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Harris v. Goins

United States District Court, E.D. Kentucky, Southern Division, London

July 20, 2017

WILLIAM GOINS, et al., Defendants.


          Danny C. Reeves JR. United States District Judge

         Plaintiff Alberto Harris seeks damages under 42 U.S.C. § 1983 and state law theories, including for alleged malicious prosecution, violations of his due process and Sixth Amendment rights, conspiracy, and intentional infliction of emotional distress. The police officers responsible for initiating his 2010 arrest and prosecution (for distribution of a controlled substance within 1, 000 yards of a school zone), their respective employers, and Clay County, Kentucky, are named as defendants. Separate motions for summary judgment filed by Defendant Clay County and Defendant Goins, et al., are pending for consideration. [Record Nos. 82 and 83] Former confidential informant Christina Little, her husband Lonnie Philpot, “Unnamed Law Enforcement Officers” and “Unnamed Supervisors of Individual Defendants” are also named as defendants, but are not parties to the present Rule 56 motions. [See Record No. 1.] The record reflects that Little and Philpot were served with the Complaint [Record Nos. 10 and 15] but have not filed answers or otherwise appeared.

         Summary judgment in not appropriate on the malicious prosecution and related claims because there is a genuine issue of material fact regarding probable cause to arrest Harris. However, because the named defendants are not proper targets of liability for Harris's alleged Sixth Amendment violation, summary judgment will be granted on that theory. Accordingly, Defendant Clay County's motion will be granted in full, and Defendant Goins's motion will be granted in part.


         On September 16, 2010, Plaintiff Alberto Harris was arrested for distribution of a controlled substance within 1, 000 yards of a school in violation of KRS 218A.1411. [Record No. 1 at 5-7] The arrest was pursuant to an arrest warrant obtained by officers in conjunction with a search warrant for Harris's residence. [Id.] Harris spent two periods in pre-trial detention, interspersed by two periods of bond. [See Record No. 83-8.] Nearly four years later, on September 10, 2014, the charges against him were dismissed when the government's witnesses failed to appear on the morning of trial. [Id.; Record No. 1 at 12] Harris filed the present suit for damages, alleging that his arrest and lengthy pre-trial detention were the result of a conspiracy between law enforcement and others. [See Record No. 1.]

         His Complaint contains ten counts. Harris alleges malicious prosecution under 42 U.S.C. § 1983 and state law, violations of substantive and procedural due process, failure to intervene, violations of his Sixth Amendment right to a speedy trial, supervisory liability, conspiracy to violate his constitutional rights, unconstitutional policies/customs/ practices/failure to act, intentional/reckless infliction of emotional distress, negligent infliction of emotional distress, civil conspiracy under Kentucky law, and negligence/gross negligence/recklessness. [Id.][1]

         In a 2001 civil action, Harris obtained a monetary judgment against Defendant Robinson. [Record No. 1 at 5] Under Harris's theory, Robinson intended to get even and, in 2010, had his chance. According to Harris, Robinson enlisted the assistance of Defendants Goins, Little and Philpot to frame Harris for selling drugs. [See Record No. 1.]

         In 2001, Defendant Robinson was a City of Manchester Police Officer, and later became a detective. By 2010, he was employed by Defendant Unlawful Narcotics Investigation Treatment and Education, Inc. (“UNITE”) as a narcotics detective. Defendant Goins was a patrol officer with the City of Manchester Police in 2010. Harris alleges that Robinson and Goins obtained the assistance of “known criminal[s]” Little and Philpot to fabricate evidence, obtain Harris's arrest, and keep him incarcerated. Harris contends that Little had a warrant for her arrest in Ohio, and that she and Philpot were inherently untrustworthy as informants. [See Record No. 102.] He also asserts that Philpot and Little had motive to frame him because Philpot previously had been arrested by Goins for selling drugs and was promised that, if he and/or Little worked as informants, there was a chance that his charges would be reduced. Finally, Harris alleges that Goins lied during the preliminary hearing and, at the very least, recklessly omitted facts during his grand jury testimony to continue Harris's prosecution despite a lack of probable cause. Harris also claims that Goins fabricated evidence. However, Harris does not suggests Goins's motive for participating in this conspiracy.

