Hopper v. Logsdon et al (PLR1)

Filing 52

MEMORANDUM OPINION. Signed by District Judge Pamela L Reeves on 12/8/16. (c/m) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JAMES MARSHALL HOPPER,

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Plaintiff,
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v.
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ERIC LOGSDON, ROBERT MONROW,
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JEFF SHARPE, DONNIE SHIPLEY,
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MIKE BUTCHER, EARL LOY JR.,
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MAYNARDVILLE CITY POLICE
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DEPARTMENT, BILLY BREEDING, AND )
UNION COUNTY POLICE DEPARTMENT, )
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Defendants.
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No. 3:15-CV-00154
REEVES/GUYTON

MEMORANDUM OPINION

Plaintiff, James Marshall Hopper, acting pro se, filed this action against defendants
alleging excessive force during his arrest and denial of medical care for his injuries.
Defendants have moved for summary judgment on all claims. Hopper has failed to respond
to defendant’s motions. Because Hopper did not respond to defendants’ specific arguments
raised in the motions for summary judgment, he has waived any opposition to the relief
sought. See Local Rule 7.2. After review of the record in this case, the court agrees that
this action should be dismissed in its entirety, and defendants’ motions will be granted.

I. Background
On April 20, 2014, officers were dispatched to Hopper’s residence in Corryton,
Tennessee on a domestic assault call. Officers were informed by dispatch that the male
aggressor was intoxicated and holding or pointing a gun at a female victim. When officers
arrived at the residence, all of the lights in the residence were turned off and there was no
outside light.
Hopper came out onto the back porch and appeared to be holding something in one
of his hands. As officers approached Hopper, they gave commands for him to show his
hands and to lay down on the porch. Hopper refused to obey the commands and ran back
into the residence. Officer Logsdon called for assistance from other officers.
After a few minutes, Hopper came back out onto the porch. Officers again gave
commands for him to show his hands and to lie down on the porch, and Hopper again
refused to comply. Because Hopper failed to respond to the officers’ commands, Officer
Sharpe approached him from behind and physically took Hopper to the ground. After being
taken to the ground, Hopper struggled and refused to cooperate as officers attempted to
handcuff him. Officer Logsdon put his foot on Hopper’s back to assist officers in
handcuffing Hopper.
After Hopper was handcuffed, Officer Logsdon entered the residence and located
Myrna Hopper in the bathroom. The door to the bathroom was shut and Mrs. Hopper had
been laying against the bottom of the door to prevent her husband from entering. Mrs.
Hopper informed Officer Logsdon her husband had thrown her out of the residence earlier
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in the day and she came back to get a coat after it turned dark. Mrs. Hopper and her husband
started arguing, and he grabbed her by the throat and the arm. She got away from her
husband and ran outside but he followed her, holding a flashlight and a pistol. Mrs. Hopper
then ran back into the residence and into the bathroom, where she called 911. She told
Officer Logsdon that her husband noticed that she was on the phone and unplugged the
phone from the wall.
The Luttrell Volunteer Fire Department and Union County Ambulance were also
dispatched to the Hopper residence. Hopper was checked for injuries and diagnosed with
a cut on his left ear. Hopper was arrested for aggravated domestic assault and resisting
arrest and transported in Officer Sharpe’s car to the Union County Jail. Hopper later pled
guilty to assault and disorderly conduct.
Hopper’s complaint, as amended, alleges that during his takedown and arrest,
officers kicked him in the ribs and slammed his head onto the porch several times. Hopper
further alleges he was bleeding profusely from his head and was going in and out of
consciousness. Although paramedics were on the scene, Hopper alleges that the officers
refused to allow them to examine or treat his injuries. Hopper further alleges that his family
gave the officers Hopper’s medications, but officers refused to give him any of the
medications when he requested them. Last, Hopper alleges that after his family bailed him
out of jail the next day, he went to UT Hospital and was examined and diagnosed with a
head concussion, contusions to his ribs, hand and back, and blunt trauma to his chest.

