Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Marcum

United States District Court, W.D. Kentucky, Paducah Division

November 19, 2014

BILL MARCUM, et al., Defendants.


THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon several motions. First, Defendant Sheriff Bill Marcum has filed a Motion to Dismiss. (Docket No. 54). Second, Defendant Arvin Crafton has filed a Motion for Summary Judgment. (Docket No. 58). Third, Defendants Max Parish, Jr. and Burl's Wrecker Service have filed a Motion for Summary Judgment. (Docket No. 63). The time for Plaintiff to respond to these motions has passed, however Plaintiff did file a Pretrial Memorandum. (Docket No. 52). These matters are now fully briefed and ripe for adjudication. For the following reasons, Defendant Marcum's Motion to Dismiss is GRANTED; Defendant Crafton's Motion for Summary Judgment is GRANTED; and Defendants Parish and Burl's Motion for Summary Judgment is GRANTED.


Because the Court previously screened Plaintiff's complaint pursuant to 28 U.S.C. ยง 1915A and dismissed several claims, (Docket No. 14), the Court provides only the factual background relevant to Plaintiff's remaining claims.

Plaintiff Johnson, who is proceeding pro se, alleges violations of his constitutional rights. Johnson had his trailer parked at Defendant Arvin Crafton's Holly Green RV Park. While there, he fell far behind on making payments to Crafton. Johnson was arrested on unrelated charges, and alleges that while incarcerated, he received a phone call from Crafton stating that he wanted Johnson's trailer moved from a lot. Johnson replied that he would move the trailer when he got out of jail. He alleges that two hours later, he received a call from Max Parish, Jr. with Burl's Wrecker Service, who stated that he was with Sheriff Marcum and planned to move the trailer. Johnson told him not to move the trailer. However, the trailer was moved, allegedly resulting in damage to Johnson's belongings. Johnson alleges that the Defendants did not follow procedure in that Johnson received no eviction notice or summons.

Upon its initial review, the Court permitted Johnson's constitutional claims, which it interpreted as a Fourth Amendment unlawful-seizure claim and a Fourteenth Amendment due-process claim, to go forward against Marcum, Crafton, Parish, and Burl's Wrecker Service. Additionally, Johnson alleges that he was discriminated against by Defendants because he has a disability. The Court interpreted this claim as falling under the FHAA. Finally, Johnson alleges a state law claim of Theft by Deception.


In support of Defendant Marcum's Motion to Dismiss, he attaches a number of documentary exhibits and affidavits. Most are referenced to in Marcum's Motion. Generally, if matters outside the pleadings are presented to the court on a motion to dismiss under Rule 12(b)(6), then the motion must be treated as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). The Court has considered the assorted exhibits offered by Marcum and will convert his motion to dismiss under Rule 12(b)(6) to one for summary judgment under Rule 56. See Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997).

Summary judgment is appropriate where "the movant shows 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). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. S ee Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587 (1986).

"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co ., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id . (citin g Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 252 (1986)). The plaintiff may accomplish this by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute...." Fed.R.Civ.P. 56(c)(1). Mere speculation will not suffice to defeat a motion for summary judgment; "the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lews v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Scott v. Harris, 550 U.S. 372, 1776 (2007).


I. Claims against Defendant Bill Marcum

a. Fourth Amendment unlawful seizure

Johnson alleges that Sherriff Marcum did not follow procedure in that Johnson received no eviction notice or summons before the movement of his trailer, and that such action constituted an unlawful seizure of his personal property in violation of the Fourth Amendment. In response, Defendants argue that "Sheriff Bill Marcum took no action to evict or otherwise move/dispose of personal property of the Plaintiff." (Docket No. 54). Johnson's description of Marcum's participation in the movement of the trailer is limited; he claims that Marcum gave Crafton the phone number of the jail and of Burl's Wrecker Service, and that Max Parish said he was with Marcum when he called Johnson at the jail. Marcum states that he never took possession of Johnson's property and did not assist any other party in doing so. He argues that "[th]ere was no active unconstitutional behavior perpetrated by the Sheriff as ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.