Prewett et al v. Weems

Filing 71

MEMORANDUM OPINION AND ORDER GRANTING: 46 MOTION for Summary Judgment filed by Plaintiffs J. W. and Teresa Prewett. The plaintiff shall file a more specific and detailed request for costs of suit and reasonable attorneys fees. Once this Court has decided the exact amount to which the plaintiff is entitled, then it will enter judgment in the case. Signed by District Judge J Ronnie Greer on 10/24/2012. (FMM, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

J.W., a minor, b/n/f and mother,
TERESA PREWETT,
Plaintiffs,
v.
STANLEY WEEMS,
Defendant.

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NO.: 2:11-CV-290

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the plaintiffs’ Motion for Summary Judgment, [Doc.
46]. The defendant has responded, and the matter is ripe for review. For the reasons set forth
below, the motion is GRANTED.
I.

Facts and Background
On November 28, 2011, the defendant, Stanley Weems, entered a plea of guilty to a

charge of production of child pornography in violation of 18 U.S.C. § 2251(a).1 On April 20,
2012, the defendant was sentenced to a term of 180 months of imprisonment pursuant to his Rule
11(c)(1)(C) plea agreement. See 2:11-CR-71. The factual basis of the plea agreement states as
follows:
On or about July 21, 2011, a 17 year-old minor child
approached the Greene County Sheriff’s Office to report that the
child had been subjected to sexual abuse by the defendant at the
defendant's home in The Eastern District of Tennessee. The minor
1

The United States charged the defendant with violating section 2252(a)(5)(B), possession of child pornography,
and (a)(6), sexual exploitation. See [Doc. 3 in 2:11-CR-71]. However, the defendant did not plead guilty to these
two offenses. Instead, he pled to violating section 2251. The other two offenses were dismissed upon motion of the
government. See [Doc. 48 in 2:11-CR-71].

reported that the minor had engaged in sexual intercourse at the
defendant's residence with prostitutes paid by the defendant. The
sexual intercourse between the minor and the prostitutes was
observed by the defendant, and defendant recorded the sexual acts
with a video camera on defendant's cellular telephone. The cellular
telephone was manufactured outside of Tennessee, and therefore
traveled in interstate commerce to be present in the Eastern District
of Tennessee.
The Greene County Sheriff's Office executed a search
warrant at the defendant's residence. Among other items, VHS
video tapes, cellular telephones and audio tapes were seized during
the execution of the search warrant. The audio tapes seized from
the defendant contained the voices of the minor, the defendant and
the aforementioned prostitutes and depicted occasions when the
minor and prostitutes were engaged in sexual intercourse.
A review of the video and photographic files on one of the
cellular telephones, which telephone was manufactured outside of
the United States, contained videos of a minor engaged in sex acts,
and photos of another minor in sexually explicit poses. In the
videos, the defendant can be heard directing in the background.
On September 8, 2011, a Special Agent with the Federal
Bureau of Investigation, met with one of the prostitutes at the
Washington County Detention Center. The prostitute admitted to
having sex with the defendant and a minor. The prostitute
indicated that she was unaware that she was engaging in sexual
intercourse with a minor until she later spoke with the defendant
on the telephone from the detention center. A recording of the call
between the defendant and the prostitute from the detention center
reflects the defendant telling the prostitute that she had engaged in
sexual intercourse with a minor, and that the defendant had lied to
the prostitute about the minor's age so that she would not refuse.
Defendant admits that he utilized a video recording device,
manufactured outside the state of Tennessee to create visual
depictions of a minor child whom the defendant used to engage in
sexually explicit conduct.
[Doc. 32, ¶ 4 in 2:11-CR-71]. As a result of this conduct, the plaintiffs filed the instant civil suit
on September 30, 2011. The Complaint adds little facts to what is set forth above. The civil
record does mention, however, that the defendant threatened the minor plaintiff with physical
harm if he exposed the defendant’s conduct. Additionally, the minor plaintiff has produced
sworn affidavits from experts that he has suffered emotional injuries as a result of defendant’s

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conduct. See [Docs. 46-3 and 46-4]. He has also presented evidence of the need for future
medical services because of the injuries he has suffered. [Doc. 46-3]. The minor plaintiff seeks
money damages in the amounts of $350.00 for bringing suit, $150,000.00 per violation of the
statutes, $3,361.85 in damages for medical bills and lost wages,2 and one-third of the total
recovery for reasonable attorney’s fees.
II.

