BRANDY DELONG; BETTY DELONG, Guardian/representative - Brandy Delong v. Jason Arms

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting
*
by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0157n.06
Case No. 08-6356
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRANDY DELONG; BETTY DELONG,
Guardian/representative - Brandy Delong,
Plaintiffs - Appellants,
v.
JASON ARMS; LARRY VANHOOSE;
CITY OF PAINTSVILLE; JOHN DOE;
JANE DOE; K-V-A-T FOOD STORES,
INC., dba Food City, Inc.,
Defendants,
and
JOHNSON COUNTY; BIG SANDY
REGIONAL DETENTION CENTER;
CHESTER GRIFFITH,
Defendants - Appellees.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
BEFORE: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; TARNOW , District*
Judge.
ALICE M. BATCHELDER, Chief Judge. Brandy Delong and her guardian, Betty Delong
(“the Delongs”), brought this action against multiple defendants, including: Big Sandy Regional
Detention Center (“Big Sandy”); John Doe, an agent of Big Sandy; K-V-A-T Food Stores, Inc. dba

-- 1 of 5 --

2
Food City, Inc. (“Food City”); and Jane Doe, an agent of Food City, asserting claims under 42 U.S.C.
§ 1983, the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12132, and state law, for injuries
alleged to have occurred as a result of Brandy Delong’s apprehension for theft by unlawful taking,
disorderly conduct, assault on a police officer, and resisting arrest. The district court granted
summary judgment or dismissed with prejudice all claims against all parties except for one claim
against Food City, which proceeded to trial. As to that claim, the district court denied the Delongs’
motion and objection regarding jury instructions on punitive damages. The jury returned a verdict
in favor of the Delongs, but found damages only in the amount of $1.00. The Delongs appeal. For
the reasons that follow, we affirm.
While Brandy Delong, who is mentally disabled, and her mother, Betty Delong, were
shopping at the Food City store in Paintsville, Kentucky, on April 9, 2005, Brandy concealed some
DVDs in her clothing and attempted to leave the store with them. Food City employees detained
Brandy, questioning her first in the front of the store, and then, after Brandy became disruptive and
was joined by Betty, they moved the conversation to a back room. The Paintsville, Kentucky, police
were called during the encounter and Officers Jason Arms and John Epperson responded. Soon after
their arrival, Brandy kicked Officer Arms and the officers arrested her for theft by unlawful taking,
disorderly conduct, assault on a police officer, and resisting arrest. Officer Arms transported Brandy
to the Big Sandy Regional Detention Center (“Big Sandy”), where Big Sandy employees completed
the standard intake procedure, including a medical questionnaire. During this process, Brandy
exhibited none of the signs that prison officials say would normally lead them to find an individual
unfit for incarceration (e.g., non-responsiveness). Brandy was held in a cell at the Center for
approximately six hours and claims that, while there, she suffered an “episode” due to the stress of

-- 2 of 5 --

3
her incarceration.
The Delongs filed suit and, on May 31, 2006, filed a First Amended Complaint against
Officer Arms; Larry Vanhoose, Paintsville’s police chief; the City of Paintsville; Chester Griffith,
the Johnson County Jailer; John Doe, Johnson County Deputy Jailer; Johnson County, Kentucky;
Big Sandy; Food City; and Jane Doe, a Food City employee. The 30-count complaint asserted
claims under 42 U.S.C. § 1983 for violations of the Delongs’ First, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendment rights; claims under and related to the ADA, 42 U.S.C. § 12132; and
pendent claims under Kentucky law against Johnson County and Big Sandy for negligent supervision
and negligent hiring.
The defendants moved for summary judgment and the Delongs responded. The district court
granted summary judgment to the defendants on all counts except: the § 1983 official-capacity
claims against John Doe as the agent of “Johnson County and/or [B]ig Sandy Regional Detention
Center,” which the court construed as claims against Big Sandy; the negligence claim against Jane
Doe as an employee of Food City; and the unlawful detention/false imprisonment claim against Food
City. In a subsequent order, the district court: denied, on statute-of-limitations grounds, the Delongs’
motion to amend their complaint in order to identify the Doe defendants and to extend the time for
issuance of summons, which had the effect of dismissing the claims against the Doe defendants;
dismissed as moot the motion of Big Sandy and the other defendants for dismissal of the claims
against John Doe; and dismissed all remaining claims against all parties except the unlawful
detention/false imprisonment claim against Food City. Finally, the district court denied
reconsideration of those dismissals. The claim against Food City proceeded to jury trial and resulted
in a judgment in favor of the Delongs in the total sum of $1.00.

