Daugherty v. Graves et al (TV2)

Filing 59

ORDER that the Court GRANTS in part and DENIES in part defendants' Motion for Summary Judgment 22 . The Court GRANTS the motion as to defendants Caryville and Jacksboro, and the Clerk is DIRECTED to terminate them as defendant s in this action. The Court additionally GRANTS summary judgment on plaintiff's intentional infliction of emotional distress claim, and DENIES summary judgment as to plaintiff's 1983 claim for excessive force and her state-law claims for assault and false arrest. Signed by Chief District Judge Thomas A Varlan on 3/5/13. (ABF)

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

)
)
)
)
)
)
)
)
)

No.:

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

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on defendants’ Motion for Summary
Judgment [Doc. 22]. Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
defendants move for summary judgment on all claims asserted by plaintiff, Lynn Michele
Daugherty. Plaintiff has responded in opposition [Doc. 29], and defendants have filed a
reply [Doc. 31]. The Court has reviewed the motion and the parties’ responsive and reply
briefs, along with the supporting affidavits, depositions, and exhibits, including the
audio/video DVD submitted by defendants [Docs. 22, 26, 27, 29, 30, 31]. After careful
consideration, and for the reasons explained herein, the Court will grant in part and deny
in part the motion for summary judgment.
I.

Facts
On or about May 29, 2011, Michael Russell (“Russell”), plaintiff’s son, was the

subject of a traffic stop initiated by defendant Officer Ben Marlow (“Marlow”) of the

Caryville Police Department.1 Russell was stopped on suspicion of driving under the
influence after he swerved his vehicle. When Marlow approached the car, he observed a
case of beer on the floorboard of Russell’s car and several empty beer cans in a bag
hanging from the gear shift. After some conversation, Russell agreed to perform a field
sobriety test and after he failed to complete the test to Marlow’s satisfaction, Marlow
called defendant Officer Zachary Graves (“Graves”) of the Jacksboro Police Department
to come to the scene. Graves arrived at the scene and turned on his in-car video.2
Officers Marlow and Graves continued to investigate Russell for driving under the
influence, with Graves administering a field sobriety test. The officers decided not to
arrest Russell, but because he admitted to drinking earlier in the evening, they informed
him that he needed to call someone to come and pick him up. Russell informed the
officers that he would call his mother to come and get him.
At approximately 1:00 a.m., plaintiff received a telephone call from her son and
proceeded to the scene of the traffic stop shortly thereafter. When plaintiff arrived at the
scene, she was “agitated,” [Doc. 22-4, p. 29], and she questioned the officers about the
traffic stop, the tests that had been performed, and why Russell was not allowed to drive
his car home. Plaintiff testified that her “voice was elevated” and she “was upset at the

1

At some point prior to the traffic stop, which took place on or about May 29, 2011,
Marlow had stopped Russell’s brother driving a different car. Marlow was not aware of that at
the beginning of the stop but became aware at some point during the night.
2

Marlow’s police cruiser was not equipped with in-car video, so the portion of the stop
prior to the arrival of Graves does not appear on the video provided to the Court.
2

whole situation” because “[i]t didn’t make good sense to [her]” [Doc. 30-7, pp. 47-48].
Plaintiff and the officers had a confrontation and argued for several minutes.
In response to her arguing with the officers over whether her son passed the
administered sobriety tests, the officers told plaintiff that “there’s no reason to be like
this,” as they were letting her son go home. (Graves Cruiser Cam, 1:08:08-10). The
officers then informed plaintiff that if she “want[ed] to be like this,” referring to her
arguing with them, they would take both her and Russell to jail. Plaintiff responded:
“No, you’re not taking me any-damn-where.”

(Graves Cruiser Cam, 1:08:21-23).

Shortly afterward, as the argument continued, plaintiff raised her arm, pointing, and
informed the officers that as they are not state highway patrolmen, they have no legal
rights on the state highway on which they stopped her son.3
Plaintiff then turned to walk back toward her car, where her son was waiting
inside, and then stopped, turned back, and while pointing at Marlow, told him to get out
of her face.4 (Graves Cruiser Cam, 1:08:50-54). At that point, the officers each pulled
one of plaintiff’s arms behind her back and informed her that she was under arrest,
pushing her against the trunk of Marlow’s cruiser while handcuffing her. Graves testified
3

Plaintiff testified at her deposition that she did not leave the first time she was asked but
that she complied the second time and started walking toward her car.
4

