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Madden v. Calvert

United States District Court, W.D. Kentucky, Bowling Green Division

September 29, 2017



          Greg N. Stivers, Judge United States District Court.

         This 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.

         I. BACKGROUND

         Plaintiff 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).[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.

         Essentially, 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 33).

         Thereafter, 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).

         Madden 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).

         Presently, 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.


         This 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. § 1367.


         A. Madden's Motion for Entry of Default

         Madden 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 motion.

         B. Calvert's Motion to Dismiss

         Calvert 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).

         In 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.[2] 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, 570 (2007)).

         1. Standing

         A court 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.[3] 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).

         a. Actual Injury

         Madden 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).

         Madden 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 ...

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