Ballard v. Cope

• Decision Date: 01 February 2023
• Docket Number: Civil Action 2:22-CV-029 (WOB-EBA)
• Parties: JASON BALLARD, PLAINTIFF, v. DANNY COPE, ET AL., DEFENDANTS.
• Court: U.S. District Court — Eastern District of Kentucky

JASON BALLARD, PLAINTIFF,
v.
DANNY COPE, ET AL., DEFENDANTS.

Civil Action No. 2:22-CV-029 (WOB-EBA)

United States District Court, E.D. Kentucky, Northern Division, Covington

February 1, 2023

MEMORANDUM OPINION AND ORDER

William O. Bertelsman United States District Judge.

This is a lawsuit arising out of Defendant Danny Cope's forced entry into Plaintiff Jason Ballard's home in connection with the repossession of rent-to-own furniture. Currently before the Court are Defendants' Motions to Dismiss, (Doc. 14; Doc. 15; Doc. 30; Doc. 31), and Plaintiff's Motion pursuant to Rule 56(d), (Doc. 20).

The Court has carefully reviewed this matter and, being advised, now issues the following Memorandum Opinion and Order.

Factual and Procedural Background^[1]

Plaintiff Jason Ballard (“Ballard”) alleges that in the spring and summer of 2020, he entered into rent-to-own contracts

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with Defendant United Household Rentals, Inc. (“UHR”) for a sectional sofa and a television. (Doc. 29 ¶ 9).

Ballard fell behind on his payments, and on March 12, 2021, UHR filed a Complaint in Boone County District Court alleging that Ballard was in possession of goods he rented from UHR which he failed to pay for or return. (Id. ¶¶ 10, 15). The same day, UHR obtained an ex-parte writ of possession, issued a bond, and the Boone County judge issued an order appointing Defendant Danny Cope (“Cope”), a Kenton County Constable, as a “special process server.” (Id. ¶¶ 2, 11)^[2].

Ballard alleges that the ex-parte writ of possession was based upon a false statement by Defendant Tina Maxwell (“Maxwell”), a UHR employee, that Ballard's lease had ended in April 2021, and that he did not plan to renew it. (Id. ¶¶ 12-15). Ballard alleges that he had renewed his lease in February 2021 and that he had been in contact with UHR regarding repair to his furniture and his intention to bring his payments current. (Id.).

On March 12, 2021, Cope went to Ballard's home to serve the ex-parte writ of possession. (Id. ¶¶ 24-27). Ballard alleges that he did not recognize Cope's uniform as that of local law enforcement, so he denied Cope entry. (Id. ¶ 25). Cope then identified himself as a police officer, and, “in the presence of

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representatives from the rental company,” attempted to pick the lock on the door. (Id. ¶ 27). Cope then began shouldering his way into the home. (Id. ¶ 28). Ballard told Cope that he possessed a weapon as Cope was trying to enter the home, and Cope threatened to kill Ballard. (Id. ¶¶ 29-30).

Cope then entered the home by force and pointed a gun at Ballard, kicking away a pellet gun that Ballard had dropped. (Id. ¶¶ 31-36). Ballard called 911, and Cope followed Ballard to his bedroom where he confined Ballard for approximately ten minutes by holding a can of pepper spray towards him. (Id. ¶¶ 39-41)

Cope was subsequently arrested and indicted for wanton endangerment, unlawful imprisonment, and official misconduct related to these events. (Id. ¶ 45). On October 11, 2021, Cope entered an Alford plea to the unlawful imprisonment and official misconduct charges. (Id. ¶ 46).^[3]

Ballard filed this lawsuit on March 10, 2022. (Doc. 1). In his Amended Complaint, he alleges claims for: (1) violation of the Fourth and Fourteenth Amendments against Cope under 42 U.S.C. § 1983; (2) civil conspiracy to violate his civil rights against Cope, UHR, and Maxwell; (3) unlawful entry against Cope; (4) First Amendment retaliation against Cope; (5) trespass against Cope; (6) assault against Cope; (7) battery against Cope; (8) common law

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false imprisonment against Cope; (9) intentional infliction of emotional distress against Cope, UHR, and Maxwell; (10) negligence per se against Cope, UHR, and Maxwell; (11) respondeat superior/vicarious liability against UHR; and (12) abuse of process against Cope, UHR, and Maxwell. (Doc. 29).

Defendants moved to dismiss both Ballard's original Complaint, (Doc. 14; Doc. 15), and his Amended Complaint, (Doc. 30; Doc. 31). Accordingly, the Court will deny Defendants' Motions to Dismiss the original Complaint as moot and analyze the Motions to Dismiss the Amended Complaint.^[4]See Ky. Press Ass'n, Inc. v. Kentucky, 355 F.Supp.2d 853, 857 (E.D. Ky. 2005) (“Plaintiff's amended complaint super[s]edes the original complaint, thus making the motion to dismiss the original complaint moot.”) (citing Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000)).

