govinfo:USCOURTS-kywd-3_25-cv-00134-0

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
AT LOUISVILLE 
CIVIL ACTION NO. 3:25-CV-00134-CRS 
JOHN MILLET, III PLAINTIFF 
v. 
JAMES CAMERON WRIGHT, et al DEFENDANTS 
In his individual capacity 
MEMORANDUM OPINION AND ORDER 
Plaintiff, John Millet, has brought this civil action pursuant to 42 U.S.C. § 1983. He 
alleges that defendant  James Wright deprived him of his right to be  free from excessive force. 
Wright, a Kentucky State Police trooper, arrested Plaintiff on March 12, 2024 in connection with 
a traffic stop. According to Plaintiff,  because he only passively resisted arrest, Wright ’s use of 
for
ce—throwing him to the ground  and tasing him —wa s excessive. He has sued Wright in his 
individual capacity for monetary relief. Amended Complaint at ¶ 3, DN 4 at PageID# 41. Plaintiff 
has sued other Kentucky State Police (“KSP”) officers in addition to Wright. Those KSP officers 
include Michael  Rogers,  
Chad White  and  Phillip  Burnett,  Jr. Plaintiff  has sued  each of these 
de
fendants in his individual  capacity and in his official  capacity. Id. at ¶¶ 7-9, PageID# 43-44. 
Rogers, White and Burnett (“ Defendants”)  have moved to dismiss. 1 Motion, DN 18. In  lieu of 
responding to that Motion, Plaintiff has moved for leave to file a second amended complaint. DN 
20. De
fendants  have  objected to amendment.  They  maintain that amendment  would be  futile  
because the proposed second amended complaint could not survive a motion to dismiss. The Court 
agrees. For that reason, leave to amend will be denied. 
1 Several other KSP officers are named in the Amended Complaint and in the proposed second amended complaint, 
but none has moved to dismiss.  
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Next, the Court will grant Defendants’ Motion to Dismiss the Amended Complaint (DN 
18). The allegations in that pleading likewise fail to sufficiently plead claims against Defendants. 
That dismissal  will  be without prejudice  except for  Plaintiff’s Fou rte enth  Amendment  Claim. 
P
laintiff has waived that claim, so it will be dismissed with prejudice.    
That brings the Court to the final pending motion: Defendants’ Motion to Strike Plaintiff’s 
Reply filed in support of his Motion to Amend (DN 31). Defendants assert that the Reply should 
be stricken because Plaintiff improperly presented new arguments to which Defendants did not 
have the chance to respond. For the same reason, Defendants also seek leave to file a surreply to 
the extent the Court denies their Motion to Strike. The Court will grant some relief to Defendants. 
While Plaintiff’s Reply does contain new arguments, it is not entirely dedicated to new argument. 
It also contains arguments which 
do no more than rebut arguments made by Defendants in response 
to 
the Motion to Amend.  For this reason, striking the Reply  entirely would not be appropriate. 
How
ever, to the extent that the Reply does contain new arguments, the Court need not and will not 
consider those new arguments. Ryan v. Hazel Park, 279 F. App’x 335, 339 (6th Cir. 2008) (issues 
raised for first time in reply are waived). 
BACKGROUND 
The following facts are drawn from Plaintiff’s proposed second amended complaint. On 
Ma
rch 12, 2024, Trooper Wright pulled Plaintiff over because Plaintiff failed to use his turn signal. 
Proposed 2nd Amd. Compl. at ¶ 47. Trooper Wright smelled alcohol and noticed that Plaintiff ’s 
speech was “thick.” Id. Thus, he suspected that Plaintiff was drunk. Id. Trooper Wright asked for 
Plaintiff’s license and insurance. Id. at ¶ 50. Plaintiff admitted that he was not insured and admitted 
that his tags were expired. Id. at ¶ 51. Trooper Wright asked Plaintiff to exit his car and grabbed 
Plaintiff’s right arm to control him. Id. at ¶ 57. Plaintiff ’s hands were in the air. Id. Nonetheless, 
Trooper Wright threw Plaintiff to the ground. Id. at ¶ 58. Trooper Wright ordered Plaintiff to put 
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his hands behind his back. Id. at ¶ 59. Trooper Wright then ordered Plaintiff to get on his belly. Id. 
at ¶ 60. Plaintiff apparently did not comply. Trooper Wright again ordered Plaintiff to get on his 
belly. Id. at ¶ 61. Less than a second later, Trooper Wright tased Plaintiff. Id. About eight minutes 
later, Trooper  Wright  tased  Plaintiff  again  for  about  ten seconds.  Id.  at  ¶¶  62-63.  Thereafter, 
Plaintiff rolled over onto his stomach, was handcuffed, was thrown to ground for a second time, 
and was arrested after he was released from  
 the hospital where he had been taken for treatment. 
