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Ricchuite v. Johnson

United States District Court, W.D. Kentucky, Bowling Green Division

March 8, 2017



          United States District Court Greg N. Stivers, Judge

         This matter comes before the Court on Defendants' Motions for Summary Judgment (DN 67, 71, 72), and Defendants' Motions to Supplement (DN 87, 88, 89). This matter is ripe for adjudication. For the following reasons, Defendant's Motions for Summary Judgment are GRANTED, and the remaining motions are DENIED AS MOOT.

         I. BACKGROUND

         In February 2012, a 1, 000 gallon anhydrous ammonia tank was stolen from Crop Production Services in Todd County, Kentucky. (Def.'s Mot. Summ. J. Ex. A, at 1-2, DN 72-2 [hereinafter KYIBRS Report I]); Def. Mot. Summ. J. Ex. B, at 4, DN 72-3 [hereinafter KYIBRS Report II]). The Todd County Sheriff's Department initially investigated the theft, but did not identify a suspect. (KYIBRS Report II, at 4; Johnson Dep. 29:19-20, Feb. 1, 2016, DN 68). On July 26, 2013, a Kentucky State Police (“KSP”) trooper arrested John David Williams on traffic and drug charges. (KYIBRS Report II, at 4). Williams told the arresting officer that he had useful information concerning the location of the stolen anhydrous tank. (KYIBRS Report II, at 4). Believing that the tank was in Christian County, KSP contacted Christian County Sheriff's Office Detective Jimmy Berghammer (“Berghammer”). (KYIBRS Report II, at 4). Discovering that the tank was actually located in Todd County, Kentucky, Berghammer investigated the property with Todd County Sheriff Joey Johnson (“Johnson”). (Johnson Dep. 31:18-23).

         On August 2, 2012, Berghammer and Johnson discovered the tank on property owned by Carl Watson Ricchuite (hereinafter “Ricchuite”) and his brother. (KYIBRS Report I, at 1-2; Johnson Dep. 34:6-9). The stolen anhydrous tank was buried in the ground up to the valve guard and covered with camouflage netting. (Johnson Dep. 34:6-9). Also found at the site were items associated with manufacturing methamphetamine, including punctured starter fluid cans, coffee filters, modified propane/anhydrous tanks, and evidence of an exploded shed. (KYIBRS Report I, at 2). Berghammer and Johnson returned to the property on numerous occasions in an attempt to identify who had been using the tank to manufacture methamphetamine and eventually attached a motion-activated camera to a tree near the tank; however, no suspects were identified. (Johnson Dep. 35:15-17; 36:7-13; Berghammer Dep. 41:4-18, Feb. 2, 2016, DN 73).

         In December 2012, Johnson obtained information indicating that Ricchuite and Chris Mallory intended to remove the tank after learning that law enforcement was conducting surveillance in the area. (Johnson Dep. 45:24-25, 46:1). On or about December 7, 2012, Ricchuite and his brother authorized the Todd County Sheriff's Department to search the farm, and the anhydrous tank was excavated later that day. (Ricchuite Dep. 71:1-8, Jan. 12, 2015, DN 69; Johnson Dep. 49:20-22). After the excavation, Johnson turned the investigation over to Todd County Deputy Sheriff Tracy White (“White”). Johnson believed White would be more skilled in a drug investigation because White had been a member of the Pennyrile Narcotics Task Force for several years. (Johnson Dep. 64:2-13). Thereafter, Johnson's only actions pertaining to the investigation consisted of meeting with Michael Darden (“Darden”) and asking him to talk to White, allowing Berghammer to use Johnson's office to conduct an interview with Paula Gilkey regarding the tank, and asking a potential witness, Tommy Hudnall (“Hudnall”), to speak with White. (Johnson Dep. 75:7-16, 77:2-18, 91:9-15). Johnson testified that he had no involvement in the decision to charge Ricchuite. (Johnson Dep. 67:16-19).