When asked at his deposition whether plaintiff continued to say things to the officers as
she walked back toward her car, Marlow testified she did, “as best as I can remember” [Doc. 303, pp. 18-19]. Plaintiff testified at her deposition that she did not recall whether she said
anything to the officers as she walked away [Doc. 30-7, p. 51]. Graves testified that the officers
followed plaintiff toward her car and that Marlow continued to talk to her as they did [Doc. 30-8,
pp. 27-28]. Any comments plaintiff or the officers made during plaintiff’s brief walk toward her
car are inaudible on the cruiser video.
3

that he made the decision to arrest plaintiff “when she got in Ben Marlow’s face” [Doc.
30-8, p. 28]. Plaintiff testified that when the officers handcuffed her, she “was trying to
pull [her] arms back because [her] shoulder was - - [she] felt - - at that point [she] felt
pain going down [her] shoulder and down [her] arm” [Doc. 30-7, p. 55]. Plaintiff
testified that she continued to try to pull her arms around because the more the officers
pulled her arms back, the worse it hurt. The conversation that transpired while plaintiff
was pushed against the hood is somewhat inaudible on the cruiser video, but plaintiff
mentioned her back and asked the officers to take her to the hospital, at which point one
of the officers told her to “stop resisting” (Graves Cruiser Cam, 1:09:14-16). Plaintiff
claimed that she was not resisting and asked again to be taken to the hospital. Marlow
told plaintiff that she had been resisting the whole time and that she was not going to the
hospital.
One of the officers told plaintiff that she was fine, and she informed them that she
was under a doctor’s care. As she continued to tell the officers to take her to the hospital,
Marlow yelled at plaintiff that she does not tell them what to do because they are the
police. A short time after plaintiff was first placed in handcuffs, after plaintiff informed
the officers several times that she needed to be taken to the hospital, Graves radioed for
an ambulance. Plaintiff again mentioned her back and began complaining that her right
shoulder was hurting, all the while breathing heavily and sounding short of breath.
After plaintiff informed the officers that it would be better if she was handcuffed
in the front rather than behind her back, Graves removed the handcuffs and handcuffed
4

plaintiff in the front.

The officers continued to converse with plaintiff about the

confrontation and the traffic stop of Russell while they waited for the ambulance. Less
than twenty minutes later, an ambulance arrived and transported plaintiff to the hospital.
Plaintiff testified that she tore her right rotator cuff as a result of the handcuffing and has
submitted an affidavit of the physician, who treated her shoulder injury and determined
that surgery was medically necessary [Doc. 30-2].
Graves later charged plaintiff with interfering with an investigation and resisting
arrest, and both charges were dismissed after a preliminary hearing in Campbell County
General Sessions Court.
Defendants Town of Caryville (“Caryville”) and Town of Jacksboro (“Jacksboro”)
each require its law enforcement officers to attend and graduate from a fully accredited
police training academy [Docs. 22-1, 22-2]. Caryville and Jacksboro additionally require
that their officers be certified by the Peace Officer Standards and Training (“POST”)
Commission and that they receive forty hours of annual in-service training. Jacksboro’s
training requirements meet and exceed the requirements established by the POST
Commission for Police Officers in the State of Tennessee [Doc. 22-1].

Caryville

additionally encourages its officers to participate in special school classes [Doc. 22-2].
Graves completed his annual forty hours of in-service training and remained POST
certified at all times relevant to this action [Id.]. Marlow is POST certified and also
attended the Basic Police Recruit School at Walter State Community College [Doc. 223].
5

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., Inc., 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, 301 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 for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the
6

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.

Civil Rights Claims

Plaintiff has brought claims against Officers Marlow and Graves under 42 U.S.C.
§ 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, 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 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).

Qualified immunity, which Officers Marlow and Graves assert, “is an
7

affirmative defense that must be pleaded by a defendant official.” Id. at 815. To
determine whether an officer is entitled to qualified immunity, the 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)).5 Thus, the first step in any case in which a
violation of § 1983 is alleged is that the plaintiff must identify the specific constitutional
right allegedly infringed.

5

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 holds that there is triable issue as to
whether the officers violated plaintiff’s constitutional rights, the Court addresses the “clearly
established” prong.
8

B.

