Appendix — Jones v. Carlisle

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APPENDIX A

OPINIONS BELOW

James Ricky Jones; Vera Jones, AIK Selective Self-In-

surance Fund, vs. City of Carlisle, Kentucky; Preferred

Risk Mutual Insurance Company; Mark Byrd,

No. 92-6103 (United States Court of Appeals

for the Sixth Circuit, August 27, 1993) ................ 3a-l4a

James Ricky Jones; Vera Jones, AIK Selective Self-In-

surance Fund, vs. City of Carlisle, Kentucky, et al.,

Civil Action No 91-516 (United States

District Court Eastern District of

FRSSsCeseeny,, UNIO 1G, TODD) cccercsecncccsscovcsccssnccnsnenves 15a-29a

James Ricky Jones; Vera Jones, AIK Selective Self-In-

surance Fund, vs. City of Carlisle, Kentucky, et al.,

Civil Action No 91-516 (United States

District Court Eastern District of

Kentucky, July 21, 1992) (Order denying

Motion to Alter, Amend or Vacate).............0000+ 3la-33a

James Ricky Jones; Vera Jones, AIK Selective Self-In-

surance Fund, vs. City of Carlisle, Kentucry; Preferred

Risk Mutual Insurance Company; Mark Byrd,

No 92-6103 (United States Court of Appeals

for the Sixth Circuit, October 13, 1993)

(Order denying Petition for Rehearing) .................... 35a

2a

3a

RECOMMENDED FOR FULL TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

NO. 92-6103

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES RICKY JONES; VERA JONES,

Plaintiff-Appellants,

AIK SELECTIVE SELF INSURANCE FUND,

Intervening Plaintiff,

V. ON APPEAL from the United

States District Court for the

Eastern District of Kentucky

CITY OF CARLISLE, KENTUCKY;

PREFERRED RISK MUTUAL

INSURANCE COMPANY; MARK BYRD,

Defendants-Appellees.

Decided and Filed August 27, 1993

Before: GUY and SUHRHEINRICH, Circuit Judges;

and DOWD, District Judge.*

*The Honorable David D. Dowd, Jr., United States District

Judge for the Northern district of Ohio, sitting by designation.

4a

DOWD, District Judge, delivered the opinion of the court.

I.

The appellants, James Ricky Jones (hereafter “Mr.

Jones”) and his wife Vera Jones (hereafter collectively “the

Joneses”) challenge the district court’s dismissal of their

action brought against the City of Carlisle, Kentucky (here-

after “the City”) under 42 U.S.C. § 1983. The Joneses also

challenge the district court’s remand to state court of their

claim against defendant Preferred Risk Mutual Insurance

Company (hereafter “Preferred Risk”) for declaratory relief.

The Joneses claim that the appellee City of Carlisle is

liable pursuant to § 1983 for money damages for the physical

injuries Mr. Jones suffered in the November 13, 1990 auto-

mobile accident cause by Mark Byrd (hereafter “Byrd”), a

private citizen of Kentucky. The Joneses also seek a decla-

ration from the court that they are entitled to $100,000 on

Mr. Jones’ underinsured motorist policy.

The Joneses allege that the City incurred § 1983 liability

for Mr. Jones’ injuries when it allowed Byrd, a known

epileptic prone to uncontrollable seizures, to maintain a

driver's license. The Joneses also challenge Preferred Risk’s

position that under the terms of the underinsured motorist

policy, it does not incur liability until after the policy holder

obtains a judgment against the tort-feasor and the tort-

feasor’s insurance is insufficient to cover the insured’s

judgment:'

The district court dismissed the § 1983 claim against the

City for failure to state a cause of action under Fed. R. Civ. P.

'The Complaint also advanced several state tort claims against

the City and Byrd.

:

ST

’ :

> *

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12(b)(6). The district court found that Byrd was not acting as

the agent of the City at the time of the accident, and that Mr.

Jones, as distinguished from the public at large, was not

placed in special danger as the result of the City’s inaction

and Byrd’s continued activity. Further, the district court

found that no special relationship existed between the City

and Mr. Jones nor between Byrd and Mr. Jones which would

impose upon the City a duty of care owed to Mr. Jones. The

district court remanded the Joneses’ declaratory judgment

claim against Preferred Risk to Nicholas County, Kentucky.

II.

In evaluating the propriety of a dismissal under Rule

12(bX6), this Court must “considerthe pleadings and affidavits

in a light most favorable to the plaintiff.” Welsh v. Gibbs, 631

F.2d 436, 439 (6th Cir. 1980), cert. denied, 450U.S. 981(1981)

(citations omitted). Further, the factual allegations in the

complaint must be treated as true. Collins v. Nagle, 892 F.2d

489, 493 (6th Cir. 1989). To withstanda challenge under Rule

12(b\(6), it must be established beyond a doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-

46 (1957).?

? The Joneses argue that the summary judgment standard

identified in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),

represents the applicable standard of review for the present case

because certain depositions were submitted by them with their

Response Brief. However, the Motions to Dismiss were not trans-

formed into summary judgment motions because the district court

specifically stated that it was granting a Rule 12(bX6) dismissal

and it is apparent from the decision that the district court did not

rely on the outside evidence submitted in rendering its decision.

Atkins v. Louisville and Nashville R. Co., 819 F.2d 644 (6th Cir.

1987). See, e.g., Friedman v. United States, 927 F. 2d 259 (6th Cir.

1991).

6a

The complaint alleges that Mark Byrd is an epileptic

who has suffered from an uncontrolled seizure disorder since

birth. In 1983, Kentucky issued Byrd a driver’s license.

Between 1983 and 1987, Byrd was involved in at least seven

automobile accidents in the City of Carlisle. Each accident

was allegedly caused by Byrd experiencing a seizure while

driving, and each accident resulted in either property dam-

age, personal injury, or both. The City police investigated

each accident; however, no accident report was ever filed. No

citation was ever issued and no law enforcement action was

ever taken against Byrd.

In the accident involving Mr. Jones, Byrd, as in his other

accidents, was operating a motor vehicle when he experi-

enced an epileptic seizure. He lost control of his vehicle,

crossed over the center line into the oncoming lane of traffic,

and struck head-on the motor vehicle operated by Mr. Jones,

who was severely and permanently injured. Byrd was never

cited and no law enforcement action was taken against him

as a result of this accident.

A. Section 1983 Analysis

The Joneses bring the present lawsuit claiming that the

City was aware that Byrd presented a danger to motorists

but took no action to revoke his driver’s license. Under

Kentucky statutes, law enforcement officials are required to

file with the Department of State Police a written report of

any motor vehicle accident resulting in personal injury or

property damage. Ky. Rev. Stat. § 189.635(3). This report

must also be submitted to the Kentucky State Police. Ky.

Rev. Stat. § 189.635. Further, Kentucky will suspend the

license of a driver upon notice from law enforcement officials

that the driver is subject to epileptic seizures. 601 Ky. Admin.

Regs. 13:010.

7a

The Joneses advance three claims under 42 U.S.C. §

1983 against the City. First, they claim that it was the policy

of the City both to fail to report accidents involving individuals

suffering from epileptic seizures and to allow Byrd, a known

epileptic prone to seizures, to maintain a driver’s license and

operate a motor vehicle. Second, the Joneses claim that the

City’s failure to train and supervise its police has caused the

City Police to be inadequate to the tasks performed by them,

especially as concerns the duty of the police officer as regards

unfit and unsafe operators of motor vehicles. This failure to

train, the Joneses allege, also results in $1983 liability

attaching to the City. Third, the Joneses claim that Mr.

Jones, as a citizen of the United States and of Kentucky, is

entitled to the protection of the laws of both, and that the

City’s actions, policies, or customs deprived Mr. Jones of this

entitlement. The Joneses argue that, absent these policies,

individual officers would have reported the prior accidents as

required under state law, Byrd’s iicense would have been

revoked, and the accident involving Mr. Jones would never

have occurred.

The Due Process Clause of the Fourteenth Amendment

provides that “[n]o State shall...deprive any person of life,

liberty, or property, without due process of law.” However,

the Due Process Clause does not “protect the life, liberty, and

property of its citizens against invasion by private actors.

The Clause is phrased as a limitation on the State’s power to

act, not as a guarantee of certain minimal levels of safety and

security.” DeShaney v. Winnebago County Soc. Serv. Dept.,489

U.S. 189, 195 (1988).

In DeShaney, a mother and her son brought suit against

@ county agency claiming that it was responsible for the

brutal beating the son received at the hands of his father.

8a

After a divorce, the court had awarded custody of the boy to

his father. On numerous occasions, the boy was brought to

the emergency room with injuries that suggested child abuse.

Further, the defendant agency was made aware of these

suspicious injuries. Nonetheless, the agency took no steps to

protect the boy from his abusive father. The child was

eventually beaten so severely by his father that he suffered

permanent brain damage.

The Court held that the defendant agency did not violate

the son’s due process rights because the boy’s injuries were

caused by a private actor, and that the agency had no control

over the father. The Court noted that the agency did not

cause the injuries and there was no special relationship

between the boy and the agency or between the father and the

agency which would trigger an obligation to take affirmative

action to prevent future abuse. According to the DeShaney

Court, the fact that the defendant agency was aware of the

potential danger was not sufficient to impose a duty to act.

In the earlier case of Martinez v. California, 444 U.S.

277 (1980), the Court held that the state officials were not

liable when a parolee murdered a fifteen year old girl. The

Court found that the officials did not cause the crime, that the

parolee was not acting as an agent of the state, and that the

victim did not face any special danger apart from the rest of

society. =

The Sixth Circuit has also applied the analysis em-

ployedin DeShaney. InJananv. Trammell, 785 F.2d 557 (6th

Cir. 1986), a case filed two years prior to DeShaney, a boy was

murdered by a parolee. The boy’s family brought suit against

the Parole Board claiming that it was aware of the parolee’s

dangerous propensities and had a duty tn» protect society

from him. The court held for the Parole Board, finding no

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duty to protect the victim from the parolee. The court first

noted that the parolee was not a state officer acting under

color of state law. The court then announced the rule to be

applied in the Sixth Circuit regarding injuries suffered and

damages incurred at the hands of private actors:

(T}he proper analysis is whether a special relationship

exists between the criminal and the victim or between

the victim and the state or whether there is some

showing that the victim, as distinguished from the

public at large, faces a special danger by the parolee’s

release. In so holding, we follow other circuits that have

held that absent a special relationship between the

criminal and the victim or the victim and the state, no

due process violation can occur.

