Evans v. Muhlenberg County, Kentucky et al

Filing 15

MEMORANDUM OPINION AND ORDER denying 12 Motion to Dismiss. Signed by Chief Judge Joseph H. McKinley, Jr on 10/21/2015. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:15CV-00061-JHM
JAMES E. EVANS

PLAINTIFF

V.
MUHLENBERG COUNTY, KENTUCKY,
and MICHAEL A. DRAKE, in his individual capacity

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Defendants, Muhlenberg County,
Kentucky, and Michael A. Drake, to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) [DN 12]. Fully
briefed, this matter is ripe for decision.
I. STANDARD OF REVIEW
Upon a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
a court “must construe the complaint in the light most favorable to plaintiff,” League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all
well-pled factual allegations as true[,]” id., and determine whether the “complaint states a
plausible claim for relief[,]” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard,
the plaintiff must provide the grounds for his or her entitlement to relief which “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only
when he or she “pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls
short if it pleads facts “merely consistent with a defendant’s liability” or if the alleged facts do
not “permit the court to infer more than the mere possibility of misconduct.” Id. at 678, 679.

Instead, the allegations must “‘show[ ] that the pleader is entitled to relief.’” Id. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). It is against this standard the Court reviews the following facts.
II. BACKGROUND
On August 24, 2014, Plaintiff James Evans posted on Facebook a portion of the lyrics
from a song entitled Class Dismissed (A Hate Primer) by the band Exodus. The post contained
the following lyrics without quotation or citation to the band, the song title, or any additional
text:
Student bodies lying dead in the halls
A blood splattered treatise of hate
Class dismissed is my hypothesis
Gun fire ends he [sic] debate
All I ever wanted was a little affection
But no one ever gave it to me
My hate primer’s the result of my rejection
You’ll die for it, and I’ll die for thee
(Complaint ¶ 10.) At the time of Plaintiff’s Facebook post, his Facebook page was viewable by
third parties irrespective of whether or not they were Plaintiff’s Facebook friends.
Plaintiff’s Facebook post came to the attention of law enforcement officials, and they
initiated a multi-agency investigation into the post. The participating officers included members
of the Greenville Police Department, Central City Police Department, Muhlenberg County Police
Department, Kentucky State Police, Powderly Police Department, and Muhlenberg County
Police Department. They communicated with each other about the post via a group text. The
participating officers, including Defendant Michael Drake, learned that Plaintiff had on several
occasions posted lyrics from other songs on Facebook and that Plaintiff’s August 24th post
consisted of lyrics from a song published by Exodus.
In an effort to speak with Plaintiff, officers from the Greenville Police Department and
the Kentucky State Police went to the Greenville Park Apartments on August 24, 2014, to
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interview Plaintiff.

However, the responding officers learned that Plaintiff did not live in

Greenville, but in Central City. Officers from the Central City Police Department located
Plaintiff at his residence on August 24th and interviewed him about the post.

Plaintiff

cooperated with the investigation and answered the officers’ questions. After conducting their
interview of Plaintiff, the Central City Police officers left without arresting or otherwise charging
Plaintiff with any criminal offense. Plaintiff alleges that he informed the officers that he did not
intend to communicate a threat and that no reasonable person could have construed it as such in
light of the above information.
With full knowledge of the investigation conducted, Defendant Drake, a Muhlenberg
County school Safety Resource Officer1, submitted a sworn Criminal Complaint/Affidavit on
August 25, 2014, in support of an arrest warrant for Plaintiff. Drake’s affidavit stated in its
entirety:
The Affiant, Officer Mike Drake, states that on 8/24/2014
in MUHLENBERG County, Kentucky, the above named
defendant unlawfully: committed the offense of Terroristic
Threatening, to-wit: by threatening to kill students and or staff at
school.
(Complaint at ¶ 31.) The Affidavit did not provide details about the specific language of the
alleged threat, whether the threat specified a particular school, building, vehicle, or event; or the
manner in which the treat was communicated. Additionally, Plaintiff points out that Drake did
not include in his affidavit any information that he learned through the multi-agency
investigation including: the threat consisted solely of song lyrics; lyrics were from a song
recorded by the band Exodus; the alleged threat was communicated via a Facebook post;
Plaintiff previously posted lyrics from other songs on Facebook; officers located and interviewed

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Drake’s job as a Muhlenberg County school system’s Safety Resource Officer was not contained in the
Complaint of this matter.

