Grise et al v. Allen et al
Filing
53
OPINION & ORDER: (1) GRANTING dft's 47 RENEWED MOTION for Summary Judgment as to all claims asserted by Dr. Grise; (2) GRANTED as to the claims asserted by Mrs. Grise in Counts 1,2,3,4,5,6,8 & 11; DENIED as to the claims asserted by Mrs. Grise in Counts 7,9, & 10. Signed by Judge Karen K. Caldwell on 3/30/16.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
WILLIAM P. GRISE, AND
MARY L. GRISE,
CIVIL ACTION NO. 5:11-195-KKC
Plaintiffs,
V.
OPINION AND ORDER
RONALD T. ALLEN, et al.
Defendants.
*** *** ***
This matter is before the Court on the Defendants’ Renewed Motion for Summary
Judgment. [DE 47]. For reasons stated in this Opinion, the Court will grant summary
judgment on each of Dr. Grise’s claims. However, the Defendants have not shown that
summary judgment is appropriate on Mrs. Grise’s claims for unlawful search under §1983,
failure to train and supervise under § 1983, or negligent hiring, training, supervision, and
retention. Therefore, the Court will grant the motion in part and deny it in part.
I.
BACKGROUND
The Defendants dispute many of the facts alleged by the Plaintiffs.1 For purposes of
considering the current motion, the Court will consider the facts as stated by the Plaintiffs.
United States v. Diebold, Inc., 369 U.S. 654 (1962) (“On summary judgment the inferences
to be drawn from the underlying facts . . . must be viewed in the light most favorable to the
party opposing the motion.”).
1
For the Defendants’ account of the events, see [DE 47-1 at 3, n.3.]
On January 2, 2011, Ronald T. Allen, a Deputy Sheriff of Madison County (“Deputy
Allen”) arrested William P. Grise, M.D. (“Dr. Grise”) at his rural home in Madison County.
[DE 51 at 5.] That evening, Dr. Grise fired two shotgun shells into the ground in an attempt
to quiet a neighbor’s barking dog. [DE 51 at 2.] Deputy Allen drove to Dr. Grise’s home in
response to a 911 call reporting the gun shots. [DE 47-1 at 2.] Dr. Grise maintains that he
feared that he and his wife were in danger as Deputy Allen arrived because he was unsure
of who was approaching their home. [DE 51 at 3.] Not knowing what to expect, Dr. Grise
put a pistol in his jacket pocket for protection and walked outside his house. [DE 51 at 3.]
According to Dr. Grise’s account, Deputy Allen exited his car and asked Dr. Grise if
he fired the shots. [DE 51 at 3.] Dr. Grise admitted that he fired his shotgun on his own
property hoping to silence the dog, then turned to walk back inside his house. [DE 51 at 3.]
Deputy Allen asked Dr. Grise if he could enter the home, but Dr. Grise refused. [DE 51 at
3.] Deputy Allen then yelled at Dr. Grise to come outside, and Dr. Grise replied, “I have
broken no law.” [DE 51 at 3.]
Dr. Grise returned to his house. [DE 51 at 4.] His wife, Mary Grise (“Mrs. Grise”),
who is also named as a plaintiff in this matter, was standing behind the partly-opened front
door. [DE 51 at 4.] As Dr. Grise attempted to turn sideways and slide past her, Mrs. Grise
lost her balance and fell over. [DE 51 at 4.] Deputy Allen, apparently seeing Mrs. Grise on
the floor, demanded that Dr. Grise open the front door. [DE 51 at 4.] Deputy Allen then
grabbed Dr. Grise by the arm, pulled him from the home and down the front steps, and
placed him under arrest. [DE 51 at 4.] Dr. Grise was charged with fourth-degree assault,
carrying a concealed weapon, and public intoxication. [DE 51 at 5-6.] The Plaintiffs allege
that Deputy Allen then entered and searched their home. [DE 4 at ¶¶ 29, 52-57.]
Dr. Grise’s preliminary hearing was held before the Madison County District Court
on March 14, 2011. Garrett T. Fowles, an assistant county attorney, agreed that the
2
Commonwealth would dismiss the charges against Dr. Grise if he would abide by certain
conditions for one year. Mr. Fowles recited the first three conditions and told the Court of
the Commonwealth’s recommendation that the charges be dismissed. The following
exchange then occurred:
COURT:
… Mr. Grise, just stay in touch with your attorney. We’ll
review this matter on March 12, 2012. Okay? Thank you.
