Russell et al v. Puckett et al

Filing 35

MEMORANDUM. An Order shall enter signed by District Judge Curtis L Collier on 11/3/11. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
WILLIAM RUSSELL; MICHELLE
SMEDLEY; J.J.B., by next
friend, MICHELLE SMEDLEY;
J.M.B., by next friend, MICHELLE
SMEDLEY,

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Plaintiffs,
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v.
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WILLIAM PUCKETT, individually and as a )
law enforcement officer with the Chattanooga, )
Tennessee Police Department, and
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PHIL GRUBB, individually and as a law
)
enforcement officer with the Chattanooga,
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Tennessee Police Department,
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Defendants.
)

1:10-CV-210
Chief Judge Curtis L. Collier

MEMORANDUM
Before the Court is a motion for summary judgment filed by Defendants William Puckett
(“Officer Puckett”) and Phil Grubb (“Officer Grubb”), in their individual and official capacities
(collectively, “Defendants”) (Court File No. 13). Plaintiffs William Russell, Michelle Smedley,
Jocelyn Barby,1 by next friend, Michelle Smedley, and Joshua Barby, by next friend, Michelle
Smedley (collectively, “Plaintiffs”) filed a response to Defendants’ motion for summary judgment
(Court File No. 27). Defendants submitted a reply (Court File No. 28). For the following reasons,

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At the time of the events at issue, Jocelyn Barby and Joshua Barby were minors. However,
according to their affidavits, Ms. Barby and Mr. Barby are now at least eighteen years of age, and
Plaintiffs’ attorney submitted his response to Defendants’ motion for summary judgment without
redaction. In light of Fed. R. Civ. P. 5.2(h), the Court finds Plaintiffs have waived the protection of
Fed. R. Civ. P. 5.2(a).

the Court will GRANT Defendants’ motion for summary judgment (Court File No. 13).

I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Background

On August 6, 2009, Officer Puckett, a detective in the Property Crimes Division of the
Chattanooga Police Department (“CPD”), sought a search warrant for Defendant William Russell
and his residence (Court File No. 14 (“Puckett Aff.”), ¶ 8; Court File No. 14-2, p. 1). Officer Puckett
suspected Mr. Russell was involved in the robbery of EZ Liquor, which he investigated on July 27,
2009 (id.). Around the same date as the liquor store robbery, Officer Grubb, also with the Property
Crimes Division of the CPD, was investigating a pawn shop robbery at Check Jewelry & Loan
(Grubb Aff. ¶ 3). Officer Puckett learned of Officer Grubb’s investigation, and the two concluded
the robberies were probably related (Puckett Aff. ¶ 3; Grubb Aff. ¶ 3). On August 6, 2009,
Defendants aver they questioned Kevin White, the owner of a car believed to have been involved
in the pawn shop robbery (Puckett Aff. ¶ 6; Grubb Aff. ¶ 5). During this conversation, Defendants
claim they learned of a relationship between Mr. White and Mr. Russell. Officer Puckett claims this
conversation and further investigation that day led him to believe Mr. Russell was a possible
suspect.
Officer Puckett assembled a photo lineup that contained six photographs, one of which was
a photo of Mr. Russell (Puckett Aff. ¶ 7; Court File No. 14-1; Court File No. 17 (“Shelton Aff.”),
¶ 3). Officer Puckett and his supervisor, Sergeant Rebecca Shelton, assert they then went to the
house of Anthony Simoneau, a witness to the liquor store robbery, and presented him with the photo
lineup (Puckett Aff. ¶ 7; Shelton Aff. ¶ 2). According to Officer Puckett and Sergeant Shelton, the

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witness immediately identified Mr. Russell from the photo lineup as the driver of the car used during
the liquor store robbery (Puckett Aff. ¶ 7; Shelton Aff. ¶ 5; Court File No. 14-1). In light of these
facts, Officer Puckett submitted an affidavit to a judicial officer highlighting the following:
3.
4.
5.

The potential defendant in this case is William Russell . . . .
The location to be searched in this case is the residence of William Russell,
7834 Hancock Road . . . .
The victim in this case is E-Z Liquor, which was robbed at gunpoint on 7-2709. A witness of the Robbery, Anthony Simoneau picked Mr. Russell out of
a photo line-up immediately, and told police that Mr. Russell is one of the
suspects involved in the Robbery. . . .

