Lalley et al v. Prewitt et al

Filing 57

MEMORANDUM OPINION & ORDER: 1) Plfs' motion for summary judgment 44 is DENIED; 2) Defs' motion for Summary judgment 42 is GRANTED; 3) A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 10/14/2014.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:13-cv-52(WOB-JGW)
KENNETH LALLEY, ET AL.

PLAINTIFF

VS.
LISA PREWITT, ET AL.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

This is a 42 U.S.C. § 1983 action brought by a Kentucky father,
Kenneth Lalley, on behalf of himself and his minor children, G.L. and
B.L., against employees of Kentucky’s Cabinet for Health and Family
Services

(“Cabinet”).

Plaintiffs

allege

violations

of

their

Fourteenth Amendment procedural and substantive due process rights, as
well

as

state-law

claims

for

infliction of emotional distress.

abuse

of

process

and

intentional

The case is before the Court on the

parties’ cross-motions for summary judgment.

(Docs. 42, 44.)

The

Court previously heard oral argument on these motions on October 6,
2014, after which it took them under advisement.

The Court now issues

the following Memorandum Opinion and Order.
I. FACTS
At oral argument on October 6, 2014, the parties agreed that the
following facts are undisputed, although the legal significance of the
facts is disputed.
A.

C.L.’s Allegations and the Cabinet Referral

On April 10, 2012, at 11:13 a.m., the Cabinet received a referral
regarding the possible sexual abuse of a fifteen-year-old boy, C.L.
C.L. is the minor son of Plaintiff Kenneth Lalley.

The reporting

source,

a

therapist

then

treating

C.L.

in

a

Louisville

hospital,

stated that C.L. had reported that Lalley had been physically and
sexually abusing him since the age of twelve.

The alleged sexual

abuse as initially described by the reporting source consisted of
Lalley forcing C.L. to masturbate Lalley and to perform oral sex on
Lalley over 100 times.

Lalley allegedly carried out the abuse while

his oldest child, M.L., was out of the house and by drugging his two
youngest children, B.L. and G.L., in order to ensure that they slept
through the abuse.

(Doc. 42-5, DNA Reporting Form, at 1-2.)

When a Cabinet official spoke to the reporting source a second
time, C.L. had corrected her version of the events, alleging that
Lalley did not make C.L. perform oral sex on Lalley but that Lalley
would wake C.L. in the middle of the night, blindfold him, and take
him to another house where he would participate in oral sex and sexual
intercourse with other adults.

C.L. specifically alleged that one of

the other adults was Boone County Family Court Judge Linda Bramlage.
Based on a perceived conflict of interest in Boone County related to
the allegations against Judge Bramlage, the Cabinet transferred the
case

to

a

Scott

County

social

worker,

Defendant

Geri

Purvis.

(Doc. 42-6, Lalley CQA, at 6-7.)
In
Cabinet

response
employee

to

C.L.’s

Bill

allegations,

Coghill,

an

also

on

April

experienced

10,

sexual

2012,
abuse

investigator, interviewed C.L. at a Louisville hospital, where C.L.
was housed at that time due to mental-health issues.
interview,

C.L.

consistently

reiterated

previously had made against Lalley.
2

the

During that

allegations

that

he

Specifically, C.L. alleged that

Lalley had forced him to masturbate Lalley over 100 times and also
that Lalley had forced him to participate in oral sex and sexual
intercourse with Judge Bramlage and other adults over fifty times.
C.L. gave a detailed description of the body of the woman he alleged
was Judge Bramlage, including the position of her birth marks and her
pubic hair color.

In addition to the above allegations, C.L. alleged

that he had once seen Lalley and Judge Bramlage naked together on the
family sofa.

He also alleged that M.L. witnessed the same incident.

(Id. at 8, 10.)
Other than the allegations against Judge Bramlage, Coghill found
C.L.’s story to be consistent with other cases he had worked.

C.L.

did not indicate that any of his siblings were physically or sexually
abused by Lalley.

