Cross v. The Metropolitan Government of Nashville and Davidson County et al
REPORT AND RECOMMENDATION: The undersigned recommends that Defendant Anderson's Motion to Stay Discovery be GRANTED. The undersigned further recommends that the instant "Motion to Renew Motion to Stay Discovery" be DENIED AS MOOT. Signed by Magistrate Judge E. Clifton Knowles on 4/23/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
JACKIE GILBERT CROSS, JR.,
THE METROPOLITAN GOVERNMENT
OF NASHVILLE AND DAVIDSON
COUNTY, et al.,
Case No. 3:12-cv-1109
Judge Campbell / Knowles
REPORT AND RECOMMENDATION
This matter is before the Court upon a “Motion to Stay Discovery” (Docket No. 9) and a
“Motion to Renew Motion to Stay Discovery” (Docket No. 38). The original Motion to Stay
Discovery was filed by the four named Defendants in this action: Metropolitan Government of
Nashville and Davidson County, Steve Anderson, William Loucks, and T. Gene Donegan.1
Although it was somewhat unclear, the “Motion to Renew Motion to Stay Discovery” appeared
to have been filed only by Defendant Steve Anderson. Docket No. 38. In a subsequent filing
(Docket No. 44), the parties stated that they “are in agreement that discovery shall proceed as to
all parties except Defendant Steve Anderson, whose participation in discovery will depend on
this Court’s resolution of his pending Motion to Renew Motion to Stay Discovery (Docket No.
38).”2 Docket No. 44, p.1.
Plaintiff has also sued John and/or Jane Does, who have not been identified.
In view of this agreement, the undersigned has recommended that the instant Motion to
Stay Discovery be DENIED AS MOOT with regard to Defendants Metro Government, William
Loucks, T. Gene Donegan, and John and/or Jane Does. Docket No. 48, p. 1-2.
The instant Motion to Stay Discovery was filed contemporaneously with a Motion to
Dismiss on behalf of the named Defendants that was based in part upon qualified immunity.
Docket Nos. 7, 8. Judge Campbell referred the instant Motion to Stay Discovery to the
undersigned for a Report and Recommendation. Docket No. 16.
Following the filing of the Motion to Dismiss and the Motion to Stay, Plaintiff has
amended his Complaint several times. His current operative Complaint is headed “Second
Amended Complaint.” Docket No. 32. Defendants have filed a Partial Motion to Dismiss the
Second Amended Complaint. Docket No. 34.
Plaintiff’s federal claims are based upon 42 USC §1983. He also raises claims under
state law. Plaintiff essentially alleges that he was the innocent victim of a criminal sting
operation conducted by the Metro Police Department and known as “Operation Death Cooker.”
Docket No. 32, p. 2. That investigation targeted illegal methamphetamine manufacture and
Plaintiff avers that he went to a Wal-Mart pharmacy on February 13, 2011, to purchase
medicine containing pseudoephedrine to treat a cold that he had. Id., p. 3. At approximately the
same time, four men who were involved in a conspiracy with Theresa Kingsmill were purchasing
pseudoephedrine from that Wal-Mart store. Id. The conspiracy involved these four men (and
others) purchasing medicines containing pseudoephedrine, which they would give to Kingsmill,
who would provide them to another suspect for the manufacture of methamphetamine. Id., p.
Plaintiff avers that he was not involved in the conspiracy, but that he was indicted
anyway, along with thirty-eight other people. Id., p. 5. He was charged with conspiracy to
manufacture methamphetamine and promoting methamphetamine manufacture. Id., p. 5-6. He
claims that probable cause did not exist for his indictment and that Defendant Loucks “made
misrepresentations and/or knowingly fabricated, manipulated, or falsified the evidence presented
to the grand jury, and/or omitted exculpating evidence, and/or ‘hid’ the lack of evidence for
criminal prosecution.” Id., p. 6.
When he learned about the indictment, Plaintiff went to the police to clear himself, but he
was arrested, jailed, and held until he posted bond. Id., p. 8. Subsequently, his employment with
Metro public schools was terminated “solely because of the indictment and the notoriety
surrounding it, including the publication of [a] press release.” Id.
On January 12, 2012, the Davidson County District Attorney dismissed the criminal
charges against Plaintiff by the entry of a nolle prosequi. Id. That same day, after the charges
were nollied, he submitted a complaint about his wrongful indictment to the Metro Police’s
Office of Professional Accountability (“OPA”). Id.
Plaintiff avers that pursuant to a custom, practice, and/or policy of Metro, Defendant
Anderson, the Chief of Police, “assigned or approved the assignment of the OPA complaint to
Defendant Donegan for investigation, despite the fact that Donegan was part of Operation Death
Cooker and thus, upon information and belief, had a role in determining against whom
indictments would be sought, including [Plaintiff].” Defendant Donegan allegedly ignored the
conduct of any other persons involved, including himself, and exonerated Loucks on the grounds
that he had obtained a “true bill” against Plaintiff. All the named Defendants “accepted as
satisfactory” Defendant Donegan’s OPA report.