Id. at 560 (citations omitted). See also Cornelius v. Town of

Highland Lake, ALA, 880 F.2d 348 (11th Cir. 1989),9

A due process violation was found in Nishiyama v,

Dickson County, Tenn., 814 F.2d 277 (6th Cir. 1987), where

a county prisoner was entrusted with a patrol car for his

private use, absent any supervision. While driving the police

car, the prisoner used the flashing blue light to pull over the

’Here the city was liable for violating a city clerk’s due process

rights when it initiated a work program where prisoners performed

manual labor around the City Hall grounds. On one particular day,

the city clerk was abducted by two of the prisoners working on City

Hall grounds who were not eligible for work release, but were

accidentally allowed to participate. The court held that there wasa

special relationship between the city clerk and the city as she was

obligated to work in the same area where the city had determined it

Further, the court found that the plaintiff clerk faced a special

; danger separate from the remainder of the community because she

; was constantly in contact with the prisoners from the work program.

10a

decedent’s car and then beat her to death. At trial, it was

determined that it was the policy of the Sheriffs Department

to allow the prisoner to drive the car unsupervised. It was

also determined that the Sheriff was aware that the prisoner

had been using the patrol car to pull motwrists off the road for

several hours before the victim was killed but did nothing to

stop this conduct.

The court found a special relationship between the

defendant Sheriffs Department and the prisoner, as the

prisoner was being held in custody, albeit with substantial

privileges. Further, the court noted that, unlike Martinez and

Janan, the defendants put into motion the actions which

eventually caused the victim’s death. The court observed that

“the officers gave [the prisoner] the car and the freedom to

commit the crime.” Jd. at 281 (emphasis in original).

Unlike the defendant in Nishiyama, the City of Carlisle

did not cause plaintiff's injuries; the injuries were caused by

Byrd, a private individual. Byrd was not acting as the agent

of the City, nor was there a special relationship between the

City and Byrd or between the City and Mr. Jones.‘ Further,

while Byrd was a definite danger behind the wheel of a motor

vehicle, he was no more a danger to Mr. Jones than to any

other citizen on the City streets. Finding that the Joneses

*The Joneses argue that DeShaney does not impose upon the

claimant the showing of a special relationship between the City and

the tort-feasor or the City and the claimant. We read DeShaney to

hold that in some circumstances the Constitution imposes upon the

State an affirmative duty of care and protection based upon the

relationships between the State and the parties. However, the

DeShaney Court specifically found that no special relationship

existed between DeShaney and the defendant agency or between the

abusive father and the agency, and affirmed the dismissal of the

petitioners’ § 1983 action on those grounds.

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have failed to establish a special relationship required to

invoke the due process protection of the Fourteenth

Amendment, the district court was correct in granting the

City’s motion to dismiss the Joneses’ § 1983 claim based on

an alleged policy of not submitting accident reports in cases

involving epileptic seizures.

In support of their claim of failure to train, the Joneses

cite Canton v. Harris, 489 U.S. 378 (1989). In Harris, police

officers failed to provide the plaintiff with medical attention

once she was taken into custody. The Court found a due

process violation because of the special relationship that the

plaintiff and the city had based upon the custody of the

plaintiff. However, the Court noted that “a municipality can

be liable under § 1983 (for a failure to train] only where its

policies are the ‘moving force [behind] the constitutional

violation.” Id. at 389 (citation omitted).

As the district court held, the Joneses’ reliance on

Harris is misplaced. It is true that the Supreme Court in

Harris held that a municipality may be liable under § 1983

for failure to train or supervise law enforcement officials

where such failure constitutes “deliberate indifference” to

the rights of an individual. However, the analysis of a §1983

failure to train claim does not stop there. As the Harris Court

noted, to prevail, a §1983 plaintiff must demonstrate that the

policy “actually cause{d] injury.” Id. at 390. In Harris, the

plaintiff suffered injury at the hands of a state actor. In

contrast, Mr. Jones’ injuries were caused by a private actor.

While the City did nothing to prevent Byrd from driving, this

inaction was not the “moving force” behind Mr. Jones’ inju-

ries. His injuries were directly caused by the epileptic seizure

Byrd experienced while he was operating his vehicle. As a

result, the Joneses’ § 1983 claim of failure totrain or supervise

was appropriately dismissed by the district court.

12a

The district court also appropriately dismissed the

Joneses’ “entitlement” claim against the City. This claim

that Mr. Jones was entitled to the protection of the laws of the

United States and Kentucky represents nothing more than a

“failure to protect” claim under the Fourteenth Amendment.

As previously noted, the DeShaney Court definitively held

that while the Due Process Clause of the Fourteenth

Amendment prevents a State from depriving individuals of

life, liberty, or property without due process of law, it does not

impose upon the State an affirmative obligation to protect

private individuals from the conduct of other private citizens.

DeShaney, supra at 195.

As the DeShaney Court observed, this type of § 1983

analysis often renders harsh results, especially when inno-

cent individuals suffer injuries while local governments

stand idly by. DeShaney, supra at 203. However, this Court,

like the DeShaney Court, is unable to extend the reach of the

Due Process Clause of the Fourteenth Amendment to cover

common law tort actions between private citizens.

B. Declaratory Judgment Analysis

The Joneses also challenge the district court’s decision

to remand their declaratory judgment action against Pre-

ferred Risk to Nicholas County. In remanding to state court,

the district court noted that it has discretion determining

whether to hear an action for declaratory relief. 28 U.S.C. §

2201. Grand Trunk W. R.R. Co. v. Consolidated Rail Corp., 746

F.2d 323 (6th Cir. 1984).

The Joneses do not challenge the district court’s remand

of their action for declaratory judgment, recognizing the

court’s discretion. Allstate Ins. Co. v. Mercier, 913 F.2d 273

(6th Cir. 1990). However, the Joneses contend that the

13a

district court failed to consider their second cause of action

against Preferred Risk, that being a diversity action for

money damages, arguing that a federal district court should

not refuse to hear a claim where the elements of diversity

jurisdiction have been met. Meredith v. City of Winter Haven,

320 U.S. 228 (1943).

A review of the Complaint reveals that the Joneses did

not plead a cause of action against Preferred Risk separate

and apart from their declaratory judgment claim. While the

Complaint makes reference to the $100,000 insurance the

Joneses allege they are entitled to, the prayer merely seeks

a declaration that they are entitled to that amount. The

reference to the specific amount of $100,000 is made merely

to define the content of the declaration.

The argument that the Joneses advanced two separate

causes of action against Preferred Risk is further belied by

the Joneses’ postjudgment Motion to Alter, Amend, or Vacate

filed with the district court, (Docket Nos. 46, 47). In addition

to objecting to the dismissal of the §1983 claim against the

City, the Joneses challenged the remand of the declaratory

judgment claim without indicating to the district court that

their complaint could be construed to include a diversity

action against Preferred Risk separate and apart from their

declaratory judgment claim.®

° The Joneses filed a supplemental motion in which they

identified a recent Kentucky Supreme Court decision which ex-

panded the rights of insureds to obtain underinsured motorist

coverage in the event that they settle with the tort-feasor. Coots v.

Allstate Ins. Co., 853 S.W.2d 895 (Ky. 1993). The Coots decision has

no bearing on the present action as the claim for damages was never

before the district court.

l4a

The declaratory judgment action against Preferred Risk

was originally filed in district court. It was consequently

improper for the district court to remand it to a state court.

Therefore, the Joneses’ declaratory judgment action is re-

manded to the district court for entry of an order of dismissal

without prejudice.*®

III.

For the reasons stated above, the judgment of the

district court is AFFIRMED IN PART and REMANDED IN

PART for entry of an order consistent with this opinion.

® This Court observes that having disposed of the federal

claims, it was also within the district court’s discretion to dismiss the

remaining pendent state claims against Byrd and the City. Pendent

jurisdiction “is a doctrine of discretion, not of plaintiffs right.”

United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

Eastern District of Kentucky

FILED JUN 12 1992

at Ashland

LESLIE G. WHITMER

Clerk, U.S. District Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 91-516

JAMES RICKY JONES and

VERA JONES, PLAINTIFFS,

AND

AIK SELECTIVE

SELF INSURANCE, INTERVENING PLAINTIFF,

VS.

CITY OF CARLISLE,

KENTUCKY, et. al., DEFENDANTS.

MEMORANDUM OPINION AND ORDER

In November of 1990, a vehicle being operated by defen-

dant Mark Byrd crossed the center line and collided head-on

with a vehicle being operated by plaintiff James Jones, who

was seriously and permanently injured. The accident was

apparently caused because Byrd experienced a seizure while

driving which resulted in Byrd losing control of the vehicle

and crossing over the center line. Byrd is an epileptic who is

subject to uncontrolled seizures. Allegedly, since 1983, Byrd

has been involved in seven automobile accidents in the City

of Carlisle and in Nicholas County, all of which resulted in

some sort of property damage or personal injury, and all of

——_— ee

Seer we ithe RRS

16a

which were caused by the fact that Byrd experienced an

epileptic seizure while driving. Normally, under 601 Ken-

tucky Administrative Regulations 13:010, the Commonwealth

of Kentucky will suspend the license of a driver upon notice

from law enforcement officials that the driver is subject to

epileptic seizures. However, Byrd’s license was never sus-

pended and was valid at the time of the accident that is the

subject of this suit. Plaintiffs allege that the Commonwealth

was not properly informed of Byrd’s epileptic condition be-

cause, though the Carlisle Police Department knew of Byrd’s

many accidents, he was never issued a citation and only on

one occasion was a police report filed. Further, plaintiffs

allege that it was the deliberate policy of the Carlisle Police

Department not to report all of Mark Byrd’s motor vehicles

accidents! and to allow Byrd to operate a motor vehicle even

though it was known that Byrd was an unsafe driver. Plaintiffs

conclude that these actions by the Carlisle Police Department

constitute a deprivation of the liberty of James Jones without

due process of law in violation of the Fourteenth Amend-

ment.?

