Hall v. Williamsburg, Kentucky et al

Filing 204

MEMORANDUM OPINION AND ORDER: 1) Defendant Birds motion for judgment on the pleadings [Record No. 111] is GRANTED with respect to all claims against him in his official capacity; 2) Defendant Bird's motion for judgment on the pleadings [Record No. 111] is GRANTED, in part, and DENIED, in part, with respect to the claims against him in his individual capacity, consistent with this Memorandum Opinion and Order. a. Judgment on the pleadings is GRANTED w/respect to Count II (Due Process), Coun t III (Behavior that Shocks the Conscience), Count IV (Civil Conspiracy), Count VI (Intentional Infliction of Emotional Distress), Count VII (Negligent Infliction of Emotional Distress), Count VIII (Negligence), Count X (Defamation), Count XI (False Imprisonment), Count XIII (Abuse of Process), and Count XIV (Respondeat Superior). b. Judgment on the pleadings is DENIED w/respect to Count 1 (Federal Malicious Prosecution) and Count XII (State Malicious Prosecution). 2) Defendant City of Williams burg's motion for judgment on the pleadings [Record No. 111] is GRANTED, in part, and DENIED, in part, consistent with this Memorandum Opinion and Order. a. Judgment on the pleadings is GRANTED w/respect to Count I(Federal Malicious Prosecution) , Count II (Due Process), Count III (Behavior that Shocks the Conscience), Count IV (Civil Conspiracy), Count VI (Intentional Infliction of Emotional Distress), Count VII (Negligent Infliction of Emotional Distress), Count VIII (Negligence), Count X (Defamation), Count XI (False Imprisonment), Count XIII (Abuse of Process), and Count XIV (Respondeat Superior). b. Judgment on the pleadings is DENIED w/respect to Count XII (State Malicious Prosecution). Signed by Judge Danny C. Reeves on 8/24/2017.(RC)cc: COR, paper copy to pro se filer via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
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TRISTAN JAMES HALL,
Plaintiff,
V.
CITY OF WILLIAMSBURG,
KENTUCKY, et al.,
Defendants.
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Civil Action No. 6: 16-304-DCR

MEMORANDUM OPINON
AND ORDER

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This matter is pending for consideration of the motion to dismiss or, alternatively, for
judgment on the pleadings filed by the remaining defendants in this case, the City of
Williamsburg, Kentucky (“City of Williamsburg”) and Chief Wayne Bird (“Bird”). [Record
No. 111] The defendants argue that they are entitled to judgment on the pleadings based on
the statute of limitations, immunity, and failure to state a claim upon which relief can be
granted. The defendants’ motion will be granted, in part, and denied, in part, for the reasons
outlined below.
I.
The relevant facts of this case have been set out in the Court’s decision granting motions
to dismiss filed by the other defendants. [Record No. 110] As explained previously, this case
involves ongoing criminal proceedings in which Hall was charged with several offenses. The
Amended Complaint alleges the following facts that are relevant to the remaining defendants.
A.

The Solicitation Charge

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In January 2013, an anonymous person used the internet forum Topix to post that he or
she would “pay someone $5000 cash for the murder and concealment of Melissa Jones [sic]
body . . . .” [Record No. 31, ¶ 17] Following an investigation, law enforcement officer Richard
Baxter (“Baxter”) concluded that Hall had created the post. [Id. at ¶ 21] According to the
Amendment Complaint, Baxter then obtained a warrant and arrested Hall for the offense of
“murder”.1 [Id. at ¶ 27] The court arraigned Hall for this offense on May 17, 2013. [Id. at ¶
29] The murder charge was later amended to solicitation to commit murder and the grand jury
indicted Hall for this offense on June 17, 2013. [Id. at ¶ 31]
B.

The Intimidation/Retaliation Charge

While the solicitation to commit murder charge was pending, Hall’s then-girlfriend
(Angela Reeves) contacted Defendant Allen Trimble who was serving as the prosecutor of the
charge. [Id. at ¶¶ 58-63] Reeves left Trimble a voicemail in which she asserted that if Trimble
did not find Hall guilty of the solicitation charge she would “deliver [Hall’s] dead head to your
lobby with blood all over it. You better find him guilty.” [Id. at ¶ 61] Based on this conduct,
on June 24, 2014, Bird obtained a warrant to arrest Hall for “intimidation of a legal participant.
[Id. at ¶¶ 64, 65] In the affidavit, Bird “falsely alleged” that Hall and “his girlfriend Angie
Reeves AKA Angie Hall placed 8 different phone calls to Trimble” as a means of intimidating
him to obtain the arrest warrant. [Id. at ¶ 65] Hall asserts that this statement was false in that

1

As discussed at length in the Court’s ruling on the plaintiff’s motion for
reconsideration, the parties dispute whether Hall was charged initially with murder or
solicitation to commit murder. [Record Nos. 201] The Court is skeptical that Hall was ever
charged with murder for the reasons stated in that opinion. However, for purposes of the
present motion, the nature of the initial charge is not relevant. The Court will therefore assume
the truth of Hall’s allegation on this point.
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Reeves had made all of the phone calls to Trimble without Hall’s involvement and,
additionally, the calls did not involve any personal threats against Trimble. [Id. at ¶ 67]
On June 20, 2014, in connection with the investigation of the intimidation charge, Bird
executed a search warrant of Hall’s grandmother’s home, where Hall was residing on house
arrest. [Id. at ¶ 70] Bird seized a number of Hall’s and Reeves’s possessions, including
phones, computers, and documents that Hall had received from his attorney. [Id. at ¶ 71] Bird
did not conduct any further examination or testing of the phones seized. [Id.]
The court dismissed the intimidation charge for failure to indict on August 29, 2014.
[Id. at ¶ 76] The prosecutors then re-charged the offense as retaliation against a legal
participant. [Id.] Bird interviewed Reeves regarding the phone calls to Trimble, at which point
she confessed that she had been responsible for the calls. [Id. at ¶ 78] On February 2, 2015,
Bird allegedly “gave false and perjured testimony before the Grand Jury.” [Id. at ¶ 82]
Specifically, Bird testified that Hall had left a voice mail threatening Trimble. [Id.] In a
suppression hearing that same day, Bird gave statements that were inconsistent with those that
he had made during the grand jury proceeding. [Id. at ¶ 96] Bird also gave conflicting and
“evidently false” statements to the media and in recorded interviews in connection with the
retaliation charge. [Id. at ¶ 97] 
The grand jury then returned an indictment on the retaliation charge on March 2, 2015.
[Id. at ¶ 83] The charge was ultimately dismissed on February 11, 2016. [Id. at ¶ 86]
C.

