Hoskins et al v. Knox County et al
Filing
119
MEMORANDUM OPINION & ORDER: (1) Plaintiffs Amanda Hoskins and Jonathan Taylor's Motion to Strike (Doc. # 57 ) Defendants City of Barbourville and Mike Broughton's Response to Co-Defendants' Motion to Dismiss is granted; (2) Defenda nts City of Barbourville and Mike Broughton's Response to Co-Defendants' Motion to Dismiss (Doc. # 44 ) is stricken from the record; (3) Plaintiffs Amanda Hoskins and Jonathan Taylors Motion to Strike (Doc. # 56 ) Defendants Knox County, J ohn Pickard, and Derek Eubank's Response to Co-Defendants' Motion to Dismiss is granted; (4) Defendants Knox County, John Pickard, and Derek Eubank's Response to Co-Defendants' Motion to Dismiss (Doc. # 54 ) is stricken from the record; and (5) Defendants Jason York, Dallas Eubanks, and Jason Bunchs Motion to Dismiss (Doc. # 36 ) and Defendants Bryan Johnson, Mark Mefford, Kelly Farris, and Jackie Pickrell Joseph's Motion to Dismiss (Doc. # 39 ) are GRANTED as to Co unt Ten (intentional infliction of emotional distress), and DENIED as to Count One (§ 1983 malicious prosecution) Count Two (§ 1983 fabrication of evidence), Count Three (§ 1983 supervisor liability), Count Four (§ 1983 failure to intervene), Count Five (§ 1983 conspiracy), Count Eight (state-law malicious prosecution), and Count Nine (state-law negligent supervision). Signed by Judge David L. Bunning on 3/15/2018.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-84-DLB-HAI
AMANDA HOSKINS, et al.
V.
PLAINTIFFS
MEMORANDUM OPINION AND ORDER
KNOX COUNTY, KENTUCKY, et al.
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DEFENDANTS
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On March 15, 2012, Plaintiffs Amanda Hoskins and Jonathan Taylor were arrested
for robbery and murder.
Hoskins and Taylor spent three years and five years,
respectively, incarcerated and awaiting trial. That trial never came. Instead, in the
summer of 2016, the Commonwealth of Kentucky dropped the criminal charges and
acknowledged that there was a lack of probable cause to support either prosecution.
From the ashes of that criminal case, this civil action arose.
Pursuant to 42 U.S.C. § 1983, the Plaintiffs filed the instant action seeking
recompense for alleged violations of their constitutional rights, as well as various statelaw torts, against ten law-enforcement officers and the municipal governments those
officers represent.
Specifically, the Plaintiffs have filed suit against the following
Defendants: Kentucky State Police (“KSP”) Troopers Jason York, Jason Bunch, and
Dallas Eubanks (the “Primary KSP Defendants”); KSP Troopers Bryan Johnson, Mark
Mefford, Kelly Farris, and Jackie Pickrell Joseph (the “Secondary KSP Defendants”);
Knox County, former Knox County Sheriff John Pickard, and Deputy Derek Eubanks (the
1
“Knox County Defendants”); and the City of Barbourville and Barbourville Police Officer
Mike Broughton (the “Barbourville Defendants”). (Doc. # 1). The Court has federalquestion jurisdiction over this matter under 28 U.S.C. § 1331 and supplemental
jurisdiction under 28 U.S.C. § 1367.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On December 20, 2010, Katherine Mills’s body was found at her home in Flat Lick,
Kentucky.1 (Doc. # 1 at ¶ 20). The Kentucky State Police, the Barbourville Police
Department, and the Knox County Sheriff’s Department commenced a joint investigation
into her murder. Id. at ¶ 21. Because $12,000 had been stolen from Ms. Mills’s home,
the officers believed that the murder was financially motivated. Id. at ¶ 22. Early on, the
investigation focused on three suspects: Allen Helton—a confidential informant for the
investigating agencies—Jesse Lawson—Ms. Mills’s grandson by marriage—and Mike
Simpson. Id. at ¶¶ 23-25. The Plaintiffs allege that there was substantial evidence
implicating Helton, Lawson, and Simpson. Id. at ¶¶ 25-44. Specifically, the Plaintiffs
claim that the Defendant Officers knew that Helton and Simpson were in desperate need
for money on the morning of Ms. Mills’s murder, that they fled Kentucky immediately after
the murder, that Simpson used cash to rent the car they drove from Kentucky to Florida,
that they were in possession of a large amount of cash upon their return, that Simpson
had prepared a note with a list of purported alibi witnesses before ever being asked about
the murder, and that Helton and Lawson had failed polygraph examinations questioning
them about their involvement in the robbery and murder of Ms. Mills. Id.
1
Given the present procedural context, the factual summary that follows is taken from the Plaintiffs’
Complaint (Doc. # 1) and construed in their favor. See Crugher v. Prelesnik, 761 F.3d 610, 614 (6th Cir.
2014) (internal citations omitted).
2
Despite the “mounting evidence against” Helton, Lawson, and Simpson, the
Plaintiffs allege that the Defendant Officers conspired to frame them, and accomplished
this task by “coercing witnesses, fabricating statements, and committing other acts of
egregious misconduct.” Id. at ¶¶ 45-48. In support of that allegation, the Plaintiffs claim
that the Defendant Officers coerced Bob Smith, Christy Branson, Joe King, Allen Helton,
and Amber Simpson into fabricating statements that falsely implicated the Plaintiffs; that
the Defendant Officers falsely reported that Michael Crump had positively identified the
Plaintiffs as the people he saw outside Ms. Mills’s home on the day of the murder; and
that the Defendant Officers altered and falsified Plaintiff Amanda Hoskins’s medical
records to nullify her alibi.2 Id. at ¶¶ 50-97, 104.
Based on that fabricated evidence, Trooper York signed criminal complaints and
initiated charges against the Plaintiffs.
Id. at ¶¶ 98, 101.
On March 15, 2012—
approximately one year and two months after the investigation began—the Plaintiffs were
arrested for the robbery and murder of Ms. Mills. Id. at ¶ 99-101. After their arrest, the
Plaintiffs allege that additional evidence was fabricated against them. Specifically, the
Plaintiffs claim that the Defendant Officers coerced Daniel Wilson and Robert Beach into
providing false statements that Plaintiff Jonathan Taylor had confessed to the murder.3
Id. at ¶¶ 114-117, 118-125.
2
While most of the Complaint’s factual allegations are directed at all “Defendant Officers,” several
of the allegations name particular officers. For example, the allegations regarding Bob Smith and Michael
Crump include collective allegations against the “Defendant Officers,” as well as specific allegations against
Trooper Jason York, former Sheriff John Pickard, and Trooper Jason Bunch. (Doc. # 1 at ¶¶ 54-55, 6162).
3
Troopers Jason York and Mark Mefford are the officers specifically alleged to have coerced Daniel
Wilson into providing a false statement. The allegations regarding Robert Beach’s coerced statement are
directed at all “Defendant Officers,” but also name Troopers Jason York and Bryan Johnson in particular.
3
While they were awaiting trial, the Plaintiffs were incarcerated. Id. at ¶¶ 132, 135.
But a trial never commenced. On June 29, 2016, the Commonwealth of Kentucky filed a
motion seeking dismissal of the criminal charges against Plaintiff Jonathan Taylor
because probable cause did not exist. That motion was granted on June 30, 2016, after
Taylor had spent approximately five years in jail. Id. at ¶¶ 128-130, 132. On July 29,
2016, the Commonwealth filed a similar motion dismissing the criminal charges against
Plaintiff Amanda Hoskins. That motion was granted on August 22, 2016, after Hoskins
had spent approximately three years in jail. Id. at ¶¶ 131, 135.
On April 4, 2017, the Plaintiffs filed the instant action alleging multiple constitutional
violations, as well as state-law tort claims against the Defendants. (Doc. # 1). The
Barbourville Defendants and the Knox County Defendants filed Answers to Plaintiffs’
Complaint on May 2, 2017 and May 3, 2017, respectively. (Docs. # 30 and 31). Instead
of answering Plaintiffs’ Complaint, the Primary KSP Defendants and the Secondary KSP
Defendants (collectively “the KSP Defendants”) filed Motions to Dismiss. (Docs. # 36 and
39). Shortly thereafter, the Barbourville Defendants and the Knox County Defendants
filed Responses in support of the KSP Defendants’ Motions to Dismiss, joining in their codefendants’ arguments and asking the Court to dismiss Plaintiffs’ claims against them for
the same, and additional, reasons. (Docs. # 44 and 54). After filing their own Response
opposing the KSP Defendants’ Motions to Dismiss (Doc. # 55), Plaintiffs filed Motions to
Strike the Barbourville Defendants’ and the Knox County Defendants’ Responses as
untimely Motions to Dismiss. (Docs. # 56 and 57). The KSP Defendants then filed a Joint
Reply in support of their Motions to Dismiss (Doc. # 60), and the Barbourville Defendants
and Knox County Defendants filed Responses in opposition to Plaintiffs’ Motions to Strike.
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(Docs. # 61 and 62). Thus, the Motions to Dismiss and the Motions to Strike are fully
briefed (Docs. # 36, 39, 55, 60, 56, 57, 61, and 62) and ripe for review.4
II.
ANALYSIS
This matter is currently before the Court upon both substantive and procedural
motions—four Motions to Dismiss, two of which are disguised as “Responses,” and two
Motions to Strike. First, the Court will address the parties’ procedural motions, and then
the Court will turn to the parties’ substantive motions.
A.
Motions to Strike
Plaintiffs ask the Court to strike the Knox County Defendants’ and the Barbourville
Defendants’ Responses as untimely Motions to Dismiss. (Docs. # 56 and 57). The Knox
County Defendants and the Barbourville Defendants contest the characterization of their
“Responses” as Motions to Dismiss. (Docs. # 61 at 1; 62 at 2). Accepting that argument,
however, would elevate form over substance. (Docs. # 44 at 2; 54 at 2) (indicating that
the Defendants “file this Response … and concurrently seek dismissal of all claims
against them.”).
Despite the innocuous titles, the Knox County Defendants and
Barbourville Defendants filed dispositive motions masquerading as “Responses.”
The trouble, of course, is that neither the Knox County Defendants nor the
Barbourville Defendants are in a position to file a procedurally proper dispositive motion.
A motion to dismiss under Rule 12(b)(6) must “be made before pleading,” Fed. R. Civ. P.
12(b), and both the Knox County Defendants and the Barbourville Defendants filed
4
After the briefing on the Motions to Dismiss concluded, Plaintiffs filed a Notice of Supplemental
Authority in Support of their Response in Opposition to the Motions to Dismiss. (Doc. # 79). The Primary
KSP Defendants filed a Notice of Objection to Plaintiffs’ Supplemental Authority (Doc. # 81), which the Knox
County Defendants, and the Secondary KSP Defendants joined. (Docs. # 82 and 84). The Court granted
Plaintiffs permission to file the supplemental authority and also permitted the Defendants to file objections
thereto. (Doc. # 83 and 118). Accordingly, Plaintiffs’ supplemental authority and the parties’ arguments
regarding that authority will be considered in this Memorandum Opinion and Order.
