Cherry v. Howie et al

Filing 73

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 3/27/2017 denying 69 Motion for Summary Judgment. Telephonic Final Pretrial Conference shall be held 4/7/2017 at 9:00 a.m. CST. 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 upon Defendants’ renewed motion for
summary judgment on Plaintiff Ann Cherry’s sole remaining claim, abuse of
process.

[DN 69.]1

Cherry responded, [DN 71], and Defendants replied, [DN 72.]

Fully briefed, Defendants’ motion is ripe for adjudication.

For the following

reasons, that motion [DN 69] is DENIED.
I. Facts and Procedural History
On two prior occasions, this Court has addressed the merits of Ann Cherry’s
claims against Defendants. See [DN 21; DN 42.] As such, the Court need only
provide a brief recitation of the facts, paying particular attention to the discovery
conducted by the parties since the last time the Court visited this case. See Cherry
v. Howie, 191 F. Supp. 3d 707 (W.D. Ky. 2016).
Ann Cherry previously served as a Hopkinsville, Kentucky City Councilman.
In 2012, Defendant Guy Howie, then serving as Hopkinsville’s Chief of Police,
proposed an ordinance that would require local pawn shops to use an online service

Defendants filed a supporting memorandum alongside their instant motion. The Court notes,
however, that pursuant to Joint General Order 2017-01, Local Rule 7.1 no longer requires motions
and memoranda to be filed separately.
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known as “Leads Online,” which tracks pawn transactions. Based upon objections
from pawn shop owners and her belief that Leads Online provided improper
incentives to police departments, Cherry opposed the ordinance and scheduled it for
an ethics hearing.
Around the same time, a man later dubbed the “Southside Prowler” began
burglarizing homes in Cherry’s neighborhood.

Several persons, including Vicci

Clodfelter, Cherry’s neighbor, reported to police that they saw a white man
masturbating in view of their homes.

Responding to these reports, the

Hopkinsville Police Department generated an automated “Code Red” phone call
warning residents of the Southside Prowler and describing his appearance.
Defendants allege that Cherry then attempted to convince both the authorities and
her neighbors that the burglar was black, not white, based upon a surveillance
video she was shown by another neighbor.

Ultimately, a white man was convicted

for the crimes committed in Cherry’s neighborhood.
Following these events, Chief Howie asked Defendant Jefferson Alexander, a
police lieutenant, to investigate Cherry’s alleged interference with the Hopkinsville
Police Department’s pursuit of the Southside Prowler.

After compiling a timeline,

Defendants state that Alexander met with Commonwealth Attorney Lynn Pryor to
review the information.

In her recent deposition, Pryor testified that neither

Howie nor Alexander mentioned the pawn shop ordinance during these
conversations.

[DN 69-2 at 3-4.]

Pryor and Alexander did, however, discuss

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whether a potential criminal indictment would impact Cherry’s status as a sitting
member of the City Council.

[Id. at 4.]

Based upon those discussions, Pryor decided to present Cherry’s case to a
grand jury.

There, Alexander testified that following the Code Red call, Cherry

called 911, seeking to convince the police department of her own belief that the
Southside Prowler was a black man.

[DN 71 at 7-12.]

He also told the grand jury

that Cherry had emailed this erroneous information to her constituents, and had
released a surveillance video to a Nashville news station against the wishes of Chief
Howie. [Id. at 17-24.]

Based upon Alexander’s testimony, the grand jury

returned felony indictments for tampering with a witness and tampering with
public records, and a misdemeanor indictment for official misconduct.

Cherry

maintains that none of those charges had a sound basis.
Following her indictment, Cherry entered into extended plea negotiations
with the Commonwealth.

According to Cherry, all the proposed offers required her

to resign her seat as a councilmember and agree not to run for mayor.
morning of Cherry’s trial, the parties reached a settlement.

On the

In exchange for the

Commonwealth’s dismissal of her criminal charges, Cherry resigned her position
and promised not to run for mayor or city council in the future.

Pryor does not

recall who first proposed this settlement, nor does she recall Howie or Alexander
expressing a desire to have Cherry removed from city council. [DN 69-2 at 5-6.]
Cherry then filed the instant suit. See [DN 1.]

The crux of her allegations

is that Defendants pursued unfounded criminal charges against her in retaliation

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for her opposition to the proposed pawn shop ordinance, with the ultimate goal of
removing her from elected office.

Cherry’s complaint included claims for abuse of

process, malicious prosecution, and violation of her constitutional due process
rights.

