Settles v. McKinney et al

Filing 83

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 9/20/13 - 42 Motion to Dismiss is SUSTAINED IN PART and DENIED IN PART; Plaintiffs claims for false arrest against Defendants are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted ; 66 Motion to Stay Discovery is MOOT. cc:counsel, Plaintiff-pro se (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:12-CV-00368-H

GARY SCOTT SETTLES

PLAINTIFF

V.
KEVIN O. MCKINNEY, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ motion to dismiss the amended complaint of Plaintiff,
Gary Scott Settles.1 Plaintiff’s action arises from the circumstances of his arrest by officers of
the Louisville Metro Police Department (“LMPD”) on July 20, 2011. The Court reviewed
Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and gave Plaintiff leave to file an amended
complaint. Several claims that Plaintiff advances under 42 U.S.C. § 1983 remain: excessive
force, failure to intervene, illegal search, false arrest, and failure to train. See ECF No. 17. The
Court has now been fully briefed and will evaluate Defendants’ motion to dismiss Plaintiff’s
entire amended complaint.
I.
In its initial screening, the Court outlined Plaintiff’s account of the July 20, 2011 incident
that occurred between Plaintiff and the LMPD. See ECF Nos. 9, 17. The Court incorporates
1

Defendants Mayor Greg Fischer, former LMPD Chief Robert White, and LMPD Assistant Chief Kenton Buckner,
in their official capacities, and Michael Fowler, Erin Redfield, and Keith Walz, in their individual and official
capacities, moved to dismiss the complaint. ECF No. 42. Thereafter, Defendants Chauncey Carthan, Kevin
McKinney, Richard Pearson, and Antoine Frye moved to join in the motion to dismiss. ECF No. 60. The Court
granted the joinder motion. ECF No. 64. The following Defendants have not made an appearance in this motion to
dismiss briefing: Steven Healey, Brian Wright, Aaron Browning, Brian Sherrard, Andre Bottoms, Lieutenant J.T.
Duncan, Andrew Eichberger, Lee, William LeFlore, Barron Morgan, Jimmy Harder, and Darron Stone. Plaintiff’s
amended complaint identifies these Defendants as various personnel within the LMPD. ECF No. 11. Because these
individuals are similarly situated and for judicial economy purposes, the Court will address the motion to dismiss as
to all Defendants.

1

those fact sections here and will briefly summarize facts of particular relevance to the Court’s
present order.
According to Plaintiff, on July 20, 2011, he was driving his motorcycle with a passenger.
Unmarked LMPD police cars approached him, causing him to exit the motorcycle to avoid being
hit. Defendant McKinney “handcuffed and then struck [him] in the left rear of [his] head” with a
pistol. Defendants McKinney and Wright intentionally placed him on the hot asphalt under an
idling vehicle, exposing him to exhaust fumes that burned his eyes, skin, and lungs. Other
named officers watched and covered up McKinney and Wright’s actions. Plaintiff was then
transported to the hospital, where he received medical attention. During the incident, Plaintiff
“did not flee from any person identifiable as a police officer,” resist arrest, or possess a machine
gun and silencer. Defendants Healey and Redfield then conducted an illegal search of a
residence without a warrant or consent.
Plaintiff further contends that various individuals, including the police chief and the
mayor, are responsible for failing to train the officers and for “maintain[ing] a policy of
cover[ing] up actions of their officers.” Police later knowingly brought false charges against
Plaintiff for fleeing and eluding police, wanton endangerment, resisting arrest, possession of a
machine gun and silencer, and trafficking of a controlled substance.
The Court now takes judicial notice of the indictment and judgment of conviction
presented by Defendants.2 ECF Nos. 42(3), 42(6). Plaintiff was indicted on the charges of

2

In general, when a court is presented with matters outside the pleadings on a Rule 12(b)(6) motion to dismiss, the
court must either exclude the materials or convert the motion into one for summary judgment. Fed. R. Civ. P. 12(d).
The Sixth Circuit, however, takes “a liberal view of what matters fall within the pleadings for purposes of Rule
12(b)(6).” Armengau v. Cline, 7 F. App'x 336, 344 (6th Cir. 2001) (citing Jackson v. City of Columbus, 194 F.3d
737, 745 (6th Cir. 1999) (abrogated on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002)).
Courts may consider matters of public record or otherwise appropriate for the taking of judicial notice under Federal
Rule of Evidence 201. See Jackson, 194 F.3d at 745. Here, the Court declines to convert the motion into one for