In his Second Amended Complaint, Plaintiff makes only the following specific
allegations against Defendant Anderson:
50. As Chief of Police, Defendant Anderson is responsible for
supervision and operation of the Police Department and developer
of its policies and procedures. As Chief of Police, his conduct is
attributable to and representative of Metro.
51. Defendant Anderson knew or should have known that it was
improper to assign the investigation to Defendant Donegan
because Donegan was part of the Operation Death Cooker task
force that sought the indictments against [Plaintiff] and as such
Donegan would be motivated to protect himself and to exonerate
52. Defendants Metro, Anderson, and Donegan knew or should
have known that the investigation of police misconduct by a
supervising officer who participated in or supervised the conduct
complained of encourages and condones conduct that violates
53. Defendants Metro, Anderson, and Donegan, as well as
intermediary officers in the chain of command, knew or should
have known that failure to investigate or discipline officers for the
baseless pursuit of criminal charges so long as the officers are able
to obtain a criminal indictment encourages and condones conduct
that violates constitutional rights.
55. All of the Defendants knew or should have known probable
cause did not exist to pursue criminal charges against [Plaintiff].
Defendant Anderson knew or should have known this after the
OPA complaint was processed.
65. Defendants Metro, Anderson, and Donegan acting under color
of state law, unlawfully deprived [Plaintiff] of his substantive due
process right to liberty (including physical freedom as well as
reputation), and of his right to freedom from false arrest, false
imprisonment, and malicious prosecution without probable cause,
as secured by the Fourth and Fourteenth Amendments of the
Constitution of the United States, all in violation of 42 USC
Section 1983, by allowing the investigation into [Plaintiff’s] OPA
complaint to be conducted by Defendant Donegan.
66. Defendants Metro and Anderson, acting under color of state
law, were deliberately indifferent to, and caused the deprivation of
[Plaintiff’s] substantive due process right to liberty (including
physical freedom as well as reputation), and his rights to be free
from inadequate investigation, false arrest, false imprisonment, and
malicious prosecution, as secured by the substantive due process
rights secured by the Fourth and Fourteenth Amendments of the
Constitution of the United States, all in violation of 42 USC
Section 1983, by a custom, practice and policy of exonerating
misconduct so long as an officer is able to procure an indictment.
Docket No. 32, p. 9-13.
In support of the instant Motion to Stay Discovery, Defendant argues that the qualified
immunity defense is an “immunity from suit, rather than a mere defense to liability.” Mitchell v.
Forsyth, 472 US 511, 526 (1985). As the Sixth Circuit has stated, “Qualified Immunity is
intended not only to protect officials from civil damages, but just as importantly, to protect them
from the rigors of litigation itself, including the potential disruptiveness of discovery.” Everson
v. Leis, 556 F.3d 484, 491 (6th Cir. 2009). Thus, “questions of qualified immunity should be
resolved ‘at the earliest possible stage in the litigation,’ or else the ‘driving force’ behind the
immunity - avoiding unwarranted discovery and other litigation costs - will be defeated.’” Id. at
492, citing Pearson v. Callahan, 555 US 223, 231 (2009).
Additionally, the U.S. Supreme Court has stated:
Once a defendant pleads a defense of qualified immunity, “[o]n
summary judgment, the judge appropriately may determine, not
only the currently applicable law, but whether that law was clearly
established at the time an action occurred. . . . Until this threshold
immunity question is resolved, discovery should not be allowed.”
Siegert v. Gilley, 500 US 226, 231 (1991)(citation omitted).
Moreover, “When the defense of qualified immunity is raised, it is the plaintiff’s burden
to prove that the state officials are not entitled to qualified immunity.” Ciminillo v. Streicher,
434 F.3d 461, 466 (6th Cir. 2006).
Defendant Anderson further argues that this Court has previously stayed discovery in
cases where individual defendants raise the qualified immunity defense in a Motion to Dismiss.
See Arnold v. Metro Govt, et al., 3:09-163, Docket No. 9; Heney v. Metro Govt, et al., 3:090847, Docket No. 46; Kovach v. Metro Nashville Public Schools, et al., 3:09-0886, Docket No.
Plaintiff has filed a Response in Opposition to the Motion to Stay. Docket No. 22. Much
of Plaintiff’s argument relates more to the Motion to Dismiss than to the Motion to Stay.
Plaintiff argues that Defendants are not entitled to qualified immunity, thus discovery should not
be stayed. Plaintiff argues that qualified immunity is inappropriate in the face of a factual
dispute, although Plaintiff presents no factual dispute with regard to any of the actions or
inactions of Defendant Anderson. Plaintiff’s main argument appears to be that someone
(apparently Detective Loucks) must have wrongfully testified before the grand jury because
Plaintiff was not guilty, yet he was indicted anyway.