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II. Standard for Summary Judgment
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).
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.
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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. Maynardville Police Department
Defendant Maynardville Police Department moves for summary judgment stating
that no employees or officers of the City of Maynardville participated in the seizure or
arrest of Hopper. Defendant attaches the Affidavit of Roger Richardson, Chief of Police
with the Maynardville Police Department. Chief Richardson states that no officers or
employees of the City of Maynardville or the Maynardville Police Department were
dispatched or responded to the Hopper residence on the evening of April 20, 2014.
Hopper’s complaint refers to an officer named “Robert Monroe,” a Maynardville
City Police Officer. However, Chief Richardson states the City of Maynardville did not
employ an officer by the name of “Robert Monroe” in April of 2014. As shown on the
arrest warrant, Officer Monroe was actually employed by the Union County Sheriff’s
Department, not the Maynardville City Police Department.
One of the officers mentioned in Hopper’s complaint is an “Officer Shipley.” The
City did employ an officer named Donnie Shipley in April of 2014, but Officer Shipley
was not working the evening of April 20, 2014. Dispatch records show that Officer Shipley
was not dispatched to the Hopper residence and his timecard does not reflect that Officer
Shipley was even on duty on April 20, 2014.
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Last, the Maynardville Police Department is not an entity capable of being sued.
The police department is a division of the municipal corporation City of Maynardville.
Under Tennessee law, a city police department does not have the capacity to sue or be sued.
Alexander v. Beales Street Blues Co. Inc., 108 F.Supp.2d 934, 947 (W.D.Tenn. 1999).
Thus the Maynardville City Police Department is not a suable entity. In addition, because
no officers or employees of the City of Maynardville were at the Hopper residence or
participated in his arrest, the court finds that the City of Maynardville is entitled to
summary judgment as a matter of law. Accordingly, the claims against the City of
Maynardville are DISMISSED.
IV. Officers Mike Butcher, Earl Loy Jr., and Billy Breeding
Although Hopper lists Officers Butcher, Loy and Breeding in the caption of his
complaint, Hopper makes no factual allegations whatsoever regarding these officers.
Therefore, the court finds these defendants are entitled to summary judgment as a matter
of law. See Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (dismissing plaintiff’s
claims where the plaintiff failed to allege defendants committed any actual acts, or averred
that they acquiesced in the conduct of their employees). Accordingly, all claims against
Mike Butcher, Earl Loy Jr., and Billy Breeding are DISMISSED.
V. Excessive Force
Hopper’s complaint alleges that officers used excessive force when they seized and
arrested him. Hopper alleges that “one officer” shined a flashlight in his eyes; that
“someone” jumped on his back; “they” kicked him; slammed his head into the porch; and
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“they” put him in a police cruiser.” Defendants respond that the force used against Hopper
was reasonable under the circumstances and in support of their response have submitted an
Affidavit from Eric Logsdon, and records from the Union County Sheriff’s Department
documenting the incident at the Hopper residence.
The Fourth Amendment guarantees the right against unreasonable search and
seizure; however, the Supreme Court has long held 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.” Grawey v. Drury, 567 F.3d 302, 309 (6th Cir. 2009).
The reasonableness of the seizure cannot be weighed mechanically or precisely defined;
instead courts weighing the reasonableness of an officer’s actions must carefully consider
the facts and circumstances of each particular case, including the severity of the crime at
issue, the danger posed by the suspect, and whether the suspect is actively resisting arrest
or attempting to flee. Id. Finally, “the calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-second judgments – in
circumstances that are tense, uncertain, and rapidly evolving – about the amount of force
that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97.
First, the officers were dispatched to Hopper’s residence in response to a domestic
disturbance involving a firearm, clearly a serious crime. Second, officers were informed
that Hopper was armed and was threatening the victim. Third, it was dark when officers
arrived at the residence, and Hopper re-entered the residence, and was holding something
in his hand when he re-emerged from the residence. Thus, it was reasonable for the officers
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to believe that Hopper was still armed and posed a threat to the safety of the victim and the
officers. It was certainly reasonable for Officer Sharpe to circle around Hopper and take
him to the ground. Fourth, because Hopper continued to struggle while on the ground,
Officer Logsdon assisted Officer Sharpe by exerting pressure on Hopper’s back to keep
him on the ground to prevent him from further resisting. Because Hopper presented a threat
to the safety of officers and was actively resisting the officers’ attempts to restrain/disarm
him, no reasonable jury could find that the force used against Hopper was excessive.
Hopper alleges that after he was taken to the ground, he was repeatedly kicked in
the head, ribs and chest; and that he was bleeding profusely. Hopper also alleges that
although paramedics were present on the scene, officers refused to allow him to be
examined or treated for his injuries. Unfortunately for Hopper, the record does not support
his allegations. Defendants submitted a report from the Union County EMS which
responded to the 911 call at the Hopper residence. The report establishes that Hopper was
examined by paramedics prior to being transported to jail. Further, contrary to Hopper’s
allegation that he was in and out of consciousness, paramedics noted that he was “alert and
oriented to person, place, time and event.” Other than a “scratch” on his ear, Hopper’s
head, eyes, nose and throat were within normal limits. Hopper denied any further pain or
