Ricchuite v. Johnson et al

Filing 90

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 3/8/2017 - Defendants' Motions for Summary Judgment (DN 67, 71, 72) are GRANTED, and Defendants' Motions to Supplement (DN 87, 88, 89) are DENIED AS MOOT. cc: Counsel(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14-CV-104-GNS-HBB

CARL WATSON RICCHUITE

PLAINTIFF

v.

JOEY JOHNSON, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendants’ Motions for Summary Judgment (DN
67, 71, 72), and Defendants’ Motions to Supplement (DN 87, 88, 89). This matter is ripe for
adjudication.

For the following reasons, Defendant’s Motions for Summary Judgment are

GRANTED, and the remaining motions are DENIED AS MOOT.
I.

BACKGROUND

In February 2012, a 1,000 gallon anhydrous ammonia tank was stolen from Crop
Production Services in Todd County, Kentucky. (Def.’s Mot. Summ. J. Ex. A, at 1-2, DN 72-2
[hereinafter KYIBRS Report I]); Def. Mot. Summ. J. Ex. B, at 4, DN 72-3 [hereinafter KYIBRS
Report II]). The Todd County Sheriff’s Department initially investigated the theft, but did not
identify a suspect. (KYIBRS Report II, at 4; Johnson Dep. 29:19-20, Feb. 1, 2016, DN 68). On
July 26, 2013, a Kentucky State Police (“KSP”) trooper arrested John David Williams on traffic
and drug charges. (KYIBRS Report II, at 4). Williams told the arresting officer that he had
useful information concerning the location of the stolen anhydrous tank. (KYIBRS Report II, at
4). Believing that the tank was in Christian County, KSP contacted Christian County Sheriff’s
Office Detective Jimmy Berghammer (“Berghammer”). (KYIBRS Report II, at 4). Discovering

that the tank was actually located in Todd County, Kentucky, Berghammer investigated the
property with Todd County Sheriff Joey Johnson (“Johnson”). (Johnson Dep. 31:18-23).
On August 2, 2012, Berghammer and Johnson discovered the tank on property owned by
Carl Watson Ricchuite (hereinafter “Ricchuite”) and his brother. (KYIBRS Report I, at 1-2;
Johnson Dep. 34:6-9). The stolen anhydrous tank was buried in the ground up to the valve guard
and covered with camouflage netting. (Johnson Dep. 34:6-9). Also found at the site were items
associated with manufacturing methamphetamine, including punctured starter fluid cans, coffee
filters, modified propane/anhydrous tanks, and evidence of an exploded shed. (KYIBRS Report
I, at 2). Berghammer and Johnson returned to the property on numerous occasions in an attempt
to identify who had been using the tank to manufacture methamphetamine and eventually
attached a motion-activated camera to a tree near the tank; however, no suspects were identified.
(Johnson Dep. 35:15-17; 36:7-13; Berghammer Dep. 41:4-18, Feb. 2, 2016, DN 73).
In December 2012, Johnson obtained information indicating that Ricchuite and Chris
Mallory intended to remove the tank after learning that law enforcement was conducting
surveillance in the area. (Johnson Dep. 45:24-25, 46:1).

On or about December 7, 2012,

Ricchuite and his brother authorized the Todd County Sheriff’s Department to search the farm,
and the anhydrous tank was excavated later that day. (Ricchuite Dep. 71:1-8, Jan. 12, 2015, DN
69; Johnson Dep. 49:20-22). After the excavation, Johnson turned the investigation over to Todd
County Deputy Sheriff Tracy White (“White”). Johnson believed White would be more skilled
in a drug investigation because White had been a member of the Pennyrile Narcotics Task Force
for several years. (Johnson Dep. 64:2-13). Thereafter, Johnson’s only actions pertaining to the
investigation consisted of meeting with Michael Darden (“Darden”) and asking him to talk to
White, allowing Berghammer to use Johnson’s office to conduct an interview with Paula Gilkey

2

regarding the tank, and asking a potential witness, Tommy Hudnall (“Hudnall”), to speak with
White. (Johnson Dep. 75:7-16, 77:2-18, 91:9-15). Johnson testified that he had no involvement
in the decision to charge Ricchuite. (Johnson Dep. 67:16-19).
Ricchuite claims that during the investigation Johnson was constantly telling others that
Ricchuite had been manufacturing meth. According to Ricchuite, Johnson told Nick Christian
(“Christian”) that Ricchuite was guilty and had bought off the Todd County Attorney, Harold
“Mac” Johns, and a judge. (Ricchuite Dep. 75:12-21). Allen Potter (“Potter”) and Smith
Chastine (“Chastine”) allegedly overheard Johnson at a restaurant say that Ricchuite was the
biggest drug dealer in the county, was a kingpin of organized crime, and had one million dollars
buried in his backyard. (Ricchuite Dep. 78:7-25-79:1-3). Johnson supposedly told Bruce Laster
(“Laster”) that Ricchuite was the biggest drug dealer in western Kentucky and sold drugs to
school children. (Ricchuite Dep. 85:15-86:8). Johnson also allegedly told White that Ricchuite
had bought off a juror. (Ricchuite Dep. 80:17-82:2). Further, according to Ricchuite, Johnson
told a police officer, Brian Atkinson (“Atkinson”), that even if he did not have enough evidence
against Ricchuite, he would make Ricchuite pay for a lawyer.

(Ricchuite Dep. 92:5-17).

Ricchuite has no firsthand knowledge of these statements imputed to Johnson, however, and no
other witness has been produced who heard any of the alleged utterances.
Ricchuite claims that both before and after the tank was removed from his property,
Johnson followed him almost every night for several months until just before the beginning of
Ricchuite’s trial in July 2013. (Ricchuite Dep. 115:1-10). Ricchuite testified that Johnson parked
across from Ricchuite’s house and videotaped him on at least one occasion. (Ricchuite Dep.
120:17-25). Ricchuite said that Johnson never came on his property while engaging in these
activities and testified that the “stalking” activity by Johnson ended before Ricchuite’s trial on

3

July 29, 2013. (Ricchuite Dep. 126:1-10). Ricchuite alleges that Johnson would follow him
daily, while Johnson claims he never followed Ricchuite on purpose and only remembers being
behind him one or two times. (Johnson Dep. 3:21-84:9).
On April 19, 2013, a Todd County Grand Jury indicted Ricchuite on two charges: (1)
Receiving Stolen Property, Anhydrous Ammonia with Intent to Manufacture Methamphetamine;
and (2) Complicity to Manufacture Methamphetamine, 1st Offense. (Def.’s Mot. Summ. J. Ex.
D, at 1-3, DN 72-5 [hereinafter Indictment No. 13-CR-00014]). Johnson and Berghammer had
no involvement with the grand jury proceedings, and neither testified to the grand jury.
(Berghammer Dep. 70:15-17; Johnson Dep. 82:2-10). In fact, Berghammer was not even aware
an indictment had been returned in the case until he received a subpoena to testify at trial.
(Berghammer Dep. 70:18-22).