Summary Judgment Standard
Summary judgment is proper where Athe 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.@ Fed. R. Civ. P. 56(c). In ruling on a
motion for summary judgment, the Court must view the facts contained in the record and all
inferences that can be drawn from those facts in the light most favorable to the non-moving
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). The Court cannot weigh
the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a
showing, the non-moving party must present some significant, probative evidence indicating the
necessity of a trial for resolving a material factual dispute. Id. at 322.

A mere scintilla of

evidence is not enough. Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd., 244 F.3d 797,
800 (6th Cir. 2000). This Court=s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonably find for the non-moving party.

2

This amount was ordered to be paid in restitution to the plaintiff in the defendant’s criminal case. See [Docs. 47
and 48 in 2:11-CR-71].

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Anderson, 477 U.S. at 248-49; Nat=l Satellite Sports, 253 F.3d at 907. If the non-moving party
fails to make a sufficient showing on an essential element of its case with respect to which it has
the burden of proof, the moving party is entitled to summary judgment.

Celotex, 477 U.S. at

323. If this Court concludes that a fair-minded jury could not return a verdict in favor of the
non-moving party based on the evidence presented, it may enter a summary judgment.
Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
The party opposing a Rule 56 motion may not simply rest on the mere allegations or
denials contained in the party=s pleadings. Anderson, 477 U.S. at 256. Instead, an opposing
party must affirmatively present competent evidence sufficient to establish a genuine issue of
material fact necessitating the trial of that issue. Id. Merely alleging that a factual dispute exists
cannot defeat a properly supported motion for summary judgment. Id. A genuine issue for trial
is not established by evidence that is Amerely colorable,@ or by factual disputes that are irrelevant
or unnecessary. Id. at 248-52.
III.

Analysis
The plaintiffs move for summary judgment and argue that there is no genuine issue of

material fact that the defendant is liable to them pursuant to Title 18 United States Code section
2255(a) for violating section 2251(a) on at least seven occasions and section 2252A(a)(1) on at
least seven occasions. The defendant does not dispute that he was found guilty of violating
section 2251(a). However, he does dispute the number of videos which have previously been
deemed admitted. Furthermore, the defendant disputes that section 2252A(a) applies in this case,
for the plaintiffs did not bring suit pursuant to violations of this statute. In addition, he argues
that he is not liable for punitive damages pursuant to subsection (f)(2). See id. § 2252A(f)(2).
Section 2255(a) provides:

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Any person who, while a minor, was a victim of a violation of
section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260,
2421, 2422, or 2423 of this title and who suffers personal injury as
a result of such violation, regardless of whether the injury occurred
while such person was a minor, may sue in any appropriate United
States District Court and shall recover the actual damages such
person sustains and the cost of the suit, including a reasonable
attorney's fee. Any person as described in the preceding sentence
shall be deemed to have sustained damages of no less than
$150,000 in value.
18 U.S.C. § 2255(a) (2011). Thus, section 2255 provides the victim of a child sex offense with a
civil remedy for personal injury suffered as a result of various offenses related to the sexual
exploitation of children, including a violation of 18 U.S.C. § 2251, as in this case. As stated, the
statute provides that in the event a civil action is brought, the victim “shall be deemed to have
sustained damages of no less than $150,000 in value.” 18 U.S.C. § 2255.
The Complaint is not very detailed; however, it mentions, in cursory fashion, both
sections 2251 and 2252A. Therefore, the Court will treat the motion as if both sections were
properly pled. The defendant does not dispute that he violated section 2251, for he pled guilty to
such violation in the criminal case against him. Therefore, this Court must determine whether
there is a genuine issue of material fact that the defendant violated section 2252A(a)(1). After
that determination, the Court will address the actual number of violations of the statutes.
Before determining whether there is a genuine issue of material fact whether the
defendant violated section 2252A(a)(1), the Court must first determine whether a criminal
conviction is a prerequisite to the application of section 2255. If not, the Court must then decide
what standard of evidence the Court must use to determine whether the defendant violated one of
the statutes enumerated in section 2255.
This Court begins with the basic premise of statutory interpretation and looks first to the
plain language of the statute. “The language of the statute is the starting point for interpretation,
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and it should also be the ending point if the plain meaning of that language is clear.” United
States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000) (citing United States v. Ron Pair Enterprises,
489 U.S. 235, 241 (1989)).