Id. at ¶¶ 64-66, 69. Plaintiff alleges that Wright ’s use of force —throwing him to the ground and 
tasing 
him—was excessive, subjecting him to a violation of his constitutional rights.  Id. at ¶ 71. 
Thus, he has sued Trooper Wright for damages.  
Plaintiff also alleges that defendants Rogers, White and Burnett are personally liable for 
Trooper Wright’s conduct. Plaintiff has attempted to plead two sets of events to establish his claims 
against these defendants. Both sets of events are meant to show that Rogers, White  and Burnett 
were on notice of a risk that Wright would use excessive force and did nothing about it. The first 
set of events describes four prior incidents specific to Wright. The second set of events is 
described 
as a cover up of a systemic excessive-force problem within the KSP. For the most part, 
Plaintiff has pleaded his allegations against Rogers, White and Burnett collectively and 
indiscriminately, frequently listing each of them with other supervisory defendants, and simply 
accusing the group of the same misconduct. As explained below, this style of collective pleading 
often leads to vague allegations that fail to plead facts as to each supervisory 
defendant’s responsibilities and conduct, i.e.
  what they knew and what they had the power to do 
but failed to do. As such, a court is often left with the impression that the supervisory 
defendants are being sued simply because of the job they hold at the ti me the complaint is 
drafted.  
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 Here, there are some exceptions to the collective style of pleading. They include paragraphs 
7, 8 and 9 which fall under the heading “Parties.”  The wording of these three paragraphs is 
identical, except for each defendant’s job title and rank. Paragraph 7 reads as follows: 
At all relevant times herein, Defendant Michael Rogers (“Rogers”) was the 
Office of Operations Commander, with the Kentucky State Police, who, among 
other things, supervised West Troop and Post 4 of the Kentucky State Police.  
At all times relevant hereto, he was acting under color of law, in connection 
with his position as a Lt. Colonel with the KSP.  
Rogers “implicitly authorized, approved, or knowingly acquiesced in the 
unconstitutional conduct of” Defendant Wright complained of herein, and thus 
the incident with Plaintiff was causally connected to this deliberate 
indifference, as set forth in clearly established law set forth in Campbell v. City 
of Springboro, Ohio, 700 F.3d 779, 789-790 (6th Cir. 2012).  
Rogers is sued for supervisory liability under § 1983 for monetary damages in 
his individual capacity, and in his official capacity for prospective injunctive 
and declaratory relief. 
Proposed 2nd Amd. Compl., DN 20-1 at PageID# 137 (spacing added for ease of reference).  
 Paragraph 8 opens with this allegation:  
At all relevant times herein, Defendant Chad White (“White”) was the Deputy 
Commissioner, with the Kentucky State Police, who, among other things, 
supervised Operations, West Troop, and Post 4 of the Kentucky State Police. 
Id. The rest of Paragraph 8 is essentially identical to Paragraph 7, differing only with respect to 
referring to Deputy Commissioner White as a “Colonel” as opposed to a “Lt. Colonel” and using 
White’s name to allege that he is being sued in his individual and official capacities. Id. 
 Paragraph 9 opens with this allegation: 
At all relevant times herein, Defendant Phillip Burnett (“Burnett”) was the 
Commissioner, with the Kentucky State Police, who, among other things, 
supervised Operations, West Troop, and Post 4 of the Kentucky State Police. 
Id. at PageID# 138. The remainder of Paragraph 9 is nearly identical to Paragraph 8 . Plaintiff 
apparently used a cut-and-paste method, as Paragraph 9 pleads that “White implicitly authorized, 
approved, or knowingly acquiesced in . . . .” Id. (emphasis added).  Like Paragraphs 7 and 8, 
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Paragraph 9 alleges that Burnett is being sued in both his individual and official capacities. Id. 
These paragraphs do not plead when defendant Rogers became employed as “the Office of 
Operations Commander,” do not plead when defendant White became employed as the “Deputy 
Commissioner,” and do not plead when defendant Burnett became the “Commissioner.” Nor do 
these paragraphs contain allegations as to these defendants’ duties, aside from a blanket allegation 
that they “supervised operations.” Nor do these paragraphs contain allegations as to the authority 
each of these defendants possessed with respect to his duties. 
