Butcher et al v. Pendleton County, Kentucky et al
Filing
8
MEMORANDUM OPINION & ORDER: (1) The civil rights claims asserted by Plaintiffs Jannette Butcher and Rickey Butcher against Defendants Pendleton County, Kentucky; attorney Jeffery Dean; Officer Shannon Clem; Terry Sellars; Angie Sellars; and Sally Swe eney Procter are DISMISSED WITH PREJUDICE (2) The Court declines to exercise supplemental jurisdiction over any claims asserted under state law, and such claims are DISMISSED WITHOUT PREJUDICE (3) A separate Judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 5/9/2011.(LMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
COVINGTON
JANNETTE BUTCHER and
RICKEY BUTCHER,
Plaintiffs,
v.
PENDLETON COUNTY, et al.,
Defendants.
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Civil Action No. 10-CV-177-WOB
MEMORANDUM OPINION
AND ORDER
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Jannette Butcher and Rickey Butcher are residents of Van Lear, Kentucky, in Johnson
County. On August 20, 2010, the Butchers filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983. [R. 2] The Court granted their motion to waive payment of the $350 filing fee on
December 6, 2010, pursuant to 28 U.S.C. § 1915(a). [R. 7] As required by the Court, on November
9, 2010, the Butchers filed an amended complaint. [R. 5]
Federal law requires the Court to conduct a preliminary review of civil rights complaints,
and to dismiss a case if it determines the action (a) is frivolous or malicious, (b) fails to state a claim
upon which relief can be granted, or (c) seeks damages from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997).
Because the plaintiffs are not represented by an attorney, the complaint is reviewed under a more
lenient standard. Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d
708, 715 (6th Cir. 1999). At this stage the Court accepts the plaintiffs’ factual allegations as true
and their legal claims are liberally construed in their favor. Urbina v. Thoms, 270 F.3d 292, 295 (6th
Cir. 2001).
I.
In their complaint, the Butchers allege that on Sunday, February 8, 2009, they traveled to the
home of Terry Sellers, her ex-husband, in Pendleton County, Kentucky, to pick up their minor
daughter following a weekend visitation. [R. 2 at 1] Once she arrived, however, Jannette indicates
that she was assaulted by Terry, as well as by his then-girlfriend Angie Reynolds, and two other
individuals, Brad Waters and Shelbie Bruin. [R. 5 at 3] Jannette received injuries including a
broken nose, fractured cheekbone, bruises, and scattered lymph nodes. [R. 2 at 1]
Jannette further indicates that Angie Reynolds then called the police and, impersonating
Jannette, claimed that a kidnaped child was at the residence. [R. 5 at 3] When police officer
Shannon Clems arrived at the home shortly thereafter, he grabbed Jannette from behind by the neck
and restrained her. When Jannette told Clems that she could not breathe, he permitted her to stand,
but indicated that he had seen Jannette attacking the others, handcuffed her, and placed her in his
vehicle. [R. 5 at 5] The Butchers indicate that officer Clems was a friend of Terry Sellers and Angie
Reynolds, and joked with them before driving Jannette to the county jail. [R. 2 Att. 2 at 1]
Once at the jail, Clems attempted to coerce Jannette into signing a confession to the assault
charge, which she refused. [R. 5 at 5] When she asked for medical attention for her injuries, Clems
did not call for medical help for more than one hour. When the paramedics indicated that Jannette
should seek further medical attention at a hospital, Jannette declined to go to the hospital at that time
when officer Clems advised her that doing so would further delay her release from jail. [R. 2 at 1;
R. 5 at 5] Jannette indicates that prior to her release, she temporarily passed out as a result of her
injuries. [R. 2 at 2] Following the incident, Jannette was formally charged with assault.
On February 9, 2009, Terry Sellers sought and obtained a domestic violence restraining order
against Jannette. The order was subsequently rescinded, and the judge directed Terry to return the
minor child to Jannette’s custody. [R. 5 at 3] On February 16, 2009, Terry Sellers and/or Angie
Reynolds made a telephone call to Linda Thornsberry, a case worker for the Kentucky Cabinet for
Health and Family Services (“CHFS”), and alleged that Jannette was neglecting the minor child, and
that Jannette suffered from certain mental health conditions. [R. 2 at 2; R. 5 at 3] Two days later,
Thornsberry removed the minor child from Jannette’s custody and temporarily placed the child in
Terry’s custody pending a further hearing.