Berghammer’s only contact with the county attorney who

presented the case to the grand jury was to turn over his investigative reports. (Berghammer
Dep. 69:16-26, 70:15-17).

Ricchuite was arrested on April 20, 2013, and Ricchuite was

ultimately acquitted of both charges on July 29, 2013. (Def.’s Mot. Summ. J. Ex. E, at 1, DN 726 [hereinafter Uniform Citation]; Def.’s Mot. Summ. J. Ex. F, at 1, DN 72-7 [hereinafter Docket
Sheet]).
KSP Senior Trooper Curtis Crick (“Crick”) began covering Todd County as part of his
territory for the KSP on February 1, 2014, roughly six months after Ricchuite’s meth trial
concluded. (Crick Dep. 11:4-5, Feb. 4, 2016, DN 70). At 10:47 p.m. on May 6, 2014, Crick
noticed a pickup truck leaving from a driveway in an area known for drug related activity.
(Crick Dep. 28:9-17; Def.’s Mot. Summ. J. Ex. 2, at ¶ 4, DN 71-7 [hereinafter Crick Aff.]). He
neither recognized the vehicle nor its driver, Ricchuite. (Crick Aff. ¶ 5). Moreover, the truck
was not Ricchuite’s normal vehicle, and Ricchuite testified that he did not drive it very often.

4

(Def.’s Mot. Summ. J. Ex. 3, at 138, DN 71-8 [hereinafter Tr. of Criminal DUI Trial, July 21,
2014]). Crick followed the vehicle until the driver failed to give a proper turn signal and then
pulled the vehicle over.1 (Crick Aff. ¶ 6).
During the traffic stop, Crick noticed that Ricchuite was jittery, rubbed his fingers
together, and smacked his gums. (KYIBRS Report III, at 3). While Crick acknowledged that
most motorists he stops appear nervous, Ricchuite’s actions exceeded the norm, prompting Crick
to investigate further. (Crick Aff. ¶¶ 7-8). Crick told Ricchuite that he suspected he was under
the influence of drugs and was going to give him a few tests. (KYIBRS Report III at 3).
Ricchuite exhibited several behaviors suggestive of amphetamine or drug use, as noted by Crick
during the stop: Ricchuite was highly nervous and jittery; he was smacking his gums, grinding
his teeth, and frantically rubbing his hands together; he was sweating profusely, complaining of
“cotton mouth”; and his answers to Crick’s questions were incoherent. (Crick Aff. ¶9). Crick
suspected that Ricchuite might be driving under the influence of drugs, so he administered three
field sobriety tests. (Crick Aff. ¶ 9). Ricchuite failed all three tests. (Ricchuite Dep. 207:22-25).
Ricchuite protested to Crick that the One-Leg-Stand test was impossible and that no one could
do it. (Ricchuite Dep. 214:4-13; Def.’s Mot. Summ. J. Ex. 4, at 4, DN 71-10 [hereinafter
Uniform Citation]). Additionally, Ricchuite claims that the tests were given on a grade to make
the tests purposefully more difficult to pass. (Ricchuite Dep. 207:19-21). After the failed
sobriety tests, Crick arrested Ricchuite on three misdemeanor charges of driving under the
influence, failure to produce insurance, and failure to activate a turn signal. (KYIBRS Report
III, at 1).
1

While he could not recall during his DUI trial whether he activated his turn signal 100 feet
before the intersection, Ricchuite testified during discovery that he activated his turn signal a
distance of 300-400 feet before the intersection. (Tr. of Criminal DUI Trial 139-40; Ricchuite
Dep. 204:18-20).
5

After the arrest, Ricchuite continued to exhibit signs of being under the influence. (Crick
Aff. ¶11). Ricchuite cursed at Crick in the cruiser, complained of a dry mouth, repeatedly asked
for a drink, and continued to smack his gums and rub his fingers together. (Crick Aff. ¶11).
Crick took Ricchuite to Logan Memorial Hospital where Ricchuite refused to submit to a blood
test. (Ricchuite Dep. 215:6-14). Crick then took Ricchuite to the Todd County Detention Center
in Elkton, Kentucky, where he was housed for 6-7 hours before being released. (Crick Aff. ¶12).
On July 21, 2014, Ricchuite’s DUI case went to trial before a Todd County Jury. (Def.
Mot. for Summ. J. Ex. 3, at 1, DN 71-8 [hereinafter Tr. of Criminal DUI Trial]). The case had
previously been screened for probable cause by Assistant Todd County Attorney, Mark Collins
(“Collins”). (Def. Mot. for Summ. J. Ex. 6, at ¶ 3, DN 71-11 [hereinafter Mark Collins Aff.]).
At trial, Ricchuite was acquitted of the misdemeanor DUI charge.
Eight days post-verdict, Ricchuite filed this civil action in the Todd Circuit Court against
Defendants Todd County, Johnson, Berghammer, and Crick (collectively “Defendants”).
(Notice of Removal, Ex. 1, DN 1-1 [hereinafter State Ct. Compl.]). The individual Defendants
were sued in both their individual and official capacities.

Pursuant to 28 U.S.C. § 1441,

Defendants removed this action based on federal question jurisdiction. (State Ct. Compl. 1). On
October 20, 2014, the Court dismissed all state law claims against Todd County and Johnson in
his official capacity, but not against Johnson individually. (Order Granting in Part Def.’s Mot.
Dismiss, DN 11). On March 31, 2016, all Defendants moved for summary judgment, which
motions are now ripe. (Def.’s Mot. Summ. J. DN 71 [hereinafter Johnson Mot.]; Def.’s Mot. for
Summ. J. DN 72 [hereinafter Berghammer Mot.]; Def.’s Mot. for Summ. J. DN 73 [hereinafter
Crick Mot.]).

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II.

JURISDICTION

This Court has “original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.”

