Livesay v. Hamblen County, Tennessee et al
Filing
57
MEMORANDUM OPINION AND ORDER; the Motion for Summary Judgment, 51 , filed by Otto Purkey and Hamblen County, Tennessee is GRANTED. Plaintiff's suit against these defendants is dismissed with prejudice. The suit remains pending against the defendant Dexter Morris. Signed by Magistrate Judge Dennis H Inman on 7/24/13. (KDO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
JOYCE LIVESAY
V.
HAMBLEN COUNTY, TENNESSEE,
OTTO PURKEY, and DEXTER
MORRIS, JR.
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NO. 2:10-CV-32
MEMORANDUM OPINION AND ORDER
Plaintiff has filed an action under 42 U.S.C. § 1983 against Dexter Morris, a former
deputy with the Hamblen County Sheriffs Department; against the former Sheriff of Hamblen
County, Otto Purkey; and against the county itself.1 Pursuant to 28 U.S.C. § 636(c)(1), the
parties consented to have this case tried by the magistrate judge.
The crux of plaintiff’s complaint is that on August 24, 2005, Dexter Morris, while on
duty as a deputy sheriff, and acting under color of law, raped her. She filed her suit on
February 17, 2010, four and one-half years after she was raped by Morris. With regard to
her claim against the Sheriff Otto Purkey and the county, she alleges:
1. Both before and after August 20, 2005, the Hamblen County Sheriffs Department
had a custom and policy to ignore sexual misconduct committed by its officers, including a
policy or custom to ignore citizens’ complaints of sexual misconduct by those officers;
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Plaintiff has chosen to sue both Otto Purkey and Dexter Morris in their individual
capacities.
2. Sheriff Otto Purkey, as the final decision maker for the Hamblen County Sheriffs
Department, was deliberately indifferent to reports of Dexter Morris’s sexual misconduct;
3. Sheriff Purkey had notice that Dexter Morris had sexually assaulted women in the
custody of the Hamblen County Sheriffs Department, but nevertheless failed to discipline or
terminate Morris;
4. Hamblen County, by virtue of the actions of its Sheriff, failed to supervise and
appropriately discipline its officers pursuant to recognized standards, policies, and
procedures of police officers of the state of Tennessee; and
5. The county, as a result of Sheriff Purkey’s actions (or inactions), was on notice that
its discipline of its police officers were deficient and likely to cause injury.
Otto Purkey and the county have moved for summary judgment on the ground that
plaintiff’s suit was filed too late, and is barred by Tennessee’s one-year statute of limitations.
Summary judgment is appropriate only where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law.” F.R.Civ.P. 56(c). The
non-moving party must be indulged with all possible favorable inferences from the facts
which otherwise might be undisputed, Plott v. Gen. Motors Corp., 71 F.3d 1190 (6th Cir.
1995).
A § 1983 action must be filed within the state statute of limitations applicable to
personal injuries. Trzebuckowski, et al., v. City of Cleveland, et al., 319 F.3d 853, 855 (6th
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Cir. 2003). In Tennessee, that statute is Tenn. Code Ann. § 28-3-104(a)(3), and it provides
for a one-year period in which to file suit for personal injuries.
Plaintiff did not file her suit until more than one year had elapsed after Morris raped
her. But when the statute of limitations begins to run is a matter of federal law. Sevier v.
Turner, 742 F.2d 262 (6th Cir. 1984). In the case of a § 1983 action, “[t]he statute of
limitations begins to run when the plaintiff knows or has reason to know of the injury which
is the basis of his action.” Id., at 273. And, a “plaintiff has reason to know of his injury
when he should have discovered it through the exercise of reasonable diligence.” Id. The
issue generated by the motion for summary judgment is, when did the statute of limitations
begin running as to Otto Purkey and the county?
It is undeniable that Morris raped plaintiff on August 24, 2005. He was indicted in
this court, partly on account of that crime, and he was convicted. He is now serving a
sentence in federal prison. And, to state the obvious, plaintiff undeniably knew that she had
been raped on August 24, 2005. However, that does not necessarily commence the running
of the statute of limitations with respect to Sheriff Purkey and the county because, as we all
know, the county may not be held vicariously liable under § 1983 for the actions of Morris.