 Next, the proposed second amended complaint describes four alleged excessive -force 
incidents in which Trooper Wright was involved  and which preceded Plaintiff ’s encounter with 
Wright. Id. at ¶¶ 14 -44, DN 20 -1 at PageID# 139 -43. With respect to each of these incidents, 
Plaintiff alleges that Wright used excessive force or suggests that he did. Id. at ¶¶ 15, 34, and 43. 
With respect to defendants Roger ’s, White ’s and Burnett ’s conduct regarding t wo of these 
incidents, Plaintiff makes the same allegation:  
Johnson, Rogers, White and Burnett were aware of the . . . incident, either at 
the time, or shortly thereafter, but signed off on and approved Defendant 
Wright’s use of excessive force and elected not to take any meaningful action. 
Id. at ¶¶ 16, 20.2 Plaintiff omits this allegation for the third incident altogether, save for allegations 
in Paragraphs 40 and 73 generally alleging that Defendants were aware of the prior incidents or  
“pattern of misconduct .” DN 20 -1 at PageID# 143, 147. With respect to the fourth incident, 
Plaintiff similarly pleads that 
Defendant Wright, Farris, McKee, Riley, Smith, Johnson, Rogers, White and 
Burnett, each were aware of the occurrence . . . , were aware [that] . . . Wright 
stated that the Commissioner had his back, and were aware of . . . perjury by 
Defendant Wright, and each with deliberate indifference elected to take no 
meaningful action against Defendant Wright for any incident of excessive 
 
2 Again, Plaintiff’s use of a cut-and-paste pleading method is evident. Paragraph 20 references “the Halcomb incident” 
but the paragraphs that precede it do not relate to that incident.  
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force, for his perjury, or for the prior incidents of excessive force involving 
Defendant Wright. 
Id. at ¶ 40, DN 20-1 at PageID# 142-43. None of the paragraphs that pertain to the four incidents 
involving Wright pleads facts as to how either defendant Rogers, White, or Burnett learned about 
or was put on notice of any of the incidents of Wright ’s or any other involved trooper’s conduct. 
None pleads any action taken or statement made by any of these defendants which suggests he 
knew about or had been put on notice of any of the alleged unlawful conduct. 
 Finally, the proposed second amended complaint pleads allegations described as a “cover 
up.” Id., DN 20 -1 at PageID# 148. These allegations comprise 22 paragraphs, beginning with 
paragraph 77 and ending with paragraph 98. The allegations are voluminous and not all of them 
are pertinent to the Court’s decision. For this reason, rather than delineating them here, the Court 
identifies them and discusses them below in connection with its analysis of their sufficiency. 
ANALYSIS 
 The Court begins with the order in which it must review the pending motions and the 
standards applicable to those motions. When both a motion to dismiss and a motion to amend are 
pending, a court must consider the motion to amend before considering the motion to dismiss. Rice 
v. Karsch, 154 F. App’x 454, 464 (6th Cir. 2005) (citing Ellison v. Ford Motor Co., 847 F.2d 297, 
300 (6th Cir. 1988)).  Generally, leave to amend should be “freely given.” Foman v. Davis , 371 
U.S. 178, 182 (1962). However, leave need not be given if amendment would be futile. Id. 
Amendment is futile if a claim or claims would not survive a Rule 12(b)(6) motion to dismiss . 
Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).    
 On a Rule 12(b)(6) motion, two working principles underlie a court ’s review. Ashcroft v. 
Iqbal, 556 U.S. 662, 678 (2009). First, unlike fact allegations, legal conclusions are not entitled to 
the assumption of truth. Id. Thus, a legal conclusion couched as a fact allegation need not be taken 
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as true. Id. Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 
conclusory statements, do not suffice.” Id. “Second, only a complaint that states a plausible claim 
for
 relief survives a motion to dismiss.” Id. at 679. “[W]here the well-pleaded facts do not permit 
the court to infer more than the mere possibility of misconduct, the complaint has alleged —but it 
has 
not ‘shown’—‘that the pleader is entitled to relief.’”  Id. (quoting FED. R. C IV. P. 8(a)(2)). 
Stated another way, “[w]here a complaint pleads facts that are ‘merely consistent with’ a 
defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement 
to relief. ’” Id. (quoting Twombly , 550 U.S. at 557). Such circumstances warrant dismissal 
because “only a complaint that states a plausible claim for relief survives a motion to dismiss.” 
Id. (citing Twombly , 550 U.S. at 556).  
