Feltha v. City of Newport, Kentucky et al
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
CIVIL ACTION NO. 2:2016-cv-128(WOB-CJS)
MEMORANDUM OPINION AND ORDER
CITY OF NEWPORT
CITY OF HIGHLAND HEIGHTS
CAMPBELL COUNTY, KY.
This is a 42 U.S.C. § 1983 civil rights case that presents
the narrow question of whether the statute of limitations for
judgment from a state criminal court.
After brief discovery on
that question, Defendants jointly filed a Motion for Summary
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
buy. After arranging it with a confidential
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
On December 12, 2013, the Campbell County
Grand Jury indicted Feltha for two counts of
Trafficking in the First Degree, Controlled
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
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.
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.
He filed this suit on July 7, 2016. (Complaint, Doc. 1,
Fourth, Fifth, and Fourteenth Amendments by illegally searching
his apartment and illegally arresting him.
(Complaint, Doc. 1,
Complaint, Doc. 1).
At this juncture, Defendants do not challenge the merits of
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.
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
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.
statute of limitations began to run.
2. Federal law dictates that
began to run for the
Plaintiff’s residence was
arrest and imprisonment
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
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
Generally, the statute begins to run when Plaintiff
“has a complete and present cause of action.” Wallace, 549 U.S.
Plaintiff was indicted.
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.
These claims accrue when the Plaintiff is
Id. at 388.
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.
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).
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
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-
all for an entirely common state of affairs.” Wallace, 549 U.S.
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
In this district, “equitable tolling is ‘sparingly’
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
Wallace v. Kato, a Plaintiff like Feltha likely
equitably tolled, with the statute of limitations only beginning
when the Kentucky Court of Appeals reversed his conviction.
F.3d 391, 398 (6th Cir. 1999)(citing Heck v. Humphrey, 512 U.S.
litigant “has a complete and present cause of action.” Wallace,
549 U.S. at 388.
In ensuing years, federal courts have severely restricted
“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”);
2013)(allowing equitable tolling on similar facts).
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
collateral estoppel tolled his statute of limitations from July
Motion to Suppress—until April 4, 2016, when the Kentucky Court
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.
of Appeals’ decision became final.2
This argument runs into two
because Plaintiff does not cite to any case in which a federal
district court dismissed a § 1983 case based on a state criminal
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
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).
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.
Supreme Court found the federal district court properly granted
is the same practical result as the portion of the Heck v.
Humphrey doctrine that survived Wallace.
That portion of Heck
[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.
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.
pending the final resolution of the state court proceedings.
This Court has routinely done so in other cases.
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
criminal case or the likelihood of a criminal case is ended”);
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
dismiss his action if he had filed it after the Campbell County
Circuit Court denied his Motion to Suppress and before 365 days
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
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
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
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
equitable tolling law to this case.
Kentucky courts only allow equitable tolling when (1) the
constraints of the statute of limitations, and (2) some factor
statute of limitations.
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
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
Even assuming arguendo that Plaintiff met the first prong
of the test, he cannot meet the second prong.
There are only
extraordinary situation beyond a litigant’s control sufficient
to satisfy the second prong of the equitable tolling test.
first is the prison mail rule.
E.g., Moorman v. Cmmw., 484
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).
Third is when the litigant files
employee waits until a dilatory date to officially file the
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.
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).
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
tolling on Plaintiff’s § 1983 claims.
Counts 1, 2, and 4 of
grants summary judgment on those Counts.
Having held that no federal laws have been violated, the
prejudice pursuant to 28 U.S.C. § 1367(c)(3) since they all
involve issues of local government.
matter, and being sufficiently advised,
IT IS ORDERED that (1) Defendants’ Joint Motion for Summary
Complaint are dismissed without prejudice; and (3) a separate
judgment shall enter concurrently herewith.
This 13th day of February, 2017.
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