         Ricchuite claims that during the investigation Johnson was constantly telling others that Ricchuite had been manufacturing meth. According to Ricchuite, Johnson told Nick Christian (“Christian”) that Ricchuite was guilty and had bought off the Todd County Attorney, Harold “Mac” Johns, and a judge. (Ricchuite Dep. 75:12-21). Allen Potter (“Potter”) and Smith Chastine (“Chastine”) allegedly overheard Johnson at a restaurant say that Ricchuite was the biggest drug dealer in the county, was a kingpin of organized crime, and had one million dollars buried in his backyard. (Ricchuite Dep. 78:7-25-79:1-3). Johnson supposedly told Bruce Laster (“Laster”) that Ricchuite was the biggest drug dealer in western Kentucky and sold drugs to school children. (Ricchuite Dep. 85:15-86:8). Johnson also allegedly told White that Ricchuite had bought off a juror. (Ricchuite Dep. 80:17-82:2). Further, according to Ricchuite, Johnson told a police officer, Brian Atkinson (“Atkinson”), that even if he did not have enough evidence against Ricchuite, he would make Ricchuite pay for a lawyer. (Ricchuite Dep. 92:5-17). Ricchuite has no firsthand knowledge of these statements imputed to Johnson, however, and no other witness has been produced who heard any of the alleged utterances.

         Ricchuite claims that both before and after the tank was removed from his property, Johnson followed him almost every night for several months until just before the beginning of Ricchuite's trial in July 2013. (Ricchuite Dep. 115:1-10). Ricchuite testified that Johnson parked across from Ricchuite's house and videotaped him on at least one occasion. (Ricchuite Dep. 120:17-25). Ricchuite said that Johnson never came on his property while engaging in these activities and testified that the “stalking” activity by Johnson ended before Ricchuite's trial on July 29, 2013. (Ricchuite Dep. 126:1-10). Ricchuite alleges that Johnson would follow him daily, while Johnson claims he never followed Ricchuite on purpose and only remembers being behind him one or two times. (Johnson Dep. 3:21-84:9).

         On April 19, 2013, a Todd County Grand Jury indicted Ricchuite on two charges: (1) Receiving Stolen Property, Anhydrous Ammonia with Intent to Manufacture Methamphetamine; and (2) Complicity to Manufacture Methamphetamine, 1st Offense. (Def.'s Mot. Summ. J. Ex. D, at 1-3, DN 72-5 [hereinafter Indictment No. 13-CR-00014]). Johnson and Berghammer had no involvement with the grand jury proceedings, and neither testified to the grand jury. (Berghammer Dep. 70:15-17; Johnson Dep. 82:2-10). In fact, Berghammer was not even aware an indictment had been returned in the case until he received a subpoena to testify at trial. (Berghammer Dep. 70:18-22). Berghammer's only contact with the county attorney who presented the case to the grand jury was to turn over his investigative reports. (Berghammer Dep. 69:16-26, 70:15-17). Ricchuite was arrested on April 20, 2013, and Ricchuite was ultimately acquitted of both charges on July 29, 2013. (Def.'s Mot. Summ. J. Ex. E, at 1, DN 72-6 [hereinafter Uniform Citation]; Def.'s Mot. Summ. J. Ex. F, at 1, DN 72-7 [hereinafter Docket Sheet]).

