Murphy v. Bruner et al
Filing
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OPINION AND ORDER: (1) Clerk SHALL STRIKE 16 Supplement to Response from the record. (2) 9 Motion to Dismiss is GRANTED. (3) Pla's claims against Dfts Swabey and Kelty in their official capacity as Deputy Sheriff and Sheriff of Mercer County, Kentucky, respectively, and Count II of Plaintiff's Complaint are DISMISSED. (4) 11 Motion for Judgment on the Pleadings is GRANTED. (5) Action is DISMISSED against Dft Bruner. Signed by Judge Karen K. Caldwell on 5/25/2018. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
DAVID MURPHY,
CIVIL NO. 5:17-CV-376-KKC
Plaintiff,
v.
OPINION AND ORDER
ARMSTER BRUNER, JR., individually,
MATT SWABEY, individually and in
his official capacity as Deputy Sheriff
of Mercer County, Kentucky, and
ERNIE KELTY, JR., individually and
in his official capacity as Sheriff of
Mercer County, Kentucky
Defendants.
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This matter is before the Court on a Motion to Dismiss (DE 9) filed by Defendants Matt
Swabey, and Ernie Kelty, Jr., individually and in their official capacity as Deputy Sheriff and
Sheriff of Mercer County, Kentucky, respectively, and a Motion for Judgment on the
Pleadings (DE 11) filed by Defendant Armster Bruner Jr. For the reasons set forth below,
these motions are granted. Plaintiff’s claims for malicious prosecution and abuse of criminal
process and claims against Defendants Swabey and Kelty in their official capacity are
dismissed.
I. Background
The following facts are taken from Plaintiff’s Complaint and accepted as true for the
purpose of deciding Defendants’ Motion to Dismiss and Motion for Judgment on the
Pleadings. Armster Bruner and David Murphy entered into an oral contract in April 2016 in
which Murphy agreed to provide repairs to Bruner’s 1969 Pontiac GTO Judge and 2005
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American Hauler trailer. Murphy was also to use the trailer to haul the Pontiac GTO Judge
to his various workshops. (Compl. ¶ 11, DE 1.) Bruner, however, failed to pay the $14,486.64
he owed for these repairs. (Compl. ¶ 12.) Murphy proceeded to file statement of Mechanic’s
lien/Garagemen’s lien in the office of the Lincoln County Court Clerk in the amount of
$11,000 on the Pontiac GTO Judge and $7,000 on the American Hauler trailer. (Compl. ¶¶
13–14.)
Shortly thereafter, Bruner reported to the Jessamine County Sheriff, Kevin Corman, that
Murphy was wrongfully withholding his Pontiac GTO Judge and American Hauler trailer.
(Compl. ¶ 15.) Sheriff Corman, in the presence of Bruner, phoned Murphy and demanded
that he bring the vehicles to Jessamine County or be arrested. Murphy informed Sheriff
Corman that a Mechanic’s/Garagemen’s lien were being lodged against the vehicles. (Compl.
¶ 16.) Sheriff Corman proceeded to contact Ernie Kelty, Jr., Mercy County Sheriff, and
requested that Mercer County open an investigation into Murphy and the vehicles because
they were physically located in Mercer County. (Compl. ¶ 17.) Sheriff Kelty assigned Deputy
Sheriff Matt Swabey to the investigation. (Compl. ¶ 18.)
Deputy Swabey received information that the vehicles were located at Murphy’s residence
on Woodstock Drive in Danville, Kentucky. Sheriff Kelty and Deputy Swabey traveled to the
residence, and observed a black trailer—Bruner’s American Hauler—behind a locked gate on
the property. (Compl. 19.) Without a warrant or permission from Murphy, Sheriff Kelty and
Deputy Swabey climbed over the fence and seized the trailer. (Compl. ¶¶ 20–21.) Sheriff Kelty
and Deputy Swabey forced open the trailer, inventoried its content, and moved it to the
Mercer County Sheriff’s office parking lot. (Compl. ¶ 23.) The trailer included contents which
did not belong to Bruner, including a 2011 Camaro, a pressure washer, and tools. (Compl. ¶
24.) That same day, Deputy Swabey went to Murphy’s shop on South Danville Bypass with
Deputy Sheriffs from Boyle County. The Deputies broke into the shop using a sledge hammer,
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seized firearms belonging to Murphy and damaged his property. (Compl. ¶ 25.) The Deputies
left the premises unlocked, resulting in items from the shop being stolen by unknown third
parties. (Compl. ¶ 27.)