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answers before they filed their “me too” motions.5 (Docs. # 30 and 31). Therefore, those
post-answer Motions to Dismiss are untimely. McGlone v. Bell, 681 F.3d 718, 728 n.2
(6th Cir. 2012) (“Defendants filed an untimely motion to dismiss pursuant to Federal Rule
of 12(b)(6), as it was filed after Defendants’ Answer.”).
A motion for judgment on the pleadings, on the other hand, would be premature.
Under Rule 12(c), a party cannot move for judgment on the pleadings until after the
pleadings have “closed.” Fed. R. Civ. P. 12(c). “As a number of other district courts in
this Circuit have noted, the pleadings are not closed until all defendants have filed an
answer, even when one defendant has filed a motion to dismiss instead of answering.”
Wells Fargo Fin. Leasing, Inc. v. Griffin, 970 F. Supp. 2d 700, 705 (W.D. Ky. 2013) (citing
Nationwide Children’s Hosp., Inc. v. D.W. Dickey & Son, Inc. Emp. Health & Welfare Plan,
No. 2:08-cv-1140-GLF, 2009 WL 5247486, at *1 (S.D. Ohio Dec. 31, 2009); Dunn-Mason
v. JP Morgan Chase Bank Nat’l Ass’n, No. 11-cv-13419, 2013 WL 4084676, at *4 (E.D.
Mich. Aug. 31, 2013); Horen v. Bd. of Educ. of Toledo Sch. Dist., 594 F. Supp. 2d 833,
840 (N.D. Ohio 2009)). Because the KSP Defendants have not yet filed answers, the
pleadings have not “closed” for purposes of Rule 12(c), and any construed Motions for
Judgment on the Pleadings would be premature.
When presented with this procedural predicament, other district courts in this
Circuit have considered premature Rule 12(c) motions and permitted post-answer Rule
12(b)(6) motions. Horen, 594 F. Supp. 2d at 840-41 (construing premature Rule 12(c)
motion as a Rule 12(b)(6) motion to dismiss after other parties answered); Signature
Combs, Inc. v. United States, 253 F. Supp. 2d 1028, 1030 (W.D. Tenn. 2003) (considering
5
The fact that the Knox County Defendants and Barbourville Defendants amended their answers
after filing their motions does not alter this result. (Docs. # 72 and 73).
6
Rule 12(c) motion, although premature when filed, after all other defendants had
answered); Gillespie v. City of Battle Creek, 100 F. Supp. 3d 623, 628 (W.D. Mich. 2015)
(construing defendants’ premature Rule 12(c) motion as a post-answer Rule 12(b)(6)
motion where the issues presented in the motion were also raised as affirmative defenses
in the answer); Prade v. City of Akron, No. 5:14-cv-188, 2015 WL 2169975, at *2 (N.D.
Ohio May 8, 2015) (denying motion to strike and converting premature Rule 12(c) motion
into post-answer Rule 12(b)(6) motion because issues raised in the motion were
sufficiently raised as affirmative defenses in defendant’s answer).
Those decisions, however, are not binding on this Court. Nor does the Court find
them persuasive. Although the Court generally disfavors piecemeal resolution of the
issues, the Court refuses to relax the requirements of the Federal Rules of Civil Procedure
to permit procedurally improper motions. Therefore, the Court declines to exercise its
discretion to construe and consider the Knox County Defendants’ and the Barbourville
Defendants’ filings as either post-answer Motions to Dismiss or premature Motions for
Judgment on the Pleadings.6 Accordingly, Plaintiffs’ Motions to Strike the Knox County
Defendants’ and the Barbourville Defendants’ Responses (Docs. # 56 and 57) are
granted.
B.
Motions to Dismiss
The Court having determined that the Primary KSP Defendants’ and the
Secondary KSP Defendants’ Motions to Dismiss (Docs. # 36 and 39) are the only
6
That is not to say that the issues resolved in this Memorandum Opinion and Order will be relitigated
once the pleadings have closed. The Court is bound by the law-of-the-case doctrine, which provides that
“when a court decides upon a rule of law, that decision should continue to govern the same issues in
subsequent stages of the same case.” Miller v. Maddox, 866 F.3d 386, 389 (6th Cir. 2017) (citing Scott v.
Churchill, 377 F.3d 565, 569-70 (6th Cir. 2004)). Therefore, to the extent the issues raised are identical,
and the rationale for the Court’s decision is equally applicable to all parties, the Court’s subsequent orders
will be consistent with this Memorandum Opinion and Order.
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substantive motions properly before it, the remainder of the Court’s analysis will focus
only on the KSP Defendants’ Motions to Dismiss.
1.
Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain 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). Put another way, “the plaintiff must allege
facts that state a claim to relief that is plausible on its face and that, if accepted as true,
are sufficient to raise a right to relief above the speculative level.” Wesley v. Campbell,
779 F.3d 421, 427 (6th Cir. 2015) (quoting Handy-Clay v. City of Memphis, Tenn., 695
F.3d 531, 538 (6th Cir. 2012); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Although “plaintiffs need not meet a ‘probability requirement’ … they must show
‘more than a sheer possibility that a defendant has acted unlawfully.’” Wesley, 779 F.3d
at 427-28 (quoting Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011)).
“In ruling on the issue, a district court must ‘construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences
in favor of the plaintiff.’” Id. at 428 (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th
Cir. 2007)). After all, the “defendant has the burden of showing that the plaintiff has failed
to state a claim for relief.” Id.
2.
Federal § 1983 Claims
“To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
violation was committed by a person acting under color of state law.” West v. Atkins, 487
U.S. 42, 48 (1988); Miller v. Sanilac Cty., 606 F.3d 240, 247 (6th Cir. 2010). “If a plaintiff
8
fails to make a showing on any essential element of a § 1983 claim, it must fail.” Redding
v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).
Because § 1983 “is not itself a source of any substantive rights, but instead
provides the means by which rights conferred elsewhere may be enforced,” the Court’s
“first task … is to identify the specific constitutional or statutory rights allegedly infringed.”
Meals v. City of Memphis, 493 F.3d 720, 727-28 (6th Cir. 2007) (internal citations omitted).
“That [a plaintiff] asserts claims under various constitutional provisions does not control
[the Court’s] inquiry.” Moldowan v. City of Warren, 578 F.3d 351, 376 (6th Cir. 2009).
“Rather, the critical question is whether the ‘legal norms’ underlying those claims implicate
clearly established constitutional rights.” Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 528
(1985)).
The Plaintiffs’ Complaint alleges that the Defendants violated their constitutional
rights under the Fourth and Fourteenth Amendments when the Defendants conspired to
frame them for the robbery and murder of Katherine Mills, manufactured probable cause
by fabricating evidence and testimony, initiated a criminal prosecution based on that
fabricated probable cause, and unlawfully continued their detention without probable
cause until the Commonwealth of Kentucky acknowledged the lack of probable cause
and dismissed the charges.
(Doc. # 1 at ¶¶ 138-152).
Specifically, the Plaintiffs’
Complaint asserts seven causes of action based on those alleged constitutional
violations.7 Count One alleges a violation of Plaintiffs’ constitutional right to be free from
unlawful prosecution and continued detention without probable cause under the Fourth
Amendment, based on the Defendants’ fabrication of evidence and withholding of
7
The Plaintiffs’ Complaint also contains four state-law claims: malicious prosecution, negligent
supervision, intentional infliction of emotional distress, and respondeat superior. (Doc. # 1 at ¶¶ 182-198).
9
exculpatory evidence. Id. at ¶¶ 138-147. Count Two alleges a violation of Plaintiffs’
constitutional rights under the Fourth and Fourteenth Amendments, premised on
Defendants’ fabrication of evidence. Id. at ¶¶ 148-152. Counts Three, Four, Five, Six,
and Seven seek to impose supervisor liability, indirect liability, conspiracy liability, and
municipal liability for the aforementioned constitutional violations.8 Id. at ¶¶ 153-181.
In their Motions to Dismiss, the KSP Defendants argue that the Plaintiffs cannot
pursue Counts One and Two simultaneously because they are based on the same
constitutional right—the right to be free from continued detention without probable cause
under the Fourth Amendment—and the same alleged conduct—the fabrication of
evidence—and, thus, the fabrication-of-evidence claim is “subsumed” by the maliciousprosecution claim. (Docs. # 36-2 at 7; 39-1 at 8). The Plaintiffs contest the Defendants’
characterization of their claims in a two-fold argument. First, the Plaintiffs claim that an
officer’s fabrication of evidence can support claims under both the Fourth and Fourteenth
Amendments. (Doc. # 55-1 at 33-35). And second, the Plaintiffs argue that Sixth Circuit
precedent, which has established different elements for malicious-prosecution and
fabrication-of-evidence claims, defeats the Defendants’ argument. Id. at 35-38.
Therefore, as a threshold matter, the Court must determine whether the Plaintiffs
can simultaneously pursue a malicious-prosecution claim and a fabrication-of-evidence
claim. In the simplest of terms, the answer is yes.
The Plaintiffs’ reliance on the Fourteenth Amendment, however, is not the reason
why. Under certain circumstances, the Sixth Circuit has refused to “restrict[ ] plaintiff[s]
8
Counts Six and Seven, which allege § 1983 municipal liability under Monell v. New York City Dep’t
of Soc. Servs., 436 U.S. 658 (1978), are made only against Knox County and the City of Barbourville. (Doc.
# 1 at ¶¶ 172-186). Similarly, Count Eleven, which seeks to impose respondeat superior liability, is alleged
only against Knox County and the City of Barbourville. Id. at ¶¶ 196-198.
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to one theory of recovery over the other,” even when the claims alleged “share a factual
premise.” Gregory v. City of Louisville, 444 F.3d 725, 750 (6th Cir. 2006) (holding that a
plaintiff can simultaneously pursue a Fourteenth Amendment Brady claim and a Fourth
Amendment continued-detention claim against a defendant who has allegedly withheld
exculpatory evidence). In Gregory, the Sixth Circuit explained that the “legal constructs”
of a “continued detention claim, which allege[s] a Fourth Amendment violation, are distinct
from a [Fourteenth Amendment] Brady claim, which alleges a due process violation.” Id.
Because the Plaintiff had “allege[d] both that his detention was unlawfully continued …
and that his right to a fair trial was abridged,” the Sixth Circuit held that the “situs of the
injury” was “distinct” and “therefore Plaintiff should be able to pursue both legal theories.”
Id. It stands to reason that a fabrication-of-evidence allegation would be treated the same
way—that is, despite the shared factual premise, a plaintiff could pursue a fabrication-ofevidence claim under both the Fourth and Fourteenth Amendments, if the plaintiff alleged
“both that his detention was unlawfully continued … and that his right to a fair trial was
abridged,” such that the “situs of the injury” is “distinct.”9 Id. The Plaintiffs, however, have
not alleged that their right to a fair trial was abridged. Nor could they, as there was no
trial.
