Dillingham et al v. Millsaps et al

Filing 82

ORDER granting 67 Sheriff Bivens' and Monroe County's Motion for Summary Judgment. Signed by District Judge Thomas W Phillips on August 10, 2011. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
RODNEY NEWMAN DILLINGHAM and
WILLIAM MICHAEL MILLS,
Plaintiffs,
v.
BRIAN MILLSAPS, individually and
in his official capacity as a sergeant for
Monroe County Sheriff’s Department;
KEITH McLEMORE, individually and
in his official capacity as a deputy Sheriff
for the Monroe County Sheriff’s Department;
WILLIAM BIVENS, individually and in
his capacity as Sheriff of Monroe County,
Tennessee; and MONROE COUNTY,
TENNESSEE,
Defendants.

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No. 3:07-CV-214
(Phillips)

MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment [Doc. 67] filed by
Sheriff William Bivens1 (“Sheriff Bivens”) and Monroe County (collectively, “Defendants”). On
June 1, 2007, plaintiffs Rodney Dillingham (“Dillingham”) and William Mills (“Mills”)
(collectively, “Plaintiffs”) filed this civil rights action under 42 U.S.C. § 1983. Plaintiffs allege that
Defendants violated several of their constitutional rights, including the Fourth Amendment of the
United States Constitution. In particular, Plaintiffs allege that Deputy Sheriff Brian Millsaps2
1

Defendants state that Sheriff Bivens’s first name is “Bill,” not “William.”

2

There is some confusion about whether Brian Millsaps is a Deputy Sheriff or a Sergeant at the Monroe
County Sheriff’s Department. In their Amended Complaint [Doc. 42], Plaintiffs refer to Brian Millsaps
as “Sergeant” for the Monroe County Sheriff’s Department. In contrast, Defendants refer to Brian

1

(“Deputy Millsaps”) and Deputy Sheriff Keith McLemore (“Deputy McLemore”) used “excessive
force” in violation of the Fourth Amendment. Plaintiffs also claim that Sheriff Bivens should be
held supervisorily liable for this conduct, and that Monroe County should be held liable for having
a “custom” or “policy” authorizing the use of “excessive force.”
Plaintiffs have also brought Section 1983 claims based upon Fifth and Sixth Amendment
violations, but those claims are not presently before the Court.3 Instead, the Court will be reviewing
Plaintiffs’ “excessive force” clams against Sheriff Bivens in his individual capacity and Monroe
County. Because Sheriff Bivens was not present during the alleged incident, he may only be liable
under a theory of “supervisory” liability. To reach this question, however, the Court must first
address Plaintiffs’ underlying “excessive force” claims against Deputy Millsaps and Deputy
McLemore.

Obviously, Sheriff Bivens can only be liable if the underlying conduct was

unconstitutional. Consequently, even though Deputy Millsaps and Deputy McLemore did not join
in the Motion for Summary Judgment [Doc. 67], the Court must still address Plaintiffs’ “excessive
force” claims against them in their individual capacities. After the Court reviews Plaintiffs’
“excessive force” claims against Deputy Millsaps, Deputy McLemore, and Sheriff Bivens (all in
their individual capacities), the Court will then determine whether Monroe County–acting through
the Monroe County Sheriff’s Department–had a “custom” or “policy” encouraging the use of

Millsaps as “Deputy Sheriff.” For purposes of this Memorandum and Order, the Court will refer to Brian
Millsaps as “Deputy Millsaps.”
3

While Defendants have moved to dismiss “all” of Plaintiffs’ Section 1983 claims [See Defendants’
Memorandum of Law in Support of their Motion for Summary Judgment, Doc. 69, at 9], they only
discuss Plaintiffs’ Section 1983 claims based upon “excessive force” and their state law claims.
Consequently, because Defendants have failed to raise any argument regarding Plaintiffs’ other claims,
the Court will not address them.

2

“excessive force.” Finally, the Court will address Plaintiffs’ state law claims against Monroe
County and Sheriff Bivens in his individual capacity.
Based upon the following, the Motion for Summary Judgment [Doc. 67] is GRANTED,
whereby the Court makes the following rulings:
#

There is a genuine issue of material fact regarding Dillingham’s Section 1983 claim based
upon a Fourth Amendment violation against Deputy Millsaps and Deputy McLemore in their
individual capacities. Specifically, there is a genuine issue of material fact regarding
whether Deputy Millsaps and Deputy McLemore used “excessive force” in violation of the
Fourth Amendment.

#

Mills’s Section 1983 claim based upon a Fourth Amendment violation against Deputy
Millsaps in his individual capacity is DISMISSED WITH PREJUDICE.

#

Mills’s Section 1983 claim based upon an Eighth Amendment violation against the
Defendants is DISMISSED WITH PREJUDICE.

#

Dillingham’s Section 1983 claim based upon an Eighth Amendment violation against the
Defendants is DISMISSED WITH PREJUDICE.

#

Dillingham’s Section 1983 claim based upon a Fourteenth Amendment violation against
Deputy Millsaps and Deputy McLemore in their individual capacities is DISMISSED
WITH PREJUDICE.

#

Mills’s Section 1983 claim based upon a Fourteenth Amendment violation against Deputy
Millsaps in his individual capacity is DISMISSED WITH PREJUDICE.

#

Mills’s Section 1983 claims based upon a Fourteenth Amendment violation against Monroe
County and Sheriff Bivens in his individual capacity are DISMISSED WITH
PREJUDICE.

#

Dillingham’s Section 1983 claim based upon a Fourth Amendment violation against Sheriff
Bivens in his individual capacity is DISMISSED WITH PREJUDICE.

#

Dillingham’s Section 1983 claim based upon a Fourth Amendment violation against Monroe
County is DISMISSED WITH PREJUDICE.

#

Plaintiffs’ state law claims against Monroe County are DISMISSED WITH PREJUDICE.

#

Plaintiffs’ state law claims against Sheriff Bivens in his individual capacity are DISMISSED
WITH PREJUDICE.
3

I.

BACKGROUND
On May 11, 2007, Plaintiffs and others were camping at a lake near their home on Miller

Road in Monroe County, Tennessee. Around 11:00 p.m., after they had been drinking alcohol for
a while, Plaintiffs decided to leave and pick up Dillingham’s wife. Two other individuals, Joe
Holloway (“Holloway”) and an unknown person (“John Doe”), decided to leave with Plaintiffs.
Leaving the campsite, the men proceeded down Miller Road with John Doe driving, Mills in the
front passenger seat, and Dillingham and Holloway in the back seat. At some point, the vehicle
veered off the right side of the road, went down an embankment, and flipped over. Plaintiffs were
rendered unconscious.
Mills awoke first and found himself in the car along with Dillingham and Holloway. John
Doe, the driver of the car, was nowhere to be found. Realizing that his leg was broken, Mills woke
Dillingham to help him out of the car. Mills also attempted to wake Holloway, but Holloway had
sustained a serious head injury, and would remain unconscious for several days following the
accident.
Dillingham suffered only cuts and bruises, and was able to help Mills out of the car. Once
out, Mills attempted to stand, but instead fell down the embankment and blacked out again. Around
this same time, a passing motorist stopped by. At this point, Dillingham asked the motorist to call
for help. Following this interaction, Dillingham fell back down the embankment himself. Shortly
thereafter, deputies from the Monroe County Sheriff’s Department (“Sheriff Department”) and
emergency medical personnel arrived.
A.

Mills’s Allegations

4

Mills claims that he was lying on the ground, unconscious, when he was awakened by
something striking his right leg. [Mills Dep., Doc. 69-2, at 7, 26:11-15, Sep. 27, 2010]. Upon
opening his eyes, Mills claims that he saw Deputy Millsaps move his right leg back into a standing
position. [Id. at 10, 37:20-21]. Mills screamed and asked Deputy Millsaps why he “kicked” him.
[Id. at 7, 26:14-20]. Defendants, however, state that Deputy Millsaps only nudged Mills’s leg.
[Defendants’ Memorandum in Support of their Motion for Summary Judgment, Doc. 69, at 7].
Deputy Millsaps then asked Mills about the car accident, specifically, how many people were
in the car. [Mills Dep., Doc. 69-2, at 7, 26:14-20]. Mills told the deputy that his leg was broken4,
at which point, according to Mills, Deputy Millsaps simply walked away.5 [Id. at 8, 32:1-4]. After
Deputy Millsaps walked away, emergency medical services (“EMS”) began tending to Mills. [Id.
at 10, 39:3-15]. They strapped Mills to a backboard, carried him up the embankment, and placed
him on the road behind an ambulance. [Id.]. This is when Mills claims that he heard Dillingham
screaming in pain. [Id. at 9, 34:21-36:17]. According to Mills, it sounded as though Dillingham was
being attacked. [Id.]. However, Mills admits that he could not see what was happening. [Id.].
Because he could only hear Dillingham, Mills does not know if Dillingham was fighting with
emergency personnel or law enforcement. [Id.]. During his deposition testimony, Mills was asked
if he heard anyone tell Dillingham to stop fighting. [Id. at 9, 36:20-23]. Mills states that he could
not remember because he “wasn’t really focusing on any of that.” [Id.].

4

According to Mills, it would have been obvious that his leg was broken based on the way it was
positioned. [Mills Dep., Doc. 69-2, at 8, 32:6-8]. However, it should be noted that there was no
compound fracture and that Mills was wearing blue jeans. [Id. at 8, 32:10-22].

5

Mills admits that Deputy Millsaps never tasered him or physically touched him. [Mills Dep., Doc. 692, at 9, 33:2-4]. Mills’s “excessive force” claim is therefore directed solely to Deputy Millsaps.

5

At some point after Mills overhead the incident involving Dillingham, he was loaded onto
a stretcher behind the ambulance and approached by Deputy McLemore. [Id. at 9, 33:17-34:4]. This
was the first time that Mills encountered Deputy McLemore. [Id.]. Deputy McLemore never
touched Mills, and only asked questions about the car accident. [Id.]. This was Mills’s only contact
with Deputy McLemore. [Id.]. As such, Mills makes no allegations with respect to Deputy
McLemore. [Id.].
After his encounter with Deputy McLemore, Mills was taken by ambulance to the University
of Tennessee Medical Center. [Id. at 13, 51:2-52:16]. Once there, Mills was diagnosed with a
fractured right femur and underwent surgery the following day. [Id.]. Mills spent approximately
one week in the hospital before being released. [Id.].
B.

Dillingham’s Allegations

While the record is not clear, it appears that during the initial encounter between Mills and
Deputy Millsaps, emergency personnel were tending to Dillingham. According to his deposition
testimony, when Deputies Millsaps and McLemore approached Dillingham, he was still down the
embankment, but EMS were in the process of securing him on a backboard. [Dillingham Dep., Doc.
69-1, at 34, 136:17-138:7, Dec. 16, 2010]. Dillingham claims that the deputies began interrogating
him about the car accident, specifically asking about the driver of the vehicle. [Id.]. When he
replied that he did not know who was driving, the deputies allegedly told everyone around to “look
at the stars.” [Id.]. This, Dillingham states, is when the deputies began to beat and “taser” him.6
[Id.].
6

As the Court of Appeals for the Sixth Circuit has explained, a “taser” is “an electronic devise used to
subdue violent or aggressive individuals. By pressing a lever, a high voltage electrical current is
transmitted through a wire to the target.” Landis v. Baker, 297 F. App’x 453, 456 n.4 (6th Cir. 2008)
(quotations and citation omitted).