The Hindering Prosecution and Contempt Charges

Hall was also charged with hindering prosecution based on his conduct when Bird
executed the search warrant in connection with the intimidation/retaliation charges. [Id. at ¶
88] The plaintiff claims that, immediately upon arriving to Hall’s residence to execute the
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arrest and search warrants on June 20, 2014, Bird arrested Hall without advising him his
Miranda rights. [Id. at ¶ 89] Bird then asked Hall where Reeves was presently located and
Hall replied that he and Reeves had separated several months earlier. [Id. at ¶ 91] Bird
informed Hall that he had a warrant for Reeves’ arrest for intimidation of a legal participant.
[Id.] However, while executing the search warrant for Hall’s grandmother’s residence, law
enforcement found Reeves hiding in a closet. [Id.] As a result of this conduct, on June 25,
2014, Hall was arrested on a warrant for the offense of hindering prosecution or apprehension
of a witness. [Id. at ¶ 92]
The court discharged Hall’s bond on September 25, 2015, and Hall was no longer
incarcerated as of this date. [Id. at ¶ 102] Although Hall was no longer subject to bond, on
October 25, 2016, the court “sua sponte” added bond conditions on the hindering charge that,
among other things, prohibited Hall from contacting the prosecutor who was handling the case,
Robert Hammons (“Hammons”). [Id.] Later that day, “someone posing as Hall” sent
Hammons an email. [Id. at ¶ 104] Hammons presented this email to the court and moved to
revoke Hall’s bond and hold Hall in contempt for violating bond conditions, which the court
granted. [Id. at ¶¶ 104, 105] Hall “believes and avers that the new bond conditions and the
subsequent email were a set[-]up by prosecutor Hammons, Bird, Reeves, or others working in
conspiracy . . . .” [Id. at ¶ 109] Hall entered a guilty plea to the hindering and contempt
charges on November 21, 2016. [Id. at ¶ 111]
D.

The Harassing Communications Charge

On January 26, 2015, Reeves contacted Bird to report that Hall had contacted her with
the intent to intimidate, harass, annoy, or alarm her. [Id. at ¶ 117] Bird then “instructed”
Reeves to speak with Hammons and obtain an arrest warrant. [Id. at ¶ 118] Hall was arrested
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on this charge, but was released on March 26, 2015, after posting bond. [Id. at ¶¶ 118, 120]
Hammons moved to dismiss the charge on March 21, 2016, because Reeves’s conduct was
inconsistent with her allegations against Hall. [Id. at ¶ 122] The court dismissed the charge
on that date. [Id.]
E.

The Insurance Fraud Charge

Hall was charged with insurance fraud after reporting to his insurance company that
Reeves had lost his fur coat. [Id. at ¶ 125] The insurance company initiated an investigation
in 2013 and the Commonwealth later presented the charge to the grand jury. [Id. at ¶¶ 126,
132] Hall was indicted on this charge on March 2, 2015. [Id. at ¶ 123] The Commonwealth
later dismissed the charge on November 12, 2015. [Id. at ¶ 140]
II.
Defendants Bird and the City of Williamsburg have filed a joint motion to dismiss or,
alternatively, for judgment on the pleadings. [Record No. 111] Bird and the City of
Williamsburg filed a joint answer to the Amended Complaint on April 26, 2017. [Record No.
106] Because the pleadings have now closed, the motion is one for judgment on the pleadings
under Rule 12(c) rather than a motion to dismiss under Rule 12(b)(6). See Fed. R. Civ. P.
12(c) (“After the pleadings are closed . . . a party may move for judgement on the pleadings.”).
The distinction makes little practical difference because motions for judgment on the pleadings
are reviewed using the same standard that applies to motions to dismiss. JPMorgan Chase
Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007).
A court evaluating a motion for judgment on the pleadings must “construe the
complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual
allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts
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in support of his claim that would entitle him to relief.” Engler v. Arnold, 862 F.3d 571, 574
(6th Cir. 2017) (internal quotation marks and citation omitted). A complaint will not survive
a motion for judgment on the pleadings unless it contains “sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility
standard is met “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
Although the complaint need not contain “detailed factual allegations” to survive a
motion for judgment on the pleadings, the “plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation
marks and citation omitted). The court is not required to accept as true legal conclusions cast
in the form of factual allegations if those conclusions cannot be plausibly drawn from the facts
as alleged. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.”).
III.
Hall brings numerous claims for relief, each asserted against all defendants. Hall’s
federal claims include: malicious prosecution, deprivation of liberty,2 behavior that shocks the

2

The alleged “deprivation of liberty” is asserted as a single claim, but alleges violations
of several separate constitutional provisions: unreasonable search and seizure in violation of
the Fourth Amendment, failure to provide a speedy trial in violation of the Sixth Amendment,
infliction of cruel and unusual punishment in violation of the Eighth Amendment, and
attempting to coerce confessions in violation of the Fifth Amendment. These alleged
violations of specific constitutional provisions will be addressed as distinct claims.

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conscience, and abuse of process. His state claims include: intentional infliction of emotional
distress, negligent infliction of emotional distress, negligence, defamation, false imprisonment,
malicious prosecution, abuse of process, and respondeat superior. The defendants argue that
they are entitled to judgment on the pleadings because of the applicable statutes of limitations,
immunity, and because of the plaintiff’s failure to state a claim upon which relief can be
granted.
A plaintiff proceeding on a claim under 42 U.S.C. § 1983 must show that he was
deprived of a right secured by the Constitution or by the laws of the United States and that the
deprivation was caused by person acting under color of law. Redding v. St. Eward, 241 F.3d
530, 532 (6th Cir. 2001).
A. Defendant Bird
1.

Official Capacity Claims

Hall’s Complaint names Bird in his official and individual capacities. [Record No. 31]
However, “[a] suit against a state official in his or her official capacity is not a suit against the
official but rather a suit against the official’s office.” Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989) (citations omitted). Hall’s official capacity claims will be dismissed.
See C.K. v. Bell County Bd. of Educ., 839 F. Supp. 2d 881, 884-85 (E.D. Ky. 2012).
2.

