Evans et al v. Kirk et al

Filing 49

OPINION AND ORDER: their motion to clarify and reconsider the order 42 is DENIED. Signed by Judge Karen K. Caldwell on 8/17/2018. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT PIKEVILLE
JOE ALLEN EVANS and
LINDA EVANS,

CIVIL ACTION NO. 7:17-32-KKC

Plaintiffs,
V.

OPINION AND ORDER

JOHN KIRK, et al.,
Defendants.

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This matter is before the Court on the plaintiffs’ motion asking the Court to
clarify and reconsider its order dated December 7, 2017, which partially granted the
motion to dismiss filed by defendant Martin County, Kentucky. For the following
reasons, the motion will be denied.
Plaintiffs Joe and Linda Evans own a pawn shop located on Main Street in
Inez, Kentucky. They allege that Martin County Deputy Sheriff Paul Witten
initiated a criminal action against them and then arrested them, knowing there was
no probable cause to believe they had committed any crime. They further allege that
Martin County Sheriff John Kirk and Deputy Witten obtained a search warrant for
their pawn shop knowing that information in the supporting affidavit was false and
misleading.
In their complaint, the Evanses assert a claim under 18 U.S.C. § 1983 that
Sheriff Kirk and Deputy Witten violated their Fourth Amendment rights. They also

assert that Sheriff Kirk and Deputy Witten violated the Kentucky Civil Rights Act,
KRS 344.010 et seq.
The Evanses also asserted these claims against Martin County, Kentucky
and the Martin County Sheriff’s Office (together, “the County”). As for the §1983
claim against the County, the Evanses asserted that it was liable for the alleged
constitutional violations of Sheriff Kirk and Deputy Witten under three theories:
because the County failed to train the sheriff and deputy; because the County failed
to supervise the sheriff and deputy; and because the County is vicariously liable for
the acts of the sheriff and deputy. The Evanses also asserted a state-law claim
against Martin County under the Kentucky Civil Rights Act (“KCRA”), KRS 344.010
et seq. (DE 1-1, complaint ¶¶ 3, 8, 13; DE 11, Response at 1.)
The County moved to dismiss the claims under Federal Rule of Civil
Procedure 12(b)(6). As to the § 1983 claim, the Court did not dismiss the failure-totrain claim against the County. The Court did, however, dismiss the claim that the
County failed to supervise Sheriff Kirk and Deputy Witten and their claim that the
County is vicariously liable for the sheriff and deputy’s actions. The Court also
dismissed the the KCRA claim against the County.
The County moved to dismiss any state tort claims against it. The Court did
not construe the complaint to assert any such claims but ruled that, to the extent
the complaint does assert such claims, those claims must also be dismissed.
In their motion to clarify and reconsider, the Evanses assert that the Court
dismissed all of their federal claims. As explained above, this is incorrect. First, the
December 7, 2017 order ruled only on claims asserted against the County. Second,
the order did not dismiss all of the federal claims against the County. The Court
explicitly did not dismiss the failure-to-train claim against the County.

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The Evanses state that the Court’s December 7, 2017 order did not mention
their “malicious prosecution claim under state law.” (DE 42, Mem. at 6.) The Court
does not construe the complaint to assert such a claim against the County. To the
extent it does, the Court made clear in its order that any state-law tort claims
against the County must be dismissed under the doctrine of sovereign immunity.
In their motion to dismiss and clarify, the Evanses also mention “a malicious
prosecution claim under federal law.” (DE 42, Mem. at 8.) With regard to this claim,
the Evanses ask the Court to “reconsider its order and hold that qualified immunity
is not available to Witten and Kirk.” (DE 42, Mem. at 9.) The Evanses also ask the
Court to “reconsider its order to hold that the Plaintiffs may proceed on a claim of
conspiracy against Kirk and Witten.” (DE 42, Mem. at 9.) The Court’s December 7,
2017 order did not address any claim against Witten or Kirk. It addressed only the
County’s motion to dismiss and the claims against the County.
Because the December 7, 2017 order was clear and because the Evanses have
raised no reason for the Court to reconsider that ruling, their motion to clarify and
reconsider the order (DE 42) is DENIED.
Dated August 17, 2018.

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