MR. FOWLES:
Tom, this – oh, I’m sorry, Judge.
COURT:
Yes.
MR. FOWLES:
I forgot about one other condition. Dr. Grise will stipulate to
probable cause for the arrest without question.
COURT:
Show stip PC, continue to March 12, 2012, 9:00 a.m., to be
dismissed if no further violations, no possession of firearms
with the exception of the shotgun, and not to discharge a
weapon on his property unless in self-defense.
DR. GRISE:
Yes sir.
COURT:
Okay. Thank you. That takes care of the matter.
[DE 51-1, Exhibit 1, Madison District Court Transcript 03/14/2011 at 3-4.]
On June 6, 2011, the Plaintiffs initiated this lawsuit by filing the original complaint.
[DE 1.] The Plaintiffs named Deputy Allen, Nelson O’Donnell, the Sheriff of Madison
County (“Sheriff O’Donnell”), and the Madison County Sheriff’s Department as defendants
in the suit. See [DE 4, Amended Complaint.] The Defendants filed their initial Motion for
Summary Judgment on February 7, 2012. [DE 13.] In his Response to the first motion for
summary judgment, Dr. Grise asserted that he did not stipulate to probable cause before
the Madison District Court. [DE 17.]
On March 12, 2012, Dr. Grise returned to the Madison District Court, as instructed
by the court at his preliminary hearing. Dr. Grise stated that he never orally stipulated to
probable cause and would not do so. [DE 51 at 7.] The Madison District Court scheduled a
3
hearing for July 17, 2012, to determine whether Dr. Grise had stipulated to probable cause.
[DE 51 at 8.] This Court stayed Dr. Grise’s civil case pending the outcome of the July 17,
2012, hearing before the Madison District Court. [DE 31.]
Following the July 17, 2012, hearing, the Madison District Court concluded:
Based upon the testimony of the Defendant and the copies of
the transcripts submitted into the record, the Court finds that
the Defendant with the assistance of counsel entered into an
agreement to have his case dismissed on the condition of no
further violations, no possession of firearms with the exception
of a shotgun, not to discharge any weapons and the stipulation
of probable cause.
[DE 47-4, Exhibit 3, Madison Circuit Court Certified Records, Madison District Court Order
dated July 27, 2012, at 52.] Dr. Grise appealed this decision to the Madison County Circuit
Court, which initially found that the District Court’s order was not a final and appealable
order. [DE 47-4, Exhibit 3 at 113.] In response, the Madison District Court entered a final
order dismissing the criminal case against Dr. Grise. [DE 47-5, Exhibit 4, Madison District
Court Certified Records, Madison District Court Order of Dismissal, at 13.] The Madison
Circuit Court then considered the appeal and found that “the findings of fact of the District
Court are supported by the record, and that the court correctly applied the law.” [DE 47-4,
Exhibit 3, Order of Madison Circuit Court, at 27-32.] The Kentucky Court of Appeals and
Supreme Court of Kentucky both declined discretionary review. [DE 47-6, Exhibit 5; DE 477, Exhibit 6.]
Finally, the Defendants filed their current Renewed Motion for Summary Judgment
seeking dismissal of all claims. [DE 47.] The Plaintiffs asserts the following eleven causes of
action in this numerical order:
1.
2.
3.
4.
5.
False arrest under 42 U.S.C. § 1983;
False arrest under Kentucky state law;
Malicious prosecution under 42 U.S.C. § 1983;
Malicious prosecution under Kentucky state law;
Abuse of criminal process under 42 U.S.C. § 1983;
4
6. Abuse of criminal process under Kentucky state law;
7. Unlawful search and invasion of privacy under 42 U.S.C. § 1983;
8. Unlawful search and invasion of privacy under Kentucky state law;
9. Failure to train and supervise under 42 U.S.C. § 1983;
10. Negligent hiring, training, supervision, and retention; and
11. Outrage under Kentucky state law.
The Defendants argue that Dr. Grise’s stipulation to probable cause, coupled with
other shortcomings in the Plaintiffs’ claims entitles them to summary judgment on all
counts. Dr. and Mrs. Grise argue that the stipulation does not bar their claims.
II.
STANDARD OF REVIEW
“Summary judgment is proper if the evidence, taken in the light most favorable to
the nonmoving party, shows that there are no genuine issues of material fact and that the
moving party is entitled to a judgment as a matter of law.” Mazur v. Young, 507 F.3d 1013,
1016 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)); Fed. R. Civ. P. 56(a).
