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Cherry v. Howie

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

March 27, 2017

ANN CHERRY PLAINTIFF
v.
GUY HOWIE, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell Judge.

         This matter is before the Court upon Defendants' renewed motion for summary judgment on Plaintiff Ann Cherry's sole remaining claim, abuse of process. [DN 69.][1] Cherry responded, [DN 71], and Defendants replied, [DN 72.] Fully briefed, Defendants' motion is ripe for adjudication. For the following reasons, that motion [DN 69] is DENIED.

         I. Facts and Procedural History

         On two prior occasions, this Court has addressed the merits of Ann Cherry's claims against Defendants. See [DN 21; DN 42.] As such, the Court need only provide a brief recitation of the facts, paying particular attention to the discovery conducted by the parties since the last time the Court visited this case. See Cherry v. Howie, 191 F.Supp.3d 707 (W.D. Ky. 2016).

         Ann Cherry previously served as a Hopkinsville, Kentucky City Councilman. In 2012, Defendant Guy Howie, then serving as Hopkinsville's Chief of Police, proposed an ordinance that would require local pawn shops to use an online service known as “Leads Online, ” which tracks pawn transactions. Based upon objections from pawn shop owners and her belief that Leads Online provided improper incentives to police departments, Cherry opposed the ordinance and scheduled it for an ethics hearing.

         Around the same time, a man later dubbed the “Southside Prowler” began burglarizing homes in Cherry's neighborhood. Several persons, including Vicci Clodfelter, Cherry's neighbor, reported to police that they saw a white man masturbating in view of their homes. Responding to these reports, the Hopkinsville Police Department generated an automated “Code Red” phone call warning residents of the Southside Prowler and describing his appearance. Defendants allege that Cherry then attempted to convince both the authorities and her neighbors that the burglar was black, not white, based upon a surveillance video she was shown by another neighbor. Ultimately, a white man was convicted for the crimes committed in Cherry's neighborhood.

         Following these events, Chief Howie asked Defendant Jefferson Alexander, a police lieutenant, to investigate Cherry's alleged interference with the Hopkinsville Police Department's pursuit of the Southside Prowler. After compiling a timeline, Defendants state that Alexander met with Commonwealth Attorney Lynn Pryor to review the information. In her recent deposition, Pryor testified that neither Howie nor Alexander mentioned the pawn shop ordinance during these conversations. [DN 69-2 at 3-4.] Pryor and Alexander did, however, discuss whether a potential criminal indictment would impact Cherry's status as a sitting member of the City Council. [Id. at 4.]

         Based upon those discussions, Pryor decided to present Cherry's case to a grand jury. There, Alexander testified that following the Code Red call, Cherry called 911, seeking to convince the police department of her own belief that the Southside Prowler was a black man. [DN 71 at 7-12.] He also told the grand jury that Cherry had emailed this erroneous information to her constituents, and had released a surveillance video to a Nashville news station against the wishes of Chief Howie. [Id. at 17-24.] Based upon Alexander's testimony, the grand jury returned felony indictments for tampering with a witness and tampering with public records, and a misdemeanor indictment for official misconduct. Cherry maintains that none of those charges had a sound basis.

         Following her indictment, Cherry entered into extended plea negotiations with the Commonwealth. According to Cherry, all the proposed offers required her to resign her seat as a councilmember and agree not to run for mayor. On the morning of Cherry's trial, the parties reached a settlement. In exchange for the Commonwealth's dismissal of her criminal charges, Cherry resigned her position and promised not to run for mayor or city council in the future. Pryor does not recall who first proposed this settlement, nor does she recall Howie or Alexander expressing a desire to have Cherry removed from city council. [DN 69-2 at 5-6.]

         Cherry then filed the instant suit. See [DN 1.] The crux of her allegations is that Defendants pursued unfounded criminal charges against her in retaliation for her opposition to the proposed pawn shop ordinance, with the ultimate goal of removing her from elected office. Cherry's complaint included claims for abuse of process, malicious prosecution, and violation of her constitutional due process rights. She named as defendants Chief Howie, Lieutenant Alexander, Commonwealth Attorney Pryor, the Hopkinsville Police Department, and the City of Hopkinsville.

         The Court dismissed Cherry's claims against Commonwealth Attorney Lynn Pryor, holding that Pryor was entitled to absolute immunity. See [DN 21.] Then, upon motion by the remaining Defendants, the Court granted summary judgment on Cherry's malicious prosecution and § 1983 claims.[2] Cherry, 191 F.Supp.3d at 715, 721. Because Cherry had to give something up in exchange for dismissal of her charges, the criminal proceeding against her did not terminate in her favor - an element necessary to establish liability on both claims. Id. However, the Court denied Defendants' motion as to Cherry's abuse of process claim, writing that “Ms. Pryor's plea offers to and ultimate agreement with Ms. Cherry are highly unusual. . . . A jury could reasonably infer that Ms. Pryor received input from or was influenced by the Defendants when she utilized the judicial process to prevent Ms. Cherry from holding public office in the City of Hopkinsville.” Id. at 717-18. The Court allowed the parties to conduct further discovery on this claim, and they did. After deposing Pryor and obtaining Alexander's grand jury testimony, Defendants renewed their motion for summary judgment. [DN 69.] Cherry responded, [DN 71], and Defendants replied, [DN 72].

         II. Standard of Review

         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, Defendants must shoulder the burden of showing the absence of a genuine dispute of material fact as to at least one essential element of Cherry's abuse of process claim. Fed.R.Civ.P. 56(c); see Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming Defendants satisfy their burden of production, Cherry “must-by deposition, answers to interrogatories, affidavits, and admissions on ...


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