Stewart v. Harlan City Police Department et al

Filing 58

MEMORANDUM OPINION & ORDER: 1. Defendants Mike Thomas, Mitchell Alford, Craig Miller, and the Harlan City Police Department's motion for summary judgment [Record No. 49 ] is GRANTED. 2. The defendants' motion in limine [Record No. [ 50]] is DENIED as moot. 3. All claims having been resolved, this action is DISMISSED and STRICKEN from the Court's docket. 4. A final and appealable Judgment shall be entered this date. Signed by Judge Danny C. Reeves on 10/21/2014.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
CARL E. STEWART,

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Plaintiff,
V.
HARLAN CITY POLICE
DEPARTMENT, et al.,
Defendants.

Civil Action No. 6: 13-66-DCR

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
This action arises from a property boundary dispute in Harlan, Kentucky. Plaintiff
Carl Stewart and his neighbor, Opha Thomas, own adjacent parcels of land on Poplar
Street. Stewart and Thomas have disagreed regarding the legal boundary line between
the properties and each has undertaken efforts to delineate their land. [Record No. 2] On
March 31, 2012, Harlan police received complaints of trespassing and Sergeant Miller
investigated the disturbance. [Id.] After speaking with witnesses, observing Stewart’s
location, and reviewing a survey of the land, Miller arrested the plaintiff. [Record No.
49-15, p. 13] Stewart was charged with third-degree criminal trespassing on Thomas’
property. On December 3, 2012, and by agreement of the parties, the charges were
dismissed. [Record No. 49-12] Stewart subsequently filed this pro se lawsuit under 42
U.S.C. §1983, asserting: (i) wrongful arrest in violation of the Fourth and Fourteenth
Amendments to the United States Constitution and (ii) an unlawful taking in violation of
the Fifth Amendment. [Record No. 2]
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Defendants Mike Thomas, Craig Miller, Mitchell Alford, and the Harlan City
Police Department now move for summary judgment. [Record No. 49] Stewart opposes
the motion. [Record No. 52] The defendants also move in limine to suppress purportedly
irrelevant and unfairly prejudicial evidence at trial. [Record No. 50] Upon review of the
record, the motion for summary judgment will be granted and the motion to suppress will
be denied as moot.
I.
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material
fact is not “genuine” unless a reasonable jury could return a verdict for the nonmoving
party. That is, the determination must be “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty lobby, Inc., 477 U.S. 242, 251-52
(1986).
The party moving for summary judgment bears the burden of showing that no
genuine issue of material fact exists. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir.
2008). However, once the moving party has met its burden of production, “its opponent
must do more than simply show that there is some metaphysical doubt as to the material
facts.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475, 586 (1986)).
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Instead, the

nonmoving party must present “significant probative evidence” of a genuine dispute . . .
to defeat the motion for summary judgment. Chao, 285 F.3d at 424. The nonmoving
party cannot simply rely upon the assertions in its pleadings. It must come forward with
probative evidence, such as sworn affidavits, to support its claims. Celotex, 477 U.S. at
324. In deciding whether to grant summary judgment, the Court views all the facts and
inferences drawn from the evidence in the light most favorable to the nonmoving party.
Matsushita, 475 U.S. at 587.
II.
A.

Wrongful Arrest

As the arresting officer, Sergeant Miller argues that he is entitled to summary
judgment on Stewart’s Fourth and Fourteenth Amendment wrongful arrest claims.
[Record No. 49-15] The Fourth Amendment to the United States Constitution protects
the right of individuals to be free from improper arrest and detention. U.C. Const.
amend. IV (“The right of people to be secure in their persons . . . against unreasonable
seizures . . . shall not be violated.”). A wrongful-arrest claimant must prove that there
was a lack of probable cause to believe that the suspect had committed the crime.
Devenpeck v. Alford, 543 U.S. 146, 156 (2004); Voyticky v. Village of Timerlake, Ohio,
412 F.3d 669, 677 (6th Cir. 2005).
Probable cause to make an arrest exists if, at the moment of the arrest, “the facts
and circumstances within the officers’ knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the
arrestee had committed or was committing an offense.” Klein v. Long, 275 F.3d 544, 550
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(6th Cir. 2001). This determination is assessed “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Kostrzewa v. City of
Troy, 247 F.3d 633, 639 (6th Cir. 1997). The “validity of the arrest does not depend on
whether the suspect actually committed a crime.” Logsdon v. Hains, 492 F.3d 334 (6th
Cir. 2007) (citing Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)).
Whether an officer is authorized to make an arrest “ordinarily depends, in the first
instance, on state law.” Logsdon, 492 F.3d at 341. Here, Stewart was arrested under
KRS § 511.08. [Record No. 49-8] In its entirety, the statute states:
511.08 Criminal trespass in the third degree.
(1)

