Raudenbush v. Monroe County Tennessee et al
Filing
133
MEMORANDUM OPINION. Signed by District Judge Pamela L Reeves on 3/29/19. (JBR, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GEORGE JOSEPH RAUDENBUSH, III,
Plaintiff,
v.
MONROE COUNTY, TENNESSEE,
BILL BIVENS, SHERIFF OF MONROE COUNTY,
TOWN OF TELLICO PLAINS, TENNESSEE,
OFFICER BRIAN MILLSAPS, and
OFFICER TRAVIS JONES,
Defendants.
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No. 3:11-cv-00625
REEVES/POPLIN
MEMORANDUM OPINION
George Raudenbush brings this civil rights action under 42 U.S.C. § 1983 alleging
excessive force and denial of medical care following a traffic stop, subsequent arrest, and
detention in the Monroe County Jail. All defendants move for summary judgment. For
the reasons that follow, defendants’ motions for summary judgment will be granted and
this action dismissed.
1
I. Background
The factual background for the traffic stop and subsequent arrest is taken from the
Tennessee Court of Criminal Appeal’s opinion 1. See State of Tennessee v. Raudenbush,
2017 WL 2443079.
On December 30, 2010, Sgt. Brian Millsaps of the Tellico Plains Police
Department was patrolling and “running” radar on Highway 68. Auxiliary
Officer April Shaffer was riding with him. Sgt. Millsaps testified that the
speed limit on Highway 68 was 45 miles per hour. At some point, as they
were driving toward Coker Creek, Sgt. Millsaps and Officer Shaffer met
Raudenbush’s vehicle which Sgt. Millsaps estimated to be travelling over the
speed limit. Sgt. Millsaps’ radar unit verified that the vehicle was travelling
57 miles per hour, which was 12 miles over the posted speed limit. Sgt.
Millsaps turned around, activated his blue lights, and got behind
Raudenbush’s vehicle to initiate a traffic stop. Raudenbush pulled over and
Sgt. Millsaps noticed that Raudenbush’s license plate read “Luke 4/18.” He
could not tell from which state the plate was registered. Sgt. Millsaps noted
that the stickers on the license plate were not real. He said that there were
also stickers on the plate that read “Basieia Ouranos.” The plate showed that
it was issued by the “Emgassyofheaven.org.” Sgt. Millsaps ran a check on
the license plate, and it came back as “not on file.”
Sgt. Millsaps walked up to the driver’s side of the vehicle and Officer Shaffer
walked up to the passenger side. Detective Travis Jones also arrived on the
scene as back-up and was sitting in his truck. Sgt. Millsaps explained to
Raudenbush why he had pulled him over and asked for his driver’s license,
insurance, and registration. Sgt. Millsaps described the driver’s license as
follows:
At the top, it’s got “driver’s license.” In the upper right-hand corner it has
“Kingdom of Heaven.” It has a photograph of Raudenbush. It has an ID
number, his sex, Baptism, issue date, and expiration date. It has his height,
weight, eye color, hair color, his name, George Joseph Raudenbush, III,
Embassy of Heaven Church. And then State of Oregon. H is signature at the
bottom.
1
This was Raudenbush’s second trial. The Tennessee Criminal Court of Appeals reversed and remanded the
case for a new trial because the trial court denied defendant his Sixth Amendment right to counsel by requiring him
to proceed pro se at trial. See State v. Raudenbush, 2013 WL 62372011.
2
Sgt. Millsaps testified that the driver’s license was not valid, and Raudenbush
told Sgt. Millsaps that he was not a resident of the State of Tennessee.
Raudenbush never presented Sgt. Millsaps with a valid driver’s license. Sgt.
Millsaps checked the status of Raudenbush’s driver’s license and learned that
it was suspended. He then obtained a certified copy of Raudenbush’s driving
history.
Sgt. Millsaps testified that Raudenbush also gave him a document that read
“vehicle title and registration record.” It indicated that it was issued by the
“Embassy of Heaven,” and it had an address from the State of Oregon on it.
Sgt. Millsaps testified that the registration was not valid in the State of
Tennessee. Raudenbush also provided a “vehicle certificate of title.” The
document had a notary seal from “Embassy of Heaven.” The document read
“Embassy of Heaven of the Kingdom of Heaven certifies that the vehicle
described below has been registered to this office and that the individual
stated below is the lawful steward.” There was also a registration card with
the same information.
Sgt. Millsaps testified that he informed Raudenbush that he would be under
arrest if he could not produce a valid driver’s license. When he asked if
Raudenbush had any form of a government-issued driver’s license,
Raudenbush replied “I am not a citizen of this state.” Sgt. Millsaps asked
Raudenbush to step out of the car. Raudenbush refused by rolling up the
window and locking the door. Sgt. Millsaps then yelled several times that
Raudenbush was under arrest. Raudenbush then put his car in drive and
turned the wheel. Sgt. Millsaps used his flashlight to knock the driver’s side
window out of the car. He testified that he did not hit Raudenbush with the
flashlight. Sgt. Millsaps attempted to open the vehicle door but Raudenbush
“accelerated onto Highway 68.” Sgt. Millsaps then took “evasive action” to
avoid being struck by Raudenbush’s car. Officer Shaffer testified that the
vehicle nearly hit her and Sgt. Millsaps. Det. Jones pulled out behind
Raudenbush, and Sgt. Millsaps and Officer Shaffer went back to their patrol
vehicle to pursue Raudenbush.