Statute of Limitations

Many of Hall’s claims against Bird are barred by the applicable statutes of limitations.
The argument that a claim is untimely is an affirmative defense on which the defendant bears
the burden of proof. Rembisz v. Lew, 590 F. App’x 501, 503 (6th Cir. 2014) (citation omitted).

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Dismissing a claim as untimely is appropriate if “the allegations in the complaint affirmatively
show that the claim is time-barred.” Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.
2012).
i. Federal Claims
Claims asserted under § 1983 are governed by the applicable state law statute of
limitations. Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015)
(citations omitted). As a result, the timeliness of Hall’s § 1983 claims will be determined by
reference to Kentucky’s statute of limitations for personal injury claims, which requires that
the action be “brought within one year after the cause of action accrues.” KRS 413,140(1).
Hall filed his claim on December 28, 2016. All claims that accrued before December 28, 2015,
are barred by the statute of limitations.
Federal law controls the determination of when the statute begins to run for a particular
claim. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). Under federal law, a § 1983 action
accrues “when the plaintiff knew or through the exercise of reasonable diligence should have
known of the injury that forms the basis of his action.” Sharpe v. Cureton, 319 F.3d 259, 266
(6th Cir. 2003) (citation omitted). The analysis of when the plaintiff should have known of
his injury is an objective one based on the occurrence of the event that “should have alerted
the typical lay person to protect his or her rights.” Id. (internal quotation marks and citation
omitted). It is thus necessary to identify the alleged injuries that should have made Hall “aware
that [his] rights had been violated and therefore started the clock on [his] statute of limitations.”
Printup v. Director, Ohio Dept. of Job and Family Services, 654 F. App’x 781, 785 (6th Cir.
2016).

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The statute of limitations was discussed at length in the Court’s prior opinion, and much
of that analysis applies to the present case. For the reasons previously stated, Hall’s malicious
prosecution claim is timely to the extent that it is based on the retaliation charge, solicitation
charge, hindering and contempt charges, and/or harassing charge. Hall’s speedy trial and civil
conspiracy claims are also timely. Hall’s false arrest claim under the Fourth Amendment is
untimely, as is any claim for a violation of the Eighth Amendment.
Hall asserts claims against Bird based on Bird’s conduct when arresting Hall and
executing a search warrant in connection with the intimidation charge. Specifically, Hall
claims that Bird violated his Fourth Amendment right to be free from unreasonable searches
and seizures and his Fifth Amendment rights against self-incrimination for failure to read
Hall’s Miranda rights. The arrest and execution of the search warrant occurred on June 20,
2014. [Record No. 31, ¶ 89] As of that date, Hall had been alerted to the existence of any
claim that he may have under the Fourth or Fifth Amendments. His claims therefore accrued
on this date, over a year before he filed them, and they are untimely.
Hall claims that Bird violated Hall’s constitutional rights by withholding exculpatory
evidence. This claim accrued when Hall had reason to know that the exculpatory evidence
had not been disclosed to him. See D’Ambrosio v. Marino, 747 F.3d 378, 384 (6th Cir. 2014).
Hall’s exculpatory evidence claim against Bird is based on Angela Reeves’s alleged confession
that she was entirely responsible for the phone calls to Defendant Trimble and that Hall did
not play a role in the calls.3 [Record No. 31, ¶ 181] According to the Complaint, Bird obtained

3

Hall also references a statement from Time Warner in which Time Warner explained
the type of information that is and is not established by an IP address. Bird cannot be
responsible for disclosing this evidence because the Complaint does not allege that Bird had
any involvement with it. Additionally, the type of information that is disclosed by an IP
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this confession from Reeves during an interview that took place on September 24, 2014. [Id.
at ¶ 78] While the date of the statement is clear, the date on which Hall either knew or should
have known of the statement is not clear from the Complaint. Because it is not clear from the
Complaint’s allegations that the claim is time-barred, the Court will assume that it is timely.
Hall’s claims for deprivation of liberty, behavior that shocks the conscience, and abuse
of process are also timely. Hall does not specify the conduct that provides the factual basis for
these claims. The Complaint alleges that on October 25, 2016, Defendant Hammons fabricated
an email from Hall that he then used to move the court to revoke Hall’s bond and hold Hall in
contempt. [Record No. 31, ¶¶ 104-10] According to Hall, Bird was involved in the creation
of this fabricated email. [Id. at ¶ 109] Because this conduct occurred within a year of the date
that Hall filed his claims, these claims are timely to the extent that they are based on the
allegedly fabricated email.
ii. State Claims
Hall’s state law claims are governed by the Kentucky statutes of limitations. See Curtis
v. State Farm Fire and Cas. Co., 617 F. App’x 517, 518 (6th Cir. 2015) (citations omitted).
Under Kentucky law, a claim for infliction of emotional distress is governed by a five-year
statute of limitations. Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984).4 The remaining state

address is a generally available and verifiable fact that does not qualify exculpatory evidence.
Hall cannot maintain a claim based on the Time Warner statement. Hall also generally
references “other evidence” that the defendants had a duty to disclose. However, the Court
has not identified any other allegations of withheld evidence that could be considered
exculpatory.
4

