Roberts et al v. Wal-Mart Stores, Inc. et al

Filing 53

MEMORANDUM OPINION in support of the following Judgment. Signed by District Judge Pamela L Reeves on 6/19/14. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

ROBERT STEVEN ROBERTS and
RETHIA MARIE ROBERTS,
Plaintiffs,
v.
WAL-MART STORES, INC.,
WAL-MART STORES EAST, LP,
WAL-MART ASSOCIATES, INC.,
WAL-MART REAL ESTATE BUSINESS
TRUST, INC., and
THE CITY OF MARYVILLE, TENNESSEE,
Defendants.

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No.: 3:12-CV-495-PLR-HBG

MEMORANDUM OPINION

Plaintiffs have brought this § 1983 action against Defendants to recover for
injuries allegedly sustained on September 20, 2011, when Mr. Roberts was suspected of
carrying a bomb in a Wal-Mart store, and briefly detained by law enforcement. Currently
pending before the court are Defendants’ motions for summary judgment. The court has
carefully considered the pending motions and the supporting exhibits in light of the
applicable law. For the reasons stated herein, the court finds Defendants’ motions for
summary judgment well-taken, and the motions will be GRANTED.

I. Procedural Background
Plaintiffs filed their complaint in this action on September 19, 2012, and
Defendants timely filed responses to the complaint. After completion of discovery, the
Wal-Mart defendants filed a motion for summary judgment on March 21, 2014. The City
of Maryville filed its motion for summary judgment on March 24, 2014. Pursuant to
Local Rule 7.1, Plaintiffs’ response to the motions was due 21 days thereafter. Plaintiffs
failed to respond to the summary judgment motions and on April 25, 2014, the court
entered an order requiring plaintiffs to show cause, in writing, why defendants’ motions
for summary judgment should not be granted by the court and this action dismissed. No
response was received to the show cause order. Accordingly, pursuant to Local Rule 7.2,
the Court will deem Plaintiffs’ failure to respond to the motions and the Court’s order of
April 25, 2014 as a waiver of any opposition to the relief sought by Defendants in this
case.
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 most favorable to the nonmoving party. Matsushita Elec. Indus.

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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 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. 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. Factual Background
On September 20, 2011, plaintiffs went to the Wal-Mart Supercenter located at
Highway 411 in Maryville, Tennessee. Upon arriving at the store, plaintiffs entered

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through the garden center, and soon thereafter, separated from one another to conduct
their shopping.
Mr. Roberts encountered a Wal-Mart sales associate, Joshua Spillers. Spillers
asked Mr. Roberts if there was anything he could help him with. Spillers understood Mr.
Roberts to say, “No, I’m just walking around with a bomb somewhere.” Mr. Roberts
then walked away from Spillers. Spillers was shocked by this response. Spillers testified
in his deposition that he was absolutely sure that he heard Mr. Roberts say he had “a
bomb somewhere.”
Spillers reported the threat to his supervisor, Bill Freeman, who in turn, reported it
to the store manager, Melvin Covington. Several employees attempted to find Mr.
Roberts by walking around the store, but they were unable to locate him. When WalMart management was unable to locate Mr. Roberts on store video surveillance,
management decided to evacuate the store, and through the broadcast system, requested
that all customers and employees exit the building.

