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Dahl v. Kilgore

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

December 13, 2018




         I. Introduction

         This lawsuit, originally filed by Plaintiff Vernon H. Dahl, III in the Jefferson County Circuit Court, claims that Defendants Jermaine Kilgore, Nicholas Lietz, and Cher Fillmore conspired to violate Dahl's constitutional rights and commit various torts against him. Lietz removed the case to this Court. Once here, Kilgore moved to dismiss the claims against him, arguing that (A) he is immune from suit based on sovereign, governmental, and qualified immunity, (B) Dahl fails to state a claim on which relief may be granted, and (C) Dahl did not properly serve process in the state court. Dahl has not responded. Therefore, this matter is ripe for review. For the following reasons, the Court will grant the motion to dismiss in part and deny the motion to dismiss in part.[1]

         II. Factual Background[2]

         Dahl and Fillmore were, at some point, engaged in a romantic relationship. DN 1-2 at 2. That relationship had gone through some rough spots-including a brief separation around January 2017. Id. at 4. On February 13, 2017, around 12:30 in the morning, Dahl made his way to Fillmore's apartment complex. Id. at 2. After he arrived and parked his car, he sat for a few minutes playing games on his phone before exiting the car and walking around to the back of the building. Id. at 2-3. His plan was apparently to see whether the lights were on in Fillmore's apartment to determine if she was awake. Id. at 3. However, no light through yonder window broke and Dahl, abandoning any potential soliloquy, began to return to his car. Id.

         In the parking lot, Dahl was approached by Kilgore, a Kentucky State Trooper dressed in plain clothes but wearing an officer's badge. Id. at 3. Dahl thought it might be the officer that he knew lived in the complex. Id. Without identifying himself, Kilgore asked Dahl what he was doing. Id. He explained that he was there visiting Fillmore and, upon request, provided his driver's license. Id. Kilgore then asked if Dahl had any weapons on him. Id. He replied that he did not. Id. Regardless, Kilgore searched Dahl without consent. Id. No. weapons or contraband were discovered. Id.

         Shortly thereafter, a marked Louisville Metro Police Department (LMPD) cruiser arrived driven by Defendant Nicholas Lietz, an officer with the LMPD. Id. at 4.[3] Kilgore gave Dahl's license to Lietz, who returned to his cruiser to perform a records check. Id. Lietz, finding no warrants or other adverse information, returned the driver's license to Dahl. Id. Kilgore then continued his questioning about Dahl's presence and relationship with Fillmore. Id. Specifically, he asked whether Dahl and Fillmore “had been having any ‘issues, '” if Dahl came to Fillmore's apartment to see if she was “entertaining another person, ” and how long Dahl had been on the property. Id.[4] Dahl replied that he had recently reconnected with Fillmore, that he had not come to spy on her, and that he had been there between 15 and 20 minutes. Id. Kilgore then told Dahl he had a witness who said Dahl had been on the premises for more than an hour. Id.

         As the questioning continued, Kilgore became increasingly aggressive and agitated. Id. at 5. Dahl told Kilgore he thought it best that he call his attorney. Id. As he removed his cellphone from his pocket, Kilgore attempted to grab the cell phone before rushing toward Dahl. Id. Kilgore shoved Dahl backwards-jamming his thumb as a result-and took his cell phone. Id. Kilgore then searched through Dahl's cell phone, found Fillmore's phone number, and called her. Id. When she did not answer, Kilgore stormed up to her apartment and began pounding on the door. Id. Fillmore still did not respond. Id. Kilgore indicated he would try to reach Fillmore the following day and returned Dahl's cell phone. Id.

         After the incident in the parking lot, Kilgore told Fillmore that Dahl had been stalking her and trying to look into her apartment window. Id. Kilgore then filed an Incident Report with the Kentucky State Police which Dahl claims “maliciously and intentionally misrepresented the events” that occurred that night. Id. Kilgore and/or Fillmore then told the management of Fillmore's complex that Dahl was a stalker. Id. This resulted in a certified letter from the management of the complex ordering Dahl to refrain from entering the premises. Id. at 7. Fillmore then went to the Jefferson County District Court where she received an Emergency Protective Order and, eventually, a Domestic Violence Order against Dahl. Id.