Analysis

A. Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a suit for lack of subject matter jurisdiction. Because federal courts are courts of limited jurisdiction, “a

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federal court must dismiss any claim for which it lacks jurisdiction without addressing the merits.” Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 553 (6th Cir. 2012). Rule 12(b)(1) motions may be either a facial attack or a factual attack. Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016) (citing O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009)). “A facial attack . . . ‘questions merely the sufficiency of the pleading.'” Id. (quoting O'Bryan, 556 F.3d at 375). In analyzing a facial attack, a court must accept the allegations in the complaint as true and look for a short and plain statement of the grounds for jurisdiction. Id. (internal citations omitted).

i. Rooker-Feldman Doctrine

Defendants argue that this Court lacks subject matter jurisdiction over Ballard's claims for unlawful entry, trespass, intentional infliction of emotional distress, negligence per se, and abuse of process pursuant to the Rooker-Feldman doctrine. (Doc. 15 at 8-9; Doc. 30 at 5). Motions to dismiss for lack of subject matter jurisdiction under Rooker-Feldman are construed as facial attacks. See King v. CitiMortgage, Inc., No. 2:10-CV-01044, 2011 WL 2970915, at *5 (S.D. Ohio July 20, 2011). “The Rooker-Feldman doctrine prohibits federal courts below the United States Supreme Court from exercising ‘appellate jurisdiction over the decisions and/or proceedings of state courts, including claims that are

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inextricably intertwined with issues decided in state court proceedings.'” Gilbert v. Ferry, 401 F.3d 411, 416 (6th Cir. 2005) (quoting Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 793 (6th Cir. 2004)).

Federal claims are “inextricably intertwined” and thus barred by Rooker-Feldman only when they assert “an injury whose source is the state court judgment.” McCormick v. Braverman, 451 F.3d 382, 394-95 (6th Cir. 2006) (internal citations omitted). Courts apply the Rooker-Feldman abstention doctrine in two categories of cases: “(1) cases that constitute a direct attack on the substance of the state court opinion, and (2) cases that challenge the procedures by which a state court arrived at its decision.” Anderson v. Charter Twp. of Ypsilanti, 266 F.3d 487, 493 (6th Cir. 2001) (internal citations omitted).

However, the Sixth Circuit has held that the Rooker-Feldman doctrine “is not a panacea to be applied whenever state court decisions and federal court decisions potentially or actually overlap.” McCormick, 451 F.3d at 395. On the contrary, the doctrine is confined to cases in which “a plaintiff asserts before a federal district court that a state court judgment itself was unconstitutional or in violation of federal law.” Id.

Here, Defendants argue that Ballard's claims for unlawful entry, trespass, intentional infliction of emotional distress, negligence per se, and abuse of process directly stem from the

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issuance of the writ of possession by the Boone County District Court. (Doc. 15 at 8-10; Doc. 30 at 5-7). Defendants argue that, because Ballard is challenging the propriety of the writ along with the authority it granted and, without the existence of the writ, none of Ballard's alleged injuries would have occurred, he is asking this Court to improperly review the state court's judgment. (Doc. 15 at 9; Doc. 30 at 6).

Ballard argues that he is not attacking the state court's decision, but rather, Defendants' tortious use of procedure in obtaining and executing the writ. (Doc. 34 at 6; Doc. 35 at 15). Ballard posits that he was injured by the allegedly false affidavit Maxwell supplied to obtain the writ and Cope's allegedly illegal entry into his home, use of excessive force, and unlawful imprisonment of his person. (Doc. 34 at 6; Doc. 35 at 15). Ballard also notes that he is not seeking the return of or damages related to the property identified in the writ. (Doc. 34 at 7; Doc. 35 at 15).

The Sixth Circuit has held that “Rooker-Feldman does not bar a federal-court challenge to an individual's improper conduct during a prior state court proceeding.” Pittman v. Cuyahoga Cnty. Dep't of Child. & Fam. Servs., 241 Fed.Appx. 285, 288 (6th Cir. 2007). In Todd v. Weltman, Weinberg & Reis Co., the Sixth Circuit held that Rooker-Feldman did not apply where the plaintiff complained of harm caused by a false affidavit that the defendant

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submitted in a state court garnishment proceeding. 434 F.3d 432, 436-37 (6th Cir. 2006). Similarly, in McCormick, the Sixth Circuit found that the doctrine did not bar claims that the defendants had committed fraud, misrepresentation, and abuse of process in divorce proceedings. 451 F.3d at 392.

Here, the Court finds that, just as in Todd and McCormick, Rooker-Feldman does not bar Ballard's claims that Defendants engaged in improper conduct in connection with the writ of possession. Ballard has not asserted that the writ itself was unconstitutional or in violation of federal law.^[5]All of his claims focus on Defendants' allegedly improper conduct, rather than the outcome of the state court proceedings. The source of Ballard's alleged injury is Defendants' actions, not the state court judgment.^[6]

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Thus, the Rooker-Feldman doctrine does not bar Ballard's claims.

ii. Plaintiff's Failure to Seek...