MICHAEL RAY SMITH v. KEVIN NESBITT; RICHARD BOTTOMS; WILLIAM BILL STEVENS; CINDY CORCORAN; AND ANN LAMB
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RENDERED: October 31, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000331-MR
MICHAEL RAY SMITH
v.
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 02-CI-00464
KEVIN NESBITT; RICHARD BOTTOMS;
WILLIAM BILL STEVENS; CINDY
CORCORAN; AND ANN LAMB1
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
1
DYCHE, GUIDUGLI AND McANULTY, JUDGES.
We note that the circuit court clerk treated a pro se “Brief for PlaintiffAppellant” Smith filed on February 14, 2003, as the notice of appeal in this
case and that Smith did not file an actual notice of appeal in which he
listed each appellee pursuant to CR 73.03. In the caption of his document
treated as the notice of appeal, he denominated “Kevin Nesbitt et al.” as the
Defendants-Appellees, but nowhere in the caption or in the body of the
“brief” did he indicate who was included in the “et al.” portion. However,
we have reviewed the record and because we recognize that Smith is proceeding
without counsel, we shall treat the five individuals Smith listed in his
complaint as the appellees only for purposes of this appeal.
GUIDUGLI, JUDGE.
Michael Ray Smith (hereinafter “Smith”),
proceeding pro se, has appealed from the Boyle Circuit Court’s
January 16, 2003, Opinion and Order dismissing his complaint for
damages against a Commonwealth’s Attorney, an Assistant
Commonwealth’s Attorney, and Assistant County Attorney, a
detective and a child support worker (hereinafter, collectively
“defendants” or “appellees”).
The main issue below and before
this Court is whether immunity barred Smith’s claim.
Having
reviewed the parties’ briefs, the record, and the applicable
case law, and having concluded that Smith’s claim is barred, we
affirm.
On November 1, 2002, Smith filed a complaint in the
Boyle Circuit Court alleging malicious prosecution, a violation
of his civil rights, and false arrest.
He named five defendants
in both their individual and official capacities:
Kevin
Nesbitt, an Assistant County Attorney; Richard Bottoms, an
Assistant Commonwealth’s Attorney; William Bill Stevens, the
Commonwealth’s Attorney; Cindy Corcoran, a detective; and Ann
Lamb, a child support worker.
He demanded $25,000 in damages
from each defendant in his or her individual capacity, and
$13,000,000 in damages from each defendant in his or her
official capacity.
In the complaint, he offered to accept an
out-of-court settlement within ten days for $8,000,000 from the
defendants in their official capacities and for $5000 from the
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defendants in their individual capacities.
Smith then filed his
first motion requesting the circuit court to enter a judgment in
his favor on November 11, 2002, and filed similar motions on
November 27 and December 5, 2002.
Smith then filed an amended
complaint on January 3, 2003, alleging malpractice and
professional misconduct charges against Bottoms.
In this
amended complaint, Smith also included a notice that Judge
Peckler should recuse himself from the presiding over the suit
due to his bias and conflict of interest as Smith had filed a
judicial complaint against him.2
The basis of Smith’s present suit is that he was
maliciously prosecuted on a charge of flagrant nonsupport.
On
May 7, 1999, Boyle District Court Judge Darren W. Peckler
entered a Judgment establishing that Smith was the natural
father of Precious R. Coulter, and ordered Smith to pay $32.83
per week in child support for the months that Peggy Coulter,
Precious’s mother (hereinafter “Coulter”), received AFDC
benefits, to reimburse the Commonwealth for medical expenses
incurred for her prenatal and delivery costs, and to pay for the
cost of the blood test that established paternity.
At Coulter’s
request, Smith would not need to pay any current child support
once the AFDC benefits were terminated as she and Smith were
2
In documents attached to the amended complaint, Smith likens his suit to one
filed by a former Boyle County jail employee who had sued the county over his
firing and settled his case for $75,000.
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living together and sharing childcare responsibilities.
Coulter
was to notify the Boyle County Attorney’s Office when her AFDC
benefits terminated and when she and Smith were no longer living
together.
