United States District Court, E.D. Kentucky, Southern Division
OPINION AND ORDER
E. Wier United States District Judge
lawsuit centers on the roadside seizure of Plaintiff Michael
McNally, who claims to have suffered a fractured arm while
Defendant Whitley County Sheriff's Deputy James Tabor
effected McNally's arrest by force. Tabor charged McNally
with a series of offenses, including driving under the
influence. At trial, the Whitley District Judge entered a
directed verdict in McNally's favor based on a discovery
violation, the Commonwealth's failure before trial to
identify all officers at the scene of McNally's arrest.
Shortly after, McNally sued both Tabor and Whitley County
Sheriff Colan Harrell under § 1983 for violations of his
constitutional rights and under state law for malicious
prosecution, battery, and negligence/gross negligence.
Tabor and McNally were present for the key events, and the
parties agree about some of what happened on the night of
McNally's arrest. On April 14, 2017, around 9:00 p.m., both
McNally and Tabor were driving in Whitley County on U.S.
Highway 25. It was dark. The truck that McNally was
driving-apparently not his own-did not have its headlamps
illuminated, so Tabor initiated a traffic stop. When McNally
got out of the truck, it rolled away and struck a guardrail.
McNally reentered the vehicle to put it in park. Tabor
detected the odor of alcohol as he approached McNally. Tabor
asked McNally whether he had weapons in his possession, and
McNally handed over his pocket-knife. When Tabor asked
McNally for his license and proof of insurance, McNally
produced his license but not proof of insurance. Throughout
the interaction, Tabor ordered McNally multiple times to keep
his hands out of his pockets. McNally still tried to fish his
cigarette lighter from a pocket. At some point while McNally
was standing outside the truck, McNally, with no notice,
moved to reach inside the vehicle, and Tabor brought him to
the ground and handcuffed him. Tabor then requested backup
and put McNally into his police cruiser, advising McNally
that he was under arrest for driving under the influence,
menacing, no insurance, and no headlamps. Tabor drove McNally
to the hospital for a blood test to determine his potential
impairment, but McNally claimed not to understand the implied
consent notice that Tabor read to him, so Tabor took him to
the detention center instead. McNally never asked to be taken
to the hospital for an injury. Upon his release, McNally
sought medical treatment and was diagnosed with a broken arm.
facts are disputed or at least unclear in light of the
parties' competing accounts. According to Tabor,
McNally's truck struck the guardrail multiple times-both
in the process of the initial stop, and again after McNally
got out of the vehicle. DE 31 at 50. Tabor states that
McNally denied having been drinking. Also, Tabor
characterizes McNally as argumentative during the stop;
McNally continued to reach his hands into his pockets despite
Tabor's repeated instructions to the contrary. In
response to Tabor's question about McNally's license
and insurance, McNally advised that, because the truck
belonged to someone else, he did not have proof of insurance.
Tabor viewed McNally's “abrupt movement”
toward the interior of the truck as a potential attempt to
flee or obtain a weapon from inside the vehicle.
McNally's version, the truck struck the guardrail only
once, and McNally tried (perhaps unsuccessfully) to explain
the cause to Tabor: a mechanical issue with the transmission
and lack of dashboard lights (to enable the driver to see
what gear the truck was in). Per McNally, he did not actually
put his hands in his pockets, but he did ask Tabor whether he
could smoke a cigarette and whether Tabor wanted to take the
lighter that was in McNally's “watch fob pocket,
” supposedly visible to Tabor. McNally admits that he
was leaning into the truck's passenger compartment to
continue to look for proof of insurance before Tabor grabbed
him and took him to the ground. McNally concedes that, even
after being told not to reach into his pockets, he tried,
with no permission from Tabor, to retrieve his lighter from a
front pocket. This was just as McNally had abruptly reached
into the truck and just prior to the takedown. See
DE 30 at 21; id. at 13 (“[H]e's like
‘Get your hands out of your pockets' and I said,
‘Sir, I just want the lighter.'”).
the Court is Defendants' amended motion seeking summary
judgment on all claims (DE 40-1). McNally responded in
opposition. DE 44. Defendants replied. DE 45.
