                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0921n.06

                                        Case No. 13-6565                               FILED
                                                                                 Dec 11, 2014
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


DAX R. WOMACK,                                        )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE WESTERN
MATT CONLEY, Kentucky State Police, In his            )        DISTRICT OF KENTUCKY
Individual and Official Capacity; STEPHANIE           )
CONLEY, Department for Community Based                )
Services, In her Individual and Official Capacity;    )
CONNIE KNIGHT, Individually and as an Agent           )                             OPINION
of the Kentucky State Police; ROBERT                  )
SCHOULTZ, Kentucky State Police, In his               )
Individual and Official Capacity; JASON KIRK,         )
Kentucky State Police, In his Individual and          )
Official Capacity; SCOTT INGRAM, Daviess              )
County Sheriff’s Dept., In his Individual and         )
Official Capacity; DAVID CRAFTON,                     )
Henderson Co. Sheriff’s Dept., In his Individual      )
and Official Capacity,                                )
                                                      )
       Defendants-Appellees.                          )

BEFORE:        COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges.

       COLE, Chief Judge.       Dax Womack sued police officer Matt Conley and six other

defendants for allegedly framing Womack for buying drugs. Womack claims that the defendants

conspired to plant drugs on him during a sting operation and used that false evidence as a basis to

search his office, arrest him, and then prosecute him while withholding exculpatory evidence and
Case No. 13-6565
Womack v. Conley

falsely testifying during his criminal proceedings. Womack was ultimately acquitted of the

criminal charges and then brought this civil suit alleging that the defendants’ conduct violated

various federal and state laws, including: 42 U.S.C. § 1983 (“Section 1983”) for civil conspiracy,

supervisory liability, and the violation of his Fourth, Fifth, and Fourteenth Amendment rights, as

well as Kentucky state law claims for malicious prosecution and defamation. The district court

granted summary judgment to all defendants on all counts, and Womack now appeals. For the

reasons set forth below, we affirm.

                                      I. BACKGROUND

A. Factual Background

       Plaintiff Dax Womack is a criminal defense attorney who has brought various claims

related to an alleged conspiracy to frame him for the illegal purchase of prescription drugs.

There are seven defendants in this case. Kentucky state police officer Matt Conley led the

investigation against Womack and arrested him along with Deputy Scott Ingram of the Daviess

County Sheriff’s Department. Also integral to the investigation and arrest was Connie Knight, a

confidential informant who allegedly sold drugs to Womack and was present during his arrest.

Captain Robert Shoultz and Sergeant Jason Kirk were Matt Conley’s supervisors during the

investigation and, according to Womack, participated in the conspiracy by meeting repeatedly

with Matt Conley to plan and discuss his investigation.        Deputy David Crafton was Matt

Conley’s point of contact with the Henderson County Sheriff’s Department. Finally, Womack

has also brought a defamation claim against Matt Conley’s wife, Stephanie Conley, for filing a

bar complaint against him and discussing the contents of that complaint with others at her place

of work. Womack and Matt Conley crossed paths several times in the years prior to Womack’s




                                              -2-
Case No. 13-6565
Womack v. Conley

arrest, and Womack maintains that because of those interactions Matt Conley and his wife

harbored a grudge against him, motivating the Conleys’ alleged conspiracy to discredit him.

       Womack was representing Knight’s son in early 2011.            Knight repeatedly came to

Womack’s law office to discuss her son’s case. At some point Womack allegedly suggested that

she could secure leniency for her son by purchasing drugs as an informant for the police. Knight

brought illegally acquired prescription drugs to Womack’s office on at least one occasion, even

though Womack never actually made arrangements with the police to use Knight as an

informant. Womack threw the drugs away and maintains that he never told her to bring them to

his office, while Knight alleges that Womack threw them away because they were not the kind of

drugs that he wanted.

