Estep v. Combs

366 F.Supp.3d 863

Jack ESTEP, Plaintiff,

v.Steve COMBS, Defendant.

No. 6:18-CV-23-REW

United States District Court, E.D. Kentucky, Southern Division. London.

Signed August 2, 2018

Edward L. Cooley, Michael Ryan Robey, Rhonda Nicole Iuliano, Cooley Iuliano Robey, LLP, Lexington, KY, for Plaintiff

Catherine Elaine York, Matthew Harold Kleinert, Cabinet for Health & Family Services-Frankfort Office of Legal Services Evan Bennett Jones, Tourism Arts and Heritage Cabinet, Alea Amber Arnett, Kentucky State Police Legal Office, Frankfort, KY 40621 Christian Matthew Feltner, Caldwell & Feltner, PLLC, London, KY, for Defendant.

ORDER

Robert E. Wier, United States District Judge

On December 19, 2017, Plaintiff Jack Estep filed this action in Harlan Circuit Court against Steve Combs, a Kentucky Department of Fish and Wildlife Resources (KDFW) officer, alleging various state law claims and a slate of 42 U.S.C. § 1983 violations. DE 1-1 (State Court Record). The suit stems from Combs's arrest of Plaintiff on December 21, 2016. DE 1-1, at 4. Combs, in his official capacity, noticed removal on January 26, 2018. DE 1 (Notice).

The defense moved to dismiss the individual (DE 9) and official (DE 10) capacity claims. The Court subsequently dismissed Combs in his official capacity on immunity grounds, but reserved decision on the individual capacity claims pending resolution of service concerns. DE 23 (Order). Subsequently, Defendant Combs mooted any Rule 4(m) issues by waiving service and entering a full appearance. Id. Accordingly, the Court returns to the individual capacity dismissal effort. DE 9.

The motion is fully briefed, DE 11 (Response), DE 17 (Reply), and stands ripe for review. For the following reasons, and under the applicable standards, the Court finds only partial dismissal warranted. The Court will permit Estep to proceed with two Fourth Amendment claims, under § 1983, and, under Kentucky law, false imprisonment and malicious prosecution claims.

I. BACKGROUND

Plaintiff seeks recovery under 42 U.S.C. § 1983 and various state law theories based on the following factual allegations:¹ Around 10:30 p.m. on December 21, 2016, Plaintiff Jack Estep received a call from his daughter-in-law, Victoria Estep. Mrs. Estep advised that Defendant Combs was harassing Plaintiff's son, Tim, at his home and was refusing to leave. She requested Plaintiff's assistance. Plaintiff arrived at his son's residence and found Defendant standing at the front door. Plaintiff told Combs that he needed to leave unless he had a warrant. Defendant then arrested Plaintiff. Combs tightly handcuffed Plaintiff. Estep claims the cuffs caused significant pain and suffering and resulted in bruising on his wrists. He alleges that he asked Combs to remove or loosen the cuffs due to the pain and that Defendant refused. Plaintiff claims Combs left him in his vehicle outside the Harlan County Detention Center for an excessive period despite knowing the cuffs were causing pain. Plaintiff contends he was not engaged in any illegal activity when Combs arrested him, that he did not resist, and that there was no probable cause to justify the arrest. Nonetheless, Combs booked Plaintiff on charges of menacing, resisting arrest, and obstruction/interference with an officer. Ultimately, the Harlan District Court, on February 13, 2017, dismissed all charges for lack of evidence.

Plaintiff now pursues recovery, under § 1983, for Fourth, Fifth and Fourteenth Amendment violations and, under state law, for false arrest, false imprisonment, malicious prosecution, abuse of process, negligence, gross negligence, and intentional infliction of emotional distress (IIED).² Defendant pursues dismissal on three bases; Combs argues: (1) each claim, excepting IIED, is time-barred, DE 9-1, at 4, (2) he is entitled to qualified immunity, id. at 11, and (3) Estep fails to state a claim upon which the Court could grant relief, id. at 9.

Having reviewed the applicable record under the appropriate standards, for the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the motion to dismiss.

II. DISMISSAL STANDARDS

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. However, "a formulaic recitation of a cause of action's elements will not do[.]" Twombly , 127 S.Ct. at 1965. Courts "must construe the complaint in the light most favorable to the plaintiff and accept all allegations as true." Keys , 684 F.3d at 608. Yet, courts need not accept "legal conclusion[s] couched as [ ] factual allegation[s]." Papasan v. Allain , 478 U.S. 265, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986).

