Colson v. City of Alcoa, Tennessee et al (RLJ2)

Filing 55

MEMORANDUM OPINION: Count Four, Count Six, Count Nine, Count Ten, Count Twelve, and Count Thirteen are DISMISSED but only to the extent that they apply to Sheriff Berrong in his individual capacity. These counts remain pending in all other respects. Officer England SHALL serve a responsive pleading within fourteen days from the date of this Order. Signed by District Judge R Leon Jordan on May 2, 2017. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION

ANNISSA COLSON,
Plaintiff,
v.
CITY OF ALCOA, TENNESSEE, et al.,
Defendants.

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No. 3:16-CV-377

MEMORANDUM OPINION
This matter is before the Court on Defendant Sheriff James L. Berrong and
Defendant Officer Mandy England’s Motion to Dismiss [doc. 19], Defendant Sheriff James
L. Berrong and Defendant Officer Mandy England’s Brief in Support of the Motion
[doc. 20], Plaintiff Annissa Colson’s Response in Opposition [doc. 35], and Defendant
Sheriff James L. Berrong and Defendant Officer Mandy England’s Reply [doc. 42]. For
the reasons herein, the Court will grant the motion in part and deny the motion in part.
I.

BACKGROUND

Plaintiff Annissa Colson (“Ms. Colson”) alleges that one evening she was involved
in a car accident and that Officer Dustin Cook (“Officer Cook”) and Officer Arik Wilson
(“Officer Wilson”), both of the Alcoa Police Department, arrested her on charges that
include driving under the influence and reckless endangerment. [Compl., doc. 1, ¶ 5]. Ms.
Colson claims that, while at the scene of the accident, she consented to a blood alcohol test
and that Officer Cook and Officer Wilson drove her to Blount Memorial Hospital for the

test. [Id.]. She alleges, however, that she withdrew her consent once they arrived at the
hospital, causing Officer Cook and Officer Wilson to instruct her to get back into their
patrol vehicle. [Id.]. At that point, Ms. Colson, who claims to suffer from multiple anxiety
disorders including “severe panic disorder,” alleges that she experienced a “crippling panic
attack, gasping for breath, in obvious distress” and asked Officer Cook and Officer Wilson
to let her breathe. [Id. ¶¶ 1, 5]. “I need to breathe. Please let me breath,” she allegedly said
to them. [Id. ¶ 56]. According to Ms. Colson, who refers to herself as “diminutive,” Officer
Cook and Officer Wilson believed that she was resisting their commands and responded
by forcing her back into their patrol vehicle. [Id. ¶ 6]. Specifically, she claims that Officer
Cook pulled her into the patrol vehicle from inside while Officer Wilson pushed her into
it, and in the process, Officer Wilson thrust his knee into her knee and caused it to “pop.”
[Id. ¶¶ 6–7]. As they maneuvered her into the patrol vehicle, they also allegedly employed
“pressure point tactics” on her—one clasping her jugular and the other clasping her
clavicle. [Id. ¶ 8].
Once Ms. Colson was inside the patrol vehicle, she was allegedly “screaming in
pain and crying for her mother.” [Id. ¶ 9]. Ms. Colson claims that Officer Cook then
contacted his supervisor, Lieutenant Keith Fletcher (“Lieutenant Fletcher”), and requested
guidance on how to proceed, including advice as to whether they should take Ms. Colson
to have her knee examined by a medical professional. [Id.]. Lieutenant Fletcher allegedly
told them to take Ms. Colson to Blount County Jail, where the staff nurse could check her
knee and conduct a mandatory blood draw. [Id. ¶¶ 9, 64]. According to Ms. Colson, they
transported her to Blount County Jail, and Officer Mandy England (“Officer England”)
2

met them there. [Id. ¶ 10].1 Officer England allegedly escorted Ms. Colson, who claims
that she was “screaming about her knee,” to a room where she was “surrounded by
corrections staff” and strapped into a “restraint chair.” [Id. ¶¶ 10, 66].
Ms. Colson maintains that Jennifer Russell, a staff nurse at Blount County Jail, then
performed a “cursory examination” of her knee, found nothing wrong with it, and
attempted to draw her blood with Officer England’s help. [Id. ¶ 11]. In response, Ms.
Colson alleges that she became uncomfortable and resisted their efforts, prompting Officer
England to strike her in the face. [Id.].2 Afterwards, Ms. Colson claims that, while still in
the restraint chair, she repeatedly requested the opportunity to use the restroom but was
denied that opportunity, and she eventually urinated on herself several times. [Id. ¶ 12].
According to Ms. Colson, the officers reacted with laughter. [Id.]. A male officer then
allegedly placed her in a “semi-choke hold” while Officer England forced a helmet onto
her head. [Id. ¶¶ 13, 73–74]. Ms. Colson claims that she told the officer he was hurting her
neck and that he replied, “good.” [Id. ¶ 73]. She allegedly remained fastened in the restraint
chair for roughly another five hours. [Id. ¶¶ 13, 75].
Ms. Colson asserts that after she was released from Blount County Jail, she learned
that she had suffered “a tibial plateau fracture, a torn ACL, [and] a torn LCL,” in addition
to abrasions and bruises to her neck, chest, arms, and foot. [Id. ¶ 16]. She also maintains
that she experienced “substantial mental anguish.” [Id.]. As a result, she has filed this