28 U.S.C. § 1331.

Additionally, this Court has

“supplemental jurisdiction over all other claims that are so related to claims in the action within
[the Court’s] original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
III.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue of
material fact when “looking to the record as a whole, a reasonable mind could come to only one
conclusion . . . .” Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 186 (6th Cir.
1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).

“When moving for

summary judgment the movant has the initial burden of showing the absence of a genuine
dispute as to a material fact.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504,
520 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The burden
then shifts to the nonmovant, who must put forth enough evidence to show that there exists ‘a
genuine issue for trial.’” Id. (citing Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004)).
While the Court views the evidence in the light most favorable to the non-moving party,
the non-moving party must do more than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (citations omitted). Rather, the non-moving party must present specific facts proving
that a genuine factual issue exists by “citing to particular parts of the materials in the record” or

7

by “showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .”
Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
IV.
A.

DISCUSSION

Federal Law Claims
1.

Violation of Civil Rights2

In Count Five of the Complaint, Ricchuite vaguely alleges “civil rights” claims based on
“[t]he actions and conduct of Defendants depriv[ing] Plaintiff of his right to due process and his
right to equal protection of the laws, among other rights, guaranteed by the Constitutions of the
United States and Kentucky.” (St. Ct. Compl. ¶ 40). Presumably, Ricchuite is asserting a Fifth
or Fourteenth Amendment claim.
The Fifth Amendment to the United States Constitution guarantees that no citizen shall
be deprived of life, liberty, or property without due process of law. U.S. Const. amend. V.
Defendants, who indisputably were state actors, cannot be liable for a claim under the Fifth
2

Ricchuite has arguably abandoned this claim, as well as many of his claims discussed below,
for failing to respond and further articulate his argument in support of this claim in opposition to
Defendants’ motions for summary judgment. Ricchuite never mentions this claim in his
arguments, beyond the mere conclusory allegations in his complaint. See Resolution Tr. Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[T]he onus is upon the parties to formulate
arguments; grounds alleged in the complaint but not relied upon in summary judgment are
deemed abandoned.” (citation omitted)); see also Rumble v. Convergys, No. C-1-07-979, 2010
WL 812775, at *13 (S.D. Ohio Mar. 9, 2010) (“Although Plaintiff’s complaint contained claims
of age discrimination in violation of the ADEA and Ohio Rev. Code § 4112 [], her memorandum
in opposition is completely silent with respect to these claims. Accordingly, because Plaintiff
has not presented evidence or argument to support her claims of age discrimination, Count II
should be dismissed as a matter of law.” (citation omitted)). Although raised in the Complaint,
Ricchuite also fails to raise any argument for many of his other claims in opposition to summary
judgment, including claims for state constitutional violations, invasion of privacy, civil
conspiracy, defamation, and outrage. Regardless, in an abundance of caution, the Court will
consider these claims on their merits.
8

Amendment because that provision restricts only the powers of the federal government and does
not apply to state action. Wynn v. Morgan, 861 F. Supp. 622 (E.D. Tenn. 1994). The Fourteenth
Amendment to the United States Constitution extends the Fifth Amendment concept of due
process to the states.

See U.S. Const. amend. XIV, § 1.

It is unclear precisely what

constitutional claims Ricchuite asserts under the Fourteenth Amendment, so the court will
address each possible theory of liability.
a.

Procedural Due Process

The procedural component of the Due Process Clause requires a state to formulate
procedural safeguards and adequate post-deprivation process sufficient to satisfy the dictates of
fundamental fairness and the Due Process Clause. Zinermon v. Burch, 494 U.S. 113, 148 (1990).
Generally, procedural due process violations fall into two categories:

(1) established state

procedures which violate due process rights; and (2) random and unauthorized acts of state
employees. Mertik v. Blalock, 983 F.2d 1353, 1365 (6th Cir. 1993).
Ricchuite has not demonstrated that he was deprived of notice or an opportunity to be
heard. He was represented by counsel at all stages of his criminal trials and he has not identified
any deficiency in the process that would support any claim that he was denied due process by
established procedures, so in the instant case he is assumingly complaining of random and
unauthorized acts of state employees. “In such a case, the due process inquiry is limited to the
adequacy of post-deprivation remedies provided by the state, and the burden is on the plaintiff to
demonstrate the inadequacy of those remedies.” Mertik, 983 F.2d at 1364 (citing Zinermon, 494
U.S. at 128-30). The Supreme Court has likewise made it clear that a random and unauthorized
deprivation of due process cannot be challenged under 42 U.S.C. § 1983 so long as the state
provides an adequate post-deprivation remedy. Parratt v. Taylor, 451 U.S. 527, 541 (1981),

9

overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Ingraham v. Wright,
430 U.S. 651, 701 (1977).
Clearly a remedy was provided in the instant case, as Ricchuite was provided a day in
court and acquitted of his charges. Additionally, appropriate post-deprivation remedies may also
take the form of the right to file a civil action asserting tort claims. See Parratt, 451 U.S. at 544.
Kentucky law provides tort remedies, as Ricchuite asserts them here in the Complaint. Given the
adequacy of the state remedies available to him, Ricchuite’s attempt to invoke 42 U.S.C. § 1983
in the instant case must fail.
b.

Substantive Due Process

Substantive due process is “[t]he doctrine that governmental deprivations of life, liberty
or property are subject to limitations regardless of the adequacy of the procedures
employed . . . .” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (internal
quotation marks omitted). “It protects a narrow class of interests, including those enumerated in
the Constitution, those so rooted in the traditions of the people as to be ranked fundamental, and
the interest in freedom from government actions that ‘shock the conscience.’” Range v. Douglas,
763 F.3d 573, 588 (6th Cir. 2014) (quoting Bell v. Ohio State Univ., 351 F.3d 240, 249-50 (6th
Cir. 2003)). In Braley v. City of Pontiac, 906 F.2d 220 (6th Cir. 1990), the Sixth Circuit advised
discreet and judicious application of the “shock the conscience” standard in relation to police
conduct, stating:
Applying the “shock the conscience” test in an area other than excessive force . . .
is problematic. Not only are there fewer instances in the case law, but the “shock
the conscience” test is not as uniformly applied to cases where excessive force or
physical brutality is not the basis of the claim. The “shock the conscience”
standard, fuzzy under the best of circumstances, becomes fuzzy beyond a court’s
power to interpret objectively where there is a dearth of previous decisions on
which to base the standard. We doubt the utility of such a standard outside the

10

realm of physical abuse, an area in which the consciences of judges are shocked
with some degree of uniformity.
Id. at 226. Thus, the Sixth Circuit has been reluctant to find any police conduct to shock the
conscience absent allegations of physical abuse. Id.; Mansfield Apartment Owners Ass’n v. City
of Mansfield, 988 F.2d 1469, 1478 (6th Cir. 1993).
In this case, Ricchuite has not alleged that any actions of Defendants that would shock
the conscience, as there is no claim of excessive force. Thus, Ricchuite’s substantive due
process claim must fail because he has presented no evidence of any conduct by Defendants that
could shock the conscience.
c.

