United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court.
matter is before the Court on Plaintiff's Motion for
Entry of Default (DN 14) and Defendant's Motion to
Dismiss (DN 13). For the reasons set forth below,
Plaintiff's Motion for Entry of Default is
DENIED, and Defendant's Motion to
Dismiss is GRANTED.
William Joseph Madden (“Madden”) brought this
action against Defendant Todd B. Calvert
(“Calvert”), asserting claims under 42 U.S.C.
§§ 1983, 1985(2) and Kentucky tort law. (Compl.
5-6, DN 1). Madden is a convicted prisoner, and
Calvert is the Circuit Court Clerk for Allen County. (Compl.
5). Each claim arises out of criminal proceedings that the
Commonwealth of Kentucky brought against Madden.
the Commonwealth charged Madden with first disagree criminal
mischief, and, on November 24, 2014, the prosecution held a
preliminary hearing in the Allen District Court to address
the merits of that charge. (Def.'s Mot. Dismiss Ex. A, DN
13-2). The Commonwealth videotaped the hearing, during which
Madden allegedly made an incriminating statement in response
to a question from the presiding judge. (Suppl. Compl. 4, DN
the Commonwealth's case against Madden entered the
discovery phase. Through discovery, Madden obtained copies of
the videotape of his hearing in DVD format. (Pl.'s Suppl.
Compl. 4). He viewed the video and noticed that it depicted
him making the incriminating statement without any
questioning from the presiding judge. (Suppl. Compl. 4).
Subsequently, Madden's counsel asked Calvert to submit a
certified a copy of the videotape. (Suppl. Compl. 4). Madden
viewed the certified copy and found that, as with the DVD, it
showed him making an unsolicited incriminating statement.
(Suppl. Compl. 4).
filed this action on September 12, 2016. In the Complaint,
Madden claims that Calvert, as custodian of records in Allen
County, altered the videotape to remove the presiding
judge's question “with the intent that the
falsified video be presented as evidence against” him.
(Compl. 5-6). To support his position, he alleges that the
certified copy of the videotape did not contain a date or
time stamp and that Calvert acted outside the scope of his
judicial function when he altered the video. (Compl. 5). He
seeks relief under Section 1983 on the ground that
Calvert's alleged misconduct deprived him of his Equal
Protection and Due Process rights. (Compl. 5-6). Further, he
asserts that Calvert committed: (1) official misconduct, (2)
abuse of authority, (3) abuse of process, and (4) fraud, in
violation of Kentucky law. (Compl. 6).
two motions are pending before the Court. In the first
motion, filed on February 24, 2017, Calvert moves the Court
to dismiss the Complaint asserting that: (1) the Court lacks
subject matter jurisdiction over Madden's claims because
the Complaint is devoid of factual allegations showing that
Madden suffered an injury-in-fact; (2) Madden failed to state
a claim for which he is entitled to relief, and (3) Calvert
is immune from suit with respect to Madden's Section 1983
claims. (Def.'s Mot. Dismiss 3-12, DN 13). In response,
Madden generally asserts that he has substantiated his
claims. (Pl.'s Resp. Mot. Dismiss passim, DN
16). In the second motion, Madden moves the Court to enter a
default judgment against Calvert on the ground that Calvert
failed to respond to the Complaint within the 21-day time
period set forth in Fed.R.Civ.P. 12(a)(1)(A)(i). (Pl.'s
Mot. Entry Default 1, DN 14). Calvert responds that he
properly filed a responsive pleading within 21 days of
service of process. (Def.'s Resp. Pl.'s Mot. Default
J. 1, DN 17). The matters are ripe for decision.
Court has subject matter jurisdiction over Madden's
Section 1983 claims under 28 U.S.C. § 1331.
Additionally, this Court has subject matter jurisdiction over
Madden's tort law claims pursuant to 28 U.S.C. §
Madden's Motion for Entry of Default
moves the Court to enter default judgment against Calvert.
Rule 12 of the Federal Rules of Civil Procedure states that a
party against whom a judgment is sought must serve a
responsive pleading “within 21 days after being served
with the summons and complaint.” Fed.R.Civ.P.