(Doc. 42-8, Coghill Depo., at 8-10.)

reported

on

to

Purvis

April

consistent and believable.
B.

11

that

C.L.’s

story

was

Coghill
internally

(Doc 42-6, Lalley CQA, at 8.)

Purvis’s April 10 Removal of Lalley’s Children

At approximately 9:30 p.m. on April 10, 2012, Defendant Purvis
arrived at Lalley’s home, accompanied by an officer of the Kentucky
State Police.

After Purvis provided Lalley with a business card, he

allowed her to enter the home.

Purvis requested permission to speak

with Lalley’s oldest child, M.L., and Lalley acquiesced.

(Doc. 42-9,

Lalley

an

Depo.,

bedroom.

at

10-12).

Purvis

interviewed

M.L.

in

upstairs

M.L. reported that she was scared of Lalley, that Lalley was

sometimes verbally abusive to her, and that Lalley had an alcohol
problem.

M.L. also corroborated C.L.’s allegations about witnessing

3

Lalley and Judge Bramlage naked together in their home.

(Doc. 42-6,

Lalley CQA, at 2-3.)
Based on C.L.’s allegations and her interview with M.L., Purvis
believed that she could seek an emergency custody order (“ECO”)1 for
each of the children in Lalley’s home.
¶ 2.)

(Doc. 42-10, Purvis Aff., at

When Purvis returned downstairs, she informed Lalley that he

could consent to the children’s removal or that she could get a court
order and the children would go to foster care.

Lalley contacted his

ex-mother-in-law, Lillian Mays, and she agreed to care for M.L., G.L.,
and

B.L.

temporarily.

transported

M.L.,

Purvis

G.L.,

and

the

and

B.L.

to

state

policeman

Lillian

eventually

Mays’s

residence.

(Doc. 42-9, Lalley Depo., at 15, 21, 25.)
Before she departed with the children, Purvis presented Lalley
with a prevention plan (“Plan”), a document authorizing the children’s
temporary removal from the home.

The Plan stated that its objective

was to “Keep Children Safe,” and it imposed various obligations on
Lalley.
[and]

Lalley agreed that Lillian Mays would have “care, control,

supervision

of

[M.L.,

G.L.,

and

B.L.],”

that

he

would

have

“supervised visitation with the children,” that he would not have “any
conversations with the children about the [abuse] allegations or the
case,” that he would “cooperate with DCBS2 and law enforcement,” and
that he would contact Purvis with any concerns or questions.

The Plan

1.
An emergency custody order is a judicial determination approving
the removal of a child when that removal is in the child’s best interests.
It must be issued by a court and may be sought ex parte. See Ky. Rev. Stat.
§ 620.060.
2.
DCBS is an abbreviation of Department
Services, which is an agency of the Cabinet.

4

for

Community

Based

bears both Lalley’s and Purvis’s signatures, dated April 10, 2012.
(Doc. 42-11, Prevention Plan.)
On April 12, 2012, at 3:24 p.m., Lalley’s attorney, John Berger,
sent

an

e-mail

to

Purvis.

In

that

e-mail,

Berger

unambiguously

indicated that Lalley rescinded his consent to the Plan: “Based upon
the apparent unauthorized removal of the Lalley children from his
residence, Mr. Lalley rescinds his ‘agreement’ to allow his children
to remain in the care of . . . Lillian Mays.”
from Pratt to Prewitt and Purvis, at 3.)

(Doc. 44-14, E-mail

The Cabinet thus decided to

seek an ECO for each child removed from Lalley’s home on April 10.
(Doc. 44-10, Purvis Aff., at ¶¶ 3-5.)
C.

Prewitt’s April 12 Procurement of the ECOs

Due to the allegations C.L. had made against Judge Bramlage and
on

the

Gregory

advice

of

Bartlett,

counsel,
the

Defendant

Chief

Regional

Lisa

Prewitt

Circuit

contacted

Judge

for

Judge

Northern

Kentucky, several times on April 11 and April 12 to inform him of the
situation and consult with him as to the best way for the Cabinet to
proceed.