'Under K.R.S. § 189.635, police officers are required to file

written reports of motor vehicle accidents which render any vehicle

inoperable or cause personal injury.

? Plaintiffs have filed a motion to amend their complaint in

order to allege that the City also violated James Jones’ rights under

the Fifth Amendment. However, the Fifth Amendment is not di-

rected to the states or state entities, but solely to the federal

government. Palkov. Connecticut, 302 U.S. 319,322, 58S.Ct. 149, 82

L.Ed. 288 (1937). Thus, a Fifth Amendment due process claim adds

nothing to a plaintiff's Fourteenth Amendment due process claim

against a state entity. See Popow v. City of Margate, 476 F. Supp.

1237, 1242 n. 2(D.N.J. 1979); Flowers v. Webb, 575 F. Supp. 1450,

1456-1457 (E.D.N.Y. 1983). Forthis reason, the motion to amend the

complaint will be denied.

a nt ee

17a

Plaintiff James Jones has brought this action pursuant

to 42 U.S.C. § 1983 against the City of Carlisle, and seeks

damages for the City’s alleged deprivation of his constitu-

tional rights. Plaintiff Vera Jones, the wife of James, seeks

recovery against the City for loss of consortium. Also, plaintiffs

have advanced pendent tort claims against the City and

against defendant Byrd.

Defendant Preferred Risk Mutual Insurance Co. (Risk

Mutual) sold underinsured motorist coverage tothe plaintiffs

prior to the accident. Byrd’s automobile liability insurance is

allegedly insufficient to compensate the plaintiffs for their

losses. Plaintiffs seek a declaration of Risk Mutual’s liability

to them for the full amount of their underinsured motorist

coverage, which plaintiffs allege is $100,000.00 per person.

Risk Mutual acknowledges coverage, but claims that the

liability limit on the underinsured motorist coverage provided

to plaintiffs is $50,000.00. Therefore Risk Mutual has filed a

counterclaim against plaintiffs seeking a declaration that

the limit is $50,000.00

AIK Selective Self Insurance Fund (AIK) has been

allowed to intervene as a third party plaintiff in order to

assert claims against the City of Carlisle and Byrd. Accord-

ing to the intervening complaint, plaintiff James Jones was

acting in the scope of his employment with Baumann Paper

Company (not a party in this suit) when Byrd collided with

him. AIK is the workers’ compensation insurance carrier for

Baumann Paper Company and has paid temporary total

disability benefits to James Jones and will allegedly incur

further expense in the future. In the event that Byrd and/or

the City of Carlisle are found liable in this case, AIK seeks to

recover the amount of indemnity paid and owing on behalf of

James Jones.

18a

The City of Carlisle has filed a crossclaim against Byrd,

and Risk Mutual has filed crossclaims against Byrd and the

City. Both the City and Risk Mutual seek judgment against

their respective crossclaim defendants in the amount of any

judgment which may be rendered against them in favor of the

plaintiffs.

It should also be noted that in February of 1991 (nine

months before the initiation of the present action, which was

filed in November of 1991), plaintiff filed a suit in Nicholas

Circuit Court against Byrd and Risk Mutual. In November of

1991 (at the same time the present suit was filed), the state

complaint was amended to add the City of Carlisle as a

defendant. The allegations in the Nicholas Circuit Court are

essentially identical to the allegations made in this Court.

This matter is currently before the Court on several

motions. The motion of the City to dismiss the complaint will

be first addressed.

The City of Carlisle argues that where a plaintiff was

deprived of liberty by an independent actor who has no

special connection the State,’ it cannot be said that the State

violated the Fourteenth Amendment. It is undisputed that

Byrd was in no way affiliated with a state entity, and that

Byrd was the most proximate cause of the plaintiffs’ injuries.

The City thus concludes that since a § 1983 action is predi-

cated on some deprivation of constitutional rights by a State

entity‘, plaintiffs’ § 1983 claims must be dismissed. To

>The term “State” refers generally to state and local govern-

mental entities and their agents who are prohibited under the

Fourteenth Amendment from depriving a person of liberty without

due process of law.

*“Every person who, under color of any statute, ordinance,

regulation, custom, or usage of any State... subjects, or causes to be

subjected, any citizen of the United States... to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured.” 42 U.S.C. § 1983.

19a

support this conclusion, the City has cited several cases that

merit examination.

In Martinez v. State of Cal., 444 U.S. 277, 100 S.Ct. 553,

62 L.Ed. 2d 481(1980), a convicted rapist was paroled by the

State of California, contrary to the direction of the sentencing

court, which recommended that he should not be paroled.

Five months after his release, the parolee murdered a young

girl. The girl’s survivors brought a § 1983 action claiming that

the California officials responsible for the parole-release

decision deprived the girl of her life in violation of the Due

Process Clause of the Fourteenth Amendment. Though it

was accepted that the officials knew or should have known

that the release of the parolee would create a clear and

present danger that the parolee would commit a violent

crime, the Supreme Court affirmed the trial court’s dismissal

of the case. In reaching this conclusion it was recognized that

the Due Process Clause of the Fourteenth Amendment pro-

tects a person only from deprivation by the “State .. . of life

. . without due process of law.” Id. at 284 (emphasis in

original). The Court concluded that the crime of the parolee,

committed after his release, could not be characterized as

State action and thus, California could not be held liable for

the girl’s murder. Jd. at 285. Even if the parole board was

negligent or wanton in allowing the release of the rapist, the

action by the parolee after his release “cannot be fairly

characterized as state action.” Id.

This approach to §1983 claims based on injury caused

by a private third party was expanded upon by the Sixth

Circuit in Janan v. Trammell, 785 F. 2d 557 (6th Cir. 1986).

A convicted armed robber was paroled by the Tennessee

State Parole Board and two months later murdered Janan.

Janan’s family sued the Parole Board in a § 1983 action

alleging gross negligence. The Sixth Circuit held that a §

20a

1983 action could be maintained against the State for inju-

ries caused by a private third party if“a special relationship

exists between the criminal and the victim or between the

victim and the state or whether there is some showing that

the victim, as distinguished from the public at large, faces a

special danger by the [State action].” Jd. at 560. However,

absent such special relationship, “no due process violation

can occur,” such that unless the State places a person in

special danger, “there is no constitutional right to be pro-

tected by the state against being murdered by criminals or

madmen.” /d. citing Bowers v. DeVito, 686 F. 2d 616, 618(7th

Cir. 1982). The Sixth Circuit found no special relationship

between the State and Janan nor between Janan and the

parolee and thus affirmed the dismissal of the §1983 claims.

In the recent case of DeShaney v. Winnebago Co. Dept.

of Social Services, 489 U.S. 189,109 S.Ct. 998,103 L.Ed. 2d

249 (1989), the Winnebago County (Wisconsin) Department

of Social Services had received complaints about physical

abuse by DeShaney’s father. Despite these complaints and

despite the presence of physical evidence that DeShaney was

being abused, the County failed to remove DeShaney from

his father’s custody. Finally, DeShaney was beaten so severely

that he sustained permanent brain damage. DeShaney and

his mother sued Winnebago County under §1983 claiming

that the County’s failure to act deprived the boy of his liberty

in violation of the Due Process Clause. In affirming the

dismissal of the suit, the Supreme Court stated that “nothing

in the language of the Due Process Clause itself requires the

State to protect the life, liberty, and property of its citizens

against invasion by private actors.” Jd. at 195. The Court

concluded that “the State had no constitutional duty to

protect [DeShaney] against his father’s violence, [and] its

failure to do so — though calamitous in hindsight — simply

2la

does not constitute a violation of the Due Process Clause.” Jd.

In response to the motion to dismiss, and to the holdings

in Martinez, Janan, and DeShaney, plaintiffs argue that their

cause of action is based on the City’s alleged failure to train

its police officers as to the proper procedures for reporting

traffic accidents. Plaintiffs assert that it was the policy of the

City of Carlisle not to train its police officers and the adoption

of such a policy renders the City liable under §1983 pursuant

to a theory of municipal liability. Numerous cases are cited to

support this proposition. These cases reveal that generally,

a city can be liable under §1983 for failing to train its

employees if such failure to train may fairly be said to

represent a policy,” however, it must also be shown that the

policy “actually causes injury.” Canton v. Harris, 489 U.S.

378, 390, 109 S.Ct. 1197, 103 L.Ed. 2d 412 (1989).

Most of the cases cited by plaintiff, for the proposition

that a City can be liable under §1983, are easily distinguish-

able from the present case by the fact that the injury to the

plaintiff was caused directly by the action of a municipal

employee.° In these cases where the proximate cause of the

° The cases distinguishable on this point are Canton, (alleged

failure by police officers to provide necessary medical care to plaintiff

who was in custody); Kibbe v. City of Springfield, 777 F.2d 801 (1st

Cir. 1985 police officer accused of using deadly force when such was

not justified); Wierstak v. Heffernan, 789 F.2d 968 (lst Cir.

1986 \ police officer accused of using excessive force); Rymer v. Davis,

775 F. 2d 756 (6th cir. 1985 police officer accused of using excessive

force); Warren v. City of Lincoln, Neb., 816 F. 2d 1254 (8th Cir.

1987\Xalleged arrest without probable cause); Fiacco v. City of

Rensselaer, N.Y., 783 F. 2d 319 (2d Cir. 1986 police officer accused

of using excessive force); Spell v. McDaniel, 824 F. 2d 1380 (4th Cir.