Both Sgt. Millsaps and Officer Shaffer testified they observed an oncoming
vehicle go off the road and into the grass to avoid hitting Raudenbush’s car.
Sgt. Millsaps stated it was not a high-speed chase and it reached a speed of
40-50 miles per hour. At one point, the officers tried to “box him in” but
Raudenbush struck Det. Jones’ truck before they could get “set up.” Sgt.
Millsaps testified that Raudenbush lost control of his vehicle at one point and
“slid all the way, sideways, in the road.” Raudenbush was able to keep going
and eventually turned onto Pond Ridge Road and into a driveway.
Raudenbush stopped the car, got out, and ran.
3
Sgt. Millsaps got out of his car and chased Raudenbush on foot. He yelled
at Raudenbush to stop, but Raudenbush kept running. Sgt. Millsaps
eventually lost sight of Raudenbush. He later received information from
dispatch and went to a residence. Raudenbush was taken out of the residence,
arrested, and transported to jail.
Det. Travis Jones of the Monroe County Sheriff’s Office testified that he
drove an unmarked. Black F-150 truck. His vehicle was equipped with blue
lights and sirens. On the night of December 30, 2010, he was on his way
home when he learned that Sgt. Millsaps had stopped a vehicle. He drove to
the scene in order to “back him up on the traffic stop” and activated his blue
lights.
Det. Jones was about to step out of his truck when he heard a loud “pop,” and
he saw Sgt. Millsaps “jump back.” Det. Jones then realized the sound was
the driver’s side window breaking. Raudenbush drove away and Det. Jones
pulled out behind him and activated his siren. Det. Jones testified that he
attempted to drive around Raudenbush to effect a “rolling road block,” but
he was unable to get in front of Raudenbush because Raudenbush drove into
Det. Jones’ lane and struck his truck as he was passing him. Det. Jones
testified that he later attempted to drive around Raudenbush a second time.
He stated that Raudenbush struck his vehicle a total of three times during the
pursuit. Det. Jones testified “There around the curve, come a van around the
curve, Raudenbush actually went in their lane and forced them off into the
emergency lane closer to grass.” Det. Jones testified that when Raudenbush
turned onto Pond Ridge Road, Det. Jones missed the turn, and Sgt. Millsaps
got behind Raudenbush and continued the chase. Det. Jones turned around
and drove to the residence where Raudenbush had parked his car and fled on
foot.
Joan Champion, testified that she lives on Pond Ridge Road in Coker Creek.
She has known Raudenbush for 6 or 7 years. On December 30, 2010, she
was asleep when Raudenbush came to her house and asked to use the phone.
She said that he seemed to be afraid and in a panic. Champion thought that
she saw blood “somewhere.” She thought it may have been on Raudenbush’s
hand.
Raudenbush testified that he did not believe he was speeding prior to being
pulled over by Sgt. Millsaps. He recognized Sgt. Millsaps because Sgt.
Millsaps was present when he had been pulled over “twice before.”
Raudenbush further testified that he presented his driver’s license to Sgt.
Millsaps. The license was issued by “KOH,” which stands for “Kingdom of
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Heaven.” Raudenbush stated that KOH is an organization based out of
Oregon. Concerning KOH, Raudenbush testified “I did some research. I
called them. They referred me to the state department. I verified their
credentials, and that’s how I met them.” He believed his driver’s license was
valid. He had been pulled over in Ranger, North Carolina, but the officer
never told him the license was invalid. He said that he had also been pulled
over in Decatur, Tennessee and had no reason to believe his license was
invalid.
Raudenbush testified that after he handed Sgt. Millsaps the license, Sgt.
Millsaps asked for the registration card, so I handed him the registration. At
that point, he asked me for the insurance. When I went to go for the insurance
papers, he told me to exit the vehicle. Because it was cold that night, I rolled
up my window, and when I went to open the door, I heard a thump, and I
couldn’t open the door. When I looked up, I heard another – it wasn’t a
thump, but it was kind of like a bang, like a noise on the window, and then
that – the first time, I didn’t realize it then, but his flashlight had hit the
window and bounced off. The second time, it broke the window and hit me
in the head. After the second time, when the flashlight came through, I put
my hand up to protect my face. When I did that, I sustained a laceration to
my hand, to my finger, and there was blood everywhere. At that point, I
started panicking. I didn’t know what was going on. And then when I looked
over to the officer, he was drawing his gun. Raudenbush did not recall Sgt.
Millsaps saying anything at that point. He believed Sgt. Millsaps was going
to shoot him.
Raudenbush testified that he was scared and, without thinking, put the car
into drive and “went forward” for about 50 – 100 feet before he realized he
had to turn back on the road.” His only concern was to “get out of that
situation.” He denied striking any of the officers’ vehicles and he did not
recall seeing any other vehicles on the road that evening. He went to the
house where he was staying, but it didn’t have a phone, so he went to his
neighbor’s house. He told Champion that he needed to call the “state patrol.”
