Ayers v. Anderson et al

Filing 61

MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 1/14/2020. re 58 Second MOTION for Summary Judgment . A separate order shall enter. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

WILLIAM AYERS
vs.

PLAINTIFF
CIVIL ACTION NO. 3:16-CV-572-CRS

TIM ANDERSON, et al.

DEFENDANTS

MEMORANDUM OPINION
This matter is before the Court on second motion for summary judgment by Defendants.
DN 58. Plaintiff filed a response. DN 59. This matter is now ripe for adjudication. For the
reasons below, Defendants’ motion for summary judgment will be granted.
I. Legal Standard
Summary judgment is appropriate when the moving party can show “there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
48 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. In undertaking this analysis, the
Court must view the evidence in the light most favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007).
The party moving for summary judgment bears the burden of proof for establishing the
nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
They can meet this burden by “citing to particular parts of materials in the record” or “showing

that the materials cited do not establish the…presence of a genuine dispute.” Fed. R. Civ. P.
56(C)(1). This burden can also be met by demonstrating that the nonmoving party “fail[ed] to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The
nonmoving party also “must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).
II. Factual Background
Defendants are employees of the Kentucky Department of Corrections, Division of
Probation and Parole (“Probation”). DN 7 at 1. William Ayers (“Ayers”) was convicted of a
felony in the Commonwealth of Kentucky for failing to file state income tax returns. DN 35 at 1.
Ayers was sentenced to five years of supervised probation with a variety of conditions, including
the payment of court costs, a fine, and the completion of 100 community service hours. DN 35 at
1. Ayers did not comply with the conditions of his probation, and on February 24, 2015, Judge
Susan Schultz Gibson of the Jefferson County Circuit Court, Kentucky, set additional deadlines
for compliance. DN 30-2 at 1-3. In her order, Judge Gibson also authorized Probation to “impose
graduated sanctions pursuant to KRS 439.553 for violation of the conditions of probation.” DN
22-1 at 11.
According to the record before the Court, Ayers continued to violate the conditions of his
probation. In a “Violation of Supervision Report,” dated July 10, 2015, Ayers’ probation officer,
Tim Anderson (“Anderson”), documented Ayers’ failure to pay fines and court costs. DN 22-1
at 6. According to the report, Anderson stated to Ayers that Probation would apply graduated
sanctions if Ayers continued to violate the terms of his probation. DN 22-1 at 6. In a “Violation

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Report with Graduated Sanctions,” dated August 13, 2015, Anderson documented Ayers’
continued failure to comply with sanctions. DN 30-3 at 1. On that report, Ayers did not initial
either of the following statements in the section titled “Initials:”
____ I am admitting that I am guilty of each and every violation contained in this
form and agree to the recommended graduated sanction(s). For Discretionary
Detention, I agree to serve days in custody from ________ to ________.
____ I am declining imposition of the graduated sanction(s) and request a hearing
before the releasing authority.
DN 30-3 at 1. However, Ayers did sign the report less than an inch below the following statement:
I understand that I have the right to a hearing before the releasing authority and the
right to be represented by a lawyer at my hearing, including the right to a Public
Defender (at no cost) if I cannot afford to hire a lawyer. I understand the violations
set forth above and I hereby state that I do not want and hereby waive my right to
have a hearing. I further state that I do not want and hereby waive my right to be
represented by a lawyer in this matter. I hereby freely and voluntarily admit
violating the conditions of my probation/parole as set forth above. Instead of having
a hearing, I hereby agree to accept the above sanctions, as recommended by my
Probation and Parole Officer. I also agree to resume compliance with all the terms
and conditions of my probation/parole and I further understand that should I violate
any of the terms and conditions of my probation/parole or should I fail to abide by
the above recommended sanctions that I will be subject to arrest and to revocation
of my probation/parole. Other than the sanctions as listed above I have not been
promised anything to agree to this waiver and I hereby sign this waiver freely and
voluntarily and state that I am not under the influence of alcohol, narcotics or other
drugs.
Id.
Ayers admits that when he reported to Probation on September 15, 2015, he “actually was
in violation of probation…for not completing Community Service on time despite a good faith
effort.” DN 59 at 2. Anderson “offered the graduated sanction of 30 days of electronic monitoring
due to non completion of community service hours as court ordered” but “Mr. Ayers refused the
graduated sanction that was offered.” DN 22-1 at 7. Ayers alleges that, at this point in the meeting,
Anderson and another probation officer “grab[ed] Plaintiff without his permission, and twisted his
arms behind his back and placed hand-cuffs on his wrists, and pushed him down onto a chair
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causing pain and humiliation.” DN 1-1 at 1. Ayers was arrested and detained on a probation
violation detainer. DN 22-1 at 7. Ayers remained in custody until September 23, 2015, when he
appeared before Judge Gibson and was released. DN 30-4 at 1. On October 21, 2015, Ayers
appeared before Judge Gibson for a revocation hearing. DN 30-5 at 1. Judge Gibson found that
the nine days Ayers spent in custody on detainer satisfied the graduated sanctions and ordered him
to complete the remaining 42 hours of community service of his sentence within 90 days. DN 305 at 1.
III. Procedural History
Ayers, appearing pro se, filed a complaint in this Court on Sep 8, 2016 against Defendants
Tim Anderson, Bob Rodriguez, and unnamed Defendants John Doe and Jane Doe. DN 1 at 1. In
his complaint, Ayers made the following claims based on his detention beginning September 15,
2015: Fourth Amendment unreasonable search and seizure, Fourteenth Amendment due process,
Eighth Amendment cruel and unusual punishment, false imprisonment,1 extreme emotional
distress, defamation per se, assault and battery. On March 22, 2018, this Court dismissed
Plaintiff’s Fourth Amendment and Fourteenth Amendment claims. DN 38. On July 24, 2019,
Defendants filed a second motion for summary judgment on Plaintiff’s remaining claims except
for assault and battery. DN 58.
IV. Discussion
Plaintiff’s remaining claims are as follows: Eighth Amendment cruel and unusual
punishment, false imprisonment, extreme emotional distress, defamation per se, assault and
battery. The Court will address each claim.