Hinging on Rule 8's minimal standards, Twombly and Iqbal require a plaintiff to "plead facts sufficient to show that her claim has substantive plausibility." Johnson v. City of Shelby , 574 U.S. 10, 135 S.Ct. 346, 347, 190 L.Ed.2d 309 (2014). Where plaintiffs state "simply, concisely, and directly events that ... entitled them to damages," the rules require "no more to stave off threshold dismissal for want of an adequate statement[.]" Id. ; El-Hallani v. Huntington Nat. Bank , 623 F. App'x 730, 739 (6th Cir. 2015) ("Although Twombly and Iqbal have raised the bar for pleading, it is still low.").

Generally, "matters outside of the pleadings are not to be considered by a court in ruling on a ... motion to dismiss." Weiner v. Klais and Co., Inc. , 108 F.3d 86, 88 (6th Cir. 1997). However, the Court may "consider other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice." Ashland, Inc. v. Oppenheimer & Co. , 648 F.3d 461, 467 (6th Cir. 2011) (internal quotation marks and citation omitted). While a statute of limitations defense is not typically appropriate for consideration as part of a 12(b)(6) motion, such defense may prevail "where the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely." Andonissamy v. Hewlett-Packard Co. , 547 F.3d 841, 847 (7th Cir. 2008) ; Marsh v. Genentech, Inc. , 693 F.3d 546, 554–55 (6th Cir. 2012) ("A motion to dismiss can be premised on an affirmative defense ... if ‘the plaintiff's own allegations show that a defense exists that legally defeats the claim for relief.’ " (internal citation omitted) ).

III. ANALYSIS

The Court has fully reviewed the record and finds, in the circumstances, partial dismissal warranted. As detailed below, Defendant's particular statute of limitations challenge fails at the dismissal stage. Combs is not—on the current record—entitled to qualified immunity, and Plaintiff has adequately pleaded two federal and two state law claims.

A. Statutes of Limitation

The parties do not dispute the applicable limitations periods. For § 1983 claims, federal courts borrow forum states' personal injury statutes of limitation. See Wilson v. Garcia , 471 U.S. 261, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985). Here, the relevant statute surely is the one-year limitation period provided by KRS 413.140. Ham v. Marshall Cty., Ky. , No. 5:11-CV-11, 2012 WL 5930148, at *3 (W.D. Ky. Nov. 27, 2012) (citing Collard v. Ky. Bd. of Nursing , 896 F.2d 179, 182 (6th Cir. 1990) ). Kentucky law required Plaintiff to "commence[ ]" his claims³ "within one (1) year after the cause[s] of action accrued[.]" KRS 413.140(1)(a) & (c). "[A] claim for wrongful arrest under § 1983 accrues at the time of the arrest or, at the latest, when detention without legal process ends." Fox v. DeSoto , 489 F.3d 227, 233 (6th Cir. 2007). The Commonwealth's civil rules provide: "A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith." CR 3.01.⁴

Combs recently waived service. See DE 26. However, Defendant claims that Plaintiff did not initially pursue service in "good faith," as required—under Kentucky law—to commence an action. See Isaacs v. Caldwell , 530 S.W.3d 449, 456 (Ky. 2017) ("The timely issuance of the summons, however, does not mean that Appellants' action commenced within the statutory limitation period. CR 3.01 requires not simply ‘the issuance of the summons;’ it requires ‘the issuance of the summons in good faith. ’ ... The good faith essential for the commencement of the action has long been construed to require a contemporaneous intention on the part of the initiating party to diligently attend to the service of the summons." (emphasis in original) ). Per Combs, the initial summons, issued December 19, 2017 (DE 1-1, at 3), could not have been issued in good faith because it was directed to Combs at the KDFW headquarters in Frankfort, Kentucky. DE 9-1, at 7–8. The Complaint, Defendant notes, explicitly alleged that Combs was a Harlan County resident. DE 1-1, at 4 ("The Defendant ... is believed by the Plaintiff to be a resident of Harlan County, Kentucky.").

Similarly, Combs contends the March 29, 2018, generic federal summons, stating that Defendant's "Specific Address [was then] undetermined" also failed to commence the action for limitations purposes. DE 8 (Summons).⁵ Consequently, Defendant argues that the claims arising out of the December 21, 2016, arrest are time barred.

Estep contends that the initial summons "was issued with the address of the main office ... with the good faith belief that the Defendant ... would be notified by his supervisory office of attempted certified mail service so that he could elect to receive the mailing and be...