Daugherty v. Graves et al (TV2)

Filing 13

MEMORANDUM OPINION AND ORDER; defendants' 5 MOTION to Dismiss - Partial is GRANTED in part and DENIED in part. The motion is GRANTED to the extent that plaintiff's official capacity claims against Officers Graves and Marlow are DISMISSED and plaintiffs state-law claims for assault, intentional infliction of emotional distress, and false arrest against the Town of Jacksboro and the Town of Caryville are DISMISSED. Signed by District Judge Thomas A Varlan on 2/16/12. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
LYNN MICHELLE DAUGHERTY,
Plaintiff,
v.
ZACHARY GRAVES, et al.,
Defendants.

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No.:

3:11-CV-458
(VARLAN/GUYTON)

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on the Partial Motion to Dismiss [Doc. 5],
submitted by defendants Zachary Graves (“Officer Graves”), the Town of Jacksboro, Ben
Marlow (“Officer Marlow”), and the Town of Caryville (collectively, “defendants”),
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff, Lynn Michelle
Daugherty, has responded [Docs. 9, 10] to the motion, and defendants have submitted a reply
brief [Doc. 11]. For the reasons set forth herein, and after considering the pending motion,
the supporting and responsive briefs, the allegations in the complaint, and the relevant law,
defendants’ partial motion to dismiss [Doc. 5] will be GRANTED in part and DENIED in
part.

I.

Facts1
Officer Marlow is employed by the Town of Caryville [Doc. 1, ¶ 18]. Officer Graves

is employed by the Town of Jacksboro [Id., ¶ 19].
In May 2011, plaintiff’s son, Michael, was stopped by Officer Marlow near the Town
of Jacksboro on suspicion of driving under the influence [Id., ¶ 7]. Officer Marlow and
Officer Graves each conducted three field sobriety tests on Michael, all of which he passed
[Id.]. Because Michael admitted consuming alcohol that day, the officers advised him that
he would be required to call someone for a ride [Id.]. Michael called plaintiff and she arrived
at the scene [Id., ¶¶ 8, 9]. Officer Graves advised plaintiff that Michael was not under arrest,
that he had passed the field sobriety tests, but that he was not allowed to drive [Id.]. Plaintiff
was not pleased with this explanation and “proceeded to convey her displeasure with the way
[Officer Graves] had handled the situation,” including questioning “his reasoning for
stopping [Michael] in the first place.” [Id., ¶ 10].
After a brief discussion between plaintiff and the officers, plaintiff was advised that
she was free to leave [Id., ¶ 11]. While leaving, plaintiff told Officer Marlow to “get out of
her face.” [Id.]. Officer Graves, with the assistance of Officer Marlow, then slammed
plaintiff against the trunk of the police car and handcuffed her hands behind her back [Id.].
Plaintiff experienced pain in her right shoulder from being slammed against the trunk and