“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). “In such a situation, there can be ‘no genuine issue as to any material
fact,’ since a complete failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial.” Id. “The moving party is
‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make
a sufficient showing on an essential element of her case with respect to which she has the
burden of proof.” Id.
5
III.
ANALYSIS
A. Claims asserted by Mrs. Grise
As an initial matter, Mrs. Grise is named as a Plaintiff in this case. [DE 4 at 1.] It
appears that Mrs. Grise intended to personally assert all eleven causes of action because
each count of the Complaint alleges that she suffered an injury. See [DE 4.]
Neither party devoted substantial argument to Mrs. Grise’s involvement in this
matter. In their motion, the Defendants briefly mention that the “Amended Complaint …
does not appear to contain any allegation that Deputy Allen violated Mrs. Grise’s rights,”
but state that they “intended to also include Mrs. Grise to the extent that she is asserting
claims.” [DE 47-1 at 2, note 1.] Similarly, Plaintiffs treat the claims of Dr. Grise and Mrs.
Grise as one and the same throughout their Response. See [DE 51.] At no point do Plaintiffs
attempt to distinguish Mrs. Grise’s claims from Dr. Grise’s claims. Plaintiffs do not argue
that Mrs. Grise’s claims should proceed separately from Dr. Grise’s claims in the event that
his claims are dismissed.
Despite the lack of argument from the parties, the Court believes that Mrs. Grise
lacks standing to sue on Counts One through Six because there is no allegation that the
Defendants violated Mrs. Grise’s rights. All of the alleged conduct related to those counts
involved Dr. Grise, not Mrs. Grise. Furthermore, as explained herein, Count Eight cannot
proceed as a separate cause of action under Kentucky law, see infra Section (C)(iii), and
Count Eleven cannot be asserted in this case because other tort claims are available. See
infra Section (C)(v).
However, Mrs. Grise may continue to pursue her claim for unlawful search and
invasion of privacy under § 1983 because the Amended Complaint alleges a violation of her
constitutional rights. [DE 4 at ¶ 54.] Dr. Grise’s stipulation to probable cause does not
prevent Mrs. Grise, who made no such stipulation, from arguing that there was no probable
6
cause for the search of her home. Since the unlawful search claim survives, summary
judgment cannot be granted on Mrs. Grise’s claims in Counts Nine and Ten.
The remainder of this Opinion discusses Dr. Grise’s claims only.
B. § 1983 Claims
i.
Counts 1, 3, and 7: False Arrest, Malicious Prosecution, and Illegal Search
In Counts One, Three, and Seven Dr. Grise asserts claims against the Madison
County Sheriff’s Department along with Deputy Allen and Sheriff O’Donnell in both their
individual and official capacities.
a) Individual Liability of Deputy Allen and Sheriff O’Donnell
Dr. Grise cannot establish the constitutional violations he alleges in these counts
because he stipulated to probable cause. Therefore, Deputy Allen and Sheriff O’Donnell are
entitled to qualified immunity in their individual capacities on the § 1983 false arrest,
malicious prosecution, and illegal search claims.
Under § 1983, a plaintiff may seek money damages from government officials who
have violated his or her constitutional rights, but to ensure that fear of liability will not
unduly inhibit officials in the discharge of their duties, officials may claim qualified
immunity so long as they have not violated a clearly established right, in which instance
they are shielded from personal liability. Camreta v. Greene, 563 U.S. 692 (2011). The issue
of qualified immunity is essentially a legal question for the court to resolve. Everson v. Leis,
556 F.3d 484, 494 (6th Cir. 2009) (citing Elder v. Holloway, 510 U.S. 510(1994); Tucker v.
City of Richmond, 388 F.3d 216, 219 (6th Cir.2004)). The United States Supreme Court has
mandated a two-step sequence for resolving government officials’ qualified immunity
claims. Pearson v. Callahan, 555 U.S. 223, 232 (2009). First, a court must decide whether
the facts that the plaintiff has alleged make out a violation of a constitutional right. Id.
7
Second, if plaintiff has satisfied this first step, the court must decide whether the right at
issue was “clearly established” at the time of the defendant’s alleged misconduct. Id.
In this case, Dr. Grise fails the first step. He cannot show that Deputy Allen or
Sheriff O’Donnell violated his constitutional rights because he stipulated to probable cause.