         KSP Senior Trooper Curtis Crick (“Crick”) began covering Todd County as part of his territory for the KSP on February 1, 2014, roughly six months after Ricchuite's meth trial concluded. (Crick Dep. 11:4-5, Feb. 4, 2016, DN 70). At 10:47 p.m. on May 6, 2014, Crick noticed a pickup truck leaving from a driveway in an area known for drug related activity. (Crick Dep. 28:9-17; Def.'s Mot. Summ. J. Ex. 2, at ¶ 4, DN 71-7 [hereinafter Crick Aff.]). He neither recognized the vehicle nor its driver, Ricchuite. (Crick Aff. ¶ 5). Moreover, the truck was not Ricchuite's normal vehicle, and Ricchuite testified that he did not drive it very often. (Def.'s Mot. Summ. J. Ex. 3, at 138, DN 71-8 [hereinafter Tr. of Criminal DUI Trial, July 21, 2014]). Crick followed the vehicle until the driver failed to give a proper turn signal and then pulled the vehicle over.[1] (Crick Aff. ¶ 6).

         During the traffic stop, Crick noticed that Ricchuite was jittery, rubbed his fingers together, and smacked his gums. (KYIBRS Report III, at 3). While Crick acknowledged that most motorists he stops appear nervous, Ricchuite's actions exceeded the norm, prompting Crick to investigate further. (Crick Aff. ¶¶ 7-8). Crick told Ricchuite that he suspected he was under the influence of drugs and was going to give him a few tests. (KYIBRS Report III at 3). Ricchuite exhibited several behaviors suggestive of amphetamine or drug use, as noted by Crick during the stop: Ricchuite was highly nervous and jittery; he was smacking his gums, grinding his teeth, and frantically rubbing his hands together; he was sweating profusely, complaining of “cotton mouth”; and his answers to Crick's questions were incoherent. (Crick Aff. ¶9). Crick suspected that Ricchuite might be driving under the influence of drugs, so he administered three field sobriety tests. (Crick Aff. ¶ 9). Ricchuite failed all three tests. (Ricchuite Dep. 207:22-25). Ricchuite protested to Crick that the One-Leg-Stand test was impossible and that no one could do it. (Ricchuite Dep. 214:4-13; Def.'s Mot. Summ. J. Ex. 4, at 4, DN 71-10 [hereinafter Uniform Citation]). Additionally, Ricchuite claims that the tests were given on a grade to make the tests purposefully more difficult to pass. (Ricchuite Dep. 207:19-21). After the failed sobriety tests, Crick arrested Ricchuite on three misdemeanor charges of driving under the influence, failure to produce insurance, and failure to activate a turn signal. (KYIBRS Report III, at 1).

         After the arrest, Ricchuite continued to exhibit signs of being under the influence. (Crick Aff. ¶11). Ricchuite cursed at Crick in the cruiser, complained of a dry mouth, repeatedly asked for a drink, and continued to smack his gums and rub his fingers together. (Crick Aff. ¶11). Crick took Ricchuite to Logan Memorial Hospital where Ricchuite refused to submit to a blood test. (Ricchuite Dep. 215:6-14). Crick then took Ricchuite to the Todd County Detention Center in Elkton, Kentucky, where he was housed for 6-7 hours before being released. (Crick Aff. ¶12).

         On July 21, 2014, Ricchuite's DUI case went to trial before a Todd County Jury. (Def. Mot. for Summ. J. Ex. 3, at 1, DN 71-8 [hereinafter Tr. of Criminal DUI Trial]). The case had previously been screened for probable cause by Assistant Todd County Attorney, Mark Collins (“Collins”). (Def. Mot. for Summ. J. Ex. 6, at ¶ 3, DN 71-11 [hereinafter Mark Collins Aff.]). At trial, Ricchuite was acquitted of the misdemeanor DUI charge.

         Eight days post-verdict, Ricchuite filed this civil action in the Todd Circuit Court against Defendants Todd County, Johnson, Berghammer, and Crick (collectively “Defendants”). (Notice of Removal, Ex. 1, DN 1-1 [hereinafter State Ct. Compl.]). The individual Defendants were sued in both their individual and official capacities. Pursuant to 28 U.S.C. § 1441, Defendants removed this action based on federal question jurisdiction. (State Ct. Compl. 1). On October 20, 2014, the Court dismissed all state law claims against Todd County and Johnson in his official capacity, but not against Johnson individually. (Order Granting in Part Def.'s Mot. Dismiss, DN 11). On March 31, 2016, all Defendants moved for summary judgment, which motions are now ripe. (Def.'s Mot. Summ. J. DN 71 [hereinafter Johnson Mot.]; Def.'s Mot. for Summ. J. DN 72 [hereinafter Berghammer Mot.]; Def.'s Mot. for Summ. J. DN 73 [hereinafter Crick Mot.]).