Plaintiff proposes to sue  Rogers, White and Burnett  pursuant to § 1983 on a  theory of 
“supervisory liability.” Proposed 2nd Amd. Compl.  § ¶¶ 7, 8 & 9. “Supervisory  liability” is a 
misnomer with respect to § 1983 claims. Iqbal, 566 U.S. at 677. Under § 1983, “each Government 
official, his or her title notwithstanding, is only liable for his or her own misconduct.”  Id. Stated 
another way, the mere  fact that a defendant occupied a position of authority does not justify the 
imposition of § 1983 liability. Id. at 676 (doctrine of respondeat superior does not apply to § 1983 
claims). Unless the supervisor, “either encouraged the specific incident of misconduct or in some 
other way directly participated in it,” Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir. 1982), 
his “failure to supervise,  control, or train” the offending subordinate official is not actionable. 
Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016). Accordingly, the mere failure to 
act even in the face of a pattern of misconduct does not suffice to establish liability under § 1983. 
Rizzo v. Goode, 423 U.S.  362, 375-76 (1976); Hays, 668 F.2d at 873-74; accord Peatross, 818 
F
.3d at 241. There must be some “‘active unconstitutional behavior’” on the part of the supervisor. 
Pe
atross, 818 F.2d at 241 (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). 
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 For courts within the Sixth Circuit, “active unconstitutional behavior” includes implicitly 
authorizing, approving or knowingly acquiescing in the unconstitutional conduct of the offending 
official. Doing so is considered to be either encouraging the specific incident of misconduct or 
directly participating in it in some way other than being physically present. Id. at 242. Additionally, 
there must be a causal connection between the supervisor ’s conduct and the violation alleged. 
Causation may be established by showing that a supervisor’s execution of a job duty or his failure 
to do his job directly resulted in the unconstitutional conduct. Id. (citing Hill v. Marshall, 962 F.2d 
1209 (6th Cir. 1992)). These standards presuppose that the supervisory official knew that a risk of 
unconstitutional conduct existed and that he possessed the authority to do something that would 
prevent that unlawful conduct.   
A. The Motion for Leave to File a Second Amended Complaint 
1. The Proposed Allegations Against Rogers, White and Burnett 
 Plaintiff has attempted to plead two sets of events to show that defendants Rogers, White 
and Burnett were on notice that Trooper Wright posed a risk of using excessive force on members 
of the public. Both suffer from fatal infirmities. The first set of events consists of four incidents 
that took place prior to Plaintiff ’s March 12, 2024 encounter with Trooper Wright. Plaintiff has 
pleaded, collectively, that Rogers, White and Burnett “were aware” of these incidents. These 
allegations are conclusory. There are no pleaded facts as to how or when either Rogers, White, or 
Burnett became aware of the  prior incidents. Nor has Plaintiff pleaded facts that connect any of 
these defendants to the dates on which these prior incidents took place. That is, the allegations do 
not show that Rogers held the job of “the Offic e of Operations Commander,” or that White held 
the job of “Deputy Commissioner,” or that Burnett held the job of “Commissioner” when these 
events took place. Pleading that each held his respective job “at all relevant times” does not suffice. 
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It is conclusory. Being conclusory, Plaintiff ’s allegations are not entitled to the presumption of 
truth. Iqbal, 556 U.S. at 678.  
 As a result, the proposed second amended complaint does not set forth facts from which 
one can plausibly infer that either Rogers, White, or Burnett knew about or w as on notice of th e 
prior incidents. Nor does the proposed second amended complaint contain pleaded facts as to what 
duties and authority came with “the Office of Operations Commander,” the “Deputy 
Commissioner,” or the “Commissioner” at the time of these incidents. Thus, one cannot plausibly 
infer that any of these defendants (1) implicitly approved, authorized, or knowingly acquiesced in 
Trooper Wright’s alleged use of excessive force on Plaintiff and/or (2) failed to do his job which 
resulted in Trooper Wright ’s unconstitutional conduct.  Peatross, 818 F.3d at 242. Thus, the 
proposed second amended complaint fails to plausibly plead an entitlement to relief from either 
Rogers, White, or Burnett under § 1983 based on the four prior incidents it describes . Iqbal, 556 
U.S. at 679; Peatross, 818 F.3d at 242.  
 The second set of pleaded events are a somewhat closer call.  These allegations are 
contained in Paragraphs 77-98. They attempt to plead a cover up within the Kentucky State Police. 
