Jackson v. Town of Caryville, Tennessee et al
Filing
50
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas A Varlan on 10/28/11. Associated Cases: 3:10-cv-00153, 3:10-cv-00240(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TRACY JACKSON,
)
)
Plaintiff,
)
)
v.
)
)
TOWN OF CARYVILLE, TENNESSEE, et al., )
)
Defendants.
)
)
)
ULESS JOE ARNOLD,
)
)
Plaintiff,
)
)
v.
)
)
TOWN OF CARYVILLE, TENNESSEE, et al., )
)
Defendants.
)
No.:
3:10-CV-153
(VARLAN/GUYTON)
No.:
3:10-CV-240
(VARLAN/GUYTON)
MEMORANDUM OPINION
These consolidated civil actions are before the Court on the consolidated Motion for
Summary Judgment [Jackson v. Town of Caryville, Tennessee, et al., Case No. 3:10-CV-153,
(“Jackson”), Doc. 25; Arnold v. Town of Caryville, Tennessee, et al., Case No. 3:10-CV-240
(“Arnold”), Doc. 19], filed by defendants, Town of Caryville, Tennessee, Stephanie R.
Smith, and Bill Widener (collectively, “defendants”), pursuant to Rule 56 of the Federal
Rules of Civil Procedure. In the consolidated motion, defendants submit that there are no
genuine issues of material fact in dispute and defendants are entitled to summary judgment
as a matter of law on all claims by plaintiff Tracy Jackson (“plaintiff Jackson”) and plaintiff
Uless Joe Arnold (“ plaintiff Arnold”) in their respective complaints. Plaintiff Jackson has
responded in opposition [Jackson, Doc. 31] to defendants’ motion for summary judgment,
and defendants have filed a reply to that response [Jackson, Doc. 35]. Plaintiff Arnold has
not filed a response to defendants’ motion for summary judgment.
The Court has reviewed the motion, the response and reply briefs [Docs. 25, 26, 27,
30, 31, 32, 35], and the supporting documents and exhibits, including the audio CD submitted
by plaintiff Jackson. After careful consideration, and for the reasons explained herein, the
Court will grant, in part, defendants’ motion for summary judgment [Jackson, Doc. 25;
Arnold, Doc. 19] to the extent that plaintiffs’ claims arising under federal law will be
dismissed. Because the claims over which the Court has original jurisdiction will be
dismissed, plaintiffs’ remaining state-law claims will be remanded to state court.
I.
Facts and Procedural History
A.
Procedural History
Plaintiff Jackson filed suit against the Town of Caryville, Tennessee (“Caryville”),
Detective Stephanie Smith (“Detective Smith”), and chief of police Bill Widener (“Chief of
Police Widener”) [Jackson, Doc. 1].1 In her complaint, plaintiff Jackson claims that
defendants violated her constitutional rights under the Fourth and Fourteenth Amendments,
committed violations of 42 U.S.C. § 1983, § 1986, and § 1988[Id.]. Plaintiff Jackson also
1
Plaintiff Jackson filed her complaint in federal court. In that complaint, she initially asserted
claims against the Caryville Police Department and the 8th Judicial District Drug Task Force
[Jackson, Doc. 1]. These defendants were previously dismissed by order of the Court [Jackson,
Docs. 13, 19].
2
asserts state-law claims for a violation of Tenn. Code Ann. § 8-8-302, false
arrest/imprisonment, and negligence [Id.]. Plaintiff Arnold filed suit in state court against
Caryville and Detective Smith, and defendants removed the action to this Court [Arnold,
Doc. 1]. In his complaint, plaintiff Arnold asserts claims primarily arising under state-law,
including claims for arrest without probable cause, false arrest/imprisonment, assault and
battery, negligence (including negligent infliction of emotional distress), and intentional
infliction of emotional distress [Id.]. Upon motion of defendants, who asserted that
plaintiffs’ claims in their respective complaints arise out of the same transaction and
occurrence, involve the same defendants, and contain the same allegations of wrongdoing,
the Court consolidated these cases for case management, pretrial discovery, and trial
[Jackson, Doc. 14].2
B.
Facts
In early 2009, the Caryville police department began receiving anonymous
complaints and tips, both in person and via the telephone, regarding allegations of illegal
drug activity by employees at the Eagles Nest Bar (the “Eagles Nest”) located in Caryville
[Doc. 25-7, pp. 8, 14, 28-29]. Detective Smith, a drug investigator with the Caryville police
department, knew of these anonymous complaints and tips regarding the Eagles Nest and
conducted the Caryville police department’s undercover investigation [Id., pp. 2, 6, 14].