         This Court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Additionally, this Court has “supplemental jurisdiction over all other claims that are so related to claims in the action within [the Court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).


         Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if 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). There is no genuine issue of material fact when “looking to the record as a whole, a reasonable mind could come to only one conclusion . . . .” Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 186 (6th Cir. 1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). “When moving for summary judgment the movant has the initial burden of showing the absence of a genuine dispute as to a material fact.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 520 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The burden then shifts to the nonmovant, who must put forth enough evidence to show that there exists ‘a genuine issue for trial.'” Id. (citing Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004)).

         While the Court views the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show the existence of some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Rather, the non-moving party must present specific facts proving that a genuine factual issue exists by “citing to particular parts of the 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). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.


         A. Federal Law Claims

         1. Violation of Civil Rights[2]

         In Count Five of the Complaint, Ricchuite vaguely alleges “civil rights” claims based on “[t]he actions and conduct of Defendants depriv[ing] Plaintiff of his right to due process and his right to equal protection of the laws, among other rights, guaranteed by the Constitutions of the United States and Kentucky.” (St. Ct. Compl. ¶ 40). Presumably, Ricchuite is asserting a Fifth or Fourteenth Amendment claim.

         The Fifth Amendment to the United States Constitution guarantees that no citizen shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. V. Defendants, who indisputably were state actors, cannot be liable for a claim under the Fifth Amendment because that provision restricts only the powers of the federal government and does not apply to state action. Wynn v. Morgan, 861 F.Supp. 622 (E.D. Tenn. 1994). The Fourteenth Amendment to the United States Constitution extends the Fifth Amendment concept of due process to the states. See U.S. Const. amend. XIV, § 1. It is unclear precisely what constitutional claims Ricchuite asserts under the Fourteenth Amendment, so the court will address each possible theory of liability.

         a. Procedural Due Process

         The procedural component of the Due Process Clause requires a state to formulate procedural safeguards and adequate post-deprivation process sufficient to satisfy the dictates of fundamental fairness and the Due Process Clause. Zinermon v. Burch, 494 U.S. 113, 148 (1990). Generally, procedural due process violations fall into two categories: (1) established state procedures which violate due process rights; and (2) random and unauthorized acts of state employees. Mertik v. Blalock, 983 F.2d 1353, 1365 (6th Cir. 1993).

         Ricchuite has not demonstrated that he was deprived of notice or an opportunity to be heard. He was represented by counsel at all stages of his criminal trials and he has not identified any deficiency in the process that would support any claim that he was denied due process by established procedures, so in the instant case he is assumingly complaining of random and unauthorized acts of state employees. “In such a case, the due process inquiry is limited to the adequacy of post-deprivation remedies provided by the state, and the burden is on the plaintiff to demonstrate the inadequacy of those remedies.” Mertik, 983 F.2d at 1364 (citing Zinermon, 494 U.S. at 128-30). The Supreme Court has likewise made it clear that a random and unauthorized deprivation of due process cannot be challenged under 42 U.S.C. § 1983 so long as the state provides an adequate post-deprivation remedy. Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Ingraham v. Wright, 430 U.S. 651, 701 (1977).