Therefore, Plaintiffs’ fabrication-of-evidence claim has only one constitutional
foundation: the Fourth Amendment.
Although Plaintiffs’ malicious-prosecution claim and fabrication-of-evidence claim
are both based upon the Fourth Amendment and both challenge the constitutionality of
9
This conclusion is further supported by the Supreme Court’s recent decision in Manuel v. City of
Joliet, 137 S. Ct. 911 (2017), where the Court analyzed the protections afforded by the Fourth and
Fourteenth Amendments and defined the boundary between those Amendments. Pretrial detention, where
probable cause is lacking, “violates the confined person’s Fourth Amendment rights.” Manuel, 137 S. Ct.
at 920 n.8. “[O]nce a trial has occurred, the Fourth Amendment drops out: A person challenging the
sufficiency of the evidence to support both a conviction and any ensuing incarceration does so under the
Due Process Clause of the Fourteenth Amendment.” Id.
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Plaintiffs’ continued detention, the practicalities of litigation and precedent dictate that the
claims be analyzed separately. First, a malicious-prosecution claim and a fabrication-ofevidence claim have different elements—most notably, that one requires a plaintiff to
prove that there was a lack of probable cause to support the criminal charges and the
other does not. See Morris v. Boyd, 238 F.3d 422, *3 (6th Cir. 2000) (table) (“A claim of
fabricated evidence is a constitutional tort distinct from malicious prosecution, and can be
shown without proving that the state lacked probable cause.”); see also Stemler v. City of
Florence, 126 F.3d 856, 872 (6th Cir. 1997) (explaining that a “claim of fabricated
evidence does not require a conclusion that the state did not have probable cause to
prosecute” the plaintiff); Caminata v. Cty. of Wexford, 664 F. App’x 496, (6th Cir. 2016)
(noting that plaintiff “allege[d] two Fourth Amendment claims against [defendant]:
fabrication of evidence and malicious prosecution” but “consider[ing] the claims together”
because of the overlap). Because “the claims have different elements,” analyzing those
claims separately “is sensible.” Mills v. Barnard, 869 F.3d 473, 485 (6th Cir. 2017).
Furthermore, this analysis aligns with Sixth Circuit precedent, which establishes that a
law-enforcement officer’s fabrication of evidence violates an individual’s constitutional
rights, regardless of the strength of or support for the criminal charges. See Webb v.
United States, 789 F.3d 647, 670 (6th Cir. 2015) (“[E]ven if independent evidence
establishes probable cause against a suspect, it would still be unlawful for lawenforcement officers to fabricate evidence in order to strengthen the case against the
suspect.”). Accordingly, despite the overlap between the claims, “[i]t is not the role of this
Court to restrict [Plaintiffs’] choice of viable legal theories,” and the Plaintiffs are permitted
to proceed on both their malicious-prosecution and fabrication-of-evidence claims
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simultaneously. Gregory, 444 F.3d at 750.
Having identified the specific constitutional rights allegedly infringed and
determined that the Plaintiffs can simultaneously pursue each of the counts in their
Complaint, the Court now turns to the merits of Plaintiffs’ claims. In this case, there is no
dispute that Defendants were acting under color of state law. Therefore, the only question
is whether the Plaintiffs were “deprived of a right secured by the Constitution or the laws
of the United States.” Redding, 241 F.3d at 532. The Court will address each of Plaintiffs’
claims and the Motions to Dismiss in turn, construing the Complaint in the light most
favorable to Plaintiffs and accepting its allegations as true.
a.
Count One: Malicious Prosecution
“The Sixth Circuit ‘recognizes a separate constitutionally cognizable claim of
malicious prosecution under the Fourth Amendment,’ which ‘encompasses wrongful
investigation, prosecution, conviction, and incarceration.’” Sykes v. Anderson, 625 F.3d
294, 308 (6th Cir. 2010) (quoting Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006)).
“To succeed on a malicious-prosecution claim under § 1983 when the claim is premised
on a violation of the Fourth Amendment, a plaintiff must prove” four elements. Id. “First,
the plaintiff must show that a criminal prosecution was initiated against the plaintiff and
that the defendant ‘made, influenced, or participated in the decision to prosecute.” Id.
(internal citations omitted). “Second, because a § 1983 claim is premised on the violation
of a constitutional right, the plaintiff must show that there was a lack of probable cause
for the criminal prosecution.” Id. “Third, the plaintiff must show that 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.” Id. at 308-09 (internal
13
citations omitted). And “[f]ourth, the criminal proceeding must have been resolved in the
plaintiff’s favor.” Id. at 309.
The basis of Plaintiffs’ malicious-prosecution claim is that the Defendants caused
their prosecution and continued detention unlawfully by fabricating and withholding
evidence, the absence of either or both of which would have dissolved probable cause.
(Doc. # 1 at ¶¶ 102-112; 138-147). There appears to be no dispute that the Plaintiffs
suffered a deprivation of liberty; thus, the Court will focus on the other three elements.
i.
Made, Influenced, or Participated
The KSP Defendants argue that the Plaintiffs’ Complaint fails to allege sufficient
facts that support any involvement in the decision to prosecute the Plaintiffs. (Doc. # 391 at 10). Specifically, the KSP Defendants claim that the Complaint contains no specific
factual allegations against Defendant Eubanks,10 and that Defendants Johnson, Mefford,
Farris, and Joseph “were not the driving force behind the prosecution of the Plaintiffs.” Id.
In response, Plaintiffs argue that the Complaint contains ample factual allegations that
support their claim that each of the Defendants influenced the decision to initiate charges
through their alleged participation in manufacturing evidence, coercing witnesses, and
falsely implicating the Plaintiffs. (Doc. # 55-1 at 49).
To state a claim against the Defendants, the Complaint “must plausibly allege” that
the Defendants “‘made, influenced, or participated in the decision to prosecute.” Sykes,
625 F.3d at 308. “Under the first element, an investigating officer does not escape liability
just because someone else (e.g., the prosecutor) made the actual decision to prosecute,
10
To avoid confusion, the Court notes that all references to “Defendant Eubanks” concern Defendant
KSP Trooper Dallas Eubanks, not Knox County Deputy Derek Eubanks. Because the Court has stricken
the Knox County Defendants’ Response and is not considering those arguments, the merits of Plaintiffs’
claims against Deputy Derek Eubanks are not the subject of this Memorandum Opinion and Order.
14
so long as the plaintiff can show that the officer ‘influenced or participated in the decision
to prosecute.’” Sampson v. Vill. of Mackinaw City, 685 F. App’x 407, 417 (6th Cir. 2017)
(quoting Sykes, 625 F.3d at 311-12). But, to be liable for malicious prosecution, “the
officer must participate in a way that aids in the decision [to prosecute], as opposed to
passively or neutrally participating.” Sykes, 325 F.3d at 308 n.5. Put another way, the
officer’s “participation must be marked by some kind of blameworthiness, something
beyond mere negligence or innocent mistake,” to satisfy the first element of a maliciousprosecution claim. Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015).
The Plaintiffs have plausibly alleged that the Defendants made, influenced, or
participated in the decision to prosecute. The Plaintiffs’ “attempt to lump all of the officers
together under the” broad term “Defendant Officers” is not improper, as the Defendants
suggest. (Docs. # 36-2 at 3; 39-1 at 3). The Complaint plainly states that each of the
individual law-enforcement officers are referred to collectively as the “Defendant Officers.”
(Doc. # 1 at ¶ 19). The Complaint then continues on to assert a myriad of specific factual
allegations against those “Defendant Officers.” Specifically, the Complaint alleges that
the Defendant Officers learned of evidence implicating other suspects, reached an
agreement to protect those other suspects and frame the Plaintiffs, coerced witnesses,
fabricated statements, manipulated evidence, destroyed and withheld material
exculpatory evidence, and concealed all of those actions from the prosecutor. Id. at ¶¶
23-25, 30, 45-46, 50-53, 56-58, 63-64, 70, 82-83, 88-89, 102-106, 108, 110-112, 118125. Therefore, the Complaint sufficiently alleges that each Defendant Officer—without
specifically naming them—actively participated in the decision to prosecute Plaintiffs by
coercing witnesses, fabricating statements, manipulating evidence, withholding and
15
destroying exculpatory evidence, and concealing their actions.
At this stage of the case, where the Court is required to accept Plaintiffs’ factual
allegations as true, that is sufficient. The Plaintiffs are not required to—nor could they be
expected to—“make ‘detailed factual allegations’ about which officer committed which
act.” Horn v. City of Covington, No. 2:14-cv-73-DLB, 2015 WL 4042154, at *6 (E.D. Ky.
July 1, 2015) (quoting Iqbal, 556 U.S. at 678); see also Lyons v. Jacobs, No. 2:16-cv-813ALM, 2017 WL 4168369, at *6 (S.D. Ohio Sept. 20, 2017) (rejecting Defendants’
argument that Plaintiffs failed to state a plausible constitutional violation because Plaintiffs
“merely included the names of all the Defendants and lumped them together in a
conclusory fashion”). Ultimately, the Plaintiffs may be unable to prove that all ten of the
officers were involved in each factual allegation levied against the “Defendant Officers,”
but that “burden is reserved for later stages of the litigation.” Id. Accordingly, the
Complaint satisfies the first element of Plaintiffs’ § 1938 malicious-prosecution claim.
ii.
Probable Cause
The KSP Defendants also argue that the Plaintiffs’ have failed to state a maliciousprosecution claim because “there was probable cause at multiple stages of the criminal
proceedings.” (Doc. # 39-1 at 10). Specifically, the Defendants highlight the arrest
warrants issued by a local judge, a preliminary hearing that found probable cause for the
criminal charges, and the grand jury indictments which were returned against Plaintiffs.
Id.
In response, the Plaintiffs point to the Commonwealth’s acknowledgment “that
probable cause did not exist” at the time the criminal charges were dismissed and argue
that Defendants cannot immunize their unconstitutional conduct by using the fabricated
16
evidence to obtain arrest warrants, survive a preliminary hearing, or secure grand-jury
indictments. (Doc. # 55-1 at 47, 52-54).
To state a plausible § 1983 malicious-prosecution claim, the plaintiff must allege
“that there was a lack of probable cause for the criminal prosecution.” Sykes, 625 F.3d
at 308.
“Probable cause to initiate a criminal prosecution exists where ‘facts and
circumstances are sufficient to lead an ordinarily prudent person to believe the accused
was guilty of the crime charged.’” Webb v. United States, 789 F.3d 647, 666 (6th Cir.
2015). Whether probable cause exists is determined by the totality of the circumstances.”
Illinois v. Gates, 462 U.S. 213, 238 (1983).
“As a general rule, ‘the finding of an indictment, fair upon its face, by a properly
constituted grand jury, conclusively determines the existence of probable cause.’” Webb,
789 F.3d at 660 (quoting Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006)). There is,
however, a “long-held exception to that general rule”—“when the defendant knowingly or
recklessly presented false testimony to, or omitted critical information from, the grand jury
in order to obtain that indictment,” the presumption of probable cause is rebuttable. Jones
v. Clark Cty., 690 F. App’x 334, 335 (6th Cir. 2017) (citing Sykes, 625 F.3d at 312).
