Conley v. Frye et al
MEMORANDUM OPINION & ORDER, IT IS HEREBY ORDERED that Defendant's Tim Wilson, Individually and in his Official Capacity as Chief of Police of Russell Police Dept and Shane Elkins Individually and in his Official Capacity as an Officer of the Ru ssell Police Dept Motion to Dismiss 9 be SUSTAINED as it pertains to Tim Wilson and the Count II of the Amended Complaint and OVERRULED as to the claims alleged against Shane Elkins in Counts I, III and IV of the Amended Complaint; IT IS FURHTER ORDERED that all claims against Tim Wilson DISMISSED WITH PREJUDICE; This is an INTERLOCUTORY and NON-APPEALABLE ORDER.. Signed by Judge Henry R. Wilhoit, Jr on 2/7/18.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 17-44-HRW
MEMORANDUM OPINION AND ORDER
TRACY FRYE, et al.,
This matter is before the Court upon Defendants Tim Wilson, Individually and in his
Official Capacity as Chief of Police of Russell Police Department, and Shane Elkins,
Individually and in his Official Capacity as an Officer with the Russell Police Department's
Motion to Dismiss [Docket No. 9]. The matter has been fully briefed by the parties [Docket No.
9-1, 10-1 andl l]. For the reason stated herein, the Court will sustain the motion, in part, and
overrule it, in part.
This cases arises from Plaintiffs April 24, 2016 arrest and brief incarceration for
terrortistic threatnening [Docket No. 23, Amended Complaint, iJ 28]. These charges resulted
from a sequence of events wherein it was believed that Plaintiff had made threats of violence
against Charles ("Chuck") Jachimczuk and Spencer Jachimczuk on April 23, 2016. Id. at iJiJ 19,
In his Amended Complaint, Plaintiff alleges that Officer Shane Elkins learned of the
threats from Tracy Frye and Doug Osborne, who provided that information to Officer Elkins
"falsely and with malicious intent." Id. at if 22. A warrant for the Plaintiffs arrest was issued by
Judge Brian McCloud on April 24, 2016, and the Plaintiff was arrested that same day. Id. at
Exhibit A. The Plaintiff's criminal case was tried before a jury on March 17, 2017, and the jury
returned a not guilty verdict. Id. at ,-i 40.
The Plaintiff filed this civil action against a number of defendants, including the
individuals who allegedly made false accusations against him, Officer Elkins, who Plaintiff
alleges was responsible for his arrest, as well as the Russell Police Department Chief of Police,
Tim Wilson. Plaintiff alleges these Defendants "institut[ ed] criminal charges based upon false
factual accusations" and "institut[ed] criminal charges when they knew they lacked probable
cause" for those charges. Id. at ,-i 27, 28. Specifically, the Plaintiff contends the Defendants
should be held liable for "seek[ing] the issuance of a warrant" against him without conducting an
adequate investigation. Id. at ,-i 27. The Plaintiff also claims Officer Elkins "falsely and with
malicious intent testified in front of the Greenup Circuit Court Grand Jury with respect to the
alleged terrortistic threats." Id. at ,-i 31.
In his Amended Complaint, Plaintiff alleges four causes of action: unlawful detention
(Count I), abuse of process (Count II), malicious prosecution (Count III) and malicious
prosecution pursuant to 42 U.S.C. § 1983 (Counts III and IV). He seeks damages, including
punitive damages, as well as attorney's fees. Id. at ,-i 73.
Defendants Tim Wilson and Shane Elkins seek dismissal of all claims alleged against
them, pursuant to Fed.R.Civ.Proc. 12(b)(6) for failure to state a claim upon which relief can be
In scrutinizing a complaint under Rule 12(b)(6), the Court is required to "accept all well-
pleaded factual allegations of the complaint as true and construe the complaint in the light most
favorable to the plaintiff." Dubay v. Wells, 506 F.3d 422, 426 (6th Cir.2007).
A complaint need not contain "detailed factual allegations". However, it must allege
more than "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint will
withstand a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009).
A complaint has "facial plausibility" if the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir.2009) (quoting Iqbal, 129 S.Ct. at
Plaintiff's Amended Complaint fails to state a claim upon which relief may be
granted as to Tim Wilson, in either his Official or Individual capacity.
Plaintiff cast a wide net for Defendants. This may be par for the course, given the nature
of his claims and the alleged chain of communication and action leading to his arrest. Caught in
the melee is Tim Wilson, the Chief of Police of the Russell Police Department. However, the
only allegation in the Amended Complaint specifically identifying Chief Wilson is the claim that
he contacted Officer Elkins and apparently directed him to "call Defendant Tracy Frye regarding
threats made against her family." [Docket No. 23, if 16]. The Amended Complaint provides no
additional facts or details as to how this alleged action attributed to Chief Wilson translates into
an actionable claim against him.
Requesting an officer to investigate a potential crime, alone, cannot lead to liability, and
no additional argument is presented to show that Chief Wilson "participated encouraged,
authorized or acquiesced in" any other unlawful conduct. See generally, Hays v. Jefferson
County, Kentucky, 668 F.2d 869 (6 1h Cir. 1982).
In considering a motion to dismiss, "[a]t the very least, trial and appellate courts should
not have to guess at the nature of the claim asserted." Kafele v. Lerner, Sampson & Rothfuss, 161
Fed.Appx. 487, 491 (6th Cir. 2005). See also Scheid v. Fanny Farmer Candy Shops, Inc., 859
F.2d 434 (6th Cir. 1988)(holding that "more than bare assertions of legal conclusions is
ordinarily required to satisfy federal notice pleading requirements."). The case against Chief
Wilson does not pass Rule 12(b)(6) muster and, therefore, will be dismissed.