1987 X police officer accused of using excessive force); Rock v. McCoy,

763 F. 2d 394 (10th Cir. 1985 \ police officer accused of using exces-

sive force).

|

22a

plaintiffs injuries is shown to be a city’s failure to train its

employees, a § 1983 claim is cognizable. In the present case,

a private individual was the proximate cause of the plaintiffs’

injuries. In such situations, as in Martinez, Janan, and

DeShaney, the general rule is that the State is not liable

under §1983 for the deprivations caused by the private

individual. However, plaintiffs have also cited authority

contrary to this general rule of non-liability; and it is these

cases that merit discussion.®

In Wood v. Ostrander, 879 F. 2d 583 (9th Cir. 1989), cert.

denied __ U.S. ___ , 111 S.Ct. 341, 112 L.Ed. 2d 305 (1990),

Washington State Trooper Ostrander pulled over and arrested

a drunk driver in the Parkland area of Pierce County,

Washington; an area with a high rate of aggravated criminal

activity. Ostrander also impounded the drunk driver’s car,

which left Wood, who was the driver’s female passenger,

without transportation. After refusing assistance from

Ostrander, Wood undertook a five-mile walk home, at 2:30

a.m., through the Parkland area. Before reaching her home,

Wood was picked up by an unknown driver who took her to

a secluded area and raped her. The Ninth Circuit allowed a

§ 1983 suit by Wood against Ostrander after reasoning that

“(t]he fact that Ostrander arrested [the driver], impounded

his car, and apparently stranded Wood in a high-crime area

®Two other cases cited by plaintiffs can be deemed inapplicable

without lengthy discussion. In Fisher v. City of Cincinnati, 753 F.

Supp. 681 (S.D. Ohio 1990), Fisher claimed a constitutional depri-

vation by the City of Cincinnati of the right to access to the courts in

violation of the First Amendment. This is a substantive right that is

“independent of the Fourteenth Amendment due process clause.” Jd.

at 687-688. Also Gregory v. City of Rogers, Ark., 921 F. 2d 750 (8th

Cir. 1990), has been vacated by the Eighth Circuit at 939 F. 2d 524

(8th Cir. 1991), and cannot be cited as a valid authority.

23a

at 2:30 a.m. distinguishes Wood from the general public and

triggers a duty of the police to afford her some measure of

peace and safety.” Id. at 590.

In Cornelius v. Town of Highland Lake Ala., 880 F. 2d

348 (11th Cir. 1989), cert. denied 494 U.S. 1066, 110 S.Ct.

1784, 108 L.Ed. 2d 785 (1990), the Mayor of the Town of

Highland Lake requested that the Alabama Department of

Corrections provide the City with inmate labor for general

maintenance of the town hall building and grounds. Two of

the work squad inmates, working in and around the town

hall, abducted the Highland Lake Town Clerk from the town

hall, stole her car, and forced her to accompany them on a

three state flight during which time they terrorized her. The

Eleventh Circuit allowed a § 1983 action by the clerk against

the town by finding that the State had the power and

authority to direct the actions of the inmates and that a

responsibility thereby was imposed on the State. Jd. at 356.

Further, because the clerk and the State “stood in a special

relationship to one another”, the responsibility of the State

was to protect the clerk from the inmates whom it controlled

and whom the State placed in the proximity of the clerk. Jd.

Both of these cases present a situation where the State,

by an affirmative exercise of its power, has acted upon a

specific individual, and made that individual less capable of

caring for him or herself and more vulnerable to a specific

danger. Such State created limitation on an individual’s

ability to care for himself creates a corresponding State duty

to provide for that individual’s reasonable safety. DeShaney,

at 200; Janan at 560.

However, in the present case, even if the City of Carlisle

knew of the dangers that Byrd presented to the general

public, the City played no part in the creation of such danger,

24a

nor did it do anything to render the plaintiffs more vulner-

able to that danger. Under such circumstances, the State has

no duty to members of the general public who are injured as

a result of actions by third parties, even when the State

indirectly facilitated those actions. DeShaney at 201; Martinez

at 284-285.

This must be so because:

“nothing in the language of the Due Process Clause

itself requires the State to protect the life, liberty

and property of its citizens against invasion by

private actors. The Clause is phrased as a limitation —

on the State’s power to act, not as a guarantee of

certain minimal levels of safety and security.”

“(The Fourteenth Amendment] forbids the State

itself to deprive individuals of life, liberty, or prop-

erty without ‘due process of law,’ but its language

cannot fairly be extended to impose an affirmative

obligation on the State to ensure that those interests

do not come to harm through other means.”

Id. at 195. Itis only through certain affirmative actions taken

by the State towards individuals that a duty may be created

in the State to assume responsibility for that individual’s

safety and general well-being. Jd. at 200. The victim, as op-

posed to the general public, must face some special danger as

a result of State action. Janan, at 560. In the present case, the

City of Carlisle has taken no affirmative actions towards the

plaintiffs and thus had no duty to assume responsibility for

the plaintiffs’ safety.

The case of Gibson v. City of Chicago, 910 F. 2d 1510(7th

Cir. 1990) does not require a different result. Gibson’s survi-

vor brought a § 1983 action against the City after Gibson was

shot and killed by a police officer who had been placed on the

wget.

25a

medical roll as mentally unfit for duty. Although the police

officer was relieved of all of his police powers, the City failed

to confiscate his firearm, which he used to kill Gibson. The

Seventh Circuit found that the police department

“affirmatively trained and outfitted one ofits employees with

the means to exercise deadly force, yet failed to recover that

equipment from its employee after it had determined that the

employee was unfit to exercise police authority.” Id. at 1522

n. 19. Even though it was found that the police officer was not

acting in the scope of his employment but was instead acting

as a private individual, the § 1983 action was allowed,

because the State, through the police department, played a

significant role in creating the danger tothe victim. Id. at 1519.

This case therefore differs from the others cited by plaintiffs

in that no special relationship existed between the State and

the victim. Instead, the special relationship existed between

the State and the police officer, who was viewed in the

posture of a private individual. It was because of this special

relationship that the Seventh Circuit distinguished Martinez,

and DeShaney and permitted the §1983 claim against the

State.

Plaintiffs would have this Court apply the rationale of

the Seventh Circuit to the present case.’ Even if this Court

were inclined to adopt the position of the Seventh Circuit,

Gibson would be inapplicable to the present case. The rela-

tionship between the State and the police officer, which was

essential to the holding in Gibson, is not analogous to the

relationship between Byrd and the City of Carlisle. Carlisle

cannot be said to have “created the danger” as was done by

7The Sixth Circuit has not adopted the approach taken by the

Seventh Circuit, and for this reason alone, this Court would decline

to apply Gibson.

*

id "

26a

the City of Chicago in Gibson. Id. at 1521 n. 19. The most that

can be said of the relationship between Byrd and the City of

Carlisle is that the Carlisle Police purposefully allowed Byrd

to continue operating a motor vehicle. State allowance of a

private citizen’s continuation of known dangerous behavior

did not, for the Supreme Court in DeShaney, create a duty in

the State to protect against that danger, and this Court

cannot view the same situation differently.

No special relationship existed between the City and the

plaintiff nor between Byrd and the plaintiffs. Also, Carlisle

took no affirmative action that placed the plaintiffs in special

danger as compared to the general public. Finally, no rela-

tionship existed between the City and Byrd such that the

City can be said to have created the dangers that Byrd

presented. Under such circumstances plaintiffs’ § 1983 must

be dismissed.

If this seems a harsh result’, it should be remembered

that dismissal of the § 1983 claims against the City in no way

forecloses any liability of the City under theories of state tort

law.° Dismissal of the §1983 claims merely comports with the

rule that the Fourteenth Amendment does not transform

every tort committed by a State actor into a constitutional

violation. DeShaney at 202.

8 Although the recognition that plaintiffs have no cause of

action under § 1983 does not produce in the present case so harsh as

was seemingly produced in Martinez, Janan, and DeShaney.

® Claims almost identical to those raised in this suit are

pending before the Nicholas Circuit Court. This state case is further

along than the present case (twenty-five depositions have been

taken in the Nicholas County case as compared to one deposition in

the present case).

27a

In its motion to dismiss, the City of Carlisle also argues

that if the Court dismisses plaintiffs’ § 1983 claims, then the

remainder of the complaint, which consists mainly of pendant

state claims, should also be dismissed for lack of subject

matter jurisdiction. “{I]n the usual case in which all federal-

law claims are eliminated before trial, the balance of factors

to be considered under the pendent jurisdiction doctrine -

judicial economy, convenience, fairness, and comity - will

point toward declining to exercise jurisdiction over the re-

maining state-law claims.” Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed. 2d 720 (1987).

Plaintiffs respond that along with their § 1983 claims,

they have asserted claims against Risk Mutual for a de-

claratory judgment on the issue of the amount of coverage

under the underinsured motorist policy. Thus, it is plaintiffs’

position that even if the §1983 claims are dismissed, there

remains before the Court a declaratory judgment action, and

j the lawsuit should not be completely dismissed.

Pendent jurisdiction “is a doctrine of discretion, not of

plaintiffs right.” United Mine Workers of America v. Gibbs, 383

U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed. 2d 218 (1966). This

Court will comply with the recommendation of the Supreme

Court when it stated that where “state issues substantially

predominate, whether in terms of proof, [or] of the scope of

the issues raised,” a federal court should normally relinquish

jurisdiction to the appropriate state court. Carnegie-Mellon

Univ., at 350 n. 7. The declaration of rights sought by

plaintiffs against Risk Mutual does not alter this Court’s

discretion. The Supreme Court has made it clear that federal

courts should exercise their discretion when determining the

propriety of issuing a declaratory judgment. Eccles v. Peoples

Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 92 L.Ed. 784 (1948).