Therefore, “[t]he existence of an indictment is … not a talisman that always wards off a
malicious-prosecution claim.” Mills, 869 F.3d at 180. Even so, “not every failed criminal
prosecution will sustain a subsequent malicious-prosecution claim.”
Bickerstaff v.
Lucarelli, 830 F.3d 388, 397 (6th Cir. 2016) (citing Harris v. United States, 422 F.3d 322,
327 (6th Cir. 2005)).
Of particular relevance here, “pre-indictment nontestimonial acts that were
material to the prosecution of a plaintiff [can] rebut the presumption of probable cause
17
established by a grand-jury indictment.” Mills, 869 F.3d at 180 (citing King v. Harwood,
852 F.3d 568, 587-80 (6th Cir. 2017)). The “presumption that the grand-jury indictment
is evidence of probable cause is rebuttable and not conclusive” if three requirements are
met:
(1) a law-enforcement officer, in the course of setting a prosecution in
motion, either knowingly or recklessly makes false statements (such as
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 omission do not consist solely of grandjury testimony or preparation for that testimony (where preparation has a
meaning broad enough to encompass conspiring to commit perjury before
the grand jury).
King, 852 F.3d at 587-88.
The Plaintiffs have alleged just that—that “the Defendant Officers fabricated or
manipulated all of the evidence of guilt” in the underlying criminal case and set their
prosecutions in motion with false statements and fabricated evidence, apart from any
grand-jury testimony they may have given. (Doc. # 1 at ¶¶ 105, 109, 112-113). If those
allegations are taken as true, as the Court is required to take them, any presumption of
probable cause created by the warrant, the preliminary hearing, or the grand-jury
indictment is rebuttable.
Therefore, the Defendants’ argument that probable cause
existed does not warrant dismissal of Plaintiffs’ claim. The Complaint adequately alleges
that there was a lack of probable cause for Plaintiffs’ criminal prosecutions, and thus, the
second element of Plaintiffs’ § 1938 malicious-prosecution claim is satisfied.
iii.
Favorable Termination
Lastly, the KSP Defendants argue that the Complaint fails to adequately allege
that the underlying prosecution was terminated in the Plaintiffs’ favor. (Docs. # 36-2 at 9;
18
39-1 at 11). Although the Defendants concede that “Plaintiffs’ Complaint alleges that the
criminal proceedings were dismissed against them in a manner indicative of their
innocence,” the Defendants attack the truth of that allegation and claim that the criminal
proceedings were dismissed without prejudice “because several key witnesses had
become unavailable due to death, injury, or disappearance” and “other key witnesses
were anticipated to change their testimony.” Id.
“The determination of whether a termination is sufficiently favorable ultimately rests
with the trial court as a matter of law, absent a factual dispute relative to the circumstances
of the dismissal.” Ohnemus v. Thompson, 594 F. App’x 864, 866 (6th Cir. 2014) (citing
Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597, 606 (Ky. Ct. App.
2006)). Both the Sixth Circuit and Kentucky courts have looked to the Restatement
(Second) of Torts § 660 for guidance on whether a proceeding was terminated in the
accused’s favor.
According to that section of the Restatement, “proceedings are
‘terminated in favor of the accused’ … only when their final disposition is such as to
indicate the innocence of the accused.” Restatement (Second) of Torts § 660. Put
another way, the termination of the proceedings “must go to the merits of the accused’s
professed innocence for the dismissal to be ‘favorable’ to him.” Ohnemus, 594 F. App’x
at 867. Thus, a plaintiff can satisfy the favorable-termination element when the dismissal
is “one-sided” and “not the result of any settlement or compromise.” Id. (citing Feinberg
v. Townsend, 107 S.W.3d 910, 912 (Ky. Ct. App. 2003)). If the dismissal is “not the
unilateral act of the prosecutor” and the accused sacrifices “something to secure
dismissal of the charges,” the termination of the proceedings is not favorable to the
19
accused. Id. at 867 (citing Broaddus v. Campbell, 911 S.W.2d 281, 284 (Ky. Ct. App.
1995)).
First, that the dismissal of Plaintiffs’ criminal case was without prejudice is of little
significance. Kentucky courts have held that “a dismissal of a case—whether it be with
or without prejudice—constitutes a ‘final termination’ for purposes of” maliciousprosecution claims. Davidson, 202 S.W.3d at 604. And furthermore, a review of the
Complaint reveals that the Plaintiffs have affirmatively alleged that the charges against
them were dismissed in a manner indicative of their innocence. (Doc. # 1 at ¶¶ 127, 141,
183). The Defendants’ claim that such an allegation is untrue fails to warrant relief at the
motion-to-dismiss stage, where the Court must construe the Complaint in the light most
favorable to Plaintiffs, accept its allegations as true, and draw all reasonable inferences
in their favor. Therefore, the allegations in the Complaint satisfy the fourth element of
Plaintiffs’ § 1938 malicious-prosecution claim.
That conclusion does not foreclose the possibility that the Defendants may
ultimately prove that the dismissal of the Plaintiffs’ criminal charges was the result of a
compromise, a procedural technicality, the exercise of prosecutorial discretion, or some
other method of dismissal that is not indicative of Plaintiffs’ innocence, which would likely
prove fatal to their § 1983 malicious-prosecution claim. See, e.g., Ohnemus, 594 F. App’x
at 867 (affirming dismissal of malicious-prosecution claim where the dismissal of the
criminal charge was the result of a mutual agreement in which the plaintiff paid restitution);
Evridge v. Rice, No. 3:11-cv-40-DCR, 2011 WL 6014407, at *5 (E.D. Ky. Dec. 2, 2011)
(dismissing malicious-prosecution claim where plaintiff participated in an informal pre-trial
diversion program).
Dismissal on that basis today, however, would be premature.
20
Accordingly, Plaintiffs’ Complaint plausibly alleges a Fourth Amendment maliciousprosecution claim against the Defendants, and the KSP Defendants’ Motions to Dismiss
(Doc. # 36 and 39) are denied with respect to Count One.
b.
Count Two: Fabrication of Evidence
“A Fourth Amendment claim for fabrication of evidence lies where a defendant
knowingly manufactures probable cause, thereby effecting a seizure.” Robertson v.
Lucas, 753 F.3d 606, 616 n.5 (6th Cir. 2014). To state a fabrication-of-evidence claim,
the Plaintiffs must plausibly allege that the Defendants knowingly fabricated evidence
against them and that there was a reasonable likelihood that the false evidence would
have affected the decision of the jury. Gregory, 444 F.3d at 737 (citing Stemler, 126 F.3d
at 872).
As explained above, the Plaintiffs can simultaneously pursue their maliciousprosecution and fabrication-of-evidence claims, both of which are predicated on the
Fourth Amendment. That conclusion, however, gives rise to another threshold issue
regarding Plaintiffs’ fabrication-of-evidence claim: Is it timely? The KSP Defendants
argue that Plaintiffs’ fabrication-of-evidence claim is untimely and barred by the statute of
limitations. (Docs. # 36-2 at 5; 39-1 at 5-6).
i.
Statute of Limitations11
“After pinpointing” the specific constitutional right at issue, the Court “must
determine the elements of, and rules associated with, an action seeking damages for its
11
The Court notes that “a motion under Rule 12(b)(6), which considers only the allegations in the
complaint, is generally an inappropriate vehicle for dismissing a claim based upon the statute of limitations.”
Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012); see also Hall v. City of Williamsburg, No.
6:16-cv-304-DCR, 2017 WL 3668113, at *4 (E.D. Ky. Aug. 24, 2017). Therefore, only when the allegations
in the complaint affirmatively show that the claim is time-barred,” is dismissal under Rule 12(b)(6)
appropriate. Id.
21
violation.” Manuel v. City of Joliet, 137 S. Ct. 911, 920 (2017). Although § 1983 “provides
a federal cause of action … in several respects … federal law looks to the law of the State
in which the cause of action arose.” Wallace v. Kato, 549 U.S. 384, 387 (2007). “That is
so for the length of the statute of limitations: It is that which the State provides for
personal-injury torts.” Id. (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989); Wilson v.
Garcia, 471 U.S. 261, 279-80 (1985)). Thus, in Kentucky, § 1983 actions are subject to
the one-year statute of limitations set forth in Ky. Rev. Stat. Ann. § 413.140(1)(a). Collard
v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990); Bonner v. Perry, 654 F.3d 424
(6th Cir. 2009).
The “accrual date of a § 1983 cause of action is a question of federal law that is
not resolved by reference to state law.” Wallace, 549 U.S. at 388. “Aspects of § 1983
which are not governed by reference to state law are governed by federal rules
conforming in general to common-law tort principles.” Id. “Under those principles, it is
the standard rule that accrual occurs when the plaintiff has a complete and present cause
of action,” or in other words, “when the plaintiff can file suit and obtain relief.” Id. (internal
citations and quotation marks omitted).
Here, the parties agree that a one-year statute of limitations applies.
They
disagree, however, on when Plaintiffs’ fabrication-of-evidence claim accrued—that is, the
date on which the applicable one-year statute of limitations began to run. Plaintiffs argue
that their fabrication-of-evidence claim accrued when the underlying criminal
prosecutions were terminated in their favor—on June 30, 2016 and August 22, 2016.
(Doc. # 55-1 at 8). The Defendants insist that the Plaintiffs’ fabrication-of-evidence claim
accrued much earlier, either when their allegedly unlawful detention began—on March
22
15, 2012—or when the last alleged act of fabrication of evidence occurred—on February
26, 2014. (Docs. # 36-2 at 5; 39-1 at 5; 60 at 5-6).
These are familiar arguments. In fact, they mirror arguments recently presented
to the Supreme Court. In Manuel, the Supreme Court clarified that the plaintiff, who was
arrested and detained for nearly seven weeks—on the basis of allegedly fabricated
evidence—and secured dismissal of his criminal case before proceeding to trial, could
challenge his “post-legal-process pretrial detention” under the Fourth Amendment.
Manuel, 137 S. Ct.at 917-19. Then, the Supreme Court acknowledged the difficult
statute-of-limitations question raised by post-legal-process pretrial detention claims and
outlined the parties’ arguments:
Manuel and the City offer competing views about what accrual rule should
govern a § 1983 suit challenging post-legal-process pretrial detention.
According to Manuel, that Fourth Amendment claim accrues only upon the
dismissal of criminal charges… Relying on this Court’s caselaw, Manuel
analogizes his claim to the common-law tort of malicious prosecution. An
element of that tort is the termination of the … proceeding in favor of the
accused; and accordingly, the statute of limitations does not start to run until
that termination takes place. Manuel argues that following the same rule in
suits like his will avoid conflicting resolutions in § 1983 litigation and criminal
proceedings by precluding the possibility of the claimant succeeding in the
tort action after having been convicted in the underlying criminal
prosecution…
The City, however, contends that any such Fourth Amendment claim
accrues (and the limitations period starts to run) on the date of the initiation
of legal process… According to the City, the most analogous tort to
Manuel’s constitutional claim is not malicious prosecution but false arrest,
which accrues when legal process commences. And even if malicious
prosecution were the better comparison, the City continues, a court should
decline to adopt that tort’s favorable-termination element and associated
accrual rule in adjudicating a § 1983 claim involving pretrial detention. That
element, the City argues, makes little sense in this context because the
Fourth Amendment is concerned not with the outcome of a prosecution, but
with the legality of searches and seizures.