Detective Smith is a certified police officer who received training in undercover drug
2
Neither plaintiff filed a response to defendants’ motion to consolidate.
3
operations from the 8th Judicial Drug Task Force, Walters State Police Academy, and the
Town of Caryville [Id.]. She also has experience in undercover drug operations from her
previous employment with the 8th Judicial Task Force and other police departments,
including supervising approximately one-hundred (100) undercover operations [Id., pp. 2-4,
16].
Prior to the Eagles Nest investigation, Cynthia Drummonds (“Drummonds”) was
arrested by Detective Smith on a criminal charge of promoting the manufacture of
methamphetamine [Id., pp. 9-10]. Following that arrest, Detective Smith asked Drummonds
whether she had any information regarding illegal drug activity by employees at the Eagles
Nest [Id., p. 10]. Drummonds told Detective Smith that she knew drugs were sold out of the
Eagles Nest by the owner, plaintiff Arnold, and by other employees [Id.]. Drummonds,
whose criminal charge was still pending, agreed to be a confidential informant for the
Caryville police department [Doc. 26, ¶ 4]. Detective Smith testified that given the pending
criminal charge, Drummonds would get a secondary benefit from working as a confidential
informant, but that she would receive only expense money for this role and no financial
incentive [Doc. 25-7, p. 10].
Before using Drummonds as a confidential informant, Detective Smith consulted with
Chief of Police Widener and Mike Ripley, an assistant district attorney (“Attorney Ripley”)
[Id., pp. 9-12, 25]. Seeking approval from the assistant district attorney’s office prior to
using a confidential informant is consistent with the normal practices of the Caryville police
department [Id., pp. 10-12]. Attorney Ripley and Chief of Police Widener approved
4
Drummonds as a confidential informant for the Eagles Nest investigation [Id., pp. 10-12, 25].
Before the investigation began, Detective Smith had a background check performed on
Drummonds, including an NCIC, warrant, and fingerprint check [Id., p. 24; Doc. 26, ¶¶ 5,
6]. The detective also told Drummonds that she must tell the truth and follow a code of
conduct, which Drummonds agreed to [Doc. 25-7, p. 20]. At the commencement of the
investigation, plaintiff Jackson was not an express target [Id., p. 4].
The undercover investigation of the Eagles Nest was conducted in April 2009 and
included several controlled drug buys [Doc. 26, ¶ 9]. Before each buy, Detective Smith met
with Drummonds, searched her car and her person for drugs or contraband, and equipped
Drummonds with hidden audio recording equipment [Doc. 25-7, pp. 21- 23]. Detective
Smith also debriefed with Drummonds immediately after each buy, at which time
Drummonds told Detective Smith the circumstances surrounding each buy and gave the
detective any evidence she obtained during the buy [Id.].
On April 13, 2009, Drummonds participated in a controlled buy at the Eagles Nest
[Doc. 26, ¶ 10]. Immediately after the buy, Drummonds met and debriefed with Detective
Smith. Drummonds related to the detective that while at the Eagles Nest, she spoke with
Valerie Phillips (“Phillips”) regarding a drug deal [Id., ¶¶ 11, 12]. According to Drummonds,
Phillips then conferred with a “blonde woman,” whom Drummonds did not know, and with
plaintiff Arnold [Id.]. Drummond told Detective Smith that she saw plaintiff Arnold nod his
head in agreement to the drug deal and that Phillips and the blonde woman went into the
women’s bathroom [Id.]. Drummonds stated that Phillips and the blonde woman came out
5
of the bathroom shortly thereafter and Phillips took Drummonds outside and the two
exchanged drugs and money [Id.]. Drummonds told Detective Smith she did not know the
blonde woman. Detective Smith showed Drummonds a photograph of plaintiff Jackson, and
Drummonds confirmed that the photograph of plaintiff Jackson was the “blonde woman” she
saw with Phillips [Id., pp. 14-15; Doc. 27, ¶ 17]. Plaintiff Jackson testified at her deposition
that she had blond hair in April 2009 [Doc. 31-1, p. 14].
Plaintiff Jackson asserts that Drummonds did not identify her until prompted to by
Detective Smith. She asserts that she was not at the Eagles Nest on April 13, 2009, that she
was not an employee of the Eagles Nest, but only filled in at the bar on two occasions, and
that there were two other blonde women apart from plaintiff Jackson who worked at the
Eagles Nest in April 2009 [Doc. 31-1].