28a

The Declaratory Judgment Act, 28 U.S.C. § 2201, confers no

absolute right upon a litigant. Green v. Mansour, 474 U.S. 64,

72, 106 S.Ct. 423, 88 L.Ed. 2d 371 (1985) (quoting Public

Service Comm’nv. Wycoff Co. ,344 U.S. 237, 241, 73 S.Ct. 236,

97 L.Ed. 291(1952)).

It is this Court’s judgment that adjudication ofall claims

in the Nicholas Circuit Court advances the interests of

judicial economy, convenience, and comity. Thus, all re-

maining claims will be remanded to the Nicholas Circuit for

appropriate disposition.

This ruling makes moot all other pending motions: the

City of Carlisle’s motion for abstention, plaintiffs’ motion for

a hearing, and plaintiffs’ motion to file a reply to the reply of

the City.”

Accordingly,

IT IS THEREFORE ORDERED AND ADJUDGED:

(1) Thatthe motion ofthe City of Carlisle to dismiss all

§ 1983 claims is GRANTED, that the § 1982 claims are

DISMISSED, and plaintiffs shall take nothing thereby;

(2) Thatthe motion of the City of Carlisle to dismiss all

remaining claims for lack of subject matter jurisdiction is

GRANTED and all remaining claims shall be REMANDED

to the Nicholas Circuit Court for appropriate disposition;

Plaintiffs sought to file a reply to the reply in order to respond

tothe case of Nishiyama v. Dickson County, Tenn. ,814 F.2d 277(6th

Cir. 1987), cited for the first time in the reply of the City. This case

was not necessary to the disposition of the City's motion and this, a

reply by plaintiffs in unnecessary.

29a

(3) That the motion of the City of Carlisle for absten-

tion is DENIED as MOOT;

(4) That plaintiffs’ motion to amend their complaint is

DENIED;

(5) That plaintiffs’ motion for a hearing is DENIED as

MOOT;

(6) That plaintiffs’ motion to file a reply is DENIED as

MOOT;

(7) That this matter is DISMISSED and shall be

STRICKEN from the docket;

This 12 day of June, 1992.

/s/ HENRY R. WILHOIT, JR., JUDGE

ieee i 5

30a

3la

Eastern District of Kentucky

FILED JUL 21 1992

at LEXINGTON

LESLIE G. WHITMER

Clerk, U.S. District Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 91-516

JAMES RICKY JONES and

VERA JONES, PLAINTIFFS,

AND

AIK SELECTIVE

SELF INSURANCE INTERVENING PLAINTIFF,

VS.

CITY OF CARLISLE,

KENTUCKY, et al., DEFENDANTS.

ORDER

This case was dismissed, pursuant to the Memorandum

Opinion and Order of this Court, on June 12, 1992. Plaintiffs

have filed a motion to alter, amend or vacate the June 12th

Opinion along with a motion for oral argument. Plaintiffs

have also filed a motion for permission to file an amended

complaint. The facts of this matter are set out in the June

12th Opinion and will not be restated here.

In plaintiffs’ motion to alter, amend or vacate, they state

that their complaint was dismissed on the ground that no

“special relationship” exists between Mark Byrd and defen-

dant City of Carlisle. Plaintiffs argues that dismissal on

32a

these grounds was erroneous because the “special relation-

ship” analysis was rejected by the Supreme Court in DeShaney

v. Winnebago Co. Dept. of Social Services, 489 U.S. 189, 109

S.Ct. 998, 103 L.Ed. 2d 249 (1989). Both of these assertions

by plaintiffs are mistaken.

The Court in DeShaney did not reject the special rela-

tionship analysis but merely decided that no special rela-

tionship existed under the facts of the case. See Id. at 197-199

Likewise, this Court found that there was no special relation-

ship in the present case. This, however, was not the whole of

this Court's holding, but merely a component. This Court

went on to find that "Carlisle took no affirmative action that

placed the plaintiffs in special danger as compared to the

general public” and that the City cannot be said to have

“created the dangers that Byrd presented.” Under these

circumstances, this Court is bound to apply the rulings of the

Supreme Court and hold that "the State had noconstitutional

duty to protect [the plaintiffs]." Jd. at 201.

Plaintiffs also argue that even if their §1983 claims are

dismissed, their declaratory judgment action, based on di-

versity of citizenship, should not have been dismissed.

Plaintiffs go on to state that their claims of state tort liability

"will have to be tried to resolve the declaratory judgment

proceeding and the ensuing claims of Preferred Risk.” It is

precisely for this reason that this Court must decline to hear

plaintiffs claims for declaratory judgment. See Allstate Ins.

Co. v. Mercier, 913 F. 2d 273 (6th Cir. 1990).

33a

Accordingly,

IT IS THEREFORE ORDERED AND ADJUDGED:

(1) That plaintiffs motion to alter, amend or vacate

this Court's Memorandum Opinion and Order of June 12,

1992 is DENIED;

(2) That plaintiffs motion for an oral argument is

DENIED;

(3) That plaintiff's motion for leave to file its tendered

amended complaint is DENIED as MOOT.

This 20 day of July, 1992

/s/) HENRY R. WILHOIT, JR. JUDGE

34a

35a

FILED

OCT 13 1993

LEONARD GREEN, CLERK

NO. 92-6103

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES RICKY JONES,

VERA JONES,

Plaintiffs-Appellants,

AIK SELECTIVE SELF

INSURANCE FUND,

Intervenor

' ORDER

CITY OF CARLISLE, KENTUCKY;

PREFERRED RISK MUTUAL INSURANCE

COMPANY; MARK BYRD,

Defendants-Appelleses

BEFORE: GUY and SUHRHEINRICH, Circuit Judges;

and DOWD, * District Judge.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original hearing panel

* Hon. David D. Dowd, Jr., United States District J udge for the

Northern District of Ohio, sitting by designation.

36a

The panel has further reviewed the petition for rehear-

ing and concludes that the issues raisec in the petition were

fully considered upon the original submission and decision of

the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green, Clerk

37a

APPENDIX B

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

U.S. Const. Amend. XIV, Section 1

42 U.S.C. Section 1983

Kentucky Revised Statute Section 95.015 (Michie ed.)

Kentucky Revised Statute Section 95.710 (Michie ed.)

Kentucky Revised Statute Section 95.760 (Michie ed.)

Kentucky Revised Statute Section 95.740 (Michie ed.)

Kentucky Revised Statute Section 186.570 (Michie ed. )

Kentucky Revised Statute Section 189.290 (Michie ed.)

Kentucky Revised Statute Section 189.635 (Michie ed.)

Kentucky Revised Statute Section 431.450 (Michie ed.)

601 Kentucky Administrative Regulation 13:010

38a

U.S. CONSTITUTION AMENDMENT XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

42 U.S.C. § 1983.

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof tothe deprivation ofany rights, privileges,

or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suits in

equity, or other proper proceeding for redress. For the pur-

poses of this section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to be a statute

of the District of Columbia.

Ky. Rev. Stat. § 95.015. Rights and duties of police and

fire fighters - Members of the police and fire departments

in cities and urban-county governments shall abide by and

adhere to the rules, regulations and laws set forth by the

Kentucky Revised Statutes, and the legislative body of the

city in which they are employed, provided, that no such rule,

regulation or law shall apply that alters, abridges or other-

wise restricts the constitutional rights of said members and

39a

said members, except when on duty, shall not be restrained

from exercising their rights and privileges or from entering

into any endeavor enjoyed by all other citizens of the city in

which they reside.

Ky. Rev. Stat. § 95.710. Qualifications of members of

police and fire departments. - To be eligible for ap-

pointment as a member of the police force or fire department

of a city of the fourth or fifth class, except cities of the fourth

class which have adopted KRS 95.761 to 95.784, a person

must be a resident of the county, at least twenty-one (21)

years of age, able to read and write the English language

intelligibly, and sober, moral and sagacious. No person who

has been convicted of a felony is eligible for appointment.

After appointment no member shall interfere in any election.

Ky. Rev. Stat. § 95.760. Oath of policemen. - In cities of

the fourth and fifth classes except cities of the fourth class

which have adopted KRS 95.761 to 95.784, every member of

the police force shall take an oath to faithfully perform the

duties of his office, and that he possesses the required

qualifications. In cities of the fourth class the oath shall also

provide that he will not interfere in any election.

Ky. Rev. Stat. § 95.740. Powers of chief of police and

policemen — Fees — Deputies — Special police. — (1) The

chief of police and every member of the police force in cities

of the fourth and fifth classes may, whether directed to them

or not, execute warrants of arrest, processes, subpoenas and

attachments for witnesses. They may arrest as prescribed by

law for offenses against ordinances or municipal regulations

40a

of the city, and shall have the same power of arrest for

offenses against the state as a sheriff.

(2) The chief of police and members of the police force

shall be entitled to the same fees, and the same remedies for

collecting them, that are allowed by law to sheriffs and other

officers for similar services, but the city legislative body may,

by ordinance, direct that the fees be paid into the city

treasury when the chief of police and members of the police

force are employed on a salary.

(3) The chief of police may appoint deputies, by and

with the advice and consent of the city legislative body, who

shall have the same powers and duties as the chief of police

except that they shall not command the police force.

(4) The chief of police may appoint special or extra

police, by and with the advice of the mayor. These special or

extra police, appointed for less than a week, shall take the

oath prescribed by law but shall not be required to execute

bond.

Ky. Rev. Stat. § 186.570. Suspension or denial of li-

cense; hearing; surrender of certificate

(1) The cabinet or its agent designated in writing for

that purpose may deny any person an operator’s license or

may suspend the operator’s license of any person, or, in the

case of a nonresident, withdraw the privilege of operating a

motor vehicle in this state, subject to a hearing and with or

without receiving a record of conviction of that person of a

crime, whenever the cabinet has reason to believe that:

(a) That person has committed any offenses for

the conviction of which mandatory revocation of a li-

cense is provided by KRS 186.050.

4la

(b) that person has, by reckless or unlawful opera-

tion of a motor vehicle, caused or contributed to an

accident resulting in death or injury or serious property

damage.