         The defendants argue in response that Robinson's alleged motive for a nearly decade-old civil suit is unfounded, especially because there is no evidence that Robinson was ever disciplined or otherwise suffered adverse consequences following the 2001 suit. [See Record No. 83; Record No. 106.] Moreover, they assert that numerous citizens had complained about Harris selling drugs out of his residence, which was unremarkable given Harris's past (i.e., he was on parole for a drug conviction). [Id.] In light of those complaints, the defendants assert that they conducted a valid, controlled purchase using Little who was a proven-reliable confidential informant, and that there was ample probable cause to arrest him and seek to continue his prosecution. [Id.]

         The following facts are clearly ascertainable from the record. [See e.g., Record No. 83-17 (“Buy Video”).] On September 16, 2010, Goins and Robinson outfitted Little with a key-fob style audio/video recording devices and provided her with two ten dollar bills, with the understanding that she would attempt to purchase one pill of Xanax from Harris.[2] [Record No. 83-1 at 5-6] Acting as a confidential informant, Little traveled to plaintiff's residence in a vehicle driven by Philpot. [Record No. 102 at 7] Little returned a short time later to the officers location in the parking lot of Eastern Kentucky University's Manchester Campus building. Little returned with eight dollars in change and one pill which she claimed was Xanax.[3] She informed the officers that Harris sold her the pill from inside his residence. The officers proceeded to call poison control to confirmed that the pill was Xanax.

         Goins prepared and submitted an affidavit for a warrant to search Harris's residence based on the drug evidence and Little's statement. [Record No. 83-18 at 20-22] The affidavit attests the CI's statement that Harris had called the CI several times on that date and stated that he had Xanax tablets at his residence for sale. [Id.] The affidavit attests that the CI was outfitted with an audio/video recording device, but does not specify the substance of the video recording.[4] [Id.] It explains that the CI was given two ten-dollar bills, and identifies the serial numbers. It states that the CI left the meeting location and returned a short time later with a white oblong tablet which she stated was Xanax that she had just purchased from Harris for $12.00 at his Pennington Hill residence. [Id.] The affidavit attests that poison control was called and indicated that the table was generic Xanax, a Schedule 4 controlled substance. [Id.] The affidavit attests that the CI stated she entered Harris's residence and he went into the back bedroom and returned with the pill. [Id.]

         Harris provided the CI with $8.00 in change for the $20.00 in marked bills. [Id.] The CI then returned the $8.00 to the officers. [Id.] Finally, the affidavit attested to the following independent investigation conducted by the officers:

It is known to the affiant that the Manchester Police Department has received numerous complaints about Alberto Harris selling controlled substances from his residence located on Pennington Hill. The confidential witness in this case has been used several time in the past by the Manchester Police Department as well as [by] other agencies and has proven to provide reliab[l]e information to law enforcement.


         The affidavit is signed and dated 7:03 p.m., September 16, 2010. [Id.] Based upon the affidavit, a search warrant was issued that same day for the search of Harris's residence, including for “Xanax and any other controlled substance…” along with “any proceeds including sums of U.S. currency…that appear to be proceeds derived from sales of controlled substances.” [Record No. 83-18 at 23-24] The arrest warrant also dated September 16, 2010, states “[a]ffiant says that on 9-16, 2010, in Clay County, Kentucky, Defendant unlawfully: sold Xanax to confidential witness for MPD - paid $12.00 for Xanax.” [Record No. 83-18 at 50-51]

         Both the search and arrest warrants are dated by Goins as executed on September 16, 2010. An investigative report made part of the record documents the execution of both warrants and clearly states that Harris was “placed under arrest for the arrest warrant that had been obtained for him.” [Record No. 83-18 at 10]

Upon arresting Harris, Officer Stewart retrieved Harris's wallet from his pant pocket out of the pants he was wearing and gave it to me. Myself and Sheriff Johnson then proceeded to look through Harris's wallet for the 2-$10.00 bills of U.S. currency that had been used by Manchester Police Department. . . Myself and Sheriff Johnson then located the two $10.00 bills in Harris's wallet. (the identification numbers that were recorded by myself earlier this date for the transaction were the same as what was named in the affidavit for the search warrant.)