As discussed in the Court’s prior decision, Kentucky courts do not appear to have
established whether negligent infliction of emotional distress claims are subject to a five-year
or one-year statute of limitations. Therefore, the Court will assume that the claim is controlled
by the longer five-year statute of limitations period.
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law claims are subject to a one-year statute of limitations. KRS 413.140. Hall’s claims accrued
on the date that the fact of his injury “became objectively ascertainable.” Wiseman v. Alliant
Hospitals, Inc., 37 S.W.3d 709, 713 (Ky. 2000).
Consistent with the more detailed analysis of the Court’s previous opinion, Hall’s
malicious prosecution claim is timely to the extent that it is based on the retaliation charge,
solicitation charge, hindering and contempt charges, and/or harassing charge. Hall’s claims
for negligent infliction of emotional distress, intentional infliction of emotional distress, and
respondeat superior are also timely. Additionally, the same analysis that applied to Hall’s
federal abuse of process claim also applies to his state abuse of process claim such that this
claim is timely. Conversely, Hall’s claims for false imprisonment and negligence are untimely.
Hall’s claim against Bird for defamation is untimely. Hall’s defamation claim is based
on the allegation that Bird made knowingly false statements to the media regarding Hall’s
criminal charges. [Record No. 31, ¶ 230] The most recent allegations of false statements are
Hall’s allegations that Bird gave false testimony before the grand jury and subsequently gave
false statements to the media in connection with Hall’s indictment on the retaliation charge,
which occurred in February 2015. [Id. at ¶ 97] Hall’s claim accrued at the time that the
statements were made and, therefore, is time-barred.
3. Federal Claims
i. Malicious Prosecution
Hall makes a claim for malicious prosecution under federal law. A plaintiff seeking
relief on such a claim must allege that: (1) a criminal prosecution was initiated and the
defendants made, influenced, or participated in the decision to prosecute; (2) there was a lack
of probable cause to prosecute; (3) the plaintiff suffered a deprivation of liberty; and (4) the
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criminal proceeding was resolved in the plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294,
308-09 (6th Cir. 2010). As stated above, after application of the statute of limitations, Hall
can only maintain a malicious prosecution claim based on the solicitation charge, retaliation
charge, the hindering and contempt charges, and/or the harassment charge.
The term “participated” as used in the first element of the claim requires that the
plaintiff allege that the officer participated “in a way that aid[ed] the decision, as opposed to
passively or neutrally participating.” Webb v. United States, 789 F.3d 647, 660 (6th Cir. 2015)
(internal quotation marks and citation omitted). In Webb, the court determined that one law
enforcement officer had sufficiently participated in the decision to initiate a prosecution
because the grand jury indicted the plaintiff based on the officer’s testimony. Id. at 663.
Conversely, other officers played only a passive or neutral role in the decision to prosecute
because their conduct did not influence either the grand jury’s decision to indict or the
prosecutor’s decision to bring charges. Id.
Hall cannot maintain a malicious prosecution claim on the solicitation or harassment
charges because he fails to adequately allege that Bird participated in the decision to prosecute
these charges.

The Complaint contains no allegations suggesting that Bird had any

involvement with this charge. Hall has also failed to adequately allege that Bird participated
in the decision to prosecute Hall on the harassing communications charge. According to the
Complaint, Reeves came to Bird to report that Hall had been harassing her by phone call, text,
and email. Bird then directed Reeves to take her report to Defendant Hammons (the prosecutor
on the charge) who obtained an arrest warrant. [Id. at ¶ 118] The Complaint does not allege
that Bird submitted an affidavit, testified before the court or the grand jury, or that Hammons
consulted with Bird before obtaining an arrest warrant. Directing a purported victim to discuss
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the alleged crime with a prosecutor is passive or neutral involvement that does not rise to the
level of participation necessary to maintain a malicious prosecution claim.
But even if Bird had participated in the decision to prosecute on the harassment charge,
Hall could not maintain a malicious prosecution claim because he fails to allege that there was
a lack of probable cause to prosecute him for this charge. According to the Complaint, Reeves
reported that Hall had been contacting her with intent to intimidate, harass, annoy, or alarm
her. [Id. at ¶ 117] Hammons then obtained an arrest warrant, which necessarily required a
neutral judge’s conclusion that there was probable cause to arrest for this offense. [Id. at ¶
118] Hall does not allege that Reeves misrepresented Hall’s communications with her or that
the warrant was obtained based on fabricated statements. Absent some allegation to indicate
that the communications did not occur or did not qualify as harassment, Hall has failed to
properly allege that he was prosecuted without probable cause.
Hall also cannot maintain a malicious prosecution claim based on the hindering or
contempt charges. It is a prerequisite for a malicious prosecution claim that the proceeding
end in the plaintiff’s favor. A guilty plea does not qualify as a favorable termination and bars
a malicious prosecution claim. See Walker v. Schaeffer, 854 F.2d 138, 142 (6th Cir. 1988).
Because Hall pleaded guilty to hindering and contempt, he cannot maintain a malicious
prosecution claim on either charge.
Hall has adequately alleged a malicious prosecution claim for the retaliation charge.
According to the Complaint, Bird arrested Hall for intimidation of a legal participant, later reindicted as retaliation against a legal participant, based on phone calls that Reeves made to
prosecutor Trimble. [Record No. 31, ¶ 64] Bird obtained a warrant based on Bird’s “false[]”
allegations in the affidavit that Hall and Reeves acted together in placing threatening phone
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calls to Trimble. [Id. at ¶ 65] However, Hall alleges that he had no involvement with the
phone calls and, in any event, the calls were not threatening. [Id. at ¶ 67] Hall further alleges
that his innocence was confirmed when Bird interviewed Reeves and she confessed that she
was solely responsible for the phone calls. [Id. at ¶ 78] The grand jury later indicted Hall on
the retaliation charge based on Bird’s “false and perjured testimony” that Hall had left Trimble
a threatening voice mail. [Id. at ¶ 82]
The elements of a malicious prosecution claim are satisfied. Bird clearly participated
in the decision to bring charges based on his submitting an affidavit to obtain an arrest warrant
and testifying before the grand jury. Additionally, assuming the truth of Hall’s allegations,
Hall had no involvement in the phone calls and Bird lacked probable cause to arrest on the
basis of communications for which Hall was not responsible. Hall was then held in custody
on the charge. The charge was ultimately dismissed, thereby terminating the proceeding in
Hall’s favor.
Additionally, taking Hall’s allegations as true, Bird is not entitled to qualified immunity
for his conduct. Law enforcement officers are entitled to qualified immunity when their
conduct “does not violate established statutory or constitutional rights of which a reasonable
person would have known.”

White v. Pauly, 137 S.Ct. 548, 551 (2017).