To begin, Dr. Grise is collaterally estopped from contesting whether he stipulated to
probable cause. Under the doctrine of collateral estoppel, also known as issue preclusion,
“an earlier case only bars subsequent litigation over issues that (1) are the same as the
issues now presented, (2) were actually litigated, (3) were actually decided, and (4) were
necessary to the prior court’s judgment. Columbia Gas Transmission, LLC v. The Raven
Co., 2014 WL 2711943, at *3 (E.D. Ky. June 13, 2014) (citing Yeoman v. Com., Health Policy
Bd., 983 S.W.2d 459, 465 (Ky. 1998)). Unlike claim preclusion, the parties need not be the
same across both cases. Id.
Dr. Grise previously litigated the issue of whether he stipulated to probable cause
before the Madison County District Court, which found that “the Defendant with the
assistance of counsel entered into an agreement to have his case dismissed on . . . the
stipulation of probable cause.” [DE 47-4, Exhibit 3 at 52.] The Madison District Court
eventually entered an order dismissing the criminal charges against him. [DE 47-5, Exhibit
4 at 13.] Dr. Grise appealed to the Madison County Circuit Court, which affirmed the
District Court’s findings. [DE 47-4, Exhibit 3 at 6.]
The Madison District Court’s finding that Dr. Grise did in fact stipulate to probable
cause collaterally estops him from contesting whether he stipulated to probable cause.
First, the issue presented before the Madison District Court was exactly the same issue –
whether Dr. Grise stipulated to probable cause. Second, the issue was actually litigated,
evidenced by the fact that Dr. Grise himself testified before the Madison District Court
regarding this very issue. [DE 51-3, Exhibit 3 at 14-16.] Third, the Madison District Court’s
8
July 27, 2012, order shows that the court squarely decided the issue because it was the lone
issue decided therein. [DE 47-4, Exhibit 3 at 52.] Finally, determination of the issue was
necessary to the court’s judgment because it was the sole issue presented in those
proceedings and the dismissal of the charges against Dr. Grise was contingent, in part,
upon his stipulation to probable cause. [DE 47-5, Exhibit 4 at 13.] Thus, Dr. Grise is
collaterally estopped from re-litigating the question of whether he stipulated to probable
cause.
Dr. Grise’s false arrest, malicious prosecution, and illegal search claims fail based on
the doctrine of judicial estoppel. “Where a party assumes a certain position in a legal
proceeding, and succeeds in maintaining that position, he may not thereafter, simply
because his interests have changed, assume a contrary position.” Watkins v. Bailey, 484 F.
App'x 18, 25 (6th Cir. 2012). In Pennington v. Dollar Tree Stores, Inc., a court in this district
held that a prior stipulation “in open court” that probable cause existed defeated the
plaintiff’s malicious prosecution and false imprisonment claims because, in light of the
stipulation, the plaintiff was unable to prove a lack of probable cause. 104 F. Supp. 2d 710,
713 (E.D. Ky. 2000) aff'd, 28 F. App'x 482 (6th Cir. 2002). The Pennington court found that
the stipulation constituted an admission by the plaintiff that probable cause existed for her
detention, arrest, and criminal charges. Id. (“Plaintiff . . . admits to entering her stipulation
in open court. Hence, she admits that probable cause existed . . . .”). Accordingly, the court
granted summary judgment for the defendants.
Like in Pennington, Dr. Grise’s stipulation was an admission that there was
probable cause. The Madison District Court incorporated his admission into its final order
of dismissal. Accordingly, Dr. Grise may not take a clearly inconsistent position in this case
just because it works to his advantage. See Watkins, 484 F. App’x at 25.
9
Lack of probable cause is a required element of false arrest, malicious prosecution,
and illegal search claims. Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.2002) (“A false
arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked
probable cause to arrest the plaintiff.”); Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007)
(“What is certain, however, is that [a malicious prosecution claim] fails when there was
probable cause to prosecute. . . .”); Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669, 678
(6th Cir. 2005) (“The Fourth Amendment to the United States Constitution prohibits
searches and seizures absent probable cause or a warrant based on probable cause.”). Dr.
Grise is unable to establish a material element of these claims due to his prior stipulation
to probable cause. As such, Dr. Grise cannot succeed on these claims.
