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Thieneman v. Smith

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

March 28, 2018

APRIL SMITH, et al., Defendants.



         Between 2013 and 2016, local authorities in Louisville, Kentucky, prosecuted Plaintiff Christopher Thieneman for assault, wanton endangerment, and violation of a domestic-violence order. The charges arose from an altercation on September 16, 2013, involving Thieneman and Defendant April Smith, resulting in Thieneman's arrest. Thieneman now asserts claims of malicious prosecution, wrongful arrest, false imprisonment, violations of procedural and substantive due process, and failure to intervene against Defendants Smith, Ingrid Von Nostritz Geiser, Amy Phelps, Jessica Haworth, Sarah Banta, and Louisville-Jefferson County Metro Government, as well as “unknown defendant officers and civilian employees” and “unknown defendant employees.” (Docket No. 1-1) In addition, Thieneman asserts claims for “unconstitutional policies/customs/practices, failure to train, and/or failure to act” and a claim of “municipal liability” against Louisville Metro, unknown officers, and unknown defendant employees. (Id.)

         Louisville Metro, Geiser, and Smith have filed motions to dismiss for failure to state a claim (D.N. 4; D.N 5) and a motion to strike Thieneman's response to their motions to dismiss. (D.N. 7; D.N. 8) For the reasons discussed below, the motion to strike will be granted; Louisville Metro and Geiser's motion to dismiss will be granted; and Smith's motion to dismiss will be granted in part and denied in part.

         I. BACKGROUND

         The facts set out below are alleged in the complaint. For purposes of these motions to dismiss, the Court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). While the facts may be disputed, the Court “cannot resolve disputed facts when ruling on a motion to dismiss.” Genton v. Keystone Sporting Arms, Inc., No. Civ.A. 05-274-JBC, 2005 WL 2456252, at *1 (E.D. Ky. Oct. 5, 2005).

         Thieneman and Smith began a business relationship that developed into a personal relationship for several years. (D.N. 1-1, PageID # 9) Thieneman ultimately wished to end his personal relationship with Smith, but Smith did not wish to end the relationship. (Id., PageID # 10) On September 16, 2013, Smith and Thieneman met in a restaurant and spent several hours talking about their relationship. (Id.) When Thieneman needed to leave to attend to business matters, Smith offered to drive him to his appointments. (Id.) Thieneman accepted this invitation. (Id.) While riding in Smith's car, the couple began to argue. (Id.) Thieneman told Smith that he was finished with their relationship, left Smith's car while it was stopped at a traffic light, and walked away. (Id., PageID # 11) Smith responded by also exiting her car, leaving the keys in the ignition and the engine running, and chasing Thieneman on foot. (Id.) Thieneman walked to a nearby commercial property that he owned and tried to enter a locked room, but Smith caught up with him and struggled with him over a cell phone. (Id.) Haworth and Banta, two Louisville Metro police officers, arrested Thieneman after Smith reported that he had assaulted her. (Id.) Thieneman was charged with assault in the fourth degree and wanton endangerment in the second degree. (Id., PageID # 12)

         On the evening of Thieneman's arrest, Smith met with Phelps, another police officer, to make an official statement, which was tape-recorded. (Id.) After multiple requests by Thieneman and his counsel for a copy of this taped interview, they were informed that the recording had “started to erase itself” while it was in Phelps's possession. (Id.) Phelps admitted that she did not make copies of the tape or download its contents to her computer as required by the police department's standard procedure. (Id.) Since the police department's information-technology technicians were unable to retrieve the contents of the original recording, Phelps decided to re-interview Smith. (Id.)

