DIXON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM OWSLEY CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 12-CI-00107 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; DIXON AND KRAMER, JUDGES. DIXON, JUDGE: Appellant, Deborah Creech, appeals from orders of the Owsley Circuit Court granting summary judgment in favor of Appellees, the Owsley County Commonwealth Attorney Heather Combs and Assistant Commonwealth Attorney Jeffrey Stiles, Administrative Assistant Rebekah Moore, Owsley County Sheriff Kelly Shouse and Deputy Sheriffs Michael Havicus and Jeff Reagan, Three Forks Regional Jail Authority Administrator Harvey Pelfrey, and Owsley County Jailer Robert Cope, all in their official and individual capacities, and dismissing Creech's various claims arising from her arrest and incarceration in 2011. For the reasons set forth herein, we affirm the trial court.

On April 5, 2011, the Owsley County Sheriff's Department received a call from an attendant at a local gas station reporting that a customer had just passed a counterfeit $100 bill. The attendant was able to provide a description of the male suspect, as well as the color and license plate number of his vehicle. A short time later, Sheriff Shouse and Deputies Havicus and Reagan located and stopped the vehicle, which was operated by Creech with her son, Wendell Goodman, as a passenger. Upon searching the vehicle, the officers discovered five $100 counterfeit bills and three $50 counterfeit bills in Goodman's wallet. Creech and Goodman were both arrested.

On April 20, 2011, Assistant Commonwealth Attorney Stiles presented the allegations against Creech for the charge of Complicity to Criminal Possession of a Forged Instrument to a grand jury. During the presentation of evidence, Stiles questioned Deputy Havicus about whether there was any evidence that Creech had knowledge that the bills in her son's possession were counterfeit. Havicus replied that there was not. At the close of evidence, the grand jury returned a No True Bill on the charge against Creech. Unfortunately, due to an unknown clerical error an indictment was prepared on the charge against Creech and, on May 9, 2011, she was arrested pursuant to a warrant. Creech remained in the Three Forks Regional Jail until July 14, 2011, when bail was posted.

The record indicates that at the beginning of October, a paralegal in the Commonwealth Attorney's office noticed that Creech's case was docketed for criminal motion hour and told Stiles that the grand jury had returned a No True Bill in that case. Stiles thereafter informed Commonwealth Attorney Heather Combs who directed him to immediately file a motion to dismiss the charge against Creech. On October 4, 2011, the trial court dismissed the charge on the Commonwealth's motion.

On September 25, 2012, Creech filed a complaint against Commonwealth Attorney Combs, Sheriff Shouse, Deputies Havicus and Reagan, Three Forks Regional Jail Authority Administrator Harvey Pelfrey, and Owsley County Jailer Robert Cope, all in their official and individual capacities. Therein, Creech sought compensatory and punitive damages for false imprisonment, assault and battery, intentional infliction of emotional distress and outrage, negligent infliction of emotional distress, negligent training and supervision, and malicious prosecution. Creech subsequently amended her complaint to name Stiles and Rebekah Moore (Watts), Comb's administrative assistant, in their official and individual capacities.

On June 27, 2013, the trial court, relying on Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), and Autry v. Western Kentucky University, 219 S.W.3d 713 (Ky. 2007), granted summary judgment and dismissed all claims against Combs, Stiles and Watts ("prosecutorial appellees") in their official capacities on absolute official immunity grounds. Further, the trial court dismissed the negligence claims against the same individuals on qualified immunity grounds pursuant to McCollum v. Garrett, 880 S.W.2d 530 (Ky. 1994). However, the trial court denied the motion to dismiss the claims against the prosecutorial appellees in their individual capacities for alleged intentional acts, noting that although the prosecutorial appellees claimed clerical error, Creech alleged intentional misconduct, thus creating a factual dispute that required discovery.

With respect to Shouse, Havicus, Reagan, and Cope ("law enforcement appellees"), the trial court granted the motion to dismiss Shouse in his official capacity on absolute immunity grounds for his own intentional or unintentional acts, but ruled that the office of the Owsley County Sheriff remained liable for the acts of its deputies pursuant to the legislative waiver of immunity set forth in Kentucky Revised Statutes (KRS) 70.040. As such, the motion to dismiss the claims against Havicus and Reagan in their official capacities was denied. The trial court did dismiss the claims against Jailer Cope on absolute immunity grounds. However, the trial court denied the motion to dismiss the claims against all of the law enforcement appellees in their individual capacities for alleged intentional acts because no discovery had yet been taken to ascertain the validity of the allegations. Finally, the trial court dismissed all claims against Three Forks Regional Jail Authority and Pelfrey on grounds of improper venue.

