Butts v. City of Bowling Green

• Decision Date: 23 June 2005
• Docket Number: No. 1:04CV-129-R.,1:04CV-129-R.
• Citation: 374 F.Supp.2d 532
• Court: U.S. District Court — Western District of Kentucky
• Parties: Larita BUTTS Plaintiff v. CITY OF BOWLING GREEN, et al. Defendants.

374 F.Supp.2d 532

Larita BUTTS Plaintiff v. CITY OF BOWLING GREEN, et al. Defendants.

No. 1:04CV-129-R.

United States District Court, W.D. Kentucky, Bowling Green Division.

June 23, 2005.

COPYRIGHT MATERIAL OMITTED

Michael C. Bratcher, Pamela Carolyn Bratcher, Bowling Green, KY, for Plaintiff.

Douglas W. Gott, Bell, Orr, Ayers & Moore, H. Eugene Harmon, Melanie Kennedy Cook, Bell, Orr, Ayers & Moore, Bowling Green, KY, for Defendants.

MEMORANDUM OPINION

RUSSELL, District Judge.

This matter is before the court on Defendants' Motion for Summary Judgment (Dkt.# 11). Plaintiff has responded (Dkt.# 19). Defendants have replied (Dkt.# 24). Plaintiff has sur-replied (Dkt.# 25). The matter is now ripe for adjudication. For the reasons that follow, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.

BACKGROUND

Ms. Larita Butts filed this 42 U.S.C. § 1983 action against the City of Bowling Green ("the City") and Detective Barry Raley because she claims that her Fourth Amendment right to be free from an arrest without probable cause was violated. She was arrested on July 16, 2003 for hindering apprehension in the second degree in violation of Ky.Rev.Stat. § 520.130. The criminal complaint used to secure an arrest warrant states that on July 15, 2003, Ms. Butts

[u]nlawfully and intentionally rendered assistance to Corey Butts (who is being sought on a warrant for Rape 1st degree) by providing him with transportation to an unknown location. The defendant knew that BGPD was attempting to locate and arrest Corey Butts for Rape 1st degree. All in violation of KRS 520.130 hindering apprehension second degree.

Corey Butts is Ms. Butts's son. Detective Raley filed the criminal complaint and secured an arrest warrant from a Warren County District Judge. On October 16, 2003, Ms. Butts entered into a pretrial diversion agreement where the criminal charges would be dismissed if she did not have any additional charges during a specified period of time.

Ms. Butts, who is an African American woman, was 49 years old at the time of her arrest. She is the mother of five children including Corey Butts. In April 2001, Mr. Butts was arrested at motel for sexual assault. Ms. Butts went to the motel and met Detective Raley for the first time. Ms. Butts alleges that upon learning that Corey Butts was married to a Caucasian woman, Detective Raley told Ms. Butts that "blacks and whites should not be together." Further, she alleges that Detective Raley told her that he didn't like her and "if you open your mouth, I will arrest you."¹ Also after Detective Raley arrested her and took her to the station in this case, she claims that another uniformed officer asked Detective Raley if he was using her for "bait" and he said yes.

STANDARD

A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Facts are "material" in a summary judgment inquiry only when they could affect the case's outcome under the controlling substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Stated differently, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. Furthermore, an issue of material fact is "genuine" only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505. Finally while Kentucky state law is applicable to this case pursuant to Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court in a diversity action applies the standards of Fed.R.Civ.P. 56, not "Kentucky's summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476 (1991)." Gafford v. General Electric Co., 997 F.2d 150, 165 (6th Cir.1993).

DISCUSSION

A. Heck v. Humphrey

Prior criminal proceedings must be terminated in favor of the accused before a § 1983 malicious prosecution is actionable. Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In other § 1983 actions, this court must consider whether a judgment in favor of plaintiff on her § 1983 claims would imply that her criminal conviction was invalid. Id. at 487, 114 S.Ct. 2364. Ms. Butts argues that she is not alleging a malicious prosecution cause of action; therefore, the favorable termination requirement does not apply.