-- 3 of 5 --

4
The Delongs filed a timely notice of appeal, challenging only the district court’s orders
granting summary judgment to Big Sandy, “granting Big Sandy Regional Detention Center’s Motion
to dismiss all counts against defendant John Doe. . . with Reconsideration denied. . .,” and denying
the Delongs’ motion for a jury instruction on punitive damages. After careful review of the First
Amended Complaint — characterized accurately and charitably by the district court as “scattershot”
— and the district court’s orders, we feel safe in saying that the Delongs’ notice of appeal raises only
the § 1983 and state law claims against Big Sandy and its agent John Doe arising from and relating
to Brandy Delong’s six-hour incarceration and the claims that Big Sandy violated Brandy Delong’s
rights under the ADA.
After their initial brief on appeal was filed, the Delongs moved to dismiss Food City, John
Doe, and Jane Doe as parties to this appeal, and we entered an order granting that motion. The
Delongs’ Notice of Appeal, of course, makes no mention whatever of K-V-A-T Food Stores dba
Food City or Jane Doe but, in any event, after that order, all that remains before us is (1) the district
court’s summary judgment in favor of Big Sandy on the claims brought directly against it and not
against John Doe, see City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (no liability for entity
that employed individual sued in official capacity absent finding of wrongdoing by that individual)
and Monday v. Oullette, 118 F.3d 1099, 1105 (6th Cir. 1997) (same), and (2) the denial of the
Delongs’ motion/objection regarding the jury instructions on punitive damages. The only claims
brought directly against Big Sandy are for alleged violation of the ADA and for breach of the
“statutory duty placed on [Big Sandy] by the ADA,” a breach of duty that the Delongs claim
constitutes “negligence per se.”
Turning first to the district court’s denial of the Delongs’ motion and objection regarding a

-- 4 of 5 --

5
jury instruction on punitive damages, we have searched the Delongs’ brief before us in vain for any
mention whatsoever of that issue. Accordingly, we hold that issue waived. See Dillery v. City of
Sandusky, 398 F.3d 562, 569 (6th Cir. 2005).
The district court granted summary judgment to Big Sandy on the Delongs’ ADA claim and
their state law negligent-hiring and negligent-supervision claims, finding that as to each of those
claims, the Delongs had failed to present evidence to support all of the claim’s elements. The court
held that the Delongs had conceded that their negligence-per-se and respondeat-superior claims
against various other defendants could not be sustained as a matter of law, and that these claims
against Big Sandy — although not conceded by the Delongs — failed for the same reasons.
We note that the Delongs’ brief on appeal contains a brief general discussion of § 1983 —
which is not relevant to any issue remaining before us in this appeal — and contains no legal
argument specific to the ADA. We have nonetheless carefully reviewed the record, the controlling
law, and the parties' briefs, and considered, as well, the parties' oral arguments, and we conclude that
the district court's opinion and order contains no reversible error. See Delong v. Arms, Civ. No. 06-
77-GFVT, 2007 WL 4510323 (E.D. Ky. Dec. 21, 2007). Because issuance of a full opinion would
serve no jurisprudential purpose, and would be duplicative, we AFFIRM the judgment of the district
court.

-- 5 of 5 --