DeHart v. Perkins et al
MEMORANDUM OPINION AND ORDER by Chief Judge Greg N. Stivers on 9/14/2022 granting in part and denying in part 6 Motion to Dismiss. cc: Counsel; Matthew B. DeHart (JWM) Modified dist on 9/15/2022 (JWM).
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:22-CV-00013-GNS
MATTHEW B. DEHART
DEPUTY KENNY PERKINS, et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss (DN 6). The motion is
ripe for adjudication. For the reasons stated below, the motion is GRANTED IN PART and
DENIED IN PART.
STATEMENT OF FACTS AND CLAIMS
This action was filed by Plaintiff Matthew B. DeHart (“DeHart”) against Defendants
Kenny Perkins (“Perkins”), Ronnie Golden (“Golden”), and Derek Polston, deputies employed by
the Russell County Sheriff’s Department and Kentucky State Police (“KSP”) Trooper Jacob
Harper (“Harper”) and the Unknown Supervisor of Jacob Harper of the KSP, as well as the KSP
DeHart alleges that on January 31, 2021, Golden and Perkins requested that Harper stop
DeHart’s vehicle because he was attempting to elude Golden. (Compl. ¶ 13, DN 1-1). Harper
located DeHart’s vehicle in a parking lot and, upon approach, requested DeHart’s driver’s license
and proof of insurance. (Compl. ¶¶ 14-15). Harper asked DeHart to exit the vehicle, at which
point DeHart told Harper he was unable to stand for sobriety tests due to a hip condition. (Compl.
¶ 16). DeHart alleges that after passing a sobriety test, he was required to stand while Harper
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conversed on the phone with his supervisor (“Unknown Superior of Jacob Harper”). (Compl. ¶¶
16-17). According to DeHart, after Golden took his K9 around DeHart’s vehicle and the dog did
not alert, Harper informed DeHart that he was being arrested for “eluding” and driving under the
influence. (Compl. ¶¶ 18-19). Harper then handcuffed DeHart and placed him in Harper’s vehicle
for forty-five minutes while Harper searched DeHart’s vehicle incident to his arrest. (Compl. ¶
19). DeHart was taken to the Russell County Detention Center and held for eight hours. (Compl.
¶ 20). DeHart later learned he was being charged with operating a motor vehicle under the
influence of illegal substances, which was ultimately dismissed on January 11, 2022. (Compl. ¶¶
DeHart alleges numerous constitutional violations pursuant to 42 U.S.C. §§ 1983 and 1985,
including assault and battery, false arrest and false imprisonment, malicious prosecution, abuse of
process, and conspiracy. DeHart also asserts various state law claims including assault and battery,
false imprisonment, malicious prosecution, and intentional infliction of emotional distress.
Defendants Harper, Unknown Supervisor of Jacob Harper, and the KSP (“KSP Defendants”)
moved to dismiss this action against them. (Defs.’ Mot. Dismiss, DN 6).
Jurisdiction for the federal law claims is based on federal question jurisdiction pursuant to
28 U.S.C. § 1331. This Court has jurisdiction over the state law claims through supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(a).
STANDARD OF REVIEW
To survive dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), “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) (internal quotation marks omitted)
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(citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
Id. (citation omitted).
This “plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Where a complaint pleads
facts that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted) (quoting
Twombly, 550 U.S. at 557).
When considering a defendant’s motion to dismiss, the Court will “accept all the
[plaintiff’s] factual allegations as true and construe the complaint in the light most favorable to the
[plaintiff].” Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005) (citation
omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid
of further factual enhancement.” Iqbal, 556 U.S. at 678 (alteration in original) (internal quotation
marks omitted) (internal citation omitted) (citation omitted). Thus, to survive a 12(b)(6) motion,
“[the] complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more
than ‘a formulaic recitation of a cause of action’s elements,’ and (3) allegations that suggest a
‘right to relief above a speculative level.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478,
488 (6th Cir. 2009) (quoting Twombly, 550 U.S. at 570). Ultimately, this inquiry is a “contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679 (citation omitted).
While courts generally may not consider matters outside of the pleadings on a motion to
dismiss, the Sixth Circuit has noted:
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[A] court may consider exhibits attached to the complaint, public records, items
appearing in the record of the case, and exhibits attached to defendant’s motion to
dismiss, so long as they are referred to in the complaint and are central to the claims
contained therein, without converting the motion to one for summary judgment.
Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (citations omitted).
The KSP Defendants argue that DeHart has not sufficiently pled a malicious prosecution
claim under federal or Kentucky law because he has not shown that the underlying criminal
prosecution ended in his favor. (Defs.’ Mot. Dismiss 15-16). To assert a malicious prosecution
claim under Kentucky law, a plaintiff must allege:
(1) the institution or continuation of original judicial proceedings, either civil or
criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance,
of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4)
malice in the institution of such proceeding, (5) want or lack of probable cause for
the proceeding, and (6) the suffering of damage as a result of the proceeding.
Garcia v. Whitaker, 400 S.W.3d 270, 274 (Ky. 2013) (citation omitted). To succeed on a malicious
prosecution claim, the termination must reflect the plaintiff’s “innocence of the alleged wrongful
conduct.” Davidson v. Caster-Knott Dry Goods Co., 202 S.W.3d 597, 605 (Ky. App. 2006)
The KSP Defendants argue that “Eleventh Amendment Immunity and Sovereign Immunity
Deprive the Court of Subject Matter Jurisdiction as to all Official Capacity Claims against Trooper
Harper and Unknown Superior of Trooper Harper and any claims against the Kentucky State
Police, such as Abuse of Criminal Process.” (Defs.’ Mot. Dismiss 3). DeHart, in his response,
states that “Plaintiff cannot make a good faith argument that Defendant’s recitation of the law
regarding such Official Capacity claims is either inaccurate or invalid. As such, Plaintiff would
respectfully withdraw such claims and decline to plead further in that regard.” (Pl.’s Resp. Defs.’
Mot. Dismiss 1, DN 9). The official capacity claims under both federal and state law against
Harper and Unknown Superior of Trooper Harper are therefore dismissed. DeHart does not
respond to the KSP Defendants’ Eleventh Amendment and state sovereign immunity arguments
and has therefore waived opposition. Butler v. City of Cincinnati, No. 1:17-CV-604, 2020 U.S.
Dist. LEXIS 132032, at *29 (S.D. Ohio July 27, 2020)) (“Plaintiff does not respond to this
argument, and the Court will construe his silence as a concession.” (internal citation omitted)).
Claims against the KSP are therefore dismissed, including the abuse of process claim to which
DeHart also failed to respond to the KSP’s motion.
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(citation omitted). In Kentucky, “[i]f the termination does not relate to the merits—reflecting on
neither innocence of nor responsibility for the alleged misconduct—the termination is not
favorable in the sense it would support a subsequent action for malicious prosecution.” Id.
For a malicious prosecution claim under 42 U.S.C. § 1983, a plaintiff must plead that: (1)
there was a criminal prosecution initiated against him, (2) the defendant was involved in the
decision to prosecute, (3) there was a lack of probable cause for the prosecution, (4) there was a
resulting deprivation of liberty, and (5) the proceeding was terminated in the plaintiff’s favor.
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010). The Supreme Court’s recent decision in
Thompson v. Clark, 142 S. Ct. 1332 (2022), is instructive. In Thompson, the charges against the
plaintiff in the underlying case were dismissed in an order without explanation. Id. at 1336.2 The
Supreme Court held as a result that “[t]o demonstrate a favorable termination of a criminal
prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution,
a plaintiff need only show that his prosecution ended without a conviction.” Id. at 1335.
The Complaint alleges that Harper, without good faith, initiated criminal proceedings
against DeHart without probable cause, the proceedings were favorably terminated, and DeHart
suffered damages as a result of the action. (Compl. ¶¶ 63-73). Attached to the Complaint was an
order stating the action was dismissed on January 11, 2022, citing to “the Court having previously
granted [DeHart’s] motion to suppress.” (Order 1, DN 1-1). In response to the KSP Defendants’
The Complaint alleges Section 1983 malicious prosecution claims in violation of the Fourth,
Fifth, and Fourteenth Amendments. (Compl. ¶ 72). The U.S. Supreme Court has held that only
the Fourth Amendment could serve as the basis for a Section 1983 malicious prosecution claim.