(Puckett Aff. ¶ 8; Court File No. 14-2, p.1). Finding probable cause existed, the judicial officer
issued a search warrant authorizing a search of Mr. Russell and his residence for “(1) guns, (2)
ammunition, (3) incriminating photographs and/or documentation, (4) contraband, [and] (5) any
evidence of criminal activity” (Puckett Aff. ¶ 8; Court File No. 14-3, p. 1).
Prior to executing the warrant, the CPD assessed the possible danger involved in its
execution using a Risk Assessment Matrix (Puckett Aff. ¶ 9; Court File No. 18 (“Wenger Aff.”), ¶
3; Court File No. 19 (“Chambers Aff.”), ¶ 3). The CPD requires that the Special Weapons and
Tactics (“SWAT”) Team be present when executing a search warrant if the score is 30 or higher
(id.). Here, Defendants calculated a score of 37 (Puckett Aff. ¶ 9).2
The parties vigorously dispute several aspects of the search and subsequent arrests, however,
the Court will attempt to present the facts in the light most favorable to Plaintiffs. That evening, the
CPD executed a search warrant at Plaintiffs’ residence (Puckett Aff. ¶ 10). Jocelyn Barby, who was
sixteen years old at the time, asserts she was in the living room watching television when the SWAT

2

Although Plaintiffs assert the Risk Assessment Score was falsified or calculated in error
(Court File No. 27), the Court still finds it necessary to include the score Defendants purportedly
relied upon in assessing the SWAT Team’s level of involvement.
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Team entered (Court File No. 27-3 (“Ms. Barby Aff.”), ¶ 4). She claims she heard a “rumbling
noise” outside and was approaching the front door when it was “burst open” (id.). Her mother,
Michelle Smedley, asserts she was taking a shower at the time, and did not hear the police announce
their entry (Court File No. 27-4 (“Smedley Aff.”), ¶ 4). It is uncontroverted that Defendants are not
members of the SWAT Team.
Officer Welles, a member of the SWAT Team, admits that he entered the bathroom where
Ms. Smedley was present (Welles Aff. ¶ 5). Ms. Smedley avers approximately six officers in total
entered the bathroom where she was taking a shower (Smedley Aff. ¶ 5). However, she does not
present any evidence showing Officer Puckett or Officer Grubb were among the officers who
entered the bathroom, and Defendants have presented evidence averring neither officer entered the
bathroom (Welles Aff. ¶ 8; Wenger Aff. ¶ 11). Ms. Smedley alleges she was told to come out of the
shower despite being completely nude and made to stand uncovered for thirty to forty-five minutes.
Further, she claims a gun was pointed in her direction the entire time (id.), and Ms. Barby, who
joined her mother in the bathroom, claims a gun was also pointed at her (Court File No. 13-3 (“Ms.
Barby Dep.”), p. 17). Ms. Barby claims in her affidavit she was not allowed to get clothes for her
mother, but her deposition testimony reveals, at some point, she was allowed to do so (Ms. Barby
Aff. ¶ 5; Ms. Barby Dep., p. 17). Also, at some point, Ms. Smedley and Ms. Barby were escorted
outside and allowed to sit in chairs in the front yard (Welles Aff. ¶ 9; Ms. Barby Dep., p. 18).3

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Among other facts in dispute regarding the SWAT Team’s entry and securing of the house,
Defendants allege Officer Wenger and the SWAT Team officers exited their vehicles and began
yelling “Police, Search Warrant” as they approached the house and as Officer Wenger knocked on
the door (Wenger Aff. ¶ 5). Upon no response, CPD entered the house by force by ramming the front
door open (Wenger Aff. ¶ 6; Welles Aff. ¶ 4). Further, Officer Welles claims he was the only officer
who entered the bathroom where Ms. Smedley was located, and although he entered with his gun
drawn, he immediately lowered it when he realized she was not a threat (Welles Aff. ¶¶ 5-7). He also
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According to Defendants, no Property Crimes officers, including Officer Puckett and Officer
Grubb, entered the house until the SWAT team finished securing the home and gave them
permission to enter (Grubb Aff. ¶ 8; Puckett Aff. ¶ 10). After the house was secured, Officer Puckett
entered the house to conduct a search (Puckett Aff. ¶ 10).4 Although Officer Grubb asserts he did
not enter the house at all, Ms. Smedley and Ms. Barby assert they did see him enter the house during
the search (Smedley Aff. ¶ 7; Ms. Barby Aff. ¶ 9).
Ms. Smedley and Ms. Barby claim Joshua Barby, the son of Ms. Smedley, left the house with
a friend prior to the officers entering the house to head to the recreation center (Ms. Barby Aff. ¶ 4;
Smedley Aff. ¶ 4). Mr. Barby claims he had been gone from his house with a friend playing
basketball for approximately thirty minutes when he was stopped by a police officer (Court File No.
27-2 (Mr. Barby Aff. ¶ 5). Mr. Barby claims he and his friend were handcuffed and escorted back
to his house, and a gun was pointed at his head (id.; Smedley Aff. ¶ 9).
Defendants claim Officer Mark Bender, a Property Crimes Officer with the CPD, observed
Mr. Barby and his friend leave the house and head towards the recreation center prior to the search
(Court File No. 21 (“Bender Aff.”), ¶ 4, 5). Officer Bender claims he saw the young men watching
the SWAT Team enter Plaintiffs’ residence from where they were at the recreation center, and at
some point, they began to run (Bender Aff. ¶ 6). Officer Bender claims he caught up with the young

claims he tried to calm her down, and the time from which he entered and she was allowed to get
dressed, behind the shower curtain, was less than ten minutes.
4

