Opinion
Civil Action No. 3:04CV-151-R.
April 7, 2005
MEMORANDUM OPINION
This matter is before the court on Defendants' Motions for Summary Judgment (Dkt. Nos. 21 22). Plaintiff has responded (Dkt. # 29). The Defendants have replied (Dkt. Nos. 32 33). For the reasons that follow, Defendants' Motions for Summary Judgment are GRANTED.
BACKGROUND
Plaintiff Joseph Bielefeld brought this 42 U.S.C. § 1983 action against Janet Haines, Brian Haines, Louisville Metro Police Department, and Carolyn Nunn. On December 19, 2003, Mr. Bielefeld alleged in his complaint the torts of malicious prosecution, false arrest, outrage, and slander. On February 5, 2004, in his first amended complaint, Mr. Bielefeld alleged violations of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, § 1983, § 1985, the Civil Rights Act of 1991, and Kentucky Revised Statutes § 344. On June 30, 2004, in the second amended complaint, Mr. Bielefeld alleged slander against Ms. Haines in addition to the previous claim against Mr. Haines.On May 23, 2002, the Jefferson County Grand Jury indicted Mr. Bielefeld on one count of Sexual Abuse in the First Degree by subjecting D.H., a person less than twelve years of age, to sexual contact in violation of Ky. Rev. Stat. § 510.110(1)(b)(ii). Later that day, Carolyn Nunn and two other officers arrested Mr. Bielefeld at his office.
Mr. Haines rented office space from Mr. Bielefeld. Sometimes, Mr. Haines would bring his two sons down to his office. Mr. Bielefeld had an office near Mr. Haines's office in the same building. When Mr. Haines's children would come to his office, they often went to Mr. Bielefeld's office as well. Mr. Bielefeld had toys in his office and he also had a computer that he let children use when they visited him. While using the computer, the children sat on Mr. Bielefeld's lap. Mr. Bielefeld claims that he kept his door open when children visited.
On May 9, 2002, Mrs. Haines was thinking about taking her children to her husband's office for a while. She asked her five year old son D.H. if Mr. Bielefeld had ever done anything weird. Then she asked D.H. if Mr. Bielefeld had ever played with D.H.'s butt. D.H. responded, "No, but he touched my pee-pee." Mrs. Haines called her husband Mr. Haines, told him about what D.H. said, and asked him to come home. When Mr. Haines got home, he put D.H. on his lap like Mr. Bielefeld allegedly did and either Mr. or Mrs. Haines asked D.H. if Mr. Bielefeld touched his belly. The child again told his parents that Mr. Bielefeld touched his "pee-pee" by placing his hand on the child's penis over the child's clothes. After this disclosure, Mrs. Haines, who is a detective with the Louisville Metro Crimes Against Children Sexual Abuse unit, called one of the sergeants in the department to report the abuse. Mr. and Mrs. Haines claim that they had no further involvement in the investigation, arrest, or decision to prosecute except as parents of the allegedly abused child.
D.H. was interviewed by Valleri Mason, a forensic interviewer at Children's First, and D.H. repeated his allegation that Mr. Bielefeld had touched his "pee-pee." D.H.'s allegations were investigated by Detective Nunn. After the investigation concluded, Detective Nunn testified about D.H.'s forensic interview to the grand jury. The grand jury indicted Mr. Bielefeld on one count of sexual abuse, and he was arrested by Detective Nunn and two other officers. At Mr. Bielefeld's criminal trial, the judge gave him a directed verdict and dismissed the charges.
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 (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. Finally, while Kentucky state law is applicable to this case pursuant to Erie Railroad v. Tompkins, 304 U.S. 64 (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., Inc., Ky., 807 S.W.2d 476 (1991)." Gafford v. General Electric Co., 997 F.2d 150, 165 (6th Cir. 1993).
