United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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.)
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.)
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.)
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.)
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,  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.
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.
Standard of Review
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).
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)).
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 ...