The next day, Deputy Swabey spoke with Heather Sanders and threatened to bring
criminal charges against her if she did not inform him of the location of the Pontiac GTO.
Sanders informed him the vehicle was located at an address on Hugeuly Lane, and Deputy
Swabey proceeded to seize the vehicle. (Compl. ¶ 29.)
Murphy asserts five claims in this action. First, he asserts a claim for malicious
prosecution and abuse of criminal process by Bruner based on false statements and omissions
which created the pretext for the criminal investigation against him. (Count I, Compl. ¶¶ 30–
31.) Second, he claims that Sheriff Kelty and Deputy Swabey engaged in malicious
prosecution and abuse of criminal process, in violation of 42 U.S.C. § 1983,1 for unlawfully
entering his residence and shop and seizing his property. (Count II, Compl. ¶¶ 32–35.) Count
III and Count IV allege that the search of Murphy’s property by Sheriff Kelty and Deputy
Swabey were unlawful under federal and state law, respectively. (Compl. ¶¶ 36–43.) Finally,
Count V alleges that Sheriff Kelty and Deputy Swabey engaged in extreme and outrageous
conduct that caused Murphy severe emotional distress. (Compl. ¶¶ 44–45.)
Sheriff Kelty and Deputy Swabey (the “Mercer County Defendants”) have moved to
dismiss Murphy’s claims made against them in their official capacity and Count II for failure
to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (DE 9.) Bruner has moved for a judgment
on the pleadings for failure to state a claim pursuant to Fed. R. Civ. P. 12(c). (DE 11.) Plaintiff
In his Complaint, Murphy refers to his federal claims as arising under 28 U.S.C. § 1983. The Court
assumes that the Plaintiff intended to refer to 42 U.S.C. § 1983, which provides a cause of action
against “[e]very person who, under color of [law] . . . subjects, or causes to be subjected, any citizen . .
. to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
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filed a response to both motions (DE 13, 14) and Sheriff Kelty and Deputy Swabey filed a
reply (DE 15). This matter is now ripe for review.
II. Standard of Review
A party may move for judgment on the pleadings after the pleadings have closed. Fed. R.
Civ. P. 12(c). The standard of review for a Rule 12(c) motion for judgment on the pleadings
and a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted are
the same. See Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). For the
purposes of either motion, the well-pleaded allegations of the complaint must be taken as
true and all reasonable inferences drawn in the plaintiff’s favor. Id. (quoting JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007); see also Gavitt v. Born 835
F.3d 623, 640 (6th Cir. 2016).
To survive a Rule 12(c) or Rule 12(b)(6) motion, “[t]he factual allegations in the complaint
need to be sufficient to give notice to the defendant as to what claims are alleged, and the
plaintiff must plead ‘sufficient factual matter’ to render the legal claim plausible, i.e., more
than merely possible.” Fritz, 592 F.3d at 722 (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
“A legal conclusion couched as a factual allegation,” however, “need not be accepted as true
on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient.” Id.
(quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)).
III. Analysis
Before turning to the merits of Defendants’ motions, the Court will first address the
Plaintiff’s “Supplement to Response,” which addressed the Mercer County Defendants motion
to dismiss (DE 16). The Supplement to Response contains additional factual allegations
regarding a meeting between Murphy and a Deputy Mercer County Sheriff that was not
discussed in the Complaint. The Mercer County Defendants have filed an objection seeking
to have the supplemental response stricken from the record as an impermissible sur-reply
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not authorized by L.R. 7.1 and because it invokes facts not alleged in the complaint. See
Ludwig v. Ky. Dep’t of Military Affairs, No. 13-174-GFVT, 2015 WL 351863, at *3 (E.D. Ky.
Jan. 23, 2015) (“The facts in the Complaint—and not the extraneous ones in [plaintiff’s]
Response brief—are the focus of a 12(b)(6) inquiry.”). The Court finds that facts not alleged
in the complaint should not be considered in the context of the pending motion. Accordingly,
the Clerk will be directed to strike the document from the record.