         After Thieneman's arrest, Phelps instructed Smith to file an emergency protection order against Thieneman in Oldham County, Kentucky. (Id., PageID # 16) A domestic-violence order was issued, directing Thieneman to stay away from Smith and Smith's place of business, a suite in a commercial building owned by Thieneman that was leased to Smith as owner of a gym. (Id.) Because Smith ran her business out of Thieneman's office building, she had her mail delivered to Thieneman's office address. (Id., PageID # 17) Smith's mail began to pile up, and Thieneman's assistant collected (but never opened) the mail. (Id.) Thieneman asked his assistant to put all of Smith's mail in an envelope and mail it to Smith's residence. (Id.) Upon receiving the envelope, Smith notified Phelps, and Thieneman was charged with violating the “no contact” provision of the domestic-violence order. (Id.) The judge ultimately dismissed the charge, telling Smith that Thieneman was “trying to help [her] not hurt [her].” (Id.)

         A month or two later, Smith and Phelps accused Thieneman of sending two “compromising pictures” of Smith to her adult daughters. (Id., PageID # 18) Smith had no proof, however, of the pictures having been sent to anyone, or by anyone, and the judge summarily dismissed the charge. (Id.)

         Finally, in May 2014, Smith and Phelps accused Thieneman of instructing employees to remove the front doors of Smith's gym and to move old equipment into Smith's gym space. (Id.) When police officers arrived to investigate, they found broken glass and equipment scattered across the commercial building's front parking lot. (Id.) Smith's husband admitted to causing this damage. (Id.) After deciding that this was a civil matter, the police declined to file a report and left without taking any further action. (Id., PageID # 19) The next day, Thieneman sent one of his employees to the police station to obtain a police report. (Id.) Phelps invited the employee into an interrogation room, where the employee asked to leave after he discovered that Phelps expected him to blame Thieneman for the incident. (Id.) Thieneman and his counsel have requested records of this interrogation, but the police department insists that no such records exist. (Id.)

         One week before Thieneman's trial was scheduled to begin on the assault and wanton-endangerment charges, Phelps falsified a police report to obtain a warrant for Thieneman's arrest. (Id.) As a result, Thieneman was arrested and charged with a felony for violating the domestic-violence order. (Id., PageID # 20) Geiser, the prosecutor assigned to the case, used the flawed felony charge to attempt to coerce Thieneman to plead guilty to the assault charge in exchange for dropping the felony charge. (Id.) Thieneman's counsel instead elected to go to trial on both charges. (Id.) Thieneman and his counsel requested evidence of probable cause for the felony warrant, but none was produced. (Id.) Upon Geiser's request, the judge dismissed the felony charge. (Id.)

         Thieneman went to trial on the assault and wanton-endangerment charges in May 2016. (Id., PageID # 13) At trial, Smith testified that Thieneman struck, pushed, or squeezed her, grabbed her neck, placed her in a headlock, and choked her during their September 16, 2013 encounter. (Id., PageID # 13-14) Geiser later admitted that Smith had lied during the trial. (Id., PageID # 13) In addition, Phelps restated Smith's account of the events that day, basing her testimony upon her recollection of the lost recorded interview. (Id., PageID # 14) Phelps testified that the recorded statements and photographs of Smith were consistent with Smith's condition on September 16. (Id., PageID # 15) In contrast, Thieneman testified that Smith caught up with him and began to struggle with him. (Id.) He tried to block Smith from entering a room, but Smith forced her way in and tried to grab his cell phone. (Id.) Thieneman denied that he struck, squeezed, choked, or otherwise injured Smith and denied placing her in a chokehold or headlock. (Id.) During closing arguments, Geiser made false statements to the jury, accused a witness of crimes, and falsely accused Thieneman of “planting” a defense witness and suborning perjury. (Id., PageID # 13) Despite her accusation that Thieneman committed a felony by tampering with a witness, Geiser never charged him with such a crime. (Id.)