Dr. Grise attempts to distinguish Pennington by asserting that the court in that case
relied on a written stipulation of probable cause rather than an oral stipulation. [DE 51 at
24.] A close reading of Pennington, however, shows that Dr. Grise’s argument is inaccurate.
In Pennington, Judge Hood noted that “[t]he Court need not resolve the application of the
[written] stipulation to the defendants at this time. Plaintiff in her response to the motion
for summary judgment, admits to entering her stipulation in open court. Hence she admits
that probable cause existed for the stop by the store manager, the arrest outside the mall,
and the charges that followed. Plaintiff is therefore unable to meet the element of probable
cause which is required to avoid summary judgment on her claim of malicious prosecution.”
104 F. Supp. 2d at 713. Thus, the Pennington court did not rely on the written stipulation
whatsoever, but rather based its decision on the oral stipulation made “in open court”. Dr.
Grise likewise stipulated that probable cause existed “in open court” before the Madison
District Court on March 14, 2011, so Pennington is not distinguished for the reason he
asserts.
10
In conclusion, Dr. Grise’s false arrest, malicious prosecution, and illegal search
claims are grounded in alleged constitutional violations. Since no constitutional violation
occurred, Deputy Allen and Sheriff O’Donnell are entitled to qualified immunity and cannot
be held liable in their individual capacities on Counts One, Three, or Seven.
b) Liability of Madison County
Dr. Grise also asserts these claims against Deputy Allen and Sheriff O’Donnell in
their official capacities, and against the Madison County Sheriff’s Department.
The official capacity claims against Deputy Allen and Sheriff O’Donnell are
considered claims against Madison County. “[A] section 1983 action against a city official in
his or her official capacity is treated as an action against the City entity itself.”
Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003) (citing Barber v. City of Salem,
953 F.2d 232, 237 (6th Cir.1992)); see also Kentucky v. Graham, 473 U.S. 159 (1985) (“As
long as the government entity receives notice and an opportunity to respond, an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity.”).
According to the Sixth Circuit, a plaintiff’s claim against a municipality is
“inextricably linked” to its claims against the individual defendants. Cooper v. County of
Washtenaw, 222 Fed. App’x 459, 473 (6th Cir. 2007). For municipal liability to exist, a
constitutional violation must take place. City of Los Angeles v. Heller, 475 U.S. 796, 799,
106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). If no constitutional violation by the individual
defendants is established, the municipal defendants cannot be held liable under § 1983.
Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001).
Because this court has determined that Deputy Allen and Sheriff O’Donnell are
entitled to summary judgment on Counts One, Three, and Seven for lack of a constitutional
violation, Madison County cannot be liable on these claims.
11
ii.
Count 5: Abuse of Process
In Count Five Dr. Grise asserts abuse of criminal process under 42 U.S.C. § 1983.
Recent Sixth Circuit precedent provides that a plaintiff’s “alleged federal abuse-of-process
claim can be easily disposed of, as this court has consistently declined to recognize an
abuse-of-process claim under 42 U.S.C. § 1983.” Moore v. WesBanco Bank, Inc., 612 F. App'x
816, 823 (6th Cir. 2015) (citing Rapp v. Dutcher, 557 F. App’x 444, 448 (6th Cir. 2014)).
Indeed, the Court affirmed a district court’s dismissal of a plaintiff’s federal abuse of
process claim for this very reason. Moore, 612 F. App’x at 823; Rapp, 557 F. App’x 448
(“[T]he district court properly dismissed the claim because a federal abuse of process claim
does not exist in the law of this circuit.”)
Since the Sixth Circuit recently refused to recognize an abuse of process claim under
federal law, this Court cannot allow Dr. Grise to assert that precise claim under § 1983 as a
“close cousin” of malicious prosecution. To do so would run directly against clear Sixth
Circuit precedent. Therefore, Count Five must be dismissed.
Even if abuse of process was a cognizable claim under § 1983, the elements of the
claim would mirror those of state law. Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669,
676-77 (6th Cir. 2005). Dr. Grise’s abuse of process claim fails under Kentucky law, see
infra Section (B)(ii), so it would also fail as a § 1983 claim.
iii.
Count 9: Failure to Train and Supervise
Neither Sheriff O’Donnell nor Madison County can be held liable for failure to train
and supervise. As to Sheriff O’Donnell in his individual capacity, the Sixth Circuit has
clearly stated that “a prerequisite to supervisory liability under § 1983 is unconstitutional
conduct by a subordinate of the supervisor.” McQueen v. Beecher Cmty. Sch., 433 F.3d 460,
470 (6th Cir. 2006). In other words, if the subordinate did not violate a plaintiff’s
constitutional rights, the supervisor cannot be held liable for a failure to train or supervise.
