
B. Federal Claims2
1. 42 U.S.C. § 1983
In the Complaint, Chick asserts a Section 1983 against the Fiscal Court and Marcum for

negligent hiring, training, and supervision. (Compl. ¶¶ 16-20).
To establish municipal liability for a constitutional violation under Monell v. Department
of Social Services of City of New York, 436 U.S. 658 (1978), a plaintiff “must (1) identify the
municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his
particular injury was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802,
815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
“Monell is a case about responsibility.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478
(1986). “The official policy requirement was intended to distinguish acts of the municipality
from acts of employees of the municipality, and thereby make clear that municipal liability is

limited to action for which the municipality is actually responsible.” Id. at 479-80 (internal
quotation marks omitted). As alleged in the Complaint, Chick seeks to impose liability against
the Fiscal Court based on negligent training, supervision, and hiring. (Compl. ¶¶ 16-20).
a. Negligent Training & Supervision
As to negligent training and supervision, a plaintiff may show the existence of an illegal
policy or custom by showing “(1) the existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a custom of

2 Chick’s response does not address his federal claims.
tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478
(6th Cir. 2013) (citation omitted). Because “[l]iability for unconstitutionally inadequate
supervision [] [] is treated, for all intents and purposes, as a failure to train,” it will only be
addressed as a negligent training claim. Okolo v. Metro. Gov’t of Nashville, 892 F. Supp. 2d
931, 943 (M.D. Tenn. 2012).

For a failure to train claim a plaintiff must show: “(1) that a training program is
inadequate to the tasks that the officers must perform; (2) that the inadequacy is the result of the
[municipality]’s deliberate indifference; and (3) that the inadequacy is closely related to or
actually caused the plaintiff’s injury.” Plinton v. Cnty. of Summit, 540 F.3d 459, 464 (6th Cir.
2008) (internal quotation marks omitted) (quoting Hill v. McIntrye, 884 F.2d 271, 275 (6th Cir.
1989)). “The inadequacy of police training only serves as a basis for § 1983 liability ‘where the
failure to train amounts to deliberate indifference to the rights of persons with whom the police
come into contact.’” Slusher v. Carson, 540 F.3d 449, 457 (6th Cir. 2008) (citation omitted).
“‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51,
61 (2011). To meet this standard, a plaintiff must ordinarily show “prior instances of
unconstitutional conduct demonstrating that the County has ignored a history of abuse and was
clearly on notice that the training in this particular area was deficient and likely to cause injury.”
Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005). “A showing of simple or even heightened
negligence will not suffice. . . . [T]he risk of a constitutional violation arising as a result of the
inadequacies in the municipal policy must be plainly obvious.” Stemler v. City of Florence, 126
F.3d 856, 865 (6th Cir. 1997) (internal quotation marks omitted) (internal citation omitted)
(citing Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 411 (1997)).
In the Complaint, Chick has not articulated how the Fiscal Court or Marcum failed to
train jail employees or how this training was more than mere negligence as required for a Section
1983 claim. There are no facts alleged relating to prior instances of unconstitutional conduct that
would have put the Fiscal Court or Marcum on notice, or that the Fiscal Court or Marcum
ignored those instances of unconstitutional conduct as required to show deliberate indifference.

Finally, Chick has not made any plausible allegation that a constitutional violation was
substantially certain to result from or caused by the negligent training of the Fiscal Court or
Marcum. See Edwards v. Univ. of Dayton, 142 F. Supp. 3d 605, 608 (S.D. Ohio Sept. 15, 2015)
(“It is well settled law that rudeness, ‘[v]erbal harassment or idle threats by a state actor do not
create a constitutional violation and are insufficient to support a section 1983 claim for relief.’”
(alteration in original) (quoting Wingo v. Tenn. Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir.
2012))). Accordingly, Chick has failed to allege a plausible claim, and the Section 1983 claim
based on negligent training or supervision is dismissed.
b. Negligent Hiring