23
Id. at 921 (internal citations, quotation marks, and alterations omitted). Unfortunately,
however, the Supreme Court declined to resolve the statute-of-limitations issue. Id. at
922. Therefore, the Court must determine the appropriate accrual rule without the benefit
of any helpful binding precedent.12
“In defining the contours and prerequisites of a § 1983 claim, including its rule of
accrual, courts are to look first to the common law of torts.” Manuel, 137 S. Ct. at 920.
“Sometimes, that review of common law will lead a court to adopt wholesale the rules that
would apply in a suit involving the most analogous tort.” Id. “But not always.” Id. at 921.
“Common-law principles are meant to guide rather than to control the definition of § 1983
claims, serving ‘more as a source of inspired examples than of prefabricated
components.’” Id. (quoting Hartman v. Moore, 547 U.S. 250, 258 (2006)). Therefore, “[i]n
applying, selecting among, or adjusting common-law approaches, courts must closely
attend to the value and purposes of the constitutional right at issue.” Id.
Much like the parties in Manuel, the parties here attempt to analogize Plaintiffs’
Fourth Amendment fabrication-of-evidence claim to common-law torts. Plaintiffs urge the
Court to adopt the accrual rule for malicious-prosecution claims, which postpones accrual
until the favorable termination of criminal proceedings. (Doc. # 55-1 at 8-27). The
Defendants, on the other hand, argue that such a rule makes little sense in the post-legalprocess pretrial detention context because there is no “existing conviction or sentence in
jeopardy of being impugned or invalidated.” (Doc. # 60 at 7). Instead, the Defendants
suggest that the Court adopt the accrual rules for unlawful-arrest claims. Id. at 5-6.
12
Although the Sixth Circuit has addressed the statute-of-limitations and accrual rules for fabricationof-evidence claims since the Supreme Court’s decision in Manuel, the fabricated evidence in that case was
allegedly used to obtain a conviction, and thus, involved a Fourteenth Amendment claim, not a Fourth
Amendment claim. Mills v. Barnard, 869 F.3d 473, 484 (6th Cir. 2017).
24
Because the parties rely heavily on the cases that establish the accrual rules for
malicious-prosecution claims—Heck v. Humphrey, 512 U.S. 477 (1994)—and unlawfularrest claims—Wallace v. Kato, 549 U.S. 384—a review of those cases is warranted.
In Heck, a state prisoner brought a § 1983 action alleging that his conviction
violated his constitutional rights. Specifically, the prisoner-plaintiff claimed that officers
had conducted an unlawful investigation, knowingly destroyed exculpatory evidence, and
relied on an unlawful voice-identification procedure to obtain his conviction. Heck, 512
U.S. at 479. Thus, the Supreme Court found itself “at the intersection of the two most
fertile sources” of federal civil-rights litigation—the Civil Rights Act of 1871, 42 U.S.C §
1983, and the federal habeas corpus statute, 28 U.S.C. § 2254. Id. at 480. Although
both of those statutes “provide access to a federal forum for claims of unconstitutional
treatment at the hands of state officials … they differ in their source and operation.” Id.
And critically, “habeas corpus is the exclusive remedy for a state prisoner who challenges
the fact or duration of his confinement … even though such a claim may come within the
literal terms of § 1983.” Id. at 481. Therefore, the Heck Court had to answer a difficult
question: What becomes of a § 1983 claim that cannot be brought because the individual
is required to seek habeas corpus relief instead? The Court provided a simple answer: a
§ 1983 cause of action does not exist—at least not yet.
Therefore, “in order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question
25
by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87. “A claim for
damages bearing that relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.” Id. at 487.
Because a prisoner-plaintiff “has no cause of action under § 1983 unless and until
the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant
of a writ of habeas corpus,” the Heck Court determined that “the statute of limitations
poses no difficulty while the state challenges are being pursued, since the § 1983 claim
has not yet arisen.” Id. at 489. Analogizing the prisoner-plaintiff’s § 1983 claim to the
common-law tort of malicious prosecution, the Heck Court reasoned as follows:
Just as a cause of action for malicious prosecution does not accrue until the
criminal proceedings have terminated in the plaintiff’s favor… so also a §
1983 cause of action for damages attributable to an unconstitutional
conviction or sentence does not accrue until the conviction or sentence has
been invalidated.
Id. at 489-90.
Therefore, Heck’s holding and its delayed-accrual rule for statute-of-limitations
purposes is straight-forward. A § 1983 claim that would render a conviction or sentence
invalid does not accrue until the conviction or sentence has been invalidated. And
accordingly, the statute of limitations does not begin to run until that conviction or
sentence is invalidated.
Applying Heck’s rule, however, has proved to be easier said than done. Many
courts extended Heck’s rule and reasoning to pre-conviction situations in which a § 1983
claim, if successful, would necessarily imply the invalidity of a potential or future
conviction. See, e.g., Shamaeizadeh v. Cunigan, 182 F.3d 391, 398 (6th Cir. 1999);
Covington v. City of New York, 171 F.3d 117, 124 (2d Cir. 1999); Smith v. Holtz, 87 F.3d
26
108, 113 (3d Cir. 1996); Washington v. Summerville, 127 F.3d 552, 556 (7th Cir. 1997);
Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000); Beck v. City of Muskogee Police
Dep’t, 195 F.3d 553 (10th Cir. 1999); Uboh v. Reno, 141 F.3d 1000, 1006-07 (11th Cir.
1998). But, the Supreme Court has since made clear that “the Heck rule for deferred
accrual is called into play only when there exists a conviction or sentence that has not
been … invalidated.” Wallace, 549 U.S. at 389. In other words, Heck has “no application
in the pre-conviction context.” Fox v. DeSoto, 489 F.3d 228, 237 (6th Cir. 2007).
As such, the Defendants argue that the lack of a conviction against Plaintiffs
prevents Heck’s delayed-accrual rule from applying here. (Doc. # 60 at 7-8). In its place,
Defendants point to Wallace as the proper guidepost for the case at bar. Id. The Court
agrees with the Defendants on the first point—because the Plaintiffs were never
convicted, their reliance on Heck is unavailing. That Heck does not apply, however, does
not mean that Wallace controls or that Wallace establishes the accrual date for Plaintiffs’
fabrication-of-evidence claim.13 Rather, Wallace simply serves as an example of the type
of analysis this Court must undertake—the Court must look to the common law of torts,
select the most analogous tort, and fashion an appropriate accrual rule.
In Wallace, the plaintiff filed suit under § 1983, seeking damages and challenging
his arrest as unlawful under the Fourth Amendment. Wallace, 549 U.S. at 386. The
plaintiff’s arrest led to a lengthy interrogation and a confession, and he was convicted of
first-degree murder and sentenced to twenty-six years in prison. Id. On direct appeal,
13
If it did, there would have been no reason for the Supreme Court to remand Manuel for
consideration of the accrual issue. In that case, the plaintiff was arrested and detained for nearly seven
weeks on the basis of allegedly fabricated evidence. There was no extant criminal conviction.
Nevertheless, the statute-of-limitations issue—specifically, “what accrual rule should govern a § 1983 suit
challenging post-legal-process pretrial detention”—was front and center. Manuel, 137 S. Ct. at 921.
27
the Appellate Court of Illinois determined that the officers had arrested the plaintiff without
probable cause, and remanded for a new trial. Id. at 387. Instead of retrying the case,
prosecutors dropped the charges. Id. Almost a year after the criminal prosecution was
dismissed, the plaintiff filed suit under § 1983. Id. By that time, however, approximately
nine years and two months had passed since plaintiff’s unlawful arrest. The defendants
argued the suit was untimely. The Supreme Court agreed.
Looking to the common law of torts, the Wallace Court found that the tort of false
imprisonment provided the “proper analogy” and borrowed the corresponding accrual
rules for his § 1983 unlawful-arrest claim:
The running of the statute of limitations on false imprisonment is subject to
a distinctive rule—dictated, perhaps, by the reality that the victim may not
be able to sue while he is still imprisoned: Limitations begin to run against
an action for false imprisonment when the alleged false imprisonment ends.
Id. at 389 (internal citations and quotation marks omitted). “Thus, to determine the
beginning of the limitations period,” the Court had to “determine when [plaintiff’s] false
imprisonment came to an end.”
Id.
Rejecting plaintiff’s “contention that his false
imprisonment ended upon his release from custody, after the State dropped the charges
against him,” the Court determined that plaintiff’s false imprisonment “ended much earlier,
when legal process was initiated against him.” Id. at 390. That conclusion was dictated
by the common law of torts:
Reflective of the fact that false imprisonment consists of detention without
legal process, a false imprisonment ends once the victim becomes held
pursuant to such process—when, for example, he is bound over by a
magistrate or arraigned on charges. Thereafter, unlawful detention forms
part of the damages for the entirely distinct tort of malicious prosecution,
which remedies detention accompanied, not by absence of legal process,
but by wrongful institution of legal process.
28
Id. at 389-90. Therefore, the Wallace Court held that the statute of limitations on plaintiff’s
§ 1983 unlawful-arrest claim “commenced to run when he appeared before the examining
magistrate and was bound over for trial,” and that consequently, plaintiff’s claim was timebarred. Id. at 392.
But, Wallace’s logic is less persuasive in the fabrication-of-evidence context.
Because a false-imprisonment claim is based upon “detention without legal process,” it
makes sense that the claim accrues when the constitutional violation ceases—“at the time
the [plaintiff] becomes detained pursuant to legal process.” Id. at 389, 397. Pretrial
detention, on the other hand, “can violate the Fourth Amendment not only when it
precedes, but also when it follows, the start of legal process in a criminal case.” Manuel,
137 S. Ct. at 918. Put another way, the commencement of legal process is of no
consequence to a claim challenging pretrial detention if the lack of probable cause
continues. Id. at 918-19 (“Legal process has gone forward, but it has done nothing to
satisfy the Fourth Amendment’s probable-cause requirement.”).
Why, then, should a Fourth Amendment claim for unlawful pretrial detention
accrue—and the statute of limitations begin to run—when legal process commences, an
event that the Supreme Court has held has no significance in the pretrial-detention
context? The answer is simple—it should not.
Accordingly, the Court finds that the common-law tort of malicious prosecution
provides the proper analogy to the Plaintiffs’ fabrication-of-evidence claim, for much the
same reasons as the Supreme Court explained in Heck:
The common-law cause of action for malicious prosecution provides the
closest analogy to claims of the type considered here because, unlike the
related cause of action for false arrest or imprisonment, it permits damages
for confinement imposed pursuant to legal process. If there is a false arrest
29
claim, damages for that claim cover the time of detention up until issuance
of process or arraignment, but not more. But a successful malicious
prosecution plaintiff may recover, in addition to general damages,
compensation for any arrest or imprisonment, including damages for
discomfort or injury to his health, or loss of time and deprivation of the
society.