Following additional discovery, all appellees again moved for summary judgment. By order entered October 2, 2014, the trial court granted summary judgment in favor of all of the appellees and dismissed Creech's claims in their entirety. Creech thereafter appealed to this Court as a matter of right. Additional facts are set forth in the course of this opinion.

Our standard of review on appeal of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, 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 judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id.

On appeal, Creech first argues that the trial court erred by misinterpreting McCollum v. Garrett, 880 S.W.2d 530 (Ky. 1994), in ruling that the prosecutorial appellees were entitled to absolute immunity. Citing to United States Supreme Court precedent, Appellant argues that absolute immunity is not available when (1) a prosecutor acts outside the scope of his or her duties, regardless of when the act occurred, or (2) when the nature and function do not require legal knowledge or the related exercise of prosecutorial discretion. Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Van de Camp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009). Creech contends that when the prosecutorial appellees caused an indictment and arrest warrant to be prepared despite the finding of a No True Bill, they were acting outside the scope of their prosecutorial authority and would not have been entitled to absolute immunity for their actions.

In Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. App. 2001), our Supreme Court made it clear that absolute immunity extends to legislators and judges, for acts performed in their official capacities, as well as prosecutors with respect to "the initiation and pursuit of prosecutions." The Court explained,

The rationale for absolute immunity for the performance of legislative, judicial and prosecutorial functions is not to protect those individuals from liability for their own unjustifiable conduct, but to protect their offices against the deterrent effect of a threat of suit alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made. Restatement (Second) Torts, supra, § 895D cmt. c.

The trial court herein relied on the decision in McCollum v. Garrett, 880 S.W.2d 530 (Ky. 1994), wherein a county attorney was informed by two witnesses that someone passed contraband to two prisoners in the courthouse yard as they were being escorted to a court hearing. The county attorney thereafter questioned the people in the courtroom in an effort to ascertain who had passed the suspected contraband to the prisoners. Once an individual was preliminarily identified, the county attorney initiated prosecution of her by preparation of a complaint and arrest warrant. It was alleged, however, that the county attorney learned that the suspect was misidentified or at least that the witness who had named her had recanted, but he nevertheless initiated the prosecution. In considering the extent to which a public prosecutor has immunity from civil liability for malicious prosecution, our Supreme Court observed,

On the question of prosecutorial immunity for malicious prosecution, Kentucky law is well expressed in Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1981), wherein the Court of Appeals rejected a prosecutor's absolute immunity claim. Dugger was wrongfully arrested pursuant to a warrant charging him with disorderly conduct. He alleged that the prosecutor signed the judge's name to the warrant and that the prosecutor's actions constituted gross negligence, wantonness, abuse of process and collusion since Dugger's wife was then being represented in divorce litigation by the prosecutor's law partner. The court correctly recognized that a public prosecutor must have immunity when he is acting within the scope of his authority for without it, the prosecutorial function would suffer. Nevertheless, the court examined the applicable constitutional and statutory provisions and concluded that as the prosecutor had no lawful authority to sign the name of a judge to an arrest warrant, he was outside the scope of his authority and without immunity. Throughout the Dugger opinion, one encounters the concept of "scope of prosecutorial duties," or words to that effect, as defining the availability of prosecutorial immunity. The opinion is clear that so long as a prosecutor acts within the scope of the duties imposed by law, quasi-judicial immunity is available, but otherwise it is not.

A recent decision of the Supreme Court of the United States, Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), is in accord with Dugger. Relying on its recent decisions in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1992), the Supreme Court recognized that certain actions of a prosecutor were necessarily preliminary to the initiation of a prosecution, but were nonetheless protected by absolute immunity. Such acts were said to include the professional evaluation of evidence assembled and appropriate preparation for its presentation at trial or to a Grand Jury. On the other hand, Buckley is clear that absolute immunity does not follow a prosecutor in all of his actions. On those occasions when a prosecutor functions as an

administrator or investigator, prosecutorial immunity is limited to qualified immunity.

Pursuant to Kentucky Rules of Criminal Procedure (RCr) 5.14(1), the duties of a prosecutor include the presentation of allegations to the grand jury and preparation of indictments. To accept Creech's proposition that a prosecutor who mistakenly prepares an indictment acts outside the scope of that office's authority would essentially eviscerate the purpose of prosecutorial immunity. The very purpose of such immunity is designed to shield prosecutors from "a threat of a suit alleging improper motives where there has been no more than a mistake." Yanero, 65 S.W.3d at 518. We agree with the trial court's conclusion herein:

The Court sees nothing to show that the erroneous preparation of the indictment was not shielded by immunity. Upon assumption of the role as a public prosecutor, the immunity of the prosecutor becomes absolute. The argument that a mistake was made, or even that the procedures in place to rectify the mistake were reckless does not seem to dissipate the immunity that flows from being a prosecutor. This mistake was a terrible one with dire consequences, but that is not the standard for immunity. The standard for immunity for a prosecutor according to the McCollum case is the commencement of the prosecution and the prosecutor's roll in the investigation. At the time the no true bill was returned and the indictment was prepared, these

Defendants were still in their role as prosecutors the entire time.
. . . .