Excessive Force

Plaintiff argues that Officers Marlow and Graves used excessive force when she
was leaving the scene, told Marlow to get out of her face, and was slammed against the
trunk of the patrol car and handcuffed behind her back.
Claims regarding a police officer’s use of excessive force in the context of an
arrest or other seizure are governed by the Fourth Amendment. See Graham v. Connor,
490 U.S. 386, 395 (1989).

In Graham v. Connor, the Supreme Court established

guidelines to be followed by lower courts in evaluating excessive force claims in the
course of an arrest or detention. Because these claims involve seizures, the Fourth
Amendment “reasonableness” test is the appropriate standard by which such claims are
judged. Id. at 394-95. This standard requires “a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.”

Id. at 395 (internal quotations and

citation omitted). Furthermore, Fourth Amendment jurisprudence “has long recognized
that the right to make an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it[,]” and the test of
reasonableness requires careful attention to the facts and circumstances of each case,
including the severity of the crime, whether the suspect poses an immediate threat to the
safety of the officer or others, and whether the suspect is actively resisting or attempting
to evade arrest. Id. at 396; see also Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (noting

9

that the question is whether the totality of the circumstances justifies the particular sort of
seizure). As noted by the Supreme Court:
The “reasonableness” of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight . . . . The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular
situation.
Graham, 490 U.S. at 396. Under Graham, courts reviewing excessive force claims
must avoid substituting . . . personal notions of proper police procedure for
the instantaneous decision of the officer at the scene. We must never allow
the theoretical, sanitized world of our imagination to replace the dangerous
and complex world that policeman face every day. What constitutes
‘reasonable’ action may seem quite different to someone facing a possible
assailant than to someone analyzing the question at leisure.
Boyd v. Baeppler, 215 F.3d 594, 602 (6th Cir. 2000) (reversing the district court’s denial
of summary judgment on an excessive force claim and holding that the officers were
entitled to qualified immunity) (quoting Smith v. Freland, 954 F.2d 343, 347 (6th Cir.
1992)).
“When construed in [plaintiff’s] favor, the evidentiary record establishes a triable
issue of fact over whether [the] [o]fficer[s] used excessive force in securing her.” Crooks
v. Hamilton Cnty., Ohio, 458 F. App’x 548, 549-50 (6th Cir. 2012) (finding an issue of
fact and denying qualified immunity where an officer handcuffed a sixty-five-year-old
defendant’s hands behind her back, leading to a broken rib). The Crooks court relied
upon Walton v. City of Southfield, 995 F.2d 1331 (6th Cir. 1993), superseded on other
10

grounds as recognized by Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 407-08 (6th
Cir. 2007). In Walton, the Sixth Circuit found an issue of fact and denied the officer’s
qualified-immunity defense when:
An officer pulled over Barbara Walton after he observed her two-year-old
granddaughter standing on the front of the passenger seat without a child
restraint. When the officer discovered Walton was driving with a
suspended license, he placed her under arrest. Walton told the officer that
she was returning from the doctor’s office after receiving treatment for her
sore shoulder and asked the officer not to handcuff her in the back. The
officer refused. Once in the police vehicle, Walton cried, told the officer
that her shoulder hurt and asked to remove the handcuffs. The officer again
refused, saying they would get to the station shortly.
Crooks, 458 F. App’x at 550 (citations omitted). In denying qualified immunity, the
court in Walton determined that the plaintiff’s excessive force claim “could be premised
on [the officer’s] handcuffing Walton if he knew that she had an injured arm and if he
believed that she posed no threat to him.” Walton, 995 F.2d at 1342; see also Turek v.
Saluga, 47 F. App’x 746, 749 n.2 (6th Cir. 2002) (recognizing that Walton was decided
pre-Saucier and thus did not conduct the necessary reasonableness inquiry but affirming
the usefulness of Walton as related to being handcuffed in an unreasonable manner as a
basis for an excessive force claim).6 The court in Crooks found that, as in Walton, the
women posed no threat to the officers or others and asked to be handcuffed in the front
6

