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Barrow v. City of Hillview

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

December 14, 2017

JAMES S. BARROW PLAINTIFF LEO DANIEL COOK INTERVENING PLAINTIFF
v.
CITY OF HILLVIEW, KENTUCKY, et al., DEFENDANTS

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge.

         This matter is before the court on motion of Defendants, City of Hillview, Kentucky; Glenn Caple, in his individual capacity; and Kenneth Straughn, in his individual capacity (collectively, “Defendants”), for summary judgment. For the reasons stated herein, the court will GRANT Defendants' motion. Plaintiff's Amended Complaint and Intervening Plaintiff's Intervening Complaint will be DIMISSED.

         I. BACKGROUND

         The incidents giving rise to this action began in early January of 2012. Plaintiff James S. Barrow (“Barrow”) and Intervening Plaintiff Leo Daniel Cook (“Cook”) (collectively, “Plaintiffs”), both employed as police officers for the City of Hillview (“Hillview”), were asked to accompany Defendants Glenn Caple (“Caple”) and Kenneth Straughn (“Straughn”) to the home of Jim Eadens, the mayor of Hillview. (DN 55, Exh. I, 7.) Mayor Jim Eadens (“Mayor Eadens”) had allegedly called Straughn believing there to be K-9 law enforcement dogs in the yard around his home. (Id. at Exh. B, 1-2.) At this time, Caple was Hillview's Chief of Police and Straughn was employed as Major of the Hillview police department. (Def.'s Ans. to Am. Compl., DN 7, ¶¶ 4, 5.)

         Plaintiffs Cook and Barrow and Defendants Straughn and Caple responded to Mayor Eadens' call. (DN 55, Exh. B, 1-2.) No law enforcement dogs were found at Mayor Eadens' home, but Straughn and Barrow did discover a backpack on Mayor Eadens' property while walking around the premises. (Id. at 2-3.) Cook was asked to examine the backpack and he found that it contained what looked like objects used to manufacture methamphetamine. (Id. at Exh. C, 22-23.) Plaintiffs apparently suspected that the backpack belonged to the Mayor's son. (DN 54, Exh. E, 34:8-11.) The backpack was soon thereafter placed on the other side of a fence surrounding Mayor Eadens' property, allegedly at the direction of Caple. (DN 55, Exh. C, 21-23.) This was on the opposite side of the fence that the backpack was originally discovered. (Id. at Exh. B, 4.)

         Cook believed that Caple ordered the backpack to be moved so as to protect Mayor Eadens from bad publicity. (Id. at Exh. C., 26-27.) When Cook informed Barrow that the backpack had been moved from its original location, Barrow suspected that the action was either illegal or against policy. (Id. at Exh. D, 38.) Barrow claims that as he was walking towards his car to leave Mayor Eadens' property, Straughn ordered Barrow not to say a word to anyone about what happened. (Id. at Exh. D, 38:7-13.)

         Barrow reported the incident to the Bullitt County Sheriff Office, which then referred Barrow to the Federal Bureau of Investigation (FBI). (Id. at 16-18.) Barrow and Cook cooperated with the FBI in their investigation of what Cook claims the FBI called a case of “political corruption.” (Id. at Exh. C, 38:16-22.) During the investigation, Caple was permitted to continue acting as Chief of Police but was confined to “performing only administrative duties.” (Id. at Exh. G, 72:15-23.) Both Barrow and Cook claim, however, that despite this “abstention of duties, ” Caple retained all of his police powers. (Id. at 73-74.) These powers included the ability to carry a badge and firearm and make arrests. (Id.)

         Plaintiffs allege that they were subjected to adverse employment actions by Caple and Straughn when it became known that they participated in the FBI investigation of Caple. Plaintiffs claim that the following disciplinary actions against them evidence a “progression of discipline” and were in retaliation for cooperating with the FBI:

• On May 9, 2013, Barrow received a verbal reprimand for speeding in the parking lot. (Id. at Exh. E.)
• On May 31, 2013, Cook received a written reprimand for mishandling a case. (Id. at Exh. F.)
• On January 15, 2014, Barrow received a written reprimand for an alleged violation of Hillview's pursuit policy and video recording policy. This reprimand sought a two-day suspension of Barrow. (Id. at Exh. A.)
• On May 7, 2014, Cook received a verbal reprimand regarding daily log sheets. (Id. at Exh. Q.)
• On June 12, 2014, Cook received a memo written by Straughn concerning his excessive absences. (Id. at Exh. M.)
• On July 7, 2014, Cook was served with a notice of intent to interview him regarding complaints for failure to investigate crimes. (DN 54-5, 52-53.)
• On August 19, 2014, Cook was served with charges for attempting to add $2.50 to the accounts of two Bullitt County Jail inmates for cooperation in an investigation. These charges sought Cook's termination. (Id. at 54-55.)

         Plaintiffs assert that retaliation also occurred in forms other than written discipline. Barrow points to the fact that he was initially denied court pay for his time meeting with the U.S. Attorney concerning the investigation and prosecution of Caple.[1] (DN 55, Exh. I, 52.) Barrow also was required to take his two suspension days, pursuant to his January 15, 2014 disciplinary charges, during the same pay period rather than over multiple pay periods to avoid financial hardship. (Id. at 46-49.)

         Barrow and Cook state that the abovementioned treatment was different from the treatment of other Hillview police officers. For example, in September of 2014, Defendant Straughn failed to turn on his video recording device during a traffic stop in violation of the video recording policy and received no disciplinary charges. (Id. at Exh. I, 39-41.) Officers McWhirter, Creason, and Clark were given either no discipline or only reprimands for violations of pursuit and video recording policies. (Id. at Exh. I, 42-43; Id. at 44-45; Id. at Exh. G, 44-45.) Additionally, while Barrow was required to take his two suspension days in the same pay period, other officers were allowed to spread their suspension days over multiple pay periods. (Id. at Exh. I, 52-53.)

         Plaintiffs claim that this retaliatory treatment was promulgated by both Caple and Straughn directly. Caple and Straughn both signed Barrow's May 9, 2013 reprimand for speeding. (Id. at Exh. E.) Caple signed Cook's May 31, 2013 reprimand for mishandling a case. (Id. at Exh. F.) While he was under investigation, Caple continued attending meetings in which the disciplinary charges of Barrow and Cook were discussed, despite alleging that he did not participate in these discussions. (Id. at Exh. G, 28.)

         On February 26, 2014, the Civil Service Board of Hillview upheld Barrow's two day suspension set forth in the Disciplinary Action Form dated January 15, 2014, for violations of Hillview's pursuit and video recording policies. (Id. at Exh. A.) Barrow appealed this decision to the Bullitt Circuit Court in March of 2014, which affirmed the decision of the Hillview Civil Service Board in July of 2015. (DN 54, Exh. G.) Meanwhile, Barrow filed a separate Complaint in Bullitt Circuit Court against Defendants, which was subsequently removed to this court. (DN 1.) Cook filed an Intervening Complaint in October of 2014. (DN 14.) On January 29, 2015, Cook entered into a voluntary settlement agreement with the City of Hillview, in which it was agreed to dismiss all pending disciplinary charges against him with prejudice. (DN 54, Exh. H.)

         Defendants now move this court to enter summary judgment in their favor on all four counts of Barrow's Amended Complaint and Cook's Intervening Complaint.

         II. STANDARD

         A party moving for summary judgment must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally, the Court must draw all factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986).

         III. DISCUSSION

         Plaintiff Barrow and Intervening Plaintiff Cook bring the following claims: Count I under 42 U.S.C. §§ 1985 and 1986 against Defendants Caple and Straughn, individually, for conspiracy to deter Plaintiffs from testifying freely and to penalize Plaintiffs for doing so; Count II, for Tortious Employment Reprisal under Kentucky law against Defendant Hillview, for adverse employment action contrary to public policy; Count III, under 42 U.S.C. § 1983, against Defendant Hillview and individual Defendants, for reprisal for First Amendment speech; and Count IV, under Section 2 of the Kentucky Constitution, against individual Defendants for arbitrary governmental authority. (DN 6; DN 14.)

         Defendants Caple, Straughn, and Hillview move for summary judgment on Plaintiff's Amended Complaint and Intervening Plaintiff's Intervening Complaint. The court will address each count in turn.

         a. ...


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