2

Trafficking a Controlled Substance in the First Degree while in Possession of a Firearm,
Possession of a Handgun by a Convicted Felon, Wanton Endangerment in the First Degree,
Fleeing or Evading Police in the First Degree, Resisting Arrest, and Illegal Use or Possession of
Drug Paraphernalia. ECF No. 42(3). Plaintiff pleaded guilty to Possession of a Controlled
Substance in the First Degree, Fleeing or Evading Police in the Second Degree, Wanton
Endangerment in the First Degree, Illegal Use or Possession of Drug Paraphernalia, and
Resisting Arrest. ECF No. 42(6). On July 2, 2012, Plaintiff filed the instant action.
II.
Pursuant to 42 U.S.C. § 1983, Plaintiff advances claims for various constitutional
violations: 1) excessive force against Defendants McKinney and Wright, in their individual and
official capacities; 2) failure to intervene against Defendants McKinney, Healey, Wright,
Carthan, Browning, Sherrard, Fowler, Bottoms, Duncan, Eichberger, Frye, Lee, LeFlore,
Morgan, and Walz, in their individual and official capacities; 3) illegal search and seizure against
Defendants Healey and Redfield, in their individual and official capacities; 4) false arrest against
Defendants McKinney, Healey, Sherrard, and Wright, in their individual and official capacities;
and 5) failure to train against Defendants Harder, Stone, Pearson, Buckner, White, and Fischer,
in their official capacities. ECF No. 17.
Defendants move the Court to dismiss all these claims. ECF No. 42. When considering
a motion to dismiss pursuant to Rule 12(b)(6), courts must “construe the complaint in the light
most favorable to the plaintiff” and “accept all well-pleaded factual allegations as true.” La. Sch.
Emps.' Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010). The Court will draw

summary judgment and takes notice of the indictment and judgment of conviction, as they are “not subject to
reasonable dispute.” Fed. R. Evid. 201(b).

3

all reasonable inferences in favor of the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
A plaintiff “must plead ‘enough factual matter’ that, when taken as true, ‘state[s] a claim
to relief that is plausible on its face.’” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th
Cir. 2010) (quoting Bell Atl. Corp., 550 U.S. at 556). “Plausibility requires showing more than
the ‘sheer possibility’ of relief but less than a ‘probab[le]’ entitlement to relief.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court recognizes that pro se pleadings are to
be held to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). But the Court is not required to “create a claim” for Plaintiff.
Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).
III.
The Court will first address the constitutional claims against Defendants in their
individual capacities. “To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts
that, when construed favorably, establish (1) the deprivation of a right secured by the
Constitution or laws of the United States (2) caused by a person acting under the color of state
law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West v. Atkins,
487 U.S. 42, 48 (1998)). Plaintiff’s surviving claims arise out of the Fourth Amendment.
Defendants do not dispute that they were acting under the color of law.
Defendants seek dismissal on the sole ground that Plaintiff’s various convictions bar his
claims under Heck. Heck v. Humphrey, 512 U.S. 477 (1994).

Because of this, the Court’s

analysis will only address dismissal on this ground.3
In Heck, the Supreme Court held that
3

Defendants seem to raise the issue of qualified immunity in their reply to Plaintiff’s response to Defendant’s
motion to dismiss. See ECF No. 65. Because neither party has briefed the issue fully, the Court will not address
this argument.

4

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 determination,
or called into question by a federal court’s issuance of a writ of habeas corpus.
Id. at 486−87.

Plaintiff’s convictions have not been reversed or otherwise invalidated.

Defendants argue that Plaintiff’s claims are barred because he was “convicted of the charges
stemming from” the incident on which he bases his § 1983 claims. ECF No. 42. However, the
Sixth Circuit has clearly stated that a more precise inquiry is required, whereby “the court must
look both to the claims raised under § 1983 and to the specific offenses for which the § 1983
claimant was convicted.” Schreiber v. Moe, 596 F.3d 323, 334 (quoting Swiecicki v. Delgado,
463 F.3d 489, 493 (6th Cir. 2006), abrogated on other grounds by Wallace v. Kato, 549 U.S. 384
(2007)). That is, “[t]he mere fact that the conviction and the § 1983 claim arise from the same
set of facts is irrelevant if the two are consistent with one another.” Id. The Heck doctrine
applies only where a § 1983 claim would necessarily imply the invalidity of the conviction. See
Nelson v. Campbell, 541 U.S. 637, 647 (2004).
A.
Plaintiff claims that Defendants McKinney and Wright violated his Fourth Amendment
right to be free from the use of excessive force. Defendants argue that Plaintiff’s conviction for
resisting arrest bars this claim. See ECF No. 42. In Schreiber, the Sixth Circuit considered
whether Heck applied to an excessive force claim by a Plaintiff previously convicted of resisting
arrest. 596 F.3d at 334. The Court explained that generally, such a conviction does not bar an
excessive force claim. See id.