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In addition to false imprisonment, Plaintiff also claims false arrest. As Kentucky law does not distinguish between
false arrest and false imprisonment, the Court will address both the “false arrest” and “false imprisonment” claims
under the title of false imprisonment. Lexington-Fayette Urban County Government v. Middleton, 555 S.W.2d 613,
619 (Ky. App. 1977).

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A. Eighth Amendment Cruel and Unusual Punishment
Ayers argues that his nine-day detainer amounted to cruel and unusual punishment in
violation of the Eighth Amendment because “[a]n arrest was not authorized by the graduated
sanctions, much less a maximum 9 days detainer.” DN 59 at 1. According to Ayers, the nine-day
detainer is the “gravamen of plaintiff’s complaint” and the “basis for plaintiff’s claim that
Anderson acted with MALICE.” DN 59 at 1 (emphasis in original). By his own admission then,
Ayers’ eighth Amendment claim hinges on the alleged illegality of his detention.2 Ayers’
argument is without merit because (1) this Court already issued summary judgment based on
qualified immunity for constitutional claims arising out of Ayers’ detention and (2) to the extent
that any claims based on Ayers’ detention survive qualified immunity, the detention itself was
authorized by law.
1. Qualified Immunity
On March 22, 2018, this Court granted summary judgment on Defendants’ Fourth
Amendment and Fourteenth Amendment constitutional claims under the theory of qualified
immunity. Id. at 6. The Court stated “even if the Defendants failed to comply with all of the
statutory and regulatory provisions regarding the implementation of graduated sanctions, the
Plaintiff has not met his burden of showing that his arrest or detainment violated his clearly
established constitutional rights.” DN 37 at 7. Now, Ayers repackages the same failed Fourth and
Fourteenth Amendment claims as a “new” claim of cruel and unusual punishment under the Eighth
Amendment. Defendants are immune from suit on Plaintiff’s Eighth Amendment claim for the
same reason they were immune from suit for Plaintiff’s Fourth and Fourteenth Amendment claims:
Ayers has not cited to, and this court is not aware of, any Kentucky precedent
concerning whether a probation officer’s imposition of graduated sanctions under
2

To the extent that Ayers bases his complaint on the conditions of his confinement, as opposed to the confinement
itself, his argument is also without merit because probation officers are not responsible for jail conditions.