A person is guilty of criminal trespass in the third degree when he
knowingly enters or remains unlawfully in or upon premises.

(2)

Criminal trespass in the third degree is a violation.

KRS § 511.08. Accordingly, Miller had probable cause to make the arrest if, on the basis
of the facts known to him, he could reasonably conclude that Stewart knowingly entered
or remained unlawfully on Opha Thomas’ property.
Although the plaintiff alleges that he “was standing on [his] own property,”
[Record No. 49-3, p. 13] the proper inquiry is not whether Stewart actually trespassed,
but whether the officers had probable cause to suspect that he had done so.

The

defendants assert that probable cause existed because Miller: (i) observed the surveyed
land; (ii) was advised by a witness that Stewart stood on Thomas’ land; and (iii)
determined “by sight” that Stewart was trespassing and refused to leave. [Record No. 4915, p. 15] The Sixth Circuit has held that an officer has no duty to investigate the
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boundaries of a public right-of-way prior to making an arrest for criminal trespass when
he or she receives reasonably trustworthy information that an individual is trespassing on
private property and the officer actually see the person on the property in question.
Skovgard v. Pedro, 448 Fed. Appx. 538, 546-47 (6th Cir. 2011). Although the present
case involves abutting private property rather than a public right-of-way, the analysis is
the same. See Gardenhire v. Schubert, 205 F.3d 303, 322-23 (6th Cir. 2000) (a duty to
investigate is not part of the probable cause determination).
Here, Sergeant Miller had probable cause to believe that Stewart was trespassing.
Eye witnesses identified Stewart and the alleged property boundaries. [Record No. 4915, p. 13] See Graves v. Bowles, 419 Fed. Appx. 640 (6th Cir. 2011) (holding that a law
enforcement officer is entitled to rely on eyewitness identification to establish adequate
probable cause to sustain an arrest); Ahlers v. Schevil, 188 F.3d 365, 370 (6th Cir. 1999).
Sergeant Miller personally observed Stewart in the area Miller believed to be Thomas’
property. [Record No. 49-15, p. 13] And according to Miller, Stewart repeatedly refused
to leave.1 [Id.] The defendants have demonstrated that sufficient probable cause existed
for the plaintiff’s arrest. As a result, Stewart’s wrongful arrest claim fails.
B.

Unlawful Taking

Stewart also alleges that the defendants violated his Fifth Amendment rights by
taking his property without compensation. [Record No. 2] While the Complaint does not
explicitly state the factual basis for this alleged violation, Stewart presumably takes issue

1

The official citation states that “[a]fter the fourth time asking [Stewart] to leave the above subject sat on the
ground and stated that he was not going anywhere.” [Record No. 49-8]

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with the Harlan City Police’s enforcement of the disputed property boundary in favor of
his neighbor by arresting him for trespass.
The takings clause of the Fifth Amendment, made applicable to the states through
the Fourteenth Amendment, provides that private property “shall not be taken for public
use, without just compensation.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536
(2005). The facts and circumstances of the March 2012 arrest do not rise to the level of a
taking for the purposes of the Fifth Amendment.