(c) That person is afflicted with mental or physi-

cal infirmities rendering it unsafe for him to drive upon

the highways.

(d) That person is an habitually reckless or negli-

gent driver of a motor vehicle or has committed a serious

violation of the motor vehicle laws.

(e) That person has been issued a license without

making proper application for it, as pr ‘ided in KRS

186.412 and regulations properly issued pursuant to it.

(f) Aperson required by KRS 186.480 to take an

examination has been issued a license without first

having passed the examination.

(g) That person has been convicted of assault and

battery resulting from the operation of a motor vehicle.

(h) That person has failed to appear pursuant toa

citation or summons issued by a law enforcement officer

of this Commonwealth or any other jurisdiction.

(2) The cabinet or its agent designated in writing for

that purpose shall provide any person subject to the suspen-

sion, revocation or withdrawal of their driving privileges,

under provisions of this section, a hearing. Upon determining

that such action is warranted, the cabinet shall notify the

person in writing by mailing the notice to the person by first

class mail to the last known address of the person. Such

hearing shall be automatically waived if not requested within

twenty (20) days after the cabinet mails the notice. The

hearing shall be scheduled as early as practical within not to

exceed twenty (20) days after receipt of such request at a time

and place designated by the cabinet.

42a

(3) The cabinet may suspend the operator's license of

any resident upon receiving notice of the conviction of that

person in another state of an offense there which if commit-

ted in this state would be grounds for the suspension or

revocation of an operator’s license. If a person so convicted is

not the holder of a Kentucky operator's license, the cabinet

shall deny him a license for the same period as if he had

possessed a license and license had been suspended. The

cabinet may, upon receiving a record of the conviction in this

state of a nonresident driver of a motor vehicle of any offense

under the motor vehicle laws, forward a notice of that

person’s conviction to the proper officer in the state of which

the person so convicted is a resident.

(4) The Transportation Cabinet is forbidden from sus-

pending or revoking an operator’s license cr assessing points

or any other form of penalty against the holder thereof for

speeding violations or speeding convictions form other states.

This subsection shall apply only to speeding violations. This

section shall not apply to a commercial driver’s license.

(5) Each operator’s license which has been cancelled,

suspended or revoked shall be surrendered to and retained

by the cabinet. At the end of the period of cancellation,

suspension or revocation the license may be returned to the

licensee after he has complied with all requirements for the

issuance or reinstatement of his driving privilege.

Ky. Rev. Stat. § 189.290. Operator of vehicle to drive

carefully. - (1) The operator of any vehicle upon a highway

shall operate the vehicle in a careful manner, with regard for

the safety and convenience of pedestrians and other vehicles

upon the highway.

43a

(2) Noperson shall wilfully operate any vehicle on any

highway in such a manner as to injure the highway.

Ky. Rev. Stat. § 189.635. Vehicle accident reports by

operators, law enforcement officers, and agencies. -—

(1) The Justice Cabinet, Department of State Police, shail be

responsible for maintaining a reporting system for all vehicle

accidents which occur within the Commonwealth. Such acci-

dent reports shall be utilized for such purposes as will

improve the traffic safety program in the Commonwealth

involving the collection, processing, storing, and dissemina-

tion of such data and the establishment of procedures by

administrative regulations to insure that uniform defini-

tions, classifications, and other federal requirements are in

compliance.

(2) Any person operating a vehicle on the highways of

this state who is involved in an accident resulting in fatal or

nonfatal personal injury to any person or damage to the

vehicle rendering the vehicle inoperable shall be required to

immediately notify a law enforcement officer having jurisdic-

tion. In the event the operator fails to notify or is incapable

of notifying a law enforcement officer having jurisdiction,

such responsibility shall rest with the owner of the vehicle or

any occupant of the vehicle at the time of the accident. A law

enforcement officer having jurisdiction shall investigate the

accident and file a written report of the accident with his law

enforcement agency.

(3) Every law enforcement agency whose officers in-

vestigate a vehicle accident of which a report must be made

as required in this chapter shall file a report of the accident

with the Department of State Police within ten (10) days

a —

44a

after investigation of the accident upon forms supplied by the

department.

(4) Any person operating a vehicle on the highways of

this state who is involved in an accident resulting in any

property damage exceeding five hundred dollars ($500) in

which an investigation is not conducted by a law enforcement

officer shall file a written report of the accident with the

Department of State Police within ten (10) days of occurrence

of the accident upon forms provided by the department.

(5) All accident reports filed with the Department of

State Police in compliance with subsection (4) above shall

remain confidential except that the department may disclose

the identity of a person involved in an accident when his

identity is not otherwise known or when he denies his

presence at an accident.

Ky. Rev. Stat. § 431.450. Uniform citation. -

(1) The department of state police in consultation with

the transportation cabinet shall design, print, and distribute

to all law enforcement agencies in the Commonwealth a

uniform citation.

(2) The citation shall:

(a) Be approved by the Supreme Court;

(b) Consist of an original document and five (5)

copies;

(c) Be serially numbered in such a manner that

the year of issue and the individual citation number may

be readily ascertained, and

(d) Contain such other information as may be

required by the Supreme Court.

45a

(3) The circuit court clerk shall maintain a system of

accountability for all citations issued in accordance with

rules and regulations issued by the Supreme Court to assure

that citations are not wrongfully destroyed, tampered with,

or otherwise compromised in any manner.

(4) All peace officers in the Commonwealth shall use

the uniform citation for all violations of the traffic laws and

for all felonies, misdemeanors and violations

601 Kentucky Administrative Regulation 13:010.

Medical Review Board; basis for examination, evalu-

ation, tests.

RELATES TO: KRS 186.570(1\(c)

STATUTORY AUTHORITY: KRS 186.400

NECESSITY AND FUNCTION: The Medical Review

Board has existed by virtue of administrative regulations

since June, 1964. Subjects who come to the department’s

attention because of physical or mental problems which may

affect their driving ability are required to submit to physical

examinations. The results of these exams are then reviewed

by the physicians on the board. Based on their professional

experience they recommend either total denial of a license or

a limited one (e.g. daylight hours, left and right rearview

mirrors, another examination in three (3) months, etc.), or

they determine that the disability suffered should not affect

the person’s driving ability. This negates the capriciousness

which could exist in the great discretion granted the depart-

ment by the legislature in KRS 186.570. Whenever the

recommendation of the board is for suspension or an ex-

tremely limited license, the subject is entitled to a hearing on

the matter (since the Supreme Court’s BELL v. BURSON

decision) and this regulation sets out the procedure for same.

46a

Section 1. There is hereby created a Medical Review

Board to determine whether any applicant for or any holder

of a valid Kentucky operator’s license has physical or mental

infirmities which affect or limit the driving ability or make it

unsafe for said person to operate a motor vehicle upon the

public highways. The board shall consist of the Commissioner

of the Department of Vehicle Regulation of the transporta-

tion Cabinet or his representative, not less than three (3)

physicians licensed to practice medicine in the Commonwealth

of Kentucky, and anyone else deemed necessary to properly

review a case brought before the board. The physicians on the

board shall be appointed by the Commissioner of the De-

partment of Vehicle Regulation. The Commissioner of the

Department of Vehicle Regulation or his representative shall

prescribe the time and place for the board to meet. Any

proceeding conducted by the board shall be construed to be a

meeting within the meaning of this section when three (3)

physician members are present and participating. Members

of the board who participate in a meeting shall be reimbursed

for necessary expenses incurred in attending such meeting.

Section 2. (1) When the Commissioner or the Depart-

ment of Vehicle Regulation or his representative receives

notice that one (1) or more of the conditions listed in Section

4 of this regulation exists in a person and that such physical

or mental infirmities may render it unsafe for him to operate

a motor vehicle upon the public highways, the commissioner

shall refuse to issue an operator’s license to said person or he

shall suspend the existing driving privilege of said person

unless the person submits to an examination by a qualified

physician within forty-five (45) days of notification of the

commissioner's intentions.

(2) Ifthe Medical Review Board deems that an exami-

nation by a qualified physician is necessary. Thg required

47a

medical examination shall be conducted at the person’s own

expense by any licensed physician of his choice. The examin-

ing physician shall report within forty-five (45) days the

results of his examination directly to the Medical Review

Board on a form furnished by the Department of Vehicle

Regulation.

(3) As soon as possible after receipt of the completed

form the Medical Review Board shall evaluate it and may

make recommendations to the Department of Vehicle

Regulation for further examination or testing or on restric-

tion of the person’s driving privilege. When the board recom-

mends further examination or investigative testing the

Commissioner of the Department of Vehicle Regulation or

his representative shall notify the person of the date by which

he shall comply in order to retain or obtain his driving

privilege.

Section 3. When the Medical Review Board pursuant to

Section 2(3) of this regulation recommends total suspension

of a person’s driving privilege or any limitations thereon, the

Commissioner of the Department of Vehicle Regulation or

his representative shall notify the person at the last known

address of said person that this action will be taken unless a

written request for a hearing before the board is received

within twenty (20) days following delivery of the notice. The

hearing shall be scheduled as early as practicable at a time

and place designated by the commissioner or his representa-

tive and notice of same shall be mailed to the person involved

no later than ten (10) days prior to the hearing date. The

commissioner or his representative shall preside at the

hearing before the Medical Review Board and at least three

(3) physician members shall be present. The presiding officer

may administer oaths and may issue subpoenas for the

48a

attendance of witnesses and the production of relevant books

and papers. the scope of the hearing shall be limited to the

presentation of the evidence upon which the Medical Review

Board made their recommendation and any medical evidence

the petitioner wishes to present in explanation or refutation

of this evidence. Evidence may be presented in the form of

depositions. All testimony at the hearing shall be recorded

and together with any depositions or exhibits introduced at

the hearing shall form the complete record. Within ten (10)

working days after the hearing the commissioner shall issued

a decision and this shall be promptly forwarded to the

petitioner.