       Matt Conley became aware of these events after an informant told the local police that

Womack was purchasing drugs from Knight. Matt Conley’s supervisors Shoultz and Kirk placed

him in charge of a Kentucky state police investigation after he interviewed Knight about

Womack’s alleged drug activities. Matt Conley contacted Crafton several times throughout the

investigation, supposedly to determine whether Womack was actually negotiating drug

purchases with Crafton’s department in an effort to secure a reduced sentence for Knight’s son.

After confirming that Womack was not working with the police, Matt Conley and Kirk set up a

“reverse buy” operation (in which a confidential informant sells drugs to the target of an

investigation) with the permission of Shoultz and the assistance of Knight.        Matt Conley

ultimately gave Knight $300 in cash for her role in this operation.

       Knight met Womack in his office on April 8, 2010 while wearing audio and visual

recording devices with which Matt Conley had equipped her. At the meeting they discussed her

son’s case as well as the possibility of Knight helping to reduce her son’s sentence by buying


                                               -3-
Case No. 13-6565
Womack v. Conley

drugs as an informant for the police. Shortly after the initial meeting Womack called Knight

back to his office and gave her $50 in cash and permission to drop something off through the

mail slot in his door later that evening. Womack maintains that he gave her that money so that

she would stop pestering him about her son’s case, and that he was not paying full attention

when he told her that she could put something through his mail slot but simply wanted to avoid

dealing with her in person again. In any event, that evening Knight attempted to call Womack

approximately eighteen times to set up another meeting.

       The next day, Ingram joined Matt Conley and together they wired Knight with audio and

visual recording devices and provided her with drugs for the reverse buy. Knight then drove to

Womack’s law office while Matt Conley and Ingram followed in their own vehicle. Knight met

with Womack in his office where they briefly discussed her son’s case before Matt Conley called

Knight on her mobile phone. Shortly after the call ended, Matt Conley and Ingram entered the

office and peacefully arrested Womack after retrieving the drugs from his desk.

       The parties disagree about how the drugs came to be in (or on) Womack’s desk.

Womack denies that he ever accepted drugs from Knight, saying that she threw the bag onto his

desk when he was not paying attention after she recieved the call from Matt Conley who,

Womack infers, must have instructed her to do so over the phone. Knight initially contended

that she gave the bag of drugs to Womack who then placed them in his desk drawer before she

received the call from Matt Conley. On appeal, Knight has simplified her account, stating only

that she “delivered the drugs by placing them on Mr. Womack’s desk,” without any mention of

whether he then put them in a drawer. Ingram and Matt Conley both testified that Womack

removed the drugs from his middle desk drawer after they entered his office, while Womack

maintains that the bag was lying on top of his desk. The audio and visual recordings of the


                                              -4-
Case No. 13-6565
Womack v. Conley

alleged drug transaction are not clear, though both Womack and the defendants claim that careful

examination of these recordings will support their own versions of events.

       Sometime after Womack’s arrest, Matt Conley’s wife, Stephanie Conley (a social

worker) filed a bar complaint against Womack alleging misconduct towards some of her clients.

Before filing the complaint she showed it to her supervisor in the presence of one of her

coworkers. The bar complaint was later dismissed.

B. Procedural Background

       Two charges were initially brought against Womack: possession of a controlled

substance in the first degree and possession of a prescription drug not in a proper container. The

prosecutor added six additional charges (allegedly at Matt Conley’s behest) shortly after

Womack issued a subpoena to Stephanie Conley in an unrelated matter.                 At Womack’s

preliminary hearing on May 18, 2010, Knight, Ingram, and Matt Conley all gave testimony

consistent with their version of the events as described above. Based on his own eyewitness

account, Womack asserted that they testified falsely about how the drugs came to be on his desk

and where they were found during the arrest. When asked whether Knight received anything in

return for her assistance with the investigation, Matt Conley testified that she did not, despite the

fact that he actually had paid her $300. He later tried to explain this omission in his deposition

by indicating that he was not familiar with the term “exculpatory evidence,” had never been

instructed that he must “give up exculpatory evidence,” and that in any event he did not believe

that paying an informant for her assistance in an investigation is a fact that should be disclosed to

the defendant. At the conclusion of the preliminary hearing, the court found probable cause for

the two original charges against Womack and dismissed the other six that had been added later.