He told the 911 operator that there was an attempt on his life by a police
officer and he needed state patrol. He did not want anybody from Tellico to
come out or from the Monroe County Sheriff’s Office. Raudenbush testified
that his injuries consisted of glass cuts behind his ear, and he has a scar on
his head “from where the flashlight hit.” He said his hand was also cut from
the glass, and his blood pressure was “really high.”
5
On cross-examination, Raudenbush admitted that he obtained his KOH
license after his government-issued license was suspended for failure to pay
citations. He further admitted that he got the KOH license because “an
employee of the state refused to register their church vehicles.”
Raudenbush was ultimately taken into custody by a Monroe County deputy without
incident and transported to the Monroe County Jail. Sgt. Millsaps had no further dealings
relating to Raudenbush once he was taken into custody by the Monroe County deputy on
the scene and transported to the Monroe County Jail.
Raudenbush was transported to Sweetwater Hospital Emergency room and was
triaged at 1:22 a.m. on December 31, 2010. He was accompanied by Officer Larry Bivens
and was treated for a laceration on his left index finger. Raudenbush was taken to radiology
where an x-ray was taken of his left hand to check for a fracture. Upon discharge, he was
prescribed 500 mg of Keflex. Raudenbush refused to sign his discharge summary, so
Officer Bivens signed the form. Upon his return, Raudenbush was formally booked into
the jail.
As part of the booking process, Raudenbush was screened by the medical staff and
it was noted that he did have a laceration on his finger. Raudenbush refused to sign the
form and also refused to consent to treatment while incarcerated and would not authorize
the Sheriff’s Office to release his medical information to other treating facilities. When
Raudenbush was called to medical for his intake questionnaire, the medical staff attempted
to follow up on his emergency room visit and give him his medication as prescribed. He
allowed the medical staff to clean his laceration and put on a new band-aid. But, he refused
to take the medication that was prescribed to him by the Emergency Room, stating that he
6
was “not taking any meds” because he didn’t know if he could have “a reaction.”
Raudenbush also refused to sign the Refusal of Medical Treatment and Release of
Responsibility form.
The next day, Raudenbush signed the Inmate Medical Form, but he still refused to
sign the Medical Staff Screening form when jail staff attempted to go through it again.
While Raudenbush was incarcerated, records indicate that when he made a sick call, he
was promptly seen for his ailments and offered some sort of treatment.
A jury convicted Raudenbush of speeding, reckless endangerment, simple assault,
evading arrest, evading arrest with risk of death, violation of Financial Responsibility, and
driving on a suspended license. He was sentenced to 4 years imprisonment to be served
on supervised probation. 2 The Tennessee Criminal Court of Appeals affirmed the jury
verdict on September 20, 2016. An application for permission to appeal to the Tennessee
Supreme Court was denied on October 3, 2017.
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.
Cattrett, 477 U.S. 317, 330 n. 2 (1986); Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339
(6th Cir. 1993). All facts and inferences to be drawn therefrom must be viewed in the light
2
After his first conviction, Raudenbush was sentenced to four years imprisonment in the Tennessee
Department of Corrections. He remained in TDOC custody until his second trial.
7
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v. Keifer, 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. Celotex,
477 U.S. at 317. To establish a genuine issue as to the existence of a particular element,
the nonmoving 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 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. Id. 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 fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (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. Excessive Force
Raudenbush claims that Sgt. Millsaps used excessive force during the traffic stop.
There is a constitutional right to be free from excessive force during an arrest.
Graham v. Connor, 490 U.S. 386 (1989). Claims for excessive force in the course of an
8
arrest, stop, or seizure are properly analyzed under the Fourth Amendment’s “objective
reasonableness standard.” Id. at 388. In assessing an excessive force claim, courts must
construe all facts in the record in the light most favorable to the plaintiff. Schreiber v. Moe,
596 F.3d 323, 332 (6th Cir. 2010). After doing so, the question of whether an officer’s
action was objectively unreasonable “is a pure question of law.” Id. In order to determine
whether the force used during an arrest or seizure was objectively reasonable, the court
must balance “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Graham,
490 U.S. at 396. The court must evaluate the facts and circumstances including “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.” Id. The reasonableness must be judged from the point of view of the
officer on the scene at the time the force was used. Id.
The reasonableness of an officer’s use of force is judged from the perspective of a
reasonable officer on the scene, rather than the 20/20 vision of hindsight. Id. A calculus
of reasonableness must embody allowance for the fact that police officers are often forced
to make split second judgment in circumstances that are tense, uncertain, and rapidly
evolving about the amount of force that is necessary in a particular situation. Id. 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. See Terry v. Ohio, 392 U.S. 1, 2227 (1968).
9
A. Sgt. Millsaps
Raudenbush alleges that Sgt. Millsaps used excessive force against him by breaking
out the window of his car. He further alleges that Sgt. Millsaps “repeatedly struck the
plaintiff in his face and head, as plaintiff sat in the vehicle.”
The record in this case establishes that Sgt. Millsaps stopped Raudenbush for
speeding. While speeding is not a severe crime and was the reason Sgt. Millsaps sought to
stop Raudenbush, resisting, fleeing and eluding are felonies under Tennessee law. After
Sgt. Millsaps ordered Raudenbush to step out of the car, Raudenbush rolled up the window
and locked the doors. Raudenbush does not contest that he failed to comply with Sgt.