On May 30, 2001, the Boyle County Grand Jury indicted
Smith on one count of flagrant nonsupport when he failed to
provide support for his minor child, Precious.
The matter
proceeded to trial on January 28, 2002, where the Boyle Circuit
Court3 entered a directed verdict of acquittal, ruling that the
Commonwealth failed to establish a case of flagrant nonsupport
occurring after the entry of the 1999 judgment.
Judge Peckler
indicated that Smith should have been charged with contempt in a
civil suit in order to collect the unpaid arrearages and fees,
but not with a criminal prosecution.
It is from this action
that Smith alleged his malicious prosecution claim arose.
On November 25, 2002, the defendants filed a joint
motion to dismiss Smith’s complaint, arguing that the doctrine
of sovereign immunity acted to bar suits against them in their
official capacities.
Furthermore, the prosecutors named in the
complaint were absolutely protected by quasi-judicial immunity.
As to Corcoran and Lamb, the defendants asserted that Smith
failed to state a claim against them upon which relief could be
granted.
In any event, both Corcoran and Lamb would have
qualified immunity from suit, and the prosecutors would also
3
Judge Peckler was the presiding judge in this circuit court criminal action,
and is also the presiding judge in the present civil action.
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have qualified immunity for any non-prosecutorial actions they
might have taken.
Lastly, the defendants argued that Smith
could not establish a malicious prosecution action against them
because there was probable cause to justify taking the case to
the grand jury.
On January 16, 2003, the circuit court entered an
Opinion and Order dismissing Smith’s case as follows:
This matter having come before the
Court January 8, 2003[,] on the defendants’
motion to dismiss, and the Court having
heard argument of counsel and being
otherwise sufficiently advised, the Court
finds and orders as follows:
FACTS
On May 7, 1999[,] a judgment was
entered in Boyle District Court, Case No.
98-J-00196, providing that Michael Ray
Smith’s current obligation to pay child
support would terminate once AFDC benefits
being paid to the custodial parent of Mr.
Smith’s child terminated, and would resume
if AFDC benefits began again. Benefits
continued to be paid to the custodial parent
for the child until August 1999, then
resumed in October 1999 through July 2000,
and were paid again from March 2001 until
June 2001. The Cabinet for Families and
Children [has] no record of Mr. Smith having
ever paid child support (affidavit of Julia
A. Jones).
Michael Ray Smith was prosecuted in the
court for flagrant non support in case no.
01-CR-00057, which was dismissed with
prejudice January 29, 2002. Mr. Smith filed
this suit against the Commonwealth’s
Attorney Richard Bottoms, Assistant
Commonwealth’s Attorney William Bill
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Stevens, Cindy Corcoran, an employee of the
Commonwealth Attorney’s office, Assistant
County Attorney Kevin Nesbitt, and Ann Lamb,
a former employee of the Boyle County
Attorney’s Office. Mr. Smith’s suit alleges
malicious prosecution, false arrest and
violation of his civil rights. Mr. Smith’s
allegation is based on his claiming that he
notified the defendants that he was living
with his child and her mother and they were
sharing child care responsibilities, but
that the defendants prosecuted him anyway.
Mr. Smith also alleges Kevin Nesbitt
maliciously prosecuted him in a child
support case before Boyle District Court.
Mr. Smith seeks monetary damages against the
defendants in both their individual and
official capacities.
OPINION
I.
OFFICIAL CAPACITY SUITS ARE BARRED BY
SOVEREIGN IMMUNITY.
Mr. Smith’s suit against the defendants
in their official capacities must be
dismissed because it is barred by sovereign
immunity. “The absolute immunity from suit
afforded to the state also extends to public
officials sued in their representative
(official) capacities, when the state is the
real party against which relief in such
cases is sought.” Yanero v. Davis, Ky., 65
S.W.3d 510, 518 (2001).
II.
SUIT AGAINST THE PROSECUTORS IS BARRED
BY ABSOLUTE QUASI-JUDICIAL IMMUNITY.
Mr. Smith’s suit against Kevin Nesbitt,
Richard Bottoms and William Bill Stevens is
barred by absolute quasi-judicial immunity
and must also be dismissed. “[S]o long as a
prosecutor acts within the scope of the
duties imposed by law, quasi-judicial
immunity is available, but otherwise it is
not.” McCollum v. Garrett, Ky., 880 S.W.2d
530, 434 (1994).