The Sixth Circuit in Marvin v. City of Taylor held that “the value of Walton and
similarly situated cases is strictly limited to the “clearly established” prong of the qualified
immunity analysis because Walton did not perform the objective reasonableness analysis as
announced by the Supreme Court in Saucier[.]” 509 F.3d 234, 347-248 (6th Cir. 2007)
(distinguishing Walton and finding the actions of an officer handcuffing plaintiff with a shoulder
injury behind his back objectively reasonable in light of his “heavily intoxicating state, abusive
language, and his resistance to arrest,” where plaintiff refused to obey a command to put his
hands behind his back).
11

rather than the back due to a medical condition, and the officers refused, creating a triable
issue of fact. 458 F. App’x at 550.
In evaluating an excessive force claim based in part upon handcuffing, courts must
look at the totality of the circumstances, looking at the specific facts of each case.
Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001). Court should consider “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. Defendants claim that “the force, if any,
used to arrest was necessary due to Plaintiff’s active resistance and her belligerent, hostile
behavior” [Doc. 26, p. 13]. Defendants also assert that any force used was reasonable
and necessary in light of plaintiff’s testimony that she was attempting to pull her arms
back while the officers were handcuffing her.7

7

For support, defendants compare this case to that of Rosado v. City of Harriman, Tenn.,
also from the Eastern District of Tennessee. No. 08-CV-353, 2012 WL 4485226 (E.D. Tenn.
Sept. 27, 2012) (Jordan, J.). In making such a comparison, defendants assert that as in Rosado,
Officers Graves and Marlow used the force necessary “to restore the peace.” Id. at *13. Rosado
is distinguishable from the case at hand, however, as in Rosado, the court found that there was an
“escalating domestic situation,” as Rosado was arguing with his girlfriend and her daughter, who
had called 911 and was still on the scene, throughout his arrest. Id. Rosado admitted in his
deposition that he was intoxicated at the time of his arrest and had thrown a cell phone in the
yard in order to further upset his girlfriend. Id. at *12. There was also evidence that Rosado
continued to cuss at the defendant officers and was jerking his body off of the police car,
resulting in an officer and Rosado tangling and falling to the ground. Id. at 13. In the case here,
there is no evidence that plaintiff was intoxicated and the situation cannot reasonably be said to
have been escalating to the point of making the force used to have been objectively reasonable,
when plaintiff was arguing verbally, alone, with two officers. The police were not called
because plaintiff was involved in a crime or acting in any way out of order; plaintiff drove to the
scene on her own volition and was upset when she arrived.
12

Upon review of all of the facts and evidence before the Court, the Court finds a
question of fact exists as to whether Officers Graves and Marlow used excessive force in
the arrest and handcuffing of plaintiff. A reasonable jury could find that the actions of
Graves and Marlow were objectively unreasonable in light of the fact that the evidence
presented, when construed in the light most favorable to the plaintiff at this stage of the
proceedings, does not show that a reasonable officer on the scene would have feared for
the safety of plaintiff, himself, or others as a result of plaintiff’s behavior. There is no
evidence that plaintiff presented any danger to the officers or others or that she had a
weapon of any kind. Moreover, while plaintiff appears on the video, and admitted at her
deposition, to have been agitated and possibly angry while arguing with the officers, the
officers were alone with plaintiff at the time of the arrest and the officers’ actions were
not required to keep the peace between plaintiff and any other persons. Plaintiff was not
in any way attempting to escape or flee. There is evidence that the officers severely
injured plaintiff’s shoulder when they handcuffed her in tandem, tearing her rotator cuff,
and when she first informed the officers that she had a bad back and needed to go to the
hospital, nearly immediately after being handcuffed, the officers told her that she would
not be going to the hospital and continued to tell her to stop resisting and forcefully
pulled her arms back.
Upon review of the deposition testimony and the cruiser video, the Court
additionally finds that the fact of whether plaintiff was resisting arrest, such that
additional force may have been necessary at the time, is in dispute. The Court notes that
13

plaintiff was breathing heavily and appears on the video to have been in physical pain
while she repeatedly requested to go to the hospital. The officers did move the handcuffs
to the front of plaintiff’s body and call an ambulance, but not until after plaintiff made
repeated requests and the officers told her that she was fine and that she was not going to
the hospital. The Court also finds that the fact that the crimes with which plaintiff was
eventually charged, which were later dismissed, were relatively minor is a factor that
weighs in favor of finding a question as fact as to whether excessive force was used in the
course of her arrest.
Accordingly, when viewing the evidence in the light most favorable to plaintiff,
the Court finds that Officers Graves and Marlow acted objectively unreasonably when
they forcefully handcuffed and arrested plaintiff and that a triable issue of fact exists that
Graves and Marlow committed constitutional violations.
C.