DISCUSSION
Employment Law
Mr. Bielefeld alleges violations of Title VII of the Civil Rights Act of 1964, section 703, et seq.; Civil Rights Act of 1991; and Kentucky Revised Statutes § 344 but these sections apply to employment discrimination actions. 42 U.S.C. § 1981; 42 U.S.C. § 2000e, et seq.; Ky. Rev. Stat. § 344 (employment and housing discrimination). This is not an employment or housing discrimination action and Mr. Bielefeld has not alleged any facts supporting an employment or housing discrimination action. Therefore, these claims must be dismissed.
Section 1985
Mr. Bielefeld also alleges a cause of action under § 1985. In a recent case, the Sixth Circuit Court of Appeals has explained what must be shown to state a 42 U.S.C. § 1985(3) claim:
Section 1985(3) prohibits a conspiracy "for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws." 42 U.S.C. § 1985. To prevail on a § 1985(3) claim, one must prove "`(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities of the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.'" Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (quoting United Bhd. of Carpenters Joiners v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 77 L.Ed.2d 1049 (1983)). Moreover, the Supreme Court has stated that "[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities, means there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed.2d 338 (1971).Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005). Mr. Bielefeld has not alleged any racial or class-based discrimination. Therefore, his cause of action under § 1985 must be dismissed.
Claims based on probable cause
A. Fourteenth Amendment
Mr. Bielefeld alleges claims for false arrest, malicious prosecution, and Fourteenth Amendment violations. It is unclear whether Mr. Bielefeld is alleging a state law malicious prosecution claim or claim under § 1983. Originally, Mr. Bielefeld filed this action in Jefferson Circuit Court claiming malicious prosecution. Then, in an amended complaint, Mr. Bielefeld alleged an unspecified § 1983 claim, prompting the Defendants to remove this case to this court. This court will examine Mr. Bielefeld's claims for malicious prosecution and false arrest under both state law and § 1983. "Indeed, [the Sixth Circuit Court of Appeals] has made clear that `the label which a plaintiff applies to a pleading does not determine the nature of the cause of action which he states.'" Minger v. Green, 239 F.3d 793, 799 (6th Cir. 2001).
Initially, this court must determine whether Mr. Bielefeld has a cause of action under the Fourteenth Amendment. In Albright v. Oliver, 510 U.S. 266 (1994), the Petitioner claimed a right to be free of prosecution without probable cause under Fourteenth Amendment substantive due process. Albright, 510 U.S. at 271 -75 (Rehnquist, C.J., joined by O'Connor, Scalia, Ginsburg, JJ.). The Supreme Court held that the Fourth Amendment not substantive due process applied to the Petitioner's claim of prosecution without probable cause. Id. "Where a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment not the more generalized notion of substantive due process, must be the guide for analyzing these claims.'" Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). The Fourth Amendment addresses pretrial deprivations of liberty and "the accused is `not entitled to judicial oversight or review of the decision to prosecute.'" Id. at 274. Finally, in the plurality opinion of the Chief Justice, he stated that a Fourteenth Amendment substantive due process claim was not appropriate in that case and expressed no opinion on whether the Petitioner could have been successful on a Fourth Amendment claim because that claim had not been raised. Id. at 275. The Supreme Court has not clearly stated that there can be no cause of action under the Fourteenth Amendment, but the following statement is support for the view that there can be no Fourteen Amendment malicious prosecution action: "Most of the lower courts recognize some form of malicious prosecution action under § 1983. The disagreement among the courts concerns whether malicious prosecutions, standing alone, can violate the Constitution . . . In view of our disposition of this case, it is evident that substantive due process may not furnish the constitutional peg on which to hang such a `tort.'" Id. at 271 n. 4.