Millsaps’ orders to exit the car.
Instead of complying with Sgt. Millsaps’ lawful
commands, Raudenbush accelerated, almost hitting Sgt. Millsaps and Officer Shaffer. Sgt.
Millsaps reasonably believed that Raudenbush intended to flee the scene, thereby
endangering the officers and other motorists. Sgt. Millsaps then used his flashlight to break
the window. Taking all of these facts into account, Sgt. Millsaps’ actions cannot be found
to be objectively unreasonable under the circumstances. Raudenbush ignored Sgt. Millsaps
lawful commands to exit the vehicle; he was actively resisting arrest; and attempting to
evade arrest by flight. There is no evidence on which a jury could reasonably find that the
force used was excessive.
While Raudenbush asserts that Sgt. Millsaps repeatedly struck him in the face and
head, there is no evidence to support that claim. There are no notations of a head injury on
the jail intake forms, nor on the emergency room records from Sweetwater Hospital.
Moreover, Joan Champion only recalled seeing blood somewhere, maybe on Raudenbush’s
10
hand. She certainly would have noticed if Raudenbush had been beaten about the face and
head as he alleges.
Moreover, Raudenbush’s criminal convictions arising out of the stop affirmatively
bar his excessive force claim. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (If § 1983
action would challenge the validity of state criminal conviction, the action is barred unless
the state court conviction has been overturned or expunged). The Sixth Circuit has ruled
that under Tennessee law, an officer’s excessive use of force is a defense to a charge of
resisting or evading arrest; therefore, a guilty plea or conviction for resisting/evading arrest
necessarily includes a finding that the officer did not use excessive force. Roberts v.
Anderson, 213 Fed. Appx. 420, 427 (6th Cir. 2007) (referring to Tenn. Code Ann. § 39-16602). Here, Raudenbush was convicted of evading arrest, reckless endangerment, and
assault. The criminal convictions have not been invalidated and are binding on him.
Therefore, the court finds that under Heck, Raudenbush is barred from maintaining an
excessive force claim against Sgt. Millsaps. Because the court concludes that there was no
constitutional violation, it need not reach the issue of whether Sgt. Millsaps would be
entitled to qualified immunity.
B. Det. Jones
Raudenbush claims that Det. Jones is liable under the Fourth Amendment for failing
to prevent or stop the use of force by Sgt. Millsaps against him. An officer can be liable
for failing to prevent the use of excessive force when (1) the officer observed or had reason
to know that excessive force would be or was being used, and (2) the officer had both the
11
opportunity and the means to prevent the harm from occurring. Turner v. Scott, 119 F.3d
425, 429 (6th Cir. 1997).
First, the court has found that Sgt. Millsaps did not use excessive force against
Raudenbush. Second, assuming that Raudenbush could establish a claim of excessive
force, Raudenbush has failed to present evidence that Det. Jones would have been able to
both anticipate Sgt. Millsaps breaking the vehicle window and then implement preventative
measures. Det. Jones testified that he was about to step out of his truck when he heard a
loud “pop” and saw Sgt. Millsaps “jump back.”
Raudenbush then drove away.
Raudenbush offers nothing to contradict Det. Jones’ testimony. Accordingly, Raudenbush
cannot maintain a claim against Det. Jones for failing to prevent the use of excessive force.
C. Officer Bivens
Raudenbush has alleged no facts to show that Officer Bivens was at the scene of his
arrest; nor does he plead any facts to establish that Officer Bivens failed to intervene on his
behalf during the initial traffic stop.
D. Town of Tellico Plains
Raudenbush’s Amended Complaint also includes a claim of municipal liability
under § 1983 pursuant to Monel v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). To succeed
on a municipal liability claim, a plaintiff must establish that his constitutional rights were
violated and that a policy or custom of the municipality was the “moving force” behind the
deprivation of the plaintiff’s rights. Miller v. Sanilac Cnty, 606 F.3d 240, 254-55 (6th Cir.
2010). Here, Raudenbush claims that the deprivation of constitutional rights stem from the
City of Tellico Plains’ policies regarding training and the use of force. In order to succeed
12
on a failure to train claim, a plaintiff must show that the failure to train amounts to
deliberate indifference “to the rights of the person with whom the police come into
contact.” Id. at 255. Because Raudenbush failed to establish a constitutional violation for
excessive force, the Town of Tellico Plains cannot be held liable under § 1983. See Smith
v. Thornburg, 136 F.3d 1070, 1087, n. 12 (6th Cir. 1998) (declining to address issue of
municipal liability because no constitutional violation occurred).
E. Monroe County
Raudenbush also alleges a municipal liability claim against Monroe County for
excessive force used during the initial traffic stop by Sgt. Millsaps. The Amended
Complaint contains no factual allegations to establish an excessive force claim against any
Monroe County officer.
Sgt. Millsaps was employed by the Tellico Plains Police
Department. Because Raudenbush fails to plead facts to support an excessive force claim
against any officer of Monroe County, the County cannot be held liable under § 1983.
IV. Unlawful Arrest
Raudenbush next claims that Sgt. Millsaps is liable to him for an alleged unlawful
arrest. Raudenbush was arrested and found guilty of speeding, reckless endangerment,
simple assault, evading arrest, evading arrest with risk of death, violation of Financial
Responsibility, and driving on a suspended license.