Drummonds participated in two other controlled drug buys at the Eagles Nest, one on
April 15, 2009, and one on April 30, 2009 [Doc. 26, ¶¶ 13, 15, 16]. Immediately after the
buy on April 15, 2009, Drummonds met with Detective Smith and told her that she spoke to
plaintiff Arnold and Kevin Lawson (“Lawson”) at the Eagles Nest regarding a drug deal [Id.,
¶¶ 14, 15]. Drummonds related to Detective Smith that Lawson spoke to an unidentified
person and that Lawson and Drummonds exchanged drugs and money in plain view of
plaintiff Arnold [Id.]. Immediately after the buy on April 30, 2009, Drummonds met with
Detective Smith and told the detective that while at the Eagles Nest, she had spoken with
David Durkee (“Durkee”), whom Drummonds believed to be the manager [Id., ¶¶ 16, 17,
18]. Drummonds related to the detective that she spoke to Durkee about purchasing drugs
6
and pills and that Durkee asked plaintiff Arnold if he had any more pills [Id.]. Drummonds
stated that Durkee and plaintiff Arnold conferred with her and that Drummonds and Durkee
exchanged drugs and money [Id.]. Drummonds stated that plaintiff Arnold was present and
involved in the drug transaction [Id.].
Drummonds recorded each of the April 2009 controlled buys on hidden audio
recording equipment [Id., ¶ 8]. According to Detective Smith, she attempted to corroborate
the information Drummonds provided, including noting that the information was consistent
with the anonymous complaints and tips received by the Caryville police department prior
to the investigation [Doc. 25-7, pp. 13-16]. Detective Smith also ran a criminal history report
for plaintiff Jackson, a report which revealed a lengthy record [Id., p. 43; Doc. 27, ¶ 17]. In
addition, Detective Smith spoke with Phillips following the April 2009 buys and Phillips
confirmed the identities of plaintiffs Jackson and Arnold as persons involved in drug
activities at the Eagles Nest, including referring to “Tracy”3 as someone who worked at the
Eagles Nest and who “sold a little” [Doc. 25-7, pp. 19-20; Doc. 31-6, p. 6]. Given the
information supplied by Drummonds and Detective Smith’s corroboration of that
information, Detective Smith filed affidavits of complaints against plaintiffs Jackson and
Arnold for involvement in illegal drug activities at the Eagles Nest [Docs. 27-1, 27-2, 27-3,
27-4]. The affidavits of complaints were executed and plaintiffs were arrested, along with
several other individuals [Id.]. The criminal charges against plaintiffs Jackson and Arnold
3
“Tracy” is plaintiff Jackson’s first name.
7
were ultimately dismissed, although criminal convictions of others did result [Id., ¶¶ 18, 19].
Detective Smith had no involvement in the dismissal of the charges [Id.].
II.
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper
“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). The moving party bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th
Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).
“Once the moving party presents evidence sufficient to support a motion under Rule 56, the
nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis Through
Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex,
477 U.S. at 317). To establish a genuine issue as to the existence of a particular element, the
non-moving party must point to evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
genuine issue must also be material; that is, it must involve facts that might affect the
outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
8
for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or
determine the truth of the matter. Id. at 249. Nor does the Court search the record “to
establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold
inquiry of determining whether there is a need for a trial—whether, in other words, there are
any genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.
III.
Analysis
A.
Federal Claims
1.
Fourth Amendment Claims
“[Section] 1983 by its terms[,] does not create any substantive rights but rather merely
provides remedies for deprivations of rights established elsewhere.” Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005) (quotation and citation omitted). To prevail
on a § 1983 claim, a plaintiff “must establish that a person acting under color of state law
deprived [him] of a right secured by the Constitution or laws of the United States.” Waters
v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001).
The U.S. Supreme Court has held, however, that “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
That defense, qualified or “good faith” immunity, which defendants assert in this case, “is
9
an affirmative defense that must be pleaded by a defendant official.” Id. at 815. To
determine whether an officer is entitled to qualified immunity, the U.S. Court of Appeals for
the Sixth Circuit follows a two-step analysis: “(1) whether, considering the allegations in a
light most favorable to the party injured, a constitutional right has been violated, and (2)
whether that right was clearly established.” Causey v. City of Bay City, 442 F.3d 524, 528
(6th Cir. 2006) (quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005)
(internal citation omitted)).4
4
As the Sixth Circuit explained in Estate of Carter:
Panels of this court occasionally employ a three-step qualified immunity analysis,
as opposed to the two-step analysis set forth here. As two recent opinions indicate,
both the two-step approach and the three-step approach can be said to capture the
holding of Saucier v. Katz, 533 U.S. 194 (2001). Compare Dunigan v. Noble, 390
F.3d 486, 491 n.6 (6th Cir. 2004) (taking the two-step approach), with Sample v.