Heck, 512 U.S. at 484 (internal citations and quotation marks omitted).
Although not a perfect fit, because a fabrication-of-evidence claim does not require
Plaintiffs to prove that the prior criminal proceedings terminated in their favor, the
common-law tort of malicious prosecution is the most apt analogy. Both maliciousprosecution and fabrication-of-evidence claims seek recompense for the same injury—
unlawful post-legal-process pretrial detention—and permit recovery of the same
damages. Essentially, the claims are two sides of the same coin—that is, two theories of
liability for unlawful pretrial detention under the Fourth Amendment.
By contrast, the common-law tort of false imprisonment has little in common with
Plaintiffs’ fabrication-of-evidence claim. The nature of the injuries and the remedies
provided are entirely distinct. While an unlawful arrest has a definite duration—from the
initial seizure until the start of legal process—fabrication of evidence can occur and give
rise to a Fourth Amendment claim at any time—before arrest, after arrest but before legal
process, or during post-legal-process pretrial detention.14 Moreover, the wisdom behind
the accrual rule for false-imprisonment and wrongful-arrest claims—that the harm is
complete and the injury has ended—amounts to sheer folly in the fabrication-of-evidence
context. Therefore, Defendants’ attempt to fit Plaintiffs’ fabrication-of-evidence claim into
Wallace’s unlawful-arrest accrual rule is akin to shoving a square peg into a round hole.
14
Of course, fabrication of evidence could also occur during a trial, but that would give rise to a
Fourteenth Amendment claim.
30
Given the value and purposes of the constitutional right at issue—the right to be
free from unlawful pretrial detention based on the fabrication of evidence—the Court finds
that the common-law tort of malicious prosecution bears the closest resemblance to
Plaintiffs’ fabrication-of-evidence claim. Thus, that claim accrued—and the statute of
limitations began to run—when the criminal proceedings terminated in Plaintiffs’ favor—
on June 30, 2016 and August 22, 2016. Accordingly, Plaintiffs’ fabrication-of-evidence
claim, which was brought within one year of the termination of the underlying criminal
proceedings, is not time-barred and the KSP Defendants’ Motions to Dismiss (Doc. # 36
and 39) are denied with respect to Count Two.15
c.
Count Three: Supervisor Liability
For personal liability against a supervisor, “liability must be based on more than
respondeat superior.” Phillips v. Roane Cty., Tenn., 534 F.3d 531, 543 (6th Cir. 2008)
(quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). “Nor can liability of
supervisors be based solely on the right to control employees” or “simple awareness of
employees’ misconduct.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir.
2006) (internal citations omitted). Rather, “a supervisory official’s failure to supervise,
control, or train the offending individual is not actionable unless the supervisor ‘either
encouraged the specific incident or misconduct or in some other way directly participated
in it.’” Id. (quoting Shehee, 199 F.3d at 300). “At a minimum a plaintiff must show that
the official at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Shehee, 199 F.3d at 300. “A mere
failure to act will not suffice to establish supervisory liability.” Essex v. Cty. of Livingston,
15
The KSP Defendants have not challenged the sufficiency of the Complaint’s factual allegations
supporting Plaintiffs’ fabrication-of-evidence claim.
31
518 F. App’x 351, 355 (6th Cir. 2013) (citing Gregory, 444 F.3d at 751). Therefore,
personal liability against a supervisor “under § 1983 must be based on active
unconstitutional behavior.” 16 Shehee, 199 F.3d at 300.
The KSP Defendants argue that Plaintiffs’ supervisory-liability claim must be
dismissed for two reasons. First, the Defendants claim that the supervisory-liability claim
is barred by the statute of limitations. (Doc. # 39-1 at 8). Second, the Defendants argue
that Plaintiffs’ supervisory-liability claim fails as a matter of law because it is based on
Defendant Joseph’s “mere failure to act,” which does not support supervisory liability. Id.
at 14-15.
In response, the Plaintiffs argue that the Complaint states a plausible
supervisor-liability claim against Defendant Joseph because the Complaint alleges that
she “was personally involved in the underlying investigation and the misconduct that
ensued.” (Doc. # 55-1 at 59 n.12).
As for timeliness, the Defendants claim that the one-year statute of limitations
began to run when the unconstitutional supervision occurred, which allegedly “happened
at least three years prior to the filing of this suit.” (Doc. # 39-1 at 8). But that argument
is illogical. Supervisor-liability claims do not exist in a vacuum, separated from the
underlying subordinate’s actions that give rise to the claim. Instead, supervisor-liability
claims are derivative of—and dependent upon—the underlying unconstitutional actions
of the supervisors’ subordinates. Thus, it would make little sense for the statute of
limitations for a supervisor-liability claim to start running—and expire—before the statute
of limitations for the underlying malicious-prosecution or fabrication-of-evidence claims
16
In contrast, official-capacity or municipal-liability claims “do not require direct participation in or
encouragement of the specific acts; rather, these claims may be premised on a failure to act.” Essex, 518
F. App’x at 355 (citing Heyerman v. Cty. of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012)).
32
have even started to run. Especially given that a successful supervisor-liability claim
requires the supervisor’s active participation in the underlying constitutional violation.
Therefore, logic and common sense command that both the supervisor-liability claim and
the underlying § 1983 claim upon which it is based accrued at the same time.17 As such,
the Plaintiffs’ supervisor-liability claim accrued—and began to run—at the same time as
the malicious-prosecution and fabrication-of-evidence claims upon which it is based:
when the criminal proceedings terminated in the Plaintiffs’ favor.
In addition to being timely, Plaintiffs’ supervisor-liability claim is supported by
sufficient factual allegations. Although the Complaint alleges that Defendant Joseph
“failed to adequately train and supervise the individual Defendant Officers,” the Complaint
also alleges that she was “personally involved in the case against Plaintiffs” and knew or
should have known of her “subordinates’ unconstitutional actions and related
misconduct.” (Doc. # 1 at ¶¶ 154-155). Specifically, the Plaintiffs have alleged that
Defendant Joseph directly participated, encouraged, authorized, or knowingly acquiesced
in the alleged fabrication of evidence, coercion of witnesses, manipulation of evidence,
and concealment of material exculpatory evidence. Id. at ¶¶ 23-25, 30, 45-46, 50-53, 5658, 63-64, 70, 82-83, 88-89, 102-106, 108, 110-112, 118-125. Even though those specific
factual allegations are made against all of the “Defendant Officers,” that term includes
Defendant Joseph. Id. at ¶ 19. As the Court has previously explained, at the motion-todismiss stage, the Plaintiffs are not required to make detailed factual allegations
17
And other courts agree. See, e.g., McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011)
(applying the same accrual date to plaintiff’s failure-to-train and failure-to-supervise claims as the underlying
constitutional claims); Alvarado v. Hudak, No. 14-cv-9641, 2015 WL 9489912, at *2 (N.D. Ill. Dec. 30, 2015)
(borrowing accrual date of underlying constitutional claim for plaintiff’s supervisor-liability claim); Ellis v.
Lewis, No. 5:12-cv-3122, 2014 WL 4384036, at *6 (E.D.N.C. Sept. 3, 2014) (finding plaintiff’s supervisorliability claim “arose out of the same conduct as plaintiff’s Eighth Amendment claim” and determining the
claims have the same accrual date).
33
specifically linking Defendant Joseph to particular actions. See supra pp. 16-17. Instead,
Plaintiffs can broadly allege factual allegations against multiple defendants en masse.
And the Court is required to accept those factual allegations as true. Here, the Complaint
alleges more than a mere “failure to act” and sufficiently states a plausible § 1983
supervisor-liability claim. Accordingly, the KSP Defendants’ Motions to Dismiss (Doc. #
36 and 39) are denied with respect to Count Three.
d.
Count Four: Failure to Intervene
Although most failure-to-intervene claims involve allegations of excessive force,
the Sixth Circuit has extended the failure-to-intervene theory of liability beyond the
excessive-force context. See Smith v. Ross, 482 F.2d 33, 36-37 (6th Cir. 1973); see also
Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982); Johnson v. Vill. of Ottawa Hills, 5
F. App’x 390, 395 (6th Cir. 2001). Thus, a police officer can be liable under § 1983 when
he or she fails to intervene and prevent constitutional violations. To plausibly state a
failure-to-intervene claim, Plaintiffs must show that the Defendants “(1) observed or had
reason to know that [constitutional harm] would be or was [taking place], and (2) had both
the opportunity and the means to prevent the harm from occurring.” Sheffey v. City of
Covington, 564 F. App’x 783, 793 (6th Cir. 2014) (quoting Turner v. Scott, 119 F.3d 425,
429 (6th Cir. 1997)). This is true regardless of whether the individual violating the
plaintiff’s constitutional rights is a fellow officer or a supervisor. Smith v. Heath, 691 F.2d
220, 224-25 (6th Cir. 1982). Defendants cannot be held liable, however, unless there
was “a realistic opportunity to intervene and prevent harm.” Wells v. City of Dearborn
Heights, 538 F. App’x 631, 640 (6th Cir. 2013) (citing Ontha v. Rutherford Cty., Tenn.,
222 F. App’x 498, 507 (6th Cir. 2007)).
34
The KSP Defendants argue that Plaintiffs’ failure-to-intervene is time-barred by the
statute of limitations and fails as a matter of law. (Docs. # 36-2 at 11-12; 39-1 at 8, 1314). Specifically, the Defendants claim that Plaintiffs “cannot allege in one instance that
[a defendant] perpetrated a bad act and in another that he should have intervened in
stopping the bad act.” Id. (citing Walker v. City of Lebanon, No. 3:12-cv-855-JGH, 2013
WL 6185402 (W.D. Ky. Nov. 25, 2013)). Neither of those arguments warrant dismissal
of Plaintiffs’ fabrication-of-evidence claim.
For the very same reasons as Plaintiffs’ supervisor-liability claim, Plaintiffs’ failureto-intervene claim is timely. Logic and common sense command that the same accrual
date govern both the failure-to-intervene claim and the underlying § 1983 claims that the
Defendants are alleged to have failed to intervene and prevent.
Without further
elaboration, the Plaintiffs’ failure-to-intervene claim accrued—and began to run—at the
same time as the malicious-prosecution and fabrication-of-evidence claims upon which it
is based: when the criminal proceedings terminated in the Plaintiffs’ favor.