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Plaintiff; Plaintiff cooperated with the investigation; and Plaintiff denied threatening anyone by
posting the lyrics online. Plaintiff alleges that by stating that he threatened to kill students and/or
staff at school, Defendant Drake knowingly and intentionally made a material misstatement of
fact. Further, Plaintiff contends that Defendant Drake knowingly and intentionally omitted
relevant and material information from his affidavit that, had it been included, would have
established that probable cause did not exist to arrest Plaintiff.
As a result of the affidavit, an arrest warrant was issued on August 25, 2014, for
Plaintiff’s arrest for the felony offense of Terroristic Threatening in the First Degree. On August
26, 2014, Plaintiff was arrested and remained in custody until September 3, 2014, because he did
not have the bond required to obtain his release. On September 3, 2014, Plaintiff was released
on his own recognizance. Ultimately, the sole charge was dismissed. During the criminal
prosecution, no probable cause hearing was held, and no grand jury returned an indictment
against Plaintiff.
Plaintiff filed this civil rights action against Defendants Michael Drake individually and
against Muhlenberg County, Kentucky, pursuant to 42 U.S.C. § 1983 alleging that he was
unlawfully seized, incarcerated, and prosecuted by Defendants without probable cause in
violation of his rights under the Fourth and Fourteenth Amendments of the United States
Constitution. Plaintiff also asserts a state law claim against Defendant Drake in his individual
capacity for malicious prosecution.
III. DISCUSSION
Defendants argue that dismissal of Plaintiff’s civil rights action under 42 U.S.C. § 1983
should be granted because the individual capacity claims against Drake are barred by qualified
immunity either because Drake did not violate Plaintiff’s rights or because Drake’s actions did

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not violate a clearly established right such that a reasonable official would have known of the
unlawfulness of the conduct. Similarly, Muhlenberg County asserts that Plaintiff’s Monell claim
must be dismissed because Plaintiff has failed to demonstrate that a constitutional violation
occurred. Additionally, the County also asserts that the complaint lacks the requisite specificity
to adequately state a cause of action for municipal liability.
A. Qualified Immunity
“Under the doctrine of qualified immunity, ‘government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Miller v. Sanilac County, 606 F.3d 240, 247 (6th Cir.
2010)(quoting Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008)(quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To demonstrate that Defendants are not entitled to
qualified immunity, Plaintiff must prove that a constitutional right was violated and that the right
was clearly established at the time of the violation, i.e., that a reasonable officer confronted with
the same situation would have known that a warrantless search of Plaintiff's business would
violate the Plaintiff's right. Scott v. Harris, 550 U.S. 372, 377 (2007). For a right to be clearly
established, “[t]he contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Ammex, Inc. v. Durant, 381 Fed. Appx.
482, 485 (6th Cir. 2010) (quotation omitted). Considering the facts in the light most favorable
to the Plaintiff, the Court finds that dismissal of Drake on the basis of qualified immunity is
premature.
Initially, the Sixth Circuit has been clear that “[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

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officer’s entitlement 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.” Wesley
v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015) (internal citations and quotations omitted);
See Grose v. Caruso, 284 Fed. Appx. 279, 283 (6th Cir. 2008); Gavitt v. Born, 2015 WL
5013844, *8-9 (E.D. Mich. Aug. 24, 2015). “The reason for this is simple: determining whether
an official’s conduct was ‘objectively reasonable’—a central component of the application of
qualified immunity—requires careful consideration of the entire record.” Gavitt, 2015 WL
5013844, *8-9 (citing Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook,
J., concurring) (“Rule 12(b)(6) is a mismatch for immunity and almost always a bad ground of
dismissal.”)).
Moreover, notwithstanding the Sixth Circuit’s general admonition against granting
qualified immunity at the pleading stage, the allegations in Plaintiff’s complaint, accepted as
true, suggest that Drake would not be entitled to immunity. With respect to the Fourth
Amendment false arrest claim, Plaintiff alleges that Drake deprived him of his civil rights by
causing an arrest warrant to be issued without probable cause. “To show in response to a motion
to dismiss that the arrest was wrongful, [Plaintiff] must plausibly allege that it was unsupported
by probable cause.” Wesley, 779 F.3d at 429 (citing Thacker v. City of Columbus, 328 F.3d
244, 255 (6th Cir. 2003)). “An officer possesses probable cause when, at the moment the officer
seeks the arrest, “the facts and circumstances within [the officer’s] knowledge and of which [he]
had reasonably trustworthy information [are] sufficient to warrant a prudent man in believing
that the [plaintiff] had committed or was committing an offense.’” Id. (quoting Beck v. State of
Ohio, 379 U.S. 89, 91 (1964). “A probable cause determination is based on the ‘totality of the
circumstances,’ and must take account . . . ‘both the inculpatory and exculpatory evidence.’” Id.