The Fifth Circuit Court of Appeals in an en banc opinion has interpreted Albright and explained the difference between Fourth Amendment claims and Fourteenth Amendment claims. Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir. 2003). The distinction between Fourth Amendment claims and Fourteenth Amendment claims is that Fourth Amendment claims cover pretrial actions only and Fourteenth Amendment claims cover events at trial and wrongful conviction. Id. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 313 (6th Cir. 2005) ("Radvansky argues that because he was arrested without probable cause, the Appellees deprived him of his liberty interest without adequate procedural protections . . . Radvansky's reliance on the Due Process Clause is misplaced, however, because it is the Fourth Amendment which establishes procedural protections in this part of the criminal justice area. The Supreme Court has stated that "[t]he Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the `process that is due' for seizures of persons or property in criminal cases, including the detention of suspects pending trial." Gerstein v. Pugh, 420 U.S. 103, 125 n. 27, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).") . See also Pierce v. Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir. 2004) ("The initial seizure is governed by the Fourth Amendment, Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L.Ed.2d 114 (1994), but at some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due Process Clause.") When officials use manufactured evidence and perjured testimony at trial, a violation of due process under the Fourteenth Amendment has occurred. Castellano, 352 F.3d at 958. Further, the Fifth Circuit Court of Appeals stated that due process claims have not been rejected by the principles in Albright or Parratt v. Taylor, 451 U.S. 527 (1981). Id.
Mr. Bielefeld alleges that he was arrested and prosecuted without probable cause. He does not, however, complain about anything improper in the trial phase because the criminal trial court dismissed the charges against him. Therefore, Mr. Bielefeld only complains of pretrial actions making his claims only actionable under the Fourth Amendment not the Fourteenth Amendment. Mr. Bielefeld does not have a Fourteenth Amendment action and that claim is dismissed.
"The Fourth Amendment . . . is made applicable to the states by its incorporation into the Fourteenth Amendment." Radvansky, 395 F.3d at 302.
B. State law false arrest
Mr. Bielefeld has remaining a false arrest claim, a malicious prosecution claim, and a Fourth Amendment claim. But Mr. Bielefeld does not have an actionable state law false arrest claim because a false arrest claim is only actionable "when the arrest or imprisonment is without legal authority. Where the arrest is made under authority of a valid process, the remedy is an action for malicious prosecution." Rader v. Parks, 258 S.W.2d 728, 729 (Ky. 1953). In this case, the Grand Jury indicted Mr. Bielefeld on sexual abuse charges and Mr. Bielefeld was arrested on the indictment. Therefore, the arrest was made "under authority of a valid process," and Mr. Bielefeld only has a malicious prosecution action under state law.
C. Elements of claim
Turning to Mr. Bielefeld's malicious prosecution claim under § 1983, one of the more recent Sixth Circuit Court of Appeals opinions on the issue of malicious prosecution, Thacker v. City of Columbus, 328 F.3d 244 (6th Cir. 2003), has stated that they would follow Spurlock in recognizing that a claim for malicious prosecution exists under the Fourth Amendment. Id. at 259. Further, at a minimum, to establish a malicious prosecution claim, the plaintiff must show a lack of probable cause to justify the arrest and prosecution. Id. More generally, a Fourth Amendment claim requires that warrants be issued only upon demonstrating probable cause. Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003). Likewise," [i]n order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police lacked probable cause." Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002) (citing Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999)).
The Sixth Circuit Court of Appeals has issued some conflicting opinions on the issue of malicious prosecution. See Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001); Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001); Spurlock v. Satterfield, 167 F.3d 995 (6th Cir. 1999).
A plaintiff seeking to recover under Kentucky law for malicious prosecution must prove the following six elements:
(1) the institution or continuation of judicial, administrative or disciplinary proceedings,
(2) by, or at the behest of, the defendant,
(3) the termination of such proceedings in plaintiff's favor,
(4) malice in the institution of such proceeding,
(5) a lack of probable cause for the proceeding, and
(6) damages.Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). Because public policy favors the exposure of crime, malicious prosecution actions are disfavored in Kentucky. Puckett v. Clark, 410 S.W.2d 154, 157 (Ky. 1966). For this reason, the prerequisites for maintaining the action are "strict." Raine, 621 S.W.2d at 899.
