Feltha v. City of Newport, Kentucky et al

Filing 24

MEMORANDUM OPINION & ORDER: that (1) Defendants Joint Motion for SummaryJudgment 19 is GRANTED; (2) Counts 3, 5, 6 of the Complaint are dismissed without prejudice; and (3) a separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 02/13/2017.(KRB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2:2016-cv-128(WOB-CJS)
JOSEPH FELTHA

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

CITY OF NEWPORT
CITY OF HIGHLAND HEIGHTS
CAMPBELL COUNTY, KY.
BRADY BUEMI
BILL BIRKENHAUER
DAVE FORNASH

DEFENDANTS

This is a 42 U.S.C. § 1983 civil rights case that presents
the narrow question of whether the statute of limitations for
such

claims

is

tolled

when

a

litigant

judgment from a state criminal court.

receives

an

adverse

After brief discovery on

that question, Defendants jointly filed a Motion for Summary
Judgment

(Doc.

19).

argument,

the

Court

Having
now

heard

issues

from

this

the

parties

Memorandum

at

Opinion

oral
and

Order.
I. Factual and Procedural Background
This case arises out of Plaintiff’s arrest and prosecution
in Campbell County, Kentucky.

The Kentucky Court of Appeals

summarized the facts as such:
Two officers on the Campbell County Drug Task
Force (DTF) arranged a controlled drug buy to be
executed on September 24, 2013. Detective Brady
Buemi was acting as backup for the controlled
1

buy. After arranging it with a confidential
informant
(CI),
Detective
Ryan
Marcus
and
Officer Christopher Vance sat in a car and
listened to the recorded conversation of the CI
and “J.” Following the buy, Detective Marcus met
with the CI who gave the purchased substances to
Officer Vance. Detective Marcus testified at the
suppression hearing before the trial court that
the connection was made that “J”, who had sold
drugs to the CI, was . . . Joseph Feltha. The
second controlled buy was on October 16, 2013.
Detective Buemi and Detective Bill Birkenhauer
were involved in this buy. The same CI was also
involved. The CI gave the detectives makeup
instead of drugs. She said that she ingested the
drugs.
On December 12, 2013, the Campbell County
Grand Jury indicted Feltha for two counts of
Trafficking in the First Degree, Controlled
Substance,
Cocaine,
on
October
21,
2013;
Trafficking in the First Degree, Controlled
Substance, Cocaine, on September 24, 2013; and
Possession of Marijuana on September 30, 2013.
On May 1, 2014, Feltha was also indicted for
being a First–Degree Persistent Felony Offender.
The Trafficking charges were later amended to
Trafficking in a simulated substance.
Feltha filed two motions to suppress evidence
with the trial court. The first was for his
arrest and the second for the search of his
residence. On February 19, 2014, the trial court
allowed Feltha to file a third motion to
suppress wherein he asserted that the search
warrant was defective.
On February 24, 2014, the trial court held a
suppression hearing and, thereafter, requested
additional briefing from counsel on the issue of
the doctrine of inevitable discovery. [In an
order that became final on July 17, 2014,] [t]he
trial court . . . overruled all of Feltha’s
motions finding that the evidence would have
been inevitably discovered. Feltha then entered
a conditional guilty plea to all of the counts
against him. He reserved the right to appeal the
denial of his suppression motion. Feltha was
sentenced to a combined twelve years on the
charges.
2

Feltha v. Cmmw., 2014-CA-001308-MR, 2016 WL 837195, at *1 (Ky.
App. Mar. 4, 2016).
The Kentucky Court of Appeals then reversed the Campbell
County Circuit Court’s denial of the Motion to Suppress, finding
that there were “no objectively reasonable facts from which the
officers had probable cause for Feltha’s arrest” and that the
search of Feltha’s residence violated the Fourth Amendment.
at *3.

Id.

The Kentucky Court of Appeals opinion became final on

April 4, 2016. (Stipulations, Doc. 18, PageID# 104).
Feltha was released from state prison on April 28, 2016.
(Id.).

He filed this suit on July 7, 2016. (Complaint, Doc. 1,

PageID# 1).
II. Analysis
Plaintiff

claims

the

arresting

officers

violated

the

Fourth, Fifth, and Fourteenth Amendments by illegally searching
his apartment and illegally arresting him.
PageID#

3).

imprisonment,

He

also

negligence,

brings
and

state

illegal

law

(Complaint, Doc. 1,
claims

search.

(See

for

false

generally

Complaint, Doc. 1).
At this juncture, Defendants do not challenge the merits of
those claims.