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It is clearly within a prosecutor’s
scope of duties to present evidence to a
grand jury, to prosecute an indicted
criminal defendant and to prosecute contempt
charges. Mr. Smith’s arrest on a warrant
issued by this court was pursuant to his
indictment by the grand jury; since the
prosecutors have absolute quasi-judicial
immunity for presenting the case to the
grand jury, they are also absolutely immune
for any consequences of that indictment,
such as Mr. Smith’s arrest. Because all of
the acts Mr. Smith alleges Kevin Nesbitt,
Richard Bottoms and William Bill Stevens
engaged in are within the scope of their
prosecutorial duties, the suit against them
is barred and Mr. Smith cannot recover
monetary damages against them.
III. CORCORAN AND LAMB ARE PROTECTED BY
ABSOLUTE QUASI-JUDICIAL IMMUNITY.
Corcoran, an employee of the
Commonwealth’s Attorney, and Ann Lamb, who
was an employee of the Boyle County
Attorney, are also protected by quasijudicial immunity, thus Mr. Smith’s suit
against them must also be dismissed. In
Horn v. Commonwealth of Kentucky, Ky., 916
S.W.2d 173 (1996), a court designated worker
acting within the scope of her employment
under the direction of a judge of the court
was held to be protected by quasi-judicial
immunity. Id. at 176. Similarly, Corcoran
and Lamb were acting within the scope of
their employment under the direction of the
Commonwealth’s Attorney and the Boyle County
Attorney, respectively, thus they are also
protected by the same quasi-judicial
immunity the prosecutors enjoy.
IV.
THE DEFENDANTS HAVE QUALIFIED IMMUNITY.
Even if the defendants did not have
absolute quasi-judicial immunity, they would
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be protected by qualified immunity,
requiring dismissal of Mr. Smith’s suit.
[W]hen sued in their individual
capacities, public officers and
employees enjoy only qualified
official immunity, which affords
protection from damages liability
for good faith judgment calls made
in a legally uncertain
environment. Qualified official
immunity applies to the negligent
performance by a public officer or
employee of (1) discretionary acts
or functions, i.e., those
involving the exercise of
discretion or judgment, or
personal deliberation, decision,
and judgment; (2) in good faith;
and (3) within the scope of the
employee’s authority.
Yanero, supra at 522 (Citations omitted).
When engaged in a discretionary
function, public officers and employees are
immune from suit for mere negligence; the
plaintiff must show bad faith on the part of
the public official or employee:
Thus, in the context of qualified
official immunity, “bad faith” can
be predicated on a violation of a
constitutional, statutory, or
other clearly established right
which a person in the public
employee’s position presumptively
would have known was afforded to a
person in the plaintiff’s
position, i.e., objective
unreasonableness; or if the
officer or employee willfully or
maliciously intended to harm the
plaintiff or acted with a corrupt
motive.
Id. at 523.
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Simply because Mr. Smith was acquitted
of the charge against him does not prove the
defendants maliciously prosecuted him. The
defendants only needed sufficient evidence
to establish probable cause to believe a
crime had been committed to justify taking
the case to the grand jury, whereas a
conviction requires proof beyond a
reasonable doubt. The record shows that
after Mr. Smith was ordered on May 07 1999
to repay the AFDC benefits, such benefits
continued to be paid to the custodial parent
for the care of his child. During this
entire period of time there is no record
that Mr. Smith paid any child support.
KRS 530.050(2) provides in part as
follows:
A person is guilty of
flagrant nonsupport when he
persistently fails to provide
support which he can reasonably
provide and which he knows he has
a duty to provide by virtue of a
court or administrative order to a
minor . . . and the failure
results in: . . . (c) The
dependent having been placed in
destitute circumstances. For the
purposes of this paragraph, it
shall be prima facie evidence that
dependent has been placed in
destitute circumstances if the
dependent is a recipient of public
assistance as defined in KRS
205.010.