Equal Protection

The Fourteenth Amendment, with respect to equal protection, provides that “[n]o state
shall . . . deny any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The equal protection clause requires public entities to treat similarly situated
individuals in a similar manner. Buchanan v. City of Bolivar, 99 F.3d 1352, 1360 (6th Cir.
1996). To state a claim under the equal protection clause, a plaintiff bears the burden of proving
“a state actor intentionally discriminated against the plaintiff because of membership in a
protected class.” Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990) (internal
quotation marks omitted) (citation omitted); see also Estate of Smithers ex rel. Norris v. City of
Flint, 602 F.3d 758, 765 (6th Cir. 2010) (citation omitted).
Ricchuite has provided no proof that he has been treated differently than others similarly
situated. He is a white male and is not a member of a suspect or protected class, and there is no
evidence that Ricchuite was discriminated against on the basis of his race, religion, national
origin, etc. Therefore, Ricchuite’s equal protection claim must fail.

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2.

Invasion of Privacy Claim

Ricchuite asserts a claim against Defendants for “an invasion of [his] right to privacy, as
guaranteed by the . . . United States Constitution.” (St. Ct. Compl. ¶ 23). In his Complaint, he
explains the factual basis to his right to privacy claim, asserting that Johnson “needlessly
followed [him], observed [him], made video recordings of [him], told others harmful stories
about [him] that were not true, and orchestrated and caused [him] to be charged with crimes for
which he was not guilty . . . .” (St. Ct. Compl. ¶ 12).
Even assuming that this factual basis could support a right to privacy claim under the
federal constitution, Ricchuite’s claim is time-barred.

Claims for federal constitutional

violations are brought through 42 U.S.C. § 1983. See Lambert v. Hartman, 517 F.3d 433, 440
(6th Cir. 2008). As this Court explained in Tucker v. Heaton, No. 5:14-CV-00183-TBR-LLK,
2016 WL 7007527 (Nov. 29, 2016), “[s]ince § 1983 does not include a statute of limitations of
its own, it borrows ‘the statute of limitations governing personal injury actions from the state
where the § 1983 action was brought.’ In Kentucky, actions of that sort must be ‘commenced’
within one year ‘after the cause of action accrue[s].’

Ky. Rev. Stat. § 413.140(1)(a).

Accordingly, § 1983 actions in Kentucky are subject to a one-year limitations period.” Id. at *6
(internal citations omitted) (citation omitted).
All of the actions complained of by Ricchuite are outside of this one-year statute of
limitations period. The trial for the methamphetamine case was held on July 29, 2013. (Docket
Sheet 1). Ricchuite’s invasion of privacy claims all relate to the investigation of state charges;
thus, the allegedly offensive actions must have occurred prior to Ricchuite’s trial—i.e., on or

12

before July 28, 2013.3 Therefore, the actions accrued more than a year before this action was
filed on July 29, 2014. (St. Ct. Compl.). Thus, the claim is time barred and summary judgment
is appropriate.
B.

State Law Claims
1.

Malicious Prosecution

“In spite of the general disfavor, [Kentucky] case law recognizes that malicious
prosecution claims are necessary to deter persons from procuring the arrest of another
maliciously and without probable cause.”4 Hunt v. Lawson, No. 2007-SC-000438-DG, 2008 WL
4691052, at *5 (Ky. Oct. 23, 2008) (internal quotation marks omitted) (quoting Davis v. Brady,
291 S.W. 412, 413 (Ky. 1927)). Due to this general disfavor, the complaining party “must
strictly comply with the prerequisites of maintaining an action for malicious prosecution.”
Prewitt v. Sexton, 777 S.W.2d 891, 895 (Ky. 1989) (internal quotation marks omitted) (citation
omitted). A recent Kentucky Supreme Court decision articulated the revised elements of a
malicious prosecution claim and adopted the malicious prosecution elements from Sections 653
and 674 of the Restatement (Second) of Torts, as follows:
1)

2)

the defendant initiated, continued, or procured a criminal or civil judicial
proceeding, or an administrative disciplinary proceeding against the
plaintiff;
the defendant acted without probable cause;

3

As noted above, Ricchuite conceded that Johnson’s stalking activity occurred before the trial.
(Ricchuite Dep. 126:1-10).
4
In the Complaint, Ricchuite does not specify if his malicious prosecution claim is brought
under Kentucky or federal law. However, in opposition to Defendants’ summary judgment
motions, Ricchuite only cited to Kentucky law in support of his claim. Thus, the Court presumes
that the malicious prosecution claim is brought under Kentucky law. Nevertheless, if Ricchuite’s
claim was construed under federal law, it would fail for the same reason, as absence of probable
cause is an element of a federal malicious prosecution claim. See Sykes v. Anderson, 625 F.3d
294, 308 (6th Cir. 2010) (holding that in order to prove a malicious prosecution claim under
federal law, “the plaintiff must show that there was a lack of probable cause for the criminal
prosecution.” (citing Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007))).
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3)

4)
5)

the defendant acted with malice, which, in the criminal context, means
seeking to achieve a purpose other than bringing an offender to justice;
and in the civil context, means seeking to achieve a purpose other than the
proper adjudication of the claim upon which the underlying proceeding
was based;
the proceeding, except in ex parte civil actions, terminated in favor of the
person against whom it was brought; and
the plaintiff suffered damages as a result of the proceeding.

Martin v. O’Daniel, No. 2014-SC-000373-DG, 2016 WL 5244518, at *8 (Ky. Sept. 22, 2016).
Both sides concede that there were proceedings instituted against Ricchuite and the proceedings
were terminated in his favor.

The elements at issue are whether Defendants

“initiated,

continued, or procured” a criminal judicial proceeding against Ricchuite; lacked probable cause;
and acted with malice.

