United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
This matter comes before the Court on the Defendants' Motion to Dismiss. (Docket #4). The Plaintiff has responded. (Docket #9). The Defendants have replied. (Docket #10). This matter is now ripe for adjudication. For the following reasons, the Defendants' Motion to Dismiss (Docket #4) is GRANTED IN PART and DENIED IN PART.
Plaintiff Carl Watson Ricchuite alleges that a "campaign to harass, intimidate, annoy, defame, and maliciously prosecute" Ricchuite has been waged against him by Defendant Joey Johnson, the sheriff of Todd County. (Docket #1, Ex. 1). Ricchuite alleges that Johnson put Ricchuite's house under surveillance, had Ricchuite followed, and spread rumors that Ricchuite sold drugs and paid bribes. Ricchuite claims Johnson twice charged Ricchuite for crimes without probable cause and that Ricchuite was acquitted both times. Ricchuite claims Jimmy Berghammer, Curtis Crick, Todd County, and unknown defendants have conspired with Johnson to harass and maliciously prosecute Ricchuite, among other things. (Docket #1, Ex. 1).
Todd County moves to dismiss all of Ricchuite's claims against Todd County. Johnson moves to dismiss claims against Johnson in his official capacity as sheriff of Todd County.
"When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court must accept all of the allegations in the complaint as true, and construe the complaint liberally in favor of the plaintiff." Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999) (citing Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995)). Denial of the motion is proper "unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Achterhof v. Selvaggio, 886 F.2d 826, 831 (6th Cir.1989) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Nonetheless, unwarranted factual inferences or legal conclusions masquerading as fact will not prevent a motion to dismiss. Blakely v. United States, 276 F.3d 853, 863 (6th Cir. 2002). A "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Andrews v. Ohio, 104 F.3d 803, 806 (6th Cir. 1997) (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993)).
I. Ricchuite's state law claims are barred by sovereign immunity.
Ricchuite has three state law claims against Todd County and six against Johnson in his official capacity. These state law claims are barred by sovereign immunity.
A "county government is cloaked with sovereign immunity" from state law claims. Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky. 2003). Nor can a county, absent a legislative waiver of immunity, " be vicariously liable for the acts of its employees. Id. ( citing Reyes v. Hardin Memorial Hospital, 55 S.W.3d 337 (Ky. 2001).
An "official capacity suit is, in all respects other than name, to be treated as a suit against the entity." Cady v. Arenac County, 574 F.3d 334, 342 (6th Cir. 2009) ( quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)); Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993) ("In an official capacity action, the plaintiff seeks damages not from the individual officer, but from the entity for which the officer is an agent"). When a government employee is sued in his official capacity, he is entitled "the same immunity, if any, to which the [government] agency, itself, would be entitled." Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001); Martin v. Patterson, 2013 U.S. Dist. LEXIS 145786 *10 (E.D. Ky. 2013) ("Under Kentucky law, county governments are cloaked with sovereign immunity that extends to public officials sued in their official capacity").
Ricchuite's state law claims against Todd County and Johnson in his official capacity are barred by sovereign immunity.
Ricchuite requests this Court find that KRS § 70.040 waives a sheriff's sovereign immunity. KRS § 70.040 holds the "office of sheriff" liable for the acts of the sheriff's deputies. Ricchuite argues that it is logical that if a sheriff is liable for the acts of his deputies, he should be liable for his own acts as well. However, "sovereign immunity must be expressly waived by the General Assembly. Its waiver cannot be assumed by the courts." Bd. of Trs. of Ky. Ret. Sys. v. Commonwealth, 251 S.W.3d 334, 340 (Ky. App. 2008). "Statutes in derogation of the state's sovereign immunity will be strictly construed in favor of the state unless the intention of the legislature to do otherwise is clearly expressed in the statute." Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008). The plain language of KRS § 70.040 addresses the waiver of a sheriff's immunity for acts committed by his deputies. It does not address the waiver of a sheriff's immunity for his own acts, and this Court cannot assume a waiver where one has not been expressly stated. See ...