Qualified Immunity

After a court determines that, when viewed in the light most favorable to the party
asserting the injury, the facts show that an officer’s conduct violated a constitutional
right, the court must determine that the constitutional right was “clearly established.”
Grawey v. Drury, 567 F.3d 302, 309 (6th Cir. 2009). A constitutional right is clearly
established if “any officer in the defendant’s position, measured objectively, would have
clearly understood that he was under an affirmative duty to have refrained from such
conduct.” Bouggess v. Mattingly, 482 F.3d 886, 894 (6th Cir. 2007). An officer is on
notice that his conduct violates a clearly established constitutional right “if the state of the
14

law at the time of the alleged deprivation provides ‘fair warning’ that his actions are
unconstitutional.” Humphrey v. Mabry, 482 F.3d 840, 852 (6th Cir. 2007) (citing Hope v.
Pelzer, 536 U.S. 730, 739 (2002)). Plaintiff bears the burden of showing that defendant
officers are not entitled to qualified immunity. Chappell v. City of Cleveland, 585 F.3d
901, 907 (6th Cir. 2009).
“Prior to the events in question here, [the Sixth Circuit] found that the gratuitous
use of force against a compliant non-threatening individual who had committed a
relatively minor crime was not objectively unreasonable.” Solovy v. Morabito, 375 F.
App’x 521, 527-29 (6th Cir. 2010) (citation omitted) (reversing the district court’s
finding that the officer was entitled to qualified immunity where there were questions of
fact as to excessive force and the alleged violated rights were clearly established). The
Sixth Circuit “has held that the right to be free from excessive force, including
‘excessively forceful handcuffing,’ is a clearly established right for purposes of the
qualified immunity analysis.” Kostrzewa, 247 F.3d at 641 (citations omitted).
The Court has already found that Officers Graves and Marlow’s actions were
objectively unreasonable and that a question of fact exists as to excessive force. Both the
right to be free from the use of gratuitous force during the arrest of an individual for the
commission of a relatively minor crime and the right to be free from excessively forceful
handcuffing are clearly established constitutional rights, as found by the Sixth Circuit,
and were so established at the time of the incident at issue here. When viewed in the
light most favorable to plaintiff, the officers were on notice that handcuffing plaintiff in
15

such a forceful manner when she was verbally arguing with them, posed no additional
threat, and was not attempting to leave the scene constituted excessive force.
Accordingly, the Court declines to find summary judgment in favor of Graves and
Marlow on the grounds of qualified immunity appropriate.
D.

Probable Cause

In plaintiff’s response to defendants’ motion for summary judgment, plaintiff
asserts that because her criminal charges were dismissed by the Campbell County
General Sessions Court, defendants should be collaterally estopped from asserting the
legality of the arrest, making qualified immunity unavailable to them. Plaintiff claims
that Officers Marlow and Graves had no probable cause to arrest her at the point when
they grabbed her arms to handcuff her, tearing her rotator cuff. In reply, defendants point
to the Court’s Memorandum Opinion and Order [Doc. 13], which clarified that plaintiff’s
complaint brought only a Fourth Amendment excessive force claim against Graves and
Marlow pursuant to § 1983. Defendants submit that plaintiff may not now, for the first
time, allege a violation of her constitutional rights based upon her arrest without probable
cause.
As defendants argue, plaintiff failed to include a claim for a Fourth Amendment
violation based upon her arrest without probable cause in her complaint [Doc. 1]. While
plaintiff’s complaint notes that she was charged with resisting arrest and inference with a
police investigation thirty days after the incident on May 29, 2011 [Doc. 1, ¶ 17], and that
her charges were subsequently dismissed, the complaint includes no allegations of arrest
16

without probable cause in violation of her Fourth Amendment rights. In the “Causes of
Action” section of plaintiff’s complaint, she asserts that “Defendant Marlow and
Defendant Graves are liable for false arrest by detaining her depriving her [sic] of
freedom of movement without cause” [Doc. 1, ¶ 26]. In the Court’s Memorandum
Opinion and Order [Doc. 13, p. 8], “the Court conclude[d] that the complaint contain[ed]
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 . . . .” The Court also noted that plaintiff had alleged state-law claims
for assault, intentional infliction of emotional distress, and false arrest. Accordingly, in
its Memorandum Opinion and Order, the Court construed any claim plaintiff alleged as to
her arrest without cause to be a state-law claim and found that plaintiff’s § 1983 claim
was one for excessive force in violation of her Fourth Amendment rights.
Plaintiff now, in her response to defendant’s motion for summary judgment,
appears to assert that she was arrested without probable cause in violation of the Fourth
Amendment. Defendants were not on notice as to any federal claim plaintiff may have
sought to allege regarding a lack of probable cause to arrest her. Plaintiff had until
November 18, 2012, nine months after the entry of the Court’s Memorandum Opinion
and Order, in which to file a motion for leave to amend her pleadings. Had plaintiff
disagreed with the way the Court construed her § 1983 excessive force and state-law false
arrest claims, plaintiff had nine months to file a request to add a claim for arrest without
probable cause in violation of the Fourth Amendment. She failed to file such a motion
17