6

Dillingham claims that he was immobilized on the backboard as the deputies beat and tasered
him, all while continuing to question about who was driving the vehicle. [Id. at 35, 137:1-144:18].
Allegedly, the deputies held a flashlight in Dillingham’s face so that he could not see them as they
hit, kicked, and tasered him repeatedly. [Id.]. Dillingham claims that Deputy McLemore hit him
in the face with a flashlight and kicked him in the side. [Id.]. He also alleges that Deputy Millsaps
stood on his testicles, and repeatedly tasered his testicles and stomach.7 [Id.]. While Dillingham
claims that he was not combative with law enforcement officers or medical personnel, he admits that
the officers told him to stop fighting and to cooperate. [Id. at 38, 148:8-149:21].
Although he does not know the exact amount of time, Dillingham believes that the beating
lasted around thirty minutes. [Id. at 35, 137:7-16]. Dillingham claims that he suffered bruising,
neck pain, back pain, fractures, missing teeth, and taser burns. [Id. at 39, 153:15-156:19].
Dillingham provided pictures at his deposition that apparently depicted these injuries. [Id.].
However, aside from the taser marks, it is unclear from the record which injuries, if any, were the
result of the car accident, or if most of the injuries were related to the alleged beating. Notably,
Dillingham admits that he received some cuts on his head and face as a result of the accident. [Id.].
Following the car accident, Dillingham was transported to the University of Tennessee
Medical center, where he remained for around five days. [Id. at 40, 159:11-160:24]. Unfortunately,
the record does not indicate what injuries he was diagnosed with, or what treatment he was given.

7

It should be noted that Dillingham’s deposition testimony paints an unclear picture about which deputy
did what. At first Dillingham claims that Deputy McLemore beat and tasered him. [Dillingham Dep.,
Doc. 69-1, at 34, 136:22-144:18]. Then Dillingham claims that it was Deputy Millsaps who beat and
tasered him while Deputy McLemore held the flashlight. [Id.]. Next Dillingham claims that Deputy
McLemore might have hit him in the mouth with the flashlight or kicked him in the side. [Id.]. Then
Dillingham claims that it was both deputies who tasered him. [Id.]. Lastly, Dillingham claims that
Deputy Millsaps is the deputy who repeatedly tasered him in his testicles and side. [Id.].

7

However, Dillingham claims that his doctors encouraged him to seek a specialist for back injuries
following his medical discharge. [Id.]. In addition, Dillingham claims that he continues to suffer
from pain and memory loss related to his injuries. [Id. at 1, 7:22-8:1; at 8, 30:11-19].
C.

Deputy Millsaps

Deputy Millsaps disputes Dillingham’s account of the events. In particular, Deputy Millsaps
claims that he only used force because Dillingham was being combative.8 [Deputy Millsaps Dep.,
Doc. 78-1, at 11, 25:23-25]. According to Deputy Millsaps, only Dillingham’s legs were strapped
down, not his whole body, and it appeared that Dillingham was trying to hit the emergency
personnel. [Id. at 11, 26:9-22]. Deputy Millsaps also denies that he kicked Dillingham, stepped on
his testicles, or used his flashlight. [Id. at 10, 25:14-18]. Notwithstanding, Deputy Millsaps does
admit that he used the taser on Dillingham. [Id.]. Dillingham was apparently not suffering from
significant injuries at the time. [Id. at 13, 28:9-17]
According to Deputy Millsaps, Dillingham did not comply with his verbal commands to stop
fighting with the medical personnel. [Id. at 15, 30:24-31:13]. Instead, Dillingham kept “flailing”
his fists at emergency workers. [Id.]. In response to the alleged combative behavior, Deputy
Millsaps tasered Dillingham once in the upper body. [Id. at 10, 25:14-17; at 16, 31:19-32:6].
Deputy Millsaps states that he tasered Dillingham only once because it did not work, and because
he did not want to risk hurting himself or Dillingham by doing it again.9 [Id. at 16, 31:19-32:6].
Further, Deputy Millsaps states that Deputy McLemore was next to his side during the tasering and

8

The record contains no testimony from Deputy McLemore.

9

Although tasers generally record the date, time, and duration of each use, that information has not been
provided in the record.

8

that he (Deputy Millsaps) never told anyone to turn away prior to using his taser. [Id. at 13, 28:1820, at 14, 29:11-13].
Following the incident, Dillingham and Mills filed formal complaints with the Sheriff’s
Department. [Defendants’ Statement of Material Facts, Doc. 70, at 3, ¶ 20]. Although it is not clear
why, Deputy Millsaps was discharged following his interview with department investigators.10 [Id.
at ¶ 22]. The District Attorney was notified about the complaints and the Tennessee Bureau of
Investigation (“TBI”) conducted their own investigation. [Id. at 4, ¶ 29]. Ultimately, a grand jury
refused to indict either of the deputies. [Id.].
Deputy Millsaps further testified about his training on the appropriate use of force. [Id. at
4, 6:2-5, at 6, 11:4-6]. Deputy Millsaps graduated from the Tennessee Law Enforcement Training
Academy (the “Academy”) in 1996 where he received training on the use of force. [Id.]. At the
time of the incident (May 11, 2007), Deputy Millsaps was in good standing with the Sheriff’s
Department and had not received any complaints. [Sheriff Bivens Affidavit, Doc 68, at 3, ¶ 5].
Deputy Millsaps was also up to date on his annually-required forty hours of continuing education.
[Bivens Affidavit, Doc 68, at 3, ¶ 5]. Additionally, Deputy Millsaps states that he received training
at the Academy on how to deal with belligerent individuals. [Deputy Millsaps Dep., Doc. 78-1, at
8, 13:5-16]. This training was refreshed every couple of years. [Id.]. Despite receiving this
training, Deputy Millsaps admits that he never received, or saw, a copy of the Monroe County
Sheriff’s Department Policy Manual (“Policy Manual”). [Id. at 5, 9:2-7].
Deputy Millsaps also attended a taser training class in the fall of 2006 that lasted four to
eight hours. [Id. at 6, 11:10-18]. During this class, he was instructed on the appropriate use of force,
10

Deputy McLemore was also discharged for failing to show up for his required interview. [Defendants’
Statement of Material Facts, Doc. 70, at 3, ¶ 21].

9

both generally and specifically with regard to using tasers. [Id. at 6, 11:7-12]. For example, Deputy
Millsaps was taught that using a taser is appropriate when a person does not respond to verbal
commands and is being combative. [Id. at 8, 13:17-14:12].
D.

Sheriff Bivens

Sheriff Bivens, by his own affidavit, states that he was not at the scene of the accident, and
that he has never had any contact with the Plaintiffs. [Sheriff Bivens Affidavit, Doc. 68, at 2, ¶ 4].
Plaintiffs also confirm that they have never spoken with Sheriff Bivens, or had contact with him.
[Plaintiffs’ Responses to Defendants’ Statement of Material Facts, Doc. 74, at 5, ¶ 19].
Additionally, Sheriff Bivens claims that he is unaware of any previous complaints being filed against
Deputies Millsaps and McLemore. [Sheriff Bivens Affidavit, Doc. 68, at 3, ¶ 6]. Although it is
disputed by Deputy Millsaps, Sheriff Bivens claims to have provided both deputies with copies of
the Policy Manual. [Id. at 3, ¶ 5]. Sheriff Bivens also states that both deputies were up to date on
their required forty hours of inservice. [Id.].
It was only after Dillingham and Mills filed their complaints that Sheriff Bivens learned
about the incident. [Id. at 2, ¶ 4]. Sheriff Bivens attempted to interview Deputies Millsaps and
McLemore about the complaints. [Id. at 4, ¶ 7]. However, Deputy McLemore did not appear and
was discharged. [Id.]. While Deputy Millsaps did provide an interview, he was discharged as a
result of some confusion about the interview process. [Id.]. According to Sheriff Bivens, he has
never made a finding that the incident happened as Plaintiffs allege. [Id. at 4, ¶ 8]. Instead, he states
that the deputies were discharged for failing to follow the internal investigation procedures. [Id.].
As previously mentioned, Sheriff Bivens notified the District Attorney who, after a TBI

10

investigation, presented the case to a grand jury that ultimately decided not to indict the two
deputies. [Id. at 4, ¶ 9].
II.

STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

“if 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). In considering a motion for
summary judgment, a court must construe the facts and draw all inferences therefrom in the light
most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zendith Radio
Corp., 475 U.S. 574, 587 (1986). A genuine issue of material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The moving party bears the initial burden of establishing that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The central inquiry is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The
burden then shifts to the non-moving party to demonstrate the existence of genuine issues of material
fact. Celotex, 477 U.S. at 324. The non-moving party must present “significant probative evidence”
to show that there is more than “some metaphysical doubt as to the material facts.” Moore v. Phillip
Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993). Notably, the Court “is not required to speculate on
which portion of the record the nonmoving party relies, nor is it obligated to wade through and
search the entire record for some specific facts that might support the nonmoving party’s claim.”

11

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). If the non-moving party fails to
meet this burden, the moving party is entitled to summary judgment.
III.

ANALYSIS
A.

Plaintiffs’ Section 1983 Claims Based Upon “Excessive Force”
1.

Defining the Parties

In addressing civil rights claims brought under 42 U.S.C. § 1983, courts must always begin
with the following question: who did the plaintiff sue, and in what capacity? This is an important
question, as it determines what the plaintiff must prove, and what defenses are available. In the
present case, Plaintiffs have sued three local government officers: Sheriff Bivens, Deputy Millsaps,
and Deputy McLemore. Plaintiffs have sued the officers in their individual and official capacities.
Based upon the capacity, Plaintiffs will have different burdens of proof,11 and Defendants will have
different defenses.12 To the extent that Plaintiffs have sued Sheriff Bivens, Deputy Millsaps, or
11

In Monell v. Department of Social Services of New York, the Supreme Court recognized that local
government units (and local government officers and officials) may be sued under 42 U.S.C. § 1983, and
that they are not part of the “State” for purposes of Section 1983 liability. 436 U.S. 658, 691 (1978). The
Court also stated that when local government officials are sued in their official capacity, it should be
treated as suits against the local government unit: “Since official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent . . . our holding today
that local government can be sued under § 1983 necessarily decides that local government officials sued
in their official capacities are ‘persons’ under § 1983 in those cases in which, as here, a local government
would be suable in its own name.” Id. at 691 n.55. As the Supreme Court later explained in Kentucky v.
Graham, “[a]s long as the government entity receives notice and an opportunity to respond, an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit
against the official personally, for the real party in interest is the entity. Thus, while an award of damages
against an official in his personal capacity can be executed only against the official’s personal assets, a
plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the
government entity itself.” 473 U.S. 159, 166 (1985) (citations omitted).
12

Municipal (or local government) officers are “insulated by the ‘qualified’ or ‘good faith’ immunity
doctrine from exposure to ‘individual capacity’ lawsuits anchored in a discretionary official decision if
‘their conduct does not violate clearly established [federal] statutory or constitutional rights of which a
reasonable person would have known,’ even if their actions actually violated the plaintiff’s federal
rights.” Von Herbert v. City of St. Clair Shores, 61 F. App’x 133, 141 (6th Cir. 2003) (internal citations
omitted). The “qualified immunity” defense is not available in official-capacity suits, which are treated as

12

Deputy McLemore, in their official capacities, that is nothing more than a suit against Monroe
County. See, e.g., Leach v. Shelby Cnty., 891 F.2d 1241, 1245-46 (6th Cir. 1989) (“[The plaintiff’s]
suit against the Mayor and the Sheriff of Shelby County in their official capacities is, therefore,
essentially and for all purposes, a suit against the County itself.”); Petty v. Cnty. of Franklin, 478
F.3d 341, 349 (6th Cir. 2007) (“To the extent that [the plaintiff’s Section 1983] suit is against [the
sheriff] in his official capacity, it is nothing more than a suit against Franklin County itself.”) (citing
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official capacity suit is, in all respects other
than name, to be treated as a suit against the entity.”)).
In addition to suing three individuals, Plaintiffs have sued Monroe County–which includes
the Monroe County Sheriff’s Department.13 For purposes of Section 1983, Monroe County is
considered a municipal (or local) government. See, e.g., Leach, 891 F.2d at 1245-46.
2.

