Cherry v. Howie et al

Filing 21

MEMORANDUM OPINION & ORDER granting 10 Motion to Dismiss for Failure to State a Claim; Dismissing Lynn Pryor as a defendant. Signed by Senior Judge Thomas B. Russell on 3/10/2015. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:14-CV-00179-TBR

ANN CHERRY

Plaintiff

v.
GUY HOWIE, et al,

Defendants

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Lynn Pryor’s Motion to Dismiss. (Docket
No. 10). Plaintiff Ann Cherry has responded, (Docket No. 16), and Defendant has replied,
(Docket No. 20). This matter is now ripe for adjudication. For the following reasons, the Court
will GRANT Defendant’s Motion to Dismiss.
BACKGROUND
Plaintiff Ann Cherry (“Cherry”) brought this litigation against various defendants,
alleging abuse of process, malicious prosecution, and violation of due process. Cherry served as
a Hopkinsville City Councilman. (Docket No. 1). Defendant Guy Howie, (“Howie”), the Chief
of Police of Hopkinsville, Kentucky, proposed an ordinance to the City that would require pawn
shop owners to use an online service known as “Leads Online,” which tracks pawn transactions.
Cherry alleges that Leads Online had provided incentives to Police Departments in exchange for
Departments getting pawn shops to enter into contractual relationships with Leads Online.
Cherry alleges that after “much objection from local pawn shop owners” she tabled the ordinance
against Howie’s wishes, pending an Ethics Panel Review.
scheduled for August 21, 2012 and Cherry was to testify there.

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Id.

The Ethics Hearing was

On August 17, 2012, however, Commonwealth Attorney presented testimony from
Defendant and Hopkinsville police officer Jefferson Alexander, (“Alexander”), to a grand jury.
Alexander testified that Cherry coerced a woman to “change her story” regarding a burglary that
took place in Cherry’s neighborhood and to state that the burglary suspect the woman saw was
black, and not white as she initially claimed. Id. Alexander also testified that Cherry “tampered
with public records” by allegedly sending a neighbor’s private surveillance video of the alleged
burglar to the media. The Grand Jury returned felony indictments for tampering with public
records and tampering with a witness, and a misdemeanor indictment for official misconduct.
The trial was scheduled for November 19, 2013.
Prior to trial, Pryor presented several plea deals to Cherry. The first was in October
2012, “shortly before the November 2012 election, in which Cherry was the incumbent candidate
for city council.” Id. Pryor offered to dismiss all charges if Cherry would “drop out of the
election before November 2012 and not run for Mayor or City Council again.” Cherry instructed
her defense attorney to tell Pryor that Cherry would consider the offer if Pryor would put it in
writing. Pryor responded that she would put the offer in writing if Cherry would additionally
plead guilty to the misdemeanor. On the morning of trial, Pryor made three offers. The third
offer, which Cherry accepted, agreed to dismiss with prejudice all charges if Cherry would agree
“to drop off the City Council in January 2014, plus agree not run for Mayor, and not run for the
City Council position again.” Id.
Cherry brings this litigation alleging abuse of process, claiming that the criminal charges
were “pursued by each of the defendants because of an ulterior motive and were done without
any basis in fact.” Id. Cherry alleges that the charges were brought in retaliation for Cherry’s

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refusal to vote for Howie’s proposed ordinance. She also alleges a claim of malicious
prosecution, and a violation of due process.
Defendant Pryor filed this Motion to Dismiss, claiming that she has immunity from all
claims.
STANDARD
The Federal Rules of Civil Procedure require that pleadings, including complaints,
contain a “short plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). A defendant may move to dismiss a claim or case because the complaint fails
to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b). When considering a
Rule 12(b)(6) motion to dismiss, the court must presume all of the factual allegations in the
complaint are true and draw all reasonable inferences in favor of the nonmoving party. Total
Benefits Planning Agency, Inc., 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v.
Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). “The court need not, however, accept
unwarranted factual inferences.” Id. (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12
(6th Cir. 1987)).
Even though a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). Instead, the plaintiff's “[f]actual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. (citations omitted). A complaint should contain enough facts “to
state a claim to relief that is plausible on its face.” Id. at 570. A claim becomes plausible “when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 556). If, from the well-pleaded facts, the court cannot “infer more
than the mere possibility of misconduct, the complaint has alleged—but has not ‘show[n]’—‘that
the pleader is entitled to relief.’” Id. at 1950 (citing Fed. R. Civ. P. 8(a)(2)). “Only a complaint
that states a plausible claim for relief survives a motion to dismiss.” Id.
DISCUSSION
1) Abuse of process and malicious prosecution claims
Cherry alleges that Pryor pursued criminal charges against her “because of an ulterior
motive” “in retaliation for her refusal to vote for . . . the proposed ordinance” and that Pryor
initiated the prosecution “without probable cause and for an improper purpose.” Id.
Pryor, a state prosecutor, argues that these claims should be dismissed based on her
prosecutorial and qualified official immunity. She notes that the Complaint does not allege that
Pryor was “involved with the underlying investigation” but simply states that Pryor became
involved when presenting the case to the grand jury. (Docket No. 10). Accordingly, her acts
occurred in her role as prosecutor, and thus she is immune from suit. Cherry responds that
Pryor’s acts were discretionary and were not done in good faith, and clarifies that the basis of
Cherry’s state claims is “the fact that [Pryor] continued to prosecute [Cherry] in the hopes that
[Cherry] would plead guilty to some offense.” (Docket No. 16).
Kentucky offers absolute immunity and qualified immunity to prosecutors, depending on
the circumstances. Jefferson Cnty. Commonwealth Attorney's Office v. Kaplan, 65 S.W.3d 916,
920 (Ky. 2002); Howell v. Sanders, 668 F.3d 344, 355 (6th Cir. 2012). Kentucky provides
absolute immunity for a prosecutor's actions undertaken as an advocate and qualified immunity