         III. Discussion

         Kilgore argues that (A) he is immune from suit based on sovereign, governmental, and qualified immunity, (B) Dahl fails to state a claim on which relief may be granted, and (C) Dahl did not properly serve process in the state court. As a logical matter, the Court first considers the various immunity doctrines. That is primarily because these doctrines provide more than immunity from liability-they provide immunity from suit entirely. Ultimately, however, due to the procedural posture of this case, the Court finds that Rule 12(b)(6) is a more appropriate vehicle to resolve the issues at this juncture. Applying that framework, the Court finds that the complaint states a claim on which relief can be granted on all grounds except some aspects of the Fourth Amendment claim (Count II). Finally, the Court finds that Dahl attempted to serve Kilgore in good faith.

         A. The Immunity Doctrines

         Different immunity doctrines apply to official capacity and individual capacity suits. Here, Dahl has not affirmatively pled whether he is suing Kilgore in his official or individual capacity. Therefore, the Court must first determine the capacity in which Kilgore was sued. If he is sued in his official capacity, he may claim the sovereign and governmental immunity of the Commonwealth of Kentucky. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (states and employees in their official capacities are not “persons” subject to § 1983); Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001) (immunity for officials undertaking governmental functions). On the other hand, only qualified immunity is available to him in his individual capacity.

         i. Capacity

          Generally, plaintiffs seeking damages under § 1983 are required to set forth clearly in their pleadings that they are suing state officers as individuals, rather than officials. Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989). This rests on two rationales: that defendants receive notice of potential individual liability and to ensure that plaintiffs are not suing states in violation of the Eleventh Amendment. Id. at 593-94. However, this is not a per se rule-instead, the Sixth Circuit has held that courts should apply a “course of proceedings” test to determine whether § 1983 defendants have received sufficient notice of the plaintiff's intent to seek personal liability. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc). This can be made clear in the complaint or in later pleadings. Id. In applying the course of proceedings test, the Court may consider “the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint, particularly claims of qualified immunity, to determine whether the defendant had actual knowledge of the potential for individual liability.” Id. at 772, n 1.

         First, as to the nature of the claims, Kilgore is being sued on theories of defamation, false arrest, and assault/battery. DN 1-2 at 8-9. Such intentional tort claims tend to indicate that the claim was based on individual capacity. See e.g. Rose v. Reed, 2:12-CV-977, 2014 WL 3547375 at *4 (S.D. Ohio July 17, 2014) (individual capacity suit when the claim was based on alleged excessive use of force). Second, as to damages, Dahl seeks “actual, consequential, special, and punitive damages.” DN 1-2 at 10. Such claims for damages tend to indicate an individual capacity suit, as monetary damages are generally unavailable from the state or official capacity defendants. Shepherd v. Wellman, 313 F.3d 963, 969 (6th Cir. 2002). Finally, as to the nature of defenses, Kilgore is quick to note that the complaint is unclear as to the capacity in which he is being sued and makes arguments concerning both his official capacity (e.g. sovereign immunity) and individual capacity (e.g. qualified immunity). “The assertion of a qualified-immunity defense (even a contingent qualified-immunity defense) indicates that the defendants were aware they could be held personally liable.” Lindsay v. Bogle, 92 Fed.Appx. 165, 169 (6th Cir. 2004). Further, at the July 30, 2018 hearing in the state court, counsel for Kilgore represented that they were appearing on behalf of Kilgore in his official and individual capacities. DN 10 at 01:52- 02:09. Taken together, it is clear that Kilgore was sued in his individual capacity and must rely on qualified immunity, rather than sovereign or governmental immunities.

         ii. Qualified Immunity

          “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “If no reasonably competent officer would have taken the same action, then qualified immunity should be denied; however, ‘if officers of reasonable competence could disagree on [the legality of the action], immunity should be ...

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