Mr. Smith knew from the May 7, 1999[,]
order of the Boyle District Court that he
had a duty to provide support, the dependent
child continued to receive public assistance
after May 7, 1999, and Mr. Smith did not
make any payments to the Cabinet for
Families and Children to reimburse the
public assistance being paid for the child.
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This is clearly sufficient grounds to
establish probable cause to believe Mr.
Smith committed the felony of flagrant
nonsupport, even through he was acquitted at
trial.
In regards to the Boyle District Court
case, the May 7, 1999[,] order requires Mr.
Smith to repay the public assistance
benefits which had been paid for the
dependent child up to that date, and medical
expenses incurred for prenatal and birthing
expenses for his child. Mr. Smith has
failed to do so, fully justifying Kevin
Nesbitt in proceeding with contempt charges
against him, even without considering the
fact that Mr. Smith has failed to reimburse
the Cabinet for Families and Children for
public assistance paid since May 7, 1999.
The defendants have not violated a
clearly established right, nor is there any
evidence that they acted with a corrupt
motive. Thus they have qualified immunity
from suit for monetary damages.
ORDER
It is hereby ordered that this matter
is DISMISSED WITH PREJUDICE.
This appeal followed.
On appeal, Smith argues that Judge Peckler should have
recused himself due to his conflict of interest and his
prejudice against Smith.
Furthermore, he asserts that the
appellees should not be protected by any type of immunity and
that he is entitled to compensation because he could not have
committed the crime of flagrant nonsupport.
On the other hand,
the appellees continue to argue as they did below that each of
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them is protected by a form of immunity, either absolute or
qualified.
For purposes of this appeal, we shall presume that the
defendants made their motion to dismiss pursuant to CR 12.02(a)
and (f), for lack of subject matter jurisdiction and for failure
to state a claim upon which relief could be granted.
The
Kentucky Supreme Court addressed the treatment to be afforded to
such motions to dismiss as follows:
The defendants moved to dismiss the
complaint “because it fails to state a cause
of action or a claim against these
defendants upon which relief can be
granted.” CR 12.02(6). For the purpose of
testing the sufficiency of the complaint the
pleading must not be construed against the
pleader and the allegations must be accepted
as true. “(The) court should not dismiss
unless it appears the plaintiff would not be
entitled to relief under any state of facts
which could be proved in support of his
claim.” Ewell v. Central City, Ky., 340
S.W.2d 479 (1960); Heuer v. Loop, 198 F.
Supp. 546 (1961) D.C.Ind. Since the
adoption of the civil rules liberality and
simplicity in pleadings is the style in
Kentucky. Johnson v. Coleman, Ky., 288
S.W.2d 348 (1956). Only a concise statement
of facts is required (CR 8.01) because the
“complaint need only give fair notice of a
cause of action and the relief sought.”
Security Trust Co. v. Dabney, Ky., 372
S.W.2d 401 (1963); 6 Kentucky Practice,
Clay, 128.
Pike v. George, Ky., 434 S.W.2d 626, 627 (1968).
v. Scroggy, Ky.App., 725 S.W.2d 867 (1987).
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See also Gall
Even with the allegations in Smith’s complaint
accepted as true, Smith could not have prevailed under any
circumstance.
Immunity protected each of the defendants, as the
circuit court properly held in its Opinion and Order.
Because
the circuit court sufficiently addressed and correctly ruled on
this issue, there is no need for this Court to address the issue
any further, other than to hold that the circuit court did not
commit any error in dismissing Smith’s claim.
As to the issue regarding recusal, Smith apparently
never made a formal motion for Judge Peckler to voluntarily
recuse himself, and never made a formal request with the
Kentucky Supreme Court to disqualify Judge Peckler.
In any
event, there is no ruling in the record for this Court to
review.
We note, as an aside, that the “notices” Smith made
regarding Judge Peckler’s bias and prejudice were more in the
nature of settlement demands, because any mention Smith made of
recusal was coupled with a demand that the defendants settle the
case for a sum of money by a particular date.
For the foregoing reasons, the Boyle Circuit Court’s
January 16, 2003, Opinion and Order is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael R. Smith
Danville, KY
Stuart W. Cobb
Assistant Attorney General
Frankfort, KY
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