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Murphy v. Bruner

United States District Court, E.D. Kentucky, Central Division, Lexington

May 25, 2018

DAVID MURPHY, Plaintiff,
v.
ARMSTER BRUNER, JR., individually, MATT SWABEY, individually and in his official capacity as Deputy Sheriff of Mercer County, Kentucky, and ERNIE KELTY, JR., individually and in his official capacity as Sheriff of Mercer County, Kentucky Defendants.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on a Motion to Dismiss (DE 9) filed by Defendants Matt Swabey, and Ernie Kelty, Jr., individually and in their official capacity as Deputy Sheriff and Sheriff of Mercer County, Kentucky, respectively, and a Motion for Judgment on the Pleadings (DE 11) filed by Defendant Armster Bruner Jr. For the reasons set forth below, these motions are granted. Plaintiff's claims for malicious prosecution and abuse of criminal process and claims against Defendants Swabey and Kelty in their official capacity are dismissed.

         I. Background

         The following facts are taken from Plaintiff's Complaint and accepted as true for the purpose of deciding Defendants' Motion to Dismiss and Motion for Judgment on the Pleadings. Armster Bruner and David Murphy entered into an oral contract in April 2016 in which Murphy agreed to provide repairs to Bruner's 1969 Pontiac GTO Judge and 2005 American Hauler trailer. Murphy was also to use the trailer to haul the Pontiac GTO Judge to his various workshops. (Compl. ¶ 11, DE 1.) Bruner, however, failed to pay the $14, 486.64 he owed for these repairs. (Compl. ¶ 12.) Murphy proceeded to file statement of Mechanic's lien/Garagemen's lien in the office of the Lincoln County Court Clerk in the amount of $11, 000 on the Pontiac GTO Judge and $7, 000 on the American Hauler trailer. (Compl. ¶¶ 13-14.)

         Shortly thereafter, Bruner reported to the Jessamine County Sheriff, Kevin Corman, that Murphy was wrongfully withholding his Pontiac GTO Judge and American Hauler trailer. (Compl. ¶ 15.) Sheriff Corman, in the presence of Bruner, phoned Murphy and demanded that he bring the vehicles to Jessamine County or be arrested. Murphy informed Sheriff Corman that a Mechanic's/Garagemen's lien were being lodged against the vehicles. (Compl. ¶ 16.) Sheriff Corman proceeded to contact Ernie Kelty, Jr., Mercy County Sheriff, and requested that Mercer County open an investigation into Murphy and the vehicles because they were physically located in Mercer County. (Compl. ¶ 17.) Sheriff Kelty assigned Deputy Sheriff Matt Swabey to the investigation. (Compl. ¶ 18.)

         Deputy Swabey received information that the vehicles were located at Murphy's residence on Woodstock Drive in Danville, Kentucky. Sheriff Kelty and Deputy Swabey traveled to the residence, and observed a black trailer-Bruner's American Hauler-behind a locked gate on the property. (Compl. 19.) Without a warrant or permission from Murphy, Sheriff Kelty and Deputy Swabey climbed over the fence and seized the trailer. (Compl. ¶¶ 20-21.) Sheriff Kelty and Deputy Swabey forced open the trailer, inventoried its content, and moved it to the Mercer County Sheriff's office parking lot. (Compl. ¶ 23.) The trailer included contents which did not belong to Bruner, including a 2011 Camaro, a pressure washer, and tools. (Compl. ¶ 24.) That same day, Deputy Swabey went to Murphy's shop on South Danville Bypass with Deputy Sheriffs from Boyle County. The Deputies broke into the shop using a sledge hammer, seized firearms belonging to Murphy and damaged his property. (Compl. ¶ 25.) The Deputies left the premises unlocked, resulting in items from the shop being stolen by unknown third parties. (Compl. ¶ 27.)

         The next day, Deputy Swabey spoke with Heather Sanders and threatened to bring criminal charges against her if she did not inform him of the location of the Pontiac GTO. Sanders informed him the vehicle was located at an address on Hugeuly Lane, and Deputy Swabey proceeded to seize the vehicle. (Compl. ¶ 29.)

         Murphy asserts five claims in this action. First, he asserts a claim for malicious prosecution and abuse of criminal process by Bruner based on false statements and omissions which created the pretext for the criminal investigation against him. (Count I, Compl. ¶¶ 30- 31.) Second, he claims that Sheriff Kelty and Deputy Swabey engaged in malicious prosecution and abuse of criminal process, in violation of 42 U.S.C. § 1983, [1] for unlawfully entering his residence and shop and seizing his property. (Count II, Compl. ¶¶ 32-35.) Count III and Count IV allege that the search of Murphy's property by Sheriff Kelty and Deputy Swabey were unlawful under federal and state law, respectively. (Compl. ¶¶ 36-43.) Finally, Count V alleges that Sheriff Kelty and Deputy Swabey engaged in extreme and outrageous conduct that caused Murphy severe emotional distress. (Compl. ¶¶ 44-45.)

         Sheriff Kelty and Deputy Swabey (the “Mercer County Defendants”) have moved to dismiss Murphy's claims made against them in their official capacity and Count II for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (DE 9.) Bruner has moved for a judgment on the pleadings for failure to state a claim pursuant to Fed.R.Civ.P. 12(c). (DE 11.) Plaintiff filed a response to both motions (DE 13, 14) and Sheriff Kelty and Deputy Swabey filed a reply (DE 15). This matter is now ripe for review.

         II. Standard of Review

         A party may move for judgment on the pleadings after the pleadings have closed. Fed.R.Civ.P. 12(c). The standard of review for a Rule 12(c) motion for judgment on the pleadings and a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted are the same. See Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). For the purposes of either motion, the well-pleaded allegations of the complaint must be taken as true and all reasonable inferences drawn in the plaintiff's favor. Id. (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007); see also Gavitt v. Born 835 F.3d 623, 640 (6th Cir. 2016).

         To survive a Rule 12(c) or Rule 12(b)(6) motion, “[t]he factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual matter' to render the legal claim plausible, i.e., more than merely possible.” Fritz, 592 F.3d at 722 (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “A legal conclusion couched as a factual allegation, ” however, “need not be accepted as true on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient.” Id. (quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)).

         III. Analysis

         Before turning to the merits of Defendants' motions, the Court will first address the Plaintiff's “Supplement to Response, ” which addressed the Mercer County Defendants motion to dismiss (DE 16). The Supplement to Response contains additional factual allegations regarding a meeting between Murphy and a Deputy Mercer County Sheriff that was not discussed in the Complaint. The Mercer County Defendants have filed an objection seeking to have the supplemental response stricken from the record as an impermissible sur-reply not authorized by L.R. 7.1 and because it invokes facts not alleged in the complaint. See Ludwig v. Ky. Dep't of Military Affairs, No. 13-174-GFVT, 2015 WL 351863, at *3 (E.D. Ky. Jan. 23, 2015) (“The facts in the Complaint-and not the extraneous ones in [plaintiff's] Response brief-are the focus of ...


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