Monell v. Dept. of Social Services, 436 U.S. 658, 691-92 (1961). The county can be held liable
only for its own actions or omissions that amount to “deliberate indifference” to the rights
of the plaintiff. Id. That deliberate indifference can be manifested in several ways, one of
which is a failure to train, discipline or supervise. City of Canton v. Harris, 489 U.S. 378
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(1989). A plurality of the justices in City of Oklahoma City v. Tuttle, 471 U.S. 80 (1985),
concluded that “considerably more proof than [a] single incident will be necessary in every
case to establish both the requisite fault on the part of the municipality and the causal
connection between the ‘policy’ and the constitutional deprivation.” Id., at 823. In other
words, municipal liability based on a policy of inadequate training or discipline cannot be
derived from a single incident of police misconduct. As of August 24, 2005, plaintiff knew
she had a cause of action against Dexter Morris, but there was nothing to reasonably indicate
that the Sheriff and County had committed an antecedent tort by failing to discipline Morris.
Therefore, the statute of limitations did not begin to run as to the Sheriff and County by
virtue of Morris’s assault of plaintiff.
Plaintiff learned that there were other victims of Dexter Morris from a criminal
complaint filed against him in this court; plaintiff, identified only by her initials, was the
subject of count one. Another victim, “N.E.” was the subject of count two. The affidavit of
the FBI agent filed in support of the criminal complaint mentioned yet another victim, “R.L.”
That criminal complaint was unsealed on September 24, 2008. Defendants insists that the
complaint put plaintiff on notice that the Sheriff, and therefore the county, were deliberately
indifferent to her rights. In other words, it is defendants’ argument that by virtue of the
criminal complaint, the plaintiff then knew or had reason to know of the injury which is the
basis of her action against the county and the Sheriff.
It is plaintiff’s theory that the county is liable to her based on its policy or custom of
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inadequate training, supervision, or discipline of its deputy sheriffs, and that she had no way
to know of those inadequacies until some time after Morris’ trial. Plaintiff says that she did
not learn of the identify of “R.L.” until after Morris’s criminal trial had ended, and only then
because the “witness coordinator” agreed to contact “R.L.” to tell her that plaintiff would like
to speak to her. “R.L.” did call plaintiff some time in late June 2009. During that
conversation, R.L. told plaintiff that while she was an inmate in the Hamblen County Jail,
and Morris was a jailer, he sexually abused and then threatened her. R.L. said that she
submitted a complaint to the Sheriff, but the Sheriff, rather than investigate her complaint,
not only peremptorily rejected it, but threatened her with criminal prosecution and thereafter
promoted Morris to the position of patrol officer, a position he used to facilitate the rape of
both plaintiff and “N.E.” Plaintiff insists that is was this information imparted by “R.L.”
which commenced the running of the statute of limitations.
In August 2006, plaintiff learned that Morris had assaulted another woman.2 Then she
learned of at least two other victims of Morris in September 2008 when the criminal
complaint was filed. Thus, by that date, plaintiff knew that Morris had sexually assaulted at
least three, and perhaps four, women. Defendant argues that this knowledge triggered
plaintiff’s responsibility to make an inquiry regarding possible culpability of the Sheriff and
the County. Plaintiff, however, argues that if she had then filed suit against the Sheriff and
County based only on the information that Morris had assaulted three or four women, she
2
Affidavit, Doc. 54-1, ¶ 7.
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would have exposed herself to Rule 11 sanctions.
At first blush, plaintiff’s argument has some logic to it. After all, even if Morris was
a serial rapist, did that indicate that the Sheriff knew of Morris’ predilections and ignored
them? And could the Sheriff be expected, if interviewed by plaintiff or her attorney, to
readily admit that he effectively condoned Morris’ actions? Probably not. But defendants
make a telling point – plaintiff never made the effort. As defendants acknowledge in their
reply brief, the outcome might be different if the defendants had refused to answer plaintiff’s
inquiries, or lied to her. But the uncontroverted fact is that neither the Sheriff nor any other
representative of the County withheld information or lied to plaintiff, because they never got
the chance to do so. The Supreme Court of California stated it well: “So long as a suspicion
exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find
her.” Jolly v. Eli Lilly & Co., 751 P.2d 923, 1111 (Cal. 1988).3
There is no escaping the conclusion that plaintiff did not act with reasonable diligence
in investigating whether or not the Sheriff and County had committed a separate tort against
her. At the latest, the unsealing of the criminal complaint in September 2008 triggered her
responsibility to make an inquiry. The one-year statute of limitations expired one year
thereafter, in September or October 2009. Since this suit was not filed until February 2010,
it is time-barred and must be dismissed. The motion for summary judgment filed by Otto
3
Quoted in Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712, 731 (Tenn.
App. 2008).
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Purkey and Hamblen County, Tennessee, (Doc. 51), is GRANTED. Plaintiff’s suit against
these defendants is dismissed with prejudice.
The suit remains pending against the defendant Dexter Morris.
ENTER:
s/ Dennis H. Inman
United States Magistrate Judge
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