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Carter v. Newby

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

July 13, 2018

JASON NEWBY, in his individual capacity DEFENDANT


         This matter comes before the Court on Defendant Jason Newby's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), [R. 8]. Plaintiff Edward Tyrone Carter responded, [R. 11], and Newby replied, [R. 12]. Fully briefed, this matter is ripe for adjudication. For the following reasons, Newby's Motion to Dismiss, [R. 8], is GRANTED IN PART AND DENIED IN PART.


         The following Background section is taken from Carter's Complaint, the veracity of which is assumed for purposes of a Rule 12(b)(6) motion, as explained below. This case arises out of a criminal investigation and, later, a criminal prosecution in Christian County, Kentucky, which spanned from the 1990s into the 2010s. In September of 1994, Carter was a police officer in the town of Oak Grove, which is located in Christian County, Kentucky. [R. 1 at 3 (Carter Complaint).] At that time, he was also employed part-time as the custodian of the New Life Massage Parlor (“the Parlor”). [Id.] According to Carter, the Parlor was actually a front for a prostitution business. [Id.] Carter alleges that the Parlor was run with certain policies and procedures, including a sign-in sheet. [Id. at 4.]

         According to Carter, at approximately 2:00 A.M. on September 20, 1994, Carter left the Parlor, followed by the departure of three of the five employees one hour later. [Id.] Two employees remained alone in the building. [Id.] At approximately 3:45 A.M., the three Parlor employees returned to find the two employees who stayed behind shot and stabbed. [Id.] Both victims perished from their injuries. [Id.] After finding the two victims, the employees called the police. [Id.] Carter was called to the scene with his canine unit. [Id.] Carter alleges that “as the lead investigators had allowed approximately 30 individuals to enter the crime scene prior to [Carter]'s arrival, [Carter] never received any orders to utilize his canine unit in the investigation.” [Id.] A few months after the homicide occurred, the Christian County Sheriff's Department took over the investigation with assistance from the Federal Bureau of Investigation. [Id. at 5.] Carter states that no charges were filed in relation to this investigation. [Id.]

         In 2006, the case, still unsolved, was transferred to the Kentucky State Police. [Id.] The case was assigned to Newby. [Id.] In November 2013, Newby secured an indictment in Christian County against Carter and two other individuals after testifying before a grand jury there. [Id.] Carter's Complaint alleges that Newby made “materially false statements and/or omissions . . . with reckless disregard for the truth” while testifying before the grand jury. [Id.] These statements, according to Carter, include but are not limited to the following:

• Newby testified that he interviewed Tammy Papler [an owner of the massage parlor] who said it was common knowledge that Ed Carter was wanting to take over the massage parlor business. That statement is false. In addition, there was no written statement from Newby regarding an interview of Tammy Papler.
• Newby testified, ‘My opinion is he went there, too. He saw the girls leave, contacted Mr. Black, said there's two left in there.' This statement is false and/or made with a reckless disregard for the truth. There was no evidence of Carter seeing girls leave the massage parlor, no evidence that Carter contacted Mr. Black, and no evidence as to what statement Carter made to Mr. Black on the fabricated phone call.
• Newby testified that Carter's then wife, Carol, made statements that when Carter got home that night he was washing clothes which she thought was very odd. Carol's interview with the [FBI] makes no mention of Carter washing clothes that night or that Carol thought that washing clothes was odd. Newby never interviewed Carol.
• Newby testified that Carter and his co-defendant Duncan had been roommates less than a year before the murders. This statement was false. Carter and Duncan had not lived together, at the latest . . . over two years prior to the homicides . . ..
• Newby testified about a completely unrelated disappearance that had occurred in Oak Grove in 1992, and testified that Carter was the canine officer assigned to that case. That statement is false because Carter did not even become a canine officer until . . . over two years later.

[Id. at 5-6.] Carter further alleges:

In his profoundly shoddy investigation of the deaths, Defendant Newby failed to interview or collect any evidence from several customers of the massage parlor who were listed on the parlor's sign-in sheet, failed to pursue multiple viable alternate suspects of the murder, and failed to perform or have performed relevant DNA analysis of genetic material found in the mouth, anus, vagina, and fingernails of the deceased victims, despite the fact that the DNA collected did not match the Plaintiff or either of his criminal co-defendants.

[Id. at 6.] Carter was “incarcerated from November 24, 2013, through September 14, 2016, when he was acquitted of all charges by jury trial.” [Id. at 6.] Carter brought claims against Newby (1) for malicious prosecution under 42 U.S.C. § 1983 and under Kentucky common law, and (2) for violations of procedural and substantive due process under the Fourteenth Amendment to the United States Constitution. [Id. at 7-8.] Newby filed the instant Motion pursuant to Rule 12(b)(6) to dismiss all of Carter's claims against him. [R. 8.]


         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In order to survive a motion to dismiss under Rule 12(b)(6), a party must “plead enough ‘factual matter' to raise a ‘plausible' inference of wrongdoing.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the Court must presume all of the factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc., 552 F.3d at 434 (citing Great Lakes Steel, 716 F.2d at 1105). “The court need not, however, accept unwarranted factual inferences.” Id. (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Should the well-pleaded facts support no “more than the mere possibility of misconduct, ” then dismissal is warranted. Iqbal, 556 U.S at 679. The Court may grant a motion to dismiss “only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief.” Garceau v. City of Flint, 572 Fed.Appx. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677- 79).


         Newby moves the Court to dismiss both counts of Carter's Complaint. This includes a claim of malicious prosecution under both federal and state law, [R. 1 at 7], ...

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