Ms. Smedley and Ms. Barby both claim they saw Defendants enter the house during the
search, but fail to provide any time frame for when Defendants entered. In light of all the evidence
before the Court, the Court finds it is reasonable to infer the search did not begin until after the
house was secured by the SWAT Team, and Plaintiffs’ testimony need not be viewed as being at
odds with Defendants’ testimony.
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men behind the recreation center, but argues he only patted them down for weapons and escorted
them back to Plaintiffs’ residence with his gun at “low-ready.” Finally, Officer Bender claims Mr.
Barby was not handcuffed when he was being escorted back to the house (Bender Aff. ¶ 7).
Mr. Barby was taken to the Police Services Center. Plaintiffs assert Mr. Barby was
questioned by police officers without a parent present (Mr. Barby Aff. ¶ 6). Mr. Barby asserts
Officer Puckett was present during his questioning. Mr. Russell, a stepfather-like figure in Mr.
Barby’s life (Mr. Barby Aff. ¶ 2) who later arrived at the Police Services Center, claims he was
never told about Mr. Barby’s questioning or that a parent needed to be present (Court File No. 27-1
(“Russell Aff.”), ¶ 7). He also claims he never told Mr. Barby to answer any questions. Officer
Puckett and Officer Grubb were not the officers who took Mr. Barby into custody, and no evidence
has been presented to show Mr. Grubb was among the officers who questioned Mr. Barby (Puckett
Aff. ¶ 14; Grubb Aff. ¶ 10).
During the execution of the search, Mr. Russell arrived at the house (Puckett Aff. ¶ 13;
Russell Aff. ¶ 8). He was taken into custody and transported to the Police Services Center where he
waived his Miranda rights (Puckett Aff. ¶ 13; Court File No. 14-4; Russell Dep., pp. 53-54).
Officer Puckett took a recorded statement from Mr. Russell (Puckett Aff. ¶ 13). Mr. Russell also
claims Officer Grubb questioned him (Russell Aff. ¶ 8). Mr. Russell was ultimately released and no
charges were pressed against him (Puckett Aff. ¶ 14). Also, no items were seized from the residence
of the Plaintiffs (Puckett Aff. ¶ 12). Defendants admit the front door and back kitchen window were
damaged during the SWAT Team’s entry (id.), but Plaintiffs further allege their home was left in
“disarray” and a television was broken (Ms. Barby Aff. ¶ 6; Ms. Smedley Aff. ¶ 11).
B.

Procedural Background

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On August 6, 2010, Plaintiffs brought suit against Defendants, individually and as law
enforcement officers with the CPD, under 42 U.S.C. §§ 1983 and 1985, and under the Fourth, Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution (Court File No. 1). Plaintiffs
seek both compensatory and punitive damages.
On August 26, 2011, Defendants moved for summary judgment (Court File No. 13).

II.

STANDARD OF REVIEW
Summary judgment is proper when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003).
The Court should view the evidence, including all reasonable inferences, in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
To survive a motion for summary judgment, “the non-moving party must go beyond the
pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.”
Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is not entitled
to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-CV-63, 2009 WL
3762961, at *2, *3 (E.D. Tenn. Nov. 4, 2009) (explaining the Court must determine whether “the
record contains sufficient facts and admissible evidence from which a rational jury could reasonably
find in favor of [the] plaintiff”). In addition, should the non-moving party fail to provide evidence
to support an essential element of its case, the movant can meet its burden of demonstrating no

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genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
At summary judgment, the Court’s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could not return
a verdict in favor of the non-movant based on the record, the Court should enter summary judgment.
Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

III.

SECTION 1983 CLAIMS
Plaintiffs’ complaint alleges Defendants violated their constitutional rights, both individually

and as law enforcement officers of the CPD. To state a general claim under § 1983, a plaintiff must
set forth “facts that, when construed favorably, establish (1) the deprivation of a right secured by the
Constitution or laws of the United States (2) caused by a person acting under the color of state law.”
Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West v. Atkins, 487 U.S.
42, 48 (1988)). When a party brings a suit against an officer in his official capacity, it is construed
as a suit against the governmental entity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). Suits against a municipality also involve a two-prong inquiry. Cash v. Hamilton Cnty. Dep’t
of Adult Prob., 388 F.3d 539, 542 (6th Cir. 2004). The court must determine: (1) whether the
plaintiff has been deprived of a constitutional right; and (2) whether the municipality is responsible
for the violation. Id.
A municipality cannot be liable under a respondeat superior theory for § 1983 claims. Id.
Rather, municipalities are liable when they “have caused a constitutional tort through ‘a policy