A. Mercer County Defendants Motion to Dismiss
The Mercer County Defendants seek dismissal of all of Plaintiff’s claims made against
them in their official capacity and Count II of Plaintiff’s Complaint alleging malicious
prosecution and abuse of process.
1. The Motion is not for Summary Judgment
Murphy argues that the Mercer County’s Motion to Dismiss is a premature motion for
summary judgment. A Rule 12(b)(6) motion is converted to a motion for summary judgment
under Rule 56 if “matters outside the pleadings are presented to and not excluded by the
court.” Fed. R. Civ. P. 12(d). The Mercer County Defendants, however, have not presented
any matters outside the pleading. Their motion argues only that Plaintiff’s Complaint is
insufficient, and it is therefore a proper motion under Rule 12(b)(6). Murphy’s claim that
discovery has not started and the parties have yet to file their joint report is inapposite. It is
the fact that this litigation is at such an early stage that makes the motion to dismiss proper.
See Fed. R. Civ. P. 12(b) (“A motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed.”). Thus, the Court will consider the Mercer
County Defendants’ motion as styled—a motion to dismiss.
2. Official-Capacity Claims
Murphy asserts both federal and state law claims against the Mercer County Defendants
in their official capacity as Sheriff and Deputy Sheriff of Mercer County. Specifically, Count
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II and III assert federal claims pursuant to 42 U.S.C. § 1983 for malicious prosecution, abuse
of criminal process, and “unlawful search invasion of privacy.” Count IV and Count V consist
of state law claims for unlawful search, invasion of privacy, and outrageous conduct. All of
these claims must be dismissed against Mercer County Defendants in their official capacity.
a. Federal Claims
A § 1983 claim against a county official in his official capacity is properly treated as a
claim against the county itself. See Laubis v. Witt, 597 F. App’x 827, 832 (6th Cir. 2015) (“The
district court correctly held that the official capacity suit against [a county sheriff] should be
treated as a claim against the county itself.” (citing Shamaeizadeh v. Cunigan, 338 F.3d 535,
556 (6th Cir. 2003)). Section 1983 claims are only permitted against local governments in
certain limited circumstances. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)
(“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.”). To
succeed on a § 1983 claim against a local government, the plaintiff “must prove that ‘action
pursuant to official municipal policy’ caused their injury.” Connick v. Thompson, 563 U.S. 51,
60 (2011) (quoting Monell, 436 U.S. at 691). Examples of official municipal policies are “the
decisions of a government's lawmakers, the acts of its policymaking officials, and practices so
persistent and widespread as to practically have the force of law.” Id. at 61.
Murphy has failed to allege that his rights were violated as a result of an official policy of
Mercer County. The Complaint is wholly devoid of any reference to any Mercer County
policies. Accordingly, dismissal of Plaintiff’s federal claims against the Mercer County
Defendants in their official capacity is warranted.
b. State Claims
Under Kentucky law, public officials sued in their official capacity “are cloaked with the
same immunity as the government or agency he/she represents.” Schwindel v. Meade Cty.,
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113 S.W.3d 159, 169 (Ky. 2003) (citing Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)).
Absent a legislative waiver, counties in Kentucky enjoy sovereign immunity. Id. at 163.
Murphy has not identified, nor is the Court aware, of any waiver of county sovereign
immunity with respect to his claims. Accordingly, Murphy’s state law claims against the
Mercer County Defendants in their official capacity are barred by sovereign immunity.
3. Malicious Prosecution and Abuse of Criminal Process
Murphy asserts his claims malicious prosecution and abuse of criminal process against
the Mercer County Defendants under federal law. Murphy’s claim for abuse of process clearly
fails, as the Sixth Circuit “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 Fed.Appx. 444, 448 (6th Cir. 2014)). Murphy does not claim, in
either his Complaint or his response, that he intends to assert this claim under state law.
Therefore, Murphy has failed to state a claim for abuse of process against the Mercer County
Defendants.