Therefore, as a matter of law,
Raudenbush is foreclosed from raising the issue of the lawfulness of his arrest here.
A state court judgment must be given the same preclusive effect in federal court that
it would be given in the courts of the rendering state. This principle applies to civil rights
actions under § 1983 with respect to issues actually litigated (collateral estoppel or issue
13
preclusion) and issues which could have been but were not litigated in the state court
proceeding (res judicata or claim preclusion). Walker v. Schaeffer, 854 F.2d 138, 142 (6th
Cir. 1988). However, this preclusive effect will not be given to a state court judgment if
the party against whom the judgment is asserted did not have a “full and fair opportunity
to litigate the claim or issue.” Fellowship of Christ Church v. Thorburn, 758 F.2d 1140,
1144 (6th Cir. 1985).
The court looks to Tennessee law on the doctrine of collateral estoppel to determine
the preclusive effect of the state court judgment. Stemler v. City of Florence, 126 F.3d 856,
871 (6th Cir. 1997). Pursuant to Tennessee law, once an issue has been actually or
necessarily determined by a court of competent jurisdiction, the doctrine of collateral
estoppel renders that determination conclusive on the parties and their privies in subsequent
litigation, even when the claims or causes of action are different. State v. Scarbrough, 181
S.W.3d 650, 654 (Tenn. 2005). The party seeking to bar an issue by collateral estoppel has
the burden of proof. Id. at 655.
Whether probable cause existed for Raudenbush’s arrest was at issue in the state
court criminal proceedings for which there are judgments of conviction. Raudenbush was
represented by counsel at the state court proceedings. There is nothing in the record to
indicate that Raudenbush and his counsel did not have a full and fair opportunity to
challenge the probable cause determination made by the jury to the charges for which
Raudenbush was convicted. Therefore, the judgments of conviction collaterally estop him
from asserting that he was arrested without probable cause. Cox v. Reagan, 2009 WL
874013 at 3 (E.D.Tenn. Mar. 30, 2009).
14
Defensive collateral estoppel is proper under Tennessee law where the plaintiff is
convicted of the criminal charge but then demands damages in civil litigation concerning
precisely the same incident by asserting that he did not commit the criminal act.
Cunningham v. Sisk, 2003 WL 23471541 at *8 (E.D.Tenn. Dec. 4, 2003). Application of
the doctrine of collateral estoppel prevents the plaintiff from repudiating his conviction and
attacking the validity of his state-court judgment of conviction. Id.
A further reason to grant summary judgment on Raudenbush’s unlawful arrest claim
is that his conviction on the state law charges provides the defendants with “a complete
defense to this cause of action brought under § 1983.” “Where police officers have made
an arrest, the resulting conviction is a defense to a § 1983 action claiming the arrest was
made without probable cause.” Id.
V. Official/Individual Capacity
In his Amended Complaint, Raudenbush fails to identify in what capacity he has
sued the individual officers, Sgt. Millsaps, Officer Bivens, and Det. Jones. The Amended
Complaint does not indicate whether these officers are being sued in their individual
capacity, official capacity or both.
Because the court concludes that there was no
constitutional violation, it need not reach the issue of whether the officers were sued in
their individual or official capacity.
VI. Civil Conspiracy
Raudenbush alleges Sgt. Millsaps is liable to him for an alleged violation of 42
U.S.C. §§ 1985 and 1986.
15
To state a claim under § 1985, a plaintiff must allege: “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges or immunities of the laws; (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United States.” United
Broth. Of Carpenters and Joiners of Amer. v. Scott, 463 U.S. 825, 828-29 (1983). The acts
which are alleged to have deprived the plaintiff of equal protection must be the result of
class-based discrimination. See Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1992). The
critical issue is whether Raudenbush can establish that Sgt. Millsaps’ actions were
motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus.” Griffin v. Breckenridge, 403 U.S. 88 (1971). Additionally, conspiracy claims
must be pled with some degree of specificity and “vague and conclusory allegations
unsupported by material facts will not be sufficient to state such a claim.” Gutierrez v.
Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987).
Section 1986 provides a cause of action against a person who neglects to prevent a
violation of § 1985. Without a violation of § 1985, there can be no violation of § 1986.
German v. Illeen, 495 F.Supp. 822, 829 (E.D.Mich. 1980). Where a plaintiff has no § 1985
claim he also has no §1986 claim. Haverstick Enter. Inc. v. Fin. Federal Credit, Inc., 803
F.Supp. 1251, 1260 (E.D.Mich. 1992).
In this case, Raudenbush has not adequately pleaded a conspiracy. Raudenbush has
pleaded no facts to establish the existence of a conspiracy nor did he allege any racial or
class-based discriminatory animus. In fact, the word “conspiracy” only appears once in
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the Amended Complaint. The Amended Complaint states that “the Defendants violated
Plaintiff’s civil rights as follows . . . (d) conspired together to violate one or more of
plaintiff’s civil rights.” Such a conclusory statement, without factual support, is not
adequate to state a cause of action. See Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984)
(dismissing conspiracy claim where the complaint merely alleged broad conclusory
language void of the factual allegations necessary to support a conspiracy theory). Thus,
Raudenbush cannot maintain a claim under § 1985.
