Bardwell v. KY New Era Newspaper et al

Filing 29

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 2/14/2017; re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Chuck Henderon, KY New Era Newspaper; a separate order shall issue.cc:counsel, plaintiff pro se (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00242-TBR
MARK J. BARDWELL,

Plaintiff,

v.
KENTUCKY NEW ERA NEWSPAPER, et al.,

Defendants.

MEMORANDUM OPINION
Mark J. Bardwell, proceeding pro se and in forma pauperis, filed this action
against, as pertinent to this opinion, the Kentucky New Era newspaper and Chuck
Henderson, whom he identifies as the Chief Executive Officer of the newspaper, bringing
a common-law claim for libel. In detail, Bardwell alleges that the Kentucky New Era
published a defamatory article which described certain criminal charges brought against
him. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Kentucky New Era and
Henderson filed a motion to dismiss Bardwell’s claim against them. Upon its own
motion, the Court converted that filing into a motion for summary judgment. Because the
Kentucky New Era and, ostensibly, Henderson published a fair and impartial report of the
allegations made against Bardwell, the Kentucky New Era and Chuck Henderson’s
Motion to Dismiss, [R. 18], is GRANTED.
I.
A.
Briefly, Mark J. Bardwell alleges that the Kentucky New Era newspaper, along
with Chuck Henderson, whom he identifies as the Chief Executive Officer of the
newspaper, published a false and injurious article about him.
(Complaint); R. 5 at 5 (Amended Complaint).] The article read:

[See R. 1 at 2, ¶ 4

A Hopkinsville man was arrested Wednesday after he hit someone
in the head and threatened them, according to an arrest warrant.
The warrant accuses Mark J. Bardwell, 45, of demanding $20 from
the person before hitting them on Oct. 26. Later that day, Bardwell
allegedly came to that person’s place of work and harassed them over the
money.
The person was afraid of being hit again, so they threw a two-byfour at Bardwell, the warrant said.
On Oct. 22, Bardwell told the person they would “end up” like
their brother, who was murdered, according to the warrant.
Bardwell was charged with third-degree terroristic threatening and
second-degree robbery and booked into the Christian County Jail. Bail
was set at $2,000.
[R. 28 at 2 (Article).] The warrant referenced in the article read:
The Affiant, Thomas Lyle, states that [on October 26, 2015] . . . , the
above named defendant [Bardwell] unlawfully: demanded $20 from the
affiant, who told him no. Defendant then hit affiant in the head. Later that
day, defendant came to where affiant was working and began to harass
him over money. Affiant was afraid of being hit again and threw a 2 x 4 at
defendant. On Oct. 22, 2015, Defendant had told affiant he was going to
“end up” like affiant’s brother, who was murdered.
[R. 18-3 at 11 (Warrant).]
B.
Alleging that the above-quoted article was libelous, Bardwell filed this action
against the Kentucky New Era and Henderson.

Pursuant to Federal Rule of Civil

Procedure 12(b)(6), the Kentucky New Era and Henderson filed a motion to dismiss
Bardwell’s action against them. [See R. 18 at 1 (Motion to Dismiss).] Upon its own
motion, the Court converted that filing into a motion for summary judgment and
instructed Bardwell to file a response. [R. 25 at 1–2 (Order of January 31, 2017).] He
did just that on February 8, 2017. [See R. 28 at 1 (Response).]

II.
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.” Fed. R. Civ. P.
56(a). 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, the Kentucky New Era and
Henderson must shoulder the burden of showing the absence of a genuine dispute of
material fact as to at least one essential element of Bardwell’s claim. Fed. R. Civ. P.
56(c); see also Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)).

Assuming the Kentucky New Era and Henderson satisfy their burden of

production, Bardwell “must—by 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.
The Kentucky New Era and Henderson argue that Bardwell’s claim for libel must
fail because publication of the article in question comes under the qualified privilege
codified by Ky. Rev. Stat. § 411.060. The statute reads, in pertinent part:
The publication of a fair and impartial report or the whole or a synopsis of
any indictment, warrant, affidavit, pleading, or other document in any
criminal or civil action in any court of competent jurisdiction shall be
privileged, unless it is proved that it was published maliciously, or that the
defendant after request by the plaintiff has failed to publish a reasonable
explanation or contradiction thereof, giving the explanation or
contradiction the same prominence and space as the original publication,
or that the publisher has refused after request by the plaintiff to publish the
subsequent determination of the proceeding.
Ky. Rev. Stat. § 411.060. Bardwell never asked the Kentucky New Era to publish any
sort of explanation or contradiction. Therefore, so long as the article was an accurate
report and was not “published maliciously,” the Kentucky New Era and Henderson are
entitled to judgment as a matter of law.
The qualified privilege recognized by Ky. Rev. Stat. § 411.060 encompasses the
publication of the article in question. The article is accurate. To come within the scope
of the privilege, a newspaper need not “print the exact facts so long as what it does print
is substantially true.” Pearce v. Courier-Journal & Louisville Times Co., 683 S.W.2d
633, 635 (Ky. Ct. App. 1985) (citing Bell v. Courier-Journal & Louisville Times Co., 402
S.W.2d 84 (Ky. 1966)).

In this case, the article closely mirrors the language and

allegations made in the warrant. [Compare R. 18-3 at 11, with R. 28 at 2.] There is
nothing inaccurate in the article’s synopsis. The article was not “published maliciously”
either. An account is considered “maliciously made” if “it is published ‘solely for the
purpose of causing harm to the person defamed.’” Smith v. Martin, 331 S.W.3d 637, 641
(Ky. Ct. App. 2011) (quoting Pearce, 683 S.W.2d at 636). Having reviewed the record in

the light most favorable to him, there is nothing to suggest that the article was published
solely for the purpose of causing Bardwell harm. Accordingly, summary judgment on
Bardwell’s claim for libel is warranted.
IV.
The Kentucky New Era newspaper and Chuck Henderson’s Motion to Dismiss,
[R. 18], is GRANTED. An appropriate order shall issue.
Date:
cc:

February 14, 2017

Counsel of Record
Plaintiff, pro se