A malicious prosecution claim is cognizable under § 1983. See Sykes v. Anderson, 625 F.3d
294, 308 (6th Cir. 2010) (“The Sixth Circuit ‘recognize[s] a separate constitutionally
cognizable claim of malicious prosecution under the Fourth Amendment,’ which
‘encompasses wrongful investigation, prosecution, conviction, and incarceration.’”) (quoting
Barnes v. Wright, 449 F.3d 709, 715–16 (6th Cir. 2006)). To succeed on such a claim, the
plaintiff must establish that: (1) “a criminal prosecution was initiated against the plaintiff
and that the defendant made, influenced, or participated in the decision to prosecute;” (2)
“there was a lack of probable cause for the criminal prosecution;” (3) “as a consequence of a
legal proceeding, the plaintiff suffered a deprivation of liberty, as understood in our Fourth
Amendment jurisprudence, apart from the initial seizure;” and (4) “the criminal proceeding
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must have been resolved in the plaintiff's favor.” Id. at 308–309 (internal quotation marks
and citations omitted).
Murphy has failed to state a claim against the Mercer County Defendants because he has
not alleged that a criminal prosecution was initiated against him or that a prosecution was
resolved in his favor. As summarized in his response, all that is alleged against the Mercer
County Defendants is that they “instituted a criminal investigation of David Murphy,”
“entered his residence, his garage, and seized his property, all without a warrant,” and that
the “criminal investigation was without probable cause.” (DE 14.) Thus, this claim clearly
fails.
B. Bruner’s Motion for Judgment on the Pleadings
Murphy asserts two causes of action against Bruner, both of which are listed in Count I
of the Complaint: malicious prosecution and abuse of criminal process. In order to succeed on
a claim for malicious prosecution against a private person, a plaintiff must establish the
following elements:
1) the defendant initiated, continued, or procured a criminal or civil judicial
proceeding, or an administrative disciplinary proceeding against the plaintiff
2) the defendant acted without probable cause;
3) the defendant acted with malice, which, in the criminal context, means seeking to
achieve a purpose other than bringing an offender to justice; and in the civil context,
means seeking to achieve a purpose other than the proper adjudication of the claim
upon which the underlying proceeding was based;
4) the proceeding, except in ex parte civil actions, terminated in favor of the person
against whom it was brought; and
5) the plaintiff suffered damages as a result of the proceeding.
Martin v. O’Daniel, 507 S.W.3d 1, 11–12 (Ky. 2016) (emphasis added). “An action for abuse
of process is ‘the irregular or wrongful employment of a judicial proceeding,’ and has two
essential elements: 1) an ulterior purpose, and 2) a willful act in the use of the process not
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proper in the regular conduct of the proceeding.” Sprint Commc’ns Co., L.P. v. Leggett, 307
S.W.3d 109, 114 (Ky. 2010) (emphasis added) (quoting Simpson v. Laytart, 962 S.W.2d 392,
394 (Ky. 1998)).
Both of these claims against Bruner fail for the same reason: Murphy has not alleged that
a judicial proceeding was employed, initiated, continued, or procured against him. All that
Murphy has alleged is that Bruner procured a criminal investigation against him. That is
insufficient. Murphy appears to argue that an investigation fulfills the elements of these
claims because “procuring a criminal or civil judicial proceeding is synonymous with being
the proximate and efficient cause of putting the law in motion against another person.”
Martin, 507 S.W.3d at 12 (internal quotation marks omitted). Accepting this argument,
however, would require ignoring the clear language of the Supreme Court of Kentucky that
a judicial proceeding be procured.2 A criminal investigation is simply not a judicial proceeding
and the law is not “put in motion” against a person until such a proceeding is commenced.
Therefore Bruner is entitled to judgment on the pleadings in his favor on Count I of Plaintiff’s
Complaint. Because there are no remaining causes of action against Bruner, he will be
dismissed from this matter.
IV. Conclusion
For the reasons set forth above, the Court HEREBY ORDERS:
(1) the Clerk SHALL STRIKE Plaintiff’s Supplement to Response (DE 16) from the
record;
(2) Defendants Matt Swabey and Ernie Kelty’s Motion to Dismiss (DE 9) is GRANTED;
Moreover, the plaintiff in Martin was indicted by a grand jury and was acquitted following a jury
trial. Id. at 4.
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(3) Plaintiff’s claims against Defendants Swabey and Kelty in their official capacity as
Deputy Sheriff and Sheriff of Mercer County, Kentucky, respectively, and Count II of
Plaintiff’s Complaint are DISMISSED;
(4) Defendant Armster Bruner Jr.’s Motion for Judgment on the Pleadings (DE 11) is
GRANTED;
(5) This action is DISMISSED against Defendant Bruner.
Dated May 25, 2018.
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