Goins v. City of Shively et al
MEMORANDUM OPINION signed by Judge Charles R. Simpson, III on 7/1/2011 re 17 MOTION to Dismiss filed by City of Shively, and Ronnie Vittitoe. For the reasons set forth, Defendant's Motion to Dismiss will be denied. A separate Order will issue in accordance with this Opinion.cc: Counsel (RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
ELMER EUGENE GOINS
CIVIL ACTION NO. 3:10-CV-386-S
CITY OF SHIVELY, et al.
This matter is before the court on the motion of defendants City of Shively and Ronnie E.
Vittitoe, in his capacity as Police Officer of the City of Shively (collectively, “Defendants”) to
dismiss the claims of plaintiff Elmer Eugene Goins (“Goins”) (DN 17) pursuant to FED. R. CIV. P.
12. Goins has responded (DN 18), and the Defendants have replied (DN 19). For the reasons set
forth herein, the Defendants’ motion will be DENIED.
Goins was arrested at his home by Officer Vittitoe on May 4, 2009. Compl. ¶ 4. He was
charged with operating a motor vehicle under the influence of alcohol and first-degree disorderly
conduct. Id. On October 14, 2009, Goins pleaded guilty in Jefferson County, Kentucky, District
Court to an amended charge of disorderly conduct in the second degree. The charge of operating
a motor vehicle under the influence of alcohol was dismissed.
On May 12, 2010, Goins sued the Defendants in Jefferson County, Kentucky, Circuit
Court, claiming that his arrest was undertaken without probable cause and that Officer Vittitoe
used excessive force in taking Goins into custody. Goins brought both a federal Fourth
Amendment claim pursuant to 42 U.S.C. § 1983 and a claim for false arrest under Kentucky law.
The Defendants removed the case to this court on federal question grounds on June 2,
2010, and now move to dismiss Goins’ federal claims.
“When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the district court must accept all of the allegations in the complaint as true, and
construe the complaint liberally in favor of the plaintiff.” Lawrence v. Chancery Court of Tenn.,
188 F.3d 687, 691 (6th Cir. 1999). The motion must be denied “‘unless it can be established
beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would
entitle him to relief.’” Achterhof v. Selvaggio, 886 F.2d 826, 831 (6th Cir. 1989) (quoting
Nishiyama v. Dickson Cnty., 814 F.2d 277, 279 (6th Cir. 1987)).
Defendants argue that Goins’ federal claims against them are barred by Heck v.
Humphrey, 512 U.S. 477 (1994), and therefore must be dismissed. In Heck, the United States
Supreme Court held:
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 a
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated is not cognizable under §
Heck, 512 U.S. at 486–87 (citations omitted) (emphasis in original).
Stated differently, “pleading guilty to a criminal charge estops the plaintiff from challenging
probable cause for the arrest for that violation for purposes of a section 1983 claim . . . .”
Helfrich v. City of Lakeside Park, No. 2008-210(WOB), 2010 WL 3927475 at *1 (E.D. Ky. Oct.
I. Goins’ False Arrest Claim
Defendants claim that because Goins pleaded guilty to second-degree disorderly conduct
and because that conviction has not been invalidated or called into question, he may not pursue a
§ 1983 claim for false arrest. Goins asserts that he does not contest his arrest for disorderly
conduct. Instead, he states that his false arrest claim is premised on his arrest for driving under
the influence – a charge that was later dismissed. Thus, Goins claims, while Heck bars his false
arrest claim with respect to his disorderly conduct arrest, it does not bar his false arrest claim
with respect to his arrest for driving under the influence.
Defendants argue against this proposed bifurcation of Goins’ false arrest claims, citing
Helfrich, supra. In Helfrich, the plaintiff was arrested and charged with disorderly conduct,
alcohol intoxication, resisting arrest, and assault in the third degree. Helfrich, supra, at *1. The
plaintiff pleaded guilty to the disorderly conduct charge, into which the charges for alcohol
intoxication and resisting arrest were merged, while the assault charge was dismissed. Id. The
District Court held that Heck barred any claim for false arrest despite the dismissal of one charge
because the plaintiff’s alleged offenses “were all related and based on the same unbroken chain
of events occurring close in time.” Id.1 The District Court distinguished these circumstances
from those present in Sandul v. Larson, No. 94-1233, 1995 WL 216919 (6th Cir. Apr. 11, 1995),
In reaching this conclusion, the District Court relied on Sixth Circuit precedent governing
qualified immunity for false arrest claims, noting that “even where probable cause is lacking to
arrest [a] plaintiff for the crime charged, proof that probable cause existed to arrest plaintiff for
another offense may entitle the arresting officer to qualified immunity on a false arrest claim under
§ 1983.” Id.