for leave, and the Court finds that plaintiff has not properly alleged a federal claim for
arrest without probable cause. Accordingly, to the extent that plaintiff requests any relief
as to such a claim, such request is denied.
E.

Municipal Liability

In her response, plaintiff asserts that neither Jacksboro nor Caryville provides
guidelines to limit its officers’ “unbridled police power[,]” and that Caryville had no
policies or procedures for its officers in place at the time of the incident [Doc. 30, p. 10].
In support, plaintiff cites to the deposition testimony of Chief Johnny Jones, stating that
the Caryville Police Department policy and procedure manual was approved by the city
council and went into effect on August 6, 2012, well after the incident in question.
Neither Caryville nor Jacksboro can be held liable under § 1983 on the basis of
respondeat superior. Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 543 (6th Cir. 2008).
If either city maintained a policy or custom that caused the violation of plaintiff’s rights,
however, the city may be held liable under § 1983. Harvey v. Campbell Cnty., Tenn., 453
F. App’x 557, 562 (6th Cir. 2011). “One way to prove an unlawful policy or custom is to
show a policy of inadequate training or supervision.”

Ellis ex rel. Pendergrass v.

Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006) (citation omitted). As
defendants point out, the Court has already dismissed any § 1983 claims based on alleged
unconstitutional policies and procedures of Caryville and Jacksboro:
To the extent plaintiff attempts, in her response to defendants’ motion [to
dismiss], to convert her claims into claims for municipal liability premised
on unconstitutional policies and procedures, the Court will also dismiss
18

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.
[Doc. 13, p. 10 (citations omitted)]. Accordingly, to the extent that plaintiff attempts to
revive any such claims, that attempt is unsuccessful. Additionally, to the extent that any
failure-to-train claim survived the Court’s earlier Memorandum Opinion and Order, such
claim is dismissed at this time, as having been included in the Court’s earlier dismissal of
all claims based upon the alleged unconstitutional policies and procedures of the cities.
Accordingly, Caryville and Jacksboro are dismissed as defendants in this action.
F.

State-Law Claims
1.

Assault

Defendants assert that Marlow and Graves are entitled to summary judgment on
plaintiff’s assault claim as they “used reasonable and necessary force, consistent with
standard police practice and their training, in arresting an individual who was aggressive,
belligerent and noncompliant with their lawful commands” [Doc. 26, p. 25]. Defendants
submit that collateral estoppel should bar plaintiff’s assault claim after the Court finds the
actions of Marlow and Graves to have been reasonable and grants summary judgment as
to the Fourth Amendment excessive force claim. See Partin v. Scott, No. E2007-02604COA-R3-CV, 2008 WL 4922412 (Tenn. Ct. App. Nov. 13, 2008) (affirming the trial
court’s finding that plaintiffs were collaterally estopped from asserting state-law tort
claims for assault and false imprisonment or false arrest where a federal court had found

19

that probable cause existed to arrest plaintiffs and that the officers had not used excessive
force).
The Tennessee Supreme Court has held that “if a defendant intends to create an
apprehension of harm in the plaintiff, he or she has committed the intentional tort of
assault.” Hughes v. Metro. Gov’t of Nashville and Davidson Cnty., 340 S.W.3d 352, 371
(Tenn. 2011). Upon review of the video and other evidence in this matter in the light
most favorable to plaintiff, the Court finds that defendants have not met the burden
necessary to prove entitlement to summary judgment in their favor. Defendants argue
that a finding in their favor as to plaintiff’s Fourth Amendment excessive force claim
demands a decision in their favor as to plaintiff’s state-law assault claim. As the Court
has found after viewing the facts in the light most favorable to plaintiff that Graves and
Marlow’s use of force was not reasonable as a matter of law, the Court also denies
summary judgment as to plaintiff’s assault claim. See Grawey v. Drury, 567 F.3d 302,
315 (6th Cir. 2009) (noting that defendant argued that if the court concluded that his use
of force was reasonable as a matter of law then it should find him entitled to
governmental immunity as to plaintiff’s state-law assault and battery claims and
upholding the denial of summary judgment on the assault and battery claims because the
court found the use of force was not reasonable as a matter of law).
2.

