Harris v. Louisville/Jefferson County Metro Government et al

Filing 14

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 3/7/12 granting in part and denying in part 6 Motion to Dismiss; Louisville Metro Police Department isDISMISSED as a defendant; Counts IV through X are DISMISSED as againstLouisville-Jeff erson County Metro Government and Officer David Hall and unknown officers intheir official capacities. Those counts remain against Officer David Hall and unknown officersin their individual capacities; motion to dismiss claims for malicious prosecutionand abuse of process as to all Defendants is DENIED; motion to dismiss claims under 42 U.S.C. § 1983 isDENIED. cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11-CV-338-H

ISAAC HARRIS

PLAINTIFF

v.
LOUISVILLE-JEFFERSON COUNTY
METRO GOVERNMENT, et al.,

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff, Isaac Harris (“Harris”), brought this suit against the Louisville-Jefferson County
Metro Government (“Metro Government”), the Louisville Metro Police Department (“LMPD”),
Officer David Hall (“Hall”), unknown officers, Sanh V. Nguyen (“Nguyen”), and SNT Holdings
seeking damages for alleged federal constitutional violations and state law tort claims. The
claims stem from events leading to Harris’s arrest for passing counterfeit bills, a search of his
home, spending a day in jail, and the subsequent dismissal of the charges against him. The
Metro Government, LMPD, and Hall have together filed a partial motion to dismiss. Fed. R.
Civ. P. 12(b)(6). For the reasons explained below, the motion will be sustained in part and
denied in part.
I.
When reviewing a defendant’s motion to dismiss, the Court must construe the complaint
in a light most favorable to the plaintiff and accept all factual allegations, but not legal
conclusions, as true. E.g., Logsdon v. Hains, 492 F.3d 334, 340 (6th Cir. 2006); see also
Gregory v. Shelby Cnty., Tenn., 220 F.3d 433, 446 (6th Cir. 2000). A plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007).
Harris alleges that on September 7, 2010 he attempted to purchase groceries at ThangLong Grocery and Beer in Louisville, but Nguyen, the store owner, would not accept his cash,
claiming it was counterfeit. Harris insisted the cash was not counterfeit and called the police to
resolve the conflict. Officers of the LMPD, including Hall, responded to the call, spoke with
Nguyen and Harris, then placed Harris in handcuffs and in a police cruiser. The officers drove to
Harris’s house, searched it without consent, and confiscated approximately $265 in cash from his
house and person. Harris was charged with three counts of Criminal Possession of a Forged
Instrument in Jefferson District Court, Case No. 10-F-009907. The confiscated bills were later
determined to be legitimate United States currency. The criminal charges against Harris were
dismissed without prejudice on September 28, 2010.
II.
Defendants raise four arguments in their partial motion to dismiss. First, Defendants note
that LMPD is not an entity capable of being sued and should be dismissed as a party to this
lawsuit. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). The parties agree that Metro
Government is the proper defendant.
Defendants next argue the “Fifth Amendment claims” in the Complaint must be
dismissed because the Fifth Amendment “circumscribes only the actions of the federal
government.” Def. Partial Mot. to Dismiss 5 (citing Scott v. Clay Cnty., Tenn., 205 F.3d 867,
873 n.8 (6th Cir. 2000)). Harris has pleaded three separate counts under 42 U.S.C. § 1983,
which provides a private right of action for violations of federal constitutional rights by state
actors, including specific protections from the Bill of Rights incorporated by the Fourteenth

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Amendment’s Due Process Clause. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Each of
Plaintiff’s § 1983 counts alleges violations of the Fourth and Fourteenth Amendments, and two
counts also allege violation of the Fifth Amendment. Plaintiff essentially concedes the Fifth
Amendment is not the basis of his § 1983 claims. However, including the Fifth Amendment
does not render defective his claims that are otherwise adequately pleaded. Dismissal of these
counts is not warranted.
Defendants next argue that sovereign immunity requires dismissal of the state law tort
claims in Counts IV through X of the Complaint. Metro Government is a “consolidated local
government” and enjoys “the same sovereign immunity granted counties.” Ky. Rev. Stat. Ann. §
67C.101(2)(e) (Lexis 2010). Plaintiff argues the Kentucky legislature waived immunity for
certain claims in the Claims Against Local Governments Act (“CALGA”), Ky. Rev. Stat. §
65.200, but the Kentucky Supreme Court has already rejected this argument. Schwindel v.
Meade Cnty., 113 S.W.3d 159, 165 (Ky. 2003) (finding General Assembly did not alter counties’
immunity, as no language in CALGA expressly waives or gives an overwhelming implication of
waiver). Although Plaintiff contends CALGA gives counties only governmental immunity
rather than sovereign immunity, the Meade court held that those terms were used
interchangeably in the statute.1 Id. Sovereign immunity extends to persons sued in their official
capacities. Id. at 169. Thus, Counts IV through X should be dismissed as against Metro

1

Some Kentucky case law at the time of CALGA’s enactment used “governmental immunity” and
“sovereign immunity” interchangeably. Meade Cnty., 113 S.W.3d at165; see also Yanero v. Davis, 65 S.W.3d 510,
519 (Ky. 2001). Only after CALGA became law did the Kentucky Supreme Court clarify the terms represented
different types of immunity. Since only clear statutory language can effect a waiver of immunity, the mere use of
“governmental” instead of “sovereign” in a subsection of CALGA could not waive any part of a county’s immunity.