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A reviewing court must construe the
evidence and draw all reasonable inferences from the
underlying facts in favor of the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v.
Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally,
the court may not “weigh the evidence and determine the
truth of the matter” at the summary judgment stage.
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
burden of establishing the absence of a genuine dispute of
material fact initially rests with the moving party.
Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553
(1986) (requiring the moving party to set forth “the
basis for its motion, and identify those portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate an
absence of a genuine issue of material fact”);
Lindsay, 578 F.3d at 414 (“The party moving
for summary judgment bears the initial burden of showing that
there is no material issue in dispute.”). If the moving
party meets its burden, the burden then shifts to the
nonmoving party to produce “specific facts”
showing a “genuine issue” for trial. Celotex
Corp., 106. S.Ct. at 2253; Bass v. Robinson,
167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule
56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp., 106 S.Ct. at 2552;
see also Id. at 2557 (Brennan, J., dissenting)
(“If the burden of persuasion at trial would be on the
non-moving party, the party moving for summary judgment may
satisfy Rule 56's burden of production in either of two
ways. First, the moving party may submit affirmative evidence
that negates an essential element of the nonmoving
party's claim. Second, the moving party may demonstrate
to the Court that the nonmoving party's evidence is
insufficient to establish an essential element of the
nonmoving party's claim.” (emphasis in original)).
is “material” if the underlying substantive law
identifies the fact as critical. Anderson, 106 S.Ct.
at 2510. Thus, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted.” Id. A “genuine” issue
exists if “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Id. at 2511; Matsushita Elec.
Indus. Co., 106 S.Ct. at 1356 (“Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'”) (citation omitted). Such
evidence must be suitable for admission into evidence at
trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428,
444-45 (6th Cir. 2006).
reading of McNally's complaint yields a slew of distinct
theories of recovery. McNally appears to assert each of the
complaint's five counts-§ 1983 unlawful
seizure/false arrest, § 1983 excessive force, state-law
malicious prosecution, state-law battery, and state-law
negligence/gross negligence-against both Tabor and Harrell in
their individual and official capacities. See DE 1
¶ 5 (“Plaintiff sues Defendants Harrell and Tabor
in their official and individual capacities.”). In
effect, this duplication exists for all counts except the two
§ 1983 official-capacity claims, which do not require
individualized treatment as to each Defendant.
analysis proceeds in two steps. First, the Court culls
McNally's catalog of claims. Of the numerous claims that
McNally appears to bring against Tabor and Harrell, nine
require only brief discussion. Second, the Court considers
the remaining issues, taking the § 1983 and state-law
claims in turn, and concludes that none of McNally's
claims survives summary judgment.
Individual-Capacity § 1983 Claims Against
not entirely clear whether McNally seeks to recover from
Harrell in his individual capacity under § 1983.
See DE 1 ¶ 5. In Count I, McNally alleges
unconstitutional behavior by Defendants-emphasis on
the plural-and in Count II, McNally likewise demands judgment
against Defendants. See DE 1 ¶¶
53-54, 62. Defendants argue that there is no evidence that
Harrell knew about Tabor's supposedly unconstitutional
conduct, and it is uncontested that Harrell was not present
(or otherwise directly involved) during McNally's arrest.
See DE 32 at 41 (Harrell Deposition); DE 40-1 at 28.
In response to Defendants' briefing, McNally focuses not
on particular acts by Harrell but on perceived deficits in
county policy regarding deputies. See DE 44 at 9-15.
suits seek to impose personal liability upon a government
official for actions he takes under color of state
law.” Kentucky v. Graham, 105 S.Ct. 3099, 3105
(1985). “Where a supervisor is also a policymaker, it
may be easy to ‘improperly conflate a § 1983
claim of individual supervisor liability with one of
municipal liability' or an official-capacity
claim.” Horn v. City of Covington, No.