Only Dillingham Has Standing to Bring a Fourth Amendment Claim

To state a claim under 42 U.S.C. § 1983, the plaintiff must establish “(1) that [the] defendant
was acting under color of state law, and (2) the offending conduct deprived the plaintiff of rights
secured under federal law.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). As an initial
matter, the Court must determine whether the Plaintiffs have standing to bring a claim under the

suits against the entity. Id. Rather, the “qualified immunity” defense exonerates individual-capacity
defendants from liability for their discretionary judgments. Sheets v. Mullins, 287 F.3d 581, 686 (6th Cir.
2002). Once the defense is raised, the “ultimate burden of proof is on the plaintiff to show that the
defendants are not entitled to qualified immunity.” Rich v. City of Mayfield Hts., 955 F.2d 1092, 1095
(6th Cir. 1992) (citations omitted).
13

There are two ways of referring to Plaintiffs’ claims against Monroe County. They may be referred to
as claims against “Sheriff Bivens in his official capacity as Sheriff of the Monroe County Sheriff’s
Department,” or they may be referred to as claims against “Monroe County.” See, e.g., Petty v. Cnty. of
Franklin, 478 F.3d 341, 349 (6th Cir. 2007). It makes no difference in the Court’s analysis.

13

Fourth Amendment.14 The Plaintiffs will only have standing if they were “seized” during the alleged
“excessive force.” See, e.g., Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006) (recognizing that the
“safeguards of the Fourth Amendment, with respect to police/citizen contact, vest only after a citizen
has been seized”) (citation and internal quotation marks omitted). A seizure occurs when, “in view
of all the circumstances surrounding the incident, a reasonable person would have believed he was
not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Generally, a “seizure” occurs in two ways: (1) through the use of physical force by the
officer; or (2) through “show of authority” by the officer, in which the suspect actually submits. See
Peete v. Metro. Gov’t of Nashville & Davidson Cnty., 486 F.3d 217, 220 (6th Cir. 2007) (citing Scott
v. Harris, 550 U.S. 372 (2007)). The Court of Appeals for the Sixth Circuit (“Sixth Circuit”) has
recognized the following circumstances as indicative of a seizure: “‘the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the officer’s request
might be compelled.’” United States v. Jones, 562 F.3d 768, 772 (6th Cir. 2009) (quoting
Mendenhall, 446 U.S. at 554). Because Plaintiffs were not arrested following the car accident, the
Court must look to other facts to determine whether they were “seized.” In addition, the Court must
analyze the standing question separately for each Plaintiff. See Rakas v. Illinois, 439 U.S. 128, 13334 (1978) (citations omitted) (“Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.”).
First, the Court finds that Dillingham was seized for purposes of the Fourth Amendment.
Notably, Deputy Millsaps admits that he shot Dillingham with a taser gun in an attempt to restrain
14

Or more precisely, whether Plaintiffs have standing to bring a claim under 42 U.S.C. § 1983 premised
upon the use of “excessive force” by Deputy Millsaps and Deputy McLemore in their individual
capacities, in violation of the Fourth Amendment.

14

him. Courts across the country, including the Sixth Circuit, have recognized that the use of tasers
may constitute a “seizure” for purposes of the Fourth Amendment. See Kijowski v. City of Niles,
472 F. App’x 595, 598-99 (6th Cir. 2010) (implicitly recognizing that the use of a taser twice
constitutes a “seizure” for purposes of the Fourth Amendment); Landis v. Baker, 297 F. App’x 453,
463 (6th Cir. 2008) (recognizing that the multiple use of a taser, in combination with the use of a
police baton, constitutes a “seizure” for purposes of the Fourth Amendment); Bryan v. MacPherson,
630 F.3d 805, 810 (9th Cir. 2010) (finding that the use of tasers and similar devices constitutes an
“intermediate, significant level of force that must be justified by the governmental interests
involved”) (citation omitted); Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008) (rejecting the
contention that a taser constitutes a de minimus level of force); Hickey v. Reeder, 12 F.3d 754, 757
(8th Cir. 1993) (“We find defendants’ attempt, on appeal, to minimize the pain of being shot with a
stun gun . . . to be completely baseless. The defendants’ own testimony reveals that a stun gun
inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body,
rendering the victim helpless.”); Crowell v. Kirkpatrick, 667 F. Supp. 2d 391, 408 (D. Vt. 2009)
(recognizing that tasers have “been described by other courts as ‘moderate, non-lethal force” and
cause “acute–even severe–physical pain”). It does not matter whether Dillingham was combative
(that fact is only relevant to whether the officers’ force was “reasonable” under the Fourth
Amendment); the point is that the deputy sheriffs used physical force to restrain a person against his
will. That is the very definition of a “seizure”: intentionally restricting a person’s physical
movement. Considering the facts as a whole, and viewing the evidence in the light most favorable
to Dillingham, the Court finds that a reasonable person in Dillingham’s position would “have
believed he was not free to leave.” Mendenhall, 446 U.S. at 554. Accordingly, the Court finds that

15

Dillingham was “seized,” and therefore has standing to bring a Fourth Amendment claim under 42
U.S.C. § 1983.
Second, the Court finds that Mills was not seized for purposes of the Fourth Amendment.
Having reviewed the record, there is no evidence that Deputy Millsaps or Deputy McLemore
restrained Mills by “show of authority.” After Deputy Millsaps and Deputy McLemore arrived at
the scene, Deputy Millsaps questioned Mills about the car accident (and specifically, about the
driver of the vehicle who was no longer present).15 There is no evidence that Deputy Millsaps was
forceful, abrasive, or controlling with Mills. There is no evidence that Deputy Millsaps pointed a
weapon at Mills, or threatened him in some manner. Deputy Millsaps simply asked questions about
the car accident; he was not interrogating him or accusing him of criminal liability. There is no
evidence that it went beyond general questioning. As the Supreme Court has made clear, general
questioning by the police in public does not constitute a “seizure.” See Florida v. Bostick, 501 U.S.
429, 434 (1991) (“Our cases make it clear that a seizure does not occur simply because a police
officer approaches an individual and asks a few questions. . . . ‘Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen may we
conclude that a ‘seizure’ has occurred.’”) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). See
also United States v. Jahkur, 409 F. Supp. 2d 28, 30-31 (D. Mass. 2005) (finding that a plaintiff who
had just been in a car accident was not seized, even though he was questioned by police officers,
because the questioning only amounted to“general questioning” and therefore was a consensual
encounter).
15

By his own testimony, Mills admits that Deputy McLemore did not physically touch him or question
him in an abrasive manner. Thus, Mills’s Fourth Amendment “excessive force” claim is based solely
upon the alleged “kicking” by Deputy Millsaps. Consequently, the Court will focus exclusively on
Deputy Millsaps’s actions in determining whether Mills was “seized.”

16

Moreover, the fact that Deputy Millsaps and Deputy McLemore “controlled” the
environment–they were investigating a car accident–makes no difference. As the Sixth Circuit has
recognized, “[t]he distinguishing feature of a seizure is the restraint of the subject’s
liberty–specifically, his or her freedom to walk away. Control [by law enforcement] over one’s
environment does not establish a seizure unless that control somehow restricts the subject’s physical
liberty.” Ewolski v. City of Brunswick, 287 F.3d 492, 507 (6th Cir. 2002). Even though Deputy
Millsaps and Deputy McLemore had control over the environment, that does not mean that they
restricted Mills’s physical liberty. Even if Deputy Millsaps “nudged” or “kicked” Mills’s leg, there
is no evidence that it was done to restrain him from leaving the scene. Mills could not walk away
because he had a broken leg; it was not because law enforcement prevented him from doing so. In
other words, the fact that Mills did not leave the scene does not mean that he submitted to authority.
His movement was restrained by his own condition, not by law enforcement.
Mills’s entire Fourth Amendment claim against Deputy Millsaps rests upon his broken leg
being “kicked.” At this time, however, Dillingham had not yet started screaming in response to the
taser or other force being applied. Because Mills was unaware of his surroundings at the time he
was allegedly kicked, there is no reason to think that he was somehow influenced–that is, decided
to submit to authority–based upon what was happening to Dillingham. Consequently, the Court
does not find that a reasonable person in Mills’s situation would have felt restrained from leaving
the scene based upon the actions of law enforcement.

It was his condition–not law

enforcement–that made him incapable of leaving. Accordingly, the Court finds that Mills does not
have standing to bring a Fourth Amendment “excessive force” claim under 42 U.S.C. § 1983.
Consequently, Mills’s Fourth Amendment “excessive force” claims against Sheriff Bivens in his

17

individual capacity, Deputy Millsaps in his individual capacity, Deputy McLemore in his individual
capacity, and Monroe County, are DISMISSED WITH PREJUDICE.

3.

Plaintiffs’ Eighth Amendment Claims are Dismissed

To the extent that Plaintiffs have asserted “excessive force” claims under the Eighth
Amendment, [Plaintiffs’ Amended Complaint, Doc. 42, at 5, ¶ 28], those claims are dismissed. In
order to raise an Eighth Amendment “excessive force” claim, (which falls under the category of
“cruel and unusual punishment”), the plaintiff must have suffered an injury as a prisoner. See Aldini
v. Johnson, 609 F.3d 858, 864 (6th Cir. 2011) (citations omitted); Whitley v. Albers, 475 U.S. 312,
318 (1986) (recognizing that the Eighth Amendment “was designed to protect those convicted of
crimes and consequently . . . applies only after the State has complied with constitutional guarantees
traditionally associated with criminal prosecutions”) (citation and internal quotations omitted);
Phelps v. Coy, 286 F.3d 295, 299-300 (6th Cir. 2002) (“Which amendment applies depends on the
status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or
something in between. . . . If the plaintiff was a free person . . . and the use of force occurred in the
course of an arrest or other seizure . . . [then] the plaintiff’s claim arises under the Fourth
Amendment and its reasonableness standard.”) (internal citations omitted). When Dillingham and
Mills were questioned by the officers, they were obviously not prisoners. Consequently, to the
extent that Plaintiffs have asserted Eighth Amendment “excessive force” claims, those claims are
DISMISSED WITH PREJUDICE.
4.

Dillingham’s Fourteenth Amendment Substantive Due Process Claim is
Dismissed

18

In their Amended Complaint [Doc. 42], Plaintiffs allege that “[t]he battery, taser ‘shocking,’
and other misconduct by defendants Millsaps and McLemore violated the substantive Due Process
rights of the Plaintiffs guaranteed by the 14th Amendment.” [Plaintiffs’ Amended Complaint, Doc.
42, at 5, ¶ 26]. However, as the Court previously explained, Dillingham’s claims based upon
“excessive force” must be analyzed under the Fourth Amendment, not the Eighth or Fourteenth
Amendments, because he was “seized” during the alleged incident. See Rodriguez v. Passinault, 637
F.3d 675, 680 n.4 (6th Cir. 2011) (“Where a plaintiff complains of an unreasonable seizure, the claim
is more properly analyzed under the Fourth Amendment than the Fourteenth Amendment’s
substantive due process provision, since the former is a ‘more explicit textual source of
constitutional protection.’”) (quoting Graham v. Connor, 490 U.S. 386, 395(1989)); Reiff v. Marks,
No. 08-CV-05963, 2009 WL 2058589, at *3 (E.D. Pa. Jul. 15, 2009) (rejecting a substantive due
process claim brought for conduct that allegedly occurred during an arrest because “the Court must
follow Graham . . . and its progeny, which require the Court to analyze the alleged incident under
the Fourth Amendment because, regardless of the label or caption, [the plaintiffs’s] factual
allegations amount to allegations of excessive force in the context of an arrest”). Accordingly,
Dillingham’s “substantive due process” claim (based upon “excessive force”) under the Fourteenth
Amendment is DISMISSED WITH PREJUDICE.
5.