Wal-Mart management then

contacted the City of Maryville through the 911 dispatch. J.D. Hardiman, assistant store
manager, spoke with the 911 dispatcher and reported that one of the store’s customers
stated he was walking around with a bomb somewhere, and that store management had
lost sight of the customer. Hardiman gave the 911 dispatcher a description of Mr.
Roberts. The dispatcher said she would send officers to the store.
Police officers from the Maryville Police Department arrived as customers were
exiting the store. Mr. Roberts was identified by a member of Wal-Mart management, and
the officers detained Mr. Roberts while they conducted their investigation.
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An officer interviewed Spillers, who confirmed the alleged bomb threat by Mr.
Roberts. The officer next interviewed Mrs. Roberts. Mrs. Roberts explained that they
had been to the Veterans Administration facilities in Knoxville that morning for treatment
of Mr. Roberts’ post-traumatic stress disorder, and that Mr. Roberts had been taking
medications for this condition for a number of years. Mrs. Roberts further explained that
Mr. Roberts was a “bit down” right now regarding something going on with his son, and
he probably said he was “bummed out” and was misunderstood.
A member of Wal-Mart management reported to the investigating officer that
store video had been reviewed, and Mr. Roberts was not seen carrying anything into the
store, or carrying anything while in the store. Mr. Roberts was then interviewed. The
officer asked him about his medical history, and he advised the officer that he suffered
from post-traumatic stress disorder and was taking medications for it. Mr. Roberts
further told the officer that he battles depression and has had thoughts of hurting himself
in the past, but he didn’t have any thoughts like that on that day, and felt fine except for
being upset and embarrassed about what was going on. Finally, the Wal-Mart
surveillance video from the store was reviewed by the officers. After conferring with
Wal-Mart management, interviewing Spillers, reviewing security footage of Mr. Roberts
inside Wal-Mart, and interviewing Mr. Roberts, he was released by the officers. No
criminal charges were placed against Mr. Roberts.
A surveillance camera from the Wal-Mart parking lot captured officers’
interaction with plaintiffs. Defendants also submitted deposition testimony from Mr. and
Mrs. Roberts, Officer Rodrigo Fernandez, and Joshua Spillers. The video shows officers
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escorting Mr. Roberts to the trunk area of a patrol car, where a pat down search was
performed. Mrs. Roberts appears on camera, and an officer is shown pointing his finger
at Mrs. Roberts, who then walks away. Mr. Roberts was handcuffed and placed in the
back of a patrol car. The door to the patrol car was closed. After several minutes, an
officer checked on Mr. Roberts and asked him if he needed medical attention. Mr.
Roberts responded that he was a diabetic and he was having an anxiety attack. The
officer called for an EMT. During this time, the officers repositioned the handcuffs on
Mr. Roberts in front of his body. Mr. Roberts was later examined by an EMT. Mrs.
Roberts again approached the patrol car and was allowed to talk to Mr. Roberts. The
video shows the officers continuing their investigation.

Mr. Roberts is released

approximately 35 minutes after his initial detention by the officers.
Mrs. Roberts alleges that an officer pointed a taser at her during the incident. The
video, however, shows an officer pointing his finger at her. Mrs. Roberts admitted in her
deposition that she was instructed three (3) times to step away from the scene before she
complied with the officer’s command. She also admitted in her deposition that she
consented to a search of her purse and vehicle by the police officers during their
investigation. Mrs. Roberts was never charged with any crime, never handcuffed, and
never detained by being placed in a patrol car at any time during the investigation.
IV. Analysis
Plaintiffs have brought this action against defendants pursuant to 42 U.S.C. §
1983. Section 1983 states in pertinent part:

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Every person, who under color of any statute, ordinance, regulation,
custom, or usage . . . subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 makes liable only those who, “while acting under color
of state law, deprive another of a right secured by the Constitution or federal law.”
Romanski v. Detroit Entertainment LLC, 428 F.3d 629, 636 (6th Cir. 2005). To establish
a claim pursuant to § 1983, a plaintiff must demonstrate two elements: (1) that the
plaintiff was deprived of a right secured by the Constitution or laws of the United States;
and (2) that the plaintiff was subjected or caused to be subjected to this deprivation by a
person acting under color of state law. Gregory v. Shelby County, 220 F.3d 433, 441 (6th
Cir. 2000). Section 1983 creates no substantive rights; it merely provides remedies for
deprivations of rights established elsewhere. Gardenhire v. Shelby County, 205 F.3d 303,
310 (6th Cir. 2000).
A. Claims against the City of Maryville
Plaintiffs’ allegations regarding the City of Maryville, as stated in their Complaint,
are as follows:
34.
Plaintiff Rethia Marie Roberts, as a result of the events which occurred on
September 20, 2011, suffered from great fright, shock, humiliation and
embarrassment as a result of watching her husband be abruptly arrested for no
conceivable reason. As a result of being threatened with a taser by an officer of
the City of Maryville, Plaintiff Rethia Marie Roberts was placed in fear for her
personal safety when she did not pose any threat of harm to any officer or other
person present.
35.
Plaintiff Robert Steven Roberts was placed under arrest by police officers
employed by the City of Maryville. This arrest was made without a warrant.
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36.
The Defendants did not have sufficient cause to place Plaintiff
Robert Steven Roberts under arrest as this Plaintiff had not committed an
offense or breach of the peace in their presence, and there was not a
reasonable or justifiable cause to believe this plaintiff had, in fact,
committed a felony.
37. Defendant City of Maryville is responsible for the conduct of its police
officers.
38.
Defendant City of Maryville is responsible for properly training and
supervising its police officers with regard to procedures to be used in
making an arrest was well as the appropriate amount of force to be
exercised in effectuating an arrest.
39.
Defendant City of Maryville did not properly train and/or supervise
its law enforcement officers to insure that the civil rights and liberties of
Plaintiff Robert Steven Roberts were not violated while in the process of
making an arrest and/or while detaining him as a suspect.
40.
Defendant City of Maryville also failed to properly train and/or
supervise its officers in the use of potentially deadly force as to when to
threaten its use against Plaintiff Rethia Roberts.
1. Unreasonable Seizure
The undisputed facts of this case show that the detention of Mr. Roberts was
reasonable as a matter of law. Under Terry v. Ohio, a police officer may conduct an
investigatory stop if he “has reasonable, articulable suspicion that the person has been, or
is about to be engaged in criminal activity.” Terry, 392 U.S. 1, 26 (1968). A Terry stop
“must be based on specific, objective facts,” and requires that the detaining officers have
“a particularized and objective basis for suspecting the particular person stopped of
criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981).
Here, the City of Maryville Police Department was alerted to a bomb threat at the
Wal-Mart store and police were dispatched immediately thereafter.
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Wal-Mart

management identified Mr. Roberts as the person who allegedly made the threat. Mr.
Roberts was detained by officers, patted-down for weapons, and placed inside the patrol
car while the investigation took place. As part of the investigation, Wal-Mart employees
were interviewed, video from Wal-Mart surveillance cameras was reviewed, Mr. and
Mrs. Roberts were interviewed, and Mr. Roberts was ultimately released. No charges
were filed against Mr. Roberts. Mr. Roberts was only detained for approximately 35
minutes, during which the officers conducted their investigation. Based on these facts,
the court cannot find that Mr. Roberts’ Fourth Amendment right to be free from unlawful
seizure was violated in this case. The length of his detention was reasonably related to
the officers’ investigation into the alleged bomb threat. The officers diligently pursued
their investigation and immediately released Mr. Roberts upon concluding the
investigation. No Fourth Amendment violation occurred.
As to Mrs. Roberts, the undisputed facts show that she was never arrested,
charged, detained by being placed in a patrol car, or handcuffed at any time. Mrs.
Roberts interjected herself into the investigation by disobeying the orders of the officers
to stop approaching the patrol car where her husband was being temporarily detained.
Even if she was asked by an officer not to leave the scene during the investigation, such
an act would be reasonable under the circumstances given her proximity and relationship
to Mr. Roberts. Therefore, to the extent that Mrs. Roberts alleges she was unlawfully
seized by officers of the City of Maryville Police Department, her claim fails as a matter
of law as she was never detained by the officers.

