Marcum v. Sevier County, TN et al
Filing
30
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Pamela L Reeves on 4/27/15. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
Terry Marcum,
Plaintiff,
v.
Sevier County, Tennessee, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 3:13-CV-682-PLR-HBG
Memorandum Opinion
In November 2012, Terry Marcum was assaulted in the bathroom while he was
incarcerated in the Sevier County Jail. He brought this lawsuit against Sevier County, Sheriff
Ronald Seals, and two unnamed jailers asserting claims under 42 U.S.C. § 1983, as well as
claims for state law negligent supervision and training, extreme and outrageous conduct, and
intentional infliction of emotional distress. The defendants have moved for summary judgment
[R. 20], the plaintiff has responded, and the matter is ripe. For the following reasons, the
defendants’ motion for summary judgment will be granted.
i.
The facts alleged by the plaintiff are quite brief: Terry Marcum entered the Sevier
County Jail in April of 2012 to serve a sentence for driving under the influence and domestic
violence.
He was housed in the minimum security facility, commonly referred to as the
“Annex,” which was supposed to house only non-violent inmates. Despite this, the plaintiff
claims that there were multiple fights in his pod every week.
On November 17, 2012 the plaintiff “was threatened by one or more inmates” and “told
that he would be ‘jumped in the shower.’” The plaintiff alleges “upon information and belief”
that this threat was made in the presence of one of the guards. The following day, Mr. Marcum
was attacked in the bathroom by three inmates, and he suffered from a broken eye socket,
cracked teeth, and injuries to his head and knee. Normally the guards monitored the inmates
from a glass room, but the plaintiff claims “upon information and belief” that the jail was
understaffed and nobody was monitoring the inmates at the time of the attack. After the attack,
Mr. Marcum was taken to the hospital.
One of the attackers, called “Spanky,” had actually been charged with assaulting another
inmate shortly before he attacked Mr. Marcum. Sevier County had a policy of removing inmates
from the Annex if they committed acts of violence. Spanky, however, was not removed from the
Annex after attacking his previous victim. If Spanky had been removed, the plaintiff contends,
he would not have been able to attack Mr. Marcum.
ii.
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. Co. Ltd v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Burchett v. Keifer, 301 F.3d 937, 942 (6th Cir. 2002). Courts may not resolve genuine
disputes of fact in favor of the movant. Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (vacating
2
lower court’s grant of summary judgment for “fail[ing to] adhere to the axiom that in ruling on a
motion for summary judgment, the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor”) (internal quotations and citations omitted).
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 fact
finder. 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.
The plaintiff has asserted a number of constitutional claims against all the defendants
pursuant 42 U.S.C. § 1983, including claims for violations of his Fourth, Fifth, Eighth, and
3
Fourteenth Amendment rights. The facts pled, however, are insufficient to support any of those
claims.
a. Sheriff Seals
It has long been established that supervisory liability cannot attach where allegations of
liability are based upon a mere failure to act. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.
1999). Instead, active unconstitutional behavior is required. Id. A supervisor cannot be found
liable based solely on the right to control employees or even on an awareness of misconduct.
McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 470 (6th Cir. 2006). “A supervisory official’s
failure to supervise, control or train the offending individual is not actionable unless the
supervisor either encouraged the specific incident of misconduct or in some other way directly
participated in it.” Id. (internal quotations omitted).
The plaintiff has not alleged any active unconstitutional behavior by Sheriff Seals. They
have not alleged that he encouraged any particular unconstitutional conduct or otherwise actively
participated in conduct that deprived the plaintiff of his constitutional rights. Citing Farmer v.
Brennan, 511 U.S. 825 (1994), the plaintiff contends that Sheriff Seals is liable for failing to
protect the plaintiff from violence at the hands of other prisoners. But to establish such liability,
the plaintiff must demonstrate that Sheriff Seals “was aware of facts from which the inference
could be drawn that a substantial risk of harm would exist if reasonable measures were not taken,
that the defendant actually drew the inference, and that the defendant acted in disregard of that
risk.” Amick v. Ohio Dept. of Rehabilitation & Correction, 521 F. App’x 354, 361 (6th Cir.
2013) (citing Farmer, 511 U.S. at 837). The plaintiff has not done so. There is no evidence in
the record supporting an inference that Sheriff Seals was aware of the threats made against the
plaintiff. Without being aware of facts from which the Sheriff could determine that the plaintiff
4
was at substantial risk of harm, the Sheriff cannot be found liable under a failure to protect
theory.
b. Sevier County
A plaintiff cannot use § 1983 to sue a local government under the theory of respondeat
superior. Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006) (citing Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 692-94 (1988)). A plaintiff may only recover from
the local government for its own wrongdoing.