Mills’s Fourteenth Amendment Substantive Due Process Claim is
Dismissed

While Mills does not have standing to bring a claim under the Fourth Amendment–he was
not “seized” following the car accident, see Part III.A.2–he may still bring an “excessive force”
claim under the substantive due process clause of the Fourteenth Amendment. In Darah v. City of
Oak Park, the Sixth Circuit recognized that “[w]hile excessive force claims are often best analyzed
19

under the Fourth Amendment’s protection against unreasonable seizures,” there may be instances
in which a plaintiff is subjected to “excessive force,” but was not “seized” at the time and therefore
cannot rely upon the Fourth Amendment. 255 F.3d 301, 305-06 (6th Cir. 2001). Under these
circumstances, “the substantive component of the Fourteenth Amendment’s due process clause is
the most appropriate lens with which to view an excessive force claim.” Id. (citing Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998)). See also Claybrook v. Birchwell, 199 F.3d
350, 359 (6th Cir. 2000) (recognizing that “constitutional tort claims asserted by persons collaterally
injured by police conduct who were not intended targets of an attempted official ‘seizure’ are
adjudged according to substantive due process norms”) (citing Lewis, 523 U.S. 833).
Under this standard, plaintiffs will face “[a] substantially higher hurdle” than the Fourth
Amendment’s “objective reasonableness” test. Darrah, 255 F.3d at 306 (citations omitted). Rather,
the substantive due process clause of the Fourteenth Amendment is not violated unless the alleged
conduct “shocks the conscience.” Lewis, 523 U.S. at 846. This, of course, will depend upon the
facts and circumstances of each case. Id. at 851-53. Specifically, the Supreme Court held that in
situations where the implicated government actors
are afforded a reasonable opportunity to deliberate various
alternatives prior to electing a course of action . . ., their actions will
be deemed conscience-shocking if they were taken with ‘deliberate
indifference’ towards the plaintiff’s federally protected rights. In
contradistinction, in a rapidly evolving, fluid, and dangerous
predicament which precludes the luxury of calm and reflective preresponse deliberation . . ., public servants’ reflexive actions ‘shock
the conscience’ only if they involved force employed ‘maliciously
and sadistically for the very purpose of causing harm’ rather than ‘in
a good faith effort to maintain or restore discipline.’

20

Id. at 852-53. Because the present case involves a situation in which Deputy Millsaps had a
“reasonable opportunity to deliberate various alternatives prior to electing a course of action,”16 he
will be held liable if his actions were done with “deliberate indifference towards the plaintiff’s
federally protected rights.” Id. at 853. See also Hunt v. Sycamore Comm. Sch. Dist. Bd. of Educ.,
542 F.3d 529, 541 (6th Cir. 2008) (stating that “if the situation is an emergency, the heightened intent
standard would apply, and if there is time to deliberate, the lower deliberate indifference standard
would apply”) (collecting cases in the Sixth Circuit). Even when viewing the facts in the light most
favorable to Mills–the non-moving party–there is not a genuine issue of material fact regarding
whether Deputy Millsaps acted with “deliberate indifference.”
As a result of the car accident, Mills suffered a broken leg (fractured right femur) and was
unconscious for a period of time. It is possible, even likely, that Deputy Millsaps touched Mills’s
leg in an attempt to wake him. At most, Deputy Millsaps was negligent in causing harm to Mills.
While Mills claims that his leg was “obviously” broken, there was not a compound fracture, and he
was wearing blue jeans (which may have obscured the injury). Combined with the fact that Mills
was previously unconscious–and therefore could not state whether he was injured–it is entirely
possible that Deputy Millsaps was unaware of the severity of Mills’s injuries. While Deputy
Millsaps may have made a mistake in touching Mills’s leg, that is not the type of conduct that
“shocks the conscience.” As the Supreme Court made clear in Lewis, negligence is not enough to
support a cause of action under the substantive due process clause. Id. at 849 (recognizing that “the
Constitution does not guarantee due care on the part of state officials; liability for negligently
16

This is not a case in which law enforcement agents had to make decisions in a time-pressured
environment. While Deputy Millsaps and Deputy McLemore were investigating a car accident, there is
no indication that it was an emergency, or that they were under some exceptional pressure. Notably, there
were medical personnel at the scene tending to the injured passengers.

21

inflicted harm is categorically beneath the threshold of constitutional due process”) (citations
omitted). Rather, “[i]t is, on the contrary, behavior at the other end of the culpability spectrum that
would most probably support a substantive due process claim; conduct intended to injure in some
way unjustifiable by any government interest is the sort of official action most likely to rise to the
conscience-shocking level.” Id. (citation omitted). Given this high standard, and the lack of
evidence showing that Deputy Millsaps was more than negligent, Mills’s “substantive due process
claim” (based upon “excessive force”) under the Fourteenth Amendment is DISMISSED WITH
PREJUDICE. In addition, Mills’s substantive due process claims (based upon “excessive force”)
under the Fourteenth Amendment against Monroe County and Sheriff Bivens in his individual
capacity–that is, for “failure to train”–are also DISMISSED WITH PREJUDICE. Having found
that there was no underlying constitutional violation, Monroe County and Sheriff Bivens cannot be
held liable. In Claybrook, the Sixth Circuit affirmed the dismissal of a Section 1983 claim against
the county, based upon a substantive due process violation (“excessive force” in the form of “failure
to train,” as in the present case), after finding that there was no underlying unconstitutional conduct:
Furthermore, because the charged official conduct did not inflict any
constitutional deprivation upon Quintana, defendant Kirchner, in his
official capacity as the Chief Executive Officer of the
Nashville–Davidson County Metropolitan Police Department, cannot
be liable to her for any alleged neglect to train or supervise those
officers, or failure to develop appropriate deadly force policies . . .
199 F.3d at 361. The same holds true in this case.

6.

The Court Must First Address Dillingham’s Fourth Amendment Claims
Against Deputy Millsaps and Deputy McLemore in their Individual
Capacities

22

As a basis for his Fourth Amendment claim against Sheriff Bivens in his individual capacity,
Dillingham argues that Sheriff Bivens should be held supervisorily liable for the alleged “excessive
force” used by Deputy Millsaps and Deputy McLemore. While Sheriff Bivens was not present
during the incident, Plaintiffs may still hold him liable under a theory of “supervisory” liability.
However, before the Court can analyze Dillingham’s claims against Sheriff Bivens in his
individual capacity, the Court must first examine Dillingham’s claims against Deputy Millsaps and
Deputy McLemore in their individual capacities. Obviously, Sheriff Bivens can only be liable if the
underlying conduct was unconstitutional. For those same reasons, Monroe County cannot be held
liable if Deputy Millsaps’s and Deputy McLemore’s actions were constitutional. See City of L.A.
v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If a person has suffered no constitutional injury
at the hands of the individual police officer, the fact that the departmental regulations might have
authorized the use of unconstitutionally excessive force is quite beside the point.”); Jones v. City
of Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008) (“A municipality cannot be held liable under § 1983
absent an underlying constitutional violation by its officer.”). While Deputy Millsaps and Deputy
McLemore did not join in the Motion for Summary Judgment [Doc. 67], the Court must still
consider Dillingham’s claims against them in their individual capacities. In addition, the Court must
examine the individual actions of each officer separately. Gaddis v. Redford Twp., 364 F.3d 763,
772 (6th Cir. 2004).

7.

Dillingham’s Fourth Amendment Claim Against Deputy Millsaps and
Deputy McLemore in their Individual Capacities: There is a Genuine
Issue of Material Fact Regarding Whether Deputy Millsaps and Deputy
McLemore Used “Excessive Force” in Violation of the Fourth
Amendment

23

When a plaintiff brings a claim of “excessive force” against an officer, and the plaintiff was
“seized” at the time of the alleged incident, that claim is analyzed under the Fourth Amendment.
Graham, 490 U.S. at 395. These claims are evaluated under the “objective reasonableness” standard,
“which depends on the facts and circumstances of each case viewed from the perspective of a
reasonable officer on the scene and not with 20/20 hindsight.” Fox v. DeSoto, 489 F.3d 227, 236
(6th Cir. 2008) (citing Graham, 490 U.S. at 395-96. Relevant considerations include “the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396. As the Sixth Circuit has stated, the Fourth Amendment “does not require officers
to use the best technique available as long as their method is reasonable under the circumstances.”
Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996). Thus, the inquiry is an objective one:
“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at
397. In determining whether there has been a violation of the Fourth Amendment, “we consider not
the ‘extent of the injury inflicted’ but whether an officer subjects a detainee to ‘gratuitous
violence.’” Miller v. Sanilac Cnty., 606 F.3d 240, 252-53 (6th Cir. 2010) (citation omitted).
Ultimately, the Court must decide whether “under the totality of the circumstances, the
officer’s actions were objectively reasonable.” Fox, 489 F.3d at 236-37 (citing Kostrzewa v. City
of Troy, 247 F.3d 633, 639 (6th Cir. 2001)). In evaluating the reasonableness of an officer’s use of
force, the Court must consider “(1) the severity of the crime at issue, (2) whether the suspect posed
an immediate threat to the safety of the police officers or others, and (3) whether the suspect resisted

24

arrest or attempted to evade arrest by fight.” Floyd v. City of Detroit, 518 F.3d 398, 407 (6th Cir.
2008) (citing Smoak, 460 F.3d at 783).
The Sixth Circuit recently held that multiple taser applications over a period of “several
seconds” can, when coupled with other abuses, amount to excessive force. Landis, 297 F. App’x
at 460-61. In Landis, the plaintiff (who was the daughter of a suspect who died in police custody)
brought a Section 1983 civil rights action against a Michigan State Trooper and three deputy
sheriffs. Id. Like the present case, the plaintiff argued that the government officers used “excessive
force” in violation of the Fourth Amendment. Id.
In Landis, police officers arrived at an interstate highway after receiving calls that a
bulldozer was blocking traffic lanes. Id. at 455. When the police officers found the suspect (who
had allegedly moved the bulldozer), he immediately fled on foot. Id. Eventually, the officers caught
up with the suspect, at which point, the suspect choked one of the officers and fled away. Id. at 456.
Shortly thereafter, officers found the suspect again. Id. This time the suspect was standing in a pool
of water, without a weapon, and unresponsive. Id. The officers hit the suspect with a baton ten
times, and tased him a total of five times. Id. In addition, the officers submerged the suspect’s face
in water for 10-15 seconds. Id. at 456-57.
During this time, the suspect was unarmed and no longer a threat to anyone’s safety. Id. In
addition, while the suspect had previously fled the scene, he was not suspected of committing a
violent offense (again, he was suspected of moving a bulldozer). Id. In considering these facts, the
Sixth Circuit held that the officers used “excessive force” in violation of the Fourth Amendment.
Id. As one district court has stated, “Landis instructs that, where the troubling use of force was
committed against a suspect that was at most guilty of a ‘minor and non-violent crime,’ and the

25

suspect was ‘surrounded,’ ‘unarmed,’ and ‘no longer a threat,’ the likelihood that the troubling use
of force may be considered a constitutional violation is significantly heightened.” Lee v. Metro.
Gov’t of Nashville & Davidson Cnty., 596 F. Supp. 2d 1101, 1117 (M.D. Tenn. 2009) (citing
Landis, 297 F. App’x at 460-61).
In applying the first factor (“severity of the crime”), Floyd, 518 F.3d at 407, the Court notes
that when law enforcement arrived on scene, there was no evidence that Dillingham had committed
a violent offense. At most, Dillingham was responsible for driving while intoxicated, or failing to
tell the officers where the unknown driver was. Because this is not a violent offense, this factor
weighs in Dillingham’s favor. This not to downplay the seriousness of drunk driving; it is simply
meant to distinguish Dillingham from the types of plaintiffs who commit violent offenses prior to
being “seized,” and therefore pose a greater threat to officer safety.
As for the second factor, there is mixed evidence regarding whether Dillingham posed an
“immediate threat” to law enforcement. Dillingham claims that at the time he was tased, he was
already secured on a backboard by medical personnel, and that the taser shot was therefore
unnecessary. [Dillingham Dep., Doc. 69-1, at 34, 136:17-138:7]. Dillingham also claims that
Deputy McLemore hit him in the face with the flashlight and kicked him in his side, and that Deputy
Millsaps tased him in his testicles and stomach–all while being immobilized on a backboard. [Id.,
at 35, 137:1-144:18]. In contrast, Deputy Millsaps states that he only tasered Dillingham once, and
that it was because Dillingham was being combative with the medical personnel. [Deputy Millsaps
Dep., Doc. 78-1, at 16, 31:19-32:6]. Deputy Millsaps also denies that he or Deputy McLemore used
any additional force on Dillingham. [Id.]. In addition, the Court notes that while Dillingham was
involved in a car accident, he only suffered cuts and bruises, and was not severely injured.