For there to be any Monell liability against the Fiscal Court or Marcum in his official
capacity for negligently hiring Unknown Defendants Nos. 1 and 2, Chick “must show that
adequate scrutiny of [the employee’s] background would have led a reasonable policymaker to
conclude that the plainly obvious consequence of hiring [the employee] would be the deprivation
of a constitutional right.” Okolo, 892 F. Supp. 2d at 943 (citing Brown, 520 U.S. at 411). There
must also be deliberate indifference by the municipality. See id.
Other than alleging that Fiscal Court or Marcum was negligent in failing to exercise
ordinary care in hiring Unknown Defendants Nos. 1 and 2, Chick has not made factual
allegations to support such a claim based on the standards outlined above. Likewise, there are
facts alleged as to deliberate indifference relating to their hiring. Thus, the Fiscal Court and
Marcum are entitled to dismissal of this claim.
2. 18 U.S.C. § 241
Defendants also seek dismissal of Chick’s claim asserted pursuant to 18 U.S.C. § 241.
(Defs.’ Mem. Supp. Mot. Dismiss 17-18). This is a criminal statute and does not give rise to a

private civil cause of action. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“Like
substantive federal law itself, private rights of action to enforce federal law must be created by
Congress.” (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979))). “Where a
statute does not include this sort of explicit ‘right– or duty-creating language,’ we rarely impute
to Congress an intent to create a private right of action.” Gonzaga Univ. v. Doe, 536 U.S. 273,
284 n.3 (2002) (citations omitted). The Sixth Circuit has expressly held 18 U.S.C. § 241 does
not create a private cause of action. See United States v. Oguaju, 76 F. App’x 579, 581 (6th Cir.
2003) (citation omitted). Accordingly, Chick has failed to state a claim under this statute.
. C. State Law Claims

1. Fiscal Court & Official Capacity Claims
Defendants seek dismissal of the state law claims against the Fiscal Court and Individual
Defendants sued in their official capacities based on sovereign immunity. (Defs.’ Mem. Supp.
Mot. Dismiss 5-7). As noted above, these claims are actually against Taylor County—the real
party in interest. (Defs.’ Mem. Supp. Mot. Dismiss 4-5). Chick asserts that Taylor County has
waived sovereign immunity to the extent that it has purchased liability insurance. (Pl.’s Resp.
Defs.’ Mot. Dismiss 1-2, DN 10).
As the Kentucky Supreme Court has explained, “[s]overeign immunity is a bedrock
component of the American governmental ideal, and is a holdover from the earliest days of the
Commonwealth, having been brought over from the English common law.” Caneyville
Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009).
While sovereign immunity is generally viewed as barring claims against a state, Kentucky’s
highest court has held that “[a] county being but an arm or branch of the state government, it is
no more liable to be sued for the neglect or tort of its officers than the state is for that of those in

authority in it. The common law gives no such right, and it, therefore, can only exist by statute.”
Downing v. Mason Cnty., 8 S.W. 264, 265 (Ky. 1888). Sovereign immunity precludes state law
claims for both intentional and unintentional torts. See Calvert Invs., Inc. v. Louisville &
Jefferson Cnty. Metro. Sewer Dist., 805 S.W.2d 133, 139 (Ky. 1991) (“[T]he Kentucky
Constitution make[s] no distinction between intentional and unintentional torts. Therefore we
are not free to make any such distinction. A wrong is a wrong, whether intentionally or
negligently committed, but unless our Constitution is changed the sovereign state cannot be held
liable in a court of law for either intentional or unintentional torts committed by its agents.”).
While Chick asserts that Taylor County’s purchase of liability insurance is a waiver of