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the administrative regulations, particularly when a court has authorized Probation
to use graduated sanctions and the probationer has waived his right to a revocation
hearing, can result in a deprivation of constitutional rights.
Id. at 37.
2. Authorization by Law
Even if Ayers’ Eighth Amendment claim could survive Defendants’ qualified immunity as
a separate cognizable claim, the claim fails because his arrest and detention were authorized by
law. On February 24, 2015, Judge Gibson entered an order recognizing that Ayers violated
conditions of his probation by failing to pay fees and fines, perform community service, and
provide verification of his compliance with state and federal tax laws. DN 30-2 at 1-3. The court
ordered that “Probation and Parole may impose graduated sanctions pursuant to KRS 439.553 for
violation of the conditions of probation.” Id. at 3. Kentucky Revised Statute 439.553 authorizes
“the department supervising the individual” to “impose graduated sanctions adopted by the
department for violations of the conditions of community supervision” in accordance with KRS
439.3108.
Ayers admits he “actually was in violation of probation” when he reported to Anderson on
or about September 15, 2015. DN 59 at 2. Anderson was thus authorized to impose graduated
sanctions in accordance with KRS 439.3108, which states, in relevant part:
(1) Notwithstanding any administrative regulation or law to the contrary, including
KRS 439.340(3)(b), the department or board may:
(a) Modify the conditions of community supervision for the limited purpose of
imposing graduated sanctions;
(b) Place a supervised individual who is on probation who violates the conditions
of community supervision in a state or local correctional or detention facility or
residential center for a period of not more than ten (10) days consecutively, and not
more than sixty (60) days in any one (1) calendar year.

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Ayers alleges Anderson did not have the authority to detain Ayers because Anderson did
not administer graduated sanctions in accordance with 501 KAR 6:250, a Kentucky State
regulation. DN 35 at 4. Ayers’ argument is without merit for two reasons. First Anderson did
comply with 501 KAR 6:250 when he detained Ayers. Second, even if Anderson did not comply
with 501 KAR 6:250, Anderson was independently and statutorily authorized by KRS 439.3108
to detain Ayers for up to ten days.
a. 501 KAR 6:250
Kentucky Administrative Regulation Title 501 is a state regulation that recommends
appropriate graduated sanctions when “the sentencing court orders the offender to be subject to
graduated sanctions as part of the conditions of his probation.” 501 KAR 6:250, § 2. To guide
officers in the application of graduated sanctions, Section Five of 501 KAR 6:250 includes a matrix
outlining a recommended range of sanctions based on the offender’s risk level and the violation
(or violations) observed. The lowest risk level listed is for probationers with an “administrative
risk.” Id. According to the matrix, Probation may choose a graduated sanction from “Response
Range 2” for offenders with an administrative risk who have committed three or more minor
violations. Id. Response Range 2 includes discretionary detention for up to ten days with
supervisor approval.3 Id. Minor violations include non-payment of fines and non-compliance with
community service obligations. Id. The record indicates that at the time of Ayers’ detention, he
had been found in minor violation of his probation at least four times: (1) on February 24, 2015
when the Jefferson Circuit Court found Ayers was not in compliance with the terms of his
In his initial complaint, Ayers does not allege Anderson lacked his supervisor’s approval to initiate detention. In
fact, Ayers’ initial complaint surmises that the officer who, along with Anderson, placed Ayers in handcuffs “may
be the supervisor of PO Anderson.” DN 1-1 at 1. Later, in his response to Defendants’ first motion for summary
judgment Ayers claimed Anderson “did not consult with a supervisor when P ‘refused’ the GS of home
incarceration.” DN 35 at 6. Contrary to this claim, the August 13, 2015 Violation Report with Graduated Sanctions
includes a signature in the “Supervisor Signature” block above the following statement: “Supervisory Approval: I
have reviewed and approved the above discretionary detention and/or deviation from sanctioning grid.” DN 30-3.
3

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probation, DN 22-1 at 11, (2) on July 10, 2015, when Anderson filed a Violation of Supervision
Report, DN 22-1 at 6, (3) on August 13, 2015, when Anderson filed a Violation Report with
Graduated Sanctions, DN 30-3 at 1, and (4) on September 15, 2015 when Anderson reported to
probation, DN 59 at 2. Accordingly, 501 KAR 6:250 authorized Anderson to detain Ayers for up
to ten days.
b. KRS 439.3108
Ayers was independently authorized by KRS 439.3108 to detain Ayers. Kentucky Revised
Statute 439.3108 plainly authorizes probation officers to detain non-compliant probationers for up
to ten days “[n]otwithstanding any administrative regulation or law to the contrary….” KRS
439.3108 (emphasis added).