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(citation omitted). “Although precedent ‘does not mandate that law enforcement operatives
should conduct quasi-trials as a necessary predicate to arrest, an officer cannot simply turn a
blind eye toward evidence favorable to the accused or ignore information which becomes
available in the course of routine investigations.” Wesley, 779 F.3d at 429 (internal citations and
quotations omitted).
Here, Plaintiff offers a number of specific allegations in support of his contention that
Drake omitted critical information from the investigation that would support the conclusion that
probable cause did not exist to support Plaintiff’s arrest. Specifically, Drake failed to include in
his affidavit the following information: the specific language of the alleged threat, the manner of
communication of the alleged threat, the alleged threat consisted solely of song lyrics, the
Central City Police Department interviewed Evans, Evans cooperated with law enforcement, and
Evans stated he did not intend to threaten anyone by posting the song lyrics. Furthermore, the
Sixth Circuit has held that “in the context of an officer’s application for an arrest warrant from a
neutral magistrate, the officer violates clearly established law when he makes material omissions
that are ‘deliberate . . . or show[ ] reckless disregard for the truth.’” Wesley, 779 F.3d at 428-429
(quoting Gregory v. City of Louisville, 444 F.3d 725, 758 (6th Cir. 2006)).
Similarly, with respect to Plaintiff’s claim of malicious prosecution against Drake, the
allegations in Plaintiff’s complaint, taken as true, suggest that Drake is not entitled to qualified
immunity on this claim at this stage of the litigation. The Sixth Circuit recognizes “a separate
constitutionally cognizable claim of malicious prosecution under the Fourth Amendment, which
encompasses wrongful investigation, prosecution, conviction, and incarceration.” Sykes v.
Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (internal quotation marks and alterations omitted).
“The tort of malicious prosecution is entirely distinct from that of false arrest, as the malicious-

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prosecution tort remedies detention accompanied not by absence of legal process, but by
wrongful institution of legal process.” Id. (internal quotation marks omitted). “To succeed on a
Fourth Amendment malicious prosecution claim under § 1983 . . . , a plaintiff must prove the
following: (1) a criminal prosecution was initiated against the plaintiff and the defendant made,
influenced, or participated in the decision to prosecute; (2) there was no probable cause for the
criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a
deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved
in the plaintiff’s favor.” Robertson v. Lucas, 753 F.3d 606 (6th Cir. 2014)(citing Sykes, 625
F.3d at 308–09).
In the present case, Plaintiff alleges that in seeking and obtaining a warrant for Plaintiff’s
arrest, Drake made, influenced, or participated in the decision to prosecute Plaintiff; that due to
material omissions, the warrant lacked probable cause; that Plaintiff suffered a deprivation of
liberty apart from the initial seizure; and that the criminal proceedings were resolved in his favor.
Furthermore, it is well established in the Sixth Circuit that “[p]olice officers cannot, in good
faith, rely on a judicial determination of probable cause when that determination was premised
on an officer’s own material misrepresentations to the court.” Gregory v. City of Louisville, 444
F.3d 725, 758 (6th Cir. 2006). Thus, taken as true, Plaintiff’s allegations plausibly show that
Drake is not entitled to qualified immunity because his application for an arrest warrant
contained omissions that are arguably “deliberate . . . or showed reckless disregard for the truth”
and were “material to the finding of probable cause.” Id.
Thus, the Court concludes that Plaintiff successfully pleaded a violation of his clearly
established Fourth Amendment right against wrongful arrest and malicious prosecution and that
the strength of Plaintiff’s complaint also requires rejection of Drake’s claim to qualified

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immunity.

As such, the Court denies Plaintiff’s motion to dismiss on qualified immunity

grounds at this time.
B. Monell Liability
Muhlenberg County seeks dismissal of Plaintiff’s Monell claim arguing that the
complaint fails to adequately allege a municipal custom or policy. Under § 1983, a municipality
can be held liable only if the plaintiff demonstrates that the injury suffered was a direct result of
the municipality’s official policy or custom. Monell v. Department of Social Services, 436 U.S.
658, 691 (1978).

However, municipal liability “may be imposed for a single decision by

municipal policymakers under appropriate circumstances,” such as “where the decisionmaker
possesses final authority to establish municipal policy with respect to the action ordered.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 482 (1986). In other words, municipal liability
will attach for an official’s activity where the official is “responsible for establishing final
government policy respecting such activity.” Id. at 483.
In the present case, Plaintiff alleges in his complaint that Muhlenberg County granted
Officer Drake final decision-making authority as a member of the Muhlenberg County Police
Department on matters related to school-related content.

Further, Plaintiff alleges that by

choosing to seek a warrant for Plaintiff’s arrest due to the school-related content of Plaintiff’s
Facebook post, Defendant Drake’s decision represented an official policy of Defendant
Muhlenberg County, Kentucky. Construing the complaint in the light most favorable to Plaintiff,
the Court rejects Muhlenberg County’s argument that Plaintiff fails to allege a policy or custom
on the part of the municipality.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the motion by

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Defendants, Muhlenberg County, Kentucky, and Michael A. Drake, to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6) [DN 12] is DENIED.

cc: counsel of record
October 21, 2015

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