The Court holds that Defendants acted with probable cause, thus

Ricchuite cannot prove the second element of his malicious prosecution claim and his claim fails
as a matter of law.
A plaintiff must make a clear showing that the defendant acted without probable cause.
Reid v. True, 302 S.W.2d 846, 847-48 (Ky. 1957). Probable cause is defined as “such ground as
would induce a man of ordinary prudence to believe that the person prosecuted had committed
the crime charged.” Louisville & Nashville R.R. Co. v. Sharp, 140 S.W.2d 383, 385 (Ky. 1940).
“The burden in a malicious prosecution action is on the plaintiff to prove lack of probable cause,
and probable cause issue is a question for the court to decide.” Collins v. Williams, 10 S.W.3d
493, 496 (Ky. App. 1999) (citing Prewitt, 777 S.W.2d at 894-95).
a.

Probable Cause for the Complicity to Manufacture
Methamphetamine Charge

Under Kentucky law, “[w]hen a grand jury, upon other testimony than that of the
prosecutor alone, find an indictment to be a true bill, the presumption is prima facie that, as they,
on their oaths, have said that the person indicted is guilty, the prosecutor had reasonable grounds

14

for the prosecution.” Davidson v. Castner-Knott Dry Goods Co., 202 S.W.3d 597, 607 (Ky.
App. 2006) (quoting Conder v. Morrison, 121 S.W.2d 930, 931 (Ky. 1939)). “Courts have
applied this same [principle] against police officer defendants.” Powell v. Cornett, No. 3:11-cv00628-H, 2013 WL 1703746, at *4 (W.D. Ky. Apr. 19, 2013) (citing Davis v. McKinney, 422 F.
App’x 442, 443 (6th Cir. 2011)).

Consequently, while a grand jury indictment raises a

presumption of probable cause, this presumption can be rebutted by the plaintiff. Conder, 121
S.W.2d at 931-32. To overcome this presumption, a plaintiff must allege a “defect in the
probable cause or warrant or indictment or subsequent prosecution” or “suggest[] an improper
motive or [] improper acts” on the part of the defendants. Wheeler v. Kirkland, No. 07-CV-336JMH, 2008 WL 440287, at *9 (E.D. Ky. Feb. 13, 2008) (discussing the claim of malicious
prosecution under Kentucky law).
It is undisputed that there was an indictment by the grand jury. (Indictment No. 12-CR00014).5 Consequently, there is a presumption that Ricchuite’s charges were based on probable
cause. In an effort to rebut the presumption of probable cause, Ricchuite argues that the
presumption is defeated by Defendants’ deposition testimony, and also by Defendants alleged
efforts to disparage Ricchuite. (Pl.’s Resp. to Def.’s Mot. for Summ. J., 13, DN 81).
First, Ricchuite spends much time arguing that probable cause does not exist because
Johnson and Berghammer admitted such. (Pl.’s Resp. to Johnson. Mot. 16). Despite Ricchuite’s
contentions, both Johnson and Berghammer testified they were privy to only limited
information—not that probable cause did not exist. Berghammer testified as follows
Q:
Were you aware of what you believed to be evidence sufficient to link
[Ricchuite] to the tank?
5

Ricchuite was indicted by the grand jury on two counts: KRS 514.110 (Receiving Stolen
Property, Anhydrous Ammonia with Intent to Manufacture Methamphetamine) and KRS
218A.1432 (Complicity to Manufacture of Methamphetamine). (Indictment No. 12-CR-00014).
15

A:
No, I don’t know what other additional—I’d have to say no to that.
Q:
Stuff that you knew, stuff that you were involved in, did you know of
evidence sufficient to link [Ricchuite] to that anhydrous tank whereby he could be
charged criminally?
A:
My part of it, no. I mean it was still an open investigation when I left
out of it.
Q:
Was any evidence later related to you by Sheriff Johnson or Tracy White
connecting [Ricchuite] to that tank?
A:
No.
...
Q:
You testified you were not aware of evidence that would sufficiently link
[Ricchuite] to the charges against him, correct? I believe that’s what you said
earlier.
A:
Yes, ma’am.
Q:
Okay. But you were not involved in every aspect of the investigation,
were you?
A:
No, sir.
Q:
All right. And because you were not involved with the grand jury
proceedings, you’re not aware of all evidence that was presented to the grand
jury, are you?
A:
No, ma’am.
(Berghammer Dep. 70:1-14; 85:4-16 (emphasis added)).
Berghammer stated that he did not believe there was sufficient evidence to charge
Ricchuite when the tank was unearthed on December 7, 2012, but the grand jury did not indict
Ricchuite until April 19, 2013. Thus, four months of investigation occurred after Berghammer’s
involvement in the investigation ended. Because Berghammer did not participate in the grand
jury proceedings, he could not have known all of the evidence that was presented.
Likewise, Ricchuite claims that Johnson admitted that there was no probable cause for
the state charges. He does this without citation to the record and does not explain when and
where these statements were made.

What Ricchuite may have been referring to was the

following testimony by Johnson:
Q:
Were you ever able to identify any of the people involved in the
manufacturing process from which you found evidence?
A:
As far as on the scene, no; just from the company Mr. Watson Ricchuite
had, we figured they were involved.
16

(Johnson Dep. 59:1-6 (emphasis added)).
Johnson did not admit there was insufficient evidence for probable cause. Instead, he
testified he was not able to identify the people manufacturing methamphetamine on the scene,
but like Berghammer, Johnson’s work on the investigation ended months before the grand jury
returned an indictment. Additionally, it was not the identity of people on the scene, but the fact
that a 1,000 gallon anhydrous ammonia tank was found buried on the Ricchuite’s property that
supported probable cause. Thus, neither Johnson nor Berghammer’s testimony negates a finding
of probable cause by the grand jury as Ricchuite suggests.
Ricchuite next argues that the alleged disparaging remarks made by Berghammer and
Johnson rebut probable cause because they influenced the community to think that Ricchuite had
committed the crime. (Pl.’s Resp. to Johnson Mot. 16). However, as discussed below, all of
these supposed statements are inadmissible hearsay as Ricchuite has no first-hand knowledge of
these statements, and he has not provided any witness who does.

See infra Section B.5.

Moreover, Ricchuite has produced no evidence as to how the grand jury was tainted by the
supposed disparaging statements when it returned the indictment.
What is most detrimental to Ricchuite’s arguments is that he was indicted by a grand jury
before which Johnson and Berghammer did not even testify. (Berghammer Dep. 70:15-17;
Johnson Dep. 82:2-10).