injury to the paramedics. The scratch on his ear was treated by paramedics and Hopper
was turned over to Officer Logsdon for transport. To establish a genuine issue as to the
existence of a particular element, plaintiff must point to evidence in the record upon which
a reasonable finder of fact could find in his favor. Liberty Lobby, 477 U.S. at 248. Plaintiff
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has not pointed to any evidence in the record to establish the existence of disputed facts.
Moreover, although Hopper alleges he was examined and treated at UT Hospital, he has
not produced any medical records to support his allegations. Accordingly, the undisputed
facts established by defendants support their assertions that the force used during Hopper’s
arrest was reasonable under the circumstances. Accordingly, defendants’ motion for
summary judgment will be granted with respect to his claim for excessive force.
VI. Deliberate Indifference to Medical Needs
Hopper alleges that officers failed to obtain medical treatment for his injuries and
failed to administer his medication when he requested.
Under the Eighth Amendment, prison officials are prohibited from “unnecessarily
and wantonly inflicting pain on an inmate by acting with deliberate indifference toward the
inmate’s serious medical needs.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th
Cir. 2004). Pretrial detainees are protected analogously under the Due Process Clause of
the Fourteenth Amendment. Id. In order to establish an Eighth Amendment violation for
deliberate indifference to serious medical need against a prison official under § 1983, the
plaintiff must satisfy an objective and a subjective component. Id.
To satisfy the objective component, a plaintiff must show the existence of a
sufficiently serious medical need, meaning he is “incarcerated under conditions posing a
substantial risk of serious harm.” Id. A serious medical need 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.” Harrison v. Ash, 539
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F.3d 510, 518 (6th Cir. 2008).
The subjective component is met when “the official knows of and disregards an
excessive risk to inmate health or safety.” Harrison, 539 F.3d at 518. An 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.
Based on the record, the court finds that Hopper has failed to establish either prong
of the deliberate indifference test. He has not asserted that his injuries or need for medical
care were obvious to a lay person. The EMS record shows that Hopper had only a scratch
on his ear, and not the injuries Hopper alleges he suffered during his arrest. Hopper alleges
he suffered injuries for which he sought treatment at the emergency room after his release
from custody and that defendants refused to give him medication despite his request. He
states no facts indicating when or where he requested medical treatment; nor does he state
what, if any, information he gave the officers about the extent of his injuries or the potential
consequences that may result if he was not given medication. Hopper has failed to submit
any evidence to support his claim, such as medical records from UT Hospital. Accordingly,
the medical deliberate indifference claim is DISMISSED as to all defendants.
VII. Union County Sheriff’s Department
Like the Maynardville City Police Department, the Union County Sheriff’s
Department is not a suable entity. See Petty v. Cnty of Franklin, Ohio, 478 F.3d 341, 345
(6th Cir. 2007) (sheriff’s office is not a legal entity that can be sued under § 1983).
Moreover, Hopper has failed to state a claim for municipal liability against Union County.
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A municipality cannot be found liable under § 1983 unless a plaintiff can establish
that an officially executed policy or the tolerance of a custom leads to, causes, or results in
the deprivation of a constitutionally protected right. Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1988). A municipal custom may be established by proof of the
knowledge of policymaking officials and their acquiescence in established practice. Miller
v. Calhoun Cnty., 408 F.3d 803, 814 (6th Cir. 2005). Monell liability requires a showing
that the custom is “so permanent and well settled as to constitute a custom or usage with
the force of law.” Id. A plaintiff must establish four factors to support a municipal liability
claim: (1) the existence of clear and persistent pattern of mistreatment of detainees; (2)
notice or constructive notice on the part of the county; (3) the county’s tacit approval of
the unconstitutional conduct, such that their deliberate indifference in their failure to act
can be said to amount to an official policy of inaction; and (4) the county’s custom was the
moving force or direct causal link in the constitutional deprivation. Miller, 408 F.3d at
815.
Here, Hopper has failed to submit evidence to satisfy these four factors. He has not
shown a clear and persistent pattern of mistreatment of detainees; has shown no notice on
the part of Union County, nor that the County approved of any unconstitutional conduct;
and he has failed to show any custom or policy of Union County that resulted in a
deprivation of his constitutional rights. To establish a genuine issue as to the existence of
a particular element, plaintiff must point to evidence in the record upon which a reasonable
finder of fact could find in his favor. Liberty Lobby, 477 U.S. at 248. Plaintiff has not
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pointed to any evidence in the record to establish the existence of disputed facts.
Accordingly, all claims against Union County are DISMISSED.
VIII. Conclusion
Because Hopper has failed to respond to defendants’ motions for summary
judgment and has failed to submit any evidence in support of his allegations, the court finds
that defendants are entitled to summary judgment as a matter of law on all claims.
Accordingly, defendants’ motions [R. 44, 47] are GRANTED, and this action is
DISMISSED in its entirety, with prejudice. In light of the court’s ruling on the motions
for summary judgment, it is not necessary to address defendants’ motions to dismiss and
the motions to dismiss [R. 19, 36, 40, 42] are DENIED as moot.

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UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT
A S S
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