Because Raudenbush’s § 1986 claim is dependent upon the existence of a valid §
1985 cause of action, it also fails as a matter of law.
VII. Fourteenth Amendment
Raudenbush alleges Sgt. Millsaps is liable to him for an alleged violation of the
Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment states that no state shall
“deprive any person of life, liberty, or property without due process of law.” U.S. Const.
amend. XIV, § 1. Raudenbush does not specify whether he is asserting a procedural or
substantive due process claim. He alleges only a claim for violation of his civil rights “as
protected by the 4th and 14th Amendments to the U.S. Constitution and laws of the United
States under 42 U.S.C. §§ 1983, 1985, 1986 and for other causes of action as alleged
herein.” To the extent that Raudenbush is attempting to assert a substantive due process
claim for Sgt. Millsaps alleged use of excessive force, that argument fails as it is well settled
that such claims are to be analyzed under the Fourth Amendment’s “objective
reasonableness” standard. Graham, 490 U.S. at 388. As further explained in Graham:
17
all claims that law enforcement officers have used excessive force – deadly
or not – in the course of an arrest, investigatory stop, or other “seizure” of a
free citizen should be analyzed under the Fourth Amendment and its
“reasonableness” standard, rather than under a “substantive due process”
approach. Because the Fourth Amendment provides an explicit textual
source of constitutional protection against this sort of physically intrusive
governmental conduct, that Amendment, not the more generalized notion of
“substantive due process,” must be the guide for analyzing these claims.
Id. at 395. Graham requires that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must be
analyzed under the standard appropriate to that specific provision, not under the rubric of
substantive due process. Henderson v. Reyda, 192 Fed.Appx. 392, 396 (6th Cir. 2006).
Raudenbush’s excessive force claim falls squarely under the Fourth Amendment.
Therefore, he cannot assert a substantive due process claim for excessive force under the
Fourteenth Amendment.
VIII. First Amendment Retaliation
Raudenbush alleges violation of his constitutional rights asserting that he was
arrested or seized in retaliation for exercising his First Amendment right to complain about
government officials.
Generally, there can be no doubt that the freedom to express disagreement with state
action, without fear of reprisal based on the expression, is among the protections provided
by the First Amendment. Barnes v. Wright, 449 F.3d 709, 717 (6th Cir. 2006). As the
Supreme Court has explained, the “freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the principle characteristics by which
we distinguish a free nation from a police state.” City of Houston v. Hill, 482 U.S. 451,
18
462-63 (1987). In order for a plaintiff to prevail in a § 1983 claim for retaliatory
prosecution, he must first prove a lack of probable cause. Hartman v. Moore, 547 U.S. 250
(2006).
Here, Officer Bivens and Det. Jones did not participate in the initial stop of
Raudenbush. They were merely providing backup to Sgt. Millsaps. Sgt. Millsaps had
probable cause to arrest Raudenbush for the criminal charges in this case.
And,
Raudenbush was convicted of those charges after a jury trial. Therefore, Raudenbush’s
First Amendment retaliation claim against Sgt. Millsaps fails as a matter of law.
In his response, Raudenbush attempts to paint a picture of how the Monroe County
Sheriff’s Office is unlawful and often retaliates against him. However, nothing contained
in the response refers to the issues in this case – the traffic stop, arrest, and incarceration –
of Raudenbush on December 30, 2010, which the court has found to be lawful.
IX. Denial of Medical Care
Raudenbush alleges that defendants denied him medical care in violation of his civil
rights. He states he had serious medical needs “severe headaches coughing up blood and
loss of feeling in his lower extremities, hand and arms.” But the record does not support
these allegations.
The Eighth Amendment’s prohibition on cruel and unusual punishment generally
provides the basis to assert a § 1983 claim of deliberate indifference to serious medical
needs, but where that claim is asserted on behalf of a pretrial detainee, the Due Process
Clause of the Fourteenth Amendment is the proper starting point. Phillips v. Roane Cnty,
534 F.3d 531, 539 (6th Cir. 2008). There are two parts to the claim, one objective, one
19
subjective. For the objective component, the detainee “must demonstrate the existence of
a sufficiently serious medical need.” Spears v. Ruth, 589 F.3d 249, 254 (6th Cir. 2009). A
medical need is objectively serious if it is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention. Blackmore v. Kalamazoo Cnty, 390 F.3d 890, 897
(6th Cir. 2004).
For the subjective component, the detainee “must demonstrate that the defendant
possessed a sufficiently culpable state of mind in denying medical care.” Id. A defendant
has a sufficiently culpable state of mind if the defendant “knows of and disregards an
excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
This means that “the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. A plaintiff need not show that the defendant acted with the very purpose of causing
harm, but must show “something greater than negligence or malpractice.” Id. The
standard, then, has generally been equated with one of “recklessness.” Farmer, 511 U.S.
at 836. The subjective component of a deliberate indifference claim must be addressed for
each officer individually. Phillips, 534 F.3d at 542. The evidence must show that the
specific individual was aware of facts from which he or she could infer a substantial risk
of serious harm.
A. Det. Jones
Raudenbush states in his Amended Complaint that he believes that Det. Jones is the
officer who transported him to Sweetwater Hospital. In fact, the medical records show that
20
it was Officer Bivens who accompanied Raudenbush to the hospital. Raudenbush was
diagnosed with a cut to his left index finger and was prescribed Keflex. There are no facts
in the record to establish that Det. Jones denied Raudenbush medical treatment.