“Any administrative regulation” includes 501 KAR 6:250.

Therefore, even if Anderson did not follow the matrix of graduated sanctions found in 501 KAR
6:250, he was independently authorized by KRS 439.3108 to detain Ayers for up to ten days.
Ayers further argues Anderson could not detain him “even for an hour” because KRS
439.3108 granted Ayers the right to a pre-detention hearing. DN 35 at 5. However, Ayers did not
have a right to a detention hearing prior to execution of the detainer on September 15, 2015 for
two reasons. First, Ayers waived any right he may have had to a hearing when he signed the
August 13, 2015 Violation Report below a statement containing the following sentence: “I
understand the violations set forth above and I hereby state that I do not want and hereby waive
my right to have a hearing.” DN 30-3 at 1. Second, even if Ayers had not waived his right to a
hearing, he had already received a hearing on February 20, 2015 before Judge Gibson. DN 30-2
at 1-3. Following that hearing, where Ayers was represented by counsel, Judge Gibson authorized
Probation to impose graduated sanctions “pursuant to KRS 439.553.” Id. Section 439.553

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authorizes Probation to “impose graduated sanctions in accordance with KRS 439.3108”—
sanctions that include detention for up to ten days.
Viewing the evidence in the light most favorable to Ayers, a rational juror could not find
that his detainer was anything other than authorized by law. As Ayers’ detention (the “gravamen”
of his complaint) was legally authorized, Ayers’ detention was not “cruel and unusual” within the
meaning of the Eighth Amendment, and the Court will grant Defendants’ motion for summary
judgment on that claim.
B. False Imprisonment
Ayers’ false imprisonment claim is without merit. A plaintiff alleging false imprisonment
must establish that his arrest was made without legal authority. Smith v. Peyman, 93 F. Supp. 3d
738, 751 (E.D. Ky. 2015). As the Court has already explained, Anderson was authorized to detain
Ayers for up to ten days by 501 KAR 6:250, KRS 439.3108, and Judge Gibson’s order.
Accordingly, the Court will grant Defendants’ motion for summary judgment on Ayers’ false
imprisonment claim.
C. Extreme Emotional Distress
Ayers’ emotional distress claim is without merit. In Kentucky, recovery for emotional
distress is limited to “severe” or “serious” emotional injury and “a plaintiff claiming emotional
distress damages must present expert medical or scientific proof to support the claimed injury or
impairment.” Osborne v. Keeney, 399 S.W.3d 1, 17-18 (Ky. 2012). The record cannot support a
finding that Ayers suffered “severe” or “serious” emotional injury. Furthermore, Ayers argument
must fail because he has failed to present any “expert medical or scientific proof” to support his
claim. Accordingly, the Court will grant Defendants’ motion for summary judgment on Ayers’
extreme emotional distress claim.

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D. Defamation Per Se
Ayers’ defamation claim is without merit. In the record, we find only one fleeting mention
of Ayers’ defamation claim. DN 6 at 1 (“Said warrantless arrest and 10 days confinement did in
fact have the desired affect on Plaintiff that Defendants intended: it caused Plaintiff to be Falsely
Arrested, Falsely Imprisoned, Extreme Emotional Distress, and Defamation Per Se.”) (emphasis
added). To establish a claim for defamation, Ayers must prove the following elements: (1)
Defendants used defamatory language, (2) about Plaintiff, (3) which was published, and (4) which
caused injury to reputation. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004)
(overruled on other grounds by Toler v. Süd-Chemie, Inc., 458 S.W.3d 276 (Ky. 2014)). Ayers
has failed to articulate any grounds by which a rational juror could find any of the above elements.
As nothing in the record supports a finding of defamation, the Court will grant Defendants’ motion
for summary judgment on Ayers’ defamation claim.
E. Assault and Battery
Ayers alleges Defendants committed assault and battery when they “grab[bed] Plaintiff
without his permission, and twisted his arms behind his back and placed hand-cuffs on his wrists,
and pushed him down onto a chair causing him pain and humiliation.” DN 1-1 at 1. Defendants
have not moved for summary judgment on Ayers’ assault and battery claims. Accordingly, this
opinion and order do not dispose of those claims.

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V. Conclusion
For the reasons stated herein, a separate order will be entered this date in accordance with
this opinion.

IT IS SO ORDERED.

January 14, 2020

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