                                                -5-
Case No. 13-6565
Womack v. Conley

       A grand jury indicted Womack on September 22, 2010. Matt Conley testified before the

grand jury, and again he denied knowing if Knight had received anything in return for her

assistance with the investigation. Matt Conley also denied having any personal animosity

towards Womack, which Womack maintains was false. Womack presented testimony that

Knight planted the drugs on his desk. At trial, the jury acquitted Womack.

       Womack filed this suit on April 1, 2011, alleging numerous federal and state law

violations against each defendant. After dismissing a host of claims, the district court narrowed

the case to the following causes of action against each defendant:

    1) Section 1983: civil conspiracy against all defendants except Stephanie Conley.

    2) Section 1983: unreasonable search and seizure against Knight,1 Ingram, and Matt

       Conley for entering Womack’s office and then arresting him without probable

       cause in violation of the Fourth Amendment.

    3) Section 1983: concealing exculpatory evidence against Shoultz, Kirk, and Matt

       Conley for, among other things, failing to disclose that Matt Conley had paid

       Knight for her assistance with the investigation.

    4) Section 1983: supervisory liability against Shoultz and Kirk for failing to properly

       train Matt Conley to disclose exculpatory evidence.

    5) Malicious prosecution under Kentucky state law against Matt Conley.

    6) Defamation under Kentucky state law against Stephanie Conley for filing a bar

       complaint against Womack and showing it to at least two others.




1
 The district court found that Knight was acting under the color of state law for the purposes of
Section 1983 liability due to her participation in the Womack investigation, and she does not
dispute this on appeal.
                                               -6-
Case No. 13-6565
Womack v. Conley

       The district court granted all of the defendants’ motions for summary judgment on all

counts. First, the district court held that the evidence taken as a whole did not support an

inference of conspiracy, so it granted summary judgment to all defendants on Womack’s Section

1983 civil conspiracy claim. Next the district court found that there was probable cause to

believe that Womack had committed a crime, compelling judgment against Womack on his

claims for unreasonable search and seizure and withholding exculpatory evidence under Section

1983 and malicious prosecution under Kentucky state law. Turning to Womack’s Section 1983

supervisory liability claim against Shoultz and Kirk, the district court granted summary judgment

because, though they failed to train Matt Conley properly in his obligation to disclose

exculpatory evidence, that failure did not result in a violation of Womack’s constitutional rights.

Finally, the district court also granted summary judgment to Stephanie Conley on Womack’s

defamation claim, finding that she had an absolute privilege to file her bar complaint and that

that privilege extended to her discussion with her supervisor and a coworker because that

discussion was necessary for her to file the privileged complaint. Womack now appeals.

                                         II. ANALYSIS

       “We review a district court’s grant of summary judgment de novo.” Guyan Int’l, Inc. v.

Prof’l Benefits Adm’rs, Inc., 689 F.3d 793, 797 (6th Cir. 2012) (citation omitted). Summary

judgment is proper if there are no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). In determining whether the defendants

met their burden in moving for summary judgment, we view the evidence in the light most

favorable to Womack and draw all reasonable inferences in his favor. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).




                                               -7-
Case No. 13-6565
Womack v. Conley

    A. Section 1983 Civil Conspiracy

        Womack first challenges the district court’s grant of summary judgment against him on

his Section 1983 civil conspiracy claim. The standard for proving a civil conspiracy in this

circuit is as follows:

        A civil conspiracy is an agreement between two or more persons to injure another
        by unlawful action. Express agreement among all the conspirators is not
        necessary to find the existence of a civil conspiracy. Each conspirator need not
        have known all of the details of the illegal plan or all of the participants involved.
        All that must be shown is that there was a single plan, that the alleged
        coconspirator shared in the general conspiratorial objective, and that an overt act
        was committed in furtherance of the conspiracy that caused injury to the
        complainant.

Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985) (citation omitted). The elements of a civil

conspiracy under Section 1983 are “that (1) a single plan existed, (2) the conspirators shared a

conspiratorial objective to deprive the plaintiffs of their constitutional rights, and (3) an overt act

was committed.” Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). Because direct evidence

of conspiracy is rarely available, it is enough to produce circumstantial evidence sufficient to

reasonably infer the existence of a conspiracy. See Spadafore v. Gardner, 330 F.3d 849, 854

(6th Cir. 2003) (citation omitted).

        Womack contends that he has produced sufficient circumstantial evidence to raise a

reasonable inference of a conspiracy, including: (1) that there is a disputed issue of material fact

concerning how the drugs came to be on his desk, (2) that Matt Conley and the other police

defendants appear to have disregarded several Kentucky state police regulations in the course of

investigating Womack, (3) that Matt Conley concealed the fact that he paid Knight for her

assistance as a confidential informant, and (4) that the six charges dismissed at the preliminary

hearing were added to Womack’s indictment shortly after he subpoenaed Stephanie Conley.

Because these pieces of circumstantial evidence are just as consistent with a legitimate police

                                                 -8-
Case No. 13-6565
Womack v. Conley

investigation as with a conspiracy, we find that the district court did not err in holding that the

evidence is insufficient to support an inference of conspiracy. See Hensley v. Gassman, 693 F.3d

681, 695 (6th Cir. 2012) (holding that the circumstantial evidence presented failed to establish

the existence of a conspiracy because the defendants’ “conduct [was] just as consistent with

independent conduct as it [was] with a conspiracy”).

       While the disputed accounts of the drugs’ placement in Womack’s office may be a

genuine dispute of fact, that fact is not material to the outcome of this case. The events leading

up to the meeting in Womack’s office are entirely consistent with a legitimate police

investigation culminating in a reverse buy operation in which Knight would deliver drugs to him.

Whether she actually delivered the drugs to Womack by handing them to him or by tossing them

onto his desk does not cast the legitimacy of the investigation into doubt.

       Womack’s other circumstantial evidence similarly fails to support an inference of

conspiracy. He points out that Matt Conley and the other defendants did not abide by several

Kentucky state police regulations during the course of the reverse buy operation. Most of these

infractions appear to be technicalities, such as permitting Knight to drive to the operation without

a driver’s license. While such procedural irregularities may support an inference of sloppy

police work, Womack has not provided any logical bridge from a failure to observe proper

procedures to a conspiracy to frame him. So too with the fact that Matt Conley neglected to

mention that he had paid Knight when asked about her compensation during Womack’s criminal

proceedings.    Matt Conley’s lack of candor does not raise an inference that the entire

investigation was actually a conspiracy. Finally, even if Matt Conley influenced the prosecutor

to add six charges to Womack’s indictment due to some sort of personal animus, this does not




                                               -9-
Case No. 13-6565
Womack v. Conley

raise the inference of conspiracy because it “is just as consistent with independent conduct as it is

with a conspiracy.” See Hensley, 693 F.3d at 695.

       In sum, we affirm the grant of summary judgment against Womack on his Section 1983

civil conspiracy claims because all of the evidence, both direct and circumstantial, is consistent

with a legitimate police investigation and therefore does not support an inference of conspiracy.

   B. Probable Cause

       Womack next challenges the district court’s finding of probable cause in its grant of

summary judgment on a number of his claims, including his Section 1983 claims for

unreasonable search and seizure and withholding exculpatory evidence and his Kentucky state

law claim for malicious prosecution. We affirm the district court’s judgment on these claims

because there is more than enough evidence to support the district court’s finding of probable

cause. Several undisputed facts could support a reasonable belief that Womack had committed

or would commit the offense by buying drugs, including that: (1) Womack paid Knight $50

while telling her how she should deliver something to him shortly after they discussed the

possibility of her purchasing drugs for him; (2) Womack discussed the possibility of buying

drugs from Knight and there is no evidence to substantiate his claim that he was doing so on

behalf of the police; and (3) Knight testified that she had previously sold drugs to Womack.