The Fourth

Amendment clearly establishes the right to be free from malicious prosecution. King v.
Harwood, 852 F.3d 568, 583 (6th Cir. 2017). Further, an officer is not entitled to qualified
immunity where he “knowingly or recklessly” makes false statements in an affidavit or before
a grand jury and these statements lead to an individual’s prosecution without probable cause.
See id. According to the Complaint, that is exactly what Bird did in this case—Bird falsely
testified before the grand jury that Hall had made the phone calls despite having knowledge
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that Hall had not participated in the calls. Based on these allegations, Bird is not entitled to
qualified immunity at this stage of the proceedings.
The defendant argues that Hall cannot maintain this malicious prosecution claim
because a grand jury indicted Hall for the retaliation offense. It is the general rule that an
indictment, “fair on its face,” establishes probable cause. See Sanders v. Jones, 845 F.3d 721,
728 (6th Cir. 2017) (citation omitted). Under this rule, a grand jury indictment would bar a
plaintiff’s malicious prosecution claim. However, there are exceptions under which a plaintiff
who is indicted for an offense may nonetheless properly allege that law enforcement lacked
probable cause to prosecute him.
First, a plaintiff may be able to overcome the indictment’s presumption of probable
cause by alleging that a defendant obtained the indictment by knowingly or recklessly
presenting false information to the grand jury. Id. at 729. However, law enforcement officers
are entitled to absolute immunity for their testimony before a grand jury. Rehberg v. Paulk,
566 U.S. 356, 369 (2012). Based on the Rehberg rule, a plaintiff cannot rely on a law
enforcement officer’s allegedly false grand jury testimony to overcome the indictment’s
presumption of probable cause. See Sanders, 845 F.3d at 730. As a result, Bird’s allegedly
false grand jury testimony cannot be used to overcome the presumption that the grand jury’s
indictment established probable cause to prosecute Hall on the retaliation charge. This
exception does not apply in the present case.
There is an additional exception under which the indictment will not protect a law
enforcement officer who falsifies an affidavit or fabricates evidence. King, 852 F.3d at 587.
This exception applies:

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where (1) a law-enforcement officer, in the course of setting a prosecution in
motion, either knowingly or recklessly makes false statements (such as in
affidavits or investigative reports) or falsifies or fabricates evidence; (2) the
false statements and evidence, together with any concomitant misleading
omissions, are material to the ultimate prosecution of the plaintiff; and (3) the
false statements, evidence, and omissions do not consist solely of grand-jury
testimony or preparation for that testimony[.]
Id. at 587-88. Where these elements are satisfied, “the presumption that the grand-jury
indictment is evidence of probable cause is rebuttable and not conclusive.” Id. at 588.
This exception applies to allow Hall to avoid dismissal on his malicious prosecution
claim. The Complaint alleges that Bird set the retaliation prosecution in motion by knowingly
making false statements in the arrest warrant affidavit—that Hall and Reeves placed
threatening phone calls to Trimble together. [Record No. 31, ¶ 65] These statements were
material to the ultimate prosecution on the retaliation charge because, according to the
Complaint, the charge was based solely on the threatening phone calls. If Hall was not
involved in the phone calls, there were no grounds on which to arrest him. Moreover, the false
statements were made in an affidavit rather than during the grand jury proceeding or in
preparation for that proceeding so immunity does not apply.
The defendant’s argument that the indictment conclusively establishes probable cause
(thereby barring Hall’s malicious prosecution claim) fails.

Instead, the indictment’s

presumption of probable cause is rebuttable. Taking the Complaint’s allegations as true, Bird
lacked probable cause to initiate the retaliation prosecution against Hall for the reasons stated
above. Based on the foregoing, Hall has adequately alleged a malicious prosecution claim on
this charge and it is not subject to dismissal at this time.
ii. Brady

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Hall alleges that Bird violated Hall’s due process rights by failing to disclose
exculpatory evidence—Reeves’s alleged confession to being solely responsible for the phone
calls to Trimble. Law enforcement officers have Brady obligations to disclose material
exculpatory evidence. D’Ambrosio, 747 F.3d at 389. However, law enforcement officers are
not obligated to disclose exculpatory evidence “to criminal defendants directly.” Id. (quoting
Maldowan v. City of Warren, 578 F.3d 351, 379 (6th Cir. 2009)). Instead, Brady obligates law
enforcement officers to disclose exculpatory evidence to the prosecutor who then “bears the
responsibility of actually disclosing exculpatory information to the defense.” Id. A defendant
cannot maintain a Brady claim based on an allegation that an officer failed to disclose
exculpatory information to him directly. Rather, the defendant must allege that the law
enforcement officer was obligated to disclose exculpatory evidence to the prosecutor and failed
to do so. Id. at 389-90. This requires a showing that the exculpatory value of the evidence
was apparent to the officer, but the officer nonetheless concealed it from the prosecution. Id.
at 390.
In D’Ambrosio, the court concluded that the plaintiff had failed to properly allege that
the law enforcement officer violated his Brady obligations by withholding exculpatory
evidence. The court observed that the plaintiff had alleged only that the law enforcement
officer “was privy to” some evidence that was potentially exculpatory. Id. at 390. The
complaint did not allege that the law enforcement officer “withheld any of this information
from the prosecutor, that the prosecutor was ignorant of any of this evidence, or anything other
than that [the law enforcement officer’ failed to disclose this evidence to [the defendant]
himself.”

Id.