26

Dillingham was in a much better condition than Mills, who fractured his right femur. Thus, even
though Dillingham was injured in a car accident, he was still capable of posing a threat to law
enforcement or medical personnel.
If Dillingham was combative, this would be an important distinction from Landis. In that
case, the suspect was not combative with law enforcement when he was beaten and tased. Landis,
297 F. App’x at 460-61. In addition, it unclear how many times Dillingham was tased, or if he was
physically beaten. In Landis, the suspect was beaten with a police baton ten times and tased five
times over a short amount of time. Id. In the present case, the only fact that both parties agree upon
is that Deputy Millsaps tased Dillingham at least once. Obviously, if Dillingham was tased after
being immobilized on the backboard, this factor would weigh in his favor. The same would be true
if he was beaten with a flashlight, kicked, or hit after being immobilized. However, if Dillingham
was combative with medical personnel, and Deputy Millsaps only tased Dillingham once, that fact
would weigh in the Defendants’ favor.

Based upon the conflicting evidence in the

record–particularly, the deposition testimony–this factor does not weigh in either party’s favor.
As for the third factor, while Dillingham did not resist an “arrest” (he was never actually
arrested), he did resist medical attention. While Dillingham claims that he was not being combative,
he does admit that the deputy sheriffs told him to stop fighting and cooperate. [Dillingham Dep.,
Doc. 69-1, at 38, 148:8-149:21]. Again, based upon the mixed evidence in the record, this is a
question of credibility. Neither party has provided evidence to support their position, other than
their own word.
For purposes of summary judgment, the Court must draw all reasonable inferences in favor
of the non-moving party. See Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.

27

2003) (in construing a motion for summary judgment, “the court must view the evidence and draw
all reasonable inferences in favor of the nonmoving party”) (citing Matsushita Elec. Indus., 475 U.S.
at 587). At issue is “whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477
U.S. at 251-52. In this case, the evidence–which is mostly testimony–is not “so one-sided that one
party must prevail as a matter of law.” Id. There are too many important questions, and not enough
answers. Was Dillingham combative with the medical personnel or law enforcement? When was
Dillingham tased? Was it after he was immobilized, or before? How many times was he tased? If
there were multiple applications, did they happen close in time? These are ultimately going to be
credibility determinations for the jury–not the Court–to make. See Vaughn v. City of Lebanon, 18
F. App’x 252, 266 (6th Cir. 2001) (“The determination of objective reasonableness is particularly
fact-based, and, when accounts differ, requires credibility determinations among witnesses to assess
the propriety of an officer’s actions. Such determinations are matters for the jury, and not the
court.”). At this time, the Court cannot hold, as a matter of law, in favor of either party.
Accordingly, the Court finds that there is a genuine issue of material fact regarding Dillingham’s
Fourth Amendment “excessive force claim” against Deputy Millsaps and Deputy McLemore in their
individual capacities.
8

Dillingham’s Fourth Amendment Claim Against Sheriff Bivens in His
Individual Capacity: Dillingham Has Failed to Raise a Genuine Issue of
Material Fact Regarding Whether Sheriff Bivens Encouraged or
Authorized the Alleged “Excessive Force” by Deputy Millsaps or Deputy
McLemore

To be clear, the Court did not state that Dillingham prevailed in his Fourth Amendment
“excessive force” claims against Deputy Millsaps and Deputy McLemore in their individual
28

capacities. Rather, the Court simply held that those claims survived the summary judgment stage.
The Court only analyzed these claims to determine whether the underlying conduct was
unconstitutional. As the Court previously explained, Sherif Bivens cannot be held supervisorily
liable for conduct that was constitutional. See Part III.A.6. In addition, the Court notes that only
Dillingham can bring a Fourth Amendment “excessive force” claim (which is really a “failure to
train” claim) against Monroe County and Sheriff Bivens in his individual capacity. Because Mills
does not have standing to bring a Fourth Amendment claim against Deputy Millsaps or Deputy
McLemore in their individual capacities, he does not have standing to bring a Fourth Amendment
claim against Monroe County or Sheriff Bivens in his individual capacity. In addition, because the
Court dismissed Mills’s substantive due process claim (based upon “excessive force”) under the
Fourteenth Amendment against Deputy Millsaps in his individual capacity, see Part III.A.5, the
Court also dismissed his “excessive force” claims against Monroe County and Sheriff Bivens in his
individual capacity, also brought under the substantive due process clause of the Fourteenth
Amendment, id. Consequently, only Dillingham may assert “excessive force” claims against
Monroe County or Sheriff Bivens in his individual capacity. This is because Dillingham’s
underlying “excessive force” claim survived summary judgment.
Supervisory liability cannot be imposed in a Section 1983 action based on the theory of
respondeat superior without proof of personal involvement. Taylor v. Mich. Dep’t of Corr., 69 F.3d
76, 80-81 (6th Cir. 1995). Notably, “[s]upervisory liability under § 1983 does not attach when it is
premised on a mere failure to act; it ‘must be based on active unconstitutional behavior.’” Greene
v. Barber, 310 F.3d 889, 899 (6th Cir. 2002) (quoting Leach, 891 F.2d at 1246). As the Sixth Circuit
has stated, “[a] supervisor is not liable under § 1983 for failing to train unless the supervisor ‘either

29

encouraged the specific incident or misconduct or in some other way directly participated in it. At
a minimum a plaintiff must show that the official at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the offending officers.’” Everson v.
Leis, 556 F.3d 484, 495 (6th Cir. 2009) (emphasis added) (quoting Hays v. Jefferson Cnty., 668 F.2d
869, 874 (6th Cir. 1982)). The central question, therefore, is whether Sheriff Bivens “implicitly
authorized, approved, or knowingly acquiesced” in Deputy Millsaps’s and Deputy McLemore’s
alleged use of “excessive force.” For purposes of this analysis, the Court will assume–without
deciding–that Deputy Millsaps and Deputy McLemore engaged in unconstitutional conduct.
In support of their “supervisory” liability claim, Plaintiffs allege that Sheriff Bivens
implicitly authorized the alleged misconduct by failing to properly train Deputy Millsaps and
Deputy McLemore regarding the appropriate use of force. To prevail on a “supervisory” liability
claim, however, Plaintiffs must point to some specific act by Sheriff Bivens. A general “failure to
train” claim has been routinely rejected by the Sixth Circuit in this context (trying to impose liability
on a supervisor in his or her individual capacity). In Ontha v. Rutherford Cnty., the Sixth Circuit
addressed a Fourth Amendment “excessive force” claim against the Sheriff of Rutherford County
in his individual capacity. 222 F. App’x 498, 503-05 (6th Cir. 2007). In Ontha, the plaintiffs
attempted to hold the sheriff liable for the alleged misconduct of his deputy sheriffs. Id.
Specifically, the plaintiffs alleged that the sheriff failed to train the deputy sheriffs in the use of
appropriate force, and therefore “authorized” their alleged misconduct. Id. The Sixth Circuit
rejected this argument, finding that the plaintiffs failed to highlight specific, affirmative acts by the
sheriff:
To extent that Plaintiffs even assert that this standard of supervisory
liability can be met here, they evidently contend that Sheriff Jones
30

implicitly authorized the alleged misconduct of Deputies Emslie and
Morrow by failing to properly train these deputies regarding the
appropriate use of force and, more particularly, the inappropriateness
of using a patrol car to strike or seize an individual. As Plaintiffs
point out, Sheriff Jones acknowledged in his affidavit that the
Rutherford County Sheriff’s Office ‘does not have a written policy
specifically prohibiting’ the use of a patrol car to strike a person who
is fleeing on foot [which was the basis for the alleged excessive force
claim in that case]. Plaintiffs posit that this lack of training served as
implicit authorization of or knowing acquiescence in Deputy
Emslie’s allegedly inappropriate use of his patrol car to chase and
strike Tommy Ontha as he attempted to flee.
Yet, to establish supervisory liability, it is not enough to point after
the fact to a particular sort of training which, if provided, might have
prevented the harm suffered in a given case. Rather, such liability
attaches only if a constitutional violation is ‘part of a pattern’ of
misconduct, or ‘where there is essentially a complete failure to train
the police force, or training that is so reckless or grossly negligent
that future police misconduct is almost inevitable or would properly
be characterized as substantially certain to occur. Only in such
circumstances can it be said that a supervisor’s liability rests upon
‘active unconstitutional behavior,’ as opposed to ‘a mere failure to
act.’
In this case, Plaintiffs do not contend that Deputy Emslie’s purported
misuse of his patrol car was part of a pattern of comparable
violations, as opposed to an isolated occurrence. Neither have
Plaintiffs suggested any basis for us to conclude that the tragic events
of this case were an ‘almost inevitable’ or ‘substantially certain’
byproduct of a lack of training as to the proper operation of a patrol
car when pursuing an individual traveling on foot. Rather, Sheriff
Jones states without contradiction that ‘we have never had an
instance where a Rutherford County Sheriff’s deputy intentionally
struck a person with his or her patrol car,’ and that he is ‘not aware
of a problem or trend in the law enforcement community regarding
law enforcement officers using their vehicles to intentionally strike
fleeing suspects or other persons on foot.’ Under this record, we find
as a matter of law that Plaintiffs cannot sustain their § 1983 claims
against Sheriff Jones in his individual capacity.
Id. at 504-05 (citations and quotations omitted). In sum, the Sixth Circuit in Ontha rejected the
general “failure to train” claim as a basis for imposing supervisory liability on the sheriff. Id. This
31

generalized “failure to train” claim was not enough to constitute “active constitutional behavior.”
Id.
In the present case, Plaintiffs argue that Sheriff Bivens should be held supervisorily liable
because Deputy Millsaps did not receive a copy of the Policy Manual. [Plaintiffs’ Response in
Opposition to Motion for Summary Judgment, Doc. 75, at 3-4]. Plaintiffs then state–ignoring the
different constitutional standards for individual liability and municipal liability–that “courts have
held that the absence of a policy can be sufficient to establish municipal liability.” [Id., at 4]
[emphasis added]. The claim brought against Sheriff Bivens–a general “failure to train” claim–is
exactly what the Sixth Circuit warned against in Ontha, 222 F. App’x at 504-05. Plaintiffs have
incorrectly conflated the constitutional standards for individual supervisory liability and municipal
liability. See Harvey v. Campbell Cnty., No. 09-5041, 2011 WL 1789955, at *6 (6th Cir. May 10,
2011) (recognizing that “absent evidence of personal involvement in the underlying misconduct,
failure-to-train claims against individual defendants are not properly deemed brought against them
in their official capacities, to be treated as claims against the county”) (citing Miller v. Calhoun
Cnty., 408 F.3d 803, 817 n.3 (6th Cir. 2005)). Absent personal involvement in the underlying
unconstitutional act, the attempt to hold “[municipal supervisors] liable in their individual capacities
for their alleged failure to adequately train employees . . . ‘improperly conflates a § 1983 claim of
individual supervisory liability with one of municipal liability.’” Harvey, 2011 WL 1789955, at *6
(quoting Phillips, 534 F.3d at 543-44). In this case, there is no evidence that Sheriff Bivens was
personally involved or authorized the alleged incident. Consequently, Plaintiffs have improperly
brought suit against Sheriff Bivens in his individual capacity.