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statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers.’” Id. (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)). Additionally, even
absent a policy “officially adopted” by a municipality’s officers, a § 1983 plaintiff “may be able to
prove the existence of a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or usage with the force
of law.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). A plaintiff bears the burden of
showing “that the unconstitutional policy or custom existed, that the policy or custom was connected
to the [municipality], and that the policy or custom caused [the] constitutional violation.” Napier v.
Madison Cnty., 238 F.3d 739, 743 (6th Cir. 2001). A plaintiff can also show that a municipality’s
failure to train or supervise its employees demonstrates deliberate indifference to the rights of
persons with whom officers will have contact, such that it effectively constitutes a government
custom or policy. City of Canton v. Harris, 489 U.S. 378, 388 (1989).
A.

Claims Against Defendants in Their Official Capacities

Defendants move for summary judgment on the grounds that Plaintiffs have failed to
establish Defendants are liable in their official capacities. Because § 1983 claims against law
enforcement officers are construed as suits against the government entity, the Court will construe
Plaintiffs’ claims as causes of action against the City of Chattanooga. Plaintiffs assert they are not
alleging in their complaint the City of Chattanooga (1) is liable under the theory of respondeat
superior, (2) had any unconstitutional policy or custom, or (3) failed to provide training or had
“deliberate indifference” towards officer training (Court File No. 27). Further, Plaintiffs have failed
to present any genuine issue of material fact that the City of Chattanooga has a “widespread
practice” of engaging in unconstitutional conduct that “is so permanent and well settled” to

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constitute official policy, or that the City of Chattanooga has provided inadequate supervision of its
officers resulting from “deliberate indifference.” Accordingly, the Court will DISMISS Plaintiffs’
claims against Defendants in their official capacities.
B.

Claims Against Officers in their Individual Capacities

Defendants assert they are entitled to qualified immunity with respect to Plaintiffs’ § 1983
claims alleging violations of the Fourth and Fourteenth Amendments. Under the doctrine of
qualified immunity, government officials are generally shielded from civil damages liability when
performing discretionary functions “as long as their actions could reasonably have been thought
consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635,
638 (1987). Even if a government official deprives a plaintiff of a federal right, “qualified immunity
will apply if an objective reasonable officer would not have understood, by referencing clearly
established law, that his conduct was unlawful.” Painter v. Robertson, 185 F.3d 557, 567 (6th Cir.
1999). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The plaintiff bears the burden of showing a
defendant is not entitled to qualified immunity. See Wegener v. Covington, 933 F.2d 390, 392 (6th
Cir. 1991).
Courts typically employ a two-part test to determine whether qualified immunity will apply.
First, a court must consider whether, when viewed in the light most favorable to the plaintiff, “the
facts alleged show the officer’s conduct violated a constitutional right.” Saucier v. Katz, 533 U.S.
194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). It must also consider “whether
the violation involved a clearly established constitutional right of which a reasonable person would
have known.” Peete v. Metro. Gov’t of Nashville & Davidson Cnty., 486 F.3d 217, 219 (6th Cir.

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2007) (citation omitted). This second inquiry looks closely at the particular context of the case rather
than asking whether a right was clearly established “as a broad general proposition.” See Saucier,
533 U.S. at 201. Since the failure of either prong is dispositive in favor of the defendant, the Court
may address either prong of the test first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Because qualified immunity shields reasonable conduct, even when it is mistaken, the Sixth
Circuit has at times added a third line of inquiry to the traditional two-part test: “whether the
plaintiff has offered sufficient evidence to indicate that what the official allegedly did was
objectively unreasonable in light of the clearly established constitutional rights.” Peete, 486 F.3d
at 219; cf. Everson v. Leis, 556 F.3d 484, 494 n.4 (6th Cir. 2009) (stating regardless of whether the
two-prong or the three-prong test is applied, “the essential factors considered are [] the same”). “[I]f
officers of reasonable competence could disagree [on the legality of the action], immunity should
be recognized.” Malley, 475 U.S. at 341.
Defendants assert one primary reason they should be granted qualified immunity is because
they were not directly involved in or responsible for the alleged constitutional violations. It is well
established that a defendant’s liability under 42 U.S.C. § 1983 cannot be based solely on the doctrine
of respondeat superior. See Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (“In a § 1983
suit or a Bivens action–where masters do not answer for the torts of their servants--the term
“supervisory liability” is a misnomer.”); see also Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999) (“This court has held that § 1983 liability must be based on more than respondeat superior,
or the right to control employees.”). “Because vicarious liability is inapplicable to Bivens and §
1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s
own conduct, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. A plaintiff must show “the

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supervisor encouraged the specific incident of misconduct or in some way directly participated in
it.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). At a minimum, a plaintiff must show “a
supervisory official at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.” Id.
The Plaintiffs have asserted Defendants violated their Fourth and Fourteenth Amendment
rights in light of the following conduct: (1) obtaining a search warrant under false pretenses; (2)
conducting an unreasonable search; (3) engaging in an unlawful arrest of Mr. Russell; and (4)
engaging in an unlawful arrest of Mr. Barby. The Court will address each of these claims against
each individual officer in turn.
1.