Therefore, it is unclear how Johnson or Berghammer could have

improperly influenced the grand jury in its determination of probable cause. Therefore, because
Ricchuite has not offered evidence to rebut the grand jury’s finding of probable cause, his
malicious prosecution claim asserted against Johnson and Berghammer fails as a matter of law.

17

b.

Probable Cause for the DUI Charge

Construing the facts in favor of Ricchuite, no genuine dispute remains that probable
cause existed regarding the charge against Ricchuite for operating a motor vehicle under the
influence. “A person shall not operate or be in physical control of a motor vehicle anywhere in
this state . . . [w]hile under the combined influence of alcohol and any other substance which
impairs one’s driving ability . . . .” KRS 189A.010(1)(e). Although Ricchuite disputes some of
the facts, even under Ricchuite’s view of the facts, a reasonable officer would have perceived
probable cause for this charge.
Crick based his conclusion that Ricchuite was driving under the influence of an
intoxicant other than alcohol based upon: (1) Ricchuite’s highly nervous and agitated state and
jittery demeanor; (2) he was smacking his gum, grinding his teeth, and rubbing his fingers
together frantically; (3) Ricchuite complained of a dry mouth and excessive thirst; (4) he was
sweating profusely; (7) he gave incoherent answers to questions; and (8) he failed three sobriety
tests. (Crick Aff. ¶ 9; KYIBRS Report III, at 3). Ricchuite admits that he “could have been”
acting in this manner, however, he blames his demeanor on dental problems, a vitamin
deficiency and nerve problems. (Ricchuite Dep. 209:2-211:16). Regardless, even if Ricchuite’s
behavior was related to health issues, an officer observing this behavior could certainly believe
that such a person was under the influence of a stimulant. See Hunt, 2008 WL 4691052, at *5
(holding that officer’s observations of a strong odor of alcohol, signs of impairment, and failure
of a verbal field sobriety test were enough to establish probable cause for a driving under the
influence of alcohol charge under Kentucky law); see also United States v. Jones, 641 F.2d 425,
429 (6th Cir. 1981), overruled on other grounds by Steagald v. United States, 451 U.S. 204

18

(1981) (stating that probable cause does not require “proof beyond a reasonable doubt,” but
simply evidence to establish that it is “more likely than not” that a crime has been committed).
Furthermore, it is notable that probable cause was also found by the prosecuting attorney
(Collins) and the trial judge. According to Collins, once an arrest is made, he performs a
screening function to determine if probable cause existed in the case. (Collins Aff. ¶ 2). Collins
examined the facts and evidence in the case and found that probable cause existed for the DUI
arrest of Ricchuite. (Collins Aff. ¶ 3). Additionally, the trial judge denied Ricchuite’s directed
verdict for acquittal during the DUI trial on two occasions. (Berghammer Mot., Ex.71 at 3,
DN71-12 [Tr. of Bench Conferences at Crim. Trial]; Ex. 8, DN 71-13 [hereinafter Criminal DUI
Trial Video, 14-T-00369 10:55 a.m.]).
Considering the undisputed facts, this Court finds that the facts “would induce a man of
ordinary prudence to believe that the person prosecuted had committed the crime charged.”
Louisville & N.R. Co., 140 S.W.2d at 385. Thus, the Court finds that probable cause was present
as a matter of law, and Crick’s motion for summary judgment on the malicious prosecution claim
will be granted.
2.

Civil Conspiracy

Under Kentucky law, to establish a civil conspiracy claim a plaintiff must allege “a
corrupt or unlawful combination or agreement between two or more persons who do by concert
of action an unlawful act, or to do a lawful act by unlawful means.” Peoples Bank of N. Ky., Inc.
v. Crowe Chizek & Co., 277 S.W.3d 255, 261 (Ky. App. 2008) (internal quotation marks
omitted) (quoting Smith v. Bd. of Educ. of Ludlow, 94 S.W.2d 231, 325 (Ky. 1936)).6 A

Much like Ricchuite’s malicious prosecution claim, the Complaint does not indicate whether
the conspiracy claim is brought under state of federal law. Ricchuite’s responses to Defendant’s
motions for summary judgment cite only Kentucky law, so the Court will presume that his civil
6

19

conspiracy is inherently difficult to prove. Notwithstanding that difficulty, the burden is on the
party alleging that the conspiracy to establish each and every element of the claim in order to
prevail. James v. Wilson, 95 S.W.3d 875, 896 (Ky. App. 2002) (citing Krauss Wills Co. v.
Publishers Printing Co., 390 S.W.2d 132, 134 (Ky. 1965)). The tort of civil conspiracy is not a
freestanding claim, “[t]hus, if a plaintiff’s claim for the underlying tort fails, so does the claim
for conspiracy.” Madden v. Piper, No. 1:16-CV-P21-GNS, 2016 WL 7116189, at *5 (W.D. Ky.
Dec. 6, 2016) (citing Stonestreet Farm, LLC v. Buckram Oak Holdings, N.V., No. 2008-CA002389-MR, 2010 WL 2696278, at *13 (Ky. App. July 9, 2010)); see also James, 95 S.W.3d at
897 (“The Court acknowledged that there is no such thing as a civil action for conspiracy, noting
that the action is for damages caused by acts committed pursuant to a formed conspiracy. In the
absence of such acts done by one or more of the conspirators and resulting in damage, no civil
action lies against anyone since the gist of the civil action for conspiracy is the act or acts
committed in pursuance of the conspiracy, not the actual conspiracy.” (citing Krauss Wills Co.,
390 S.W.2d at 134)).
The allegations that Crick and Berghammer “assisted, aided, abetted, acted in concert
with, and in a conspiracy with” Johnson to violate Ricchuite’s civil rights are purely conclusory.
(St. Ct. Compl. ¶¶ 15, 16). Ricchuite offers no evidence to demonstrate that Defendants were in
“an unlawful combination or agreement” with each other. In fact, Ricchuite’s own testimony
belies his claim as to a conspiracy between Johnson and Crick. Ricchuite testified:

conspiracy claim is brought under Kentucky law. Regardless, even if it was brought under
federal law the Court would note that his claim would fail on the merits because Ricchuite does
not allege that the conspiracy was motivated by racial or other “class-based invidiously
discriminatory amicus” or other discriminatory motive, as required for a conspiracy claim under
federal law. See Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994) (citation
omitted); Moniz v. Cox, 512 F. App’x 495, 499-500 (6th Cir. 2013) (citation omitted).
20