Instead, Defendants have jointly filed a Motion

to Dismiss, arguing that all of Plaintiff’s claims were timebarred when Plaintiff filed this case on July 7, 2016.

3

This

Court will address the § 1983 and state law claims separately
and in turn.
A. Plaintiff’s § 1983 claims are dilatory.
1. The Kentucky one-year statute of limitations applies to
Plaintiff’s § 1983 claims.
“Because 42 U.S.C. § 1983 does not contain its own statute
of limitations, the Court must look to state law to determine
the appropriate limitations period.” Roberson v. Tennessee, 399
F.3d 792, 794 (6th Cir. 2005).

For cases that arise from events

in Kentucky, like this case, “[i]t is well-settled that [they
will

be]

governed

limitations.”

by

Kennedy

Kentucky’s
v.

City

of

personal
Villa

injury

Hills,

statute

of

07-cv-122-DLB,

2008 WL 650341, at *3 n.9 (E.D. Ky. Mar. 6, 2008)(citing KY. REV.
STAT. ANN. § 413.140(1)(a); see also Collard v. Kentucky Bd. of
Nursing, 896 F.2d 179, 182 (6th Cir. 1990); Dixon v. Clem, 492
F.3d 665, 671 (6th Cir. 2007)).
The relevant Kentucky statute of limitations for a case of
this nature is one year. KY. REV. STAT. ANN. § 413.140.

Therefore,

Plaintiff

after

had

to

bring

his

case

within

one

year

the

statute of limitations began to run.
2. Federal law dictates that
began to run for the
Plaintiff’s residence was
arrest and imprisonment
indicted.

the statute of limitations
illegal search claim when
searched, and for the false
claims when Plaintiff was

“[F]ederal law determines when the statute of limitations

4

begins to run on a § 1983 claim.” Fox v. DeSoto, 489 F.3d 227,
233 (6th Cir. 2007)(citing Wallace v. Kato, 549 U.S. 384, 388
(2007)).

Generally, the statute begins to run when Plaintiff

“has a complete and present cause of action.” Wallace, 549 U.S.
at 388.
Taking
first,

the

those

false

claims

arrest

became

Plaintiff was indicted.

and

ripe

on

false

imprisonment

December

12,

claims

2013,

when

For the purposes of identifying when

the claims accrue, federal courts treat false arrest and false
imprisonment as one in the same because they “overlap.” Wallace,
549 U.S. at 388-89.
allegedly

wrongfully

detention.

These claims accrue when the Plaintiff is
arrested

Id. at 388.

and

subjected

to

involuntary

The parties here agree that, at the

latest, this occurred on December 12, 2013, when Plaintiff was
indicted in Campbell County.

(Def. Mot. Sum. Judg., Doc. 19,

PageID# 112; Pl. Resp., Doc. 20, PageID# 124 (citing Jones v.
Clark County, CV 15-cv-337-DCR, 2016 WL 4146119, at *5 (E.D. Ky.
Aug.

3,

2016))).

Other

federal

courts

have

similarly

found

indictment to be the proper date for the accrual of a false
arrest and imprisonment claim. See Sappington v. Tennessee, 2016
WL 4386071 (W.D. Tenn. Aug. 17, 2016); Isabell v. Smith, 2016 WL
4275833 (W.D. Tenn. Aug. 12, 2016); Jones v. Clark Cnty., 2016
WL 4146119 (E.D. Ky. Aug. 3, 2016); Donerson v. Fox, 2016 WL
4098555 (W.D. Tenn. July 28, 2016).
5

Therefore, this Court finds that the one-year statute of
limitations for Plaintiff’s false imprisonment and false arrest
claims began to run on December 12, 2013, when he was indicted.
Turning to Plaintiff’s illegal search claim, it became ripe
on October 21, 2013, when police searched Plaintiff’s residence
without

a

warrant.

Federal

courts

have

found

that

illegal

search claims become ripe at the time of the search. See, e.g.,
Hornback v. Lexington-Fayette Urb. County Govt., 905 F. Supp. 2d
747, 749 (E.D. Ky. 2012), aff’d, 543 F. App’x. 499 (6th Cir.
2013)(holding “Plaintiff had complete knowledge of the unlawful
search and seizure of his bedroom on the day of the search”).
Consequently, both sides in this case agree the illegal search
claim became ripe on October 21, 2013.