14-73-DLB-CJS, 2018 WL 3865377, at *32 (E.D. Ky. Aug. 14,
2018) (quoting Phillips v. Roane Cty., 534 F.3d 531,
543 (6th Cir. 2008)). But “liability under § 1983
must be based on active unconstitutional behavior and cannot
be based upon ‘a mere failure to act.'”
Shehee v Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)
(internal quotation omitted). “A supervisor is not
liable pursuant to § 1983 for failing to train unless
the supervisor ‘either encouraged the specific incident
of misconduct or in some other way directly participated in
it. At a minimum a plaintiff must show that the official at
least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending
officers.'” Phillips, 534 F.3d at 543
(quoting Shehee, 199 F.3d at 300).
the equivocal complaint-evidently asserting all counts
against both Defendants in both capacities-and McNally's
failure to suggest a triable issue on Harrell's actual
involvement in McNally's arrest, the Court declines to
entertain an individual-capacity § 1983 claim against
Harrell. McNally's allegations sound in an
official-capacity theory (which the Court addresses below).
Moreover, McNally did not respond to Defendants' relevant
arguments based on Harrell's lack of involvement and
qualified immunity. See DE 40 at 28; DE 44 at 9-15.
“[A] plaintiff is deemed to have abandoned a claim when
a plaintiff fails to address it in response to a motion for
summary judgment.” Brown v. VHS of Mich.,
Inc., 545 Fed.Appx. 368, 372 (6th Cir. 2013). For these
reasons, to the extent McNally brings an individual-capacity
§ 1983 claim against Harrell, summary judgment in favor
of Defendants is warranted.
Official-Capacity State-Law Claims Against Harrell
argues three state-law claims against Harrell: malicious
prosecution (Count III), battery (Count IV), and
negligence/gross negligence (Count V). Defendants invoke
sovereign immunity as a defense to all official-capacity
state-law claims. DE 40-1 at 18.
immunity clearly dooms the official-capacity theory regarding
Harrell's own conduct. “Official capacity suits
‘generally represent only another way of pleading an
action against an entity of which an officer is an
agent.'” Commonwealth Bd. of Claims v.
Harris, 59 S.W.3d 896, 899 (2001) (quoting
Graham, 105 S.Ct. at 3105). “Because the
county is a political subdivision of the state, it is
‘cloaked' with sovereign or governmental
immunity.” Jones v. Cross, 260 S.W.3d 343, 345
(Ky. 2008). Sheriffs, as county officials, would have
absolute immunity from suit for both their torts and their
deputies' torts. Id. But a state may waive this
immunity, and the Jones court interpreted KRS 70.040
to constitute a partial waiver. See Id. at 345-46. A
plaintiff may sue the sheriff's office “for the
tortious acts or omissions” of a sheriff's deputies
but not for the acts or omissions of the sheriff himself.
Id. Sovereign immunity therefore bars the three
official-capacity state-law claims against Harrell (for his
own conduct) but does not foreclose Tabor's individual
liability or the office's (i.e., Harrell's official,
vicarious) liability for Tabor's tortious acts or
Individual-Capacity State-Law Claims Against Harrell
to Counts III, IV, and V, Harrell is liable for Tabor's
alleged battery, malicious prosecution, and negligence
“under the doctrine of respondeat
superior.” DE 1 ¶¶ 68, 74, 84. Other
than urging that the claim fails, Defendants say little about
McNally's theory. See DE 40-1 at 30, 32. And,
aside from the unhelpfully broad assertion in the complaint,
see DE 1 ¶ 5, McNally does not further identify
the actor for whom Tabor's conduct creates liability:
Harrell in his individual capacity, Harrell in his official
capacity (in effect, the county), or both. Nonetheless, the
Court construes the complaint to allege, at least in part,
that Harrell is personally liable for Tabor's supposed
battery, malicious prosecution, and negligence.