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2. Excessive Force
Plaintiffs’ complaint alleges that the officers used excessive force in the process of
“applying the handcuffs,” after Mr. Roberts advised the officers that “he had shoulder
problems.”
“A claim of excessive force under the Fourth Amendment requires that a plaintiff
demonstrate that a seizure occurred, and that the force used in effecting the seizure was
objectively unreasonable.” Graham v. Connor, 490 U.S. 386, 394-95 (1989). To show
objective unreasonableness with respect to handcuffing, Sixth Circuit precedent “requires
that a plaintiff show both that officers handcuffed the plaintiff excessively and
unnecessarily tightly, and that officers ignored the plaintiff’s pleas that the handcuffs
were too tight.” Vance v. Wade, 546 F.3d 774, 783 (6th Cir. 2008). However, the right
to make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical force, coercion, or threat thereof to effect it. Graham, 490 U.S. at 396.
Here, the surveillance video demonstrates that no excessive force was used in the
initial handcuffing of Mr. Roberts and placing him in the patrol car. Several minutes
later, an officer returned to check on him. Mr. Roberts told the officer that he was
diabetic and his heart was racing. He further stated that he was in a contorted position
and was suffering. In response, the officers repositioned the handcuffs in front of Mr.
Roberts, and called an EMT to the scene. Mr. Roberts testified in his deposition that
“these officers were doing their job. I realize that . . . when I explained to him about the
shoulder, then they re-cuffed me. They let me sit in the cruiser with my feet outside and
door open . . . and the EMT attended to me, took my blood pressure, did the blood sugar
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stick and things [like] that . . . .” Nothing in these events demonstrates excessive force.
Based on the record, the court finds Plaintiffs have failed to present any facts supporting
their claim that excessive force was used in handcuffing Mr. Roberts. Accordingly,
summary judgment will be granted to the City of Maryville on Mr. Roberts’ excessive
force claim.
As to Mrs. Roberts’ claim that an officer used excessive force by pointing a taser
at her, the video demonstrates that the officer merely pointed his hand or finger at her
instructing her to move away. Mrs. Roberts admitted in her deposition that this was in
response to the officer ordering her three (3) different times to leave, which she
disobeyed. Accordingly, the court finds that plaintiffs have failed to submit any material
evidence in support of their claim of excessive force as to Mrs. Roberts, and summary
judgment will be granted to the City of Maryville on the excessive force claims.
3. Municipal Liability
The undisputed facts of this case fail to show that the plaintiffs’ constitutional
rights were violated by any of the officers on the scene. Mr. Roberts was never arrested;
the video demonstrates no excessive force was used against Mr. Roberts; and Mr. Roberts
admitted in his deposition that the officers were courteous during his brief detention.
Any allegations by plaintiffs of failure to train or supervise in this case are moot because
excessive force was not used as a matter of law as it relates to either of the plaintiffs, and
the officers’ investigation and brief detention of Mr. Roberts in this case was reasonable
as a matter of law. Because no underlying constitutional right was violated, there can be
no liability as it relates to the City of Maryville. The Sixth Circuit has held that if there is
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no underlying constitutional tort, any allegations of failure to train and supervise are moot
and do not state a cause of action for which relief may be granted. See Hancock v.
Dodson, 958 F.2d 1367, 1376 (6th Cir. 2002).
B. Claims against Wal-Mart Defendants
Plaintiffs’ allegations regarding the Wal-Mart defendants, as stated in their
Complaint, are as follows:
19.
The information communicated to the City of Maryville was that
Plaintiff Robert Steven Roberts had placed or was carrying a bomb in the
store.
20.
At this point, Wal-Mart was acting under color of state law by
requesting that the City of Maryville place Plaintiff Robert Steven Roberts
under arrest.
21.
Probable cause did not exist for Wal-Mart, through its agent,
servants and employees, to request the City of Maryville to arrest Plaintiff
Robert Steven Roberts.
22.
During this period of time, the Plaintiffs had located one another and
were walking in the direction of the check-out area when they heard the
announcement for all persons to leave the store due a planned power shut
down. As they were making their way toward the exit, they were greeted
by a Wal-Mart employee who walked with them outside of the store.
23.
Once Plaintiffs exited the building, the Wal-Mart employee with
them motioned to law enforcement officers of the City of Maryville
regarding Plaintiff Robert Steven Roberts.