Bailey, 409 F.3d 689, 696 n.3 (6th Cir. 2005) (taking the three-step approach). The
third step is “whether the plaintiff offered sufficient evidence to indicate that what
the official allegedly did was objectively unreasonable in light of the clearly
established constitutional rights.” Champion v. Outlook Nashville, Inc., 380 F.3d
893, 905 (6th Cir. 2004) (internal quotation omitted). In cases subsequent to
Saucier, the Supreme Court has not formally broken up the two steps prescribed by
Saucier into three steps, see, e.g., Brosseau v. Haugen, 543 U.S. 194 (2004); Groh
v. Ramirez, 540 U.S. 551, 563 (2004), but the three-step approach may in some cases
increase the clarity of the proper analysis. In many factual contexts, however,
including this one, the fact that a right is “clearly established” sufficiently implies
that its violation is objectively unreasonable. Cf. Champion, 380 F.3d at 905.
408 F.3d at 311 n.2. Because, as found infra, the Court finds that defendants did not violate a
constitutional right of plaintiffs, it is unnecessary to address the “clearly established” prong. See,
e.g., Causey, 442 F.3d at 528 (following the two-step test because the plaintiffs failed to establish
that the officers violated their Fourth Amendment rights to be free from unreasonable searches).
10
Both plaintiffs claim that defendants violated their constitutional rights under the
Fourth Amendment because their arrests were without probable cause.5
“Probable cause exists if the facts and circumstances known to the officer warrant a
prudent man in believing that the offense has been committed.” Brooks v. Rothe, 577 F.3d
701, 706 (6th Cir. 2009) (quoting Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007));
Criss v. City of Kent, 867 F.2d 259, 262-63 (6th Cir. 1988) (describing and analyzing
probable cause). In determining whether police had probable cause for a plaintiff’s arrest,
courts are directed to apply a totality of the circumstances test. Illinois v. Gates, 462 U.S.
213, 230-31 (1983). The U.S. Supreme Court has stated several circumstances that
potentially bear on a probable cause determination premised on the tip of a confidential
informant: the reliability of the informant; the basis of the informant’s knowledge; and any
police corroboration of the informant’s tip. Id. at 238. See also United States v. Helton, 314
F.3d 812, 820 (6th Cir. 2003).
5
Plaintiff Jackson alleges a violation of the Fourteenth Amendment premised on her arrest.
However, a claim pursuant to § 1983 for an alleged violation of a constitutional right in regard to
an arrest is properly analyzed under the Fourth Amendment, not the Fourteenth Amendment. See
Henderson v. Reyda, 192 F. App’x 392, 2006 WL 2220981, at *3-*4 (6th Cir. Aug. 3, 2006) (finding
that the district court properly construed the plaintiff’s due process claims based on the plaintiff’s
allegation of “unlawful force” under the Fourth Amendment, not the Fourteenth Amendment’s due
process clause); see also Wilson v. City of Livermore, Kentucky, 1 F. App’x 334, 2001 WL 45106,
at *2-*3 (6th Cir. Jan. 9, 2001) (holding that the plaintiff’s § 1983 claim for malicious prosecution
was properly analyzed under the Fourth Amendment and not the plaintiff’s reference to his
substantive due process rights under the Fifth Amendment). Accordingly, the Court will not address
plaintiff Jackson’s claim under the Fourteenth Amendment because the proper analysis of that claim
is under the Fourth Amendment.
11
a.
Plaintiff Jackson
Defendants assert that the totality of the circumstances support a finding of probable
cause for the arrest of plaintiff Jackson. Plaintiff Jackson disagrees, asserting that the totality
of the circumstances do not establish probable cause. Plaintiff Jackson argues that the
anonymous complaints and tips regarding the Eagles Nest and illegal drug activities by its
employees were unrecorded and did not pertain to her. She argues that the only factual
assertion by Drummonds linking her to a drug transaction at the Eagles Nest was that
someone with blonde hair went into the women’s bathroom with Phillips on April 13, 2009,
after which Phillips and Drummonds participated in a drug transaction.6 Plaintiff Jackson
submits that Drummonds did not identify her as the “blonde woman” until prompted by
Detective Smith, and that there were two other blonde women who worked at the Eagles Nest
in April 2009 [Doc. 31-1, pp. 14-15]. She also asserts that Phillips only identified a woman
to Detective Smith by the name of “Tracy,” and only discussed “Tracy” as someone who had
“sold a little.” Plaintiff Jackson submits that Drummonds did not report any conversations
between her and the “blonde woman,” that there was no indication on the audio recordings
that the “blonde woman” was involved in a drug transaction, and that the “blonde woman”
was not seen in the presence of or in the possession of any drugs. Finally, plaintiff Jackson
submits that the “blonde woman” was not her because she was not at the Eagles Nest on
April 13, 2009 [Doc. 31-1].