A review of the Complaint reveals that Plaintiffs have sufficiently stated a § 1983
failure-to-intervene claim. The Complaint alleges that all of the “Defendant Officers”
learned of evidence implicating other suspects, reached an agreement to protect those
other suspects and frame the Plaintiffs, coerced witnesses, fabricated statements,
manipulated evidence, withheld and destroyed material exculpatory evidence, and
concealed all of those actions from the prosecutor. Id. at ¶¶ 23-25, 30, 45-46, 50-53, 5658, 63-64, 70, 82-83, 88-89, 102-106, 108, 110-112, 118-125. Although some factual
allegations are directed at particular officers, other factual allegations are alleged against
the Defendant Officers en masse. Despite the Defendants’ argument to the contrary, the
35
Plaintiffs have not alleged a “nonsensical” claim that one of the Defendants “failed to
intervene against himself” or herself. Walker, 2013 WL 6185402, at * 6. Rather, Plaintiffs’
198-paragraph Complaint contains a litany of factual allegations that support their claim
that the Defendants observed or had reason to know that other Defendants were
committing constitutional violations—framing the Plaintiffs, coercing witnesses,
fabricating statements, manipulating evidence, withholding and destroying material
exculpatory evidence, and concealing those actions from the prosecutor—and had both
the opportunity and the means to prevent that harm from occurring, but failed to intervene.
Therefore, the KSP Defendants’ Motions to Dismiss (Doc. # 36 and 39) are denied with
respect to Count Four.
e.
Count Five: Conspiracy
“A civil conspiracy claim under § 1983 … lies when there is ‘an agreement between
two or more persons to injure another by unlawful action.’” Robertson, 753 F.3d at 622
(quoting Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). To prevail on such a
claim, the Plaintiffs must allege “‘that (1) a single plan existed, (2) the conspirators shared
a conspiratorial objective to deprive the plaintiffs of their constitutional rights, and (3) an
overt act was committed’ in furtherance of the conspiracy that caused the injury.” Id.
(quoting Revis, 489 F.3d at 290).
“It is well-settled that conspiracy claims must be pled with some degree of
specificity.” Id. (citing Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)). “[V]ague
and conclusory allegations unsupported by material facts will not be sufficient to state
such a claim under § 1983.” Id. However, “Plaintiffs are not required to prove an express
agreement among all the conspirators.’” Id. (quoting Hooks v. Hooks, 771 F.2d 935, 944
36
(6th Cir. 1985)). Nor do Plaintiffs need to allege or produce direct evidence of the
conspiracy; “circumstantial evidence may provide adequate proof.” Weberg v. Franks,
229 F.3d 514, 528 (6th Cir. 2000); Bazzi v. City of Dearborn, 658 F.3d 598, 606 (6th Cir.
2011).
The KSP Defendants seek dismissal of Plaintiffs’ conspiracy claim, arguing that
the claim is barred by the one-year statute of limitations and that the Complaint contains
no factual allegations that support a conspiracy claim. (Doc. # 36-2 at 7-8; 39-1 at 8-9).
In response, Plaintiffs argue that the claim is not time-barred and that the Complaint
satisfies the pleading standard, “especially given the fact that Defendants, not Plaintiffs,
are the ones with first-hand knowledge of the conspiracy.” (Doc. # 55-1 at 39).
The statute of limitations on a civil-rights conspiracy claim “generally begins to run
at the time of the last overt act in furtherance of the conspiracy.” Branham v. Micro
Comput. Analysts, Inc., No. 5:07-cv-305-JMH, 2008 WL 1868016, at *2 (E.D. Ky. Apr. 24,
2008); see also Tucker v. Heaton, No. 5:14-cv-183-TBR, 2015 WL 3935883, at *4 (W.D.
Ky. June 26, 2015) (the “limitations period commences only when the last overt act
performed in compliance with the objective of the conspiracy has been accomplished.”).
The Plaintiffs have alleged that the Defendants committed several overt acts in
furtherance of the conspiracy, including coercing witnesses, fabricating statements,
manipulating evidence, withholding and destroying exculpatory evidence, and concealing
their actions. (Doc. # 1 at ¶¶ 23-25, 30, 45-46, 50-53, 56-58, 63-64, 70, 82-83, 88-89,
102-106, 108, 110-112, 118-125). While the coercion, fabrication, and manipulation of
evidence are alleged to have last occurred on February 26, 2014, other overt acts—the
withholding of exculpatory evidence and concealment of the fabricated evidence—are
37
alleged to have occurred until the Plaintiffs’ criminal charges were dismissed. Id. at ¶¶
110-112. Therefore, the statute of limitations began to run on June 30, 2016 and August
22, 2016, and Plaintiffs’ § 1983 conspiracy claim is not time-barred.
The Plaintiffs have sufficiently stated a § 1983 conspiracy claim against the
Defendants. Although several of Plaintiffs’ allegations are conclusory and mimic the
elements of a § 1983 conspiracy claim (Doc. # 1 at ¶¶ 165-171), they are supported by
facts that allege that each of the Defendants coerced witnesses, fabricated statements,
manipulated evidence, withheld and destroyed material exculpatory evidence, and
concealed those actions from the prosecutor. Id. at ¶¶ 23-25, 30, 45-46, 50-53, 56-58,
63-64, 70, 82-83, 88-89, 102-106, 108, 110-112, 118-125.
The Court is wholly
unpersuaded by the Defendants’ attempt to focus only on the factual allegations directed
at particular officers and ignore all of the collective factual allegations against the
“Defendant Officers.” Again, at this stage of the proceedings, where the Court is required
to accept all of Plaintiffs’ factual allegations as true, those collective allegations are
sufficient. Accordingly, the Complaint states a § 1983 conspiracy claim against the
Defendants with sufficient specificity, and the KSP Defendants’ Motions to Dismiss (Doc.
# 36 and 39) are denied as to Count Five.
f.
Qualified Immunity
In their Motions to Dismiss, the KSP Defendants suggest that they are qualifiedly
immune from Plaintiffs’ § 1983 claims and include a sole citation to Harlow v. Fitzgerald,
457 U.S. 800 (1982). (Doc. # 39-1 at 14-15) (arguing that “[e]ven if the Court finds that
the Complaint state a sufficient cause of action against Defendants … they are
nonetheless entitled to qualified immunity,” stating the qualified-immunity rule, and then
38
moving on to address the merits of Plaintiffs’ § 1983 supervisor-liability claim). The
Defendants’ cursory argument fails to convince the Court that they are entitled to qualified
immunity.
“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow, 457 U.S. at 818). Qualified immunity
also balances two important interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Id.
There is a “two-tiered inquiry” for resolving claims of qualified immunity. Martin v.
City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013) (citing Austin v. Redford
Twp. Police Dep’t, 690 F.3d 490, 496 (6th Cir. 2012)). First, the Court must determine
whether “the facts alleged make out a violation of a constitutional right.”18 Id. If the plaintiff
has shown a violation of a constitutional right, then the Court must proceed to the second
step and “ask if the right at issue was ‘clearly established’ when the event occurred such
that a reasonable officer would have known that his conduct violated” the right. Id.
To survive a motion to dismiss on qualified-immunity grounds, both inquiries must
be resolved in the Plaintiffs’ favor. See Wesley, 779 F.3d at 489. The Plaintiff bears “the
burden of showing that” the Defendants are “not entitled to qualified immunity.” Johnson,
790 F.3d at 653; see also Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir.
2016). “At the pleading stage, this burden is carried by alleging facts plausibly making
18
The Court recognizes that the sequential procedure mandated in Saucier v. Katz, 533 U.S. 194
(2001) is no longer required. See Pearson, 555 U.S. at 227.
39
out a claim that the defendant’s conduct violated a constitutional right that was clearly
established law at the time, such that a reasonable officer would have known that his
conduct violated that right.” Id. (citing Wesley, 779 F.3d at 428).
“Because qualified immunity is ‘an immunity from suit rather than a mere defense
to liability … it is effectively lost if a case is erroneously permitted to go to trial.’” Pearson,
555 U.S. at 231 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Accordingly, the
Supreme Court has repeatedly “stressed the importance of resolving immunity questions
at the earliest possible stage in litigation.” Id. at 232 (citing Hunter, 502 U.S. at 227). The
Sixth Circuit, however, has clarified that only truly “insubstantial claims against
government officials should be resolved … prior to broad discovery,” Johnson, 790 F.3d
at 653, and has cautioned that “it is generally inappropriate for a district court to grant a
12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley, 779 F.3d at 433.
Thus, “[a]lthough an officer’s entitlement to qualified immunity is a threshold question to
be resolved at the earliest possible point, that point is usually summary judgment and not
dismissal under Rule 12.” Id. at 433-34 (internal citations and quotation marks omitted).
With respect to the second prong of the qualified-immunity analysis, the KSP
Defendants have not argued that the constitutional rights allegedly violated were not
clearly established at the time of the Defendant Officers’ actions. Nor could they. At the
time of Plaintiffs’ arrest and pretrial detention, they had a clearly established right to be
free from malicious prosecution and fabricated evidence under the Fourth Amendment.
Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir. 1999) (“[P]laintiffs sufficiently raised
claims that allege violations of their constitutional rights… Namely, that Satterfield and
other defendants wrongfully investigated, prosecuted, convicted, and incarcerated them;
40
that Satterfield fabricated evidence and manufactured probable cause; that they were
held in custody, despite a lack of probable cause to do so; and that Satterfield and others
conspired to maliciously prosecute and convict them.
Satterfield cannot seriously
contend that a reasonable police officer would not know that such actions were
inappropriate and performed in violation of an individual’s constitutional … rights.”).
Therefore, despite the lack of any developed argument, the Court assumes that
the Defendants’ qualified-immunity argument rests on the first prong—whether the facts
alleged make out a constitutional violation. As this Court has explained in detail above,
the Plaintiffs have sufficiently stated plausible claims for malicious prosecution, fabrication
of evidence, supervisor liability, failure to intervene, and conspiracy under § 1983.
Accordingly, the KSP Defendants are not entitled to qualified immunity.
3.
State-Law Claims
a.
Count Eight: Malicious Prosecution
To state a malicious-prosecution claim under Kentucky law, a plaintiff must
plausibly allege six elements: (1) the defendant initiated, continued, or procured a criminal
or civil judicial 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; (4) the proceeding
terminated in favor of the person against whom it was brought; (5) a lack of probable
cause for the proceeding; and (6) the plaintiff suffered damages as a result of the
proceeding. Martin v. O’Daniel, 507 S.W.3d 1, 11-12 (Ky. 2016). Because maliciousprosecution claims are disfavored under Kentucky law, “claimants alleging malicious
prosecution must strictly comply with each element of the tort.” Garcia v. Whitaker, 400
41
S.W.3d 270 (Ky. 2013).