Officer Puckett
a. Obtaining a Search Warrant Under False Pretenses

Plaintiffs assert Officer Puckett violated their Fourth and Fourteenth Amendment rights by
using “recklessly conveyed false information” to obtain a search warrant (Court File No. 1., p. 3).
Under the Fourth Amendment, “no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched.” U.S. Const. amend. IV. As a
general rule, in determining whether probable cause exists to authorize the search, the magistrate
judge or other judicial officer should consider the “totality of the circumstances” and ask whether
“given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Mills v. City of Barbourville, 389 F.3d
568, 575-76 (6th Cir. 2004) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The judicial
officer must be presented with “sufficient information” to enable him to determine whether probable
cause exists; “his action cannot be a mere ratification of the bare conclusions of others.” Id.

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Under § 1983, a law enforcement official can be held liable for an illegal search or seizure
if the official “knowingly and deliberately, or with a reckless disregard for the truth” makes “false
statements or omissions that create a falsehood” and “such statements or omissions are material, or
necessary, to the finding of probable cause.” Peet v. City of Detroit, 502 F.3d 557, 570 (6th Cir.
2007) (quoting Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000)). An affidavit containing such
false statements or omissions “must be purged of the falsehood to determine whether the affidavit
still contains sufficient facts to establish probable cause, Adams v. Emmett Tp. Dept. of Pub. Safety,
Nos. 94-1533, 94-1563, 1994 WL 657081, at *1 (6th Cir. 1994) (citing Franks v. Delaware, 438
U.S. 154, 171-72 (1978)). “If probable cause still exists after the purge, then no Fourth Amendment
violation has occurred.” Id. Thus, for Plaintiffs to overcome Defendant’s entitlement to qualified
immunity, they must make “(1) a substantial showing that the defendant stated a deliberate falsehood
or showed reckless disregard for the truth and (2) that the allegedly false or omitted information was
material to the finding of probable cause.” Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003).
Here, Plaintiffs have failed to establish Officer Puckett stated a “deliberate falsehood” or
“showed reckless disregard for the truth” when obtaining the search warrant for Mr. Russell and his
residence. Plaintiffs primarily take issue with the following statement in Defendant’s affidavit: “The
victim in this case is E-Z Liquor, which was robbed at gunpoint on 7-27-09. A witness of the
Robbery, Anthony Simoneau picked Mr. Russell out of a photo line-up immediately, and told police
that Mr. Russell is one of the suspects involved in the Robbery.” (Court File No. 14-2, p.1).
Plaintiffs purport this statement is inadmissible hearsay and that Defendant has no evidence to
support his allegations against Mr. Russell. Plaintiffs conclude this shows Officer Puckett recklessly
conveyed false information to the judicial officer to obtain a search warrant.

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However, contrary to Plaintiffs’ assertions, Defendant has revealed the basis upon which
the search warrant was sought, and Plaintiffs have failed to show that basis is premised on
falsehoods and untruthful statements. Under Rule 56(c)(4) of the Federal Rules of Civil Procedure,
“an affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Officer Puckett has provided
notarized affidavits from various individuals involved at different stages of the investigation, such
as Officer Grubb and Sergeant Shelton, who offered testimony based on their personal knowledge
of different aspects of the investigation. Further, Officer Puckett’s own affidavit clearly explains that
he was the officer assigned to this case, he conducted the investigation, he created the photo lineup,
and he was present when Mr. Simoneau identified Mr. Russell as being the driver at the scene of the
crime. It was upon this information that Officer Puckett believed there was probable cause, and he
then sought a search warrant from a judicial officer. Plaintiffs have failed to make any “substantial
showing” that Defendant deliberately or knowingly made false statements, and failed to provide any
support for their broad claims that Defendant’s proof is “blatant hearsay” (Court File No. 27). As
a result, the Court must DISMISS Plaintiffs’ claim that Officer Puckett obtained a warrant under
false pretenses.
b. Unlawful Search
Plaintiffs assert Defendant engaged in an unlawful search in violation of the Fourth and
Fourteenth Amendments on two primary grounds. First, Plaintiffs contend Defendant and his fellow
officers “broke into the residence . . . without any announcement of their authority . . . or that they
had a search warrants.” Second, Plaintiffs claim Officer Puckett and his fellow officers ordered Ms.