On April 21, 2009, a hearing was held on the charge, at which time officer Clems allegedly
gave false testimony. [R. 5 at 3] Nonetheless, the assault charges were dismissed. Jannette
indicates that Pendleton County Attorney Jeffery Dean refused to press charges against Sellers,
Reynolds, Waters or Bruin arising out of the incident. [R. 5 at 2]
Prior to a hearing regarding the neglect charge on May 8, 2009, Jannette alleges that Sally
Sweeny Proctor, a licensed clinical social worker hired by Terry Sellers, sent letters to Johnson
County Circuit Judge Janie Wells, in which she falsely stated that Jannette had a long history of
mental illness. [R. 5 at 4] During the hearing, Terry Sellers and Angie Reynolds gave testimony
that Jannette indicates was false. [R. 5 at 4] While Jannette was found not guilty of neglect, the
judge awarded temporary but primary physical custody of the minor child to Terry Sellars. At a
subsequent hearing regarding visitation held on June 26, 2009, Jannette alleges that Proctor
reiterated the false information regarding her mental health. [R. 5 at 5]
II.
Having reviewed the allegations in the complaint, the Court finds that any civil rights claims
must be dismissed with prejudice, as the allegations of the complaint either fail to state a claim or
seek relief against a defendant immune from such relief. The Court will dismiss any claims arising
under Kentucky law without prejudice.
First, the Butchers have named Pendleton County, Kentucky, as a defendant in this action,
but have not explained for what conduct the county should be held legally responsible. The initial
altercation at Sellers’ residence and the subsequent legal proceedings on the assault charge took
place in Pendleton County, Kentucky. The Court therefore infers that the Butchers seek to impose
liability upon Pendleton County based upon its employment of officer Clems and county attorney
Dean. However, a county is not vicariously liable for civil rights violations committed by its
employees unless his or her actions were taken directly pursuant to and consistent with a formal
policy or informal custom established by the county and in derogation of the plaintiff’s
constitutional rights. Jones v. Muskegon Co., 625 F. 3d 935, 946 (6th Cir. 2010); Johnson v. City
of Franklin, Kentucky, No. 1:04-CV-197-R, 2005 WL 1661975, at *4 (W.D. Ky. July 15, 2005)
(citing Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 659 (1978). Because the
Butchers do not allege that any policy or custom of Pendleton County directed the actions of Clems
or Dean, their Complaint fails to state a constitutional claim against it. Leatherman v. Tarrant Co.
Narcotics Unit, 507 U.S. 163, 165 (1993).
Second, the Butchers have sued Pendleton County Attorney Jeffery Dean, alleging that he
refused to press charges against the individuals who assaulted her. However, “prosecutors are
absolutely immune from liability under § 1983 for their conduct ... insofar as that conduct is
intimately associated with the judicial phase of the criminal process.” Burns v. Reed, 500 U.S. 478,
486 (1991). Under Imbler v. Pachtman, 424 U.S. 409 (1976), a prosecutor’s decision whether to
issue charges and prosecute them “clearly fall[s] within the scope of the prosecutor’s duties in
initiating and pursuing a criminal prosecution,” entitling the prosecutor to absolute immunity from
claims challenging the exercise of that discretion. Cady v. Arenac County, 574 F.3d 334, 339-40
(6th Cir. 2009). Because Dean’s decision not to press charges against these individuals falls
squarely within his discretion as prosecutor, he is entitled to absolute immunity with respect to this
claim, and it must be dismissed.