12
As discussed above, Dr. Grise cannot establish that Deputy Allen, the subordinate in this
situation, violated his constitutional rights. Therefore, Count Nine, the supervisory liability
claim against Sheriff O’Donnell, must fail.
Similarly, Madison County cannot be held liable on Count Nine. “If the individual
defendants have violated no constitutional right, the municipality cannot be liable under
1983 for a failure to train.” Cooper, 222 F.App’x at 473. Dr. Grise cannot establish a
constitutional violation by Deputy Allen or Sheriff O’Donnell, so Madison County cannot be
held liable under § 1983.
C. State Law Claims
This Court recognizes that it has dismissed all of Dr. Grise’s federal law claims. In
this instance, the interests of judicial economy, convenience, fairness, and comity are best
served by this Court retaining jurisdiction over the state law claims. Carnegie-Mellon
University v. Cohill, 484 U.S. 343 (1988). This case was originally filed approximately four
and a half years ago, on June 16, 2011. The state law claims are nearly identical to the §
1983 claims, involve precisely the same set of facts, and do not present any novel issues of
state law. The parties have fully argued both the federal and state law claims in their
respective filings related to the present summary judgment motion. Lastly, this case was
previously stayed pending the outcome of state court proceedings, see [DE 31; 33], yet
neither party appears to have a strong desire to litigate in state court, as neither party
requested that this Court relinquish jurisdiction over the state law claims in the event the
federal claims were dismissed. Therefore, in its discretion, this Court will retain
jurisdiction over the state law claims and consider them here.
13
i.
Counts 2 and 4: False Arrest and Malicious Prosecution
The false arrest and malicious prosecution claims fail under state law because Dr.
Grise’s stipulation prevents him from establishing a lack of probable cause, an essential
element of each tort.
In Broaddus v. Campbell, 911 S.W.2d 281, 282 (Ky. Ct. App. 1995), the defendant
stipulated to probable cause for the issuance of the indictment against him and his theft
charges were dismissed. He then sued for malicious prosecution. Id. at 282. The court held
that the stipulation warranted dismissal of his claim because it prevented him from
establishing a lack of probable cause. Id. (“We find it axiomatic that where there is a
specific finding of probable cause in the underlying criminal action, or where such a finding
is made unnecessary by the defendant’s agreement or acquiescence, a malicious prosecution
action cannot be maintained.”).
Under Kentucky law, Dr. Grise must prove lack of probable cause as an element of
his false arrest and malicious prosecution claims. Id. at 283 (malicious prosecution); Myers
v. City of Louisville, 590 S.W.2d 348, 349 (Ky. Ct. App. 1979) (false arrest). Given Dr.
Grise’s stipulation, he cannot establish that required element. Therefore, the Defendants
are entitled to summary judgment on Counts Two and Four.
ii.
Count 6: Abuse of Process
Abuse of process is “the employment of legal process for some other purpose other
than that which it was intended by the law to effect.” Raine v. Drasin, 621 S.W.2d 895, 902
(Ky. 1981). To prevail on an abuse of process claim, a plaintiff must show that (1) the
process was instituted by the defendant for some ulterior purpose, and (2) that the
defendant performed a willful act in the use of the process not proper in the regular conduct
of the proceeding. Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998).
14
In Pennington v. Dollar Tree Stores, Inc., 104 F. Supp. 2d 710 (E.D. Ky. 2000) aff'd,
28 F. App'x 482 (6th Cir. 2002), a court in this District dismissed an abuse of process claim
based on the plaintiff’s probable cause stipulation. The plaintiff argued that the defendants
made shoplifting allegations against her out of “spite, anger, hatred, and ill will.” Id. at 714.
The court rejected the abuse of process claim, holding that “[b]ecuase the Ashland police
had probable cause to arrest Plaintiff for shoplifting, Plaintiff cannot claim that the
shoplifting allegations were borne out of any hatred or ill will harbored by the defendants.”
Id. Thus, the plaintiff’s stipulation that probable cause existed for her arrest precluded her
from asserting that the defendants initiated the charges against her for some ulterior
purpose.