Judge Bartlett instructed Prewitt to bring the draft ECO

petitions

to

his

chambers

for

review.

Purvis

prepared

the

draft

petitions, which “stated that [they] were filed in Kenton Court due to
a ‘believed conflict of interest in Boone Family Court.’”

(Doc. 42-

12, Prewitt Aff., at ¶¶ 7-9.)
The Cabinet included the above statement “to explain why [they
were] not asking [Judge] Bramlage to sign the ECOs, even though the
children

resided

in

her

jurisdiction.”

5

Prewitt

sent

the

draft

petitions to Judge Bartlett, who later informed her that she needed to
go through Judge Bramlage to obtain the ECOs.

(Id. at ¶¶ 10-12.)

Prewitt subsequently called Judge Bramlage on the judge’s cell
phone and informed the judge that she had ECOs for the Lalley children
that required the judge’s signature.

Before she presented the ECO

petitions to Judge Bramlage, Prewitt removed the reference to the
conflict of interest in Boone County.

(Id. at ¶ 13.)

Prewitt also

signed the affidavits filed along with the ECO petitions even though
Purvis had completed the affidavits, because Purvis was ninety minutes
away from Boone County.
Judge

Bramlage

arrived,

(Doc. 42-3, Prewitt Depo., at 52.)
Prewitt

presented

her

with

the

When

paperwork.

Prewitt did not mention the allegations C.L. had made against the
judge or that the Cabinet had referred the allegations against the
judge

to

the

Kentucky

State

petitions on April 12, 2012.

Police.

Judge

Bramlage

signed

the

(Doc. 42-16, Bramlage Depo., at 14-15.)

The record does not reflect at what time on April 12 Judge Bramlage
signed the ECOs.
D.

Family Court Proceedings and Purvis’s Substantiation

The parties then appeared at a Temporary Removal Hearing in Boone
County Family Court on the following day, April 13, 2012.

Judge

Bramlage had left to take a vacation on the evening of April 12, so
visiting Judge Foellger presided.
Judge

Foellger

Bramlage.

of

the

nature

Lalley’s attorney, Berger, informed

of

C.L.’s

allegations

against

Judge

With full knowledge of all the allegations, Judge Foellger

found that there was probable cause to believe that all four children

6

were dependent, neglected, or abused.

(Doc. 42-20, Temporary Custody

Orders, at 2, 4, 6, 10, 14.)
At

a

hearing

on

May

11,

2012,

Judge

Foellger

ordered

children’s Guardian ad Litem to interview M.L., G.L., and B.L.

the

If the

children did not report allegations of abuse or neglect, then Judge
Foellger planned to restore Lalley’s right to full custody.
DVD.)

(DE 45,

Following the Guardian ad Litem’s interviews, the state court

restored Lalley’s parental rights for all of his children save C.L.
(Doc. 44-21, Family Court Orders, at 1-3.)
Based

on

the

information

collected

over

the

course

of

her

investigation, Purvis concluded that she had probable cause to believe
that abuse and neglect occurred, and she accordingly “substantiated”3
Lalley on May 25, 2012, for neglecting all four children and for
sexually abusing C.L. (Doc. 42-4, Purvis Depo., at 94; Doc. 42-6,
Lalley CQA, at 18.)

Purvis’s supervisor approved the substantiation.

(Doc. 48-4, Second Purvis Aff., at ¶ 7.)

Purvis then sent Lalley a

Substantiated Investigation Notification Letter (“SINL”) including her
findings on June 21, 2012.

(Doc. 44-22, SINL, at 1.)

Purvis’s finding of substantiation was later amended, pursuant to
proper procedure, on two occasions to conform to the Family Court
proceedings.

On July 13, 2012, the Commonwealth dropped the sexual

abuse charge but decided to proceed with the dependency and neglect
charges based on Lalley’s alleged alcohol problem.