The incident is more properly

characterized as a property dispute between private parties – Stewart and his neighbor –
that does not involve state actors. The mere instance of police enforcement of the
apparent boundaries of the Poplar Street properties is not, by itself, sufficient to establish
the state’s “substantial contribution to and acceleration of the decline in value of
property” denying the owner “all or essential use of his property.” Amen v. Dearborn,
718 F.2d 789, 795 (6th Cir. 1983). Any loss of property to the plaintiff occasioned by
Thomas’ land survey was not “the result of any intrusion or encroachment” by the Harlan
Police. Woodland Market Realty Co. v. Cleveland, 426 F.2d 955, 957-8 (6th Cir. 1970).
The defendants correctly note that Stewart’s appropriate remedy for resolution of the
property dispute lies in a civil action in state court against Thomas. [Record No. 49-15,
p. 9]
C.

Qualified Immunity of Officers in Official Capacities

The defendants contend that Sergeant Miller is entitled to qualified immunity.
The doctrine of qualified immunity provides that, in civil suits, government officials
acting in their official capacity and performing discretionary functions are generally
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shielded from liability “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Gardenhire, 205 F.3d at 310-11 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
It is clearly-established that police officers must base arrests on probable cause. St. John
v. Hickey, 411 F.3d 762, 770 (6th Cir. 2005). If a police officer nonetheless arrests a
citizen where probable cause is so clearly absent that the officer sheds his or her qualified
immunity, the officer may be held accountable for the wrongful arrest. Gardenhire, 205
F.3d at 315.
Qualified immunity involves a three-step inquiry. The Court must determine
whether: (1) based upon the applicable law, the facts viewed in the light most favorable
to the plaintiff show that a constitutional violation has occurred; (2) the violation
involved a clearly established constitutional right of which a reasonable person would
have known; and (3) the plaintiff has offered sufficient evidence to indicate that what the
official allegedly did was objectively unreasonable in light of the clearly established
constitutional rights. Gray v. City of Detroit, 399 F.3d 612, 615 (6th Cir. 2005).
In the present case, inquiry begins and ends with the first step. Having already
determined that no constitutional violation occurred during Stewart’s arrest, the Court
need not address the remaining inquiries. Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If
no constitutional right would have been violated were the allegations established, there is
no necessity for further inquiries concerning qualified immunity.”). Where, as here, a
plaintiff cannot demonstrate the existence of a constitutional violation, a police officer is

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protected by qualified immunity. Estate of Carter v. City of Detroit, 408 F.3d 305, 311
(6th Cir. 2005).
D.

Remaining Defendants

Having determined that the arresting officer is entitled to summary judgment, the
Court turns to the remaining defendants named in Stewart’s Complaint but not directly
implicated in the arrest: (i) Officer Mitch Alford, (ii) Chief Mike Thomas, and (iii) the
Harlan County Police Department.
Although the Complaint names Officer Mitch Alford as the arresting officer
[Record No. 2], it appears from the record that Sergeant Miller actually performed the
arrest. [Record No. 49-10, p. 7] The extent of Alford’s involvement is that he completed
the written arrest citation on Miller’s behalf. [Record No. 49-8] It is well-settled in the
Sixth Circuit that, to state a cognizable § 1983 claim, the plaintiff must allege personal
involvement by each of the named defendants. Copeland v. Machulis, 57 F.3d 476, 481
(6th Cir. 1995) (personal involvement by the defendant is an essential element of a §
1983 cause of action asserting a constitutional deprivation). Having failed to establish
that Alford was personally involved in the arrest, Stewart has not stated a legallycognizable § 1983 claim upon which relief may be granted. See Bennett v. Schroeder, 99
Fed. Appx. 707, 713 (6th Cir. 2004) (an officer’s role in filling out a report is insufficient,
without evidence of personal involvement in the arrest, to defeat summary judgment).
Stewart also names Police Chief Mike Thomas as a defendant. [Record No. 2]
However, the record confirms that Thomas was not present at the time of the arrest.
[Record No. 49-15] In fact, Stewart concedes that he did not see the police chief on the
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date in question. [Record No. 49-3, p. 12] Stewart’s claim against Thomas appears to be
based on the fact that Chief Thomas is the son of Opha Thomas, the owner of the Poplar
Street property on which Stewart allegedly trespassed. [Record No. 52, p. 5] As with
Alford, Stewart has failed to establish personal involvement by Thomas. Thus, the
plaintiff has not alleged a legally-cognizable § 1983 claim against the police chief.
Stewart also points to Thomas’ authority over the other officers but his allegations
fall short of a claim of supervisor liability. [Record No. 52, p. 5] Entertaining arguendo
such a claim, the Court notes that supervisory liability under 42 U.S.C. § 1983 is
contingent upon the subordinate’s underlying constitutional violation.