In the present case, Dr. Grise asserts that Deputy Allen arrested Dr. Grise with the
“ulterior purpose of protecting himself from embarrassment and disciplinary action.” [DE
51 at 30.] In keeping with the reasoning and holding of Pennington, this Court likewise
finds that Dr. Grise’s stipulation that probable cause existed for his arrest defeats the claim
that the arrest constituted an abuse of process.
Furthermore,
the
Supreme
Court
of
Kentucky
has
explained
that
“there is no liability where the defendant has done nothing more than carry out the process
to its authorized conclusion even though with bad intentions.” Simpson, 962 S.W.2d at 394.
(citing W. Prosser, Handbook of the Law of Torts, Section 121 (4th ed. 1971)). The Court
further described the type of conduct that satisfies the second element of the claim:
Such conduct ‘usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding
itself, such as the surrender of property on [sic] the payment of
money, by the use of the process as a threat or a club. There is,
in other words, a form of extortion, and it is what is done in the
course of negotiation, rather than the issuance or any formal
use of the process itself, which constitutes the tort.’
Id. (citing W. Prosser, Handbook of the Law of Torts, Section 121 (4th ed. 1971)).
15
Mullins v. Richards, 705 S.W.2d 951 (Ky. Ct. App. 1986), illustrates the type of
extra-judicial act needed to sustain an abuse of process claim. In Mullins, the plaintiff
repaired the defendants’ cars, but the defendants were unhappy with the quality of the
work and the cost. Id. at 951-52. The defendants went before a grand jury and obtained two
indictments against the plaintiff that charged him with theft by deception. Id. at 952. The
defendants had no contact with the plaintiff between the date the indictments were
returned and the plaintiff’s criminal trial, which ended in a mistrial. Id. After his criminal
trial, the plaintiff sued for abuse of process. Id. In affirming the trial court’s dismissal of the
abuse of process claim, the court noted the fatal absence of the second element, stating that
“[a]lthough [defendants] may have had an ulterior purpose in securing the indictments
against the [plaintiff], the record contains no evidence that [defendants] attempted to use
the indictments against [plaintiff] outside the criminal proceeding.” Id. Importantly, the
court opined that “[i]f [defendants] had offered to drop the indictments in return for a
release of their debts to [plaintiff], then [plaintiff] would have stated a cause of action on his
claim for abuse of process.” Id. But without evidence of such an act the abuse of process
claim was untenable.
In this case, Deputy Allen did not misuse process, but merely initiated criminal
proceedings against Dr. Grise. Deputy Allen performed a basic police function– an arrest.
There is no evidence that he attempted to use the charges against Dr. Grise outside the
criminal proceeding for personal gain. Mullins, 705 S.W.2d at 952. He did not use the
threat of arrest to secure a monetary, proprietary, or other benefit from Dr. Grise, nor did
he offer to release Dr. Grise or refrain from filing charges in return for a benefit. Even if
Deputy Allen arrested Dr. Grise solely to protect himself from embarrassment and
disciplinary action, and to satisfy “his personal desires to feel more powerful than ordinary
16
citizens or those to whom he must actually submit,” [DE 51 at 30], those bad intentions
alone cannot sustain an abuse of process claim. Simpson, 962 S.W.2d at 395 (“. . . there is
no liability where the defendant has done nothing more than carry out the process to its
authorized conclusion even if we assume arguendo bad intentions.”). No evidence suggests
that Deputy Allen engaged in the type of extortion required for an abuse of process claim.
Therefore, the Defendants are entitled to summary judgment on Count Six.
iii.
Count 8: Illegal Search
In Count Eight, Dr. Grise asserts that the Defendants conducted an illegal search in
violation of Kentucky law, specifically sections one, two, and ten of the Kentucky
Constitution. [DE 4, Amended Complaint, ¶ 57.]
In St. Luke Hospital, Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011), the Supreme Court
of Kentucky considered whether an individual may bring a civil action for an alleged
violation of a provision of the Kentucky Constitution. The Court held that there is no
statutory cause of action for alleged constitutional violations in Kentucky. Id. at 531-32. It
further declined to judicially create a new tort cause of action for violations of the Kentucky
Constitution. Id.
Since Kentucky law does not recognize the cause of action Dr. Grise asserts in Count
Eight, that claim must be dismissed.
iv.
Count 10: Negligent Hiring, Training, Supervision, and Retention
In Count Ten, Dr. Grise asserts that the Madison County Sheriff’s Department and
Sheriff O’Donnell were negligent in hiring, training, supervising, and retaining Deputy
Allen. Dr. Grise cannot succeed on this claim as a matter of law because he cannot prove
that Deputy Allen committed a tort.