6
Plaintiff Jackson has blonde hair, Phillips has dark hair [Doc. 35-1].
12
Upon review, the Court concludes that the totality of the circumstances and the
undisputed evidence show that there was probable cause to arrest plaintiff Jackson.
Detective Smith relied on information obtained from Drummonds, a confidential informant,
that a blond woman identified later as plaintiff Jackson participated in a drug transaction on
April 13, 2009 at the Eagles Nest. Detective Smith investigated Drummonds, including
conducting a background check and obtaining approval from Attorney Shipley and Chief of
Police Widener, prior to using her as a confidential informant. Prior to each controlled buy,
Detective Smith searched Drummonds for contraband, and the detective monitored
Drummonds throughout the undercover investigation, talking to her daily, and equipping
Drummonds with a hidden recording device. Detective Smith also met with Drummonds
immediately after the buy on April 13, at which time Drummonds debriefed and identified
plaintiff Jackson after being shown a picture by Detective Smith of a “blond woman.” See
Wilson v. City of Livermore, No. 99-6137, 2001 WL 45106, at *1-*3 (6th Cir. Jan. 9, 2001)
(finding that the district court did not err in concluding that the plaintiff’s arrest was
supported by probable cause when the police searched the informant prior to and after a
controlled drug buy and the police debriefed the informant shortly after the buy).
Furthermore, the information Drummonds provided to Detective Smith was firsthand because
Drummonds participated in and observed the transaction. In addition, prior to using
Drummonds as a confidential informant, Detective Smith knew of the anonymous tips
regarding illegal drug activity at the Eagles Nest, although none of the tips specifically
mentioned Drummonds. See United States v. Tillman, No. 08-1364, 2010 WL 5135615, at
13
*1-*2 (6th Cir. Dec. 16, 2010) (affirming the district court’s determination of probable cause
premised in part on the district court’s finding that the confidential informant was reliable,
that the information supplied by the confidential informant was based on firsthand
knowledge, and because the police knew the reputation of the establishment where the
undercover investigation occurred).
The above-noted undisputed facts show that Drummonds was reliable,
notwithstanding plaintiff Jackson’s assertion that Drummonds received a secondary benefit
due to the pending criminal charge. Rather, there is no evidence to indicate that Drummonds
or the information she provided was unreliable. See, e.g., Florida v. J.L., 529 U.S. 266, 270
(2000) (noting that unlike a tip from an anonymous informant, a “tip from a known informant
whose reputation can be assessed, and who can be held responsible if her allegations turn out
to be fabricated[,]” is more trustworthy). Detective Smith also performed a background
check on Drummonds and obtained approval from the assistant district attorney and the chief
of police for using Drummonds in connection with the Eagles Nest investigation,
circumstances which also indicate reliability. In addition, plaintiff Jackson has provided no
evidence that Drummonds provided false or misleading information, or that Detective Smith
had any reason to think the information Drummonds provided was unreliable. Furthermore,
it is undisputed that Drummonds did not receive any financial incentive or financial benefit.
It is also undisputed that Drummonds provided a specific, eyewitness account of
seeing a “blonde woman” enter the women’s bathroom with Phillips at the Eagles Nest on
April 13, 2009. Drummonds later confirmed to Detective Smith that the photograph of
14
plaintiff Jackson was of the same woman Drummonds saw on April 13, 2009. The Supreme
Court has noted that a reliable confidential informant’s firsthand observation and knowledge
of a crime “entitles [the] tip to greater weight than might otherwise be the case.” Gates, 462
U.S. at 233; see also United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc)
(stating that when a “known person . . . to whose reliability an officer attests with some detail
. . . states that he has seen a particular crime and particular evidence, in the recent past,”
probable cause may exist to issue a warrant). It is also undisputed that Detective Smith
monitored and searched Drummonds prior to and after the controlled buys and that the
detective debriefed Drummonds after each controlled buy, including the one on April 13,
2009, at which time Drummonds described the drug transaction that led to the affidavit of
complaint against plaintiff Jackson.