At this time,

3.
“Substantiated” refers to an entry that a social worker makes in
the Cabinet’s computer system indicating that the social worker has probable
cause to believe that allegations of dependency, neglect, or abuse occurred.
(DE 54, Purvis Depo., at 93-94.)

7

Purvis’s

finding

related

to

sexual

unsubstantiated in the Cabinet’s records.

abuse

was

changed

to

On August 14, 2012, the

Commonwealth dropped the neglect charge, and Purvis’s related finding
likewise was changed.

(DE 45, DVD.)

The state-court proceedings concluded when the parties made their
final appearance before Judge Foellger on November 13, 2012.
hearing, the parties informally adjusted the case.

At that

In accordance with

the parties’ agreement, Judge Foellger found that C.L., G.L., and B.L.
were dependent.4

(Doc. 42-29, Docket Sheets, at 1-3.)

The state court

entered the informal adjustment on November 28, 2012.

(Doc. 42-30,

Order & Docket Sheets, at 1-4.)
II. PROCEDURAL HISTORY
On April 9, 2013, Plaintiffs filed this lawsuit.
complaint
claims.

against
(Doc. 1.)

Defendants

Prewitt

and

Purvis

The seven-count
asserts

multiple

Count I alleges that Prewitt and Purvis violated

Lalley’s procedural and substantive due process rights when Purvis
removed Lalley’s children from his home on April 10, 2012.
¶¶ 40-44.)

(Id. at

Count II alleges that Prewitt and Purvis violated Lalley’s

procedural and substantive due process rights when Prewitt procured
the ECOs on April 12, 2012.

(Id. at ¶¶ 45-49.)

Count III alleges

that Purvis violated Lalley’s procedural and substantive due process
rights when she substantiated him for sexually abusing C.L.
¶¶ 50-55.)

(Id. at

Count IV alleges that Prewitt and Purvis violated Lalley’s

4.
On October 23, 2012, Judge Foellger had dismissed M.L. from the
case without prejudice because she had reached the age of eighteen.
(Doc.
42-28, Orders, at 1.)

8

substantive due process right in his good name, reputation, honor, and
integrity

when

Purvis’s

substantiation

caused

Lalley’s

name

placed on the Child Abuse and Neglect (“CAN”) registry.
¶¶ 56-61.)
against

to

be

(Id. at

Count V alleges a state-law claim for abuse of process

Prewitt

and

Purvis,

alleging

that

children from his custody without an ECO.

they

removed

Lalley’s

(Id. at ¶¶ 62-66.)

Count

VI alleges a state-law claim for intentional infliction of emotional
distress (“IIED”) against Purvis, alleging that she used her position
intentionally to label Lalley as a child abuser.

(Id. at ¶¶ 67-70.)

Finally, Count VII of the complaint alleges that Prewitt and Purvis
violated the procedural and substantive due process rights of G.L. and
B.L. when Purvis removed them from their father’s home on April 10,
2012.

(Id. at ¶¶ 71-76.)
On June 24, 2014, Defendants moved for summary judgment on all

the claims contained in Plaintiffs’ seven-count complaint.

(Doc. 42.)

Plaintiffs in turn filed a motion for partial summary judgment on June
27, 2014, seeking judgment as a matter of law on all of the federal
claims in their complaint.

(Doc. 44.)
III. ANALYSIS

A.

Federal Due Process Claims

Plaintiffs pled multiple violations of both their procedural and
substantive due process rights, but their summary judgment briefing
does not develop separate arguments on procedural and substantive due
process for those claims.

While relying on substantive due process to

establish the rights at issue, Plaintiffs actually assert claims for
procedural due process, except for Count IV.
9

1.

Purvis did not violate Lalley’s procedural due process
rights by removing the children on the basis of his
consent (Count I).

Plaintiffs’

briefing

liability on Count I.

makes

three

arguments

in

support

of

First, Plaintiffs argue that Defendant Purvis

denied Lalley procedural due process when Purvis removed his children
without a court order and without Lalley’s valid consent.