As discussed above, Plaintiff focuses on two areas with regard to Defendant Anderson:
(1) deprivation of Plaintiff’s substantive due process right “by custom, practice and policy of
exonerating misconduct so long as an officer is able to procure an indictment”; and (2) depriving
Plaintiff of his substantive due process right “by allowing the investigation into [Plaintiff’s] OPA
complaint to be conducted by Defendant Donegan.”
As discussed above, it is appropriate for the Court to address the qualified immunity
issue before the Motion to Stay is decided. The current Motion to Dismiss, which raises
qualified immunity, however, is pending before Judge Campbell, not before the undersigned.
The undersigned obviously does not wish to address an issue that is pending before Judge
Campbell. But part of Plaintiff’s argument is that Defendant Anderson is not entitled to
qualified immunity and, therefore, there is no basis to stay discovery, and part of Defendant
Anderson’s argument is that he is entitled to qualified immunity and, therefore, he is entitled to a
stay of discovery. The undersigned believes that it is necessary to touch upon matters that could
pertain to the Motion to Dismiss in connection with the Motion to Stay, but nothing discussed
herein should be construed as expressing any opinion as to what Judge Campbell may or may not
With regard to Plaintiff’s first claim, he provides no facts to support the proposition that
there exists “a custom, practice and policy of exonerating misconduct so long as an officer is
able to procure an indictment.” Moreover, Plaintiff offers no facts to support the proposition
that, even if there is such a custom, practice and policy, Defendant Anderson had anything to do
with it. The Supreme Court has made it clear that “[p]roof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell [v. Dept. of Soc. Servs.,
436 US 658 (1978)], unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policy maker.”
City of Oklahoma v. Tuttle, 471 US 808, 823-24 (1985).
Plaintiff’s second argument is that Defendant Anderson deprived Plaintiff of his
substantive due process right to liberty “by allowing the investigation into [Plaintiff’s] OPA
complaint to be conducted by Defendant Donegan.” Once again, the Court cannot accept
Plaintiff’s argument. As discussed above, Plaintiff admits that the indictment was nollied before
Plaintiff filed his OPA complaint. Any damages suffered by Plaintiff necessarily occurred as a
result of the alleged wrongful indictment, not because of a “wrongful” OPA investigation.
Plaintiff does not even attempt to aver that he suffered damages as a result of the OPA
investigation. Moreover, the OPA investigation had nothing to do with depriving Plaintiff of any
constitutional or federal or state rights.
Thus, Plaintiff cannot show that Defendant Anderson violated any of his constitutional
The above discussion raises serious doubts as to whether Plaintiff has stated a claim
against Defendant Anderson. In a case involving a claim of qualified immunity, the Court must
be mindful of the directives of the Supreme Court in Ashcroft v. Iqbal, 556 US 662 (2009). The
Iqbal Court stated:
Respondent next implies that our construction of Rule 8 should be
tempered where, as here, the Court of Appeals has “instructed the
District Court to cabin discovery in such a way as to preserve”
petitioners’ defense of qualified immunity “as much as possible in
anticipation of a summary judgment motion.” . . . We have held,
however, that the question presented by a motion to dismiss a
complaint for insufficient pleadings does not turn on the controls
placed upon the discovery process. Twombly, supra, at 559 (“It is
no answer to say that a claim just shy of a plausible entitlement to
relief can, if groundless, be weeded out early in the discovery
process through careful case management given the common
lament that the success of judicial supervision in checking
discovery abuse has been on the modest side.”)(internal quotation
marks and citations omitted)).
Our rejection of the careful-case-management approach is
especially important in suits where Government-official
defendants are entitled to assert the defense of qualified immunity.
The basic thrust of the qualified-immunity doctrine is to free
officials from the concerns of litigation, including “avoidance of
disruptive discovery.” . . . There are serious and legitimate reasons
for this. If a Government official is to devote time to his or her
duties, and to the formulation of sound and responsible policies, it
is counterproductive to require the substantial diversion that is
attendant to participating in litigation and making informed
decisions as to how it should proceed. Litigation, though
necessary to ensure that officials comply with the law, exacts
heavy costs in terms of efficiency and expenditure of valuable time
and resources that might otherwise be directed to the proper
execution of the work of the Government.
We decline respondent’s invitation to relax the pleading
requirements on the ground that the Court of Appeals promises
petitioners minimally intrusive discovery. That promise provides
especially cold comfort in this pleading context, where we are
impelled to give real content to the concept of qualified immunity
for high-level officials who must be neither deterred nor detracted
from the vigorous performance of their duties. Because
respondent’s complaint is deficient under Rule 8, he is not entitled
to discovery, cabined or otherwise.
556 US at 684-86.
For the foregoing reasons, the undersigned recommends that Defendant Anderson’s
Motion to Stay Discovery be GRANTED. The undersigned further recommends that the instant
“Motion to Renew Motion to Stay Discovery” be DENIED AS MOOT.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
E. Clifton Knowles
United States Magistrate Judge
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