McQueen v.

Beecher Cmty. Sch., 433 F.3d 460, 471 (6th Cir. 2006). The Sixth Circuit has explained
that, at a minimum, “a § 1983 plaintiff must show that a supervisory official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct
of the offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). In
the absence of any such violation, a plaintiff may not maintain supervisory liability
claims.

McQueen, 433 F.3d at 471.

Here, there is no evidence that Thomas was

personally involved in the events which gave rise to this litigation. Moreover, Stewart
has failed to supply evidence which raises a genuine issue of material fact that any
constitutional rights were violated by Thomas’ subordinates. Without more, Stewart
cannot establish supervisory liability, and Thomas is entitled to summary judgment.
Finally, Stewart names the Harlan City Police Department as a defendant.
[Record No. 2] The Police Department contends that municipal police departments are
structured as mere divisions of city government. And while the city itself may be held
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liable for the Department’s acts and omissions, the Department is not recognized as a
separate legal entity under Kentucky law. [Record No. 49-15, p. 23] Because the Police
Department is not a cognizable defendant, the City of Harlan is the proper party to
address the allegations of Stewart’s Complaint. See Matthews v. Jones, 35 F.3d 1046,
1049 (6th Cir. 1994) (the Jefferson County Police Department is not a suable entity);
Rhodes v. McDannel, 945 F.2d 117, 130 (6th Cir. 1991) (a sheriff’s department is not a
“legal entity subject to suit”). The City may be held liable for Stewart’s injuries only if
those injuries were the result of an unconstitutional policy or custom of the City. Monell
v. Department of Social Services, 436 U.S. 658 (1978). Stewart makes no response to
this argument. Moreover, he has failed to name the city as a defendant. In short, he has
not provided evidence that a genuine issue of material fact exists to hold the Harlan City
Police Department liable for the alleged constitutional violations.
Based on the foregoing discussion and analysis, the remaining named defendants2
are entitled to summary judgment on Stewart’s § 1983 claims. These parties would also
be entitled to summary judgment of the claims against them on the same grounds
presented above: sovereign immunity and the plaintiff’s failure to present evidence of a
constitutional violation under the Fourth, Fifth and/or Fourteenth Amendments.
III.
In the event that this action proceeds to trial, the defendants urge the Court to bar
evidence that Stewart sat “in a hot police car for over two hours” following his arrest, as

2

The defendants argue that Harlan Mayor Danny Howard is also entitled to summary judgment. [Record
No. 49-15, p. 23] However, Howard does not appear as a named defendant and is not represented in this action,
through counsel or otherwise. Accordingly, the issue of his liability is not properly before this Court.

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well as any evidence of the factually-related federal lawsuit filed by the plaintiff’s sister,
Linda Stewart. [Record No. 50] To this end, the defendants argue that the evidence is
inadmissible as irrelevant under Federal Rule of Evidence 402 or, in the alternative, that
it should be excluded as unfairly prejudicial under Federal Rule of Evidence 403.
[Record No. 50-2] However, in granting the defendant’s motion for summary judgment,
the Court need not reach the issue of admissibility. Thus, the motion in limine to bar
evidence will be denied as moot.
IV.
For the reasons discussed above, it is hereby
ORDERED as follows:
1.

Defendants Mike Thomas, Mitchell Alford, Craig Miller, and the Harlan

City Police Department’s motion for summary judgment [Record No. 49] is GRANTED.
2.

The defendants’ motion in limine [Record No. 50] is DENIED as moot.

3.

All claims having been resolved, this action is DISMISSED and

STRICKEN from the Court’s docket.
4.

A final and appealable Judgment shall be entered this date.

This 21st day of October, 2014.

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