Plaintiffs

next argue that Purvis is not entitled to absolute immunity.

Finally,

Plaintiffs argue that Purvis is not entitled to qualified immunity.
Plaintiffs argue that Purvis violated Lalley’s rights during the
April 10 removal because due process requires that parents receive
notice prior to the removal of a child and a full opportunity to
present evidence and witnesses at a hearing.

See Kovacic v. Cuyahoga

Cnty. Dep’t of Children & Family Servs., 724 F.3d 687, 700 (6th Cir.
2013).
removal.

However, the plaintiff in Kovacic did not consent to the
Moreover, the Court expressly recognized that her consent

would have been a complete defense.

Id. at 695.

Furthermore, the Sixth Circuit’s decision in Smith v. WilliamsAsh, 520 F.3d 596 (6th Cir. 2008), explicitly holds “that when a
parent voluntarily consents to a safety plan, ‘no hearing of any kind
is

necessary;

hearings

are

required

for

deprivations

objection, not for steps authorized by consent.’”

taken

over

Id. at 600.

The

Court also held that the consent was valid in spite of a threat of
immediate

removal

of

the

children

into

foster

care.

Lalley’s

signature on the Plan shows that he did not object to the removal on
the night of April 10, and the Court therefore holds that Purvis did

10

not violate Lalley’s procedural due process rights during the April 10
removal.
Plaintiffs attempt to distinguish Williams-Ash by relying on an
older, unpublished Sixth Circuit decision, Farley v. Farley, 225 F.3d
658 (6th Cir. 2000) (Table).

The Farley panel held that the mother’s

procedural due process rights were violated when “her consent . . .
[to a prevention plan] was not voluntary during the entire time period
involved.”

Id. at *4.

Plaintiffs argue that Lalley rescinded his

consent to the Plan on April 11, 2012, before the Cabinet obtained the
ECOs, but this assertion is contradicted by the record.

Lalley’s

attorney sent notice to the Cabinet rescinding Lalley’s consent on
April 12, 2012, at 3:24 p.m., the same day that Judge Bramlage signed
the ECOs.
The evidence on this issue, interpreted most favorably to the
plaintiffs, indicates that upon receipt late in the afternoon of April
12,

Prewitt

immediately

procured

judicial hearing thereon.

the

ECOS

and

requested

a

prompt

This hearing was held the next day.

These

efforts satisfy the requirement of providing procedural due process,
in light of the serious allegations against Lalley.

Kentucky Revised

Statutes section 620.060 allows a social worker to obtain an ECO ex
parte if followed by a prompt judicial hearing.
However, if Lalley’s rights were violated, the Court holds that
Purvis

would

be

entitled

to

at

least

unusual fact situation.

11

qualified

immunity

in

this

2.

Prewitt is entitled to absolute
actions she took in order to
(Count II).

Plaintiffs’

briefing

liability on Count II.

makes

three

immunity for the
obtain the ECOs

arguments

in

support

of

First, Plaintiffs argue that Defendant Prewitt

denied Lalley due process when she intentionally withheld material
information
Plaintiffs

from
next

Judge
argue

Bramlage
that

in

Prewitt

order
is

not

to

obtain

entitled

the
to

ECOs.

absolute

immunity under Holloway v. Brush, 220 F.3d 767 (6th Cir. 2000) (en
banc), due to her usurpation of the judicial process.

Plaintiffs

finally argue that Prewitt is not entitled to qualified immunity.
In Holloway, the plaintiff sued the social worker for failing to
notify the court that the mother wished to assert her parental rights,
telling the mother than her parental rights had been terminated when
they had not, and withholding information that would have allowed the
mother to raise her rights before the court terminated them.
776.

Id. at

The Sixth Circuit described the basis of the suit as the social

worker’s “out-of-court actions” and denied immunity on that basis.
Id.
Prewitt’s actions are thus distinguishable from the actions of
the social worker in Holloway, as Prewitt did nothing that prevented
Lalley from asserting his parental rights.