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Smedley “out of the shower” and made her “stand completely nude for 45 minutes” in front of other
officers (Court File No. 1, p. 4). Although Plaintiffs attempt to treat all the officers as one, the Court,
as noted earlier, cannot hold Officer Puckett liable if he was not personally involved in the alleged
unconstitutional conduct. Thus, for each allegation, the Court will consider Officer Puckett’s level
of involvement in determining whether the facts set forth show Officer Puckett’s actions “violated
a constitutional right” before proceeding any further with the analysis. Saucier, 533 U.S. at 201.
First, Plaintiffs assert Officer Puckett and the officers violated their Fourth and Fourteenth
Amendment rights by failing to “knock and announce” their presence before forcibly entering their
residence. According to the Sixth Circuit, it is “clearly established law that the fourth amendment
forbids the unannounced, forcible entry of a dwelling in the absence of exigent circumstances.” Hall
v. Shipley, 932 F.2d 1147, 1151 (6th Cir. 1991). However, as a preliminary matter, Plaintiffs have
failed to establish that any genuine issue of material fact exists with regard to whether Officer
Puckett was among the entry team of officers engaged in the alleged unlawful conduct. See Thorton
v. Fray, 429 F. App’x 504, 510 (6th Cir. 2011) (finding, post-Iqbal, the officers who did not
participate in the search or who did not enter until after the search had begun were entitled to
qualified immunity on the plaintiff’s “knock and announce claims”); cf Hall, 932 F.2d at 1154
(finding, pre-Iqbal, that an officer who was the “primary mover” behind the investigation was not
entitled to qualified immunity even though he did not directly engage in the alleged constitutional
violation). Ms. Barby testified that she heard “rumbling noises” moments before the SWAT Team
entered the living room where she was watching television (Ms. Barby Aff. ¶¶ 4-5). Defendant, as
the moving party, does not have to disprove the nonmoving party’s claim; instead he need only
“‘show[]’--that is, point[] out to the district court--that there is an absence of evidence to support the

15

nonmoving party’s case.” Westgate Vill. Shopping Ctr. v. Lion Dry Goods Co., 21 F.3d 429 (6th Cir.
1994) (quoting Celotex Corp., 477 U.S. at 325). It is uncontroverted that Officer Puckett is not part
of the SWAT Team; he was a detective with the Property Crimes Division of CPD. Plaintiffs do not
assert that they saw Officer Puckett among the entry team. Moreover, Defendant has presented
evidence showing the Property Crimes Division officers did not enter until the SWAT Team secured
the residence (Puckett Aff. ¶ 10; Grubb Aff. ¶ 8; Wenger Aff. ¶ 11; Chambers Aff. ¶ 9; Welles Aff.
¶ 10). In light of this evidence before the Court and the current case law, the Court finds a
reasonable jury would not find Officer Puckett personally engaged in the alleged unconstitutional
conduct, nor that he “authorized, approved, or knowingly acquiesced in” such behavior.
Second, Plaintiffs assert Officer Puckett and the other officers made Ms. Smedley stand nude
and refused to allow her to obtain clothes for forty-five minutes. Even if the officers’ conduct rose
to the level of a constitutional violation, Plaintiffs have again failed to sufficiently raise any genuine
issues of material fact as to whether Officer Puckett was involved in the incident involving Ms.
Smedley. Neither Ms. Smedley nor Ms. Barby avers Defendant Puckett was among the officers
alleged to have entered the bathroom while Ms. Smedley was nude. Further, Officers Puckett and
Officers Grubb both assert they never saw Ms. Smedley nude or were in the bathroom during the
alleged incident (Puckett Aff. ¶ 11; Grubb Aff. ¶ 8; Welles Aff. ¶ 8; Wenger Aff. ¶ 11). Accordingly,
the Court finds a reasonable jury would not conclude Plaintiffs have provided sufficient evidence
to establish Officer Puckett engaged in the alleged conduct towards Ms. Smedley.
Accordingly, the Court will DISMISS Plaintiffs’ claim regarding the alleged unreasonable
search.
c. Unlawful Arrest of Mr. Russell