32

Generally, there are two ways of imposing supervisory liability: (1) a pattern of conduct; or
(2) a truly egregious single incident. Ontha, 222 F. App’x at 504-05. Because Plaintiffs have failed
to establish a pattern of similar incidents, Sheriff Bivens will only be liable if there was “essentially
a complete failure to train the police force, or training that is so reckless or grossly negligent that
future police misconduct is almost inevitable or would properly be characterized as substantially
certain to occur.” Id. Even assuming that Deputy Millsaps never received a copy of the Policy
Manual, he still received training on the appropriate use of force. [Deputy Millsaps’s Dep., Doc.
78-1, at 4, 6:2-5, at 6, 11:4-6]. Deputy Millsaps graduated from the Tennessee Law Enforcement
Training Academy in 1996 where he received training on the use of force. [Id.]. At the time of the
alleged incident, Deputy Millsaps was in good standing with the Sheriff’s Department and had not
received any complaints. [Sheriff Bivens Affidavit, Doc 68, at 3, ¶ 5]. Deputy Millsaps was also
up to date on his annually-required forty hours of continuing education. [Sheriff Bivens Affidavit,
Doc 68, at 3, ¶ 5]. Additionally, Deputy Millsaps received training at the Academy on how to deal
with belligerent individuals, and this training was refreshed every couple of years. [Deputy Millsaps
Dep., Doc. 78-1, at 8, 13:5-16].
In addition to the more general training, Deputy Millsaps also attended a taser training class
in the fall of 2006 that lasted four to eight hours. [Id. at 6, 11:10-18]. During this class, he was
instructed on the appropriate use of force, both generally and specifically with regard to using tasers.
[Id. at 6, 11:7-12]. For example, Deputy Millsaps was taught that using a taser is appropriate when
a person does not respond to verbal commands and is being combative. [Id. at 8, 13:17-14:12]. The
fact that Dillingham completed this training is significant. Plaintiffs are trying to equate “failure to
give a policy manual” with “failure to train,” and completely ignoring the fact that Deputy Millsaps

33

received training on the precise weapon at issue in this case. This training–which was tailored to
the appropriate use of taser guns–is a lot more specific than the Policy Manual’s general statement
that officers should use “reasonable force.”
With regard to Deputy McLemore, there is nothing in the record that suggests he did or did
not receive taser training. This fact, however, is not important. Dillingham’s “failure to train” claim
against Sheriff Bivens in his individual capacity does not involve Deputy McLemore; it is premised
upon the fact that Deputy Millsaps did not receive a copy of the Policy Manual. Consequently,
Deputy McLemore’s training–or lack of training–is not relevant to this claim.
Viewing the facts in the light most favorable to the non-moving party, there is simply no
evidence that Sheriff Bivens encouraged or authorized the alleged actions of Deputy Millsaps and
Deputy McLemore. This general “failure to train” claim should have been directed against Monroe
County, not Sheriff Bivens in his individual capacity. See, e.g., Phillips, 534 F.3d at 544 (“The
Estate’s general allegations that the correctional officers and paramedics were not properly trained
are more appropriately submitted as evidence to support a failure-to-train theory against the
municipality itself, and not the supervisors in their invidividual capacities.”) (citing City of Canton
v. Harris, 489 U.S. 378, 385 (1989)). Moreover, even when considering this claim, Plaintiffs have
failed to cite any specific, affirmative act by Sheriff Bivens that would subject him to liability.
Accordingly, Dillingham’s Fourth Amendment “excessive force” against Sheriff Bivens in his
individual capacity is DISMISSED WITH PREJUDICE. Furthermore, because Sheriff Bivens
cannot be held supervisorily liable, there is no need to determine whether Sheriff Bivens is entitled
to qualified immunity. See Marvin v. City of Taylor, 509 F.3d 234, 244 (6th Cir. 2007) (“If there is

34

no constitutional violation, then the plaintiff’s § 1983 claim fails as a matter of law and the
defendant is therefore entitled to summary judgment and does not need qualified immunity.”).
9.

Dillingham’s Fourth Amendment Claim Against Monroe County:
Dillingham Has Failed to Raise a Genuine Issue of Material Fact
Regarding Whether the Monroe County Sheriff’s Department Had a
Policy or Custom Encouraging or Authorizing Inadequate Training on
the Use of Force, and Specifically on Using Tasers

It is well established that Section 1983 claims against a municipality cannot be based on a
respondeat superior theory of liability. Monell, 436 U.S. at 690-91. Instead, a plaintiff must show
that the county “maintained a policy or custom that caused the violation.” Harvey, 2011 WL
1789955, at *5. Because the Monroe County Sheriff’s Department does not have an express policy
encouraging the use of unreasonable force, the Court must determine whether it has a custom of
doing so. Specifically, the Court must determine whether there is a genuine issue of material fact
regarding whether the Monroe County Sheriff’s Department has a custom of providing inadequate
training or supervision of its deputy sheriffs. See Ellis ex rel. Pendergrass v. Cleveland Mun. Sch.
Dist., 455 F.3d 690, 700 (6th Cir. 2006) (“One way to prove an unlawful policy or custom is to show
a policy of inadequate training or supervision.”) (citation omitted); Sova v. City of Mt. Pleasant, 142
F.3d 898, 904 (6th Cir. 1998) (“When the damage was inflicted by municipal employees, such as
police officers, the city can be held liable for failing to train its employees adequately. Yet in this
situation, a plaintiff can establish liability ‘[o]nly where a municipality’s failure to train its
employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its
inhabitants.’”) (quoting Canton, 489 U.S. at 389).
Monroe County may only be held liable if Dillingham can prove that there was a failure to
adequately train Deputies Millsaps or McLemore, and that such failure amounted to “deliberate

35

indifference.” In City of Canton v. Harris, the Supreme Court established the framework for
analyzing “failure to train” claims brought against municipalities:
[T]he inadequacy of police training may serve as the basis for Section
1983 liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police came into
contact. This rule is most consistent with our admonition . . . that a
municipality can be liable under Section 1983 only where its policies
are the ‘moving force [behind] the constitutional violation.’ Only
where a municipality’s failure to train its employees in a relevant
respect evidences a ‘deliberate indifference’ to the rights of its
inhabitants can such a shortcoming be properly thought of as a city
‘policy or custom’ that is actionable under Section 1983.
489 U.S. at 388-89 (internal citations omitted). In order to succeed on a “failure to train” theory,
the plaintiff must show (1) that the training was inadequate for the tasks performed; (2) the
inadequacy was the result of the municipality’s deliberate indifference; and (3) the inadequacy was
closely related to or actually caused the injury at issue. Ellis, 455 F.3d at 700. In Ellis, the Sixth
Circuit identified two instances in which a finding of deliberate indifference would be appropriate:
“(1) where the training lapse occurs despite ‘foreseeable consequences’ that will flow from the
lapse; and (2) where the training lapse occurs despite ‘repeated complaints’ to the municipality about
the issues that should have been dealt with in training.” Lee, 596 F. Supp. 2d at 1124 (citing Ellis,
455 F.3d at 700-01). Under the Ellis standard, “the plaintiff must first show whether taser-certified
officers . . . received adequate training on how to operate their tasers, specifically instruction that
it could be dangerous to apply multiple shocks to a suspect over a short period of time.” Lee, 596
F. Supp. 2d at 1124. In this case, there is no evidence of “repeated complaints” about the use of
tasers (or force more generally) by law enforcement officers in the Monroe County Sheriff’s
Department. Consequently, Dillingham must proceed under a “single incident” theory.

36

The Supreme Court recently affirmed that “deliberative indifference” is “a stringent standard
of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his
action.” Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011) (citation and alteration omitted). Like
his claim against Sheriff Bivens in his individual capacity, see Part III.A.8, Dillingham relies
entirely upon one fact: that Deputy Millsaps did not receive a copy of the Policy Manual. This,
however, is not a significant fact. In reviewing Dillingham’s “failure to train” claim, the focus
should be on whether Deputy Millsaps17 received adequate training on how to use a taser. As the
Supreme Court explained in Canton:
In resolving the issue of a city’s liability, the focus must be on
adequacy of the training program in relation to the tasks the
particular officers must perform. That a particular officer may be
unsatisfactorily trained will not alone suffice to fasten liability on the
city, for the officer’s shortcomings may have resulted from factors
other than a faulty training program. It may be, for example, that an
otherwise sound program has occasionally been negligently
administered. Neither will it suffice to prove that an injury or
accident could have been avoided if an officer had better or more
training, sufficient to equip him to avoid the particular injury-causing
conduct. Such a claim could be made about almost any encounter
resulting in injury, yet not condemn the adequacy of the program to
enable officers to respond properly to the usual and recurring
situations with which they must deal. And plainly, adequately trained
officers occasionally make mistakes; the fact that they do says little
about the training program or the legal basis for holding the city
liable.
To adopt lesser standards of fault and causation would open
municipalities to unprecedented liability under § 1983. In virtually
every instance where a person has had his or her constitutional rights
violated by a city employee, a § 1983 plaintiff will be able to point to
something the city could have done to prevent the unfortunate
17

As the Court previously stated, there is nothing in the record that suggests Deputy McLemore did or
did not receive adequate training on how to use a taser. However, Dillingham’s Fourth Amendment
“excessive force” claim against Monroe County only involves Deputy Millsaps. Dillingham’s claim is
premised solely upon the fact that Deputy Millsaps did not receive a copy of the Policy Manual.
Consequently, Deputy McLemore’s training–or lack of training–is not relevant to this claim.

37

incident. Thus, permitting cases against cities for their failure to train
employees to go forward under § 1983 on a lesser standard of fault
would result in de facto respondeat superior liability on
municipalities–a result we rejected in Monell, 436 U.S. at 693-94. It
would also engage the federal courts in an endless exercise of
second-guessing municipal employee-training programs. . . .

489 U.S. at 390-91 (citations omitted).
As the Supreme Court has instructed, the focus should be on the training program “in relation
to the tasks the particular officers must perform.” Id. at 390. In other words, did Deputy Millsaps
receive adequate training on how to use tasers, and the use of force more generally? Having
reviewed the record, there is absolutely nothing that suggests otherwise. Even assuming that Deputy
Millsaps never received a copy of the Policy Manual, he still received training on the appropriate
use of force. [Deputy Millsaps’s Dep., Doc. 78-1, at 4, 6:2-5, at 6, 11:4-6]. Deputy Millsaps
graduated from the Tennessee Law Enforcement Training Academy in 1996 where he received
training on the use of force. [Id.]. At the time of the alleged incident, Deputy Millsaps was in good
standing with the Sheriff’s Department and had not received any complaints. [Sheriff Bivens
Affidavit, Doc 68, at 3, ¶ 5]. In addition to the more general training, Deputy Millsaps also attended
a taser training class in the fall of 2006 that lasted four to eight hours. [Deputy Millsaps Dep., Doc.
78-1, at 6, 11:10-18]. During this class, the participants were instructed on the appropriate use of
force, both generally and specifically with regard to using tasers. [Id. at 6, 11:7-12]. Plaintiffs have
done nothing to refute any of this. Certainly, Deputy Millsaps’s training was a lot more specific than
the Policy Manual’s general statement that officers should only use “reasonable force”:
Use of Force to Arrest a Person: A Deputy Sheriff may, by law, use
all necessary and reasonable force, including entry into any building
or property, or order to make an authorized arrest.

