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Vice v. High Sheriff Rodney Coffee

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

January 3, 2019




         Defendants James Botts, Rodney Coffee, Barry Thacker, and Kenneth Scarberry have filed motions to dismiss the complaint filed by plaintiff Phillip Gene Vice. [R. 28, 29] Defendants contend that Vice’s complaint is barred by the applicable one-year statute of limitations and that he has failed to substantiate his claim that he was of unsound mind from 2011 to 2016 as required to equitably toll the running of the statute of limitations during that period. Vice has filed his response to their motions, to which the defendants have replied. [R. 31, 32] The motion is therefore ripe for decision.


         On May 25, 2011 Menifee County Deputy Thacker arrested Vice along with six other persons. The next day state charges were filed against Vice for trafficking in a controlled substance, cultivating marijuana plants, possessing drug paraphernalia, endangering the welfare of a minor, and cruelty to animals. [R. 28-2] On July 20, 2011 the state charges were dismissed without prejudice in light of a pending federal prosecution. See [R. 28-5] Commonwealth v. Vice, No. 11-F-00030 (Menifee Dist. Ct. 2011). See (last visited on December 16, 2018).[1]

         On December 1, 2011, Vice was indicted in this Court for manufacturing over 1000 marijuana plants, conspiracy and possession with intent to distribute oxycodone, and being a felon in possession of numerous firearms. Facing a sentence of ten years to life imprisonment in light of his prior criminal convictions, Vice agreed to plead guilty to a single count of manufacturing more than 100 marijuana plants in exchange for the dismissal of the other charges. As part of the plea agreement, Vice agreed to forfeit his interest in the five firearms discovered upon his arrest and listed in the indictment. During a March 26, 2012 hearing to consider that plea, Judge Coffman of this Court questioned Vice extensively regarding his personal and medical history, and concurred with his attorney that he was competent to enter a guilty plea that day.

         An initial sentencing hearing was held on July 5, 2012, a date which was already more than one year after his May 2011 arrest and the events about which he complains in this civil action. During that hearing, in response to a sentencing issue raised by the Court, Vice again gave lucid and cogent testimony regarding the presence of firearms in close proximity to the drugs seized. Specifically, he stated:

When I arrived and entered a guilty plea, I was under the impression I was pleading to the marijuana charge, not to gun charges and pill charges. And those guns all belonged to my little boy. They wasn’t used to protect nothing. They was set in the safe and had never been loaded or nothing. They belonged to my son. They wasn’t there for protection. And the handgun they found under the mattress, there was seven people in that trailer whenever I was arrested, and I don’t know whose gun it was. It didn’t belong to me. It wasn’t my son’s. I don’t know how it got there.

         At the final sentencing hearing held on July 26, 2012, Vice was sentenced to 120 months imprisonment. United States v. Vice, No. 5: 11-CR-152-DCR-CJS (E.D. Ky. 2011) [R. 1, 17, 22, 28, 37, 47, 66 therein]. At no time during these criminal proceedings did Vice or his counsel ever suggest that he was not competent to enter his plea.

         In addition, in the months and years following his federal sentencing, Vice sent numerous letters and motions to the Court in his criminal case. In a December 2012 letter Vice offered to provide information regarding oxycodone trafficking by doctors in Menifee County in an effort to get a reduced sentence. In a March 2013 motion Vice sought the appointment of counsel to assist him in filing a motion under 28 U.S.C. § 2255. In that letter he also complained of the actions of the Menifee County Sheriff’s Department and “dog pound employees,” and alleged that Deputy Botts had procured false testimony against him. Id. at R. 41, 43.

         In May 2013, Vice also filed a motion requesting the return of some of the property that was seized from his home in May 2011 by Botts and Scarberry, including nine allegedly “vintage coins” and one of the firearms. The Court denied that motion shortly thereafter, noting that Vice had forfeited any interest in the gun as part of his plea agreement, and the “vintage coins” were, in fact, merely spare change that Vice had given to a confidential informant during a controlled buy. Id. at R. 48-51.

         In June 2013, Vice filed a pro se motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. That § 2255 motion asserted four distinct claims, contained extensive factual and legal argument, and included numerous exhibits. Over the next ten months Vice also sought legal relief in numerous forms while acting pro se: he filed a motion to proceed in forma pauperis, twice requested a transcript, amended his petition to include additional (and fully briefed) grounds for relief, moved to strike the government’s response as untimely, requested an extension of time to respond, filed a motion for judgment in his favor (containing 47 pages of argument with extensive citation to relevant legal authority and 43 pages of exhibits), and testified at an evidentiary hearing in December 2013. In March 2014 Vice filed his own pro se objections (in addition to those filed by his newly-appointed attorney) to a magistrate’s recommendation that his § 2255 motion be denied. He also filed a pro se notice of appeal in April 2014, and a petition for a writ of certiorari in December 2014 from the Sixth Circuit’s denial of a certificate of appealability. Id. at R. 52-55, 58-59, 62, 65, 69, 74, 76-80, 82, 107-108, 111, 119. Vice also filed a motion to amend and expand his prior § 2255 motion in April 2015; a motion to appoint counsel in May 2016; and motions to reduce his sentence pursuant to 18 U.S.C. § 3582(c) in October 2015 and again in December 2016. Id. at R. 125-126, 131, 134, 136.


         In May 2016 Vice filed his complaint in this action. Vice alleged that during his arrest in May 2011, he was handcuffed and placed in a chair on a nearby embankment. Vice stated that the chair broke, causing him to fall over the embankment and hit the ground, causing neck and back pain in the process. Vice was taken to the emergency room, examined, and then apparently released the same day. [R. 1 at Page ID# 5] Vice alleges that the state drug trafficking charges were fabricated or “trumped up” by Deputy Botts and U.S. Forestry Agent Kenneth Scarberry. Id. at 2, 5. As noted above, the state charges were dismissed without prejudice in July 2011 in anticipation of federal charges. Vice also alleged that while he was in jail, the defendants searched his home but failed to secure it, resulting in the theft of $700,000 worth of unidentified “collectibles,” several dogs and antique guns. Vice states that some of these items were taken by the police; it is unclear if his reference to “vandals” suggests that his home was also burglarized or whether the items were merely confiscated by police. [R. 1 at Page ID# 2-3, 5-6] Vice claims that the defendants’ actions violated his constitutional rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and constitute the torts of false arrest, false imprisonment, assault and battery, malicious prosecution, abuse of process, negligence, and gross negligence under Kentucky law. Id. at 3, 7-8.

         But the statute of limitations for constitutional claims arising in Kentucky and asserted under 42 U.S.C. § 1983 or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) is just one year. See Ky. Rev. Stat. § 413.140(1)(a); Hornback v. Lexington-Fayette Urban Co. Gov’t., 543 F. App’x 499, 501 (6th Cir. 2013); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003). Vice’s federal claims related to his arrest and back injury accrued in May 2011. Estate of Abdullah ex rel. Carswell v. Arena, 601 F. App’x 389, 393-94 (6th Cir. 2015) (“Once the plaintiff knows he has been hurt and who has inflicted the injury, the claim accrues.”). Because Vice did not file suit until five years later, in June 2016 the Court concluded that his ...

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