She

named

as

defendants

Chief

Howie,

Lieutenant

Alexander,

Commonwealth Attorney Pryor, the Hopkinsville Police Department, and the City
of Hopkinsville.
The Court dismissed Cherry’s claims against Commonwealth Attorney Lynn
Pryor, holding that Pryor was entitled to absolute immunity. See [DN 21.]

Then,

upon motion by the remaining Defendants, the Court granted summary judgment
on Cherry’s malicious prosecution and § 1983 claims.2

Cherry, 191 F. Supp. 3d at

715, 721. Because Cherry had to give something up in exchange for dismissal of
her charges, the criminal proceeding against her did not terminate in her favor – an
element necessary to establish liability on both claims. Id. However, the Court
denied Defendants’ motion as to Cherry’s abuse of process claim, writing that “Ms.
Pryor’s plea offers to and ultimate agreement with Ms. Cherry are highly unusual. .
. .

A jury could reasonably infer that Ms. Pryor received input from or was

influenced by the Defendants when she utilized the judicial process to prevent Ms.
Cherry from holding public office in the City of Hopkinsville.” Id. at 717-18.

The

Court allowed the parties to conduct further discovery on this claim, and they did.
After deposing Pryor and obtaining Alexander’s grand jury testimony, Defendants
Although the Court dismissed Cherry’s federal claim under § 1983, the Court retains supplemental
jurisdiction over Cherry’s remaining state law abuse of process claim due to the considerable effort
the parties have already expended in this litigation, the advanced stage of the case, and relative
simplicity of Cherry’s claim. See 28 U.S.C. § 1367(c); Wilson v. Trege, 787 F.3d 322, 326 (5th Cir.
2015).

2

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renewed their motion for summary judgment.

[DN 69.]

Cherry responded, [DN

71], and Defendants replied, [DN 72].
II. Standard of Review
Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).

Fed.

A genuine dispute of material fact exists where “there is sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “may not
make credibility determinations nor weigh the evidence when determining whether
an issue of fact remains for trial.”

Laster v. City of Kalamazoo, 746 F.3d 714, 726

(6th Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001);
Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)).

“The ultimate question is

‘whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.’”
Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477
U.S. at 251–52).
As the parties moving for summary judgment, Defendants must shoulder the
burden of showing the absence of a genuine dispute of material fact as to at least
one essential element of Cherry’s abuse of process claim.

Fed. R. Civ. P. 56(c); see

Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Assuming Defendants satisfy their burden of production, Cherry “must—by

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deposition, answers to interrogatories, affidavits, and admissions on file—show
specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing
Celotex Corp., 477 U.S. at 324).
III. Discussion
To ultimately prevail against Defendants, Cherry must prove that they
harbored an ulterior purpose in seeking the indictment against her and committed
a willful, coercive act in furtherance of that purpose. See Garcia v. Whitaker, 400
S.W.3d 270, 276 (Ky. 2013) (citations omitted). In responding to Defendant’s
renewed motion for summary judgment, Cherry has pointed to facts suggesting that
Defendants intentionally misled the prosecutor and the grand jury in order to
improve the pawn shop ordinance’s chances of success.

Because Cherry presents a

genuine issue of material fact as to both elements of her abuse of process claim,
Defendants’ motion must be denied, and her case may proceed to trial.
Broadly speaking, abuse of process is “the irregular or wrongful employment
of a judicial proceeding.” Stoll Oil Refining v. Pierce, 337 S.W.2d 263, 266 (Ky.
1960).

The essential elements of an abuse of process claim under Kentucky law

are “(1) an ulterior purpose and (2) a willful act in the use of process not proper in
the regular conduct of the proceeding.” Garcia, 400 S.W.3d at 276.

To succeed,

the plaintiff must show that the defendant engaged in “[s]ome definite act or threat
not authorized by the process, or aimed at an objective not legitimate in the use of
the process.”

Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998) (citing W.

Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971)). Conversely, “there is

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no liability where the defendant has done nothing more than carry out the process
to its authorized conclusion even though with bad intentions.” Id. at 394-95.
An ulterior purpose has been characterized as “[t]he crux of an abuse of
process action.”

Bourbon Cnty. Joint Planning Comm’n v. Simpson, 799 S.W.2d

42, 45 (Ky. Ct. App. 1990).

Kentucky courts have gone so far as to say that “[t]he

purpose for which the process is used, once it is issued, is the only thing of
importance.” Williams v. Central Concrete Inc., 499 S.W.2d 460, 461 (Ky. Ct. App.
1979) (citing Prosser, Torts § 121).