         Clearly a remedy was provided in the instant case, as Ricchuite was provided a day in court and acquitted of his charges. Additionally, appropriate post-deprivation remedies may also take the form of the right to file a civil action asserting tort claims. See Parratt, 451 U.S. at 544. Kentucky law provides tort remedies, as Ricchuite asserts them here in the Complaint. Given the adequacy of the state remedies available to him, Ricchuite's attempt to invoke 42 U.S.C. § 1983 in the instant case must fail.

         b. Substantive Due Process

         Substantive due process is “[t]he doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed . . . .” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (internal quotation marks omitted). “It protects a narrow class of interests, including those enumerated in the Constitution, those so rooted in the traditions of the people as to be ranked fundamental, and the interest in freedom from government actions that ‘shock the conscience.'” Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014) (quoting Bell v. Ohio State Univ., 351 F.3d 240, 249-50 (6th Cir. 2003)). In Braley v. City of Pontiac, 906 F.2d 220 (6th Cir. 1990), the Sixth Circuit advised discreet and judicious application of the “shock the conscience” standard in relation to police conduct, stating:

Applying the “shock the conscience” test in an area other than excessive force . . . is problematic. Not only are there fewer instances in the case law, but the “shock the conscience” test is not as uniformly applied to cases where excessive force or physical brutality is not the basis of the claim. The “shock the conscience” standard, fuzzy under the best of circumstances, becomes fuzzy beyond a court's power to interpret objectively where there is a dearth of previous decisions on which to base the standard. We doubt the utility of such a standard outside the realm of physical abuse, an area in which the consciences of judges are shocked with some degree of uniformity.

Id. at 226. Thus, the Sixth Circuit has been reluctant to find any police conduct to shock the conscience absent allegations of physical abuse. Id.; Mansfield Apartment Owners Ass'n v. City of Mansfield, 988 F.2d 1469, 1478 (6th Cir. 1993).

         In this case, Ricchuite has not alleged that any actions of Defendants that would shock the conscience, as there is no claim of excessive force. Thus, Ricchuite's substantive due process claim must fail because he has presented no evidence of any conduct by Defendants that could shock the conscience.

         c. Equal Protection

         The Fourteenth Amendment, with respect to equal protection, provides that “[n]o state shall . . . deny any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The equal protection clause requires public entities to treat similarly situated individuals in a similar manner. Buchanan v. City of Bolivar, 99 F.3d 1352, 1360 (6th Cir. 1996). To state a claim under the equal protection clause, a plaintiff bears the burden of proving “a state actor intentionally discriminated against the plaintiff because of membership in a protected class.” Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990) (internal quotation marks omitted) (citation omitted); see also Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 765 (6th Cir. 2010) (citation omitted).

         Ricchuite has provided no proof that he has been treated differently than others similarly situated. He is a white male and is not a member of a suspect or protected class, and there is no evidence that Ricchuite was discriminated against on the basis of his race, religion, national origin, etc. Therefore, Ricchuite's equal protection claim must fail.

         2.Invasion of Privacy Claim

         Ricchuite asserts a claim against Defendants for “an invasion of [his] right to privacy, as guaranteed by the . . . United States Constitution.” (St. Ct. Compl. ¶ 23). In his Complaint, he explains the factual basis to his right to privacy claim, asserting that Johnson “needlessly followed [him], observed [him], made video recordings of [him], told others harmful stories about [him] that were not true, and orchestrated and caused [him] to be charged with crimes for which he was not guilty . . . .” (St. Ct. Compl. ¶ 12).

         Even assuming that this factual basis could support a right to privacy claim under the federal constitution, Ricchuite's claim is time-barred. Claims for federal constitutional violations are brought through 42 U.S.C. § 1983. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008). As this Court explained in Tucker v. Heaton, No. 5:14-CV-00183-TBR-LLK, 2016 WL 7007527 (Nov. 29, 2016), “[s]ince § 1983 does not include a statute of limitations of its own, it borrows ‘the statute of limitations governing personal injury actions from the state where the § 1983 action was brought.' In Kentucky, actions of that sort must be ‘commenced' within one year ‘after the cause of action accrue[s].' ...

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