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for those actions under taken as an investigator. McCollum v. Garrett, 880 S.W.2d 530, 535 (Ky.
1994). “Qualified immunity in Kentucky, however, still requires a showing of the subjective
element of good faith that was rejected under federal law in Harlow v. Fitzgerald, 457 U.S. 800,
816–18 (1982).” Howell, 668 F. 3d at 355; Rowan Cnty. v. Sloas, 201 S.W.3d 469, 474 (Ky.
2006). Qualified immunity is available for “(1) discretionary acts or functions ...; (2) in good
faith; and (3) within the scope of the employee's authority.” Yanero v. Davis, 65 S.W.3d 510,
522 (Ky. 2001).
In determining whether a prosecutor is afforded absolute immunity, a prosecutor’s
decision to investigate a crime is not considered to be an investigatory role.

Grant v.

Hollenbach, 8700 F. 2d 1135, 1138-39 (6th Cir. 1989) (internal quotations omitted) (“[I]t is clear
that the decision of the prosecutors to investigate a serious criminal charge is protected by
absolute immunity. . . . If a prosecutor is held subject to suit for being involved in investigation
of evidence brought before a grand jury or a trial jury, he would clearly be inhibited in his duty
to submit evidence to the crucible of the judicial process so that the factfinder may consider it.).
Here, Cherry has not alleged that Pryor’s wrongful acts occurred when she was serving in
an investigatory role. Rather, the alleged wrongful conduct concerns Pryor’s role as an advocate
at the grand jury and plea bargaining stages of a prosecution. Thus, Pryor is afforded absolute
immunity, and these claims must be dismissed.
2) Violation of due process claim
Next, Cherry argues that her due process rights were violated when Pryor conspired to
charge and prosecute Cherry in violation of 42 U.S.C. §1983. (Docket No. 1). Pryor argues that
she is entitled to immunity as she was a government official performing a discretionary function,
and that her actions were within her duties as a prosecutor. (Docket No. 10).

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A prosecutor is afforded absolute immunity from § 1983 suits for damages when she acts
“within the scope of [her] prosecutorial duties.” Grant, 870 F.2d at 1137, Imbler v. Pachtman,
424 U.S. 409, 420 (1976).

“Absolute immunity allows a prosecutor to exercise [her]

independent judgment in ‘deciding which suits to bring and in conducting them in court’ based
on [her] duty to the public rather than on a fear of potential liability in a suit for damages.” Id.
(internal citations omitted). Absolute immunity is granted when the “challenged activities [were]
an integral part of the judicial process.” Imbler, 424 U.S. at 430.
The Court elaborated upon the absolute immunity principle in Burns v. Reed, 500 U.S.
478 (1991). In Burns, a prosecutor appeared before a judge to seek a search warrant without
disclosing that the plaintiff had “confessed” under hypnosis or that she had later abandoned this
confession. After being exonerated, the plaintiff sued the prosecutor under § 1983. The
prosecutor claimed that absolute immunity shielded her from such suit. The Court determined
that the prosecutor enjoyed absolute immunity for her appearance in the courtroom to present
evidence in support of the motion for a search warrant, as such activities were “intimately
associated with the judicial phase of the criminal process” and “also connected with the initiation
and conduct of a prosecution.” Id. at 492. The Court acknowledged that “the duties of the
prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a
prosecution and actions apart from the courtroom.” Id. at 486. However, Burns concluded that
the prosecutor's advice to law enforcement personnel during the investigative phase was cloaked
only in qualified immunity. Id. at 495.
The Supreme Court has established a functional approach for determining whether
government officials enjoy absolute immunity or the more general standard of qualified
immunity. Id. at 486. A court must determine “whether the prosecutors have carried their burden

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of establishing that they were functioning as ‘advocates.’” Buckley v. Fitzsimmons, 509 U.S. 259,
274 (1993). State prosecutors enjoy absolute immunity for their conduct “in initiating a
prosecution and in presenting the State's case, insofar as that conduct is intimately associated
with the judicial phase of the criminal process.” Burns, 500 U.S. at 479 (internal quotation marks
and citations omitted). “[A] prosecutor's decision to initiate a prosecution, including the decision
to file a criminal complaint or seek an arrest warrant, is protected by absolute immunity.”
Howell, 668 F.3d at 351 (citing Imbler, 424 U.S. at 430–31); see also Buckley, 509 U.S. 259
(noting that a prosecutor’s actions in evaluating evidence and preparing for presentation at trial
or to a grand jury is protected by absolute immunity).
Here, Pryor’s alleged wrongful conduct occurred in presenting evidence to the grand jury
and in plea bargaining before trial. Her decision to initiate the prosecution is protected by
absolute immunity. Further, her actions in offering plea bargains to Cherry were also in an
advocacy, not investigatory, role. Thus, Pryor is afforded absolute immunity, and this claims
must be dismissed.
CONCLUSION
For these reasons, and consistent with the Court’s conclusions above,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, (Docket No. 10), is
GRANTED. The Clerk is instructed to terminate Lynn Pryor as Defendant in this action.
March 10, 2015

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