Kentucky law, “[a]n employer is strictly
liable for damages resulting from the tortious acts of his
employees committed within the scope of his
employment.” Univ. Med. Ctr., Inc. v. Beglin,
375 S.W.3d 783, 792-93 (Ky. 2011) (emphasis added). Harrell,
in his individual capacity, cannot be vicariously liable for
Tabor's torts unless Harrell was Tabor's employer.
See Lamb v. Interstate S.S. Co., 149 F.2d 914, 917
(6th Cir. 1945) (“While the general rule is that the
master is liable for the acts of his employees done within
the scope of their employment, it is equally well settled
that the rule applies only when the relation of master and
servant is shown to exist between the wrongdoer and the
person sought to be charged for the wrong at the time of the
injury and with reference to the very transaction out of
which the injury arose; otherwise, the doctrine of respondeat
superior does not apply.”) At the time of this
incident, the Whitley County Sheriff's Department, not
Harrell personally, was Tabor's employer. Therefore, to
the extent McNally asserts individual-capacity state-law
claims against Harrell on a respondeat superior theory, those
claims do not survive summary judgment.
State-Law Negligence/Gross Negligence Claim Regarding
alleges that Tabor breached his duty of care “with
respect to the arrest, use of force and prosecution of
Plaintiff.” DE 1 ¶ 79. Defendants contend that
qualified official immunity protects them from liability and
that Count V fails on the merits anyway because McNally
cannot prove breach, offered no expert opinion on the
standard of care, and identified no malice or willfulness
(for purposes of gross negligence). DE 40-1 at 20-22, 32-35.
claim is bothersomely imprecise. A Kentucky negligence claim
requires proof of a duty owed to the plaintiff, a breach by
the defendant, and “consequent injury.”
Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky.
2003). Though McNally never identifies the source of
Tabor's supposed duty to McNally, see DE 1
¶¶ 77-79, Defendants appear to concede that a duty
exists- observing the “universal duty of care, ”
see DE 40-1 at 32-and instead focus their argument
on the need for expert testimony as to the applicable
standard of care, see DE 40-1 at 32-33. As for gross
negligence, Kentucky law requires two findings: a failure to
exercise reasonable care, “accompanied by wanton or
reckless disregard for the lives, safety, or property of
others.” Gibson v. Fuel Transp., Inc., 410
S.W.3d 56, 59 (Ky. 2013) (internal citation omitted). On this
theory, McNally offers scant factual support, only the bare
assertion that Defendants “exercised little to no care,
and were grossly negligent.” See DE 1 ¶
83. Defendants maintain that the existence of probable cause
and the reasonableness of Tabor's use of force-latterly
discussed issues relevant to the § 1983 and other
state-law claims-likewise resolve the negligence claim in
their favor. DE 40-1 at 33.
Court perceives a different problem with the negligence
count. Namely, an “officer is liable for the
intentional tort of battery, not for negligence, when he
deliberately exceeds the privileged amount of force by
committing an unwarranted violence on the arrestee.”
Ali v. City of Louisville, No. 3:03CV-427-R, 2006 WL
2663018, at *8 (W.D. Ky. Sept. 15, 2006) (“To permit a
separate claim for negligence creates the risk that a jury
would assume that, even if no excessive force were used, the
officer might somehow still be liable for some undefined
negligence.”). Kentucky courts have recognized that
there is no such creature as negligent assault, Ten
Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 732-33
(Ky. 2009), and this reasoning applies with similar force to
the intentional torts of which McNally complains. See
also District of Columbia v. Chinn, 839 A.2d 701, 706-10
(D.C. 2003) (discussing invalidity of negligent assault). No.
amount of vague pleading can transform false-arrest or
malicious-prosecution claims into causes of action properly
sounding in negligence. See Jones v. Clark Cty., No.