Q

Are you aware of any evidence or been told by anyone that Sheriff
Johnson was encouraging or ordering Trooper Crick to follow you?
A
No, sir.
Q
Okay. Did Trooper Crick ever mention Sheriff Johnson to you?
A
No, sir.
Q
How about the other way around? Did Sheriff Johnson ever mention
Trooper Crick to you?
A
I never talked to Sheriff Johnson.
(Ricchuite Dep. 123:1-123:16). Ricchuite testified that he was not aware of any evidence of an
agreement between Crick and Johnson. Furthermore, aside from Ricchuite’s own conclusory
allegations, there is no evidence in the record to indicate that Berghammer and Johnson were
involved in any type of unlawful agreement.
Moreover, the Court finds that all of Ricchuite’s underlying tort claims fail on their
merits; therefore, there is no underlying tort claim to support a tort claim of civil conspiracy. See
Stonestreet Farm, LLC, 2010 WL 2696278, at *13 (holding that a civil conspiracy claim under
Kentucky law is not a freestanding claim). Thus, Ricchuite’s conspiracy claim brought under
Kentucky law fails as a matter of law and summary judgment is appropriate.
3.

Kentucky Constitutional Claims

In Count Two of his Complaint, Ricchuite brings an invasion-of-privacy claim under the
Kentucky Constitution. In Count Five, Ricchuite vaguely alleges “civil rights” claims based on
“[t]he actions and conduct of Defendants depriv[ing] Plaintiff of his right to due process and his
right to equal protection of the laws, among other rights, guaranteed by the Constitutions of the
United States and Kentucky.” (St. Ct. Compl. ¶ 40). Because Kentucky law does not provide
for a cause of action for state constitutional violations, this claim fails as a matter of law. See
Tucker, 2016 WL 7007527, at *5 (“[U]nder Kentucky law, there is no ‘private right of action for
state constitutional violations.’” (quoting St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 536-37
(Ky. 2011))).
21

4.

Harassment

Johnson argues that the claim for harassment should fail on the merits because his actions
served a legitimate purpose and he did not act with the requisite “intent to intimidate, harass,
annoy or alarm” as is required under KRS 525.070.7,

8

Applicable portions of KRS 525.070

provide:
(1)

A person is guilty of harassment when, with intent to intimidate, harass,
annoy or alarm another person, he or she:

...
(d)

Follows a person in or about a public place or places;

(e)

Engages in a course of conduct or repeatedly commits act which alarm and
seriously annoy such other person and which serve no legitimate
purpose . . . .

KRS 525.070(1)(d)-(e) (emphasis added). The legislative commentary to the statute notes that
“[s]ubsection (1)(d) requires a series of acts which serve no legitimate purpose and which alarm
or seriously annoy another person.” KRS 525.070 (emphasis added). Thus, both subsection (d)
and (e) of the statute require that the allegedly harassing actions serve no legitimate purpose.
In the Complaint, Ricchuite alleges the following acts of harassment: Johnson followed
plaintiff in his patrol car nightly; Johnson surveilled Ricchuite’s home; and Johnson used a video
7

Johnson also argues that the claim is time barred under the applicable one-year statute of
limitations and cites Brooks v. Kentucky Community Technical College, No. 11-CV-425-JMH,
2012 WL 2944456, at *2-3 (E.D. Ky. July 19, 2012). The more salient guidance comes from the
Kentucky Supreme Court’s decision in Craft v. Rice, 671 S.W.2d 247 (Ky. 1984). In Rice, the
Kentucky Supreme Court reversed the decision of the Court of Appeals that applied a one year
statute of limitations for personal injury when dealing with an intentional infliction of emotional
distress claim. Id. at 249. The Kentucky Supreme Court reasoned that the five-year statute of
limitations applies when the gist of the tort is the claimed interference with the plaintiff’s rights
causing emotional distress and generating a cause of action regardless of whether the plaintiff
suffers any bodily harm. Id. Thus, the court ruled that five-year statute of limitations was proper
because it related to the interference with a right not otherwise enumerated in the limitations
statute. Id. Here, because Ricchuite has not alleged any personal injury arising from the
harassment, the five-year statute of limitations period applies and the claim is not time-barred.
8
KRS 525.070 is a Kentucky criminal statute. KRS 446.070 provides a civil cause of action for
violations of Kentucky statutes.
22

camera on at least one occasion to record Ricchuite. (State Ct. Compl. 3). The frequency of
Johnson following Ricchuite in his patrol car is disputed; even so, viewing the facts in the light
most favorable to Ricchuite and assuming that Johnson did follow Ricchuite in his car nightly,
Johnson’s actions do not constitute harassment because they served a legitimate law enforcement
purpose. See Talley v. MAC Auto Team, LLC, No. 2015-CA-000453-MR, 2016 WL 4410091, at
*3 (Ky. App. Aug. 19, 2016) (finding that the defendant’s distribution of a sex offender registry
that included the plaintiff’s information did not amount to harassment because the legislature
intended the publication of the registry to serve a public safety function).
As Sheriff, Johnson was authorized to investigate suspected criminal activity.
Considering a 1,000 gallon tank of anhydrous ammonia was found buried on Ricchuite’s farm,
Johnson had objective reason to believe that Ricchuite was involved in criminal activity. In
support of the reasonableness of Johnson’s suspicion, he relies upon his law enforcement expert,
Michael D. Bosse (“Bosse”), who concluded that “[b]ased on the totality of the circumstances,
the investigators believed . . . Ricchuite actively managed that property. . . and that he was
involved in and or, knew of, and allowed, the activity [manufacture of methamphetamine] to take
place on the property.” (Def.’s Mot. Summ. J. Ex. 1, at 2, DN 67-2 [hereinafter Bosse Report]).
Other than speculation, Ricchuite adduced no evidence that Johnson possessed the intent
necessary to establish a claim of harassment. Ricchuite claims that Johnson bore ill will towards
him because Johnson told him during a search of the property that he “did not want to hear from
[Ricchuite’s] smart mouth” and because Johnson continued to surveille the property after the
case was turned over to White.9 (Pl.’s Resp. Def.’s Mot. Summ. J. 20, DN 83 [hereinafter Pl.’s
Resp. to Johnson Mot.]). This insubstantial evidence of personal dislike is insufficient to prove
9

Ricchuite also discusses the alleged disparaging remarks made by Johnson evidence to support
this animosity, but for reasons discussed below these alleged statements are inadmissible.
23

that Johnson acted with “intent to intimidate, harass, annoy or alarm.” See Talley, 2016 WL
4410091, at *3 (“[O]ther than the presence of speculation, the record is devoid of concrete
evidence that [the defendants] . . . acted with the intent necessary to underlie a viable claim of
harassment.”). Additionally, because at all times Johnson was performing a legitimate law
enforcement function, there is no genuine issue of material fact concerning Ricchuite’s
harassment claim and summary judgment is appropriate for that claim.
5.