Finally, while police corroboration is not necessary when the information comes from
a reliable source who has personally observed criminal activity, see Allen, 211 F.3d at 976,
Detective Smith nevertheless verified some of the information Drummonds provided.
Detective Smith spoke with Phillips regarding plaintiff Jackson, Phillips mentioned that
“Tracy” (plaintiff Jackson’s first name) had “sold a little,” and the detective ran a criminal
history report on plaintiff Jackson, which revealed that she had a criminal record.
15
b.
Plaintiff Arnold7
The Court notes again that plaintiff Arnold has not responded to defendants’ motion
for summary judgment. A non-response standing alone, however, is not determinative of
whether summary judgment is appropriate. Aquent, LLC v. United States, No. 08-15275,
2011 WL 1397105, at *1 (E.D. Mich. Apr. 13, 2011) (discussing the former version of Rule
56 and noting that “the non-movant’s failure to respond does not relieve the movant of its
burden to establish that ‘the moving party is entitled to judgment as a matter of law’”).
Relevant to a party’s failure to respond is Rule 56(e), which provides:
(e) If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule
56(c), the court may:
....
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it; or
(4) issue any other appropriate order.
7
Plaintiff Arnold has brought a claim for arrest without probable cause against Caryville and
Detective Smith. He has not asserted a claim against Chief of Police Widener. Upon review of the
complaint filed by plaintiff Arnold, and finding no reference to the U.S. Constitution or a federal
statute, it is unclear whether the complaint alleges a violation of plaintiff Arnold’s civil rights under
federal law. Plaintiff Arnold does, however, assert that his arrest was “without probable cause or
justification” [Id., ¶ 8]. This claim, liberally construed, could be interpreted as a claim pursuant to
§ 1983 for a violation of his constitutional rights under the Fourth Amendment. The remainder of
plaintiff Arnold’s claims arise under Tennessee tort law.
16
Fed. R. Civ. P. 56(e).8 Accordingly, the Court has examined defendants’ motion for
summary judgment as it pertains to plaintiff Arnold’s complaint and the supporting materials
to determine if summary judgment is appropriate. See Aquent, 2011 WL 1397105, at *1
(taking the same approach with respect to a plaintiff’s motion for summary judgment where
the sole defendant failed to respond).
Assuming plaintiff Arnold has asserted a Fourth Amendment claim pursuant to § 1983
premised on an arrest without probable cause, the undisputed facts show that there was
probable cause to arrest plaintiff Arnold based on the information provided by Drummonds
and pertaining to plaintiff Arnold’s conduct in the drug transactions occurring in April 2009
at the Eagles Nest. This probable cause is established by the information provided by
Drummonds, a reliable confidential informant, concerning plaintiff Arnold’s involvement in
three separate controlled drug buys at the Eagles Nest, on April 13, 15, and 30. As shown
previously, there is no evidence that Drummonds or the information she provided was
unreliable. The information provided by Drummonds regarding plaintiff Arnold shows that
he was involved in the three separate buys, including speaking with Phillips and Durkee
about illegal drugs and being present when Drummonds engaged in illegal drug transactions
with Phillips, Lawson, Durkee, and plaintiff Arnold. Phillips also provided evidence about
8
The Advisory Committee Notes for the 2010 amendments indicate that the Rule was revised
to preclude summary judgment from being granted by default, even “if there is a complete failure
to respond to the motion.” Fed. R. Civ. P. 56 advisory committee note (discussing under subdivision
(e) when a party fails to properly address another parties assertion of fact as required by 56(c)).
17
plaintiff Arnold’s involvement in drug transactions at the Eagles Nest, evidence which
confirmed the information provided by Drummonds.
Given these undisputed facts, the Court finds that there was probable cause for
plaintiff Arnold’s arrest and thus, his Fourth Amendment claim brought under § 1983 will
be dismissed.
2.
Claims Pursuant to 42 U.S.C. § 1986 and § 1988
Plaintiff Jackson also claims that defendants violated 42 U.S.C. § 1986 and § 1988.
Plaintiff Arnold has not asserted claims under these statutes. Defendants have moved for
summary judgment in regard to these claims. In her response, plaintiff Jackson has offered
no argument in regard to these claims.