“There must be a finding of a tort to support liability and damages under a theory of
negligent hiring/retention.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 730 (Ky.
17
2009). “In order for [an] employer to be held liable for negligent hiring [or] retention ... the
employee must have committed a tort.” Id. (citing Mulhern v. City of Scottsdale, 799 P.2d
15, 18 (Ariz. Ct. App. 1990); see also Texas Skaggs, Inc. v. Joannides, 372 So. 2d 985, 987
(Fla. Dist. Ct. App. 1979) (“[I]n order to impose liability on an employer for [negligent
hiring, training, or retention], a plaintiff must first show that he was injured by the
wrongful act of an employee.”).
In this case, Dr. Grise’s negligence claim is premised on a finding that Deputy Allen
committed at least one of the alleged torts. For the reasons stated herein, Dr. Grise cannot
prevail on any of his tort claims against Deputy Allen. Therefore, neither the Madison
County Sheriff’s Department nor Sheriff O’Donnell can be held liable for negligent hiring,
retention, supervision, or retention.
v.
Count 11: Outrage
In Count Eleven Dr. Grise asserts a claim for outrage, which is Kentucky’s version of
intentional infliction of emotional distress. This claim fails for two reasons.
First, outrage is typically considered a “gap-filler” and is available where a more
traditional tort would not provide an appropriate remedy. Naselroad v. Mabry, No. CIV.A.
5:14-389-DCR, 2015 WL 1412007, at *6 (E.D. Ky. Mar. 26, 2015) (citations omitted).
Outrage is still a permissible claim when more traditional torts are available as long as the
defendants solely intended to cause extreme emotional distress. Id. However, “where an
actor's conduct amounts to the commission of one of the traditional torts such as assault,
battery, or negligence for which recovery for emotional distress is allowed, and the conduct
was not intended only to cause extreme emotional distress in the victim, the tort of outrage
will not lie.” Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky. Ct. App. 1993).
“Recovery for emotional distress in those instances must be had under the appropriate
traditional common law action.” Id.
18
Here, Dr. Grise asserts outrage based on the same conduct that underlies his other
ten other causes of action. [DE 4, Amended Complaint, ¶64.] (“[Defendants’] intentional and
reckless conduct described above was extreme and outrageous and caused the Plaintiffs
extreme and severe emotional distress.”). That conduct, namely Deputy Allen’s arrest of Dr.
Grise, falls within the scope of the other traditional torts that he asserts – false arrest,
malicious prosecution, abuse of criminal process, unlawful search, and negligence. Dr. Grise
would have been able to recover for emotional distress under these torts had he succeeded
on the claims. Moreover, Dr. Grise does not allege in either the Amended Complaint or
Response that Deputy Allen’s sole intent in arresting him was to cause extreme emotional
distress. Therefore, Dr. Grise cannot maintain a separate cause of action for outrage under
Kentucky law. Rigazio, 853 S.W.2d at 299.
Second, Dr. Grise’s stipulation that his arrest was supported by probable cause
means that the Defendants’ actions cannot satisfy the elements of an outrage claim as a
matter of law. Pennington, 104 F.Supp.2d at 715. (“[B]ecause Plaintiff agrees that probable
cause existed . . . the defendants’ actions do not qualify as ‘harassment intended to cause
extreme emotional distress.’”)
IV.
CONCLUSION
For the reasons stated above, Dr. Grise cannot prevail on any of his claims, meaning
that the Defendants are entitled to judgment as a matter of law. Summary judgment is also
proper on Mrs. Grise’s claims in Counts One through Six, Eight, and Eleven. However, the
Defendants have not shown that summary judgment is warranted on Mrs. Grise’s claims in
Counts Seven, Nine, and Ten.
Accordingly, the Court HEREBY ORDERS as follows:
1. The Defendant’s Renewed Motion for Summary Judgment [DE 47] is GRANTED as
to all claims asserted by Dr. Grise.
19
2. The Motion for Summary Judgment is GRANTED as to the claims asserted by Mrs.
Grise in Counts One, Two, Three, Four, Five, Six, Eight, and Eleven. The Motion is
DENIED as to the claims asserted by Mrs. Grise in Counts Seven, Nine, and Ten.
Dated March 30, 2016.
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?