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Government and Hall in his official capacity.2
III.
Finally, Metro Government argues Harris stipulated in the underlying criminal action that
probable cause existed for his arrest and that the stipulation should have three consequences in
this lawsuit: (1) dismissal of Counts I through IV and VI through X as a matter of collateral
estoppel; (2) dismissal of the malicious prosecution and abuse of process claims for lack of an
essential element of those claims; and (3) dismissal of the § 1983 claims insofar as they are
premised on a malicious prosecution theory under the Fourth Amendment.
Harris contends that Metro Government’s argument fails because it relies on a fact
outside of the pleadings that the parties dispute. Hammond v. Baldwin, 866 F.2d 172, 175 (6th
Cir.1989) (noting matters outside pleadings not to be considered on motion to dismiss). Metro
Government attached as an exhibit to its motion a photocopy of handwritten notes, presumably
made by the state prosecutor handling Harris’s criminal case, indicating, among other things, that
the charges were dismissed without prejudice and with a stipulation as to probable cause.
Generally, a court’s consideration of matters outside the pleadings converts a motion to dismiss
into a summary judgment motion. See, e.g., Mays v. Buckeye Rural Elec. Co-op, Inc., 277 F.3d
873, 877 (6th Cir. 2002). However, documents a defendant attaches to its motion are part of the
pleadings if the plaintiff’s complaint refers to them and they are central to the claims. Weiner v.
Klais & Co., 108 F.3d 86, 88-89 (6th Cir 1997) (citing Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir.1993)).
2

The parties have not briefed the issue of whether the doctrine of qualified immunity protects Hall from
Harris’s claims against him in his individual capacity, as that defense has not been raised. See, e.g., Yanero, 65 S.W.
3d at 522 (“Qualified official immunity is an affirmative defense that must be specifically pled”).

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Here, the Complaint refers to the underlying state criminal case and that it was dismissed
without prejudice. Compl. 9. The criminal case is certainly “central” to Plaintiff’s claims.
Defendants could fairly incorporate documentation of that criminal case as part of the pleadings
without converting their motion to dismiss into a motion for summary judgment. Likewise, the
Court may appropriately consider the transcript of the September 28, 2010 hearing and an
affidavit by Harris’s public defender at that hearing. Those documents indicate Harris’s lawyer
stipulated to probable cause without consultation or consent from Harris, a fact this Court must
accept as true at the motion-to-dismiss stage of the litigation.
Metro Government has not shown that, as a matter of law, a stipulation of probable cause
entered without a criminal defendant’s permission can collaterally estop or otherwise defeat a
subsequent action for malicious prosecution, abuse of process, or other claims. To be sure,
courts applying Kentucky law have barred malicious prosecution claims due to stipulations of
probable cause entered in the underlying criminal actions. See, e.g., Broaddus v. Campbell, 911
S.W.2d 281 (Ky. Ct. App. 1995) and Pennington v. Dollar Tree Stores, Inc., 28 F. App’x 482,
486 (6th Cir. 2002) (citing Broaddus). But in those cases the defendants did not contest that they
made the stipulations. Instead, they argued unsuccessfully that the stipulations should only be
effective as to the government, not complaining witnesses. Consent to the stipulation was not an
issue in Broaddus and Pennington the way it is an issue in this case. See Broaddus, 911 S.W. 2d
at 284 (noting no allegation that stipulation was result of coercion or overreaching) and
Pennington, 28 F. App’x at 487 (quoting record of criminal case in which Pennington stipulates
to probable cause under oath).
Consequently, Kentucky law does not support granting Metro Government’s motion to
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dismiss on the basis of a stipulation of probable cause entered without Harris’s consent. The
Court will consider the matter again after all the facts are clearer.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Metro Government’s partial motion to dismiss is
SUSTAINED in part and DENIED in part, and
IT IS FURTHER ORDERED that the Louisville Metro Police Department is
DISMISSED as a defendant.
IT IS FURTHER ORDERED that Counts IV through X are DISMISSED as against
Louisville-Jefferson County Metro Government and Officer David Hall and unknown officers in
their official capacities. Those counts remain against Officer David Hall and unknown officers
in their individual capacities.
IT IS FURTHER ORDERED that the motion to dismiss claims for malicious prosecution
and abuse of process as to all Defendants is DENIED.
IT IS FURTHER ORDERED that the motion to dismiss claims under 42 U.S.C. § 1983 is
DENIED.

March 7, 2012

cc:

Counsel of Record

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