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Plaintiffs assert Officer Puckett arrested Mr. Russell without a warrant and without probable
cause. Under the Fourth Amendment, an individual has the right “to be secure in their persons . . .
against unreasonable seizures.” U.S. Const. amend. IV. For an arrest to be reasonable without a
warrant under the Fourth Amendment, an officer must have “probable cause to believe that a
criminal offense has been or is being committed” and “the validity of the arrest does not depend on
whether the suspect actually committed the crime.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir.
2007) (internal citations omitted). Thus, “in order for a wrongful arrest claim to succeed under §
1983, a plaintiff must prove that the police lacked probable cause.” Brooks v. Rothe, 577 F.3d 701,
706 (quoting Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)). “Probable cause exists if the
facts and circumstances known to the officer warrant a prudent man in believing that the offense has
been committed.” Logsdon, 492 F.3d at 341 (quoting Henry v. United States, 361 U.S. 98, 102
(1959)).
Here, Officer Puckett took Mr. Russell into custody. Therefore, the Court must first consider
whether Officer’s Puckett’s conduct was violative of the Fourth Amendment. Plaintiffs assert Mr.
Russell was arrested without a warrant in violation of his Fourth and Fourteenth Amendment rights,
but fail to establish Officer Puckett violated his constitutional rights for lack of probable cause. As
previously noted, Officer Puckett obtained a search warrant from a judicial officer allowing him to
not only search Mr. Russell’s residence but also Mr. Russell. In his affidavit requesting a search
warrant, Officer Puckett averred that he believed Mr. Russell was a suspect in the robbery of EZ
Liquor store. This conclusion was based upon the similarities between the EZ Liquor and Check
Jewelry and Loan robberies, an interview linking Mr. Russell to one of the suspects, further
investigation, and the photo lineup witness identification. The “facts and circumstances” before

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Officer Puckett at the time of the arrest would be sufficient for a reasonable officer to conclude
probable cause existed. At the time of the arrest, it was not necessary for Officer Puckett to prove
Mr. Russell had actually committed the robberies. Because Plaintiffs have failed to show Officer
Puckett lacked probable cause in effecting Mr. Russell’s arrest, the Court finds Plaintiffs have not
established Officer Puckett committed a constitutional violation. Thus, the Court will DISMISS
Plaintiffs’ claim alleging Officer Puckett unlawfully arrested Mr. Russell without a warrant and
probable cause.
d. Unlawful Arrest and Interrogation of Mr. Barby
Plaintiffs argue Officer Puckett and other officers unlawfully arrested Mr. Barby and
acted with excessive force. Plaintiffs further argue Officer Puckett and the other officers unlawfully
interrogated Mr. Barby at the Police Services Center without a parent present. As to the first two
allegations, Plaintiffs have failed to present sufficient evidence to establish Officer Puckett was
involved with Mr. Barby’s arrest or engaged in any excessive force towards him. Based on
Plaintiffs’ account of events, the record reflects Officer Bender detaining Mr. Barby and a friend
behind the recreation center, handcuffing them, and escorting them back to Plaintiffs’ residence with
a gun pointed at Mr. Barby. It then reflects Mr. Barby being taken into custody by an officer to the
Police Services Center. What it does not reflect is Officer Puckett’s involvement or approval of
Officer Bender’s conduct, nor his involvement in Mr. Barby’s arrest. As a result, the Court need not
consider whether Officer Puckett committed a constitutional violation with regard to Plaintiffs’
unlawful arrest and excessive force claims.
However, Plaintiffs also assert Officer Puckett unlawfully questioned Mr. Barby without his
parents present under the Fourth, Fifth, Sixth, and Fourteenth Amendments. Plaintiffs fail to offer

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any explanation with regard to what grounds they are asserting the alleged constitutional violations
except to say the officers interrogated Mr. Barby without his mother, Ms. Smedley, present. Under
the Fourth Amendment, Plaintiff’s claim is improperly brought if he is trying to address the
involuntariness of Mr. Barby’s statement. Moreover, to the extent Plaintiffs are alleging a violation
of the self-incrimination clause of the Fifth Amendment, they do not have a viable claim. “By its
terms, the Fifth Amendment does not prohibit the act of compelling a self-incriminating statement
other than for use in a criminal case.” Lingler v. Fechko, 312 F.3d 237, 239 (6th Cir. 2002); see also
Chavez v. Martinez, 538 U.S. 760, 767 (“[I]t is not until their use in a criminal case that a violation
of the Self-Incrimination Clause occurs.”). Similarly, to the extent Plaintiffs are alleging a violation
of Mr. Barby’s right to counsel under the Sixth Amendment, the right to counsel does not attach
until “at or after the initiation of adversary judicial proceedings.” United States v. Fowler, 535 F.3d
408, 416 (6th Cir. 2008). Here, Mr. Barby was never formally charged nor did he participate (and
his statements were not used) in a criminal proceeding.
With regard to the Fourteenth Amendment claim, the Court will construe Plaintiffs’ cause
of action generously to also allege Defendant violated a liberty interest arising under state law and
that is entitled to Fourteenth Amendment protection. “A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an
expectation of interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005) (citations omitted). To determine whether the due process clause of the Fourteenth
Amendment protects a state created interest, courts “must look not to the ‘weight’ but to the nature
of the interest at stake.” Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972) (emphasis added).
“Procedural rights that do not require a particular substantive outcome are not liberty interests

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protected by the Fourteenth Amendment, even if the right is “mandatory.” Gibson v. McMurray, 159
F.3d 230, 233 (6th Cir. 1998). Plaintiffs fail to identify for the Court the state law upon which it is
relying for this claim regarding interrogation. Moreover, the state laws that are referenced by
Plaintiffs--Tenn. Code Ann. §§ 37-1-115 and 37-1-113--specifically address procedures regarding
the process for taking a child into custody, but do not require any substantive outcome. Accordingly,
the Court DISMISSES Plaintiffs’ Fourth, Fifth, Sixth, and Fourteenth Amendment claims against
Officer Puckett on this grounds.5
In sum, the Court finds Plaintiffs have failed to present sufficient evidence to show Officer
Puckett violated Plaintiffs’ constitutional rights. Therefore, Officer Puckett is entitled to qualified
immunity on these claims.
2.