38

[Plaintiffs’ Response in Opposition to Defendants’ Motion for Summary Judgment, Doc. 75, at 3].
This is nothing more than a general statement that officers should only use “reasonable force.” This
is a fundamental and basic rule–one that any law enforcement officer should know. This is a general
mandate, rather than specific training like the taser program. The fact that Deputy Millsaps received
training on the precise weapon at issue in this case certainly suggests that he would understand the
Policy Manual. After all, the purpose of the training was to instruct him on the use of force, as it
relates to a taser gun.
In addition, it is significant that there is no evidence of past complaints against Deputy
Millsaps, or other deputy sheriffs. The record does not contain any past allegations, complaints, or
suits regarding force or misconduct by Monroe County deputy sheriffs prior to May 11, 2007 (the
date of the car accident). While a history of past conduct is not necessary to establish municipal
liability, courts are more inclined to find a “custom” when there has been a history of complaints
or similar behavior. See Connick, 131 S.Ct. At 1360 (recognizing that proof of “[a] pattern of
similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train”) (citing Bd. of Cnty. Comm’rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 409 (1997)). Given the lack of evidence in the record supporting
Dillingham’s claims, and the fact that federal courts should generally refrain from “second-guessing
municipal employee-training programs,” Canton, 489 U.S. at 391-92, Dillingham’s Fourth
Amendment claims against Monroe County are DISMISSED WITH PREJUDICE.
B.

Plaintiffs’ State Law Claims against Monroe County and Sheriff Bivens
1.

Plaintiffs’ State Law Claims Against Monroe County are Dismissed

39

Sheriff Bivens and Monroe County have also moved to dismiss all state law claims against
them. [Defendants’ Memorandum in Support of their Motion for Summary Judgment, Doc. 69, at
17-18]. As an initial matter, the Court notes that district courts in the Sixth Circuit are split over
whether to decline to exercise supplemental jurisdiction, 28 U.S.C. § 1367, over pendant state law
claims brought under the Tennessee Governmental Tort Liability Act (“TGTLA”), T.C.A. § 29-20101 et seq. Some district courts have declined to exercise supplemental jurisdiction over claims
brought under the TGTLA. See Heyne v. Metro. Nashville Pub. Schs., 626 F. Supp. 2d 724, 734-35
(M.D. Tenn. 2008); Lee v. Metro. Gov’t of Nashville & Davidson Cnty., No. 3:06-0108, 2008 WL
501327, at *5 (M.D. Tenn. Feb. 21, 2008) (citation omitted); Payne v. Tipton Cnty., No. 05-2310,
2006 WL 1967046, at *2 (W.D. Tenn. Jul. 12, 2006). Other courts have decided to exercise
supplemental jurisdiction over claims brought under the TGTLA. See Harris v. McCormack, No.
3:08-cv-00699, 2011 WL 253163, at *4 (M.D. Tenn. Jan. 26, 2011); Lopez v. Metro. Gov’t of
Nashville & Davidson Cnty., 646 F. Supp. 2d 891, 920-21 (M.D. Tenn. 2009); Birgs v. City of
Memphis, 686 F. Supp. 2d 776, 778-79 (W.D. Tenn. 2010); Brown v. City of Memphis, 440 F.
Supp. 2d 868, 878 (W.D. Tenn. 2006); Johnson v. Gannon, No. 3:09-0551, 2010 WL 1658616, at
*7 (M.D. Tenn. Apr. 23, 2010). Even if Tennessee courts have original jurisdiction to review claims
brought under the TGTLA, that does not defeat federal jurisdiction. See Brown, 440 F. Supp. 2d
at 878 (recognizing that “[s]upplemental jurisdiction is grounded implicitly in Article III of the
Constitution, and, explicitly, in federal statutory law,” that state legislatures “are powerless to
impose jurisdictional constraints upon the federal judiciary,” and therefore “[w]hatever the intent
of the Tennessee legislature may have been in enacting the [TGTLA], the authority of the federal
courts to appropriately exercise jurisdiction over supplemental state law matters remains

40

undiminished”) Under these circumstances, the Court finds that declining to exercise supplemental
jurisdiction would “necessitate duplicative litigation which would be wasteful of judicial and litigant
resources). Id. Notably, Plaintiffs’ state law claims and federal claims derive from the same
“common nucleus of operative fact,” and therefore should be reviewed in one proceeding. United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). Accordingly, the Court will review
Plaintiffs’ state law claims against Monroe County.
In their Amended Complaint [Doc. 42], Plaintiffs allege that “the misconduct of defendants
Millsaps and McLemore in investigating the motor vehicle accident and interrogating the Plaintiffs
amounts to negligence for which defendants Bivens and Monroe County are liable pursuant to the
[TGTLA].” [Plaintiffs’ Amended Complaint, Doc. 42, at 6, ¶ 32]. Plaintiffs also allege that “the
failure to train, the inappropriate customs, policies and procedures, and/or the failure to initiate
appropriate policies and procedures for the use of force constitutes negligence for which defendants
Bivens and Monroe County are liable pursuant to the [TGTLA].” [Id., at 6, ¶ 36].
Since 1973, the TGTLA has governed claims against counties, municipalities, and other local
governmental agencies. Doyle v. Frost, 49 S.W.3d 853, 857 (Tenn. 2001) (citation omitted). Under
the TGTLA, Monroe County “is generally subject to suit for civil claims sounding in negligence
with certain enumerated exceptions.” Campbell v. Anderson Cnty., 695 F. Supp. 2d 764, 777 (E.D.
Tenn. 2010) (citations omitted). While the TGTLA removes immunity for an “injury proximately
caused by a negligent act or omission of any employee within the scope of his employment,” it also
provides a list of exceptions (which prevents the municipality from being sued). See Johnson v. City
of Memphis, 617 F.3d 864, 872 (6th Cir. 2010) (citing T.C.A. § 29-20-205). As the Sixth Circuit has
explained, “injuries that ‘arise[] out of . . . civil rights’ are one such exception, that is, sovereign

41

immunity continues to apply in those circumstances.” Johnson, 617 F.3d at 872 (citing T.C.A. § 2920-205). Notably, the TGTLA’s “civil rights” exception has been construed to include claims
arising under 42 U.S.C. § 1983. Johnson, 617 F.3d at 872 (citation omitted).
a.

Negligence

First, the Court will address Plaintiffs’ “negligence” claim against Monroe County. Even
though Plaintiffs allege that Monroe County was negligent in its “failure to train,” [Plaintiffs’
Amended Complaint, Doc. 42, at 6, ¶ 32], they are in essence bringing a civil rights claim. The
“civil rights” exception was discussed at length in Campbell, 695 F. Supp. 2d at 778. In Campbell,
a woman filed suit against a county under both 42 U.S.C. § 1983 and the TGTLA. Id. at 769. She
argued that the county was negligent in its supervision and training of deputy sheriffs who allegedly
falsely imprisoned and sexually assaulted her. Id. at 769. After reviewing the plaintiff’s negligence
claim, the court found that it was based upon the same conduct giving rise to her Section 1983 claim.
Id. at 778. Consequently, even though the plaintiff labeled her claim as “negligence,” the court held
that her claims fell within the “civil rights” exception under the TGTLA:
Campbell’s tort claims of false imprisonment, assault and battery,
intentional infliction of emotional distress, and negligence brought
against the County under Tennessee law are predicated on the allged
violation of her civil rights by Graham. The contention that former
Reserve Deputy Graham committed false imprisonment, assault and
battery, and intentional infliction of emotional distress clearly arise
out of and directly flow from the allegations that he deprived
Campbell of her civil rights by sexually assaulting her. Because
Campbell asserts her claims against the County, in the context of a
civil rights case, her alleged injuries arise out of ‘civil rights’ and the
County is entitled to immunity from suit on these claims pursuant to
the ‘civil rights’ exception in Tenn. Code Ann. § 29-20-205(2).
Although Campbell may seek to circumvent or avoid the County’s
immunity from suit under § 29-20-205(2) by couching some of her
civil rights claims against the County in the guise of negligence,
42

this strategy fails. The underlying acts which Campbell alleges to be
negligent are by their very nature the type of conduct one usually
associates with intentional torts (false imprisonment, assault and
battery, intentional infliction of emotional distress). Campbell’s
negligence claim is predicated on intentional tortious conduct
involving the violation of her civil rights by employees of the
County. Based on the facts and circumstances of this case, the court
sees no reason why the County should not have immunity from suit
under the ‘civil rights’ exception in Tenn. Code Ann. § 29-20205(2).
Campbell, 695 F. Supp. 2d at 778 (emphasis added). Likewise, in the present case, Plaintiffs’
negligence claim against Monroe County is nothing more than civil rights claim: it is still based
upon an underlying claim of “excessive force.” As a basis for their negligence claim, Plaintiffs
allege that Monroe County was negligent in its “failure to train”– that is, the Sheriff’s Department
did not provide adequate training on using tasers, and the use of force more generally. This is
identical to Dillingham’s “failure to train” claims brought under 42 U.S.C. § 1983. Because the
claims arise out of the same facts–and are based upon the same arguments–Plaintiffs’ negligence
claims against Monroe County are barred under the “civil rights” exception of the TGTLA, T.C.A.
§ 29-20-205(2). See Johnson, 617 F.3d at 872 (“Plaintiff’s claim regarding the dispatcher’s
negligence arises out of the same circumstances giving rise to her civil rights claim under § 1983.
It therefore falls within the exception listed in § 29-20-205, and the City retains its immunity.”);
Campbell, 695 F. Supp.2d at 778 (“These torts are alleged to have been committed solely in the
context of the violation of [plaintiff’s] civil rights–this is in essence a civil rights suit.”); Jackson
v. Thomas, No. M2010-01242-COA-R3CV, 2011 WL 1049804, at *7 (Tenn. Ct. App. Mar. 23,
2011) (dismissing a claim for negligence against the county under the “civil rights” exception) (“In
her complaint, Ms. Jackson asserts that her rights under the Fourth Amendment of the United States
Constitution were violated as a result of the erroneous issuance of the arrest warrant. Thus, her
43

claims against Jackson County arise out of the assertion that her civil rights were violated. Because
Ms. Jackson’s injuries arise out of claims that her civil rights were violated, the civil rights exception
in Tenn. Code Ann. § 29-20-205(2) applies. Therefore, the County retains immunity from such
claims and dismissal of these claims was proper.”); Shelton v. Rutherford Cnty., No. 3:09-cv-0318,
2009 WL 2929394, at *12 (M.D. Tenn. Sep. 8, 2009) (where “negligence claims are asserted in the
context of a civil rights case and are based upon the same actions that gave rise to the civil rights
claims . . . the cause of action falls within . . . [the] immunity granted under Tenn. Code. Ann. § 3920-205"); Butler v. City of Englewood, No. 1:07-cv-184, 2008 WL 4006786, at * 13 (E.D. Tenn.
Aug. 25, 2008) (holding that where the plaintiff’s state law claims “clearly arise out of and directly
flow from the allegations that the police officer deprived [plaintiff] of [her] civil rights,” the
municipality was entitled to immunity under the TGTLA). Accordingly, Plaintiffs’ negligence
claims against Monroe County are DISMISSED WITH PREJUDICE, as they fall under TGTLA’s
“civil rights” exception, T.C.A. § 29-20-205(2).
b.