Section 1986 provides a cause of action against persons who have knowledge of and
who fail to prevent or aid in preventing the commission of a civil rights conspiracy violation,
pursuant to 42 U.S.C. § 1985. See 42 U.S.C. § 1986. In order to assert a cause of action
under § 1986, a plaintiff is required to assert a cause of action under § 1985. See Estate of
Bing v. City of Whitehall, Ohio, 373 F. Supp. 2d 770, 785 (S.D. Ohio 2006) (“To effectuate
a cause of action under § 1986, a plaintiff must state a cause of action under § 1985.”).
Plaintiff Jackson’s complaint contains no cause of action under § 1985 and no allegations
relating to a conspiracy to violate plaintiff Jackson’s civil rights. Accordingly, because there
can be no claim under § 1986 without a claim of a violation of § 1985, plaintiff Jackson’s §
1986 claim fails, defendants are entitled to summary judgment on this claim, and it will be
dismissed.
18
Furthermore, plaintiff has no cognizable claim under 42 U.S.C. § 1988. Section 1988
is the statute providing attorneys fees and costs to a “prevailing party” in a civil rights case.
See 42 U.S.C. § 1988. There is, however, no individual claim pursuant to § 1988.
Accordingly, plaintiff Jackson’s claim under this statute fails, defendants are entitled to
summary judgment on this claim, and it will be dismissed.
3.
Civil Rights Claims Against Caryville
Plaintiff Jackson alleges that Caryville had a policy and custom of inadequately and
improperly investigating criminal activity and a policy and custom of inadequately and
improperly training its police officers. She argues that Caryville had an official policy of
allowing its employees complete discretion in using confidential informants in undercover
investigations, that Caryville made the affirmative decision not to implement appropriate
policies and procedures for the use of confidential informants, and that it failed to supervise
and/or train employees in the use of confidential informants. She argues that Chief of Police
Widener made the deliberate choice to allow employees complete discretion, rather than
assuring that employees were properly trained, and that Caryville’s failure to properly train
Detective Smith was the actual and proximate cause of the constitutional violation suffered
by plaintiff Jackson. Defendants have moved for summary judgment in regard to these
municipal liability claims. Plaintiff Arnold has not alleged a municipal liability claim against
Caryville.
A local government is liable under § 1983 only when the government itself commits
the constitutional violation, not when the violation is committed by the government’s
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employees. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993) (citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79 (1985)). In other words, a municipality
may not be held liable under § 1983 pursuant to a theory of respondeat superior. Bennett v.
City of Eastpointe, 410 F.3d 810, 818 (6th Cir. 2005) (citing Monell v. Dept. of Social Servs.,
436 U.S. 658, 691 (1978)). To succeed on a municipal liability claim, a plaintiff “must prove
that the violation of a federal right occurred as the result of an illegal policy or custom.”
Sabo v. City of Mentor, No. 1:10-CV-345, 2010 WL 4008823, at *7 (N.D. Ohio Oct. 12,
2010) (citing Monell, 436 U.S. at 694). Additionally, the policy or custom must have been
the moving force directly causing the violation. Id. (citing Bd. of County Comm’rs of Bryan
County v. Brown, 520 U.S. 397, 403-04 (1997)). See also Memphis, Tennessee Area Local,
Am. Postal Workers Union, AFL-CIO v. City of Memphis, 361 F.3d 898, 902 (6th Cir.2004)
(citation omitted).
Examples of a municipal policy or custom may be shown by a plaintiff pointing to a
statement by a policymaking official, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736-38
(1989), or to a custom so widespread and well-settled “as to have the force of law,” Bd. of
Cnty. Commr’s of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997), or to inadequate
screening, training or supervision by the municipality of its employees, Id. (inadequate
screening) and City of Canton v. Harris, 489 U.S. 378, 390 (1989) (inadequate training and
supervision). In making a failure to train or supervise claim, the plaintiff must specifically
prove that: (1) the training or supervision was inadequate for the tasks that officers must
perform; (2) the inadequate training or supervision was the result of deliberate indifference;
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and (3) the inadequacy was closely related to or actually caused the injury. Ciminillo v.
Streicher, 434 F.3d 461, 469 (6th Cir. 2006); Estate of Fahner ex rel. Fahner v. County of
Wayne, —F. Supp. 2d —, —, 2011 WL 2490994, at *13 (E.D. Mich. June 22, 2011).
As demonstrated above in regard to plaintiff Jackson’s Fourth Amendment claim, she
has not shown facts sufficient to show that a constitutional violation occurred because she
has not demonstrated that she was arrested without probable cause. See Mattox v. City of
Forest Park, 183 F.3d 515, 523 (6th Cir. 1999) (“If the plaintiffs have failed to state a claim
for violation of a constitutional right at all, then the City of Forest Park cannot be held liable
for violating that right any more than the individual defendants can.”).