(Def. Mot. Sum. Judg.,

Doc. 19, PageID# 116; Pl. Resp., Doc. 20, PageID# 124).
3. Plaintiff is not entitled to tolling under Heck v.
Humphrey or collateral estoppel, and he does not meet the
requirements of the Kentucky equitable tolling doctrine.
a. Equitable tolling is an extraordinary remedy, and is
extremely rare in § 1983 cases.
Because the accrual dates of Plaintiff’s claims are both in
2013, and given that Plaintiff did not file this case until July
7, 2016, Plaintiff relies on equitable tolling to delay the
expiration of his limitations period.
The Supreme Court has held that “[e]quitable tolling is a
rare remedy to be applied in unusual circumstances, not a cure-

6

all for an entirely common state of affairs.” Wallace, 549 U.S.
at

396.

The

doctrine

only

applies

in

an

“unusual

case,”

Kucharski v. Leveille, 526 F. Supp. 2d 768, 773 (E.D. Mich.
2007), or “extraordinary circumstances.” Menominee Indian Tribe
of Wisconsin v. United States, ___ U.S. ___, 136 S. Ct. 750, 755
(2016).

In this district, “equitable tolling is ‘sparingly’

bestowed,

and

circumstances

has
beyond

generally
a

been

litigant’s

reserved

control.”

for
Nicely

compelling
v.

Pliva,

Inc., 181 F. Supp. 3d 451, 456 (E.D. Ky. 2016)(quoting GrahamHumphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,
560–61 (6th Cir. 2000)).
Approximately a decade ago, prior to the Supreme Court’s
decision in

Wallace v. Kato, a Plaintiff like Feltha likely

would

argued

have

that

his

§

1983

case

should

have

been

equitably tolled, with the statute of limitations only beginning
when the Kentucky Court of Appeals reversed his conviction.
Sixth

Circuit

Humphrey

supported

required

that

this

theory,

tolling.

believing

Shamaeizadeh

that

v.

Heck

Cunigan,

The
v.
182

F.3d 391, 398 (6th Cir. 1999)(citing Heck v. Humphrey, 512 U.S.
477

(1994)).

clarified

that

But
the

Wallace
statute

overturned
of

that

limitations

precedent,
begins

when

and
the

litigant “has a complete and present cause of action.” Wallace,
549 U.S. at 388.
In ensuing years, federal courts have severely restricted
7

equitable

tolling

in

§

1983

cases,

only

finding

tolling

in

“unusual” cases with potentially unjust results in the immediate
months after Wallace. See Kucharski, 526 F. Supp. 2d at 775; see
also Kennedy 2008 WL 650341 at *8 (declining to “unilaterally
punish [Plaintiff] for circumstances not of his own making”);
Garza

v.

Burnett,

547

Fed.

App’x.

908,

909

(10th

2013)(allowing equitable tolling on similar facts).
does

not

present

such

exceptions,

and,

as

Cir.

This case

mentioned

above,

Wallace requires this Court to commence the one-year statute of
limitations on the dates of the search and indictment.1
b. Plaintiff’s argument that this Court would have been
required to dismiss his § 1983 case based on
collateral estoppel is without legal or practical
foundation.
With
Plaintiff

Heck

v.

brings

Humphrey

the

novel

tolling
argument

no

longer

that

the

available,
doctrine

of

collateral estoppel tolled his statute of limitations from July
17,

2014—when

the

Campbell

County

Circuit

Court

denied

his

Motion to Suppress—until April 4, 2016, when the Kentucky Court

1

The Court acknowledges that Wallace v. Kato leads to unusual
practical results, such as a Plaintiff like Feltha having to file
his § 1983 claim within the state law statute of limitations period,
even if he is still subject to an adverse ruling in a state criminal
court. Some scholars have criticized Wallace for this result, and
urged the use of equitable tolling. See Rebecca Garibotto, Comment,
Section 1983 Claim Accrual Under Wallace v. Kato and the Need for
Equitable Tolling, 42 Seton Hall L. Rev. 1261 (2012). Yet, without
commenting on that policy discussion, this Court finds no legal
basis for declining to follow Wallace.

8

of Appeals’ decision became final.2

This argument runs into two

obstacles.
First,

Plaintiff’s

collateral

estoppel

argument

fails

because Plaintiff does not cite to any case in which a federal
district court dismissed a § 1983 case based on a state criminal
trial

court

appeal.

judgment

while

the

state

criminal

case

was

on

Instead, Plaintiff cites to three cases repeating the

established principle that if a litigant loses his state court
criminal trial and all subsequent appeals based on an adverse
determination on probable cause, the federal court will apply
that ruling to dismiss a § 1983 suit on the same issue. (Pl.
Resp., Doc. 20, PageID# 125 (citing Stemler v. City of Florence,
126 F.3d 856, 871 (6th Cir. 1997); Donovan v. Thames, 105 F.3d
291 (6th Cir. 1997); Allen v. McCurry. 449 U.S. 90 (1980)).3 This

