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King v. Harwood

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

December 5, 2017

TODD HARWOOD, et al., Defendants.


          Colin Lindsay, Magistrate Judge

         Before the Court are two motions - a motion filed by defendant Todd Harwood (“Harwood”) to stay District Court proceedings (DN 34) pending the resolution of his petition for Writ of Certiorari and a motion to quash a subpoena duces tecum (DN 36) by a former defendant, the Kentucky State Police (“KSP”). Oral arguments were held on November 1, 2017. For the following reasons, the Court DENIES Harwood's motion to stay proceedings. Because the merits of KSP's motion to quash rest on entirely different law, the Court will issue a separate ruling on KSP's motion.

         I. Factual Background and Procedural History

         A. Factual Background

         This action has its roots in a 2006 investigation and purported resolution of a cold case. (DN 1, #6.) In November 1998, police pulled the body of Kyle Breeden (“Breeden”) out of the Kentucky River near Gratz, Kentucky. (Id.) Breeden had been shot twice in the back of the head with a gun capable of chambering .22 caliber rounds and had his legs bound with a guitar amplifier cable before being thrown into the river. (Id.) Although Breeden's ex-girlfriend, the electric guitar player Susan King (“King”), was among the suspects the police investigated, they could not obtain a search warrant of King's home. (Id. at 7-8.) At the time, no one was arrested for Breeden's murder. (Id. at 7-8.) The case sat dormant for nearly seven years until 2006, when it was assigned to detective Harwood. King v. Harwood, 852 F.3d 568, 572 (6th Cir. 2017).

         Harwood promptly obtained a search warrant of King's home - and subsequently a second - using information similar to the information with which the police had failed to obtain a warrant years prior. (DN 1, #8); King, 852 F.3d at 574. The evidence obtained from warrants included bullet holes in King's kitchen floor made by .22 caliber rounds and over one hundred twenty-five bullets recovered from a tree in King's backyard. (DN 1, #11); King, 852 F.3d at 574. Based on the warrants' results, Harwood testified before a grand jury to obtain an indictment against King for Breeden's murder, and according to King, gave false testimony. (DN 1, #12); King, 852 F.3d at 575. Such “false testimony” included a failure to mention King's amputated leg and that several ballistics analyses of the bullets recovered from King's home did not provide conclusive evidence that she murdered Breeden. (DN 1, #12); King, 852 F.3d at 575. The grand jury indicted King for Breeden's murder. At a subsequent grand jury hearing at which Harwood also testified, King was also indicted for tampering with physical evidence. (DN 1, #13); King, 852 F.3d at 575. In 2008, King entered an Alford plea, under the terms of which she was sentenced to ten years of incarceration. King, 852 F.3d at 575.

         In May 2012, a known murderer named Richard Jarrell (“Jarrell”) allegedly confessed to a Louisville Metro Police (“LMPD”) detective that he was the one who had killed Breeden. (DN 1, #16); King, 852 F.3d at 575-76. Harwood met with Jarrell, who later recanted his purported confession; King alleges that Harwood intimidated Jarrell into the retraction. (DN 1, #17-18); King, 852 F.3d at 576. Nevertheless, the LMPD detective to whom Jarrell had allegedly confessed forwarded a copy of Jarrell's confession to the Kentucky Innocence Project, which began work on attempting to overturn King's conviction. King, 852 F.3d at 576. King's claim worked its way up to the Kentucky Court of Appeals which, in July 2014, vacated King's Alford plea. Id. See also King v. Com., 2014 WL 3547480 (Ky. Ct. App. July 18, 2014). The criminal case against King was formally terminated on October 9, 2014. King, 852 F.3d at 576.

         B. Procedural History

         King filed the instant action under 42 U.S.C. § 1983 on October 1, 2015, alleging malicious prosecution under the Fourth Amendment and other charges against Harwood, the KPS, several of Harwood's supervisors, and other related parties. (DN 1.) On June 1, 2016, this Court granted the defendants' motion for summary judgment on the grounds that (1) King's claims were time-barred by the one year statute of limitations, and alternatively, that (2) all defendants were entitled to qualified immunity. King, 852 F.3d at 576-77. See also King v. Hardwood, 2016 WL 309044 (W.D. Ky. June 1, 2016).