Defamation

Ricchuite’s defamation claim against Johnson consists in its entirety of inadmissible
hearsay, which is to say Ricchuite has no evidence to support his defamation claim. Under
Kentucky law, the essential elements of defamation include: “(1) defamatory language; (2)
about the plaintiff; (3) which is published; and (4) which causes injury to reputation.” Columbia
Sussex Corp. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). While it is not necessary in
connection with a motion for summary judgment that the proponent offer evidence in admissible
form, the opponent must demonstrate that admissible evidence not consisting of hearsay can be
produced at trial. Beckett v. Ford, 384 F. App’x 435, 442-43 (6th Cir. 2010). At the summary
judgment stage, “[h]earsay evidence . . . must be disregarded.” Alpert v. United States, 481 F.3d
404, 409 (6th Cir. 2007) (citing U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189
(6th Cir. 1997)). Additionally, Federal Rule of Civil Procedure 56(e) requires that affidavits
used for summary judgment purposes be made on the basis of personal knowledge. See Wiley v.
United States, 20 F.3d 222, 226 (6th Cir. 1994).
Ricchuite’s proffered evidence in support of this claim is summarized as follows:


Christian told Ricchuite that Johnson said he was guilty and had bought off the Todd
County Attorney and a judge. (Ricchuite Dep. 75:12-21).

24



Ricchuite said that Potter and Chastine overheard Johnson say that plaintiff was the
biggest drug dealer in the county, a kingpin of organized crime, and had one million
dollars buried in his backyard. (Ricchuite Dep. 78:7-79:3; Ricchuite Aff. 2).



Ricchuite was told by Potter and Scott Shelton that Johnson told Laster that Ricchuite
was the biggest drug dealer in western Kentucky and he sold drugs to school children.
(Ricchuite Dep. 85:15-86:8; Ricchuite Aff. 2).



White alleged told Ricchuite that Johnson said Ricchuite had bought off a juror.
(Ricchuite Dep. 81:17-82:2; Ricchuite Aff. 2).



Ricchuite testified the mayor of Elkton told him that that Johnson told Atkinson that
even if he did not have enough evidence against plaintiff, he would make plaintiff pay
for a lawyer. (Ricchuite Dep. 92:5-17; Ricchuite Aff. 1).

None of the evidence of Johnson’s alleged defamatory statements is based upon Ricchuite’s
personal knowledge. Instead, all of the statements come from Ricchuite third-hand. There have
been no affidavits or testimony produced from any person who actually heard Johnson make
these supposed statements.

Because all of Ricchuite’s evidence on this claim consists of

inadmissible hearsay, Ricchuite has failed to produce evidence linking Johnson to any
defamatory remarks. Thus, because Ricchuite has offered no support for his defamation claim it
fails as a matter of law, and summary judgment is appropriate.
6.

Outrageous Conduct

Ricchuite brings a claim for outrageous conduct against Johnson. (St. Ct. Compl. ¶¶ 5153).

Kentucky law recognizes the tort of outrage, also known as intentional infliction of

emotional distress (“IIED”). See Craft, 671 S.W.2d at 249. To establish a claim for IIED, the
plaintiff must establish: (1) “[t]he wrongdoer’s conduct must be intentional or reckless”; (2) “the
conduct must be outrageous and intolerable in that it offends against the generally accepted
standards of decency and morality”; (3) “there must be a causal connection between the
wrongdoer’s conduct and the emotional distress”; and (4) “the distress suffered must be severe.”
25

Osborne v. Payne, 31 S.W.3d 911, 913-14 (Ky. 2000) (citing Craft, 671 S.W.2d at 249). The
Kentucky Supreme Court held that “it is for the court to determine, in the first instance, whether
the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004), overruled on
other grounds by Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 286-87 (Ky. 2014). Conduct will
only be seen as outrageous, and thus actionable, if it is “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. at 789 (Ky. 2004) (quoting
Restatement (Second) of Torts § 46(a) cmt. d). “Mere insults, indignities, threats, annoyances,
petty oppressions, [and] other trivialities” do not meet this standard. Id.
The Court holds that Ricchuite has not identified any conduct that would be deemed to be
“extreme” and “outrageous.” Although Ricchuite does not allege what actions of Johnson in
particular were outrageous, the Court finds nothing asserted in this case rises to that level, even
when viewing the facts in the light most favorable to him. Johnson following Ricchuite in his
patrol car and surveilling his home during the investigation of the anhydrous tank would not rise
to the level of outrageous conduct. See Restatement (Second) of Torts § 46 (listing examples of
actionable conduct); Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 2-4 (Ky. 1990) (affirming
summary judgment for the defendant on the outrage claim where nurses told the grieving mother
of a stillborn baby to “shut up” and that the hospital would take care of disposing of the dead
baby). Furthermore, Ricchuite has not shown that these actions were taken with the sole intent to
cause extreme emotional distress to him. See Michals v. William T. Watkins Mem’l United
Methodist Church, 873 S.W.2d 216, 220 (Ky. App. 1994) (holding the plaintiffs failed to prove
an intentional infliction of emotional distress claim where there was no evidence the defendant

26

intended to cause extreme emotional distress). Thus, summary judgment is appropriate on this
claim.
b.

Vicarious Liability of Todd County

As a final matter, Ricchuite asserts that Todd County is vicariously liable for any and all
torts and constitutional violations committed by Defendants. For the reasons explained above,
the Court holds that all of Ricchuite’s claims fail as a matter of law. Accordingly, there is no
basis to hold Todd County vicariously liable. Thus, summary judgment for Todd County is
appropriate on Ricchuite’s claim of vicarious liability.
c.

Qualified Immunity

All Defendants have asserted the defense of qualified immunity.

Because none of

Ricchuite’s claims survive on the merits, however, the Court will not analyze whether the
Defendants are entitled to qualified immunity.
V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motions for
Summary Judgment (DN 67, 71, 72) are GRANTED, and Defendants’ Motions to Supplement
(DN 87, 88, 89) are DENIED AS MOOT.

Greg N. Stivers, Judge
United States District Court
March 8, 2017

cc:

counsel of record

27