Intentional Infliction of Emotional Distress

Defendants claim that no proof exists that plaintiff suffered a serious mental injury
as a result of the events surrounding her arrest and that there has been no deposition
20

testimony that Marlow and Graves intentionally inflicted emotional harm on plaintiff.
Defendants point out that plaintiff has not offered expert testimony seeking to establish a
serious mental injury and again claim that plaintiff’s actions, rather than those of Marlow
and Graves, were “outrageous” and that Marlow and Graves used “reasonable, minimal,
non-deadly force to gain control of Plaintiff” [Doc. 26, p. 27].
“The elements of an intentional infliction of emotional distress claim are that the
defendant’s conduct was (1) intentional or reckless, (2) so outrageous that it is not
tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff.”
Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012) (citations omitted).
“Serious or severe” emotional injury has been defined as an injury “where a reasonable
person, normally constituted, would be unable to cope with the mental stress engendered
by the circumstances of the case.” Camper v. Minor, 915 S.W.2d 437, 336 (Tenn. 1996)
(internal quotations marks omitted); see also Rogers, 367 S.W.3d at 208 (looking to the
Camper court’s definition in the context of intentional infliction of emotional distress).
No expert testimony is required to establish the serious mental injury necessary for a
claim of intentional infliction of emotional distress. Miller v. Willbanks, 8 S.W.3d 607,
612, 616 (Tenn. 1999).
“The flagrant and outrageous nature of the defendant’s conduct . . . adds weight to
a plaintiff’s claim and affords more assurance that the claim is serious.” Id. at 613
(citations omitted). “[T]o constitute ‘outrageous conduct’ a defendant’s act must have
been ‘so outrageous in character and so extreme in degree, as to go beyond all bounds of
21

decency, [so as] to be regarded as atrocious and utterly intolerable in a civilized society.”
Nolan v. City of Memphis Schs., 589 F.3d 257, 270 (6th Cir. 2009) (citing Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997)). Serious mental injury may be demonstrated by way
of proof such as “a claimant’s own testimony, as well as the testimony of other lay
witnesses acquainted with the claimant[,]” “[p]hysical manifestations,” and “evidence
that a plaintiff has suffered from nightmares, insomnia, and depression or has sought
psychiatric treatment may support a claim of a serious mental injury.”

Id. at 615

(citations omitted).8
At plaintiff’s deposition, in response to a question about injuries she suffered as a
result of this incident, she testified that “[t]his has been embarrassing. Like I said, I had
to go back on anxiety medicine. It’s not something I’m exactly proud of. I’ve never had
any previous trouble with the law” [Doc. 30-7]. In her response, plaintiff argues that she
“has been humiliated by this entire incident” [Doc. 30, p. 14]. Plaintiff makes no
argument as to the outrageousness of Graves and Marlow’s conduct and does not allege
that their conduct was “‘so outrageous’ in character and so extreme in degree, as to go
beyond all bounds of decency[.]” Nolan, 589 F.3d at 270. While the Court has found
that a question of fact exists as to whether Graves and Marlow used excessive force in
their arrest of plaintiff, the Court does not find that their conduct in arresting plaintiff was
8

See also Rogers, 367 S.W.3d at 209-10 (providing a nonexclusive list of factors
pertinent to a plaintiff’s claim of serious mental injury, including evidence of nausea, vomiting,
headaches, severe weight loss or gain, sleeplessness, depression, anxiety, crying spells or
emotional outbursts, humiliation, embarrassment, anger, shame, evidence that a plaintiff sought
out medical treatment, significant impairment of daily functioning, and others).
22

sufficiently outrageous or intolerable so as to raise a question of fact for the jury.
Moreover, while plaintiff testified that she has been embarrassed by this incident, she
also testified that “[i]t’s not something I’m exactly proud of” [Doc. 30-7, p. 62].
Plaintiff’s deposition testimony and argument in her response indicate that her
embarrassment subsequent to the incident was in part due to her being embarrassed by
her own behavior on the night in question.