However, even if plaintiff Jackson had shown that a constitutional violation occurred,
she has failed to show that Detective Smith’s training, or Caryville’s training requirements,
amount to a wrongful policy of total discretion or a wrongful policy of inaction or failure to
implement policy safeguards. Plaintiff Jackson has not disputed that Detective Smith has
training and experience in drug investigations and undercover operations, including
supervising approximately one-hundred (100) undercover drug operations. Plaintiff Jackson
has provided no evidence that Caryville has a history of unconstitutional arrests relating to
the use of confidential informants. She has provided no evidence, facts, or information
regarding the specific policies and procedures of the Caryville police department or any
evidence, beyond her own assertions, that these policies and procedures amount to a
deliberate indifference on the part of Caryville.
Furthermore, it is undisputed that
investigators with the Caryville police department had a practice of obtaining approval from
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the chief of police and the assistant district attorney’s office before using confidential
informants and undisputed that Detective Smith complied with this practice in obtaining
approval for Drummonds [Doc. 32, p. 8; Doc. 25-7, pp. 9-10].
While plaintiff Jackson asserts that Detective Smith and the present chief of police
testified that Caryville should have had a policy in place for confidential informants, and that
Detective Smith used her discretion to adopt Campbell County’s “Confidential Source
Code,” the Court disagrees that these opinions and circumstances create genuine issues of
material fact in regard to plaintiff Jackson’s deliberate indifference claims on the part of
Caryville. Plaintiff Jackson has provided no evidence that the actual training requirements
and tasks performed by Detective Smith were inadequate and no evidence or law, given the
circumstances of this case, that lack of a written policy or procedure regarding confidential
informants amounts to an unconstitutional policy of discretion. Finally, while plaintiff
Jackson asserts that Detective Smith failed to sufficiently corroborate the information
provided by Drummonds, the Court notes that the Sixth Circuit has stated that police
corroboration is unnecessary when information is supplied by a reliable confidential
informant who was personally involved in the criminal activity. See United States v. Dyer,
580 F.3d 386, 390-92 (6th Cir. 2009) (noting that when it has been shown that there is
sufficient indicia of reliability in regard to a confidential informant, there is no requirement
of substantial independent policy corroboration); Allen, 211 F.3d at 976.
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B.
Plaintiffs’ State-Law Claims
Plaintiff Jackson has alleged a state-law claim for a violation of Tenn. Code Ann. §
8-8-302 and claims for violations of the state-law torts of false arrest/imprisonment and
negligence. Plaintiff Arnold has alleged state-law claims for arrest without probable cause,
false arrest/imprisonment, assault and battery, negligence (including negligent infliction of
emotional distress), and intentional infliction of emotional distress.
The Court’s analysis in regard to plaintiffs’ federal claims in these lawsuits effectively
disposes of those claims over which this Court has original jurisdiction. Under these
circumstances, and pursuant to 28 U.S.C. § 1367(c), the Court may decline to exercise
continuing “pendent” or supplemental jurisdiction over plaintiffs’ remaining state-law
claims. Accordingly, in the exercise of its discretion and in the interests of comity, and
noting that plaintiff Arnold’s claims arise almost solely under state-law and that his
complaint was initially filed in state court and was removed to this Court, the Court declines
to exercise continuing pendent jurisdiction over plaintiffs’ state-law claims in these
consolidated cases. 28 U.S.C. § 1367(c); United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 725-26 (1966). Thus, plaintiffs’ state-law claims will be remanded to state court.
IV.
Conclusion
For the reasons explained herein, defendants’ motion for summary judgment [Jackson,
Doc. 25; Arnold, Doc. 19] will be GRANTED in part in that the Court finds summary
judgment warranted with respect to the 42 U.S.C. § 1983 claims alleged by plaintiff Tracy
Jackson and plaintiff Uless Joe Arnold for violations of the Fourth Amendment for arrests
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without probable cause. Plaintiff Tracy Jackson’s 42 U.S.C. § 1986 and § 1988 claims will
also be dismissed, as well as her 42 U.S.C. § 1983 claim alleging municipal liability on the
part of the Town of Caryville, Tennessee. Because the claims over which the Court has
original jurisdiction will be dismissed, plaintiffs’ remaining state-law claims will be
remanded to state court and these cases will be closed. An appropriate order will be entered.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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