Defendants have read into the holding in Heck a favorable termination requirement for actions other than malicious prosecution. Defendants argue that Ms. Butts is not entitled to maintain this action because a pretrial diversion is not a favorable termination. It is true that in malicious prosecution actions, favorable termination is an element, Raine v. Drasin, 621 S.W.2d 895, 899 (Ky.1981), and some courts have stated that pre-trial diversion was not a favorable termination for malicious prosecution purposes. See Cissell v. Hanover Ins. Co., 647 F.Supp. 757, 758 (E.D.Ky.1986) (federal pre-trial diversion is not a favorable termination); Broaddus v. Campbell, 911 S.W.2d 281, 284 (Ky.Ct.App.1995) (when the defendant enters into an agreement to have the charges dismissed it is not a favorable termination). However, this is not a malicious prosecution action.

The Heck court specifically states that it is using the elements of malicious prosecution because it is the closest analogy to the type of claims before it. Heck, 512 U.S. at 484, 114 S.Ct. 2364. See also Harden v. Pataki, 320 F.3d 1289, 1299-1300 (11th Cir.2003) (discussing whether extradition is analogous to a malicious prosecution action warranting an application of the malicious prosecution elements, but deciding that Heck should be read to require that the underlying judgment be invalidated, expunged or reversed). Further, the Court distinguishes false arrest or imprisonment claims from malicious prosecution claims by stating that unlike false arrest claimants, malicious prosecution claimants are entitled to recover for confinement imposed pursuant to legal process. Heck, 512 U.S. at 484, 114 S.Ct. 2364. Here Ms. Butts is making a claim analogous to false arrest because she is claiming that she was arrested pursuant to an invalid arrest warrant. She is not making a malicious prosecution argument because she was never tried for the charge against her.

Even though it seems unnecessary because this is a claim analogous to false arrest where Ms. Butts has not been convicted and Ms. Butts is not trying to recover for an unconstitutional conviction, this court will still attempt to apply the holding in Heck. The Heck court held "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck, 512 U.S. at 484, 114 S.Ct. 2364. First, Ms. Butts has not been convicted or sentenced. Under Kentucky law, a conviction is

the ascertainment of defendant's guilt by some legal mode and an adjudication that the accused is guilty. This may be accomplished by a confession by the accused in open court, a plea of guilty or a verdict which ascertains and publishes the fact of guilt. We believe in the majority of those cases and in the majority of jurisdictions (although we have not counted noses), the word "conviction" is not limited to a final judgment.

Cook v. Commonwealth, 129 S.W.3d 351, 364-65 (Ky.2004). Further, Kentucky Revised Statutes § 533.258(1) states "[i]f the defendant successfully completes the provisions of the pretrial diversion agreement, the charges against the defendant shall be listed as `dismissed-diverted' and shall not constitute a criminal conviction.²" Similarly, under Kentucky rules, all charges against her have been dismissed because she was not charged with any other crimes during the period of time set forth in the pre-trial agreement. See Ky. R.Crim. Pro. 8.04. Ms. Butts does not have a criminal conviction. Therefore, this action could not invalidate a sentence or conviction that she does not have. See Jenkins v. Haubert, 179 F.3d 19, 26 (2d Cir.1999) ("[W]here federal habeas corpus is not available to address constitutional wrongs, § 1983 must be." (federal habeas corpus would not be available here because she has not been convicted)); Shamaeizadeh v. Cunigan, 182 F.3d 391, 397 (6th Cir.1999) (stating that Heck did not apply because the plaintiff was not a prisoner and had not been convicted so he never had a claim for habeas corpus relief).

Even if Ms. Butts had a conviction, she would still be able to bring a Fourth Amendment claim if it did not necessarily imply that her conviction was unlawful and her injury was something other than the "injury of being convicted and imprisoned." Heck, 512 U.S. at 487, n. 7, 114 S.Ct. 2364. See Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, 401 F.3d 419, 434-35 (6th Cir.2005) (a finding that the search was illegal would not imply that his conviction for conspiracy was invalid but would be in direct contravention of a forfeiture order); Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir.1998) ("[A] claim based on an unlawful search or arrest may be brought immediately, because a violation of the fourth amendment...