Plaintiff's claim for abuse of process is time barred.
Count II of the Amended Complaint purports to state a claim for abuse of process.
Abuse-of-process claims are subject to the one-year limitations period. Dickerson v. City of
Hickman, 2010 WL 816684 at *5, citing Bates v. Stapleton, 2008 WL 1735170, at *3 (E.D.Ky.
Apr.11, 2008). "Unlike an action for malicious prosecution where a legal termination of the
prosecution complained of is essential, in an action for abuse of process it is not necessary,
ordinarily, to establish that the action in which the process issued has terminated unsuccessfully.
Id. (internal citation omitted). "For this reason, a cause of action for abuse of process has been
generally held to accrue ... from the termination of the acts which constitute the abuse
complained of, and not from the completion of the action in which the process issued." Id.
The "acts which constitute the abuse complained of' by the Plaintiff are the acts of
completing the police report and arrest warrant, both of which occurred on April 24, 2016. These
acts were completed more than one year prior to the filing of this lawsuit on May 1, 2017, and
are, therefore, barred by the statute of limitations.
Plaintiff's claims against Officer Elkins withstand Rule 12(b)(6) scrutiny.
The gravamen of Plaintiffs claim that the Defendants "institut[ed] criminal charges based
upon false factual accusations" and "institut[ed] criminal charges when they knew they lacked
probable cause" for those charges is encompassed in Counts ill and N of his Amended
Complaint, alleging malicious prosecution.
Malicious prosecution is both a common law and statutory action and lies to compensate
an individual who has been hailed into court and forced to defend against a fabricate charge. For
the limited purpose of determining whether Plaintiff has sufficiently stated his claim, only four
elements need to plead sufficiently: (1) a criminal prosecution was initiated against the plaintiff,
and the defendant made influenced, or participated in the decision to prosecute; (2) there was a
lack of probable cause for the criminal prosecution; (3) the plaintiff suffered a deprivation of
liberty, as understood under Fourth Amendment jurisprudence, apart from the initial seizure; and
(4) the criminal proceeding was resolved in the plaintiffs favor.
721, 728 (6 1h Cir. 2017).
Sanders v. Jones, 845 F.3d
In his Amended complaint, Plaintiff alleges that Elkins "falsely and with malicious intent
testified in front of the Greenup Circuit Court Grand Jury with respect to alleged terrorist threats
made by Plaintiff." [Docket No. 23, if 31]. Defendant Elkins argues that no liability can be
predicated on that testimony. Yes and no. It is well established that a grand jury witness,
including law enforcement, "is entitled the to the same immunity as a trial witness." Rehberg v.
Paulk, 566 U.S, 356, 375 (2012). Indeed, Plaintiff concedes this point.
However, this is not the end of the inquiry. The grant of immunity based upon Rehberg
and its progeny is not as "absolute" as Defendant suggests. The immunity does not shield law
enforcement officers who, in addition to testifying, either "set[ s] the wheels of government in
motion by instigating a legal action", "falsify affidavits", or "fabricate evidence concerning an
unsolved crime." King v. Harwoood, 852 F.3d 568 (6 1h Cir. 2017). The King Court held that an
officer's filing of a sworn affidavit or complaint and involvement in laying the groundwork for
an indictment are not immune from suit simply because the officer also testified before the grand
jury. Id. The distinguishing feature of a viable malicious prosecution claim against an officer
who is alleged to have both made false statements and offered false grand jury testimony, is the
allegation that the officer's pre-testimony conduct "set the prosecution in motion." Id.
That is exactly what Plaintiff alleges in his Amended Complaint. Plaintiff asserts that
Officer Elkins set his prosecution in motion. The Plaintiff alleges that he made false statements,
to-wit, the assertion that another witnessed the Plaintiff threatening someone. He signed the
Criminal Complaint and Affidavit as the Affiant. [Docket No. 1-2]. Plaintiff alleges that these
statements were made in the course of setting a prosecution in motion, that this first occurred
months before the grand jury met and before the indictment was even contemplated, that the false
statements were the only reason the indictment was ultimately sought, and that the false
statements were material to the ultimate prosecution. [Docket No. 23, ~~ 4-25].
These allegations have facial plausibility; that is all that is required at this stage of the
litigation. Whether Plaintiffs claims against Defendant Elkins ultimately succeed after
discovery is not for the undersigned to predict.
As for Plaintiffs claim of unlawful detention, it will rise or fall with the claim for
Accordingly, IT IS HEREBY ORDERED that Defendants Tim Wilson, Individually
and in his Official Capacity as Chief of Police of Russell Police Department, and Shane Elkins,
Individually and in his Official Capacity as an Officer with the Russell Police Department's
Motion to Dismiss [Docket No. 9] be SUSTAINED as it pertains to Tim Wilson and the Count
II of the Amended Complaint and OVERRULED as to the claims alleged against Shane Elkins
in Counts I, ill and IV of the Amended Complaint.
IT IS FURTHER ORDERED that all claims against Tim Wilson be DISMISSED
This is an INTERLOCUTORY and NON- APPEALABLE ORDER.
of February, 2018.
Henry R. Wilhoit. Jr.
Unlt•d lt1t1s Dl1trlct Judge
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