D. Defenses
1. Grand jury indictment
Defendants raise several defenses to a Fourth Amendment, § 1983 false arrest or malicious prosecution action: 1) probable cause was established by the grand jury and/or D.H.'s eyewitness account; 2) defendants did not initiate the proceedings; 3) Ms. Nunn is entitled to qualified immunity. First, a grand jury indictment satisfies the Fourth Amendment requirement that arrest warrants must be based upon probable cause. Kalina v. Fletcher, 522 U.S. 118, 129 (1997). The general rule is that an "indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause." Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002). "[A] grand jury's decision to indict . . . will [not] shield a police officer who deliberately supplied misleading information that influenced the decision." Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988). See also Vakilian, 335 F.3d at 517 ("[I]nvestigators are entitled to rely on a judicially-secured arrest warrant as satisfactory evidence of probable cause" unless the plaintiff can show that the officer "knowingly made false statements and omissions to the judge such that but for these falsities the judge would not have issued the warrant."); Aronson v. City of Akron, 116 F.3d 804, 813 (6th Cir. 1997) (Noting that a grand jury indictment does not establish probable cause when a prosecutor knows he is asking a grand jury to take action not warranted by the facts.); Shields v. Twiss, 389 F.3d 142, 150 (5th Cir. 2004) ("This circuit has held, however, that once `facts supporting an arrest are placed before an independent intermediary such as a . . . grand jury, the intermediary's decision breaks the chain of causation' for these constitutional violations. Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994) (citing Wheeler v. Cosden Oil Chem. Co., 744 F.2d 1131, 1132 (5th Cir. 1984)). Nevertheless, these claims may be maintained if the plaintiff affirmatively shows that `the deliberations of that intermediary were in some way tainted by the actions of the defendants.'"). "If police officers have been instrumental in the plaintiff's continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him. They cannot hide behind the officials whom they have defrauded." Jones, 856 F.2d at 994.
The grand jury indictment will shield the defendants from liability unless the testimony given to the grand jury was false or the prosecutor knew the action was not warranted by the facts. First, Mr. Bielefeld appears to be making inconsistent arguments about whether Detective Nunn testified falsely to the grand jury. In one part of his brief, he alleges that the victim testified at trial that Mr. Bielefeld only touched him once, one of the reports said "lots of times," but Detective Nunn gave a specific number of 10 to 15 times. Further, Mr. Bielefeld alleges that Detective Nunn's statement that he "rubs" the child's penis is not in any of the other reports either, but instead the reports stated that Mr. Bielefeld put his hand on top of the victim's penis over his clothes. In contrast, in another part of the brief, Mr. Bielefeld seems to be indicating that he is not alleging that Detective Nunn committed perjury: "In Echovalian [sic] v. Shaw, et al., 333 [sic] F.3d 509 (6th Cir. 2003), there was perjury within the Grand Jury which caused the arrest of the Plaintiff. In Cooke [sic] v. Carroll County, 876 F.2d 1238 (6th Cir. 1989), the issue was whether or not the search was conducted with probable cause. Both of the cases do not apply." If Mr. Bielefeld is not alleging that Detective Nunn testified falsely or with reckless disregard for the truth, then she is entitled to rely on the grand jury indictment as a finding of probable cause. If there was probable cause, Mr. Bielefeld has no claim for malicious prosecution under state or federal law, for § 1983 false arrest, or for a violation of the Fourth Amendment.
This case as cited by Mr. Bielefeld does not exist although Mr. Bielefeld appears to be referencing Vakilian v. Shaw, 335 F.3d 509 (6th Cir. 2003).
The proper citation for this case is Yancey v. Carroll County, 876 F.2d 1238 (6th Cir. 1989).
"Probable cause necessary to justify an arrest is defined as `whether at that moment the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense.'" Radvansky, 395 F.3d at 302 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). "Of course, `[p]robable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.'" Crockett v. Cumberland College, 316 F.3d 571, 582 (6th Cir. 2003) (quoting Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921, 32 L.Ed.2d 612 (1972)). Mr Bielefeld was charged with Ky. Rev. Stat. § 510.110 (1)(b)(2): "(1) A person is guilty of sexual abuse in the first degree when: (b) He subjects another person to sexual contact who is incapable of consent because he: 2. Is less than twelve (12) years old." "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party." Ky. Rev. Stat. § 510.010 (7).