Disclosing exculpatory evidence to the defendant is the prosecutor’s

responsibility. Id. Because the plaintiff did not allege that the law enforcement improperly
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failed to disclose exculpatory evidence to the prosecutor, the plaintiff did not plausibly allege
his Brady claim against the law enforcement officer.
Hall has failed to adequately allege a Brady claim against Bird based on the principles
discussed in D’Ambrosio. The exculpatory evidence at issue for this claim is Reeves’s alleged
confession during an interview with Bird. [Record No. ¶ 78] Like the plaintiff in D’Ambrosio,
Hall does not allege that Bird failed to disclose this statement to the prosecutor. The Complaint
alleges only, in general terms, that the “[d]efendants . . .failed or refused to disclose
exculpatory evidence, including . . . Angela Reeve’s [sic] confessions[.]” [Id. at ¶ 181] Bird
cannot be responsible for failing to disclose the confession to Hall because disclosing the
confession to Hall was not Bird’s responsibility. The Complaint provides no basis from which
to infer that Bird was obligated to disclose the confession to the prosecutor but failed to do so.
As a result, Hall has not plausibly alleged that Bird withheld exculpatory evidence in violation
of his Brady obligations and this claim must be dismissed.
iii. Civil Conspiracy
Hall fails to properly allege a claim for civil conspiracy under § 1983. “A civil
conspiracy under § 1983 is an agreement between two or more persons to injure another by
unlawful action.” Webb v. United States, 789 F.3d 647, 670 (6th Cir. 2015). A civil conspiracy
claim must be alleged “with some degree of specificity[.]” Bickerstaff v. Lucarelli, 830 F.3d
388, 400 (6th Cir. 2016). “[V]ague and conclusory allegations unsupported by material facts
will not be sufficient to state such a claim under § 1983.” Id.
Hall’s claim is based on the conclusory and vague allegation that the defendants
“agreed or conspired among themselves and with other individuals” to violate Hall’s
constitutional rights. [Record No. 31, ¶ 194] Hall does reference an agreement between Bird
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and Hammons to fabricate an email. [Id. at ¶ 109] However, Hall fails to allege facts showing
the existence of an agreement or any coordination between the defendants to fabricate the
email or to complete the other alleged constitutional violations. The Complaint contains no
factual allegations that would support an inference that the defendants acted in concert while
engaging in illegal conduct. See Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003).
Hall has failed to adequately plead the existence of a civil conspiracy.
iv. Speedy Trial
Hall claims that Bird violated his constitutional right to a speedy trial. A plaintiff
cannot maintain a speedy trial violation claim against a law enforcement officer defendant
absent some allegation that the officer was liable for the delay in providing a trial. Harris v.
Goins, No. 6: 15-151-DCR, 2017 WL 3097613, at *14 (E.D. Ky. July 20, 2017). The plaintiff
must allege that the law enforcement officer was responsible for the delays or colluded with
the judge or prosecutors to deprive the defendant of his right to a speedy trial. Id. at *15. The
Complaint contains no allegations suggesting that Bird is at all responsible for the delay in
providing Hall with a trial. As a result, Hall fails to state a claim for a violation of his right to
a speedy trial under the Sixth Amendment.
iv. Remaining Federal Claims
Hall’s remaining timely federal claims (i.e., abuse of process, behavior that shocks the
conscience, and deprivation of liberty) are based on Hall’s allegation that the email that was
used to revoke Hall’s bond conditions and charge him with contempt was “a set up by
prosecutor Hammons, Bird, Reeves, or others working in conspiracy . . . .5 [Record No. 31,

5

As explained above, the Court assumed that these claims are based on the email because
that is the only conduct that occurred within a year of the date that Hall’s claims were filed.
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¶¶ 109] As discussed more thoroughly in the Court’s prior opinion, Hall fails to plausibly
allege that the defendants engaged in this conduct because he does not allege any factual matter
in support of this conclusory allegation. The Complaint contains no facts to suggest that the
email was fabricated or that Bird and Hammons were the individuals responsible for
fabricating the email. Absent factual support, Hall’s claim is implausible and the Court is not
required to accept as true this “unwarranted factual inference[].” Kottmyer v. Maas, 436 F.3d
684, 688 (6th Cir. 2006). Hall fails to state any claim based on the inadequately alleged
fabricated email.
4. State Claims
i. Malicious Prosecution
Hall asserts a malicious prosecution claim against Bird under state law. A plaintiff
raising a malicious prosecution claim under Kentucky law must properly allege: (1) “the
defendant initiated, continued, or procured a criminal or civil judicial proceeding”; (2) without
probable cause; (3) “the defendant acted with malice, which . . . means seeking to achieve a
particular purpose other than bringing an offender to justice”; (4) the proceeding terminated in
the plaintiff’s favor; 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).
Because of the similarity of the elements of the two claims, the analysis of Hall’s federal
malicious prosecution claim largely applies to his state claim. The distinction between Hall’s
federal and state malicious prosecution claims is whether Hall has properly alleged malice.
The malice element “can be inferred from lack of probable cause.” Phat’s Bar & Grill v.
Louisville Jefferson Cty. Metro Gov’t, 918 F. Supp. 2d 654, 665 (W.D. Ky. 2013) (quoting
Massey v. McKinley, 690 S.W.2d 131, 134 (Ky. 1985)). As stated above, Hall has sufficiently
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alleged that Bird lacked probable cause to arrest him on the retaliation charge. He thus has
plausibly alleged a claim that Bird maliciously prosecuted him for retaliation against a legal
participant.6
ii. Intentional Infliction of Emotional Distress
A plaintiff claiming intentional infliction of emotional distress under Kentucky law
must sufficiently allege: (1) the wrongdoer’s conduct was intentional or reckless; (2) the
conduct was outrageous and intolerable such that it offends generally accepted standards of
decency and morality; (3) there was a causal connection between the wrongdoer’s conduct and
the emotional distress; and (4) the emotional distress was severe. Gilbert v. Barkes, 987
S.W.2d 772, 777 (Ky. 1999). The first element requires the plaintiff to allege that the “actor
had the specific purpose of causing emotional distress (intentional) or intended a specific
conduct and knew or should have known that it would cause emotional distress rather than a
personal (physical) injury (recklessness).” Childers v. Geile, 367 S.W.3d 576, 580 (Ky. 2012)
(citation and emphasis omitted).
Hall alleges that all of the defendants are liable for intentional infliction of emotional
distress based on their conduct in “intentionally and/or recklessly” maliciously prosecuting
him, withholding and fabricating evidence, and failing to conduct an adequate investigation,
among other things. [Record No. 31, ¶ 208] Hall’s conclusory allegation that Bird acted
intentionally is insufficient to satisfy the applicable pleading standard. Hall alleges no facts
that would suggest that Bird acted with the intent to cause him emotional distress, or that Bird
engaged in conduct that he should have known would cause emotional distress. Additionally,

6

Hall’s claim fails with respect to all other charges for the reasons explained above.
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the Complaint does not contain any factual allegations of conduct that would qualify as
outrageous or intolerable. Hall has failed to state a claim for intentional infliction of emotional
distress.
iii. Negligent Infliction of Emotional Distress
A negligent infliction of emotional distress claim requires that a plaintiff plead: “(1)
the defendant owed a duty of care to the plaintiff, (2) breach of that duty, (3) injury to the
plaintiff, and (4) legal causation between the defendant’s breach and the plaintiff’s injury.”
Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012). A “plaintiff cannot proceed with a claim
for negligence where the claim is really a malicious prosecution claim.” Tunne v. Paducah
Police Dep’t, No. 5: 08-CV-188-R, 2010 WL 323547, *11 n. 4 (W.D. Ky. January 21, 2010)
(citing Hill v. Willmott, 561 S.W.2d 331, 334 (Ky. Ct. App. 1978)). The crux of Hall’s claim
for negligent infliction of emotional distress is that Bird initiated and continued a prosecution
against him without probable cause.

