Carter V Newby
The following Background section is taken from Carter's Complaint, the veracity of which is assumed for purposes of a Rule 12(b)(6) motion, as explained below. This case arises out of a criminal investigation and, later, a criminal prosecution in Christian County, Kentucky, which spanned from the 1990s into the 2010s. In September of 1994, Carter was a police officer in the town of Oak Grove, which is located in Christian County, Kentucky. [R. 1 at 3 (Carter Complaint).] At that time, he was also employed part-time as the custodian of the New Life Massage Parlor ("the Parlor"). [Id.] According to Carter, the Parlor was actually a front for a prostitution business. [Id.] Carter alleges that the Parlor was run with certain policies and procedures, including a sign-in sheet. [Id. at 4.]
According to Carter, at approximately 2:00 A.M. on September 20, 1994, Carter left the Parlor, followed by the departure of three of the five employees one hour later. [Id.] Two employees remained alone in the building. [Id.] At approximately 3:45 A.M., the three Parlor employees returned to find the two employees who stayed behind shot and stabbed. [Id.] Both victims perished from their injuries. [Id.] After finding the two victims, the employees called the police. [Id.] Carter was called to the scene with his canine unit. [Id.] Carter alleges that "as the lead investigators had allowed approximately 30 individuals to enter the crime scene prior to [Carter]'s arrival, [Carter] never received any orders to utilize his canine unit in the investigation." [Id.] A few months after the homicide occurred, the Christian County Sheriff's Department took over the investigation with assistance from the Federal Bureau of Investigation. [Id. at 5.] Carter states that no charges were filed in relation to this investigation. [Id.]
In 2006, the case, still unsolved, was transferred to the Kentucky State Police. [Id.] The case was assigned to Newby. [Id.] In November 2013, Newby secured an indictment in Christian County against Carter and two other individuals after testifying before a grand jury there. [Id.] Carter's Complaint alleges that Newby made "materially false statements and/or omissions . . . with reckless disregard for the truth" while testifying before the grand jury. [Id.] These statements, according to Carter, include but are not limited to the following:
Newby testified that he interviewed Tammy Papler [an owner of the massage parlor] who said it was common knowledge that Ed Carter was wanting to take over the massage parlor business. That statement is false. In addition, there was no written statement from Newby regarding an interview of Tammy Papler.
Newby testified, 'My opinion is he went there, too. He saw the girls leave, contacted Mr. Black, said there's two left in there.' This statement is false and/or made with a reckless disregard for the truth. There was no evidence of Carter seeing girls leave the massage parlor, no evidence that Carter contacted Mr. Black, and no evidence as to what statement Carter made to Mr. Black on the fabricated phone call.
Newby testified that Carter's then wife, Carol, made statements that when Carter got home that night he was washing clothes which she thought was very odd. Carol's interview with the [FBI] makes no mention of Carter washing clothes that night or that Carol thought that washing clothes was odd. Newby never interviewed Carol.
Newby testified that Carter and his co-defendant Duncan had been roommates less than a year before the murders. This statement was false. Carter and Duncan had not lived together, at the latest . . . over two years prior to the homicides . . ..
Newby testified about a completely unrelated disappearance that had occurred in Oak Grove in 1992, and testified that Carter was the canine officer assigned to that case. That statement is false because Carter did not even become a canine officer until . . . over two years later.
[Id. at 5-6.] Carter further alleges:
In his profoundly shoddy investigation of the deaths, Defendant Newby failed to interview or collect any evidence from several customers of the massage parlor who were listed on the parlor's sign-in sheet, failed to pursue multiple viable alternate suspects of the murder, and failed to perform or have performed relevant DNA analysis of genetic material found in the mouth, anus, vagina, and fingernails of the deceased victims, despite the fact that the DNA collected did not match the Plaintiff or either of his criminal co-defendants.