For instance, in Garcia, an attorney disputed

the hefty bill his mechanic charged him for repairs to his Porsche. Garcia, 400
S.W.3d at 272-73.

After the attorney, Whitaker, refused to pay, the mechanic,

Garcia, refused to hand over the Porsche. Id. at 273.

Whitaker then obtained a

warrant for Garcia’s arrest for failure to make required disposition of property, and
accompanied the deputy sheriff to Garcia’s home when he served the warrant. Id.
Upon questioning by the deputy, Garcia admitted that he had hidden Whitaker’s
car in a neighbor’s garage. Id.

The criminal charges were eventually dismissed,

and Garcia filed suit against Whitaker for abuse of process. Id.

Overturning a

directed verdict in Whitaker’s favor, the Kentucky Supreme Court found that “a
jury could have determined that Whitaker harbored an ulterior purpose—that
purpose being to use the criminal complaint and resulting arrest to obtain his
vehicle without compensating Garcia.” Id. at 277.
In another case, Sprint Communications Co., L.P. v. Leggett, 307 S.W.3d 109,
111 (Ky. 2010), a telecommunications provider sought to acquire a certain parcel of

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land belonging to Leggett, the plaintiff, in order to expand and upgrade one of its
facilities.

When

Leggett

refused

to

sell,

Sprint

initiated

condemnation

proceedings, as it has previously threatened to do, and Leggett counterclaimed for
abuse of process. Id. at 111-12. The Kentucky Supreme Court held that the trial
court erred in granting Sprint summary judgment, noting that “even a cursory
reading of the [applicable] statute reveals that Sprint had no authority to take for
its permanent use the entirety of Leggett’s land.” Id. at 115.

Sprint’s attempt to

use legal process to acquire fee simple title to Leggett’s land was “a purpose for
which a condemnation action . . . is not authorized,” thus allowing Leggett’s claim to
go to a jury. Id. at 116.
As to the second element, Kentucky courts look for “‘a willful act . . . not
proper in the regular conduct of the proceeding,’ used as a ‘form of coercion to obtain
a collateral advantage.’”

Id. at 117 (quoting Simpson, 962 S.W.2d at 395).

The

act may occur either before or after process is issued. Id. at 118. In Garcia, the
defendant engaged in a willful, coercive act when he “accompan[ied] the arresting
deputy sheriff and detective to Garcia’s home in perfecting the arrest and obtaining
his Porsche.” Garcia, 400 S.W.3d at 277.

Likewise, in Leggett, Sprint threatened

legal action in an attempt to achieve a result not authorized by law. Leggett, 307
S.W.3d at 119.

Conversely, in Mullins v. Richards, 705 S.W.2d 951, 952 (Ky. Ct.

App. 1986), discussed in greater detail below, the Court of Appeals found no liability
for abuse of process when the defendants never attempted to use their ill-founded
indictments against the plaintiff.

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Here, a genuine issue of material fact exists with respect both elements of
Cherry’s abuse of process claim.

As the Court noted in its prior opinion, the record

contains affidavits from two former members of the Hopkinsville Police
Department, Terry Parker and Chuck Inman. See [DN 37-2; DN 37-3.]

Both

Parker and Inman recall Chief Howie making derogatory statements when
speaking about Cherry. [DN 37-2 at 1; DN 37-3 at 1.]
Howie asked him to look into Cherry’s campaign finances.

Inman also states that
[DN 37-3 at 1.]

The

Court is also mindful that the police department’s investigation began very soon
after Cherry voiced her opposition to Howie’s proposed pawn shop ordinance.
Temporal proximity alone might not be enough to raise an inference that
Defendants initiated Cherry’s criminal prosecution to secure an advantage before
the city council.

However, the suggestive timeline combined with the evidence of

Howie’s animus toward Cherry constitutes sufficient evidence for a jury to conclude
that Defendants harbored an ulterior purpose.
Cherry also presents a genuine issue of material fact regarding whether
Defendants took some “willful act” as a “form of coercion to obtain a collateral
advantage.” Leggett, 307 S.W. at 117.

In the typical abuse of process claim, the

plaintiff satisfies the willful act element by showing that the defendant directly
bargained with her, using the wrongful process as leverage. See, e.g., Garcia, 400
S.W.3d at 277; Leggett, 307 S.W.3d at 119; Flynn, 399 S.W.2d at 494 (defendants
used arrest warrant to convince plaintiff to release wage garnishment); Isham v.
ABF Freight Sys., Inc., Nos. 2004-CA-001349-MR, 2005-CA-000409-MR, 2006 WL

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2641398, at *10 (Ky. Ct. App. Sept. 15, 2006) (employer used criminal charge as
leverage to obtain employee’s resignation).