noting that in Sandul, “the plaintiff was charged with two unrelated offenses arising out of
different conduct which occurred at different locations,” id., and the Sixth Circuit found that the
district court erred in not considering the propriety of the arrest for both offenses when applying
the Heck doctrine.
Defendants urge this court to follow Helfrich, asserting that, as in Helfrich, “[Goins’]
driving under the influence of alcohol and disorderly conduct charges were ‘related and based on
the same unbroken chain of events occurring close in time’ on the evening of May 4, 2009.”
Def.’s Reply (DN 19) at 2. However, the record is devoid of evidence to support the defendants’
characterization of Goins’ arrest. Although it is possible that Helfrich may prove instructive in
this case, it is impossible for the court to determine at this point whether Goins’ alleged offenses
were part of an “unbroken chain of events,” and thus both subject to the Heck bar, or, as in
Sandul, “[arose] out of different conduct which occurred at different locations.” Sandul, supra.
Without additional evidence about the circumstances of Goins’ arrest, the court cannot hold that
Helfrich’s application of Heck applies here. Accordingly, the Defendants’ motion to dismiss
Goins’ false arrest claim will be denied.
II. Goins’ Excessive Force Claim
Heck generally does not bar excessive force claims because “a claim of excessive force
does not necessarily relate to the validity of the underlying conviction and therefore may be
immediately cognizable.” Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010) (quoting Swiecki
v. Delgado, 463 F.3d 489, 493 (6th Cir. 2006) (abrogated on other grounds by Wallace v. Kato,
549 U.S. 384 (2007)). There are two circumstances, however, where the Heck bar applies to
excessive force claims: when the criminal provision under which the plaintiff is convicted makes
the lack of excessive force an element of the crime or when excessive force is an affirmative
defense to the crime. Id. For instance, under Ohio law, the crime of resisting arrest requires the
state to prove that the defendant was interfering with a “lawful” arrest. See White v. Ebie, No.
98-3958, 1999 WL 775914 at *1 (6th Cir. 1999). An arrest is not considered “lawful” if it was
made using excessive force. Id. Thus, a conviction for resisting arrest in Ohio necessarily carries
with it a finding that the arrest was lawful and the force used was reasonable, and any claim for
excessive force is barred by the Heck doctrine.
Citing City of Lexington v. Gray, 499 S.W.2d 72 (Ky. App. 1973), Defendants claim that
a conviction for disorderly conduct in Kentucky carries with it an implicit finding that the force
applied against the defendant in effecting the defendant’s arrest was reasonable. However, while
the plaintiff in Gray was being arrested for disorderly conduct when she was allegedly assaulted,
Gray did not speak to whether reasonable force in the arrest was an element of or a defense to
the crime of disorderly conduct.2 Rather, the holding in Gray addressed the proper way to
instruct a jury in a civil action for assault and battery against a police officer. See id. at 74–75.
Because the Defendants have presented this court with no authority supporting the proposition
The Kentucky statute setting forth the crime of disorderly conduct in the second degree does
not mention the force used against the defendant in effecting an arrest for the offense:
(1) A person is guilty of disorderly conduct in the second degree when in a public
place and with intent to cause public inconvenience, annoyance, or alarm, or
wantonly creating a risk thereof, he:
(a) Engages in fighting or in violent, tumultuous, or threatening behavior;
(b) Makes unreasonable noise;
(c) Refuses to obey an official order to disperse issued to maintain public safety in
dangerous proximity to a fire, hazard, or other emergency; or
(d) Creates a hazardous or physically offensive condition by any act that serves no
KY. REV. STAT. § 525.060.
that a finding of excessive force in the arrest would undermine Goins’ conviction for disorderly
conduct, Goins’ excessive force claim may proceed.
For the foregoing reasons, the Defendants’ motion to dismiss will be denied. A separate
order will issue in accordance with this opinion.
July 1, 2011
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