[Id. at 6.] Carter was "incarcerated from November 24, 2013, through September 14, 2016, when he was acquitted of all charges by jury trial." [Id. at 6.] Carter brought claims against Newby (1) for malicious prosecution under 42 U.S.C. 1983 and under Kentucky common law, and (2) for violations of procedural and substantive due process under the Fourteenth Amendment to the United States Constitution. [Id. at 7-8.] Newby filed the instant Motion pursuant to Rule 12(b)(6) to dismiss all of Carter's claims against him. [R. 8.]
For the foregoing reasons, IT IS HEREBY ORDERED: Newby's Motion to Dismiss, [R. 8], is DENIED as it pertains to Carter's malicious prosecution claims under Count I of the Complaint and GRANTED as it pertains to Carter's due process claims under Count II of the Complaint. A Telephonic Scheduling Conference is set for July 23, 2018 at 2:00 P.M. Court shall place the call.
IT IS SO ORDERED.
Thomas B. Russell, Senior Judge
United States District Court cc: Counsel of Record
July 13, 2018
***Newby got a promotion to Major , after the false testimony listed above.
***Newby allegedly has complaints pending, including but limited to excessive force.
***4/24/20 Newby allegedly pulled over a car for speeding ( speed is disputed, no radar submitted). Newby allegedly told diver she had until his tow truck came to get insurance. Woman called ins. ( recorded) and attempted to get coverage updated. Newby played games and would not give back the needed paperwork to finish the coverage. Woman was distraught pleading with Newby asking " why are you doing this to me". He demanded her to get out of the car ( while she was still on the phone finishing). She was FULLY compliant as Newby escalated. While on the PUBLIC easement Newby began giving unlawful orders for her to move. In Newby's statement, he was trying to " protect her as SHE was walking into oncoming traffic" (*not true view video). As she complied with the unlawful order ( hands up while holding paperwork and a phone) Newby began to push and pull on her disabled arm, at times in the opposite direction of his order, at times his body blocking her movement to the ordered direction. She pulled away and yelled at him to get off her. This imo enraged the officer and she was instantly tackled to the ground. Newbys right-hand man Goulet watching and appeared to smile as Newby escalated (As he began to go hands-on/ tackle, view video). Newby allegedly put his hand over her mouth as she screamed. Woman was charged with disorderly conduct, when a plea was refused Felony Assult on an officer was added. Newby alleged he was bitten. Photo evidence imo does not show a bite but an abrasion. This " bite" was referred to in reports as an abrasion. Under oath, Newby testified he does NOT remember feeling pain at the moment he was " bit". His stories seem to change as he is easily confused and irritated when questioned under oath ( imo) reference video and testimony. There is also a video of possible witness intimidation in the case above. Stalking through the department, also in video Newby is seen driving past womans work and waving at her within days of her FOIA and complaints filed by an attorney in her civil rights case. Deputies have also been reported sitting outside of her house, a speed trap or plate reader was temporarily placed on her road ( small rd that one would find it unusual to see this). Woman, in this case, is a disabled single mother who does not even have the strength in her arm to resist. Never been in trouble and holding a stable job. Watching the video you can see Newby pulling her by her arm and causing extreme pain. The woman had multiple abrasions, swelling and cuts due to being tackled " to save her life". Viewing the video It does not seem the woman is walking into the road, It also appears Newby was pulling her bad arm back down towards himself in the opposite direction he instructed her to go, confusing, and escalating the situation. https://www.facebook.com/576858493/videos/pcb.10157655114578494/10157655108758494/
***DISCLAIMER ALL COMMENTS ABOVE ARE NOT INTENDED TO BE VIEWED AS FACT. ALL COMMENTS ARE ALLEGED AND OR OUTSIDE OPINION, PLEASE REFERENCE VIDEO, FOIA, AND COURT RECORDS. WILL UPDATE OFFICIAL FOIA OF NEWBYS HISTORY AND DISCIPLINARY RECORDS***