However, there are two circumstances in which such a claim

5

might conflict with a conviction: “when the criminal provision makes lack of excessive force an
element of a crime . . . [and] when excessive force is an affirmative defense to the crime.” Id.
In Kentucky, neither lack of excessive force nor lawful arrest is an element of resisting
arrest.4 See Donovan v. Thomas, 105 F.3d 291, 298 n.8 (6th Cir. 1997). Therefore, lack of
excessive force was not necessary to uphold the judgment. However,

excessive

force

is

a

defense to resisting arrest in Kentucky. The commentary to Kentucky Revised Statute § 520.090
provides: “the unlawfulness of an arrest may not be raised as a defense to a prosecution under
this section.” Ky. Rev. Stat. Ann. § 520.090. But such defense will be permitted “when the
person effecting an arrest cannot be identified as a peace officer” or “where the officer used more
force than is reasonably necessary to effect the arrest so that his conduct constitutes an assault on
the person arrested.” Id. Plaintiff asserts that he did not know McKinney and Wright were
police officers and that they used more force than necessary to effect the arrest. See ECF No. 11.
A favorable judgment on a § 1983 claim based on excessive force could therefore provide a
defense to the crime of resisting arrest under Kentucky law as to the force exerted to effectuate
the arrest.
However, “[a]n excessive force claim is not barred when the alleged use of force
occurred after the suspect was handcuffed and brought under control.” Matheney v. Cookeville,
Tenn. 461 Fed. Appx. 427, 431 (6th Cir. 2012). Plaintiff alleges that he was handcuffed and
subsequently sustained injuries at the hands of the officers.

This force would not be

“inextricably intertwined” with Plaintiff’s resistance to arrest. Id. A jury could find that the

4

Kentucky Revised Statute § 520.090(1) states:
(1) A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a peace
officer, recognized to be acting under color of his official authority, from effecting an arrest of the actor or
another by: (a) Using or threatening to use physical force or violence against the peace officer or another;
or (b) Using any other means creating a substantial risk of causing physical injury to the peace officer or
another.

6

arrest was effectuated at the time Plaintiff was handcuffed, thereby leaving Plaintiff’s claim
undisturbed.
Based on the foregoing, the Court will not dismiss Plaintiff’s claim of excessive force
against McKinney and Wright.
B.
Plaintiff alleges that Defendants McKinney, Healey, Wright, Carthan, Browning,
Sherrard, Fowler, Bottoms, Duncan, Eichberger, Frye, Lee, LeFlore, Morgan, and Walz failed to
intervene when witnessing excessive force being used against Plaintiff by McKinney and
Wright. The elements of the failure to intervene are “(1) the officer observed or had reason to
know that excessive force would be or was being used, and (2) the officer had both the
opportunity and the means to prevent the harm from occurring.” Turner v. Scott, 119 F.3d 425,
429 (6th Cir. 1997).
Defendants argue that Plaintiff’s failure to intervene claims should be dismissed as a
result of the dismissal of Plaintiff’s excessive force claims. See ECF No. 42. Defendants
contend that Plaintiff’s guilty plea establishes that the officers did not use excessive force, so the
first prong of the failure to intervene test cannot be met. See id. Based upon the Court’s
previous analysis, Plaintiff’s excessive force claims are not barred under the Heck doctrine, and
Plaintiff’s guilty plea fails to establish that the officers did not use excessive force. Therefore,
Defendants’ argument fails, and Plaintiff’s failure to intervene claim against all named
Defendants remain.
C.
Plaintiff advances a claim against Defendants Healey and Redfield for violating his
Fourth Amendment right to be free from unreasonable search and seizure. Plaintiff claims that

7

these officers illegally searched a residence at 2309 Dexter Street, Louisville, Kentucky 40216.
Defendants argue that Plaintiff’s claim is barred under the Heck doctrine because “the
methamphetamine found at the residence was used to support his conviction of possession of a
controlled substance methamphetamine.” ECF No. 42.
Defendants’ argument fails because Plaintiff’s claim does not necessarily imply the
invalidity of his conviction. Plaintiff asserts that all of the methamphetamine found during the
incident was seized from his motorcycle, not the residence. See ECF No. 43. Accepting this as
true, there is no factual overlap between his conviction and the current charge. In addition, the
Sixth Circuit has stated that § 1983 search and seizure claims are generally not barred under
Heck. Possession-related convictions would not necessarily be impugned because of doctrines
like independent source and inevitable discovery, which provide avenues around the
exclusionary rule. See Heck, 512 U.S. at 487 n.7.
Therefore, the Court will not dismiss Plaintiff’s illegal search and seizure claims.
D.
Plaintiff brings a claim for wrongful arrest against Defendants McKinney, Healey,
Sherrard, & Wright. Defendants argue that “since Plaintiff’s conviction has not been invalidated,
his constitutional claim of false arrest is not cognizable.” ECF No. 42. False arrest is the
intentional arrest of a person without probable cause, defined as “whether at that moment the
facts and circumstances within [the officers’] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent [person] in believing that the
[arrestee] had committed or was committing an offense.” Butts v. City of Bowling Green¸ 374 F.
Supp. 2d 532, 541 (W.D. Ky. 2005) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