Hall’s claim is, in effect, a claim for malicious

prosecution. However, Kentucky law does not permit plaintiffs to bring “negligence claims
against the defendants under the same facts that constitute his other claims.” Bertram v.
Federal Express Corp., No. CIV.A. 05-28-C, 2008 WL 170063, at *7 (W.D. Ky. January 17,
2008) (citing Hill, 561 S.W.2d at 334). Hall cannot maintain his claim for negligent infliction
of emotional distress.
iv. Abuse of Process
As stated above, Hall’s abuse of process claim is necessarily based on Bird’s alleged
conduct in fabricating an email. The claim fails because Hall has not plausibly alleged that
the email was fabricated or that Bird participated in its fabrication. Moreover, even if Hall had
adequately alleged that this conduct occurred, he would still fail to state an abuse of process
-22 

claim. The elements of an abuse of process claim are that the defendant: (1) must act with an
ulterior purpose, and (2) must engage in a “willful act in the use of the process that is not
proper in the regular course of the proceeding.” Sprint Communications Co., L.P. v. Leggett,
307 S.W.3d 109, 114 (Ky. 2010) (citation omitted). To satisfy the second element, the plaintiff
must allege “some act or use of the process to secure a collateral advantage outside the criminal
proceeding.” Id.
Hall has not alleged any facts that would satisfy the second element of the abuse of
process claim. Taking the Complaint’s allegations liberally, there is some indication that Bird
and the other defendants harbored some personal bias against Hall, which could qualify as an
ulterior motive. However, the allegations concerning Bird are limited to Bird’s conduct in the
course of the criminal prosecution. The Complaint does not indicate that Bird was acting for
the purpose of some personal gain beyond the scope of the criminal proceeding. Hall has failed
to state a claim for abuse of process.
v. Respondeat Superior
Hall has attempted to assert a claim for “respondeat superior” against all defendants.
However, respondeat superior is “the theory that where one acts through the agency of another,
in legal contemplation, he is himself acting and thus is responsible for acts of his agent.”
Brooks v. Grams, Inc., 289 S.W.3d 208, 211 (Ky. Ct. App. 2008). Respondent superior is not
an independent cause of action under Kentucky law and cannot be asserted as a claim for relief.
Taylor v. JPMorgan Chase Bank, N.A., No. 13-24-GFVT, 2014 WL 66513, at *8, *9 (E.D.
Ky. January 8, 2014). Hall’s respondeat superior claim fails.
B. Defendant City of Williamsburg
A.

Federal Claims
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Although Hall asserts all of his claims against all defendants, including the City of
Williamsburg, he often does not identify any specific conduct on the part of the City of
Williamsburg that provides the basis for the claim. Most of Hall’s allegations pertaining to
the City of Williamsburg are asserted within a separate Monell claim in which he alleges that
the City of Williamsburg “maintained a policy, custom, or pattern and practice of promoting,
facilitating, or condoning improper, illegal, and unconstitutional investigative techniques and
prosecutorial techniques . . . .” [Record No. 31, ¶ 198] Hall then alleges that the City of
Williamsburg failed to train its employees regarding “fundamental investigative tasks
implicating the constitutional rights of witnesses and suspects.” [Id. at ¶ 199]
A municipality cannot be held vicariously liable for its employees’ actions under §
1983. See Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Instead, a
plaintiff seeking to establish municipal liability must plausibly allege some wrongdoing in
which the municipality itself directly engaged. Id. Specifically, the plaintiff must allege (1)
that his constitutional rights were violated; (2) that the violations were committed under color
of state law; and (3) that the municipality’s policy or custom caused the violations. Lambert
v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The plaintiff must adequately allege at least
one of the following municipality policies or customs: “(1) the existence of an illegal policy
or legislative enactment; (2) that an official with final decision making authority ratified illegal
actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence
of a custom of tolerance of or acquiescence to federal rights violations.” D’Ambrosio, 747
F.3d at 386 (internal quotation marks and citation omitted).
As an initial matter, Hall cannot plausibly maintain a claim against the City of
Williamsburg based on the alleged unconstitutional conduct of the majority of the defendants
-24 

named in this case. According to the Complaint, Defendant Trimble is an attorney for Whitley
County, Kentucky; Defendant Hammons is also an attorney for Whitely County, Kentucky;
Defendant Steele is an attorney for Laurel County, Kentucky, and Defendant Baxter is a law
enforcement officer for the Kentucky State Police. [Record No. 31, ¶¶ 3-7] Hall does not
explain how the City of Williamsburg’s customs or policies could have possibly influenced
the conduct of individuals who were employed by other entities. Hall’s municipal liability
claims fail to the extent that they are based on the alleged unconstitutional conduct of these
defendants. Hall can only maintain municipal liability claims against the City of Williamsburg
based on the alleged unconstitutional conduct of its actual employees, which includes
Defendant Bird. [Id. at ¶ 4]
Pleading standards are interpreted strictly for plaintiffs seeking to impose municipal
liability under § 1983. Hutchison v. Metro. Gov’t of Nashville and Davidson, Cnty, 685 F.
Supp. 2d 747, 751 (M.D. Tenn. 2010). A plaintiff’s claim will not survive a motion to dismiss
if it is based on no more than “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements . . . .” Iqbal, 556 U.S. at 678. The plaintiff is
required to allege “facts that allow the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Hutchison, 685 F. Supp. 2d at 751 (citation omitted). In
the specific context of municipal liability, the plaintiff “must describe what the official custom
or policy was and describe how it was violated.” Kustes v. Lexington-Fayette Urban Cnty.
Gov’t, No. 5: 12-323-KKC, 2013 WL 4776343, at *5 (E.D. Ky. September 3, 2013).
For example, in Hutchison, the plaintiff alleged injury that occurred as a result of the
municipality’s “custom, policy, or practice of stopping vehicles and ordering passengers to
exit the vehicles without sufficient cause and in disregard of passengers’ disabilities . . . .”
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Hutchison, 685 F. Supp. 2d at 751. The court reasoned that this allegation did not satisfy
pleading standards because it amounted no more than a legal conclusion without supporting
factual assertions. Id. The plaintiff detailed the events of a traffic stop but did not “include
any facts related to a municipal policy on probable cause and traffic stops, or a municipal
custom, policy or practice regarding drivers or passengers who are disabled.” Id. The plaintiff
also asserted that the municipality “failed to adequately train its officers in stopping vehicles
and/or ordering passengers out of those vehicles in disregard of their disabilities and injuries”
but gave no factual support. Id. The court concluded that the pleadings failed to state a
plausible claim to relief.
Similarly, the plaintiff failed to adequately allege a municipal custom or policy that
caused a constitutional violation in Vidal v. Lexington-Fayette Urban Cnty Gov’t, No. 5: 13117-DCR, 2014 WL 4418113 (E.D. Ky. September 8, 2014). The plaintiff alleged that the
municipality “negligently trained and/or supervised [the officer] with respect to arrest, proper
police procedures, use of excessive force, and use of force and seizure policies.” Id. at *3-*4.
This allegation was insufficient because it was a legal conclusion that lacked further factual
support. Id. at *4. The court dismissed the claim because it did no more than “recite[] the
legal requirements for a claim against a municipality without any factual allegations that would
‘raise a right to relief above the speculative level.’” Id. (quoting Twombly, 550 U.S. at 555).
Here, the majority of Hall’s allegations relating to the City of Williamsburg’s liability
are vague recitations of the elements for a claim that are unsupported by any factual allegations.
For example, Hall alleges that the “City of Williamsburg by and through their final
policymakers, with deliberate indifference, maintained a policy, custom, or pattern and
practice of promoting, facilitating, or condoning improper, illegal, and unconstitutional
-26 