Officer Grubb

Plaintiffs assert the same § 1983 claims against Officer Grubb as they did against Officer
Puckett. For similar reasons, the Court finds Officer Grubb is entitled to qualified immunity. As
noted before, “a plaintiff must plead that each Government-official defendant, through the official’s
own conduct, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. Here, to the extent Officer
Grubb assisted Officer Puckett obtain the search warrant, the Court has found no genuine issues of

5

Plaintiffs do not explicitly state they are bringing a substantive due process claim against
Defendant either. However, under the Fourteenth Amendment, “[n]o state shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “Any
action by a law enforcement official which ‘shocks the conscience’ denies the victim of fundamental
due process.” Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (citing County of
Sacramento v. Lewis, 523 U.S. 833 (1998)). Here, however, the conduct upon which Officer Puckett
was actually personally involved--requesting a search warrant and questioning Mr. Barby--fails to
come anywhere near the conduct that would be considered conscience-shocking in light of the
precedent in this area. Therefore, the Court DISMISSES any claims Plaintiffs may be asserting on
this ground.
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material fact exist with regard to whether any “deliberate falsehoods” were made in seeking the
search warrant. See Vakilian, 335 F.3d at 517. The officers had probable cause as determined by the
judicial officer, and a warrant was properly granted. Therefore, Plaintiffs claim that Defendant
obtained a search warrant under false pretenses is DISMISSED.
The remaining § 1983 claims against Officer Grubb are also dismissed because Officer
Grubb not only had no direct personal involvement, but he also did not approve, acquiesce, or
authorize any of the alleged constitutional violations. Even after viewing the evidence in the light
most favorable to Plaintiffs, Officer Grubb was not part of the SWAT entry team and he was not
present when the alleged officers entered the bathroom where Ms. Smedley was located. Officer
Grubb also was not involved with the arrest or questioning of Mr. Russell or Mr. Barby. Therefore,
the Court finds Officer Grubb is entitled to qualified immunity on these claims, and all § 1983
claims brought against Officer Grubb are dismissed.
The Court will GRANT Defendants’ motion for summary judgment with regard to the 42
U.S.C. § 1983 claims.

IV.

SECTION 1985 CLAIM
Plaintiffs assert in their Complaint that Defendants worked “in concert and in conspiracy”

to commit the alleged constitutional violations. The Court construes Plaintiffs’ Complaint to allege
these acts are proof of a conspiracy pursuant to 42 U.S.C. § 1985. To bring a conspiracy claim under
§ 1985(3), Plaintiffs must show “(1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protections of the laws, or of equal
privileges or immunities of the laws; (3) an act in furtherance of the conspiracy; (4) whereby a

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person is either injured in his person or property or deprived of any right or privilege of a citizen of
the United States.” Vakilian, 335 F.3d at 518 (citing United Bhd. of C & J v. Scott, 463 U.S. 825,
828-29 (1983)). Plaintiffs must present evidence of “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus.” Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758,
765 (6th Cir. 2010) (citing Bartell v. Lohiser, 215 F.3d 550, 559 (6th Cir. 2000)). Additionally,
“conspiracy claims must be pled with some degree of specificity and . . . vague and conclusory
allegations unsupported by material facts will not be sufficient to state such a claim.” Ctr. for BioEthical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir. 2007) (citing Gutierrez v.
Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)).
Here, Plaintiffs have made unsupported allegations that Officer Puckett and Officer Grubb
engaged in a conspiracy with other officers of the CPD. Plaintiffs do not assert they are part of a
protected class in their Complaint, nor do they provide any evidence of discriminatory animus.
Stating that Defendants worked “in concert and conspiracy” with other CPD officers to violate
Plaintiffs’ constitutional rights, without more, is insufficient to sustain a claim of conspiracy under
§ 1985(3). Accordingly, the Court finds Plaintiffs have failed to establish Defendants engaged in a
conspiracy and DISMISSES Plaintiffs’ cause of action under § 1985.

V.

CONCLUSION
In light of the parties’ arguments and the evidence on the record, as well as the reasons stated

above, the Court will GRANT Defendants’ motion for summary judgment (Court File No. 13).
An Order shall enter.
/s/
CURTIS L. COLLIER
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CHIEF UNITED STATES DISTRICT JUDGE

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