There are two overriding infirmities in these allegations. First, the constitutional wrong for which 
Plaintiff seeks to hold Rogers, White and Burnett liable is excessive force. While the allega tions 
in Paragraphs 77 -98 reference use -of-force incidents, they do not plead that all these incidents 
involved excessive force. Paragraph 77 refers to “30 serious use of force incidents.” Proposed 2nd 
Amd. Compl., DN 20-1 at PageID# 148 (emphasis added). Paragraphs 78, 79 and 82 refer to only 
to “use of force of incidents.” Id. at PageID# 148-49. Paragraph 91 refers to “the use of significant 
force.” Id. at PageID# 151 (emphasis added). There are no allegations of “excessive use of force” 
in these paragraphs.  Second, there are no pleaded facts that connect either Rogers, White, or 
Burnett to the “excessive force incidents” that are referenced in different paragraphs. Taken 
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together, Paragraphs 80 and 81 allege that there were “hundreds of reported incidents of excessive 
force by Post 4 Troopers” and that “ KSP would dispatch a sergeant” who completed a “form E -
42” to cover up these incidents. Id. at PageID# 149  (emphasis added). Paragraph 83 faults a 
Sergeant Mabe (who is not a party to this action) for falsely accusing “more than two dozen  
people” of taking a “bladed aggressive stance” for the purpose of covering up the use of excessive 
force by Post 4 troopers. Id. Paragraph 84 alleges that from 2020 to 2025 “more than a thousand 
incidents” of excessive force were documented in E-42 forms.  
 That Plaintiff became aware of  these thousands of E -42 forms which reported excessive 
force appears implausible given two other allegations. First, Plaintiff pleads that all the E-42 forms 
were destroyed: “Then the E -42 forms, regardless of whether excessive force was found, were 
routinely destroyed per KSP policy.” Id. at ¶ 88, DN 20-1 at PageID# 150. Second, Plaintiff pleads 
that there was no other means by which to track use-of-force incidents (much less excessive-force 
incidents) because defendants “Johnson, Rogers, White and Burnett . . . elected not to implement 
IAPro software,” acquired in 2022, that would have created a “permanent record” of incidents  
involving the use of force . Id. at ¶ 97, DN 20 -1 at PageID# 152.  Given the self -conflicting 
allegations as to the E -42 forms, even if the Court assumes that E-42 forms were, in general, 
forwarded to Rogers, White and Burnett, id. at ¶ 88, that allegation does not nudge Plaintiff ’s 
claims across the line from possible liability to plausible liability.  The same is true for the 
allegation that these defendants did not implement purchased software that would track use -of-
force incidents. As well, the pleaded time period is problematic. Plaintiff pleads that the alleged 
cover up spanned 2020 to 2025. Any events after March 12, 2024, the date on which Plaintiff was 
allegedly injured, could not have led to that injury. In sum, while a few of the coverup allegations 
present closer calls as to what Rogers, White and Burnett may have known and did, taken together, 
they are self-defeating.  
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 The remaining allegations respecting the conduct of Rogers, White and Burnett also fail to 
plead facts that plausibly show an entitlement to relief. Paragraph 86 alleges that these defendants 
made routine personnel changes to prevent other “Troopers staffi ng internal affairs” from 
“discovering patterns of excessive force  and misconduct that may make KSP look bad. ” Id. at 
PageID# 150. “Looking bad” is not unconstitutional conduct. Next, Plaintiff alleges that Rogers, 
White and Burnett,” permitted Troopers to review body-camera footage so that they could “mold 
their statements” in E -42 forms to that footage. Id. at ¶ 87. Plaintiff has not pleaded a causal 
connection between creating such a consistency between recordings of events and Wright’s use of 
excessive force on Plaintiff. Finally, Plaintiff has pleaded that  
It was KSP policy and practice, including within the OMB -4 policy governing 
use of force, to charge a victim of KSP’s use of force with the criminal offense 
of resisting arrest, regardless of whether the person in fact resisted arrest . . . 
and the vast majority of these charges were ultimately dismissed as 
unsubstantiated, just as that charge against Plaintiff was dismissed. 
Id. at ¶ 91. This allegation is also insufficient. There are no pleaded facts with respect to the content 
of the OMB -4 policy. There are no pleaded facts that establish how or when either defendant 
Rogers, White, or Burnett were put on notice of any such practice and no pleaded facts that any of 
their jobs made them responsible for promulgating policies or amending them.  
 Finally, the proposed second amended complaint contains several recitations of the 
elements of the claim and legal conclusions that are not entitled to the presumption of truth. 
Plaintiff repeatedly pleads that Rogers, White and Burnett  
“implicitly authorized, approved, or knowingly acquiesced in the 
unconstitutional conduct of” Defendant Wright complained of herein, and thus 
the incident with Plaintiff was causally connected to this deliberate 
indifference, as set forth in clearly established law set forth in Campbell v. City 
of Springboro, Ohio, 700 F.3d 779, 789-790 (6th Cir. 2012).  