2

In Kentucky, collateral estoppel applies when (1) at least one party
to be bound in the second case was a party in the first case; (2)
the issue in the second case is the same as the issue in the first
case; (3) the issue was actually litigated; (4) the issue was
actually decided in that action; and (5) the decision on the issue
in the prior action was necessary to the court’s judgment. Miller v.
Admin. Off. of Courts, 361 S.W.3d 867, 872 (Ky. 2011).
3
In Donovan the Sixth Circuit found collateral estoppel to be
appropriate, but only because the Plaintiff “was given a full and
fair opportunity to litigate the validity of his arrest during the
hearing on the motion to suppress and could have appealed his
conviction,” but chose not to. Donovan, 105 F.3d at 298. The same
practical result would have occurred in the instant case if Feltha
had not appealed his Campbell County Circuit Court ruling, and
subsequently filed this § 1983 case. This Court would have dismissed
the case under either collateral estoppel or, more likely, Heck.
In Allen, a litigant lost both his state criminal trial and the
subsequent appeal when evidence was admitted over his objection. He
then filed a § 1983 action against the arresting officers.
The
Supreme Court found the federal district court properly granted

9

is the same practical result as the portion of the Heck v.
Humphrey doctrine that survived Wallace.

That portion of Heck

held that:
[A] § 1983 plaintiff must prove that the
conviction or sentence has been reversed on
direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized
to make such determination, or called into
question by a federal court’s issuance of a writ
of habeas corpus.
Heck, 512 U.S. at 486–87.
Therefore,

this

Court

finds

no

legal

foundation

for

Plaintiff’s contention that if he had filed his § 1983 case at
any time after July 17, 2014—when the Campbell County Circuit
Court denied his Motion to Suppress—and the one-year anniversary
of his arrest or indictment, this Court would have been required
to dismiss the case based on collateral estoppel.
Instead, this Court likely would have recognized that the §
1983 case was filed in a timely fashion, but stayed the case

summary judgment for the defendants based on collateral estoppel.
Allen, 449 U.S. at 105. Similar to Donovan, Allen displays the result
of the instant case if Feltha had lost in the Kentucky Court of
Appeals and filed his § 1983 case within the statute of limitations.
In Stemler, two litigants filed state civil actions before their §
1983 claims. The state trial court determined there was probable
cause to arrest one of them. Stemler, 126 F. 3d at 871. The Sixth
Circuit found that a state criminal court finding of probable cause
would have foreclosed a § 1983 claim for false arrest and
imprisonment. Id. Though the Sixth Circuit initially noted that the
application of collateral estoppel might be appropriate at a stage
like what Plaintiff argues in the instant case, id., it later agreed
with this Court’s prior decision that using collateral estoppel to
dismiss a case would be premature if an appeal was still pending in
state court. See Stemler v. Florence, 350 F.3d 578, 584 (6th Cir.
2003).

10

pending the final resolution of the state court proceedings.
This Court has routinely done so in other cases.

See, e.g.,

Baker v. Paolucci, 14-cv-91 WOB-CJS (E.D.Ky.). The Supreme Court
has endorsed this kind of abstention. Wallace, 549 U.S. at 39394 (“it is within the power of the district court, and in accord
with

common

practice,

to

stay

the

civil

action

until

the

criminal case or the likelihood of a criminal case is ended”);
Heck,

512

U.S.

at

486-87.

And

it

is

common

practice

for

district courts to “stay the civil action against the [state
actors] until the criminal case has ended,”

Lewis v. McKay,

1:13-CV-10384, 2013 WL 2424933, at *3 (E.D. Mich. June 4, 2013),4
though a rare few have denied these motions to stay.5
Given this background, Plaintiff is incorrect in contending
that

collateral

estoppel

would

have

required

this

Court

to

dismiss his action if he had filed it after the Campbell County
Circuit Court denied his Motion to Suppress and before 365 days
had

4

5

passed

from

when

the

statute

of

limitations

period

See also Arnett v. City of Louisville, 3:15CV-P146-DJH, 2016 WL
3546404, at *1 (W.D. Ky. June 23, 2016)(noting the Court had earlier
stayed the § 1983 case because criminal charges were still pending);
Jenkins v. Moyer, 1:08-CV-445, 2008 WL 4534018, at *1 (S.D. Ohio
Oct. 9, 2008)(referencing an earlier order to show cause why the
case should not be stayed pending resolution of the state criminal
case); Whitley v. Allegheny County, 2010 WL 892207 at *26 (W.D. Pa.
Mar. 9, 2010).
E.g., Newell v. County of Wayne, 12-CV-14928, 2013 WL 4613613, at *2
(E.D. Mich. Aug. 29, 2013)(denying motion to stay because no
criminal case yet existed); Cress v. City of Ventnor, 2009 WL 750193
(D.N.J. Mar. 18, 2009)(relying on discretion to deny motion to
stay).