Third, the Butchers have sued Terry Sellers and Angie Reynolds, alleging that they assaulted
her, and then made false assertions about her mental health condition in an effort to obtain further
visitation and custodial rights over her minor child. The Butchers further contend that Sally Procter,
LCSW, was hired by Terry Sellers and reiterated those false statements in letters and testimony
given during judicial proceedings. However, the civil rights statute, 42 U.S.C. § 1983, permits an
individual to file suit for damages and injunctive relief against someone who, acting “under color
of state law,” violates the plaintiff’s federal civil rights. The Constitution prevents the government
from taking certain actions against individuals - it does not generally prevent individuals, acting
purely as private citizens, from taking such actions against others. Therefore, a claim can only be
asserted under Section 1983 against a person who is acting on behalf of the state or local
government. Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776, 784 (6th Cir. 2007).
The Supreme Court has repeatedly adhered to the principle that purely private conduct, no matter
how discriminatory or wrongful, is not actionable under the civil rights laws. American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Because Sellers, Reynolds, and Procter were acting
purely as private citizens, they did not act “under color of state law,” and no claim under Section
1983 stands. McArthur v. Bell, 788 F. Supp. 706, 710 (E.D.N.Y. 1992) (witness testifying at child
support modification proceedings is not acting under color of state law for purposes of Section
1983).
Fourth, the Butchers have sued officer Clems for his conduct during her arrest and
subsequent incarceration on February 8, 2009, as well as for giving allegedly false testimony during
the April 21, 2009, hearing on the assault charges. Federal law requires that a civil rights claim
arising out of conduct occurring in Kentucky must be filed within one year after the events
complained of under KRS 413.140(1)(a). Fox v. DeSoto, 489 F.3d 227, 232-33 (6th Cir. 2007). In
his case, the arrest, incarceration, and testimony complained of occurred in February and April 2009.
Because the Butchers did not file suit until August 20, 2010, the suit was filed outside of the one
year limitations period, and the claims must be dismissed as time barred.
All of the plaintiffs’ claims asserting violations of their rights under the federal Constitution
must be dismissed with prejudice for the reasons explained above. The Butchers’ complaint does
suggest that they may wish to pursue claims arising under Kentucky law, including harassment,
false arrest, false imprisonment, malicious prosecution, perjury, malpractice, assault, interference
with parental rights, and slander. [R. 5 at 6] However, once a federal district court has dismissed
all of the federal claims which provide the basis for its subject matter jurisdiction prior to trial, the
court has discretion to dismiss pendent state law claims without prejudice. 28 U.S.C. § 1367(c);
United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). In exercising that discretion,
the court may consider the need to avoid the multiplicity of litigation and needlessly deciding
important issues of state law. Gamel v. City of Cincinnati, 625 F.3d 949, 952 (6th Cir. 2010).
Generally, however, “the balance of considerations usually will point to dismissing the state law
claims, or remanding them to state court if the action was removed.” Musson Theatrical, Inc. v. Fed.
Exp. Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996). Because all of the plaintiffs and defendants are
Kentucky residents, the claims arise under Kentucky law, and the Court can discern no important
federal interest in deciding the issues presented, the Court concludes that the exercise of
supplemental jurisdiction is unwarranted over state law claims best decided by Kentucky courts.
The Court further notes that the Butchers’ complaint suggests that legal proceedings regarding the
custody and visitation matters may still be pending in the state courts. The fact that proceedings
may be ongoing in the circuit courts of Pendleton or Johnson County further counsels against
permitting claims related to those proceedings to be entertained here. Cf. Meyers v. Franklin Co.
Court of Common Pleas, 23 F. App’x 201, 204 (6th Cir. 2001) (“cases out of the Supreme Court and
this Court make it clear that abstention is generally appropriate in matters of family relations such
as child custody.”).
Accordingly, IT IS ORDERED that:
1.
The civil rights claims asserted pursuant to 42 U.S.C. § 1983 by Plaintiffs Jannette
Butcher and Rickey Butcher against Defendants Pendleton County, Kentucky; attorney Jeffery
Dean; Officer Shannon Clem; Terry Sellars; Angie Sellars; and Sally Sweeney Procter [R. 3, 5] are
DISMISSED WITH PREJUDICE.
2.
The Court declines to exercise supplemental jurisdiction over any claims asserted
under state law, and such claims are DISMISSED WITHOUT PREJUDICE.
3.
A separate Judgment shall enter concurrently herewith.
This 9th day of May, 2011.
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