Accordingly, Raudenbush cannot maintain this claim against Det. Jones.
B. Officer Bivens
There are no facts in the record to establish that Officer Bivens denied Raudenbush
medical care. As stated above, Officer Bivens accompanied Raudenbush to Sweetwater
Emergency Room where Raudenbush received medical care for a laceration to his finger,
including an x-ray to his hand. The record also shows that Raudenbush received treatment
for a sore throat around January 30, 2011 while at the Monroe County Jail. The medicine
log confirms that Raudenbush was prescribed a Zpak at that time. Raudenbush also alleges
that he requested to see a doctor for migraine headaches, but his medical file does not
contain a complaint regarding a headache. There is nothing in the record to establish a
claim of denial of medical care to Raudenbush by Officer Bivens.
C. Monroe County
The medical records from the jail show that Raudenbush was treated by medical
staff when a sick call was placed, despite refusing to consent to treatment. No member of
the jail staff denied him medical care. If no constitutional violation by the any defendant
is established, the municipal defendant cannot be held liable under § 1983. Having found
no constitutional violation by any individual defendant with regard to deliberate
indifference to serious medical needs, the court finds that Monroe County cannot be liable,
as a matter of law, for this claim.
21
X. Jail Conditions
Raudenbush alleges he was “denied a shower, running water to wash with,
soap/toothpaste or toothbrush, a working toilet, food, a bed and proper hygiene for medical
care” during his first 72 hours at the jail.
Raudenbush further alleges that while
incarcerated in Monroe County, he was subjected to extreme overcrowding and was
“denied the use of the telephone in the cell he was placed in.” Raudenbush also alleges
that he “was forced to sleep on a cold, bare, cement floor for 28 days developing back pain
and causing his left leg to go numb.” Raudenbush further alleges that the temperature in
his cell was intentionally lowered to 45-50 degrees.
The Fourteenth Amendment’s due process clause protects pretrial detainees from
cruel and unusual punishments, and the Eighth Amendment’s cruel and unusual
punishments clause protects those convicted of crimes. Bell v. Wolfish, 441 U.S. 520, 535
n. 16 (1979). An act or practice that violates the Eighth Amendment also violates the due
process rights of pretrial detainees. Martin v. Tyson, 845 F.2d 1451, 1457 (7th Cir. 1988).
In order to state a claim that prison conditions violate the Eighth Amendment, the
plaintiff must plead facts showing that he has been subjected to deprivations so serious that
he was deprived of the “minimal civilized measure of life’s necessities” and that jail
officials acted wantonly, with deliberate indifference to his serious needs. Richmond v.
Settles, 450 Fed.Appx. 448, 454-55 (6th Cir. 2011). The plaintiff must allege “extreme
deprivations” to state an Eighth Amendment conditions of confinement claim. Allegations
of temporary inconveniences are insufficient to state a claim. Dellis v. Corr. Corp. of Am.,
257 F.3d 508, 511 (6th Cir. 2001); see also Agramonte v. Shartle, 491 Fed.Appx. 557, 559
22
(6th Cir. 2012) (inmates cannot expect the amenities, conveniences and services of a good
hotel).
Raudenbush’s complaint shows that most of the deprivations he alleges he
experienced were no more than temporary inconveniences. He first alleges that he was
“denied a shower, running water to wash with, soap/toothpaste or toothbrush, a working
toilet, food, a bed and proper hygiene for medical care” during his first 72 hours in the jail.
In a case with similar allegations, the Sixth Circuit found there was no violation of
constitutional rights when an inmate was denied “toilet paper, soap, toothpaste, toothbrush,
running water or the ability to shower for six days.” Richmond, 450 Fed.Appx. at 455. In
rejecting plaintiff’s claim, the Sixth Circuit concluded that the deprivation of a shower and
other personal hygiene items for a “brief span of time . . . i.e., only six days” is not
actionable conduct. Id. As to Raudenbush’s claim that he was denied a bed, the record
shows that he was given a mattress, blanket, and pillow on January 1, 2011, after he
completed intake. On January 7, when Raudenbush complained about the thinness of his
mattress, officers were instructed to find him a thicker mat. Accordingly, the court finds
this claim without merit.
Raudenbush next alleges that he was “forced to sleep on a cold, bare, cement floor
for 28 days, developing back pain and problems and causing his left leg to go numb.”
Again, the record shows that Raudenbush signed for and received a mattress, sheet,
pillowcase, pillow and blanket on January 1. When he requested medical attention on
January 7 to complain that his mat was thinner than others, the nurse instructed the officers
to trade Raudenbush’s mat for a thicker one. There is nothing in the record to substantiate
23
Raudenbush’s allegation that he was forced to sleep on the floor for 28 days. Accordingly,
the court finds this claim without merit.