         The jury found Thieneman not guilty of assault and guilty of wanton endangerment. (Id., PageID # 20) Thereafter, the Jefferson District Judge sentenced Thieneman on the wanton-endangerment charge and dismissed the charges of violation of a domestic-violence order, violation of conditions of release, and retaliation against a participant in a legal process. (Id., PageID # 21) This conviction is currently on appeal. (Id., PageID # 20)

         II. ANALYSIS

         A. Motions to Strike

         Geiser and Louisville Metro move to strike Thieneman's response to their motion to dismiss on the grounds that Thieneman (1) filed the response more than six months after it was due and (2) failed to request an extension or otherwise seek leave of Court to file an untimely response. (D.N. 7) Smith seeks to join Geiser and Louisville Metro's motion and further moves to strike Thieneman's response. (D.N. 8)

         Geiser, Louisville Metro, and Smith filed their motions to dismiss on May 17, 2017. (D.N. 4; D.N. 5) Under Local Rule 7.1(c), “a party opposing a motion must file a response within 21 days of service of the motion.” LR 7.1(c). Thieneman did not file his response to the motions to dismiss until December 18, 2017 (D.N. 6), more than six months past the twenty-one-day deadline. Inexplicably, Thieneman did not ask the Court for an extension, seek leave of Court to file his response out of time, or even offer an explanation for his late filing. No. good cause for this significant delay has been suggested, nor has the Court been able to ascertain any such cause. The Court will therefore grant the motion to strike Thieneman's response and will not consider the response in ruling on the defendants' motions to dismiss. See Morgan v. HSBC Mortg. Servs., Inc., 930 F.Supp.2d 833, 835 (E.D. Ky. 2013) (granting motion to strike plaintiff's response to motion to dismiss where response was filed over six months after the motion was filed without a request for an extension or an explanation for its tardiness).

         B. Motions to Dismiss

         Louisville Metro and Geiser move the Court to dismiss all claims against them for failure to state a claim. (D.N. 4) Smith again seeks to join Louisville Metro and Geiser's motion and further moves the Court to dismiss all claims against her. (D.N. 5)

         To survive a motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Factual allegations are essential; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” and the Court need not accept such statements as true. Id. A complaint whose “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” does not satisfy the pleading requirements of Rule 8 and will not withstand a motion to dismiss. Id. at 679.

         1. Claims Against Louisville Metro

         Thieneman asserts claims against Louisville Metro under both state and federal law. The Court will address the state-law claims first, followed by the federal section 1983 claims.

         a. State-Law Claims (Counts I and II)

         Thieneman asserts claims against Louisville Metro for malicious prosecution, wrongful arrest, and false imprisonment under Kentucky common law. (D.N. 1-1, PageID # 21-24) “Under Kentucky law, it is well established that claims against counties are barred by sovereign immunity.” Reyes v. Salsman, No. 3:15-CV-00587-GNS-DW, 2016 WL 247582, at *2 (W.D. Ky. Jan. 20, 2016) (citing Franklin Cty. v. Malone, 957 S.W.2d 195, 203 (1997)). While Louisville Metro is not a county, it is a consolidated local government. Id. And the Kentucky General Assembly has granted to consolidated local governments “the same sovereign immunity granted [to] counties.” Ky. Rev. Stat. § 67C.101(2)(e); see also Reyes, 2016 WL 247582, at *2. All state-law claims against Louisville Metro must therefore be dismissed on the basis of sovereign immunity.

         b. Section 1983 Claims

         The Court must address two separate issues when a § 1983 claim is asserted against a municipality: “(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.” Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).

         Thieneman's complaint alleges unconstitutional policies/customs/practices (Count V), failure to train (Count V), failure to act (Count V), and municipal liability (Count VI) by Louisville Metro. (Id., PageID # 27, 30) The Court notes that these “claims” are actually ways of showing that Louisville Metro is responsible for the allegedly unconstitutional conduct of its officers. See Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (explaining that a plaintiff may look to official policies, inadequate training, or custom in order to prove a municipality's policy or custom as required to support a ยง 1983 suit against a municipality). The unconstitutional ...

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