sovereignty immunity, “[t]he waiver of sovereign immunity is exclusively a legislative matter.”
Indep. Bank v. Welch, 636 S.W.3d 528, 532 (Ky. 2021) (citing Withers v. Univ. of Ky., 939
S.W.2d 340, 344 (Ky. 1997)). A court “will find waiver only where stated by the most express
language or by such overwhelming implications from the text as [will] leave no room for any
other reasonable construction.” Withers, 939 S.W.2d at 346 (alteration in original) (internal
quotation marks omitted) (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)). Contrary to
Chick’s contention, it is long been established that a county’s purchase of liability insurance does
not constitute a waiver of sovereign immunity under Kentucky law. See Ezell v. Christian Cnty.,
245 F.3d 853, 855 (6th Cir. 2001) (“[T]he Kentucky Supreme Court has held that the purchase of
liability insurance, without more, cannot abrogate a county’s sovereign immunity.” (citing
Franklin Cnty. v. Malone, 957 S.W.2d 195, 203 (Ky. 1997))). Accordingly, the state law claims
against Taylor County Fiscal Court and Individual Defendants sued in their official capacities are
dismissed.3
2. Individual Defendants

Finally, Defendants seek dismissal of the state law claims asserted against Unknown
Defendants No. 1 and 2 to the extent they are sued in their individual capacities. (Defs.’ Mem.
Supp. Mot. Dismiss 12-17).
a. IIED
To establish a claim for IIED under Kentucky law:
1) the wrongdoer’s conduct must be intentional or reckless; 2) the conduct must
be outrageous and intolerable in that it offends against the generally accepted
standards of decency and morality; 3) there must be a causal connection between
the wrongdoer’s conduct and the emotional distress; and 4) the emotional distress
must be severe.

Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004) (citing Humana of Ky., Inc. v.
Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990)), overruled on other grounds by Toler v. Sud-Chemie, Inc.,
458 S.W.3d 276 (Ky. 2014). To state a claim, the alleged conduct must be “a deviation from all
reasonable bounds of decency and is utterly intolerable in a civilized community.” Craft v. Rice,
671 S.W.2d 247, 250 (Ky. 1984). The actions taken by the defendant must have been alleged to
have “been so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Seitz, 796 S.W.2d at 3 (quoting Restatement (Second) of Torts § 46 cmt. d).

3 In his response, Chick asserts that qualified official immunity does not bar his individual
capacity claims against Individual Defendants, but Defendants did not raise that defense in their
motion. (Pl.’s Resp. Defs.’ Mot. Dismiss 2-4).
In the Complaint, Chick merely makes a formulaic recitation of the elements of an IIED
claim without sufficient detail. (Compl. ¶¶ 21-23). This claim is asserted against all Defendants,
and the Complaint fails to specifically allege how each Defendant acted intentionally or
recklessly to support such a claim for outrageous conduct. Accordingly, Chick has failed to state
an IIED claim as a matter of law, and this claim is dismissed.

b. NIED
For an NIED claim, a plaintiff must allege the elements of a standard negligence claim,
which include a duty, breach, causation, and damages, as well as a “severe emotional injury.”
Savidge v. Pharm-Save, Inc., No. 3:17-CV-00186-TBR, 2017 WL 5986972, at *11 (W.D. Ky.
Dec. 1, 2017) (citing Osborne v. Keeney, 399 S.W.3d 1, 17-18 (Ky. 2012)). “[A] mere formulaic
recitation of an element of a cause of action is insufficient to state a claim without accompanying
factual allegations.” Id. at *10 (citing Alioto v. Advantage Assocs., Inc., No. 10-14-C, 2011 WL
4435681, at *3 (W.D. Ky. Sept. 22, 2011)); see also Iqbal, 556 U.S. at 678 (“A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will

not do.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))).
While Chick claims that Unknown Defendants No. 1 and 2 were negligent, he has failed
to allege the essential elements of NIED against either one, in particular any specific factual
allegation showing several emotional injury. (Compl. ¶¶ 24-27). Because Chick has failed to
plausibly state an NIED claim, this claim fails as a matter of law and is dismissed.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1. Defendants’ Motion to Dismiss (DN 4) is GRANTED. Plaintiff's claim under 18
U.S.C. § 241 is DISMISSED WITH PREJUDICE, and Plaintiffs claims under 42 U.S.C. §
1983 and state law are DISMISSED WITHOUT PREJUDICE.
2. The Clerk shall strike this matter from the active docket.

PY
Greg N. a Chief Judge
United States District Court
January 31, 2025
ce: counsel of record

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10792141. Public record. Not legal advice.