         On appeal, the Sixth Circuit reversed this Court's opinion in part and affirmed it in part. First, it determined that the one year statute of limitations had begun to run on the day the criminal charges were formally dismissed (October 9, 2014), so King's complaint was not time-barred. King, 852 F.3d at 578-79. Second, it held that Harwood did not have absolute immunity protecting him from suit by King, as Harwood's actions exceeded the conduct that the United States Supreme Court held was protected in Rehberg v. Paul, 556 U.S. 356 (2012), a case concerning the scope of testimonial immunity at grand jury proceedings. King, 852 F.3d at 587-90. Formulating a new exception to the long-held rule that a grand jury indictment creates an unrebuttable presumption of probable cause, the Sixth Circuit held:

[W]here (1) a law-enforcement officer, in the course of setting a prosecution in motion, either knowingly or recklessly makes false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do not consist solely of grand-jury testimony or preparation for that testimony (where preparation has a meaning broad *588 enough to encompass conspiring to commit perjury before the grand jury), the presumption that the grand-jury indictment is evidence of probable cause is rebuttable and not conclusive

Id. at 587-88. The Sixth Circuit found that at the present stage of litigation, King had satisfied its new test, and it remanded the case back to this Court for further proceedings on King's §1983 malicious prosecution and state law claims. Id. at 591-92. It did, however, affirm this Court's grant of summary judgment in favor of the defendants for King's claims against all defendants other than Harwood, including KSP. Id. at 592.

         Harwood filed his petition for Writ of Certiorari to the United States Supreme Court on August 15, 2017. (DN 32). He then filed the present motion to stay the proceedings before this Court, pending the outcome of his Writ, on September 7, 2017. (DN 34.) The next day, King emailed KSP's counsel notice that she had mailed a subpoena duces tecum to KSP. Despite a request from KSP to stay the subpoena pending action by the Supreme Court, King insisted on a response. (DN 36, #454.) On October 10, KSP filed a motion to quash King's subpoena, mostly arguing that it should be quashed pending potential Supreme Court review. (DN 36.)

         II. Summary of Law

         “The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes in its docket with economy of time and effort for itself, for counsel, and for litigants, and the entry of such an order ordinarily rests with the sound discretion of the District Court.” F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 626-27 (6th Cir. 2014) (quoting Ohio Envtl. Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir.1977)). Indeed, Districts Courts ordinarily have the authority to issue stays where those stays would be a valid exercise of their discretion. Ryan v. Gonzales, 568 U.S. 57, 76 (2013) (citing Rhines v. Weber, 544 U.S. 269, 276 (2005)). The burden is on the moving party to show that there is a pressing need for delay and that neither the other party nor the public will suffer harm for the entry of the order. Mobley v. City of Detroit, 938 F.Supp.2d 688, 690 (E.D. Mich. 2013) (citing Ohio Envtl. Counsel, 565 F.2d at 396)).

         When a litigant asks the District Court for a stay pending a petition for Writ of Certiorari, the litigant must demonstrate: (1) a reasonable probability that four Justices would vote to grant certiorari; (2) a significant possibility that the Supreme Court would reverse the judgment below; and (3) a likelihood of irreparable harm, assuming the correctness of the litigant's position, if the judgment is not stayed. U.S. v. Mandyzcz, 321 F.Supp.2d 862, 864 (E.D. Mich. 2004) (citing Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1319-20 (1994) (Rhenquist, J., in chambers)). A demonstration of each of the three factors is required. Mandyzcz, 321 F.Supp.2d at 866 (quoting Packwood, 114510 U.S. at 1319-20)). Even if a litigant satisfies all three elements, a stay may still be denied when the equities do not weigh in favor of the stay. Barnes v. E-Systems, Inc. Group Medical & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J., in chambers).

         The Court will examine each element in turn to determine if Harwood has met his burden.

         III. Analysis

         A. Reasonable Probability That Four Justices Would Vote to Grant Certiorari

         When faced with the question of whether there is a reasonable probability that four justices would grant certiorari, District Courts in this circuit have looked to Rule 10 of the U.S. Supreme Court Rules for guidance. F.D.I.C. v. First American Title Ins. Co., 2015 WL 418122 (E.D. Mich. Jan. 30, 2015) at *3. Rule 10 provides guidance to litigants as to what the Supreme Court justices ...

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