The allegations concerning

Judge Bramlage were unnecessary to establish the merits of the ECO
petitions.

Furthermore, the state court was informed of the omission

the next day, whereas in Holloway the plaintiff’s very right to appear
was denied for several months.

12

Rather, the Court holds that Prewitt’s actions fall within the
scope of the absolute immunity for social workers established by the
Holloway court: “[S]ocial workers are absolutely immune only when they
are acting in their capacity as legal advocates -- initiating court
actions or testifying under oath . . . .”
submission

of

the

ECOs

to

Judge

Bramlage

Id. at 775.
both

Prewitt’s

initiated

a

court

proceeding -- the temporary removal hearing before Judge Foellger on
April 13, 2012 -- and involved testifying under oath by signing an
affidavit.
However, if Lalley’s rights were violated, the Court holds that
Prewitt

would

be

entitled

to

at

least

qualified

immunity

in

this

unusual fact situation.
3.

Purvis did not violate Lalley’s procedural due process
rights when she substantiated him for sexual abuse
(Count III).

Plaintiffs’

briefing

liability on Count III.

makes

three

arguments

in

support

of

First, Plaintiffs argue that Defendant Purvis

denied Lalley procedural due process when Purvis falsified information
in order to substantiate Lalley for sexual abuse.

Plaintiffs next

argue that Purvis is not entitled to absolute immunity.

Finally,

Plaintiffs argue that Purvis is not entitled to qualified immunity.
Plaintiffs’ arguments in support of liability are without merit.
The contention that Purvis intentionally made unfounded statements in
her substantiation letter is not borne out by the record.
statements
children

that

were

at

Plaintiffs
risk

of

complain
harm

due

of

are

as

to

alcohol

The three

follows:
abuse;

(1)

(2)

the

C.L.’s

allegations of sexual abuse were substantiated; and (3) the other

13

children were at risk of neglect due to the substantiated sexual abuse
allegation against Lalley.
Judge

Foellger

found

probable

cause

that

the

allegations

of

sexual abuse and alcohol abuse were true at the initial state-court
proceeding,

and

probable

cause

is

the

evidentiary

standard

Purvis

needed to meet in order to make the substantiation.
The Court therefore holds that Purvis did not violate Lalley’s
procedural due process rights by substantiating him for sexual abuse.
However, if Lalley’s rights were violated, the Court holds that Purvis
would be entitled to at least qualified immunity.
4.

Purvis did not violate Lalley’s substantive due
process rights when she substantiated him for sexual
abuse (Count IV).

Plaintiffs’ briefing makes three arguments in favor of liability
on Count IV.

First, Plaintiffs argue that Purvis’s substantiation of

Lalley for abuse and his placement on the CAN registry without a
thorough investigation violated his substantive due process right to
protection of his good name, honor, and reputation.
v. Boris, 882 F.2d 200, 205 (6th Cir. 1989).

See Chilingirian

Plaintiffs next argue

that Purvis is not entitled to absolute immunity.

Plaintiffs finally

argue that Purvis is not entitled to qualified immunity.
There is no evidence in the record that supports Plaintiffs’
assertion that Lalley’s name was placed on the so-called CAN registry
of abusers due to Purvis’s substantiation such that his good name
could

be

harmed.

Despite

completing

discovery

in

this

matter,

Plaintiffs have not provided the Court with any evidence that a CAN
registry

even

exists

in

Kentucky.

14

See

Fed.

R.

Civ.

P.

56(c)(1).

Uncontroverted testimony from the Cabinet shows that the information
is not public; in order to have a CAN check performed, qualified
individuals may make a formal request of the Cabinet, and Cabinet
employees in Frankfort run a check of their system and respond to the
request.

(Doc.

54-4,

Depo., at 73-75.)

Purvis

Depo.,

at

96-97;

Doc.