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The Court takes the factual allegations alleged in a complaint as true for purposes of
motions to dismiss under Rule 12(b)(6). See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting
that, “when ruling on a defendant’s motion to dismiss, a judge must accept as true all the factual
allegations contained in the complaint”) (citations omitted).
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begged the officers to remove the handcuffs [Id., ¶ 12]. The officers moved the handcuffs
to plaintiff’s front [Id., ¶ 13]. After plaintiff continued to complain of pain, the handcuffs
were removed and she was transported by ambulance to a hospital for medical treatment [Id.,
¶ 15]. Plaintiff was later charged with resisting arrest and interference with a police
investigation [Id., ¶ 17]. Both charges were dismissed at a preliminary hearing [Id.]. In her
complaint, plaintiff alleges that she was seriously injured as a result of this incident with
Officers Graves and Marlowe [Id., ¶ 16].
Plaintiff then filed her complaint against Officers Graves and Marlow, in their
individual and official capacities, and against the Town of Jacksboro and the Town of
Caryville, alleging claims “pursuant to 42 U.S.C. § 1983 for the violation of her
constitutional rights” [id., p. 1], that Officers Graves and Marlow had “acted under color of
state law,” and that defendants violated her clearly established constitutional rights [Id., ¶
20]. Plaintiff does not, however, identify the constitutional rights allegedly violated by
defendants. Plaintiff also alleges state-law claims for assault, intentional infliction of
emotional distress, and false arrest against all defendants [Id., ¶¶ 24-26].
Defendants filed the partial motion to dismiss [Doc. 5], requesting that the Court
dismiss, pursuant to Rule 12(b)(6), plaintiff’s claim arising under § 1983, plaintiff’s official
capacity claims against Officers Graves and Marlow, and plaintiff’s assault, intentional
infliction of emotional distress, and false arrest claims against the Town of Jacksboro and the
Town of Caryville. In her response [Docs. 9, 10], plaintiff acknowledges that her claims for
assault, intentional infliction of emotional distress, and false arrest against the Town of
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Jacksboro and the Town of Caryville are due to be dismissed because these claims cannot
apply to governmental entities under Tennessee’s Governmental Tort Liability Act (the
“GTLA”), Tenn. Code Ann. §§ 29-20-101, et seq. Plaintiff asserts, however, that she has
stated a claim arising under § 1983 and that her official capacity claims against Officers
Graves and Marlow should not be dismissed. In the alternative, plaintiff requests leave to
amend her complaint.
II.

Standard of Review
Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, requiring

only “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’”
in order to “‘give the [opposing party] fair notice of what the . . . claim is and the grounds
upon which it rests.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)); Smith v. City of Salem, Ohio, 378 F.3d 566, 576
n.1 (6th Cir. 2004). “[D]etermining whether a complaint states a plausible claim is contextspecific requiring the reviewing court to draw on its experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). A party may move to dismiss for failure to state a
claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). In order to survive a Rule
12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain allegations
supporting all material elements of the claims. Bishop v. Lucent Techs., Inc., 520 F.3d 516,
519 (6th Cir. 2008). In determining whether to grant a motion to dismiss, all well-pleaded
allegations must be taken as true and must be construed most favorably toward the non4

movant. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003). Detailed
factual allegations are not required, but a party’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions and a formulaic recitation
of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555. Nor will an
“unadorned, the-defendant-unlawfully harmed-me accusation.” Iqbal, 129 S. Ct. at 1937.
Rather, a pleading must “contain either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir. 1988) (quoting Car Carriers, Inc.
v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
III.

Analysis
A.

Plaintiff’s Request to Amend the Complaint

As noted above, plaintiff has alternatively argued that the Court should grant her an
opportunity to amend her complaint if the Court finds the complaint deficient in that it fails
to give defendants notice of her claims [Doc. 10, pp. 4-5]. Pursuant to Federal Rule of Civil
Procedure 15, a court may grant leave to amend “when justice so requires.” Fed. R. Civ. P.
15(a). Courts must read Rule 15 in conjunction with Federal Rule of Civil procedure 7(b),
which requires that a party make such a request in a motion that states with “particularity the
grounds for seeking the order[.]” Fed. R. Civ. P. 7(b); see also Evans v. Pearson Enter., Inc.,
434 F.3d 839, 853 (6th Cir. 2006). The United States Court of Appeals for the Sixth Circuit
does not look favorably upon bare requests for leave to amend in a response to a motion to
dismiss when the requesting party could have filed a proper motion to amend and attached
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a proposed amended complaint for consideration by the court. See Pearson Enterprises, Inc.,
434 F.3d at 853; see also PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 699 (6th Cir. 2004);
Begala v. PNC Bank, Ohio, Nat. Ass’n, 214 F.3d 776, 783-84 (6th Cir. 2000);
Techdisposal.com, Inc. v. CEVA Freight Mgmt., No. 2:09-cv-356, 2009 WL 4283090, at *4*5 (S.D. Ohio, Nov. 30, 2009). As the Sixth Circuit has explained:
Had plaintiffs filed a motion to amend the complaint prior to th[e]
Court’s consideration of the motions to dismiss and accompanied that
motion with a memorandum identifying the proposed amendments, the
Court would have considered the motions to dismiss in light of the
proposed amendments to the complaint[.] Absent such a motion,
however, Defendant was entitled to a review of the complaint as filed
pursuant to Rule 12(b)(6). Plaintiffs were not entitled to an advisory
opinion from the Court informing them of the deficiencies of the
complaint and then an opportunity to cure those deficiencies.
PR Diamonds, Inc., 364 F.3d at 699 (quoting Begala, 214 F.3d at 784 (emphasis in original)).
Here, plaintiff has failed to follow the proper procedure for submitting a motion to
amend her complaint. Plaintiff has also not submitted a proposed amended complaint for
review and consideration by the Court as required by the Local Rules of this District. Local
Rule 15.1, Form of a Motion to Amend and Its Supporting Documentation, states as follows:
A party who moves to amend a pleading shall attach a copy of the
proposed amended pleading to a motion. Any amendment to a pleading,
whether filed as a matter of course or upon a motion to amend, shall,
except by leave of Court, reproduce the entire pleading as amended and
may not incorporate any prior pleading by reference. A failure to
comply with this rule may be grounds for denial of the motion.