Section 2255 is set forth above. The statutory language does not

specify whether a criminal conviction is a prerequisite to its application. As such, the Court
“must rely upon other methods of statutory interpretation,” namely the statute’s legislative
history. Smith v. Husband, 376 F.Supp.2d 603, 611 (E.D. Va. 2005). A summary of the
legislative history is thoroughly set forth in Smith v. Husband, and this Court will not summarize
it here. See id. at 611-12. For the same reasons stated in Smith, however, this Court finds that
the legislative history indicates that section 2255 does not require a criminal conviction as a
prerequisite to its application. Id. Furthermore, as in Smith, this Court concludes that the
preponderance of the evidence standard should be applied in determining whether one of the
enumerated statutes, set forth in section 2255, was violated. Id. at 613.
Having made these initial determinations, this Court must now determine whether there is
a genuine issue of material fact whether the defendant violated section 2252A(a)(1) using the
preponderance of the evidence standard.

That sections states:

“(a) Any person who--(1)

knowingly mails, or transports or ships using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce by any means, including by
computer, any child pornography” shall be guilty of an offense against the United States.

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U.S.C. § 2252A(a)(1). The plaintiff sets forth the elements of the offense in his brief as follows:
(1) that the victim was under the age of eighteen; (2) that defendant
used (or employed or persuaded or induced or enticed or coerced)
the minor victim to take part in sexually explicit conduct for the
purpose of producing (for conduct after Oct. 13, 2008, add: or
transmitting) a visual depiction of that conduct; and (3) that the
visual depiction was produced using materials that had been
mailed or transported in ( for conduct after Oct. 13, 2008, add: or
affecting) interstate or foreign commerce.
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[Doc. 46-2, Pg. 2] citing Modern Federal Jury Instructions-Criminal, Instruction 62-2. This
Court finds that these elements do not track the statute. Instead, the Court will apply the
elements as set forth by the Eleventh Circuit in its pattern instructions, considering there is not a
Sixth Circuit pattern. Thus, the elements are that “(1) the Defendant knowingly [transported]
[shipped] [mailed] [by computer] in interstate or foreign commerce an item or items of child
pornography, as charged; and (2) when the Defendant [transported] [shipped] [mailed] [by
computer] the item[s], the Defendant believed the item[s] [was] [were] child pornography.”
According to the facts, the defendant videotaped the minor engaging in sexual
intercourse.

He recorded the images with his cellular telephone, which was manufactured

outside the United States. There are no facts in the record that the defendant then transported,
shipped or mailed these images. Thus, this Court finds by a preponderance of the evidence that
the defendant did not violate this particular section. This is in no way a determination that he did
not violate other subsections of this statute. This particular subsection is the only one, in
addition to section 2251, allegedly violated by the plaintiff. Therefore, it is the only one the
Court need address.
Now this Court must determine how many times the defendant violated section 2251. It
is true that the United States magistrate judge deemed admitted that the defendant produced at
least three separate visual depictions and at least on four images on the cellular phone, [Doc. 43,
Pg. 2-3]. The plaintiff argues that there were a total of seven, and the defendant disputes this
fact. Specifically, in response to the plaintiff’s undisputed facts, the defendant stated that he “is
unaware of the existence of seven (7) videos, as counsel for Defendant has been unable to access
them to date. Defendant is unwilling to admit to the existence of these videos without further
verification of their existence.” [Doc. 59-1, Pgs. 2-3]. Nonetheless, the defendant admits that
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Detective Mike Fincher swore in his affidavit that there were seven images contained on the
phone. [Doc. 59-1, Pg. 3 and Doc. 30-1, ¶ 4]. The defendant fails to affirmatively present
competent evidence sufficient to establish a genuine issue of material fact necessitating a trial on
this issue. His mere allegation that a factual dispute exists cannot defeat the plaintiff’s properly
supported motion for summary judgment. Accordingly, this Court finds that the defendant
violated section 2251 seven times.
Next, this Court must determine whether the defendant has suffered an actual injury for
section 2255 purposes. The plaintiff submitted two affidavits from medical experts. They both
opine that the minor suffers from Posttraumatic Stress Disorder; Sexual Abuse of a Child, Focus
on Victim; and Major Depressive Disorder, Single Episode as a result of the defendant’s
conduct, [Docs. 46-3 and 46-4].