Taken together, these facts are sufficient to affirm the district court’s finding of probable cause.

   C. Section 1983 Supervisory Liability

       Womack argues that the district court erred in granting summary judgment to Shoultz and

Kirk on his Section 1983 claim for supervisory liability because they participated in the

constitutional violations against him. “[A] prerequisite of supervisory liability under § 1983 is

unconstitutional conduct by a subordinate of the supervisor.” McQueen v. Beecher Cmty. Schs.,


                                                - 10 -
Case No. 13-6565
Womack v. Conley

433 F.3d 460, 470 (6th Cir. 2006). As discussed in the preceding sections, Womack cannot

establish that any of the defendants violated his constitutional rights, so neither can he show that

Shoultz or Kirk participated in a violation. Furthermore, any exculpatory evidence Matt Conley

withheld that may have been caused by a failure to train —most notably his payment to Knight—

was harmless because that evidence would not alter the finding of probable cause or otherwise

amount to a constitutional violation. We therefore affirm the district court’s grant of summary

judgment against Womack on his Section 1983 claim of supervisory liability.

   D. Defamation

       Womack has brought a Kentucky state law defamation claim against Stephanie Conley

for filing a frivolous bar complaint against him and for discussing the allegedly defamatory

contents of that complaint with her supervisor in the presence of another coworker prior to filing

the complaint. The district court granted summary judgment to Stephanie Conley on the grounds

that she had an absolute privilege to file her bar complaint and that the privilege extended to her

discussion with her supervisor and a coworker because that discussion was necessary for her to

file the privileged complaint. Womack does not dispute that Stephanie Conley had an absolute

privilege to file her bar complaint against him, a privilege recognized by the Kentucky Supreme

Court in Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 605 (Ky. 2011)

(“Accordingly, we hold today that any communication or statement made to the [Kentucky Bar

Association] during the course of a disciplinary hearing or investigation, including the contents

of the bar complaint initiating such proceedings, are absolutely privileged.”).

       In General Electric Co. v. Sargent & Lundy, 912 F.2d 1119, 1127 (6th Cir. 1990), we

held that Kentucky’s absolute privilege for communications during a judicial proceeding also

extends to communications preliminary to that proceeding. The Kentucky Supreme Court’s


                                               - 11 -
Case No. 13-6565
Womack v. Conley

holding in Morgan specifically applied Sargent & Lundy to extend Kentucky’s judicial

statements privilege to bar complaints. See 348 S.W.3d at 602. Morgan held that “any statement

made preliminary to, in the institution of, or during the course of an attorney disciplinary

proceeding will be privileged so long as it is material, pertinent, and relevant to such

proceeding.” Id.

       Womack questions whether Stephanie Conley’s discussion of the bar complaint with her

supervisor in the presence of a coworker was material, pertinent, and relevant to the proceeding

because he says that she “had no purpose in sharing this information aside from defaming

Womack.” But in her deposition Stephanie Conley testified that she showed her bar complaint to

her supervisor only because it mentioned her employment as a social worker and she wanted to

make sure that her supervisor knew what she was doing “in case there was an issue with a social

worker filing a complaint.” She also denied discussing the contents of her bar complaint in the

presence of her coworker. It appears that Stephanie Conley discussed her bar complaint with

others only to the extent she believed that showing that complaint to her supervisor was a

necessary preamble to filing it. Because statements that are reasonably believed to be necessary

to the filing of an attorney disciplinary proceeding would ordinarily qualify for absolute

immunity under Morgan as “material, pertinent, and relevant to such proceeding,” we affirm the

district court’s grant of summary judgment to Stephanie Conley on Womack’s defamation claim

against her.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s judgment.




                                              - 12 -