Proposed 2nd Amd. Compl. at ¶ 7, 8, 9, 41, 106 & 110. Count One, the only count, consists almost 
entirely of conclusory allegations and recitations of case law . There are two exceptions. The first 
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is Paragraph 99 which incorporates all preceding paragraphs. In this manner, it includes some fact 
allegations. Paragraph 100 alleges that Plaintiff is a United States citizen. The rest of the 
allegations consist of conclusory allegations or recitations of the elements of a claim. Id. at ¶¶ 101-
111. Indeed, Paragraph 105 is a summary of cases that address resisting arrest and use of force. 
Being conclusory, none of these allegations is entitled to a presumption of truth.  
2. The Fourteenth Amendment Claim 
 The proposed second amended complaint asserts that Defendants violated  Plaintiff’s 
Fourteenth Amendment Rights. Proposed 2nd Amd. Compl. at ¶  103, DN 20-1 at PageID# 153 . 
Defendants assert that because Plaintiff was an arrestee and not a pretrial detainee at the time 
Wright allegedly used excessive force, Plaintiff’s claim arises exclusively under the Fourth 
Amendment. Response, DN 23 at PageID# 190 (citing Graham v. Connor, 490 U.S. 386 (1989)). 
Plaintiff contends that this argument fails because  he “is not bringing a stand -alone Fourteenth 
Amendment claim.” Reply, DN 27 at PageID# 213. Plaintiff ’s contention is incredulous . I t is 
belied by express allegations:    
Defendants . . . violated and are violating Plaintiffs ’ [sic] Fourteenth 
Amendment Rights, which have deprived, are depriving, and will deprive 
Plaintiff of his rights to equal protection and due process . . . .  
Proposed 2nd Amd. Compl. at ¶ 103, DN 20-1 at PageID# 153. Even if the Court were to set aside 
the direct contradiction between Plaintiff’s allegations and his argument, the Court would dismiss. 
Plaintiff has essentially conceded that the Fourteenth Amendment does not apply in his case. 
Moreover, Plaintiff has waived any independent cause of action under the Fourteenth Amendment 
by declaring that he is not proceeding upon such a claim and never meant to plead one. Given these 
circumstances, the Court will grant Defendants ’ motion to dismiss the Fourteenth Amendment 
claim. Hamer v. Neighborhood Hous. Serv. of Chicago, 583 U.S. 17, 20 n.1 (2017) (“waiver is the 
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‘intentional relinquishment or abandonment of a known right.’”) (quoting U.S. v. Olano, 507 U.S. 
725, 733 (1993)).  
3. The Official Capacity Claims 
 Relying on the same allegations, Plaintiff has sued defendants Rogers, White and Burnett 
in their official capacities as officers with the Kentucky State Police. With respect to state officials, 
such claims are an exception to a state ’s sovereign immunity embodied in the Eleventh 
Amendment. The exception was established by the Supreme Court’s decision in Ex Parte Young, 
209 U.S. 123 (1908). In that case, the Supreme Court held that state officials may be sued in their 
official capacities for prospective injunctive relief to stop ongoing violations of federal law. Thus, 
to determine whether a plaintiff’s official-capacity claims fit within this exception, “ a court need 
only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation 
of federal law and seeks relief properly characterized as prospective.’” Verizon Md., Inc. v. Public 
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 
521 U.S. 261, 296 (1997) (O’Connor, J., concurring in part and concurring in judgment)).  
 Plaintiff’s claims do not satisfy that straightforward inquiry. The two sets of events o n 
which Plaintiff relies for his claims do not allege on-going violations of federal law. The first set 
is based on incidents that took place in the past : Trooper Wright’s conduct on March 12, 2024 
when Plaintiff was injured and four incidents that took place prior to that date . The second set of 
events—the alleged coverup—spanned the years 2020 to 2025 . There are no allegations that th e 
alleged unconstitutional conduct is on-going.  
4. Defendant White 
 In opposition to Plaintiff’s claims, defendant White asserts that Plaintiff cannot show that 
his conduct led to Plaintiff ’s injury. As grounds, White points to two facts: (1) Plaintiff was 
allegedly subjected to excessive force on March 12, 2024 and (2) White did not become employed 
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by the Kentucky State Police until July 2, 2024. Th us, according to White, it was impossible for 
him to be on notice of any conduct that risked the use of excessive force against Plaintiff and 
impossible for White to have taken some action to prevent it. Thus, Plaintiff’s claims against him 
are futile. To support his argument, White relies on a personnel record he attached to his Motion 
to Dismiss . Response, DN 23 at PageID# 197; id. at PageID# 189 (incorporating motion to 
dismiss); 07/02/24 Personnel Action Notification, DN 18-1 at PageID# 122.  