In addition, George Tvardy, M.A.R., LMFT, opines that the

minor plaintiff will need particular future services, including individual therapy, psychiatric
services, case management services, and possibly psychiatric hospitalization. The defendant
responds by stating that “[a]t this time, William Stanley [the defendant’s expert] would submit
that he is unable to determine if the conditions that this young man suffers from are directly
attributed to conduct by Defendant,” [Doc. 59, Pg. 7]. The defendant has failed to come forward
with evidence to create a genuine issue of fact for trial that the minor plaintiff has suffered an
injury as a result of the defendant’s conduct.
As a result of the findings above, this Court now can reach the issue of damages. At the
magistrate judge’s hearing on the Motions in Limine, the plaintiff agreed that he seeks no more
than the statutory minimum per violation. Therefore, he will not be required to prove the extent

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or amount of his damages. Simply, it is a matter of multiplying the seven violations by
$150,000.00 for a total of $1,050,000.00.3
The statute also allows for the recovery of actual damages,4 cost of the suit, and
reasonable attorney’s fees. The defendant does not challenge the fact that the statute awards
these things. As such, there is no genuine issue of material fact that the plaintiff is entitled to
actual damages, cost of suit and reasonable attorney’s fees. Also, plaintiffs’ counsel agreed at
the magistrate judge’s hearing on October 17, 2012 that he is not entitled to a double recovery.
The minor plaintiff was awarded $3,361.85 in restitution in the criminal case, [Doc. 48, Pg. 5].
Accordingly, any award in this case shall not include the $3,361.85.
The defendant specifically challenged two things in the context of damages, the sought
attorney’s fees and entitlement to punitive damages pursuant to section 2252A(a)(1).

The

defendant argues that the attorney’s fees should be reasonable, and a one-third contingency fee
for the attorney in this situation is not reasonable. This Court agrees. The filings are inadequate
in addressing the cost of suit and the attorney’s fees issue. Therefore, the plaintiff shall file a
more specific request accompanied by time records, etc. addressing the cost of suit and the
amount claimed in reasonable attorney’s fees. The plaintiff shall file such request within 10 days
of the entry of this order. The defendant shall respond to the request within 10 days.

3

This Court notes that the plaintiff made the argument that the defendant violated the applicable statutes 14 times,
seven for section 2251 and seven for section 2252A(a)(1). Even if this Court had found that the defendant violated
section 2252A(a)(1) seven times, this Court would still find that the plaintiff was entitled to recover under section
2255 for seven acts. The reason for such is that the same actual acts of conduct, i.e. the recording of the minor
plaintiff having sexual intercourse with adults on seven occasions, formed the basis of the alleged 2251 violations
and the 2252A(a)(1) violations, totaling seven acts. In sum, this Court interprets the term “violation” in section
2255 to mean an indictable act. See Smith, 376 F.Supp.2d at 612 (explaining legislative history of 2255 and
referring to violation as an indictable act).
4
The plaintiffs limit their claim for “compensatory damages” to an amount “not exceeding $1,000,000.00” in their
Complaint. Since the statutory amount based on the language of the statute exceeds that amount, the Court will
simply award $1,000,000.00 in compensatory damages and will not concern itself with whether plaintiffs can prove
additional actual damages.

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Finally, the only other outstanding issue is whether the plaintiff is entitled to punitive
damages pursuant to section 2252A(a)(1). Because this Court found that the defendant did not
violate subsection (a)(1), then the punitive damages provision of that statute does not apply.
Thus, the plaintiff is not entitled to punitive damages.
IV.

Conclusion
For the reasons set forth above, the plaintiff’s Motion for Summary Judgment is

GRANTED. The plaintiff shall file a more specific and detailed request for costs of suit and
reasonable attorney’s fees. Once this Court has decided the exact amount to which the plaintiff
is entitled, then it will enter judgment in the case.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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