8

The Western District of Kentucky has explained, “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.” Goins v. City of Shively, 3:10-CV-386-S, 2011 WL 2610519 (W.D.
Ky. July 1, 2011) (quoting Helfrich v. City of Lakeside Park, No.2008–210(WOB), 2010 WL
3927475 at *1 (E.D. Ky. Oct. 4, 2010). Plaintiff claims he was falsely arrested for fleeing and
eluding police, wanton endangerment, resisting arrest, possession of a machine gun and silencer,
and trafficking of a controlled substance. Plaintiff pleaded guilty to three of these offenses. See
ECF No. 42(6). Under Heck, Plaintiff’s plea precludes any false arrest claim he has premised on
that arrest.5
Therefore, the Court will dismiss Plaintiff’s false arrest claim as to all named Defendants.
IV.
The Court will now address the constitutional claims against Defendants in their official
capacities. As a threshold matter, “[s]uing a government employee in his official capacity
‘generally represent[s] only another way of pleading an action against an entity of which an
officer is an agent.’” Baar v. Jefferson Cnty. Bd. of Educ., 686 F. Supp. 2d 699, 704 (W.D. Ky.
2010) aff'd, 476 F. App'x 621 (6th Cir. 2012) (quoting Ky. v. Graham, 473 U.S. 159, 165−66
(1985)).

5

Specifically, Plaintiff pleaded guilty to offenses including fleeing and eluding police, wanton endangerment, and
resisting arrest. At least one court has found that when a § 1983 Plaintiff states that his or her false arrest claim is
premised on an arrest for a charge that is later dismissed rather than one for which he or she pleaded guilty, the false
arrest claims can be bifurcated. See Goins v. City of Shively, 3:10-CV-386-S, 2011 WL 2610519 (W.D. Ky. July 1,
2011) (Heck did not bar Goins’s false arrest claim premised on his arrest for driving under the influence, a charge
which was later dismissed, but such a claim premised on his arrest for disorderly conduct, a charge to which he
pleaded guilty, would have been barred). However, the claims will not be bifurcated if the Plaintiff’s alleged
offenses “were all related and based on the same unbroken chain of events occurring close in time.” Helfrich v. City
of Lakeside Park, CIV.A. 2008-210 WOB, 2010 WL 3927475 (E.D. Ky. Oct. 4, 2010). The Court need not make
this determination because Plaintiff failed to plead that his false arrest is not based on a charge for which he was
convicted.

9

“In evaluating a § 1983 claim against a municipality, courts must analyze two distinct
issues: 1) whether a constitutional violation caused plaintiff's harm, and 2) if so, whether the
municipality is responsible for that constitutional violation.” Scherzinger v. Bolton, 3:11-CV00011-H, 2013 WL 3821734 (W.D. Ky. July 23, 2013) (citing Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992)). Defendants argue only that because all claims should be
dismissed against them in their individual capacities, relief against Defendants in their official
capacities is precluded as well. At this point at least, because some claims against Defendants in
their individual capacities are not dismissed, Defendants’ argument fails.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss is SUSTAINED IN
PART and Plaintiff’s claims for false arrest against Defendants, in their individual and official
capacities, are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief
may be granted.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss is DENIED IN PART
as to the following claims:
1) Excessive force claims against Defendants McKinney and Wright, in their individual and
official capacities;
2) Failure to intervene claims against Defendants McKinney, Healey, Wright, Carthan,
Browning, Sherrard, Fowler, Bottoms, Duncan, Eichberger, Frye, Lee, LeFlore, Morgan,
and Walz, in their individual and official capacities;
3) Illegal search claims against Defendants Healey and Redfield, in their individual and
official capacities;

10

4) Failure to train claims against Defendants Harder, Stone, Pearson, Buckner, White, and
Fischer, in their official capacities.
IT IS FURTHER ORDERED that Defendants’ motion to stay discovery pending
resolution of the Defendants’ motion to dismiss (ECF No. 66) is MOOT.

September 20, 2013

cc:

Counsel of Record

11