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E.D. LR. TN 15.1 (revised June 6, 2011).2 Accordingly, because plaintiff has not complied
with the directive of Rule 7(b) or with the Local Rules, the Court will not accept plaintiff’s
alternative argument contained in a response to a motion to dismiss as a proper motion to
amend.
B.

Plaintiff’s Claim Arising Under § 1983

“[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 the plaintiff 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). Thus, as noted by
defendants, the first step in any case in which a violation under § 1983 is alleged, is that the
plaintiff must identify the specific constitutional rights allegedly infringed.
Defendants argue that plaintiff’s complaint fails to identify a specific constitutional
right or rights that defendants allegedly infringed. In response, plaintiff asserts that the
clearly established right violated by defendants was the Fourth Amendment right to be free
from excessive force during a seizure [Doc. 10, pp. 2-3]. Plaintiff points to the factual
allegations of her complaint, particularly paragraph 11, which she argues sets forth sufficient

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A prior version of Local Rule 15.1 also required the party filing the amended pleading to
“reproduce the entire pleading as amended.” E.D. LR. TN 15.1 (revised Dec. 10, 2010). That prior
version, however, stated that a failure to comply with this rule “is not grounds for denial of the
motion.” Id.
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factual allegations to support her claim arising under § 1983 for purposes of a motion to
dismiss. Paragraph 11 provides that:
After a brief discussion between [Officer Marlow, Officer Graves] and
Plaintiff, the Plaintiff was advised she was free to leave with her son.
While leaving the scene, the Plaintiff told [Officer Marlow] to get out
of her face, at which point [Officer Graves] with the assistance of
[Officer Marlow] slammed the Plaintiff against the trunk lid of the
patrol car and handcuffed her behind her back.
[Doc. 1, ¶ 11].
The Court agrees with defendants that plaintiff’s complaint does not expressly identify
the constitutional rights she alleges to have been violated by defendants. However, given the
factual allegations of the complaint, and the standard of review by which the Court reviews
a complaint pursuant to a Rule 12(b)(6) motion, the Court concludes that the complaint
contains sufficient factual allegations to give defendants fair notice that plaintiff has alleged
a violation of her Fourth Amendment right to be free from excessive force in the context of
an arrest or seizure and that plaintiff’s factual allegations state a plausible claim for relief as
required by Rule 8. See Smith, 378 F.3d at 576; Iqbal, 129 S.Ct. at 1949. Construing the
factual allegations of the complaint in the light most favorable to plaintiff—that she was
present at the stop of her son by police officers and that plaintiff and the officers were
involved in an altercation resulting in plaintiff’s injury—combined with plaintiff’s
allegations that Officers Graves and Marlow were police officers acting under color of state
law in conjunction with the incident and the arrest of plaintiff, the Court finds that these
allegations contain more than mere label and conclusions. While plaintiff’s complaint omits

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a label and designation of the constitutional right she alleges defendants to have violated, the
nature of that alleged right is reasonably ascertainable from the factual allegations in the
complaint. Thus, in light of the liberal pleading standard of Rule 8, the Court finds plaintiff’s
§ 1983 claim sufficient to survive a motion to dismiss and defendants’ request that plaintiff’s
§ 1983 claim be dismissed will be denied.
C.