Id.
The plaintiff asserts two theories for
municipal liability in this case: (1) Monell liability for the existence of an officially executed
polity or the toleration of a custom that lead to violations of the plaintiff’s constitutional rights;
and (2) failure to train.
Under Monell, the local government can be found liable under § 1983 if the plaintiff can
establish that an officially executed policy or the toleration of a custom leads to, causes, or
results in the deprivation of a constitutionally protected right. Doe v. Claiborne County, Tenn.,
103 F.3d 495, 507 (6th Cir. 1996) (citing Monell, 436 U.S. at 691). “A ‘municipal’ custom may
be established by proof of the knowledge of policymaking officials and their acquiescence in the
established practice.” Miller v. Calhoun County, 408 F.3d 803, 814 (6th Cir. 2005) (quoting
Memphis, Tenn. Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 902
(6th Cir. 2004)). To prevail on a Monell claim, the plaintiff must establish that the custom is “so
permanent and well settled as to constitute a custom or usage with the force of law.” Id.
(quoting Doe v. Claiborne County, 103 F.3d at 507).
A failure to train arguments requires the plaintiff to prove that the employees of a
municipality committed a constitutional violation due to a lack of training by policy makers, and
that those policymakers are deliberately indifferent to the need for the training that would have
5
avoided such a constitutional violation. See City of Canton, Ohio v. Harris, 489 U.S. 378, 38889 (1989).
This theory obviously requires that the alleged failure to train results in a
constitutional deprivation.
The only possible constitutional violation alleged by the plaintiff is for failure to protect
under Farmer. As discussed above, liability under Farmer requires an individual to be aware of
facts from which to draw an inference of danger to the plaintiff. The plaintiff has not alleged
that any guard or prison official knew of the threats made toward the plaintiff. The complaint
and even the plaintiff’s response in opposition of summary judgment only state that “upon
information and belief” these threats took place in the presence of one of the guards. Statements
made on information and belief, however, are insufficient to create an issue of fact necessary to
defeat summary judgment. See, e.g. Hadley v. Inman, 2006 WL 141750, at *8 (E.D. Tenn.
January 18, 2006) (collecting cases).
Finally, to the extent the plaintiff is asserting a failure-to-protect argument based on the
fact that Spanky was not removed from the Annex after his previous assault, that claim fails.
There is no doubt that Spanky would not have been able to participate in the assault on the
plaintiff had he been removed; however, Spanky was only one of three individuals who assaulted
the plaintiff. The plaintiff does not actually name the individual who threatened him, and there is
simply no evidence on the record (or even allegations) to support a conclusion that the plaintiff
would not have been assaulted without Spanky in the Annex.
Without pointing to any evidence in the record to support finding a constitutional
violation, the plaintiff cannot prevail on a failure to train or Monell claim for municipal liability.
The defendants’ motion for summary judgment will be granted with respect to the claims
asserted against Sevier County.
6
c. Unidentified Officers
In their motion for summary judgment, the defendants argue that the unidentified officer
defendants should be dismissed for the plaintiff’s failure to timely amend his complaint and
identify them.
The plaintiff responded by agreeing to dismiss his claims against them.
Accordingly, they will be dismissed.
iv.
With the plaintiff’s § 1983 claims dismissed, all that remains are his state law claims.
Title 28 § 1367(c) provides that district courts may decline to exercise supplemental jurisdiction
over state law claims when they raise novel or complex issues of state law or, in exceptional
circumstances, there are compelling reasons for declining supplemental jurisdiction.
The
Tennessee Governmental Tort Liability Act provides in pertinent part that “[t]he circuit courts
shall have exclusive original jurisdiction over any action brought under this chapter. . . .” Tenn.
Code Ann. § 29-20-307. This expresses a clear preference from the Tennessee legislature that
claims under Tennessee’s Governmental Tort Liability Act be handled by state courts. Gregory
v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000). Accordingly, this Court declines to
exercise supplemental jurisdiction over the plaintiffs’ remaining state law claims. They will be
dismissed without prejudice.
iv.
For the foregoing reasons, the defendants’ motion for summary judgment [R. 20] is
Granted. The plaintiff’s federal claims asserted against Sevier County and Sheriff Seals are
dismissed with prejudice. The plaintiff’s state law claims asserted against Sevier County and
Sheriff Seals are dismissed without prejudice. Finally, all the plaintiff’s claims asserted against
the unidentified guard defendants are dismissed with prejudice.
7
IT IS SO ORDERED.
____________________________________
UNITED STATES DISTRICT JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?