United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
K. CALDWELL, JUDGE
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
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
https://tinyurl.com/y7bz9js5 (last visited on
December 16, 2018).
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.
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.
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.
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.
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.
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.
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,
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 ...