While the Court has great sympathy for the Plaintiff, the fact remains that these Defendants had immunity in the role as prosecutors, and although a no true bill was returned, part of their duties is to prepare indictments.

We likewise find no merit in Creech's argument that the prosecutorial appellees were not entitled to immunity for the claims asserted against them in their individual capacities. As the trial court noted in the first order granting summary judgment, the prosecutorial appellees alleged mistake in the erroneous preparation of the indictment and arrest warrant whereas Creech alleged an improper motive, creating a factual issue. Further, the trial court indicated that pursuant to McCollum, Creech had the burden of establishing some factual linkage between the prosecutorial appellees and the law enforcement appellees prior to Creech's initial arrest and the ensuing grand jury proceedings. In other words, the prosecutorial appellees were entitled to absolute immunity unless any of the challenged acts occurred during the investigation of the case, at which time they would only be entitled to qualified immunity. Creech failed to produce any such evidence and the trial court properly ruled that all of the claims against the prosecutorial appellees were barred by absolute immunity.

Creech next argues that the trial court erred in dismissing the claims against the law enforcement appellees in their individual and official capacities. Pointing out that qualified immunity only applies to discretionary acts, Creech contends that the execution of an arrest warrant is a purely ministerial function and thus not within the scope of qualified immunity. Further, Creech argues that even if the law enforcement appellees' acts at issue herein could be deemed discretionary, they would still not be entitled to immunity because they violated her constitutional rights and possibly acted with a "corrupt motive or bad faith."

In Yanero v. Davis, our Supreme Court explained,

"Official immunity" is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. . . . [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. 63C Am.Jur.2d, Public Officers and Employees, § 309 (1997). 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 and judgment, or personal deliberation, decision, and judgment, id. § 322; (2) in good faith; and (3) within the scope of the employee's authority. Id. § 309; Restatement (Second) Torts, supra, § 895D cmt. g. . . .

Conversely, an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. Franklin County v. Malone, [957 S.W.2d 195, 201 (Ky. 1997)].

Defendant Havicus was performing a ministerial duty in executing the warrant. The Court can see no obligation on Defendant Havicus at that point to disregard the Court's order because he did have an obligation to follow it, and that is one place where his duty is fixed and certain, a true ministerial duty. It would be a heavy burden on police officers to go behind the face of every indictment containing the signatures of a judge, clerk, and a foreperson, in addition to their many other duties, to see if the Grand Jury really meant to have each individual indicted. Such would be an impossible burden placed on law enforcement, and although in this instance, it would have been better for the Plaintiff, it simply is not a workable solution.

Defendant Havicus testified at the Grand Jury, and there has been no allegation of perjury; and indictment was subsequently prepared and served; and as no ministerial duty owed to Plaintiff was breached, there has simply been no negligence.

Even assuming arguendo that the law enforcement appellees' actions at issue herein could be deemed discretionary in some manner, we find no merit in Creech's unsupported allegation that they would not be entitled to immunity because they acted in bad faith. As the Yanero court explained,

[Q]ualified immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury...." Ibid. (emphasis added).

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. 63C Am.Jur.2d, Public Officers and Employees, § 333 (1997).

As noted by the trial court herein, there is no evidence of a conspiracy among the appellees to injure or deprive Creech of her constitutional rights. Creech points to nothing in the record demonstrating that the law enforcement appellees participated in any manner in the preparation of the indictment or arrest warrant, or even that they were aware a mistake had occurred. Accordingly, we are of the opinion that the trial court properly ruled that the law enforcement appellees were entitled to have all claims against them, in their official and individual capacities, dismissed.

For the reasons set forth herein, the orders of the Owsley Circuit Court granting summary judgment in favor of all of the appellees are affirmed.

ALL CONCUR. BRIEFS FOR APPELLANT: Justin S. Peterson
Lexington, Kentucky BRIEF FOR APPELLEES
SHOUSE, HAVICUS, REAGAN
AND COPE: Jonathan C. Shaw
Paintsville, Kentucky BRIEF FOR APPELLEES
COMBS, STILES, MOORE
(WATTS), AND
THE OWSLEY COUNTY
COMMONWEALTH ATTORNEY: Matt James
Assistant Attorney General
Frankfort, Kentucky