United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves JR. United States District Judge
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.
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.
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.]
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
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.]
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.
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.]
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. [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. 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
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. [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.
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
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.
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]
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]
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.
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.”
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.]
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?
CA: And does your ev…other evidence that collaborates
that does it collaborate?
. . .
Defense Counsel: And was this buy videotaped?
Goins: Yes ma'am.
Defense Counsel: (Inaudible) could you see the pill actually
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
Defense Counsel: Now was any  officers following him where
they could view him entering the residence?
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
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
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.
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]
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
A: Yes. He's on, he's currently on parole for, got
out of prison for selling drugs. [Record No. 84-6]
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. [Id. at 3; Record No. 87-2]
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. No transcript exists of this grand jury
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.
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.
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.
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 ...