12(a)(1)(A)(i). If the responding party fails to make a
responsive pleading, “and that failure is shown by
affidavit or otherwise, ” then Rule 55(a) of the
Federal Rules of Civil Procedure directs the clerk to enter
the party's default. Fed.R.Civ.P. 55(a). Here, Calvert
received service of process on February 3, 2017 and filed a
responsive pleading- i.e., the motion to dismiss-on February
24, 2017. Thus, Madden is mistaken in asserting that Calvert
has defaulted and, thus, this Court will deny Madden's
Calvert's Motion to Dismiss
moves to dismiss the Complaint for lack of subject matter
jurisdiction and for failure to state a claim on which relief
can be granted pursuant to Fed.R.Civ.P. 12(b)(1), (6).
(Def.'s Mot. Dismiss 3-9). Alternatively, Calvert seeks
to dismiss Madden's claims on the ground that he is
immune from suit. (Def.'s Mot. Dismiss 9-12).
reviewing a motion to dismiss, the Court “must accept
as true all material [factual] allegations in the
complaint” and “construe the complaint liberally
in favor of” the non-moving party. White,
601 F.3d at 551 (citations omitted). A court must then find
that the complaint plausibly shows that Plaintiff has
standing-i.e., that the court has subject matter jurisdiction
over the plaintiff's claims-and that the plaintiff has
stated a claim for which he or she is entitled to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
White, 261 F.3d at 551-52 (applying
Iqbal's “plausibility” standard to
the facts plaintiff pled to show standing). “Unless the
facts as alleged show that the plaintiff's claim crosses
‘the line from conceivable to plausible, [the]
complaint must be dismissed.'” Shoup v.
Doyle, 974 F.Supp.2d 1058, 1071 (S.D. Ohio 2013)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
lacks subject matter jurisdiction over a claim when the
plaintiff fails to establish that he has standing to bring
that claim. Ward v. Alternative Health Delivery Sys.,
Inc., 261 F.3d 624, 626 (6th Cir. 2001). To survive a
motion to dismiss for lack of subject matter jurisdiction, a
complaint must allege facts sufficient to permit a reasonable
inference that: (1) the plaintiff has suffered or imminently
will suffer an injury; (2) the defendant caused the injury;
and (3) a judicial decision in the plaintiff's favor
would redress the injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); White, 601
F.3d at 551. “General factual allegations of injury may
suffice to demonstrate standing, ” but “standing
cannot be inferred . . . from averments in the
pleadings”-the facts establishing standing must
“affirmatively appear in the record.” Spencer
v. Kemna, 523 U.S. 1, 10-11 (1998); White, 601
F.3d at 551 (citation omitted).
has failed to establish that he suffered an actual injury as
a result of Calvert's alleged act of altering the
videotape because he does not claim that the Commonwealth
actually used the videotape to deprive him of his liberties.
Though the Sixth Circuit has recognized that a criminal
defendant suffers an injury when the State fabricates
evidence against him, it has only done so in cases where
“there is a reasonable likelihood that the false
evidence could have affected the judgment of the jury.”
Mills v. Barnard, No. 16-6597, 2017 WL 3687434, at
*7 (6th Cir. Aug. 28, 2017) (internal quotation marks
omitted) (quoting Stemler v. City of Florence, 126
F.3d 856, 872 (6th Cir. 1997)). Other circuits have reached
the same result. See Zahrey v. Coffey, 221 F.3d 342,
348 (2d Cir. 2000) (“[T]he manufacture of false
evidence, in and of itself, . . . does not impair
anyone's liberty, and therefore does not impair
anyone's constitutional right.” (internal
quotations omitted)); Buckley v. Fitzsimmons, 20
F.3d 789, 795 (7th Cir. 1994) (suggesting that, if a
prosecutor fabricated evidence against an individual and
“framed it and hung it on the wall, but took no other
step, ” the individual would suffer no injury).
has alleged only that Calvert altered the videotape of his
preliminary hearing. (Suppl. Compl. 5). Construing this
allegation liberally and in a light favorable to Madden, he
has asserted that Calvert fabricated evidence against him.
But Madden has failed to allege that Calvert, or the
Commonwealth, actually used the altered videotape to secure
his conviction, initiate charges against him, or force him to
accept a plea, much less facts indicating that the altered
videotape “affected the judgment of the jury.”
Stemler, 126 F.3d at 872 (citation omitted). Thus,
Madden has “alleged only the fabrication of
evidence”-not that fabricated evidence was used to
deprive him of his liberties or otherwise ...