Plaintiffs have produced no evidence that Wal-Mart violated their Fourth
Amendment rights. The extent of Mr. Roberts’ interaction with Wal-Mart associates on
September 20, 2011 included: an associate asking Mr. Roberts if he needed any help;
management announcing that all customers and associates needed to leave the building; a
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sales associate escorting the Roberts along with other customers out of the building; and a
Wal-Mart employee indicating to a police officer that Mr. Roberts was the customer who
made the statement about having a bomb.
As for plaintiffs’ claims that Wal-Mart management requested police officers to
arrest Mr. Roberts, the recording of the 911 call demonstrates that Hardiman stated that
he wanted an officer to “come out” or “come by” the store. No one from Wal-Mart asked
anyone from the City of Maryville to place Mr. Roberts under arrest, and in fact, Mr.
Roberts was not arrested. The court finds plaintiffs’ allegations that Wal-Mart caused
Mr. Roberts to be arrested are without merit.
Plaintiffs have also alleged that Wal-Mart participated in a civil conspiracy to
violate their civil rights. A civil conspiracy claim under § 1983 lies where there is “an
agreement between two or more persons to injure another by unlawful action.” Revis v.
Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). To prevail on such a claim in this context,
plaintiffs must demonstrate “that (1) a single plan existed, (2) the conspirators shared a
conspiratorial objective to deprive the plaintiffs of their constitutional rights, and (3) an
overt act was committed” in furtherance of the conspiracy that caused the injury. Id. It is
well-settled that conspiracy claims must be pled with some degree of specificity and that
vague and conclusory allegations unsupported by material facts will not be sufficient to
state such a claim under § 1983. Guierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)
(affirming grant of summary judgment where plaintiff’s allegations lacked the requisite
material facts and specificity necessary to sustain a conspiracy claim).

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Based on the record in this case, the court finds that Wal-Mart management acted
to maintain the safety of its customers and to ensure that there was no bomb in the store.
They made a reasonable effort to find Mr. Roberts in the store and could not locate him.
They then contacted the police. Under these circumstances, the court cannot find that
Wal-Mart’s action of calling police dispatch was unreasonable or an overt act designed to
deprive Mr. Roberts of his civil rights.
Moreover, plaintiffs have failed to produce any evidence that Wal-Mart
management and the City of Maryville police officers shared a single plan and a common
objective to deprive them of their constitutional rights, and plaintiffs have failed to prove
that any of their constitutional rights were violated. Based on these facts, no reasonable
jury could find that Wal-Mart employees violated any of the plaintiff’s Fourth
Amendment rights. Accordingly, the court finds that summary judgment should be
granted to the Wal-Mart Defendants and to the City of Maryville on plaintiffs’ claim for
civil conspiracy.
C. State Law Claims
Plaintiffs have also asserted claims for assault and battery, outrageous conduct,
and false imprisonment against the City of Maryville under Tennessee law.
Clear precedent from this court dictates that the City of Maryville is immune from
suit for Plaintiffs’ claims for false imprisonment, assault and battery, and outrageous
conduct. As this court found in Campbell v. Anderson County, 695 F.Supp.2d 764, 777
(2010), Tenn. Code Ann. § 29-20-205(2) provides that immunity from suit of all
governmental entities is removed or waived for injury proximately caused by a negligent
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act or omission of any employee within the scope of his employment except if the injury
arises out of “civil rights.” Here, Plaintiffs’ tort claims of false imprisonment, assault and
battery, and outrageous conduct brought against the City of Maryville under Tennessee
law are predicated on the alleged violation of their civil rights by City police officers.
Plaintiffs’ allegations clearly arise out of and directly flow from the allegations that the
officers violated Plaintiffs’ civil rights. Because Plaintiffs assert claims against the City
of Maryville in the context of a civil rights case, any alleged injuries arise out of “civil
rights” and the City is entitled to immunity from suit on these claims pursuant to the
“civil rights” exception in Tenn. Code Ann. § 29-20-205(e). Accordingly, summary
judgment is granted to the City of Maryville on Plaintiffs’ claims for false imprisonment,
assault and battery, and outrageous conduct.
V. Conclusion
In light of the foregoing discussion, Defendant City of Maryville’s motion for
summary judgment [R. 40] is GRANTED; the Wal-Mart Defendants’ motion for
summary judgment [R. 34] is GRANTED; and Plaintiffs’ claims against these
Defendants are DISMISSED, with prejudice.
Enter:
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UNITED STATES DISTRICT JUDGE

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