Section 4. The Commissioner of the Department of

Vehicle Regulation or his representative shall promptly

notify the person involved to submit to the physical exami-

nation set out in Section 2 of this regulation when one (1) or

more of the following conditions exist:

(1) Driver has indicated that he “blacked out“ lost

consciousness or suffered a seizure prior to a reportable

motor vehicle accident;

(2) Driver has been named in an affidavit by at

least two (2) citizens as being incapable of properly

operating a motor vehicle due to physical or mental

infirmities.

(3) Driver has been reported by a physician as being

incapable of driving safely due to physical or mental

condition or due to medication prescribed for an ex-

tended time:

(4) Driverhas been reported by alaw enforcement

officer after being observed driving or behaving in an

erratic or dangerous manner which indicates a possibil-

ity of physical or mental infirmity;

49a

(5) Applicant for operator’s license or for renewal

of same has obvious physical or mental impairment:

(6) Driver’s official record kept by the Depart-

ment of Vehicle Regulation indicates a possibility of

physical or mental impairment;

(7) Driver has reported that he/she has suffered

an epileptic seizure or any type of syncopal episode;

(8) Driver has been reported by a commonwealth

attorney, county attorney, county clerk, circuit clerk, |

sheriff, or judge as being incapable of driving due to a

physical or mental impairment.

50a

ee a ea

5la

APPENDIX C

Eastern District of Kentucky

FILED NOV 5 1991

AT LEXINGTON

LESLIE G. WHITMER

CLERK, U.S. DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 91-516

JAMES RICKY JONES and

VERA JONES PLAINTIFFS,

VS. COMPLAINT

CITY OF CARLISLE,

KENTUCKY, PREFERRED DEFENDANTS.

RISK MUTUAL INSURANCE

COMPANY, and MARK BYRD

eK KKK KEK

For their complaint herein, plaintiffs state as follows:

COUNT I

JURISDICTION

1. This Court has jurisdiction of Count I pursuant to

42 U.S.C. §1983, 28 U.S.C. §1331, 28 U.S.C. §1343, and venue

as per 28 U.S.C. §1391.

2. At all times relevant hereto Mark Byrd was a

citizen and resident of the Commonwealth of Kentucky,

primarily residing in Carlisle, Nicholas County, Kentucky.

52a

3. Mark Byrd is an epileptic who has suffered from an

uncontrolled seizure disorder since infancy.

4. Mark Byrd obtained a Kentucky motor vehicle

operator’s license in 1983.

5. Carlisle, Kentucky (hereinafter Carlisle), is a mu-

nicipality with a population of 1800 people approximately,

located in Nicholas County, Kentucky, and Carlisle exists

and acts under authority of the law of the Commonwealth of

Kentucky and in the instant case acts under color of state

law.

6. Carlisle has the power to sue and be sued.

7. Carlisle has established and maintains a police

force by authority of state law and under color of state law.

8. The statutory law of the Commonwealth of Ken-

tucky is embodied in the Kentucky Revised Statutes (here-

inafter KRS).

9. As per KRS 95.015, the members of the Carlisle

Police Department are to enforce the statutory laws of the

Commonwealth of Kentucky.

10. As per KRS 95.710, the members of the Carlisle

Police Department are to be sagacious.

11. As per KRS 95.760, the members of the Carlisle

Police Department are required to faithfully perform the

duties of their office.

12. As per KRS 431.450, the Carlisle police are to use

a uniform citation for all violations of traffic laws as are listed

in KRS 431.451, one of which laws is KRS 189.290 requiring

that motor vehicles be operated carefully.

ee Ty

53a

13. As per KRS 95.740, the police of Carlisle have law

enforcement power and responsibility throughout Nicholas

County, Kentucky.

14. KRS 189.635 requires that a Carlisle policeman

investigating an automobile accident which causes damage

to a motor vehicle or which causes a personal injury, to file a

written report of the accident with the Carlisle Police Depart-

ment.

15. KRS 189.635 requires the Carlisle Police Depart-

ment to file the written report of an accident mentioned in

numerical paragraph 14 above, with the Kentucky State

Police.

16. KRS 186.570 allows the Commonwealth of Ken-

tucky to withdraw the motor vehicle operator’s license of a

person having a mental or physical infirmity making that

person unsafe to operate a motor vehicle.

17. 601 Kentucky Administrative Regulation (herein-

after KAR) 13:01 0is a valid regulation of the Commonwealth

of Kentucky.

18. As per 601 KAR 13:010, if the Commonwealth of

Kentucky receives notice that a motor vehicle operator has

suffered a seizure prior to a reportable motor vehicle acci-

dent, if a law enforcement official reports to the Common-

wealth of Kentucky that a motor vehicle operator is driving

in a manner as to indicate the driver has a possibility of a

physical or mental infirmity, if a motor vehicle operator’s

official record indicates the possibility of a physical or mental

infirmity, ocr if a motor vehicle operator reports he has

suffered an epileptic seizure, then the Commonwealth of

Kentucky will cause that motor vehicle operator to submit to

a medical examination to determine the motor vehicle

54a

operator’s fitness to operate a motor vehicle, and if the

operator is unfit to operate a motor vehicle, then the operator’s

license will be suspended or withdrawn by the Commonwealth

of Kentucky.

19. Shortly after receiving his motor vehicle operator’s

license in 1983, Mark Byrd experienced a seizure while

operating a motor vehicle on Main Street in Carlisle and ran

off the road, hit a stone wall in front of the Nicholas County

Courthouse and was knocked unconscious. This accident was

investigated by the Carlisle Police Department, but the

Carlisle police have no report of the accident. No citation or

law enforcement action was taken against Mark Byrd as a

result of this accident.

20. On or about June, 1983, Mark Byrd suffered an

epileptic seizure while driving a motor vehicle on Main Street

in Carlisle and crossed over the center-line of the roadway

and struck a tractor coming in the opposite direction while

that tractor was occupied. This accident was investigated by

the Carlisle police, and the Carlisle police maintain a report

of this accident. No citation or law enforcement action was

taken against Mark Byrd as a result of this accident.

21. In 1984, Mark Byrd suffered an epileptic seizure

while operating a motor vehicle on Mockingbird Lane in

Carlisle, and his vehicle left the roadway, traveled across the

lawn of a residence, and struck a residence. This accident was

investigated by the Carlisle Police Department, but the

Carlisle police have no report of the accident. No citation or

law enforcement action was taken against Mark Byrd as a

result of this accident.

22. In 1985, Mark Byrd was operating a motor vehicle

on Main Street in Carlisle, and his operation of the motor

55a

vehicle was such that it left the roadway and struck a parking

meter near the United States Post Office in Carlisle. It is

unknown whether the Carlisle police were aware of this

accident or investigated it, and the Carlisle police have no

report of this accident. No citation or law enforcement action

was taken against Mark Byrd as a result of this accident.

23. In 1986, Mark Byrd was operating a motor vehicle

on the public roads of Carlisle and experienced an epileptic

seizure and pulled to the side of the road and passed out. This

accident caused property damage. The accident was investi-

gated by the Carlisle police, but the Carlisle police have no

report of this accident. No citation or law enforcement action

was taken against Mark Byrd as a result of this accident.

24. In 1987, Mark Byrd was operating a motor vehicle

on the public roadways of Carlisle and experienced an epilep-

tic seizure which caused the vehicle operated by Mark Byrd

to leave the roadway and hit a fire hydrant near Small’s

Greenhouse in Carlisle. This accident was investigated by

the Carlisle police, but the Carlisle police have no report of

the accident. Nocitation or law enforcement action was taken

against Mark Byrd as a result of this accident.

25. In 1987, Mark Byrd suffered an epileptic seizure

while operating a motor vehicle in Carlisle, and Mark Byrd’s

vehicle left the roadway and hit a structure known as Small’s

Greenhouse. This accident was investigated by the Carlisle

police, but the Carlisle police have no report of the accident.

No citation or law enforcement action was taken against

Mark Byrd as a result of this accident.

26. Within the past five years, Mark Byrd was found

suffering a seizure in a motor vehicle near the Dairy Queen

in Carlisle, and this event was investigated and assistance

56a

was rendered by fire and rescue personnel of Carlisle. Carlisle

police have no report of the accident. No citation or law

enforcement action was taken against Mark Byrd as a result

of this event.

27. On or about November 13, 1990, on U.S. Hwy. 68,

a public highway in Nicholas County, Kentucky, Mark Byrd

was operating a motor vehicle while he experienced an

epileptic seizure causing him to lose control of his vehicle and

causing his vehicle to cross over the center-line into the

oncoming lane of traffic and strike head-on a motor vehicle

there and then operated by the plaintiff, James Ricky Jones,

and this accident severely and permanently injured James

Ricky Jones. Nocitation or law enforcement action was taken

against Mark Byrd as a result of this accident.

28. With the exception of the accident occurring on or

about November 13, 1990, the Kentucky State Police does not

have reports of any of Mark Byrd’s accidents mentioned

herein.

29. It is the deliberate policy or custom of Carlisle not

to train its policemen subsequent to their employment.

30. Itis the deliberate policy or custom of Carlisle not

to supervise its policemen so as to determine if they follow the

laws of the Commonwealth of Kentucky.

31. It is the deliberate policy or custom of Carlisle not

to report all of Mark Byrd’s motor vehicle accidents as

required by state law.

32. Atall times subsequent to Mark Byrd’s first seizure

related automobile accident, Carlisle knew that Mark Byrd

was an unfit and unsafe motor vehicle operator by reason of

Mark Byrd’s epileptic condition.

a

57a

33. Carlisle’s failure to train its police and failure to

supervise its police have caused the Carlisle police to be

inadequate to the task to be performed by them, especially as

concerns duties of the police as regards unfit and unsafe

operators of motor vehicles.

34. The actions of Carlisle as alleged herein are reck-

less and wanton and constitute gross negligence.