In this case, D.H. had told his parents and the forensic interviewer Ms. Mason that Mr. Bielefeld had touched his penis by putting his hand over D.H.'s penis through D.H.'s clothes. In Ms. Mason's report, she states that D.H. told her that Mr. Bielefeld had done it lots of times. At Mr. Bielefeld's trial, D.H. stated that Mr. Bielefeld had only touched him once. In Detective Nunn's grand jury testimony and in Ms. Mason's notes, they report that D.H. told them that Mr. Bielefeld bounces his legs up and down. During the trial, the prosecutor argued that Mr. Bielefeld's leg bouncing was evidence supporting sexual gratification on the part of Mr. Bielefeld. Detective Nunn's grand jury testimony differs from the reports in two ways: 1) Detective Nunn said that D.H. describes Mr. Bielefeld's action as a "rubbing up and down motion" rather than just touching and 2) Detective Nunn said 10 to 15 times instead of "lots of times."
In order to overcome the presumption of probable cause given to an indictment, Mr. Bielefeld must show that Detective Nunn, the only person to testify before the grand jury, deliberately lied to the grand jury or showed a reckless disregard for the truth. Mr. Bielefeld has not presented any evidence that Detective Nunn knowingly told a falsehood or recklessly disregarded the truth. Further, Mr. Bielefeld cannot show that the prosecutor knew the action was not warranted by the facts because there was evidence that Mr. Bielefeld touched D.H. Detective Nunn's statements are very close to the other statements within the reports and there is no indication that her actions were deliberate or reckless. Mr. Bielefeld was indicted on one count of sexual abuse even though Ms. Mason's notes indicated lots of times and Detective Nunn testified that the abuse happened 10 to 15 times. Further, contact is needed in this case and touching would be sufficient to satisfy the contact element. While Detective Nunn testified that Mr. Bielefeld rubbed D.H. rather than the touching listed in the reports, touching was all that was necessary to constitute "contact." No one not even Mr. Bielefeld disputes that the touching occurred. Mr. Bielefeld successfully defended his criminal charge by alleging that the touching was inadvertent and not for the purposes of sexual gratification, i.e., not "sexual contact."
2. Eyewitness Identification
Mr. Bielefeld argues that because he received a directed verdict in his criminal trial that the absence of probable cause may be inferred. "[T]he absence of probable cause is never presumed [in a malicious prosecution action] and must always be shown affirmatively." Cravens v. Long, 257 S.W.2d 548, 549 (Ky. 1953) (citing Stearns Coal Co. v. Johnson, 37 S.W.2d 38 (Ky. 1931); Hendrie v. Perkins, 42 S.W.2d 502 (Ky. 1931)). See also Puckett v. Clark, 410 S.W.2d 154, 157 (Ky. 1966) ("[A] plaintiff has the burden of making a clear showing of no probable cause."); Massey v. McKinley, 690 S.W.2d 131, 133-34 (Ky.Ct.App. 1985). There is a difference between the level of proof required to show probable cause and to find a person guilty beyond a reasonable doubt at trial. "[W]hile officers must show more than mere suspicion, the probable cause requirement does not require that they possess evidence sufficient to establish a prima facie case at trial, much less evidence sufficient to establish guilt beyond a reasonable doubt." United States v. Strickland, 144 F.3d 412, 416 (6th Cir. 1998). The fact that Mr. Bielefeld received a directed verdict does not show that there was no probable cause to arrest him because probable cause does not rise to the level of even a prima facie case at trial.
Mr. Bielefeld cannot show that there was a lack of probable cause because D.H. disclosed that Mr. Bielefeld touched D.H.'s penis. "An eyewitness identification will constitute sufficient probable cause `unless, at the time of the arrest, there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation.'" Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (also finding that the victim's accusation of sexual assault was sufficient to establish probable cause). In this case, this court has D.H.'s eyewitness account that Mr. Bielefeld touched him, and there is no reason to doubt his account. D.H.'s account is sufficient to establish probable cause.