11

commenced.
c. Plaintiff does not meet either prong of Kentucky’s
equitable tolling test.
Without either the Heck v. Humphrey doctrine or collateral
estoppel to toll the one-year statute of limitations, Plaintiff
is

left

to

doctrines.

rely

on

ordinary

common

law

equitable

tolling

In a § 1983 case like this, “just as limitations

periods are taken from state law, so are the rules regarding
equitable tolling.” Kucharski, 526 F. Supp. 2d at 771 (citing
Wallace, 549 U.S. at 394; Hardin v. Straub, 490 U.S. 536, 539
(1989);

DeSoto,

489

F.3d

at

233).

Throughout

the

federal

system, the use of state tolling law in § 1983 cases is widely
accepted. See Garza v. Burnett, 547 Fed. App’x. 908, 909 (10th
Cir. 2013)(certifying a question to the Utah Supreme Court to
determine whether a claim could be equitably tolled under that
state’s

law).

Therefore,

this

Court

will

apply

Kentucky

equitable tolling law to this case.
Kentucky courts only allow equitable tolling when (1) the
litigant

has

put

forward

a

diligent

effort

to

meet

the

constraints of the statute of limitations, and (2) some factor
beyond

the

litigant’s

statute of limitations.

control

prevents

him

from

meeting

the

See Hill v. State Farm Ins. Co., 390

S.W.3d 153, 157 (Ky. App. 2012).
There is no showing in this case that Plaintiff made a

12

diligent effort to meet the statute of limitations.

He does not

provide any rationale for his failure to file within the oneyear period, other than possibly his mistaken belief that this
Court would have dismissed his § 1983 suit based on collateral
estoppel.
Even assuming arguendo that Plaintiff met the first prong
of the test, he cannot meet the second prong.
four

situations

in

which

Kentucky

courts

have

There are only
recognized

an

extraordinary situation beyond a litigant’s control sufficient
to satisfy the second prong of the equitable tolling test.
first is the prison mail rule.
S.W.3d

751,

754

(Ky.

App.

The

E.g., Moorman v. Cmmw., 484

2016).

Second

is

a

corporation

wishing to sue its board, but prevented from doing so because
the wrongdoers still control the company. Wilson v. Paine, 288
S.W.3d 284, 287 (Ky. 2009).
his

suit

within

the

Third is when the litigant files

limitations

period,

but

a

government

employee waits until a dilatory date to officially file the
document.

E.g., Nanny v. Smith, 260 S.W.3d 815, 818 (Ky. 2008);

PBI Bank, Inc. v. Schnabel Found. Co., 392 S.W.3d 421, 424 (Ky.
App. 2013).

And fourth is when the litigant files within the

proper period for leave to amend his complaint, but the court
does not grant the motion until after the expiration of the
period of limitations. Hill v. State Farm Ins. Co., 390 S.W.3d
153, 157 (Ky. App. 2012).
13

None

of

those

four

situations

are

implicated

here.

Plaintiff is unable to point to any “circumstances beyond [his]
control” that prevented him from filing his § 1983 case in a
timely manner. Nanny, 260 S.W.3d at 817.
Since Kentucky equitable tolling law applies in this case,
and because Plaintiff is unable to meet the Kentucky standard
for

equitable

tolling,

this

Court

will

tolling on Plaintiff’s § 1983 claims.
Plaintiff’s

Complaint

are

therefore

not

apply

equitable

Counts 1, 2, and 4 of

dilatory,

and

this

Court

grants summary judgment on those Counts.
B.

Plaintiff’s
prejudice.

state

law

claims

will

be

dismissed

without

Having held that no federal laws have been violated, the
Court

will

dismiss

the

remaining

state

law

claims

without

prejudice pursuant to 28 U.S.C. § 1367(c)(3) since they all
involve issues of local government.
Therefore,

having

heard

oral

argument

and

reviewed

this

matter, and being sufficiently advised,
IT IS ORDERED that (1) Defendants’ Joint Motion for Summary
Judgment

(Doc.

19)

is

GRANTED;

(2)

Counts

3,

5,

6

of

the

Complaint are dismissed without prejudice; and (3) a separate
judgment shall enter concurrently herewith.

14

This 13th day of February, 2017.

15