35. Itisthe policy orcustom of Carlisle to let Mark Byrd

operate a motor vehicle even though Carlisle knows Mark

Byrd is an unfit and unsafe driver, and it is the policy or

custom of Carlisle not to enforce the laws of the Common-

wealth of Kentucky regarding the operation of motor vehicles

against Mark Byrd. The effect of these policies or customs is

in fact to encourage Mark Byrd to drive a motor vehicle. The

actions and policies or customs of Carlisle are substantially

certain to result in deprivation of rights secured to United

States citizens such as James Ricky Jones by the United

States Constitution, including without limitation rights se-

cured to James Ricky Jones by the Fourteenth Amendment

to the United States Constitution.

36. The actions and policies or customs of Carlisle have

caused James Ricky Jones to suffer a deprivation of rights

secured to him by the United States Constitution, including

without limitation those rights secured to him by the Four-

teenth Amendment to the United States Constitution.

37. The actions and policies or customs of Carlisle as

enumerated herein amount toa deliberate indifference to the

constitutional rights of persons such as James Ricky Jones

who use the public highways in Carlisle and in Nicholas

County, Kentucky.

58a

38. James Ricky Jones as a citizen of the United States

of America and as a citizen of the Commonwealth of Ken-

tucky is entitled to protections of the laws of the United

States and of the Commonwealth of Kentucky.

39. The actions and policies or customs of Carlisle are

abusive in that they amount to a conscious decision not to

enforce the laws of the Commonwealth of Kentucky against

Mark Byrd and this conscious decision is a deliberate indif-

ference to the rights of James Ricky Jones and those similarly

situated, said decision causing James Ricky Jones to be

deprived of rights secured to him under the United States

Constitution, including without limitation rights secured to

him by the Fourteenth Amendment to the United States

Constitution.

40. The actions and policies or customs of Carlisle have

injured James Ricky Jones, and because of this, Carlisle is

liable to pay damages to James Ricky Jones in the amount of

Three Million Dollars ($3.0 Million).

41. As per 42 U.S.C. §1988, James Ricky Jones is

entitled to recover a reasonable attorney’s fee against Carlisle.

COUNT II

42. They reaffirm and re-allege the allegations con-

tained in paragraphs 1 through 41 of this complaint.

43. The Court has ancillary and/or pendent jurisdic-

tion of this Count II due to the fact that the allegations herein

arise from a common nucleus of operative facts involved in

other counts.

44. At all times relevant hereto, the City of Carlisle,

Kentucky, was acting through its agents and employees,

acting in the real and/or apparent course and scope of their

59a

agency or employment.

45. At all times relevant hereto, the City of Carlisle,

Kentucky, owed a duty to the plaintiffs herein to exercise

ordinary care in providing police protection and law enforce-

ment for the benefit of the plaintiffs herein and the public at

large.

46. Prior to November of 1990, the City of Carlisle,

Kentucky, knew or should have known that Mark Byrd was

an unsafe, dangerous, and unfit operator of a motor vehicle

and that Mark Byrd had been involved in numerous automo-

bile accidents caused by Mark Byrd’s seizure disorder.

47. The City of Carlisle, Kentucky, breached the duty

it owed to plaintiffs by negligently and carelessly providing

police protection and law enforcement, and this breach of

duty was a substantial factor in causing an automobile

accident involving Mark Byrd and James Ricky Jones on or

about November 13, 1990, on U.S. Hwy. 68 in Nicholas

County, Kentucky.

48. Pursuant to KRS 189.635, the City of Carlisle,

Kentucky, owed a duty to plaintiffs to file reports of automo-

bile accidents involving Mark Byrd. The City of Carlisle,

Kentucky, breached this duty and the breach was a substantial

factor in causing the automobile accident, occurring on or

about November 13, 1990, involving Mark Byrd and James

Ricky Jones.

49. Asadirect result of the aforementioned automobile

accident, James Ricky Jones has incurred and will incur pain

and suffering, has lost wages, has incurred and will incur

medical expenses, and his power to work and earn money has

been impaired permanently, all to his damage in the amount

of $3.0 Million Dollars.

60a

50. Vera Jones is the wife of James Ricky Jones, and as

a result of the negligence of the City of Carlisle, Kentucky,

she has suffered loss of consortium with her husband, to her

damage in the amount of Five Hundred Thousand Dollars

($500,000.00).

51. The actions of the City of Carlisle, Kentucky, were

reckless and wanton and constitute gross negligence, thereby

entitling plaintiffs to punitive damages in an amount to be

determined.

52. The actions of the City of Carlisle, Kentucky are

conduct carried out by them with a flagrant indifference to

the rights of the plaintiffs and with a subjective awareness

that such conduct will result in human death or bodily harm,

thereby entitling plaintiffs to punitive damages in an amount

to be determined.

COUNT III

53. They re-affirm and re-allege the allegations con-

tained in paragraphs 1 through 52 of this complaint.

JURISDICTION

54. This Court has jurisdiction of Count III pursuant to

28 U.S.C. §1332r 28 U.S.C. §2201, 28 U.S.C. §2202, and

Federal Rule of Civil Procedure 57.

55. Alternatively, the Court has ancillary and/or pen-

dent jurisdiction of this Count III due to the fact that the

allegations herein arise from a common nucleus of operative

facts involved in other counts.

56. Plaintiffs are citizens of Kentucky.

6la

57. Preferred Risk Mutual Insurance Company (here-

inafter Preferred) is a citizen of the State of Iowa, is not a

citizen of the State of Kentucky, and does not have a principal

place of business in the State of Kentucky.

58. The amount in controversy under Count III is in

excess of Fifty Thousand Dollars ($50,000.00).

59. Preferred is a corporation duly authorized and

existing by authority of law with the power to sue and be

sued, and it is qualified to carry on an insurance business in

the Commonwealth of Kentucky.

60. Preferred entered into an insurance contract in

Kentucky with plaintiffs by which plaintiffs purchased un-

derinsured motorist coverage, which coverage is applicable

to the accident mentioned hereinabove occurring on or about

November 13, 1990.

61. Mark Byrd isan underinsured motorist because his

automobile liability insurance coverage is insufficient to

compensate plaintiffs for their losses.

62. Preferred owes plaintiffs the sum of One Hundred

Thousand Dollars ($100,000.00) under the underinsured

motorist coverage issued by Preferred, and plaintiffs have

performed all conditions precedent to recovery.

63. Areal and actual controversy exists between Pre-

ferred and plaintiffs concerning whether the liability limit on

the underinsured motorist coverage in the insurance con-

tract issued by Preferred is Fifty Thousand Dollars

($50,000.00) or One Hundred Thousand Dollars($100,000.00).

64. Plaintiffs contend that the underinsured motorist

limit of liability is One Hundred Thousand Dollars

($100,000.00) per person and Preferred contends that the

62a

limit of liability on the underinsu.ed motorist coverage is

Fifty Thousand Dollars ($50,000.00) per person.

65. Plaintiffs request the Court to declare that the

underinsured motorist limit of liability under the aforemen-

tioned insurance contract issued by Preferred is One Hun-

dred Thousand Dollars ($100,000.00) per person.

COUNT IV

66. They re-affirm and re-allege the allegations con-

tained in paragraphs 1 through 65 of this complaint.

67. The Court has ancillary and/or pendent jurisdic-

tion of this Count IV due to the fact that the allegations

herein arise from acommon nucleus of operative facts involved

in the other counts.

68. On or about November 13, 1990, on U.S. Hwy. 68,

a public highway in Nicholas County, Kentucky, Mark Byrd

so carelessly and negligently operated a motor vehicle so as

to cause it to collide with a motor vehicle being operated by

James Ricky Jones.

69. As a direct and proximate result of the aforemen-

tioned negligence, James Ricky Jones has incurred and will

incur pain and suffering, has lost wages, has incurred and

will incur medical expenses, and his power to work and earn

money has been impaired permanently, all to his damage in

the amount of $3.0 Million Dollars.

70. Vera Jones is the wife of James Ricky Jones, and as

a direct and proximate result of Mark Byrd’s negligence, she

has suffered loss of consortium with her husband, all to her

damage in the amount of Five Hundred Thousand Dollars

($500,000.00).

63a

DEMAND FOR JURY TRIAL

The plaintiffs demand a trial by jury on all issues so

triable.

WHEREFORE, the plaintiffs demand:

1. Under Count I, James Ricky Jones demands judg-

ment against Carlisle, Kentucky, in the amount of $3.0

Million Dollars plus a reasonable attorney’s fee;

2. Under Count II, James Ricky Jones demands judg-

ment against Carlisle, Kentucky, in the amount of $3.0

Million Dollars, Vera Jones demands judgment against

Carlisle, Kentucky, in the amount of Five Hundred Thou-

sand Dollars ($500,000.00), and plaintiffs demand judg-

ment against Carlisle, Kentucky, for punitive damages in an

amount to be determined;

3. Under Count III, James Ricky Jones demands

judgment against Preferred Risk Mutual Insurance Com-

pany declaring that the insurance contract sold to him by

Preferred Risk Mutual Insurance Company provides un-

derinsured motorist coverage in favor of James Ricky Jones

in the amount of One Hundred Thousand Dollars

($100,000.00), and James Ricky Jones demands judgment

against Preferred Risk Mutual Insurance Company in the

amount of One Hundred Thousand Dollars ($100,000.00);

4. Under Count IV, James Ricky Jones demands a

judgment against Mark Byrd in the amount of $3.0 Million

Dollars, and Vera Jones demands judgment against Mark

Byrd in the amount of Five Hundred Thousand Dollars

($500,000.00);

5. Atrial by jury; and

6. Their costs herein expended.

64a

SUIT, McCARTNEY & PRICE

BY: /s/ Frank H. McCartney

207 Court Square

Flemingsburg, Kentucky 41041

(665) 849-2338

ROSENBAUM & ROSENBAUM, P.S.C.

BY: /s/ Lestie Rosenbaum

LESLIZ ROSENBAUM

KIMBERLY HUNT PRICE

300 Lexington Building

201 West Short Street

Lexington, Kentucky 40507-1289

(606) 259-1321

ATTORNEYS FOR PLAINTIFFS