54-7,

Prewitt

The Court therefore holds that Purvis did not

violate Lalley’s substantive due process rights by substantiating him
for sexual abuse.
However, if Lalley’s rights were violated, the Court holds that
Purvis would be entitled to at least qualified immunity.
5.

Purvis did not violate the children’s procedural due
process rights by removing them on the basis of
Lalley’s consent (Count VII).

Plaintiffs’ arguments in support of liability on Count VII are
identical to their arguments relating to Count I.

The Court therefore

holds that Purvis did not violate the procedural due process rights of
G.L.

and

B.L.

for

the

same

reasons

that

Purvis

did

not

violate

Lalley’s procedural due process rights.
In summary, the Court holds as a matter of law that Defendants
did

not

take

substantive

any

due

actions
process

that

violated

rights.

The

Plaintiffs’
Court

procedural

accordingly

or

grants

Defendants’ motion for summary judgment on Counts I-IV and VII.
B.

State-Law Claims
1.

Defendants are entitled to summary judgment
Plaintiffs’ claim for abuse of process (Count V).

on

A Kentucky abuse-of-process claim “is comprised of the following
two necessary elements: ‘(1) an ulterior purpose and (2) a willful act
in the use of the process not proper in the regular conduct of the
15

proceeding.’”

Garcia v. Whitaker, 400 S.W.3d 270, 276 (Ky. 2013)

(quoting Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998)).
improper

purpose

usually

takes

the

form

of

coercion

to

“The

obtain

a

collateral advantage, not properly involved in the proceeding itself,
such as the surrender of property or the payment of money, by the use
of

the

process

as

a

threat

or

a club.”

Sprint Commc’ns

Co.

v.

Leggett, 307 S.W.3d 109, 113 (Ky. 2010) (quoting Flynn v. Songer, 399
S.W.2d 491, 494 (Ky. 1966)).
Plaintiffs have failed to adduce any evidence or make a colorable
argument that Defendants used the civil proceeding in order to coerce
any collateral advantage from Lalley.

The Court accordingly grants

Defendants’ motion for summary judgment on Count V.
2.

Defendants are entitled to summary judgment on the
Plaintiffs’ claim for
intentional infliction
of
emotional distress (Count VI).

A Kentucky IIED claim requires that (1) “the wrongdoer’s conduct
must be intentional or reckless”; (2) “the conduct must be outrageous
and intolerable in that it offends against the generally accepted
standards
connection

of

decency

between

and
the

morality”;
wrongdoer’s

(3)

“there

conduct

must
and

be

the

a

causal

emotional

distress”; and (4) “the emotional distress must be severe.”

Stringer

v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004) (quoting
Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 3-4 (Ky. 1990)).
Under Kentucky law, “[i]t is for the court to determine, in the
first

instance,

whether

the

defendant’s

conduct

may

reasonably

regarded as so extreme and outrageous as to permit recovery.”

be

Id. at

788-89 (quoting Restatement (Second) of Torts § 46(1) cmt. h (1965)).

16

The Stringer court elaborated on the nature of the conduct required of
a defendant before liability for IIED may be imposed:
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized
community.
Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, “Outrageous!”
Id. at 789 (quoting Restatement (Second) of Torts § 46(1) cmt. d.))
Plaintiffs have failed to adduce any evidence or make a colorable
argument

that

Purvis’s

actions

that

would

lead

a

member

community to exclaim that her investigation was outrageous.

of

the

The Court

accordingly grants Defendants’ motion for summary judgment on the IIED
claim.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion
for

summary

judgment

and

DENIES

Plaintiffs’

motion

for

summary

judgment.
Therefore,

having

heard

the

parties

and

the

Court

being

sufficiently advised,
IT IS ORDERED that:
(1)

Plaintiffs’ motion for summary judgment (Doc. 44) be, and

is hereby, DENIED;
(2)

Defendants’ motion for summary judgment (Doc. 42) be, and

is hereby, GRANTED.
(3)

A separate judgment shall enter concurrently herewith.

This 14th day of October, 2014.

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