[Record No. 83-18 at 10-11]

         According to the investigative report and the plaintiff's deposition, Harris was not home at the time the officers arrived to execute the warrants, but he arrived home while the search was taking place. [Record No. 83-18 at 10; Record No. 86 at 25-26 (Harris depo. At 100-101)] Goins's investigative report indicates that, prior to Harris arriving home, officers located a large quantity of pill bottles in the back bedroom. [Record No. 83-18 at 10] Goins attests that he “discovered a clear plastic container with a lid on it and no label [together on the nightstand with the other pill bottles] that contained 10 and 2 halves of Xanax tablets identical to the Xanax table [that] Harris had sold the confidential witness earlier in that same day.” [Id.] The investigative report states that the search began at approximately 21:00 hours, that the pill bottles were discovered at approximately 21:27 hours, and that Harris arrived home at approximately 21:50 hours. [Id.]

         Following documentation of the evidence and seizure of Harris's vehicles, the report outlines that “Harris was released to the Clay County Jail and charged with two counts of trafficking controlled substances within 1, 000 yards of a school, the school being Eastern Kentucky University.” [Record No. 83-18 at 11] A diagram from the Kentucky Department of Transportation was included demonstrating that Harris's residence was “well within 1, 000 yards” of the school. [Id.] The investigative report concludes, “Alberto Harris sold a confidential witness one Xanax tablet and had in his residence for the purpose of selling, more Xanax tablet in which the residence is within 1, 000 yards of Eastern Kentucky University.” [Id.]

         Goins testified during the preliminary hearing held on September 27, 2010. [See Record No. 84-3 (“Transcript of Preliminary Hearing Testimony on 9/27/2010”).] Goins was questioned by the Commonwealth Attorney and then cross-examined by defense counsel. [Id.]

         Relevant excerpts of the transcript are as follows:

CA: And was [the confidential informant] checked like you all check them to make sure uh you know he was ready to do the confidential buy thing?
Goins: Yes. It's one we've used several times.
CA: (discussing the CI returning with Xanax) Okay. And did he say he bought it from Alberto Harris?
Goins: Yes.
CA: And does your ev…other evidence that collaborates that does it collaborate?
Goins: Yes.
. . .
[Cross Examination]
Defense Counsel: And was this buy videotaped?
Goins: Yes ma'am.
Defense Counsel: (Inaudible) could you see the pill actually transfer?
Goins: I have not seen the tape the video uh to its entirety.
Defense Counsel: So you don't know?
Goins: I uh like I said, Detective Robinson watched it. I haven't watched it yet.
Defense Counsel: You said this was a confidential informant that's been used before?
Goins: Yes ma'am.
Defense Counsel: And you had searched him prior to entering the residence?
Goins: Yes.
Defense Counsel: Now was any [] officers following him where they could view him entering the residence?
Goins: No.
Defense Counsel: Uh was the confidential informant promised anything in return for informing this sale or buy?
Goins: The confidential informant is like the they're uh they're paid.
Defense Counsel: So he didn't have any pending charges or anything like that?
Goins: No ma'am. I should say not that I'm aware of I mean.
Defense Counsel: But to our knowledge note that he wasn't promised anything other than compensation?
Goins: It's that's standard I mean all we do is pay ‘em. They're like just employed.

         [Record No. 83-7] The judge found probable cause, and set bond at $1, 000 full cash following the preliminary hearing. [Record No. 83-8 at 1]

         On October 7, 2010, the case was presented to a grand jury. Goins again testified. [Record No. 84-6] The substance of his testimony is as follows:

Q: Tell us what happened please.
A: Let's see, on September 16th, 2010, myself and UNITE Det. Patrick Robinson working with a confidential informant, the, an informant had told myself and Det. Robinson that Mr. Harris, Alberto Harris had contacted her, told her that, that he had obtained some Xanax medication that he was wanting to sell, wanting to know if she wanted to buy some, so myself and Det. Robinson then placed informant with audio/video recording device, gave informant some money to purchase the controlled substances with, the informant then went to his residence, which is located on Pennington Hill in Manchester, which he, he sold her xanax medication. Then the informant was given two $10 bills to buy the drugs with from Mr. Harris. And then the serial numbers from the money had been recorded by us before giving them to the informant to use to purchase the medication and then on the same day, after this transaction took place, on the same date, that night, on the 16th, a search warrant was obtained and executed at the residence of Alberto Harris in which officers discovered the, a bottle of, not a prescription bottle but just a clear container of same identical medication or controlled substance and which was purchased from Harris that same date. He has no prescription for it and also when officers got Harris' billfold out of his pocket, that he had in his pants pocket, our two $10 bills we'd used to buy the drugs from him that day was in his billfold.
Q: What pills did you get off of him that night?
A: Just xanax. More xanax. But he was charged, he's been charged with two counts of trafficking in a controlled substance within 1, 000 yards of a school. That school would be the new Eastern College.
Q: And he, was he actually on parole at this time he done this?
A: Yes. He's on, he's currently on parole for, got out of prison for selling drugs. [Record No. 84-6]