5:15-337-DCR, 2016 WL 4146119, at *9 (E.D. Ky. Aug. 3, 2016)
(discussing false arrest and malicious prosecution);
Lewis v. Laurel Cty. Sheriff's Dep't, No.
09-280-GFVT, 2011 WL 3475370, at *6 (E.D. Ky. Aug. 8, 2011)
(explaining this concept as it applies to malicious
Tabor, McNally relies on the same conduct that forms the
basis of his constitutional and state-law claims and attempts
to repackage the allegations as a negligence/gross-negligence
count. This strategy may have been permissible if McNally had
set forth an independent theory that met the requirements of
a negligence or gross-negligence claim under Kentucky law. To
the extent McNally asserts that Tabor negligently
falsely arrested him, negligently used unnecessary
force against him, or negligently maliciously
prosecuted him, the Court rejects the effort and finds no
possible personal liability for Tabor on Count V.
KRS 70.040 (as interpreted in Jones), the
sheriff's office may have vicarious liability for
Tabor's negligence. But, because the individual-capacity
negligence count against Tabor needlessly duplicates Counts
III and IV and fails as a matter of law, Harrell-really, the
office or county-can have no official-capacity liability on
this count. See Haugh v. City of Louisville, 242
S.W.3d 683, 687 (Ky. Ct. App. 2007) (“[V]icarious
liability is not possible without primary
liability.”). Accordingly, McNally cannot prevail on
Count V against Tabor on the individual-capacity theory or
against Harrell on the official-capacity theory.
what remains: two individual-capacity § 1983 claims
against Tabor; two official-capacity § 1983 claims,
effectively against the office; state-law causes of action
for malicious prosecution and battery against Tabor in his
individual capacity and against Harrell in his official
capacity (vicariously, for Tabor's conduct); and a
state-law negligence claim against Harrell in his individual
Section 1983 (Counts I and II)
1983 creates a federal cause of action against state or local
officials who deprive a person of a federal right while
acting under the color of state law.” Thomas v.
City of Chattanooga, 398 F.3d 426, 429 (citing 42 U.S.C.
Individual-Capacity Claim Against Tabor
complaint alleges two § 1983 counts against Tabor:
unlawful seizure/false arrest (Count I) and excessive force
(Count II). See DE 1. There is no dispute that Tabor
was acting under color of state law, so the pertinent
question is whether Tabor violated McNally's
constitutional rights. Counts I and II both implicate
McNally's Fourth Amendment rights, but the theories are
distinct. Count I's viability depends on whether Tabor
had probable cause to arrest McNally. Count II prompts an
inquiry into the objective reasonableness of Tabor's
force in arresting and handcuffing McNally.
Probable cause to arrest
arrested McNally and lodged four charges: no headlamps, no
insurance, driving under the influence, and menacing.
See DE 40-5 (Uniform Citation).
Fourth Amendment protects against unreasonable searches and
seizures, which includes an arrest without probable cause.
Alman v. Reed, 703 F.3d 887, 896 (6th Cir. 2013). To
prove false arrest under § 1983, a plaintiff must show
that the officer lacked probable cause. Fridley v.
Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). In other
words, “[a]n arrest is valid so long as there is
probable cause for a single charge of an arrestable
offense.” Miller v. Sanilac Cty., 606 F.3d
240, 248 (6th Cir. 2010). “A police officer has
probable cause if there is a ‘fair probability'
that the individual to be arrested has either committed or
intends to commit a crime.” Fridley, 291 F.3d
at 872 (internal citation omitted). “To determine
whether probable cause exists, [a court] consider[s] only
‘the facts known to the arresting officer at the time
of the arrest.'” Hartman v. Thompson, 931
F.3d 471, 481 (6th Cir. 2019). “Probable cause is
assessed ‘from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of
hindsight.'” Klein v. Long, 275 F.3d 544,
550 (6th Cir. 2001) (internal quotation omitted). “The
existence of probable cause is a jury question, unless there
is only one reasonable ...