“[W]hile [plaintiff] complain[s] of

embarrassment and humiliation, [she] present[s] no further proof as to any additional
mental injury [she] suffered[,] and the Court “is not willing to identify such emotional
injury, without further proof, as a serious mental injury.” Barbee v. Wal-Mart Stores,
Inc., No. W2003-00017-COA-R3-CV, 2004 WL 239763, *3 (Tenn. Ct. App. Feb. 9,
2004).
In sum, the Court finds that sufficient evidence has not been presented to make the
claim of intentional infliction of emotional distress a question for the factfinder, and
Graves and Marlow are entitled to summary judgment on this claim.
3.

False Arrest

Defendants assert that Marlow and Graves are entitled to summary judgment on
plaintiff’s false arrest claim because probable cause existed to arrest plaintiff for resisting
arrest and interfering with an investigation. In support, defendants submit that plaintiff
admitted in her deposition that she attempted to pull her arms forward as she was
handcuffed and that she was upset and raised her voice, as well as failed to obey a lawful
command to leave the scene when first told.
23

Plaintiff’s complaint asserts “that Defendant Marlow and Defendant Graves are
liable for false arrest by detaining her depriving her (sic) of freedom of movement
without cause” [Doc. 1, ¶ 26]. In her response, plaintiff claims that Marlow and Graves
lacked probable cause to arrest her and that this lack of probable cause is proved by the
fact that the Campbell County General Sessions Court dismissed the charges against
plaintiff following a preliminary hearing.
A successful claim for false arrest and false imprisonment includes proof of “(1)
the detention or restraint of one against his will and (2) the unlawfulness of such
detention or restraint.” Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn.
1990). A detention or restraint is unlawful if an individual is detained without reasonable
suspicion or probable cause. “Probable cause is defined as reasonable grounds for belief,
supported by less than prima facie proof but more than mere suspicion.” United States v.
McClain, 444 F.3d 556, 562 (6th Cir. 2005) (quoting United States v. Ferguson, 8 F.3d
385, 392 (6th Cir. 1993) (en banc)).
Plaintiff was charged with resisting arrest, defined as “intentionally prevent[ing]
or obstruct[ing] anyone known to the person to be a law enforcement officer . . . from
effecting [an] arrest . . . by force against the law enforcement officer or another.” Tenn.
Code Ann. § 39-16-602. As to plaintiff’s second charge of interfering with a police
investigation, defendants assert that such charges are commonly considered under Tenn.
Code Ann. § 39-17-305, the disorderly conduct statute. Tenn. Code Ann. § 39-17-305
provides:
24

(a)

A person commits an offense who, in a public place and with intent
to cause public annoyance or alarm:

(1)

Engages in fighting or in violent or threatening behavior;

(2)

Refuses to obey an official order to disperse issued to maintain
public safety in dangerous proximity to a fire, hazard or other
emergency; or

(3)

Creates a hazardous or physically offensive condition by any act that
serves no legitimate purpose.

(b)

A person also violates this section who makes unreasonable noise
that prevents others from carrying on lawful activities.

(c)

A violation of this section is a Class C misdemeanor.

The Court disagrees with plaintiff’s argument that the Campbell County General
Sessions Court’s dismissal of the charges against her after a finding of a lack of probable
cause collaterally estops defendants from asserting that her arrest was legal. See Manley
v. Paramount’s Kings Island, 299 F. App’x 524, 530 (6th Cir. 2008) (“An arrest based on
probable cause does not become invalid simply because the charges are subsequently
dismissed.”). Upon review of the relevant statutes together with the facts and evidence,
in the light most favorable to plaintiff, however, the Court finds that a question of fact
exists as to whether probable cause existed to arrest plaintiff. Accordingly, the Court
finds that Graves and Marlow are not entitled to summary judgment on plaintiff’s statelaw false arrest claim.

25

IV.

Conclusion
Thus, and for the reasons explained herein, the Court GRANTS in part and

DENIES in part defendants’ Motion for Summary Judgment [Doc. 22]. The Court
GRANTS the motion as to defendants Caryville and Jacksboro, and the Clerk is
DIRECTED to terminate them as defendants in this action. The Court additionally
GRANTS summary judgment on plaintiff’s intentional infliction of emotional distress
claim, and DENIES summary judgment as to plaintiff’s § 1983 claim for excessive force
and her state-law claims for assault and false arrest.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

26