Albright v. Oliver, 510 U.S. 266, 274 (1994). The Sixth Circuit also recognized this precedent in
King v. Harwood, 852 F.3d 568, 580 n.4 (6th Cir. 2017). Therefore, the Section 1983 claim may
only rest upon Fourth Amendment grounds.
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motion to dismiss, DeHart attaches an order from the Russell District Court dated January 5, 2022,
granting his motion to suppress and finding there was “insufficient evidence of a reasonable
suspicion of criminal activity to justify the stop of vehicle in which defendant was sitting, nor was
there sufficient evidence of operation of physical control of a vehicle” to support an arrest for
operating a vehicle under the influence. (Order 1, DN 9-1).3 While DeHart is not required to offer
proof of the elements of a malicious prosecution claim at this stage, the Complaint and the
corresponding orders from the Russell District Court satisfy the requirement that the underlying
action was terminated in a manner indicative of innocence. The January 11, 2022, order further
indicates the prosecution of DeHart ended without a conviction. Thompson, 142 S. Ct. at 1335.4
False Arrest/False Imprisonment under Section 19835
DeHart asserts a claim of “false arrest/false imprisonment” pursuant to Section 1983.
(Compl. ¶¶ 54-62). Because the elements of false imprisonment and false arrest overlap, the
The January 5, 2022, order is a part of the public record and relevant to the claims contained in
the Complaint which may be considered on a motion to dismiss. Gavitt, 835 F.3d at 640.
While DeHart fails to respond to Harper’s qualified immunity argument regarding his Fourth
Amendment false arrest claim, the Sixth Circuit has recognized that it is inappropriate for a court
to resolve the applicability of qualified immunity in ruling on a motion to dismiss under Fed. R.
Civ. P. 12(b)(6). See Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015) (“[I]t is generally
inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified
immunity. Although an officer’s ‘entitle[ment] 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.” (alterations in original) (internal quotation marks omitted) (internal citation
omitted) (citation omitted)).
The KSP Defendants further argue that DeHart’s Eighth Amendment claim should be dismissed,
as well as claims for assault and battery under both federal and state law, false arrest, false
imprisonment, and abuse of process. The KSP Defendants state that DeHart has not alleged a
criminal conviction to support a claim under the Eight Amendment. (Defs.’ Mot. Dismiss 23).
DeHart does not respond to the argument. As a result, DeHart has waived his claims to the extent
they are premised on the Eight Amendment: Counts One, Three, and Eight. With regard to false
arrest, malicious prosecution, and abuse of process claims, DeHart states that “[t]he Plaintiff
believes that at this point at least prima facia [sic] evidence of all of these matters has been shown
and/or plead.” (Pl.’s Resp. Defs.’ Mot. Dismiss 3). A sister court held that “Plaintiff’s only
response in his brief was to summarize [the defendants’] arguments and then to state ‘the
allegations of the Complaint speak for themselves’” in response to arguments made in a motion to
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Supreme Court has referred to them “together as false imprisonment.” Wallace v. Kato, 549 U.S.
384, 389 (2007). A claim of false arrest requires the absence of probable cause for the arrest.
Buttino v. City of Hamtramck, 87 F. App’x 499, 502 (6th Cir. 2004). While Defendants argue that
DeHart “cannot prove an absence of probable cause” to substantiate a false arrest claim, such proof
is not required at this stage. (Defs.’ Mot. Dismiss 17). Taking all allegations in the Complaint as
true, DeHart has adequately pled that he was detained without probable cause. (Compl. ¶¶ 56-59).
Common Law False Imprisonment
DeHart also asserts a common law claim for false imprisonment. (Compl. ¶¶ 46-53).
“When, as here, a law enforcement officer is the alleged tortfeasor, Kentucky collapses claims of
false arrest and false imprisonment.” Estep v. Combs, 366 F. Supp. 3d 863, 883 (E.D. Ky. 2018)
(citing Dunn v. Felty, No. 2004-CA-001029-MR, 2005 WL 736596, at *2 (Ky. App. Apr. 1, 2005),
aff’d, 226 S.W.3d 68 (Ky. 2007)). Further, “realizing that every confinement of a person is an
imprisonment, whether it occurs in a prison or a house, we shall refer to the torts of false
imprisonment and false arrest together as false imprisonment.” Dunn v. Felty, 226 S.W.3d 68, 71
(Ky. 2007). The state law claim for false imprisonment against law enforcement is therefore
synonymous with a false arrest claim. A law enforcement officer may detain an individual under
Kentucky law pursuant to a warrant or if he has “probable cause, that is, reasonable objective
grounds to believe that a crime was committed and that the plaintiff committed it.” Id. (citation
omitted). False arrest provides a remedy for an unlawful detention where neither a warrant nor
dismiss were insufficient to prevent waiver of the argument. Moody v. CitiMortgage, Inc., 32 F.