 Plaintiff argues that the Court may not consider White’s personnel record because it is not 
admissible on a Rule 12(b)(6) motion, particularly given that it has not been authenticated. Reply, 
DN 27 at PageID# 223. It is true that on a Rule 12(b)(6) motion, a district court should limit its 
review to the pleaded allegations and exhibits attached to the complaint. Blackwell v. Nocerini , 
123 F.4th 479 (6th Cir. 2024). There are exceptions. For example, when a document is referenced 
in the complaint and the legal sufficiency of a claim depends on its content, a district court may 
consider it on a motion to dismiss. Hodges v. City of Grand Rapids, 139 F.4th 495, 513 (6th Cir. 
2025) (citing Blackwell, 123 F.4th 479). Such a document is “central” to the complaint because a 
claim’s validity “rises or falls” with the content of the document. Blackwell, 123 F.4th at 487. 
White’s personnel record shows that he was not employed by the KSP prior to July 2, 2024. Thus, 
White is correct that it supports the conclusion that he is not culpable for Plaintiff’s injury which 
took place on March 12, 2024. But whether the Court may rely on that record now is unclear.  
 Contrary to White ’s argument, the document is not referred to in the proposed second 
amended complaint. Plaintiff’s conclusory allegation that White was Deputy Commissioner “at all 
relevant times” does not change that fact. It is also true that White has not authenticated the record. 
Yet, Plaintiff does not dispute its authenticity. He merely notes White ’s failure to authenticate it. 
Reply, DN 27 at PageID# 223. Without more, the Court has no reason to doubt the authenticity of 
the personnel record, particularly given that defendant White ’s brief is subject to FED. R. CIV. P. 
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11(b) (by presenting motion to court , filer represents that fact contentions have evidentiary 
support). Nor does it appear that the parties have tried to resolve the dispute among themselves. If, 
as he contends, White was not employed by the KSP at any time before Plaintiff’s injury, he could 
not have been on notice of an excessive force risk to Plaintiff. Nor could White have held a job 
that would have given him the power to prevent Plaintiff ’s alleged injury. Today, the Court is 
dismissing the claims against White on other grounds but is doing so without prejudice. As a result, 
the Court encourages the parties to resolve the dispute raised by White’s personnel record, if 
possible, before presenting the Court with it again. 
B. The Motion to Dismiss the Amended Complaint 
 The Amended Complaint relies on three of the four prior incidents involving Troop er 
Wright to establish the individual liability of defendants Rogers, White and Burnett. It contains no 
coverup allegations. As well, the allegations as to these incidents are the same allegations 
contained in the proposed second amended complaint. Thus, they fail for the same reasons. See 
infra at Section A.1. In short, the Amended Complaint does not set forth facts from which one can 
plausibly infer that either Rogers, White, or Burnett knew about or were on notice of these prior 
incidents. Nor does it contain pleaded facts as to what responsibilities and authority either “the 
Office of Operations Commander,” the “Deputy Commissioner,” or the “Commissioner” had at 
the time of these incide nts. Thus, one cannot plausibly infer that any of these defendants (1) 
implicitly approved, authorized, or knowingly acquiesced in Trooper Wright ’s alleged use of 
excessive force on Plaintiff and/or (2) failed to do his job which resulted in Trooper Wright ’s 
unconstitutional conduct. Peatross, 818 F.3d at 242. Thus, the Amended Complaint fails to 
plausibly plead an entitlement to relief from either Rogers, White, or Burnett under § 1983 based 
on the three prior incidents it describes. Iqbal, 556 U.S. at 679; Peatross, 818 F.3d at 242.  
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 The Amended Complaint also fails to plead official-capacity claims against Rogers, White 
and Burnett for the same reason that the proposed second amended complaint fails to do so. There 
are no allegations of on-going violations of federal law. Verizon, 535 U.S. 635. Thus, these claims 
will be dismissed. Id. Finally, Plaintiff has waived any Fourteenth Amendment claim, so it will be 
dismissed.  
C. Defendants’ Motion to Strike 
 Defendants have moved to strike DN 27 which is Plaintiff’s Reply in support of his motion 
to amend or, in the alternative, for leave to file a surreply. Defendants maintain that striking the 
brief is warranted for two reasons: (1) Plaintiff did not state the grounds supporting amendment in 
his Motion despite being required to do so and (2) Plaintiff waited to state his grounds until after 
Defendants had opposed amendment, raising new arguments and thereby prejudicing Defendants. 