Raudenbush also alleges that he was subjected to “extreme overcrowding” while
incarcerated in Monroe County. Specifically, Raudenbush claims that he was placed in a
cell with “44 other men.” But there is no evidence to support his claim. Raudenbush does
cite to a report that shows that the jail was overcrowded, but jail records for 2011 covering
the time he was in detention, show an overcrowding of only 21 individuals. That evidence
does not support Raudenbush’s claim. While crowded conditions can be restrictive and
even harsh, they do not violate the Eighth Amendment unless they deprive the inmate of
the minimal civilized measure of life’s necessities. Rhodes v. Chapman, 452 U.S. 337, 347
(1981).
Although Raudenbush may have been subjected to uncomfortable living
conditions, he does allege with any specificity that he was subjected to conditions that
could reasonably be described as an unnecessary and wanton infliction of pain.
Without question, prison officials must ensure that inmates received adequate food,
clothing, shelter, and medical care, and must take reasonable measures to guarantee the
safety of inmates. Farmer, 511 U.S. at 832. Harsh and uncomfortable prison conditions
do not automatically create an Eighth Amendment violation.
Rather “extreme
deprivations” must be alleged in order to support a prison-overcrowding claim.
Agramonte, 491 Fed.Appx. at 560.
Here, Raudenbush has failed to allege that the conditions of his confinement were
sufficiently onerous to state a claim under the Eighth Amendment.
Outside of his
allegations that he was denied food and personal hygiene items during his first 72 hours in
24
the jail, he makes no allegation that he was denied food or sanitation during the remainder
of his detention. Although he may have been inconvenienced by the increased population,
overcrowding is not, in itself, a constitutional violation, and he has not alleged that the
allegedly overcrowded conditions resulted in an unconstitutional denial of such basic needs
as food, shelter, or sanitation. Accordingly, the court finds this claim without merit.
Next, Raudenbush alleges that his incoming mail was discarded or returned to
sender and his outgoing mail was discarded and not delivered. The Supreme Court has
recognized that receiving mail is a First Amendment right. Jones v. Caruso, 569 F.3d 258,
167 (6th Cir. 2009). However, Raudenbush has offered no facts to establish that the Monroe
County Jail failed to deliver his mail. Accordingly, the court finds this claim without merit.
Raudenbush also alleges that the temperature in his cell was “intentionally lowered
to 45-50 degrees all night and the next day.” However, Monroe County established that
there is no thermostat in any cell where Raudenbush was housed during his detention, and
while there are multiple heating/cooling units in the jail, the cells cannot be made cooler
than 65 degrees. Accordingly, the court finds this claim without merit.
Lastly, Raudenbush alleges that he was “denied the use of the telephone in the cell
he was placed in” and was told by a jailer that he was ordered to not allow him to use the
phones. The Sixth Circuit has held that persons incarcerated in penal institutions retain
their First Amendment rights to communicate with family and friends. Washington v.
Reno, 35 F.3d 1093, 1100 (1994). Nevertheless, an inmate has no right to unlimited
telephone use. Instead, a prisoner’s right to telephone access is subject to “rational
limitations in the face of legitimate security interests of the penal institution.” Id.
25
Apart from his conclusory allegation that he was denied use of a telephone during
his detention, Raudenbush fails to provide any evidence to support his allegation. Instead,
the record show that he was allowed his one phone call when he was booked into the jail,
which he used to call Daniel Morgan. Accordingly, the court finds this claim without merit.
XI. State Law Claims
Raudenbush also alleges claims under Tennessee state law based on negligence,
false
arrest/imprisonment,
malicious
prosecution,
common
law
conspiracy,
intentional/negligent infliction of emotional distress, assault and battery. The court has
supplemental jurisdiction over these claims through 28 U.S.C. § 1367. A court may decline
to exercise supplemental jurisdiction if it has dismissed all claims over which it has original
jurisdiction.
28 U.S.C. § 1367(c)(3).
The only claims that the court has original
jurisdiction over are Raudenbush’s § 1983 claims. Because the court has dismissed all §
1983 claims, it will decline to exercise supplemental jurisdiction over the state claims.
Accordingly, Raudenbush’s state law claims are dismissed without prejudice. See Fed. R.
Civ. P. 41(b).
XII. Motion to Strike Sur-Reply
Defendants move to strike Raudenbush’s sur-reply filed in opposition to the motions
for summary judgment [R. 130]. The motion to strike is GRANTED.
Local Rule 7.1(d) governs the filing of supplemental briefs. The rule states:
No additional briefs, affidavits, or other papers in support of or in opposition
to a motion shall be filed without prior approval of the court, except that a
party may file a supplemental brief of no more than 5 pages to call to the
court’s attention developments occurring after a party’s final brief is filed.
26
First, Raudenbush did not seek court approval prior to filing his sur-reply. Second,
the sur-reply exceeds 5 pages, and merely reargues Raudenbush’s previous arguments
against summary judgment. Third, the sur-reply contains no new developments in the case.
Accordingly, the court finds the sur-rely should be stricken from the record for failure to
comply with Local Rule 7.1(d).
Conclusion
Finding no merit to Raudenbush’s federal claims, defendants’ motions for summary
judgment [R. 106, 110] are GRANTED, and his claims brought pursuant to 42 U.S.C. §
1983 are DISMISSED, with prejudice.
Raudenbush’s state law claims will be
DISMISSED, without prejudice.
Order to follow.
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____________________________________
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______________________ _________
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UNI
UNITED STATES DISTRICT
T E
I T CT
CT
UNITED STATES DISTRICT JUDGE
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