Supp. 3d 869, 875 (W.D. Mich. 2014). While DeHart’s malicious prosecution and false
arrest/imprisonment claims are further addressed in his response, albeit briefly, DeHart does not
respond in substance to the KSP Defendants’ argument that his abuse of process claim is not
adequately pled in the Complaint nor that the KSP is entitled to Eleventh Amendment and
sovereign immunity. As a result, DeHart’s claims for assault and battery under both federal and
state law, and abuse of process will be dismissed.
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probable cause are present. Id. DeHart alleges in the Complaint that he was detained without
cause and is not required at this time to prove the truth of that allegation. (Compl. ¶¶ 48-51). This
claim will be allowed to proceed.
Intentional Infliction of Emotional Distress
The KSP Defendants move to dismiss DeHart’s intentional infliction of emotional distress
claim by asserting that such a claim cannot survive if there are other remedies available for the
challenged actions. (Defs.’ Mot. Dismiss 19-21). “The tort of outrage, also known as intentional
infliction of emotional distress, is typically considered a ‘gap-filler,’ meaning that the tort is
available where a more traditional tort would not provide an appropriate remedy.” Vidal v.
Lexington Fayette Urb. Cnty. Gov’t, No. 5:13-117-DCR, 2014 WL 4418113, at *9 (E.D. Ky. Sept.
8, 2014) (citation omitted). “The tort of outrage,” however, “is still a permissible cause of action,
despite the availability of more traditional torts, as long as the defendants solely intended to cause
extreme emotional distress.” Green v. Floyd Cnty., 803 F. Supp. 2d 652, 655 (E.D. Ky. 2011)
In Estep, the court allowed claims for Section 1983 violations to go forward as well as state
law false imprisonment and malicious prosecution claims. Estep, 366 F. Supp. 3d at 888. As a
result, the court found “constitutional and traditional state law torts are available to address [the
plaintiff’s] claimed emotional distress.” Id. at 887. When deciding whether the claim of emotional
distress could be brought in conjunction with the other sufficient claims, the court found, “the
Complaint makes clear that emotional distress is not the crux of the torts alleged, but rather
deprivation of liberty and the injuries to Plaintiff’s wrists are.” Id. at 887 (citation omitted).
The case at bar is similar. DeHart’s Section 1983 common law and malicious prosecution
claims are available in accordance with this Order, as well as his false imprisonment claims under
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federal and state law. As a result, DeHart would need to plead that causing emotional distress was
Harper’s sole intent. Green, 803 F. Supp. 2d at 655. “When the claim of emotional distress is a
supplement to another tort claim, such as false imprisonment, the burden of showing sole intent
cannot be met.” Lovins v. Hurt, No. 11-216-JBC, 2011 WL 5592771, at *3 (E.D. Ky. Nov. 16,
2011) (citation omitted). DeHart asserts in the Complaint only “[t]hat the Defendants’ conduct
described herein was intentional, willful, wanton and reckless and constitutes outrageous conduct
to any reasonable person.” (Compl. ¶ 88). DeHart does not, however, allege that the sole intent
of said conduct (i.e., the claimed violations) was solely to cause DeHart emotional distress nor
does he allege that Harper intended to cause emotional distress, only that his actions were done
intentionally. (Compl. ¶ 88). As a result, DeHart’s intentional infliction of emotional distress
claim will be dismissed.
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion to
Dismiss (DN 6) is GRANTED IN PART and DENIED IN PART. Plaintiff’s claims for
intentional infliction of emotional distress, assault, battery, Eighth Amendment violations, and
abuse of process DISMISSED WITH PREJUDICE to the extent they are asserted against
Defendants Jacob Harper, Unknown Supervisor of Harper, or the Kentucky State Police. Claims
against Defendant Jacob Harper in his official capacity and against the Defendant Kentucky State
Police are DISMISSED.
September 14, 2022
counsel of record
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