Mr. Bielefeld cannot show a lack of probable cause for two reasons: 1) he has not proven that this court should set aside the grand jury's indictment and finding of probable cause due to misconduct of Detective Nunn or the prosecutor; and 2) probable cause was established by D.H.'s eyewitness testimony. Therefore, on either of these two bases, this court finds that Mr. Bielefeld has not shown that he was arrested and/or prosecuted without probable cause. Therefore, Mr. Bielefeld's claims against all defendants on the causes of action of malicious prosecution and false arrest under state and federal law and the Fourth Amendment violation are dismissed.
3. Initiating the prosecution
For the sake of completeness, this court will also analyze two arguments of the defendants: 1) they did not initiate the prosecution and 2) they are entitled to qualified immunity. Detective Nunn and Mr. and Mrs. Haines argue that they did not initiate the prosecution; therefore, they are not liable in an action for malicious prosecution. They have presented affidavits stating that the prosecutor Christie Floyd made the decision to initiate the prosecution after receiving all of the evidence.
Mrs. Haines is a detective. This court finds that she once she learned of the alleged abuse she reported it to the police and maintained her role as a parent. In contrast, Mr. Bielefeld argues that Mrs. Haines maintained a role as a detective. Even if Mr. Bielefeld was correct, Mrs. Haines would be entitled to qualified immunity because it has not been clearly established that participation in the investigation of your own child's sexual abuse violates a constitutional right of Mr. Bielefeld.
In Skousen v. Brighton High School, 305 F.3d 520, 529 (6th Cir. 2002), the Sixth Circuit Court of Appeals held that a person could not be held liable for malicious prosecution when he did not make the decision to prosecute and was not even consulted about the decision to prosecute. Mr. and Mrs. Haines testified that after they reported the abuse that they had no role in deciding whether the case should be prosecuted. Likewise, Detective Haines argues that she presented the case to the prosecutor who made the decision to prosecute.
Mr. Bielefeld has not presented any evidence to refute the affidavits or the testimony. In this case, Mr. and Mrs. Haines had no choice but to report the suspected abuse because Ky. Rev. Stat. § 620.030 requires that abuse of a child must be reported. After making the required report, there is no evidence that Mr. and Mrs. Haines initiated or encouraged the prosecution. Mr. Bielefeld's only allegation is that Mrs. Haines's questioning of her son was improper. Mrs. Haines asked if Mr. Bielefeld "played with [D.H.'s] butt," which Mr. Bielefeld argues is a leading and suggestive question. The question would be leading if Ms. Haines had said to the child, "Mr. Bielefeld touches your butt, doesn't he?" This question could be considered a suggestive one if D.H. had made allegations of Mr. Bielefeld touching his butt, but D.H. instead answered the question by saying no and saying that Mr. Bielefeld had "touched his pee-pee." D.H.'s response was not suggested by the question. Mrs. Haines did nothing improper in asking if anything "weird" was going on with Mr. Bielefeld. This court cannot say that a parent should never question the child to make sure the child is safe when left alone with another adult or that the parent should never be suspicious. Mr. Bielefeld has not presented evidence that the Haineses initiated or encouraged the prosecution beyond mandatory reporting. Further, Mr. Bielefeld has not shown that Detective Nunn, rather than the prosecutor, initiated the prosecution. Therefore, Mr. Bielefeld cannot satisfy the element of a state law malicious prosecution claim that requires him to show that the defendants initiated the prosecution. Therefore, this holding is an alternative ground for dismissing the malicious prosecution action.
4. Qualified Immunity
In a qualified immunity analysis this court must make a three-step determination: "(i) `whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred;' (ii) `whether the violation involved a clearly established constitutional right of which a reasonable person would have known;' and (iii) `whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.'" Radvansky, 395 F.3d at 302. In this case, the court has previously stated that there was no constitutional violation because Mr. Bielefeld's arrest and prosecution was supported by probable cause.
The qualified immunity analysis is similar under state law, Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001). This court will not perform a lengthy analysis of state law qualified immunity because it is a similar analysis. Detective Nunn, however, would also be entitled to state law immunity.
