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Locke v. Brown

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

September 25, 2019

JULIE LOCKE Plaintiff
v.
HONORABLE DENISE BROWN, IN HER OFFICIAL CAPACITY Defendant

          MEMORANDUM OPINION AND ORDER

          Rebecca Grady Jennings, United States District Judge.

         This matter is before the Court on Defendant Judge Denise Brown’s Motions to Dismiss [DE 7; DE 12]. Briefing is complete, and the Motions are ripe. For the reasons below, the Motions are GRANTED.

         I. BACKGROUND [1]

         Defendant Judge Denise Brown, a judge in Jefferson County Family Court, presided over Plaintiff and Mr. Sallee’s divorce and custody proceedings. [DE 1 at 2]. The proceedings, which ultimately escalated to multiple contempt hearings, were contentious.

         In July 2017, Mr. Sallee moved Judge Brown to hold Plaintiff in contempt for violating the parenting schedule. [DE 1-1 at 25]. After conducting hearings on the motion in August and November 2017, Judge Brown issued a 16-page written ruling on December 20, 2017 holding Plaintiff in contempt. Id. at 23, 36. Plaintiff filed a timely Notice of Appeal of the December 20, 2017 and January 25, 2018[2] orders. [DE 14-2 at 336].

         After further allegations that Plaintiff was non-compliant with the parenting schedule, Judge Brown conducted a hearing and sentenced Plaintiff to “thirty (30) days incarceration . . . conditionally discharged for two (2) years, so long as [Plaintiff] complies with all court ordered parenting time.” [DE 14-1 at 330]. Judge Brown entered a written ruling on February 6, 2018. Id. Plaintiff filed a timely Notice of Appeal of Judge Brown’s February 6, 2018 order. [DE 14-3 at 342].

         On February 26, 2018, Judge Brown conducted a hearing on Mr. Sallee’s motion to revoke Plaintiff’s suspended sentence. [DE 1 at 3]. At the hearing, Plaintiff sought to call Dr. Melissa Curry to testify on her behalf “about the danger unsupervised visitation between [their daughter] and her father posed and the psychological effect of such visitation would have on [their daughter].” Id. at 10. Judge Brown did not allow Dr. Curry to testify during the hearing but allowed her to make an avowal afterwards. Id. After the hearing, Judge Brown revoked two days of Plaintiff’s sentence. Id. at 3. Plaintiff alleges that “Defendant's actions in revoking [her] suspended sentence resulted in [her] having a misdemeanor criminal conviction for the supposed contempt of court . . . [Her] contempt, if any, was civil in nature, not criminal.” [DE 8 at 209].

         Plaintiff then moved to expunge the criminal contempt charge from her criminal record. Id. Judge Delahanty, a judge in Jefferson County District Court, granted Plaintiff’s expungement motion. Id. at 210. Plaintiff alleges that, after Judge Delahanty expunged the charge, “[Judge Brown] initiated ex parte communication with Judge Delahanty telling him that he did not have jurisdiction to expunge the Plaintiff's criminal record.” Id. at 210. Plaintiff further alleges that “[a]fter the Defendant's ex parte communication, on September 24, 2018, Judge Delahanty put on his docket, sua sponte, a motion to set aside his initial order expunging the Plaintiff's criminal record.” Id.

         Plaintiff moved to set aside Judge Delahanty’s reversal. Id. At the hearing held on the motion, “Judge Delahanty informed the Plaintiff's counsel that the Judge Brown had made certain representations to him, via text message that he read into the record, indicating that she would sign an order expunging the Plaintiffs criminal record if Judge Delahanty vacated his order.” Id.

         Plaintiff then appeared in front of Judge Brown on her motion to extend an October, 2014 Domestic Violence Order against Mr. Sallee. [DE 1 at 12-13]. Judge Brown continued the hearing for thirty days. Id. at 15. At the October 10, 2018 hearing, Judge Brown denied the motion.

         Plaintiff then filed this § 1983 action against Judge Brown, in her official capacity, alleging violations of the Fifth and Fourteenth Amendments, and requesting entry of a Declaratory Decree that Judge Brown violated those rights. [DE 1].

         Plaintiff’s alleges in Count 1 of the Complaint that Judge Brown violated her due process rights by sentencing her to thirty days “because [she] did not violate the conditional discharge order regarding visitation.” [DE 1 at 20]. Plaintiff’s also alleges in Count 1 of the Complaint that Judge Brown violated her due process rights “by fail[ing] to make findings, either written findings, after stating three (3) times on the record that she would, or any oral findings justifying the revocation of two days of the conditionally discharged sentence and sending Plaintiff to jail for two (2) days.” Id.

         In Count 2 of the Complaint, Plaintiff alleges that Judge Brown violated her due process rights by not allowing her to “call Dr. Melissa Curry as a witness in the revocation hearing which resulted in the Judge Brown’s sending the Plaintiff to jail for two (2) days on February 26, 2018.” Id. Plaintiff further alleges that Judge Brown violated her due process rights by “denying her the right to present avowal testimony at the hearings to extend Plaintiff’s DVO against Sallee” (Count 3) and “refusing to allow the Plaintiff to call [their child] as a witness at the DVO extension hearing to establish that Sallee had asked [their child] the question which resulted in the CPS investigation” (Count 4). Id. at 20-21. Plaintiff finally alleges in her Complaint that Judge Brown violated her rights when she: 1) “refused to allow questioning of the CPS employee regarding the signaling which occurred during testimony” (Count 5); and 2) “would not allow any evidence on the allegations of the CPS report other than the ‘results’ of the investigation, specifically, questioning of Sallee about the allegations of the report” (Count 6). Id. at 21.

         On November 19, 2018, [3] Judge Brown recused herself from Plaintiff’s case in Jefferson County Family Court [DE 7-1 at 194] and moved to dismiss this case [DE 7].

         On December 6, 2018, Plaintiff filed a Statement of Appeal from District Court Pursuant to CR 72.10, appealing Judge Delahanty’s decision to set aside the expungement of the criminal contempt conviction.

         On December 10, 2018, in the present case, Plaintiff filed an Amended Complaint [DE 8][4]and a Response to the Motion to Dismiss [DE 9]. Plaintiff’s Amended Complaint, which “incorporates by reference . . . every averment, statement, or allegation contained in the . . . Complaint, ” and alleges, among other things, that Judge Brown illegally: 1) revoked Plaintiff’s suspended sentence, resulting in a misdemeanor criminal conviction for contempt of court; and 2) “initiated ex parte communication with Judge Delahanty telling him that he did not have jurisdiction to expunge the Plaintiff's criminal record.” [DE 8 at 208–210].

         Judge Brown filed a Second Motion to Dismiss [DE 12], Plaintiff responded [DE 13], and Judge Brown replied [DE 14].

         II. STANDARD

         Federal Rule of Civil Procedure 12(b)(6) instructs that a court must dismiss a complaint if the complaint “fail[s] to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). To state a claim, 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). When considering a motion to dismiss, courts must presume all factual allegations in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted). “But the district court need not accept a bare assertion of legal conclusions.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).

         To survive a motion to dismiss, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is 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 Twombly, 550 U.S. at 556). “A complaint will be dismissed . . . if no law supports the claims made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents an insurmountable bar to relief.” Southfield Educ. Ass’n v. Southfield Bd. of Educ., 570 F. App’x 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561–64).

         III. ...


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