Plaintiff’s Official Capacity Claims Against Officers Graves and Marlow

Defendants also argue that plaintiff’s official capacity claims against Officers Marlow
and Graves mirror the claims made against the Town of Jacksboro and the Town of Caryville
and are therefore redundant. In response, plaintiff argues that government officials acting
in their official capacity are capable of implementing policies and procedures that violate the
constitutional rights of citizens without the formal approval of official decision-making
channels within the governmental entities.
The United States Supreme Court has previously held that an official-capacity suit is,
in all respects other than name, to be treated as a suit against the entity. See Kentucky v.
Graham, 473 U.S. 159, 165 (1985). See also Claybrook v. Birchwell, 199 F.3d 350, 355 n.4
(6th Cir. 2000) (“An official capacity claim filed against a public employee is equivalent to
a lawsuit directed against the public entity which that agent represents”). The Sixth Circuit
has also concluded that official-capacity suits should be dismissed where the same claims are
also brought against the county. See Jackson v. Shelby Cnty. Gov’t., No. 07-6356, 2008 WL
4915434, at *2 (6th Cir. Nov. 10, 2008) (“[T]he district court properly granted summary

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judgment to the defendants on the claims against the sheriff in his official capacity because
those claims mirror the claims against the County, and are therefore redundant.”).
The Court finds that plaintiff has indeed pled identical claims against both officers,
in their official capacities, and the Towns of Jacksboro and Caryville, in that these claims
mirror one another and are therefore redundant. To the extent plaintiff attempts, in her
response to defendants’ motion, to convert her claims into claims for municipal liability
premised on unconstitutional policies and procedures, the Court will also dismiss these
claims as plaintiff has pled no factual allegations relating to unconstitutional policies and
procedures and no factual allegations relating to any allegation of decision-making authority
on behalf of any defendant. See Cady v. Arenac Cnty., 574 F.3d 334, 345 (6th Cir. 2009)
(“Pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978), a plaintiff suing a
unit of local government, such as a county, must identify an unconstitutional policy or
custom in order to prevail on a § 1983 claim against it.”); Bd. of Cnty. Com’rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 403-04 (1997) (“[W]e have required a plaintiff seeking to impose
liability on a municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that
caused the plaintiff’s injury.”); Pembaur v. Cincinnati, 475 U.S. 469, 481 (1986) (stating that
a single act by a “decisionmaker possess[ing] final authority to establish municipal policy
with respect to the action ordered” may suffice in demonstrating a policy or custom”).
Thus, defendants’ request to dismiss plaintiff’s official capacity claims against
Officers Graves and Marlow will be granted and those claims will be dismissed.

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D.

State-Law Claims

Defendants have also moved for dismissal of plaintiff’s state-law claims for assault,
intentional infliction of emotional distress, and false arrest against the Town of Jacksboro and
the Town of Caryville. Plaintiff has acknowledged that these claims are due to be dismissed
because such claims cannot apply to governmental entities. Accordingly, in light of the lack
of opposition and upon the Court’s review of the immunity provided governmental entities
in the GTLA, defendants’ request that these claims be dismissed will be granted and
plaintiff’s claims for assault, intentional infliction of emotional distress, and false arrest will
also be dismissed.
IV.

Conclusion
For the reasons given above, defendants’ Partial Motion to Dismiss [Doc. 5] is

GRANTED in part and DENIED in part. The motion is GRANTED to the extent that
plaintiff’s official capacity claims against Officers Graves and Marlow are DISMISSED and
plaintiff’s state-law claims for assault, intentional infliction of emotional distress, and false
arrest against the Town of Jacksboro and the Town of Caryville are DISMISSED.
Defendants’ request to dismiss plaintiff’s claim arising under § 1983 is DENIED.
IT IS SO ORDERED.

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

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