As with the § 1983 malicious-prosecution claim, the KSP Defendants seek
dismissal of Plaintiffs’ state-law malicious-prosecution claim, arguing that the allegations
in the Complaint fail to satisfy the second, third, and fifth elements. (Doc. # 36-2 at 9; 391 at 10-12). And, for the exact same reasons, those arguments fail. See supra pp. 1420. The Plaintiffs have plausibly alleged that each Defendant Officer—albeit, without
specifically naming them—actively influenced or participated in the decision to prosecute
Plaintiffs by coercing witnesses, fabricating statements, manipulating evidence,
withholding and destroying exculpatory evidence, and concealing their actions. (Doc. #
1 at ¶¶ 23-25, 30, 45-46, 50-53, 56-58, 63-64, 70, 82-83, 88-89, 102-106, 108, 110-112,
118-125). The Plaintiffs also allege that there was a lack of probable cause for their
criminal prosecutions and that the charges against them were dismissed in a manner
indicative of their innocence. Id. at ¶¶ 105, 109, 112-113, 127, 141, 183. Therefore, the
Plaintiffs have sufficiently stated a state-law malicious-prosecution claim and the KSP
Defendants’ Motions to Dismiss (Doc. # 36 and 39) are denied as to Count Eight.
b.
Count Nine: Negligent Supervision
“Kentucky’s recognition of torts based upon negligent hiring, negligent training,
negligent supervision, and negligent retention is well established.” MV Tansp., Inc. v.
Allgeier, 433 S.W.3d 324, 336 n.10 (Ky. 2014). As for negligent supervision, “Kentucky
has adopted the Restatement (Second) of Agency § 213 which illustrates the
requirements for establishing a claim of negligent supervision.” Booker v. GTE.net LLC,
350 F.3d 515, 517 (6th Cir. 2003). “[A]n employer may be held liable for negligent
supervision only if he or she knew or had reason to know of the risk that the employment
42
created.” Id.
The KSP Defendants seek dismissal of Plaintiffs’ negligent-supervision claim
against Defendant Joseph, arguing that the claim is barred by the statute of limitations
and because Defendant Joseph is entitled to qualified immunity under Kentucky law.
(Doc. # 39-1 at 8, 15-18).
In response, the Plaintiffs contest the Defendants’
characterization of investigatory and supervisory acts as “discretionary” and further claim
that the Defendants’ “actions were performed in bad-faith.” (Doc. # 55-1 at 61).
Because the tort of negligent-supervision is derivative of—and dependent upon—
the underlying tort of the supervisors’ subordinates, the Plaintiffs’ negligent-supervision
claim accrued—and began to run—at the same time as the common-law maliciousprosecution claim upon which it is based: when the criminal proceedings terminated in
the Plaintiffs’ favor. See Grego v. Meijer, Inc., 187 F. Supp. 3d 689, 694 (W.D. Ky. 2001)
(borrowing the statute of limitations that governed the underlying tort). Therefore, the
negligent-supervision claim is not barred by the one-year statute of limitations.
Nor does state-law qualified official immunity shield Defendant Joseph from
Plaintiffs’ negligent-supervision claim. “Qualified official immunity applies to the negligent
performance by a public officer or employee of (1) discretionary acts or functions, i.e.,
those involving the exercise of discretion and judgment, or personal deliberation,
decision, and judgment; (2) in good faith; and (3) within the scope of the employee’s
authority.” Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001). “Conversely, an officer
or employee is afforded no immunity from tort liability for the negligent performance of a
ministerial act, i.e., one that requires only obedience to the orders of others, or when the
officers duty is absolute, certain, and imperative, involving merely execution of a specific
43
act arising from fixed and designated facts.” Id. at 522.
Put simply, whether qualified immunity is available depends “on the function
performed.” Id. at 521. “If the act was discretionary and within the scope of authority, the
burden shifts to the Plaintiffs ‘to establish by direct or circumstantial evidence that the
discretionary act was not performed in good faith.’” Nichols v. Bourbon Cty. Sheriff’s
Dep’t, 26 F. Supp. 3d 634, 642 (E.D. Ky. 2014) (quoting Yanero, 65 S.W.3d at 523).
Therefore, the Court must determine whether the alleged actions—or inactions—
taken by Defendant Joseph were “discretionary” or “ministerial.” “An act is not necessarily
‘discretionary’ just because the officer performing it has some discretion with respect to
the means or method to be employed.” Yanero, 65 S.W.3d at 521. Nor is a ministerial
act converted into a discretionary act solely because “a necessity may exist for the
ascertainment of … facts.” Id.
In addition to alleging that she was personally involved in the misconduct, the
Complaint alleges that Defendant Joseph “had a duty to properly train and supervise” the
other Defendant Officers and “provide adequate policies to prevent” the fabrication of
evidence, fabrication of witness statements, and concealment of material exculpatory
evidence, but that she was negligent in the “training, supervision, and discipline of the
Defendant Officers.” (Doc. # 1 at ¶¶ 188-190). Supervision and training are discretionary
functions. Nichols, 26 F. Supp. 3d at 642; Rowan Cty. v. Sloas, 201 S.W.3d 469, 480
(Ky. 2006); Doe v. Magoffin Cty. Fiscal Court, 174 F. App’x 962, 973 (6th Cir. 2006).
Thus, the Plaintiffs must allege that Defendant Joseph acted in bad faith in failing to train
or supervise the other Defendant Officers.
44
In Yanero, the Kentucky Supreme Court adopted the United States Supreme
Court’s definition of “bad faith,” which has “both an objective and subjective aspect”:
The objective element involves a presumptive knowledge of and respect for
“basic, unquestioned constitutional rights.” Wood v. Strickland, 420 U.S.
308, 322 (1975). The subjective component refers to “permissible
intentions.” Id. Characteristically, the Court has defined these elements by
identifying the circumstances in which qualified immunity would not be
available. Referring both to the objective and subjective elements, we have
held that qualified immunity would be defeated if an official “knew or
reasonably should have known that the action he took within his sphere of
official responsibility would violate the constitutional rights of the [plaintiff],
or if he took the action with the malicious intention to cause a deprivation of
constitutional rights or other injury....”
Yanero, 65 S.W.3d at 523 (citing Harlow, 457 U.S. at 815).
Therefore, “in the context of qualified official immunity, ‘bad faith’ can be predicated
on a violation of a constitutional, statutory, or other clearly established right which a
person in the public employee’s position presumptively would have known was afforded
to a person in the plaintiff’s position, i.e., objective unreasonableness; or if the officer or
employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt
motive.” Id.
The Plaintiffs claim that Defendant Joseph failed to “properly train, and supervise”
the other Defendant Officers and failed to “provide adequate policies to prevent” the
fabrication of evidence, coercion of witness statements, and concealment of exculpatory
evidence. (Doc. # 1 at ¶ 188). And the Plaintiffs further allege that the “grossly negligent
and negligent … training, supervision, and discipline of the Defendant Officers” resulted
in the deprivation and violation of Plaintiffs’ constitutional rights. Id. at ¶ 189.
At the pleading stage, where the Court must “construe the complaint in the light
most favorable to the [Plaintiffs], accept its allegations as true, and draw all reasonable
45
inferences in favor of the [Plaintiffs],” the Complaint contains sufficient factual allegations
to suggest bad faith. Wesley, 779 F.3d at 428. “If an officer ‘knew or reasonably should
have known that the action he took would violate a [clearly established] right of the
plaintiff,’ bad faith may be found to exist.” Sloas, 201 S.W.3d at 485-86 (quoting Yanero,
65 S.W.3d at 523). The failure to train and supervise investigating officers on the duty to
disclose exculpatory evidence and refrain from fabricating inculpatory evidence suggests
something more “than an honest mistake or oversight”; instead, it “indicate[s] some
‘likelihood of the injury,’ and ‘bad faith’ on the part of” Defendant Joseph. Id. at 485-86.
In the absence of training and supervision on proper investigative techniques,
Defendant Joseph knew, or should have known, that violations of constitutional rights
were likely. Id. Therefore, the Plaintiffs have sufficiently alleged bad faith on the part of
Defendant Joseph. Accordingly, Plaintiffs’ state-law negligent-supervision claim against
Defendant Joseph will not be dismissed and the KSP Defendants’ Motions to Dismiss
(Doc. # 36 and 39) are denied as to Count Nine.
c.
Count Ten: Intentional Infliction of Emotional Distress
Under Kentucky law, “[o]ne who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
See Restatement (Second) of Torts § 46. Outrageous conduct “is a deviation from all
reasonable bounds of decency and is utterly intolerable in a civilized community.” Craft
v. Rice, 671 S.W.2d 247, 250-51 (Ky. 1984).
Kentucky courts often characterize intentional infliction of emotional distress as a
“gap-filler” tort. Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky. App.
46
1993). “[W]here an actor’s conduct amounts to the commission of one of the traditional
torts such as assault, battery, or negligence for which recovery for emotional distress is
allowed, and the conduct was not intended only to cause extreme emotional distress in
the victim, the tort of outrage will not lie.” Id. Although intentional infliction of emotional
distress can also be a “stand-alone tort under the right facts,” the Kentucky Supreme
Court has held that “there can be only one recovery on a given set of facts.” Childers v.
Geile, 367 S.W.3d 576, 582 (Ky. 2012).
The KSP Defendants seek dismissal of Plaintiffs’ intentional-infliction-ofemotional-distress claim against them, arguing that the Complaint fails to allege that the
Defendants’ conduct was “intended solely to inflict emotional distress” and that Plaintiffs
are barred from pursuing damages for the tort of outrage because they can recover
emotional damages under a traditional theory of tort. (Docs. # 36-2 at 10-11; 39-1 at 1213).
In response, the Plaintiffs concede that they have failed to state a plausible
intentional-infliction-of-emotional-distress claim and voluntarily dismiss that claim against
the KSP Defendants. (Doc. # 55-1 at 8 n.1). Therefore, the KSP Defendants’ Motions to
Dismiss (Doc. # 36 and 39) are granted with respect to Count Ten.
III.
CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)
Plaintiffs Amanda Hoskins and Jonathan Taylor’s Motion to Strike (Doc. #
57) Defendants City of Barbourville and Mike Broughton’s Response to Co-Defendants’
Motion to Dismiss is granted;
47
(2)
Defendants City of Barbourville and Mike Broughton’s Response to Co-
Defendants’ Motion to Dismiss (Doc. # 44) is stricken from the record;
(3)
Plaintiffs Amanda Hoskins and Jonathan Taylor’s Motion to Strike (Doc. #
56) Defendants Knox County, John Pickard, and Derek Eubank’s Response to CoDefendants’ Motion to Dismiss is granted;
(4)
Defendants Knox County, John Pickard, and Derek Eubank’s Response to
Co-Defendants’ Motion to Dismiss (Doc. # 54) is stricken from the record; and
(5)
Defendants Jason York, Dallas Eubanks, and Jason Bunch’s Motion to
Dismiss (Doc. # 36) and Defendants Bryan Johnson, Mark Mefford, Kelly Farris, and
Jackie Pickrell Joseph’s Motion to Dismiss (Doc. # 39) are GRANTED as to Count Ten
(intentional infliction of emotional distress), and DENIED as to Count One (§ 1983
malicious prosecution) Count Two (§ 1983 fabrication of evidence), Count Three (§ 1983
supervisor liability), Count Four (§ 1983 failure to intervene), Count Five (§ 1983
conspiracy), Count Eight (state-law malicious prosecution), and Count Nine (state-law
negligent supervision).
This 15th day of March, 2018.
K:\DATA\Opinions\London\17-84 Hoskins MOO re MTDs.docx
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