To the extent that Mr. Bielefeld has a Fourth Amendment claim against Detective Nunn for her alleged inaccurate statements to the grand jury, he must overcome her qualified immunity. "To overcome an officer's entitlement to qualified immunity, however, a plaintiff must establish: (1) a substantial showing that the defendant stated a deliberate falsehood or showed reckless disregard for the truth and (2) that the allegedly false or omitted information was material to the finding of probable cause." Vakilian, 335 F.3d at 517. The false statements are material to the finding of probable cause if the judge would not have found probable cause without them. Id. at 518. In the context of qualified immunity and probable case, the Second Circuit Court of Appeals examined whether there would be probable cause even if the omitted information had been disclosed. Smith v. Edwards, 175 F.3d 99, 106 (2d. Cir. 1999) (holding that even if the omitted information had been included, it would not have been material to the finding of probable cause).
Mr. Bielefeld's claim may be foreclosed by his statement in his response that Vakilian does not apply to this case.
This court above stated that Mr. Bielefeld has not shown a deliberate falsehood or a reckless disregard for the truth. Even without Detective Nunn's statements that the abuse happened 10 to 15 times and that Mr. Bielefeld rubbed rather than touched D.H., the grand jury still had enough information to find probable cause and indict Mr. Bielefeld for one count of sexual abuse based on touching.
Mr. Bielefeld lists things that Detective Nunn did not disclose to the grand jury: no other child interviewed made a specific allegation against Mr. Bielefeld; D.H. was in his office at most 20 minutes at a time; Mr. Bielefeld never told D.H. to keep anything secret; D.H.'s behavior did change; Mr. Bielefeld had never changed clothes while D.H. was there; and D.H.'s mother was a detective and colleague of Detective Nunn. None of these facts directly refute D.H.'s disclosure that Mr. Bielefeld touched him. Even if all of this information had been included, the grand jury could have found probable cause based on Detective Nunn's testimony that D.H. disclosed that Mr. Bielefeld touched him. Therefore, Detective Nunn is also entitled to qualified immunity on a Fourth Amendment, malicious prosecution, or false arrest claim, which are all claims where lack of probable cause must be shown.
Mr. Bielefeld fails to note that one of the children indicated sexual abuse but would not disclose any details or name the abuser.
Slander
In the December 24, 2003, complaint, Mr. Bielefeld alleged that Mr. Haines slandered him by "alleging that Plaintiff sexually molested D.H." In the second amended complaint on August 25, 2004, Mr. Bielefeld alleged that Mrs. Haines slandered him by stating: "The old man that Brian rents from has been messing with the boys . . ." The Haineses argue that Mr. Bielefeld's claim of slander is barred by the statute of limitations. The Haineses have presented evidence that statements were allegedly made about two weeks after May 23, 2002. Kentucky's statute of limitation for slander is one year. Ky. Rev. Stat. § 413.140(1)(D). Mr. Bielefeld argues that his cause of action did not accrue until after he received a directed verdict because until that point, the Haineses had a truth defense. Mr. Bielefeld cites no law for this proposition and there appears to be no authority for this in Kentucky law. In Kentucky, the statute of limitations begins to run when the slanderous statement is made, Caslin v. Gen. Elec. Co., 608 S.W.2d 69, 70 (Ky.Ct.App. 1980), not when the plaintiff discovers that the statement has been made. Lashlee v. Sumner, 570 F.2d 107, 109-110 (6th Cir. 1978). Mr. Bielefeld argues that his second amended complaint relates back to the date of the filing of the original complaint. This argument is without merit because the original complaint was filed about six months after the one year statute of limitations had run. Therefore, Mr. Bielefeld's claims of slander against Mr. and Mrs. Haines are barred by the statute of limitations.
State law claims
To the extent that a malicious prosecution or an intentional infliction of emotional distress claim relies on Detective Nunn's grand jury testimony, Mr. Bielefeld has no cause of action against Detective Nunn. In Kentucky, a witness's grand jury testimony is privileged and the only action that can be taken against the witness is a criminal action for perjury. Bryant v. Commonwealth of Ky., 490 F.2d 1273, 1274 (6th Cir. 1974). See Stone v. Glass, 35 S.W.3d 827, 828 (Ky.Ct.App. 2001) ("It has long been the established rule that a witness, even if he knowingly gives false testimony, is entitled to absolute immunity from civil damages."). See also McClarty v. Bickel, 159 S.W. 783, 784 (Ky. 1913) ("No civil action will lie against him, because it is a well-settled rule in practically all jurisdictions that the testimony of a witness given in the course of a judicial proceeding is privileged and will not support a cause of action against him.").