Cherry’s claim is slightly different,

because her claim is predicated upon the notion that Defendants used Pryor as a
pawn or conduit to coerce Cherry into resigning.
Still, Cherry points out that Howie, Alexander, and Pryor are somewhat
inconsistent in their explanations of the nature and extent of their pre-indictment
investigation into Cherry’s conduct. See [DN 71 at 2-6.] Although Alexander
testified before the grand jury that Cherry convinced Clodfelter to make a written
statement that the masturbating burglar she saw outside her window was black,
not white, the Court has not been made aware that any such statement exists.
[DN 71-1 at 22.]

See

In fact, Clodfelter testified that no member of the Hopkinsville

Police Department or the Commonwealth Attorney’s office ever spoke with her
regarding Cherry’s alleged attempt to coerce Clodfelter into changing her story.
[DN 34-2 at 24-25.]

Most importantly, Pryor recalls having at least one

conversation with Alexander regarding the impact of the criminal proceedings on
Cherry’s eligibility for office. [DN 69-2 at 4.]

Mindful of the oft-repeated quote

that “[t]he purpose for which the process is used, once it is issued, is the only thing
of importance,” Williams 499 S.W.2d at 461 (citing Prosser, Torts § 121), the Court
believes that a reasonable jury could conclude that Howie and Alexander’s preindictment conduct could constitute “willful act[s] . . . not proper in the regular
conduct of the proceeding,” Garcia, 400 S.W.3d at 276.

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One final point bears mention.

Defendants correctly state that no liability

for abuse of process will lie “where the defendant has done nothing more than carry
out the process to its authorized conclusion even though with bad intentions.”
Simpson, 962 S.W.2d at 394-95.

Relying upon this language, Defendants argue

that a settlement like Cherry’s, wherein a politician agrees to resign and not to seek
further elected office, is the natural and probable consequence of criminal
proceedings for official misconduct.

To support this contention, Defendants cite

Arnold v. McClain, 926 F.2d 363 (5th Cir. 1991).

There, the Fifth Circuit

suggested that it was acceptable for a prosecutor to promise not to bring perjury
charges against a police officer in exchange for the officer’s resignation. Id. at 96667.

But Arnold is procedurally and factual distinguishable from the case at bar.

A state court had already ruled that the agreement between the officer and the
prosecutor was enforceable, such that the prosecutor could not renege and bring a
perjury charge anyway. Id. at 964, 966.
More importantly, though, Arnold did not involve the resignation of an
elected official, nor did it address the implications of an agreement restricting a
person’s ability to hold public office in the future. Granted, “an individual does not
have a fundamental right to run for elected office.” Molina-Crespo v. U.S. Merit
Sys. Protection Bd., 547 F.3d 651, 660 (6th Cir. 2008).

Furthermore, pursuant to

the Kentucky Constitution, “[a]ll persons shall be excluded from office who have
been . . . convicted of a felony, or of such high misdemeanor as may be prescribed by
law.”

Ky. Const. § 150.

But at their core, plea bargains are contracts, and are

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interpreted and enforced according to traditional principles of contract law. United
States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991) (citations omitted).

One such

principle “is that agreements that run contrary to law, or are designed to avoid the
effect of a statute, are illegal and will not be enforced.” McClanahan v.
Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010) (citations omitted). Here, no party
disputes that when Cherry promised to resign and not pursue further elected office
in Hopkinsville, she still met the statutory qualifications for those positions. See
KRS 83A.040.

Her agreement with the Commonwealth therefore had the practical

effect of superseding a law passed by the General Assembly.

A jury could

reasonably find that by extracting this seemingly unenforceable promise from
Cherry, Defendants went further “than carry[ing] out the process to its authorized
conclusion.” Simpson, 962 S.W.2d at 394-95.

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VI. Conclusion and Order
A genuine issue of material fact exists with respect to each element of
Cherry’s abuse of process claim.

Accordingly, a jury, not this Court, should

determine whether Defendants used legal process as a “threat or club” to force
Cherry off city council. Flynn v. Songer, 399 S.W.2d 491, 494 (Ky. 1966).

For the

foregoing reasons, IT IS HEREBY ORDERED:
Defendant’s motion for summary judgment [DN 69] is DENIED.

In

accordance with the Court’s prior scheduling order, [DN 59], a telephonic final
pretrial conference shall be held April 7, 2017 at 9:00 a.m. Central time.
The Court will place the call to counsel.

March 27, 2017

CC: Counsel of Record

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