UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 24-77-DLB

PERRY LEE WHATLEY PLAINTIFF

v. MEMORANDUM ORDER

KATHLEEN LAPE, et al. DEFENDANTS

*** *** *** ***

Plaintiff Perry Whatley filed a civil rights complaint in May 2024. See (Doc. # 1). Whatley asserted a wide array of claims stemming primarily from a trio of state court criminal prosecutions against him. See id. The Court dismissed nearly all of Whatley’s claims upon initial screening in a plenary opinion. See (Doc. # 8). However, the Court stayed this action with respect to one claim. Whatley alleged that in October 2017 Covington Police Officer Douglas Ullrich fabricated evidence – “a small baggie of something,” “a cell phone,” and “some pipe with unknown residue” – and claimed to have found them in Whatley’s car. See (Doc. # 1 at 8). That evidence formed the basis for pending criminal charges against Whatley for First Degree Possession of a Controlled Substance (Methamphetamine) and Tampering with Physical Evidence. See Commonwealth v. Whatley, No. 18-CR-00035 (Kenton Cir. Ct. 2018).1 The Court did not dismiss this claim, but instead stayed this action pursuant to Younger v. Harris,

(1971), to avoid interfering with the pending criminal case. See (Doc. # 8 at 16-

1 The online docket for this case can be reviewed at https://kcoj.kycourts.net/CourtNet/Search/CaseAtAGlance?county=059&court=1&division=CI&c aseNumber=18-CR-00035&caseTypeCode=CR&client_id=0 (last visited May 28, 2025). 17, at 19, ¶ 5). The Court also ordered Whatley to file reports on the status of the criminal case every 60 days. See id. at ¶ 6.2 As noted in his most recent status report, Whatley pleaded guilty to both offenses in the state criminal case. See (Doc. # 16). The docket in Whatley, No. 18-CR-00035, shows that on May 12, 2025, Whatley was sentenced to 18 months imprisonment for each

offense, the two sentences to run consecutively to one another. See id., Judgment and Sentence on Plea of Guilty, at 2-3, entered May 19, 2025. Whatley’s recent conviction of those offenses bars the present assertion of his civil claims against Ullrich: A state prisoner’s § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration.

Wilkinson v. Dotson,

(2005). Thus, Whatley cannot now claim that Ullrich planted the evidence used to convict him of possessing methamphetamine. Unless and until his convictions are invalidated, Whatley cannot pursue civil rights claims that would impugn them. Heck v. Humphrey,

, 486–87 (1994). The Court will therefore dismiss the claims against Ullrich without prejudice. It will also enter a judgment so indicating and incorporating the Court’s prior determination of his other claims. See (Doc. # 8). Accordingly, it is ORDERED as follows: 1. The Court’s May 19, 2025, Show Cause Order (Doc. # 15) is DISCHARGED.

2 The Court recently ordered Whatley to show cause for his failure to file a status report for nearly five months. See (Doc. # 15). Unbeknownst to the Court, Whatley had mailed a status report dated May 7, 2025, which the Court received after its Order was entered. See (Doc. # 16). The Court finds the filing of that report sufficient to address the Court’s concerns, and therefore discharges the Show Cause Order. 2. Whatley’s fabrication of evidence claims against defendant Ullrich are DISMISSED without prejudice. 3. Whatley’s complaint (Doc. # 1) is DISMISSED. 4. The Court will enter a corresponding judgment. 5. This matter is STRICKEN from the docket. This 28th day of May, 2025.

eee Signed By: i 4 B® David L. Bunning DP = Chief United States District Judge

G:\Judge-DLB\DATA\ORDERS\PSO Orders\Whatley 2-24-77-DLB Memorandum.docx