         An indictment was returned in open court on November 4, 2010. [Record No. 87-1] Harris was arraigned on December 6, 2010, and pleaded not guilty. [Record No. 83-8] A pretrial conference was set for January 3, 2011. [Id.] On that date, defense counsel sought a new pretrial conference date because she had not received the video evidence. After further delays, including a delay due to an illness of appointed counsel, Judge House dismissed the felony indictment against Harris, finding a lack of jurisdiction over a misdemeanor.[5] [Id. at 3; Record No. 87-2]

         On August 9, 2011, a new felony indictment was returned for Harris in open court, charging Harris, based upon the same conduct, with two counts of Trafficking in Controlled Substance, Third Degree, Second or Subsequent Offense, in violation of KRS 218A.1414(1), and one Count of being a Persistent Felon Offender, First Degree, in violation of KRS 532.080. [Record No. 87-3] The Third Count was later dismissed in light of House Bill 463, which modified application of the Persistent Felony Offender charge.[6] No transcript exists of this grand jury proceeding.

         Harris was released from custody on December 9, 2011, pursuant to a $20, 000 surety bond and after 450 days of incarceration. [Record No. 83-8 at 3] However, the surety bond was revoked by the securing party on March 6, 2012, and Harris was re-booked at the Clay County detention center. [Id. at 4] Harris remained incarcerated until a surety bond was again posted on May 23, 2013, for a total of 444 days. [Id. at 6] Based on the timeline filed by defendants, Harris was incarcerated for a total of 894 days. The charges against him were dropped on September 10, 2014, or 3 years, 11 months, and 26 days after his initial arrest.

         In light of his lengthy incarceration, and even longer delay until final dismissal of his charges, Harris filed this suit accusing Goins and Robinson of conspiring to deprive him of his constitutional rights, and attempting to keep him incarcerated as long as possible. Harris alleges motive on the part of Robinson as retaliation for a civil suit filed by Harris nearly a decade earlier, which was resolved in a settlement in Harris's favor. Harris alleges that Robinson conspired with Goins, Little, and Philpot to fabricate evidence against him, and to keep him wrongfully incarcerated. In his Complaint, Harris alleges that he does not appear on the buy video, that he was not home on that date, that Little planted the Xanax pills at his residence, and that the officers planted the marked bills in his wallet.

         Contrary to the assertions in his Complaint, there is substantial evidence inculpating Harris in the offense charged. For example, during his deposition testimony, Harris admits that it was his voice on the controlled buy video, admits that he may have been at his residence during the day on September 16, 2010, admits that he possessed Xanax pills (though apparently as a prescription), admits that Christina Little often came to his residence alone, and admits that he has, in the past, permitted Little to take his Xanax, such as after the two engaged in sexual conduct. [See Record No. 83-1 at 6 (citing Harris deposition).] Moreover, Harris has no evidence, apart from his own speculation, that the officers planted the marked bills in his wallet, that the officers held animus against him for the decade-old civil settlement, that the officers conspired to frame him, or that the officers specifically conspired with Little and Philpot to frame him for distributing Xanax. Finally, Harris has no evidence to suggest collusion between the individual defendants and the Commonwealth Attorney to intentionally prolong incarcerated out of animus.

         Further, there is no evidence that Robinson and Goins concealed any plainly exculpatory evidence. The only alleged omissions made by Goins both in his affidavit accompanying the search (and arrest) warrants and his preliminary hearing testimony is that the CI video does not actually capture the drug transaction (it merely establishes that Little was at Harris' residence and that there was some exchange of money), the existence of Philpot as Little's driver, and Little's motivation to act as a confidential informant (possible reduced charges for Philpot). The record establishes four instances in which Little acted as ...

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