Mr. Bielefeld has alleged intentional infliction of emotional distress. Mr. Bielefeld must show four elements to establish intentional infliction of emotional distress: "the wrongdoer's conduct must be intentional or reckless; the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; there must be a causal connection between the wrongdoer's conduct and the emotional distress and the distress suffered must be severe." Osborne v. Payne, 31 S.W.3d 911, 913-14 (Ky. 2000). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990). Intentional infliction of emotion distress is more than "petty insults, unkind words and minor indignities" or "behavior that is cold, callous and lacking sensitivity." Osborne, 31 S.W.3d at 914. Mr. Bielefeld's only reference to intentional infliction of emotional distress in his response is that Detective Nunn's actions in arresting him and taking him through the streets of Louisville in handcuffs reached the level of outrageous conduct. Detective Nunn's conduct is not outrageous as to go beyond "all possible bounds of decency" because what Mr. Bielefeld alleges are routine actions by any police officer. Mr. Bielefeld has not presented any evidence opposing the Haineses' motion for summary judgment on this issue.
Municipal Liability
Suits against municipal officers in their official capacities are the same as suits against their municipality. See Brandon v. Holt, 469 U.S. 464 (1985). Such suits may be maintained even in the face of the Eleventh Amendment, see Monell v. Dep't of Social Services of City of New York, 436 U.S. 658 (1978), so long as the plaintiff proves the unconstitutional actions are the result of the policy or custom of the municipality. Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998) (citing Monell, 436 U.S. at 690-91 (1978)). There are five ways in which a governmental entity may be charged with an official policy or custom: (1) actions by the municipal legislative body, Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1980); (2) actions by municipal agencies or boards that exercise authority delegated by the municipal legislative body, Monell, 436 U.S. at 661; (3) a policy decision by an individual or entity with final decision-making authority, Pembaur, 475 U.S. at 483-84; (4) a policy of inadequate training or supervision, City of Canton, Ohio v. Harris, 489 U.S. 378 (1989); and (5) custom or usage, Pembaur, 475 U.S. at 481-82 n. 10.
Mr. Bielefeld alleges that "Defendant Detective Haines [sic] initial questioning, in violation of a previously established policy or in the absence of an established policy, tainted the entire investigation." Mr. Bielefeld submitted an affidavit from Jack King, a retired officer, that stated there was a policy that a police officer would not become involved in any manner when the police officer's family member was a victim of a crime. This shows Mr. Bielefeld's allegation is that there had been a policy that Ms. Haines was not following. Louisville Metro Government can be held liable for a single decision or action only if made by the legislative body because that act would be the official government policy or if directed by those who establish governmental policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). But Louisville Metro Government cannot held liable for a single decision or act made by Detective Haines because she does not establish policy. See Radvansky, 395 F.3d at 311 ("By itself, "the wrongful conduct of a single officer without any policymaking authority did not establish municipal policy.").
Louisville Metro Government cannot be held liable solely for employing a tortfeasor because it cannot be held liable on a respondeat superior theory. Mills v. City of Barbourville, 389 F.3d 568, 577 (6th Cir. 2004). Instead, "[t]here must be a direct causal link between the policy and the alleged constitutional violation such that the [municipality's] deliberate conduct can be deemed the moving force behind the violation." Radvansky, 395 F.3d at 311 Here there has been no constitutional violation because this court has found that there was probable cause to arrest and prosecute Mr. Bielefeld. Further, even if this court had found a constitutional violation, Mr. Bielefeld has not presented any proof that Louisville Metro Government was the "moving force."
CONCLUSION
Defendants' Motions for Summary Judgment are GRANTED. This case is dismissed in its entirety.