investigative techniques . . . .” [Record No. 31, ¶ 198] The Complaint contains several similar
allegations that fail to identify a particular custom or even the constitutional right that the
custom violates. [Id. at ¶¶ 199-204] These allegations are deficient under pleading standards.
Hall cannot reasonably expect entitlement to relief on the basis of a claim that is entirely
unsupported by any particularized factual support. Hall’s legal recitations of the elements of
a municipal liability claim fail to state a plausible claim to relief.
Hall’s most specific allegation of municipal liability is that the City of Williamsburg
failed “to train anyone in their Brady duties” by failing “to ensure that anyone involved
understood their Brady duties and carried them out in practice.” [Record No. 31, ¶ 155, 157]
Even assuming that this allegation adequately identifies a particular policy or custom, it
nonetheless fails to state a claim because Hall fails to adequately allege that this policy caused
a constitutional violation.

The only specific factual allegations relating to a City of

Williamsburg employee’s violation of a Brady violation is Bird’s conduct regarding Reeves’s
confession. [Id. at ¶ 78] However, as explained above, Hall has failed to state that Bird
violated his constitutional obligations under Brady. Because Hall has not adequately alleged
a constitutional violation under Brady, he cannot maintain a municipal liability claim on this
basis. Hall’s claims against the City of Williamsburg for municipal liability under § 1983 fail.
B.

State Claims

Under Kentucky law, municipalities are not afforded the same degree of immunity from
tort liability as county and state governments. Schwindel v. Meade County, 113 S.W.3d 159,
165 (Ky. 2003).

Instead, a “municipality is immune only for torts committed in the

performance of legislative or quasi-legislative functions, and can otherwise be held vicariously
liable for the torts of its employees.” Id. (citation omitted); see also Wilkerson v. City of
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Frankfort, Ky., No. 3: 08-12-DCR, 2009 WL 1033828, at *10 (E.D. Ky. April 16, 2009). The
defendants whose claims have already been dismissed were not employed by the City of
Williamsburg, so vicarious liability does not apply for these defendants’ actions. The issue is
whether the City of Williamsburg may be held vicariously liable for Bird’s alleged wrongful
conduct.
The City of Williamsburg may only be liable on a vicarious liable theory if its
employees are first found liable. See Haugh v. City of Louisville, 242 S.W.3d 683, 687 (Ky.
Ct. App. 2007) (“[V]icarious liability is not possible without primary liability.”). The City of
Williamsburg is not liable for those claims against Bird that have been dismissed.
The only remaining claim is for malicious prosecution on the retaliation charge. Under
vicarious liability principles, a municipality is liable for the actions of its employee when the
employee acted within the scope of his employment. Louisville/Jefferson Cnty. Metro Gov’t
v. Braden, 519 S.W.3d 386, 393 (Ky. Ct. App. 2017). An employee acts within the scope of
his employment when he engages in the conduct at issue while acting on the employer’s behalf.
Id. The City of Williamsburg employs Bird as a law enforcement officer. Bird was acting as
a law enforcement officer when he allegedly arrested Hall and participated in his prosecution
on a charge that was unsupported by probable cause. Hall may maintain a claim against the
City of Williamsburg on the claim for malicious prosecution of the retaliation charge on a
theory of vicarious liability.
IV.
Based on the foregoing analysis, it is hereby
ORDERED as follows:

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1.

Defendant Bird’s motion for judgment on the pleadings [Record No. 111] is

GRANTED with respect to all claims against him in his official capacity.
2.

Defendant Bird’s motion for judgment on the pleadings [Record No. 111] is

GRANTED, in part, and DENIED, in part, with respect to the claims against him in his
individual capacity, consistent with this Memorandum Opinion and Order.
a.

Judgment on the pleadings is GRANTED with respect to Count II (Due

Process), Count III (Behavior that Shocks the Conscience), Count IV (Civil Conspiracy),
Count VI (Intentional Infliction of Emotional Distress), Count VII (Negligent Infliction of
Emotional Distress), Count VIII (Negligence), Count X (Defamation), Count XI (False
Imprisonment), Count XIII (Abuse of Process), and Count XIV (Respondeat Superior).
b.

Judgment on the pleadings is DENIED with respect to Count I (Federal

Malicious Prosecution) and Count XII (State Malicious Prosecution).
2.

Defendant City of Williamsburg’s motion for judgment on the pleadings

[Record No. 111] is GRANTED, in part, and DENIED, in part, consistent with this
Memorandum Opinion and Order.
a.

Judgment on the pleadings is GRANTED with respect to Count I

(Federal Malicious Prosecution), Count II (Due Process), Count III (Behavior that Shocks the
Conscience), Count IV (Civil Conspiracy), Count VI (Intentional Infliction of Emotional
Distress), Count VII (Negligent Infliction of Emotional Distress), Count VIII (Negligence),
Count X (Defamation), Count XI (False Imprisonment), Count XIII (Abuse of Process), and
Count XIV (Respondeat Superior).
b.

Judgment on the pleadings is DENIED with respect to Count XII (State

Malicious Prosecution).
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This 24th day of August, 2017.

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