United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
States District Court Greg N. Stivers, Judge
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.
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).
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).
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
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.
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).
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]).
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. (Crick Aff. ¶ 6).
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).
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).
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.
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.]).
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).
STANDARD OF REVIEW
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.
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
Federal Law Claims
Violation of Civil Rights
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.
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
Procedural Due Process
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).
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).
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.
Substantive Due Process
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).
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
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).
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.
of Privacy Claim
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).
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].' ...