BOBBY LEE WILSON, JR. APPELLANT
DUSTIN CLEM APPELLEE
FROM BOYLE CIRCUIT COURT HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 14-CI-00459
FOR APPELLANT: Jude A. Hagan Lebanon, Kentucky
FOR APPELLEE: Erica K. Mack Lexington, Kentucky
BEFORE: ACREE, LAMBERT, AND K. THOMPSON, JUDGES.
Lee Wilson, Jr., has sought review of the summary judgment of
the Boyle Circuit Court dismissing his claim for malicious
prosecution against the Boyle County Sheriff's Department
Deputy Dustin Clem. We affirm.
underlying matter began with the filing of a complaint by
Wilson on December 15, 2014, against Deputy Clem in his
individual capacity, in which Wilson sought compensatory and
punitive damages related to his criminal
prosecution. He alleged causes of action for malicious
prosecution, defamation, false light, and trespass, stating
that he was wrongfully arrested based upon false allegations
that he had committed a felony. Wilson's claims for
trespass and defamation were dismissed by summary judgment
entered August 19, 2016, although the motion for summary
judgment as to his malicious prosecution claim was denied as
renewed motion for summary judgment, Deputy Clem argued that
he was entitled to a judgment as a matter of law and that he
was entitled to qualified immunity from Wilson's suit.
Wilson objected to the motion, arguing that he had set out a
prima facie case for defamation and that Deputy Clem
was not entitled to qualified immunity. In an order entered
October 16, 2017, the circuit court granted summary judgment,
concluding that Wilson failed to establish his claim for
malicious prosecution because there was probable cause to
support his arrest and that in any event Deputy Clem was
protected by qualified immunity because he was performing a
discretionary action in good faith when he executed the
moved the court to vacate its summary judgment, citing a
change in the law for malicious prosecution cases as set
forth in Martin v. O'Daniel, 507 S.W.3d 1 (Ky.
2016). In response, Deputy Clem stated that Wilson had
misinterpreted the holding in Martin and had also
failed to dispute the circuit court's rulings related to
probable cause and qualified immunity. The circuit court
denied Wilson's motion in an order entered January 18,
2018, noting that Wilson failed to file a brief within thirty
days explaining how Martin affected its decision
pursuant to its direction. This appeal now follows.
appeal, Wilson argues that summary judgment was improper on
his malicious prosecution claim and that Deputy Clem was not
entitled to immunity. He has not addressed the dismissal of
his trespass and defamation claims.
shall address Wilson's second argument first, in that it
encompasses a procedural issue that would ordinarily be
determinative in this case. In his prehearing statement,
Wilson listed the issue he proposed to raise on appeal as
#7. Issues proposed to be raised on appeal.
Whether an indictment, which is based on "misleading or
inaccurate" information, rises to probable cause thus
exonerating the police against the claim for malicious
prosecution, especially when "misleading or
inaccurate" information was knowingly utilized. Although
this case is technically not one of first impression, the
case law definitely changed during the
pendency of this action in the Boyle Circuit Court.
Rules of Civil Procedure (CR) 76.03 addresses the prehearing
conference process in the Court of Appeals and requires the
appellant in subsection (4)(h) to include "[a] brief
statement of the facts and issues proposed to be raised on
appeal, including jurisdictional challenges[.]" CR
76.03(8), in turn, provides that "[a] party shall be
limited on appeal to issues in the prehearing statement
except that when good cause is shown the appellate court may
permit additional issues to be submitted upon timely
motion." Wilson failed to list the qualified immunity
issue in his prehearing statement, and even a strained
reading of the proposed issue he did raise cannot encompass
that issue. He also did not seek permission to raise the
issue for good cause. Therefore, we may not consider that
issue on appeal. Sallee v. Sallee, 142 S.W.3d 697,
698 (Ky. App. 2004) ("Since that issue was not raised
either in the prehearing statement or by timely motion
seeking permission to submit the issue for 'good cause
shown,' CR 76.03(8), this matter is not properly before
this court for review.").
October 17, 2017, judgment, the circuit court addressed the
qualified immunity issue, holding that Deputy Clem was
entitled to protection as "the execution of the arrest
and search warrant, seizing the plaintiff's property, and
arresting the plaintiff, were discretionary acts that were
within the defendant's authority as a police officer and
taken in good faith." Because he failed to list this
issue in his prehearing statement, Wilson would not normally
be permitted to seek review of this ruling, and we would be
constrained to affirm the judgment on appeal.
our Supreme Court's opinion in Martin,
supra, effectively eliminates the qualified immunity
defense in malicious prosecution claims.
Acting with malice and acting in good faith are mutually
exclusive. Malice is a material fact that a plaintiff must
prove to sustain a malicious prosecution claim. [Raine v.
Drasin, 621 S.W.2d 895, 899 (Ky. 1981)]. But, it is also
a fact that defeats the defendant's assertion of
qualified official immunity. Official immunity is unavailable
to public officers who acted "with the malicious
intention to cause a deprivation of constitutional
rights or other injury . . . ." [Yanero v.
Davis, 65 S.W.3d 510, 523 (Ky. 2001)] (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982).
It thus becomes apparent that the very same evidence that
establishes the eponymous element of a malicious prosecution
action simultaneously negates the defense of official
immunity. In simpler terms, if a plaintiff can prove that a
police officer acted with malice, the officer has no
immunity; if the plaintiff cannot prove malice, the officer
needs no immunity.
Martin, 507 S.W.3d at 5. "Therefore, in the
context of a malicious prosecution claim against state law
enforcement officers, the issue of qualified official
immunity is superfluous. . . . [W]hen a plaintiff must prove
malice to sustain his cause of action, a defense of qualified
official immunity has little meaning and no effect."
Id. at 5-6. For this reason, the circuit court's
ruling that Deputy Clem was entitled to qualified official
immunity is superfluous, and Wilson's failure to list
this as an issue in his prehearing statement is harmless ...