Intentional Infliction of Emotional Distress

Second, to the extent that Plaintiffs have asserted intentional tort claims against Monroe
County–based upon the conduct of Deputy Millsaps and Deputy McLemore–those claims are also
dismissed. In addition to their negligence claims, Plaintiffs have brought claims of “intentional
infliction of emotional distress” [Plaintiffs’ Amended Complaint, Doc. 42, at 6, ¶ 31], and assault
and battery [Id., at 6, ¶ 30]. Section 29-20-205 of the TGTLA provides, in pertinent part, that
immunity from suit of all governmental entities is removed “for injury proximately caused by a
negligent act or omission of any employee within the scope of his employment, except if the injury
arises out of . . . (2) false imprisonment to a mittimus from a court, false arrest, malicious

44

prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract
rights, infliction of mental anguish, invasion of right of privacy, or civil rights.” T.C.A. § 29-20205(2) (emphasis added). To the extent that Plaintiffs have sued Monroe County for intentional
infliction of emotional distress, that claim is expressly bared18 by the TGTLA, T.C.A. § 29-20205(2). Consequently, Plaintiffs’ intentional infliction of emotional distress claims against Monroe
County are DISMISSED WITH PREJUDICE.
C.

Assault and Battery

While “intentional infliction of emotional distress” is specifically enumerated as an exception
under the TGTLA, “assault and battery” is not. See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73,
79 (Tenn. 2001) (recognizing that the TGTLA only preserves a municipality’s immunity for those
intentional torts specifically listed in T.C.A. § 29-20-205(2)). To the extent that Plaintiffs have sued
Monroe County for assault and battery, Monroe County may only be held liable “if it is established
that the injuries inflicted on the plaintiff were ‘proximately caused by a negligent act or omission’
of supervisory personnel due to the failure to take reasonable precautions from the forseeable risk.”
Jones v. Bedford Cnty., No. M2009-01108-COA-R3-CV, 2009 WL 4841063, at *3 (Tenn. Ct. App.
Dec. 15, 2009) (quoting Limbaugh, 59 S.W.3d at 79). In order for the County to be liable for assault
or battery, “it must be established that the County should have reasonably foreseen or anticipated
that the plaintiff would be at risk of the injuries complained about.” Jones, 2007 WL 3202760, at
*3 (citations omitted).

18

While the TGTLA refers to the tort of “infliction of mental anguish,” the Tennessee Supreme Court
has recognized that such phrase refers to the “intentional infliction of emotional distress.” Sallee v.
Barrett, 171 S.W. 3d 822 , 831 (Tenn. 2005). In their Amended Complaint [Doc. 42], Plaintiffs brought
claims of “intentional infliction of emotional distress,” [id. at 6, ¶ 31]. Plaintiffs’ claim against Monroe
County is therefore barred by the TGTLA, T.C.A. § 29-20-205(2).

45

In this case, there is no evidence that Monroe County supervisors–such as Sheriff
Bivens–committed an independent act or omission of negligence that proximately caused the alleged
injuries. First, there is no evidence of complaints that deputy sheriffs misused tasers, or somehow
engaged in unlawful conduct. There is simply no pattern or history in this case. Second, the
evidence shows that Deputy Millsaps received general training on the use of force, and specific
training on how to use a taser. This combination clearly demonstrates that it was not reasonably
foreseeable that Plaintiffs “would be at risk of the injuries complained about.” Jones, 2007 WL
3202760, at *3. Accordingly, to the extent that Plaintiffs have brought claims of assault and battery
against Monroe County, those claims are DISMISSED WITH PREJUDICE.
Finally, the Court notes that Plaintiffs’ intentional tort claims could be dismissed for another
reason. Like their negligence claim, their intentional tort claims fall under the “civil rights”
exception of the TGTLA, T.C.A. § 29-20-205(2), because they arise from the same circumstances
as their civil rights claims under 42 U.S.C. § 1983. See Campbell, 695 F. Supp. 2d at 778.
2.

Plaintiffs’ State Law Claims Against Sheriff Bivens in His Individual
Capacity are Dismissed
a.

Assault

To the extent that Sheriff Bivens relies upon the TGTLA as a defense, that reliance is wholly
misplaced. [Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment,
Doc. 69, at 17-18]. The TGTLA does not grant immunity to individuals for intentional acts. See
Griffin v. Hardrick, 604 F.3d 949, 956 (6th Cir. 2010) (in evaluating a plaintiff’s state-law battery
claim against a public employee, the court recognized that “[the plaintiff] brought this claim under
the [TGTLA], which permits individuals to bring a cause of action against governmental employees
who allegedly commit intentional torts”) (citing Baines v. Wilson Cnty., 86 S.W.3d 575, 583
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n.5(Tenn. Ct. App. 2002) (“We are aware that the [T]GTLA, specifically Tenn. Code Ann. § 29-20310, states that if a governmental entity is immune, the employee can be liable. However, for an
employee to be liable, a cause of action must exist against the employee in his or her individual
capacity. It is still necessary that all the elements of the tort are alleged by the plaintiff.”); Reagan
v. City of Knoxville, No. 3:07-CV-189, 2008 WL 305018, at *5-7 (E.D. Tenn. Jan. 31, 2008)
(recognizing that the TGTLA definition of a governmental entity does not include its “employees,”
and therefore the TGTLA does not provide immunity to public employees).
In Tennessee, assault is defined as “any act tending to do corporal injury to another,
accompanied with such circumstances as denote at the time an intention, coupled with the present
ability, of using actual violence against the person.” Thompson v. Williamson Cnty., 965 F.Supp.
1026, 1037 (M.D. Tenn.1997). A defendant is not liable for assault unless he or she commits an
“intentional act creating a reasonable apprehension of imminent physical harm on the part of the
plaintiff.” Baker v. Moreland, 1989 WL 89758, at *5 (Tenn. Ct. App. Aug. 9, 1989).
A civil action for assault cannot be sustained upon the basis of words alone. Id. Rather,
there must be an overt act or physical movement causing the plaintiff to believe he was in imminent
physical harm or danger. Id. “An overt act is an essential element of an assault, and mere
preparation or a threat to commit an assault unaccompanied by physical effort to do so, does not
amount to an assault.” Id. In other words, the defendant must make a physical movement “which
might be reasonably interpreted as the beginning of a physical attack upon the plaintiff.” Id., at *6.
Notably, Sheriff Bivens was not present during the alleged incident. Consequently, there is
no way that he could create “a reasonable apprehension of imminent physical harm” to the Plaintiffs.
There are simply no facts in the record that would allow Plaintiffs to survive summary judgment on

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this claim. Accordingly, Plaintiffs’ assault claims against Sheriff Bivens in his individual capacity
are DISMISSED WITH PREJUDICE.
b.

Battery

In Tennessee, battery is defined as “any intentional, unlawful and harmful (or offensive)
contact by one person with the person of another.” Raines v. Shoney’s, Inc., 909 F.Supp. 1070,
1083 (E.D. Tenn. 1995). However, “not every physical contact that is unconsented to is so offensive
that it amounts to a battery.” Runions v. Tenn. State Univ., No. M2008-01574-COA-R3-CV, 2009
WL 1939816, at *4 (Tenn. Ct. App. Jul. 6, 2009). Rather, “offensive contact” is “contact that
infringes on a reasonable sense of personal dignity ordinarily respected in a civil society.” Doe v.
Mama Taori’s Premium Pizza, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *4 (Tenn. Ct.
App. Jan. 21, 2001). Thus, the Court must determine if there is a genuine issue of material fact
regarding whether Sheriff Bivens made physical contact that infringed upon a “reasonable sense of
personal dignity.” Id.
Once again, Sheriff Bivens was not present during the alleged incident. Consequently, it was
impossible for him to make an “offensive contact” with the Plaintiffs. Accordingly, Plaintiffs’
battery claims against Sherif Bivens in his individual capacity are DISMISSED WITH
PREJUDICE.
c.

Intentional Infliction of Emotional Distress

In order to establish a claim for intentional infliction of emotional distress (“IIED”), the
plaintiff must show that a defendant’s conduct was “(1) intentional or reckless; (2) so outrageous
that it cannot be tolerated in a civilized society; and (3) the cause of serious mental injury to the

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plaintiff.” Bain v. Wells, 936 S.W.2d 618, 633 (Tenn. 1997). In determining whether conduct is
“outrageous,” courts are instructed to follow the Restatement (Second) of Torts:
It has not been enough that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict emotional distress,
or even that his conduct has been characterized by ‘malice,’ or a degree of
aggravation which would entitle the plaintiff to punitive damages for another
tort. Liability has been found only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all bounds of decency,
and to be regarded as atrocious and utterly intolerable in a civilized
community.
Restatement (Second) of Torts, Section 46, Comment D. Under this high standard, “mere insults,
indignities, threats, annoyances, petty oppression or other trivialities” are not recognized as
“outrageous.” Bain, 936 S.W.2d at 622.
Plaintiffs’ IIED claim fails for one simple reason: they have never had contact with Sheriff
Bivens. Plaintiffs admit as much. [Plaintiffs’ Responses to Defendants’ Statement of Material
Facts, Doc. 74, at 5, ¶ 19]. Clearly, Sheriff Bivens is not responsible for any “outrageous” conduct,
let alone any “conduct.” Accordingly, Plaintiffs’ claims for intentional infliction of emotional
distress against Sheriff Bivens in his individual capacity are DISMISSED WITH PREJUDICE.
d.

Common Law Negligence Claim for “Failure to Train”

To the extent that Plaintiffs have sued Sheriff Bivens in his individual capacity for common
law negligence–once again, based upon a failure to train–that claim is also dismissed. In order to
prevail on a negligence claim, Plaintiffs must establish the following elements: “(1) a duty of care
owed by defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to
a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.”
Estate of French v. Stratford House, 333 S.W. 3d 546, 554 (Tenn. 2011) (citation omitted).

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Plaintiffs’ negligence claim fails for one important reason: Sheriff Bivens did not owe a duty to
Plaintiffs, independent of his official status. The following case is instructive.
In Doe v. May, the plaintiff asserted a negligence claim against the sheriff in his individual
capacity. No. E2003-1642-COA-R3-CV, 2004 WL 1459402, at *5 (Tenn. Ct. App. Jun. 29, 2004).
Like the present case, the negligence claim in May was based upon a “failure to train”–specifically,
the “failure to properly train the internal affairs investigators and for conducting a ‘wrongful’
internal affairs investigation.” Id. The court dismissed the negligence claim, explaining that
“absent his official status, the sheriff has no duty to train the employees in the sheriff’s department.
Thus, a sheriff cannot be individually liable for failing to train his subordinates.” Id. (emphasis
added) (citing Riley v. Newton, 947 F.3d 632 (11th Cir. 1996)).
Simply put, Sheriff Bivens cannot be held liable in his individual capacity for breaching a
duty that he only owed in his official capacity. Clearly, Sheriff Bivens did not owe Plaintiffs a
duty–in his individual capacity–to train his subordinates. That duty only arises under his official
status. Consequently, Plaintiffs have failed to show that Sheriff Bivens breached a duty owed to
them in his individual capacity. Accordingly, Plaintiffs’ negligence claims against Sheriff Bivens
in his individual capacity are DISMISSED WITH PREJUDICE.
IV.

CONCLUSION
Based upon the foregoing, Defendants’ Motion for Summary Judgment [Doc. 67] is

GRANTED.

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IT IS SO ORDERED.

ENTER:
s/ Thomas W. Phillips
United States District Judge

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