Motion, DN 31, at PageID# 237-38. Generally, the Court agrees with these two assertions.  
 Plaintiff did not file a response to Defendants’ Motion to Dismiss, forgoing any rebuttal to 
those arguments. Instead, Plaintiff moved for leave to amend. While Plaintiff included a 
memorandum of law to support his Motion to Amend, it contains no more than a recitation of the 
standards for amendment. It does not explain how the proposed amendments would cure the 
deficiencies raised by Defendants’ Motion to Dismiss. Indeed, its content suggests that it is a cut-
and-paste job. For the Memorandum states that “if Defendant [sic] wants more detail about the 
Plaintiff’s sincerely held religious beliefs, the Plaintiff can readily supply them, and has done so 
via the tendered Second Amended Complaint.” Motion, DN 20, at PageID # 129. The tendered 
second amended complaint says nothing about Plaintiff’s religious beliefs.  
 Even so, with respect to the Reply, the assertion that it rests entirely on new argument is 
not accurate. The Reply also rebuts arguments made in Defendants’ Response and it is appropriate 
to do so. Those arguments include the topics of qualif ied immunity, causation, whether Plaintiff 
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raised a Fourteenth Amendment claim and whether the Court may consider the personnel records 
Defendants tendered to support dismissal. Id. at PageID# 213-26. As well, those arguments have 
not prejudiced Defendants. The Court’s decision does not rest on qualified immunity. To the extent 
dismissal is granted for failure to plead causation sufficiently, Defendants have prevailed. Finally, 
Plaintiff has waived any claim based on the Fourteenth Amendment.  
 That leaves Plaintiff’s assertions and arguments about his fact allegations as pleaded in the 
second amended complaint. Reply, DN 27, at PageID# 208-213. The Court agrees that this section 
of Plaintiff’s Reply raises new arguments that should have been raised in Plaintiff’s initial motion 
to amend. It explains the grounds on which amendment is sought. Such contentions are absent 
from Plaintiff’s Motion to Amend. By raising those arguments for the first time in a reply, Plaintiff 
has waived them. Ryan v. Hazel Park , 279 F. App ’x 335, 339 (6th Cir. 2008) (issues raised for 
first time in reply are waived). For this reason, there is no need for a surreply.  
 CONCLUSION 
 In moving to amend, Plaintiff proposes to add new grounds for finding Rogers, White and 
Burnett liable for violating his constitutional right to be free from excessive force. These 
allegations are meant to show that Rogers, White and Burnett were on notice of an excessive force 
risk in Trooper Wright and of a systemic excessive -force problem with in the KSP, particularly 
within Post 4, and failed to act in time to prevent an excessive-force injury to Plaintiff. However, 
Plaintiff’s allegations “stop[ ] short of the line between possibility and plausibility of entitlement 
to relief.” Iqbal, 556 U.S. at 678 (cleaned up) (internal quotation marks omitted). This is true for 
both the individual-capacity and official-capacity claims against Rogers, White and Burnett. For 
this reason, they cannot withstand a motion to dismiss and amending to add them would be futile. 
Thus, leave to amend need not be granted. Foman, 371 U.S. at 182; Riverview Health, 601 F.3d at 
512. Accordingly, Plaintiff’s Motion to Amend Complaint (DN 20) is DENIED. 
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For like reasons, by separate order entered simultaneously herewith, Defendants ’ Motion 
to Dismiss (DN 18) will be granted. Plaintiff has waived any Fourteenth Amendment claim, so it 
will be dismissed with prejudice. The remaining claims will be dismissed without prejudice. The 
Amended Complaint fails to sufficiently plead those claims against defendants White, Rogers and 
Burnett.  
Defendants’ Motion to Strike (DN 31) is DENIED. Contrary to Defendants’ argument, the 
Reply they seek to strike does not rest entirely on new argument. For this reason, striking that brief 
is inappropriate. At the same  time, to the extent  that the Reply  does contain new argument, the 
Court 
has ignored those arguments in rendering its decision on the motion to amend, 
thereby affording Defendants appropriate relief and obviating the need for a surreply. 
Finally, to the extent  that Defendants have opposed amendment and sought dismissal on 
grounds which are not addressed by this Opinion, the Court finds it unnecessary to entertain those 
arguments at this juncture. The Court’s declining to do so should not be interpreted by the parties 
as the expression of any opinion as to the merits of those arguments.  
IT IS SO ORDERED. 
March 30, 2026
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