1

Ms. Colson, in her Complaint, notes that Officer Cook told another officer at Blount
County Jail that Ms. Colson had “ripp[ed] the rubber out of his car door.” [Compl. ¶ 67].
2
Ms. Colson notes that a video recording in the room captured Officer Cook stating that
he believed Ms. Colson may have bitten or tried to bite Officer England. [Id. ¶ 71].
3

lawsuit against the City of Alcoa, Tennessee; Blount County, Tennessee; and officers of
these local governments in their official and individual capacities, bringing several claims
under 42 U.S.C. §§ 1983, 1985, 1986, 1988 and alleging violations of her constitutional
rights under the Fourth, Eighth, and Fourteenth Amendments. [Id. at 32–53]. She pleads
that these violations consist of use of unlawful and excessive force, cruel and unusual
punishment, failure to train and supervise, failure to provide adequate medical treatment,
and failure to protect. [Id.]. Ms. Colson also brings common law claims under Tennessee
law for assault and battery against Officer Cook, Office Wilson, and Officer England;
intentional infliction of emotional distress against all Defendants; and negligence against
all Defendants. [Id. ¶¶ 178–94]. Defendants Sheriff James L. Berrong (“Sheriff Berrong”)
and Officer England now move for dismissal of certain claims against them in their
individual capacities. Sheriff Berrong requests dismissal of all the § 1983 claims and state
law claims, [Defs.’ Br. at 4–12], and Officer England moves for dismissal of the negligence
claim, [id. at 14].
II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), “[a] pleading that states a claim for
relief must contain . . . a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), the plaintiff’s complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

4

(2007)). A claim is facially plausible when the plaintiff pleads facts that create a reasonable
inference that the defendant is liable for the alleged conduct in the complaint. Id.
When considering a motion to dismiss under Rule 12(b)(6), a court accepts the
allegations in the complaint as true and construes them in a light most favorable to the
plaintiff. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). “[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions,” however. Iqbal, 556 U.S. at 678. A plaintiff’s allegations must consist of
more than “labels,” “conclusions,” and “formulaic recitation[s] of the elements of a cause
of action.” Twombly, 550 U.S. at 555 (citation omitted); see Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” (citation omitted)). “Although a motion pursuant to Rule
12(b)(6) invites an inquiry into the legal sufficiency of the complaint, not an analysis of
potential defenses to the claims set forth therein, dismissal nevertheless is appropriate when
the defendant is entitled to a meritorious affirmative defense such as qualified immunity.”
Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016).
III. ANALYSIS
Section 1983 permits a claim for damages against “[e]very person who, under color
of [state law], subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Because § 1983 has
“a ‘color of law’ requirement,” a defendant “can be held liable only if state law, whether
provided by statute or judicially implied, empowers him with some legal obligation to act.”
5

Doe v. Claiborne County, 103 F.3d 495, 512 (6th Cir. 1996) (citation omitted). A claim
under § 1983 therefore consists of two elements: (1) the defendant deprived the plaintiff of
a constitutional right or a federal statutory right and (2) the defendant deprived the plaintiff
of one of these types of rights while acting under color of state law (i.e., state action). Id.
at 511; Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). “Absent either element, a
section 1983 claim will not lie.” Christy, 103 F.3d at 511.
A. Sheriff Berrong
Because of the length of the Complaint, which exceeds sixty pages, and the
relatively large number of Defendants in this action, the Court begins with an overview of
the allegations against Sheriff Berrong. Ms. Colson prefaces her claims by describing the
City of Alcoa’s and Blount County’s policies as the “moving force” behind the alleged
infringements of her constitutional rights:
17.
The moving force behind the violations of Plaintiff’s
constitutional rights was Alcoa and Blount County’s policies, customs, or
practices to employ and apply the same protocols, conventions, customs, or
rules of conduct in handling suspects or inmates who suffer from severe
mental disorders, here, a severe anxiety and panic disorder, as they do in
handling other un-afflicted inmates. This practice is accepted as a policy or
custom of deliberate indifference to the safety of suspects or inmates who
suffer from debilitating mental disorders.
18.
Defendants knew, or should have known, by Plaintiff’s actions,
statements, and medications, that Plaintiff suffered from a severe mental
disorder. . . . The officers responded just as they would have to any noncompliant suspect or inmate, disregarding her severe mental disorder.
[Compl. ¶¶ 17–18]. Ms. Colson endeavors to link this alleged policy and the officers’
alleged actions to Sheriff Berrong by pleading that, under Tenn. Code Ann. section 41-4-

6

101,3 he is “statutorily responsible for the operation of the Blount County Jail; for the
screening[,] hiring, firing, training and the supervision of the jailers, deputies, corrections
officers, and other jail personal; and responsible for the safety and welfare of those housed
in the Jail.” [Id. ¶¶ 34–35].
Against the backdrop of these general assertions, Ms. Colson goes on to allege four
individual-capacity claims4 against Sheriff Berrong under § 1983: one for use of unlawful
and excessive force against her (Count Four); a second for failure to train and supervise
personnel (Count Six); a third for failure to provide her with adequate medical treatment
(Count Nine); and a fourth for failure to keep her free from harm while she was in custody
(Count Ten). Nowhere does Ms. Colson plead that Sheriff Berrong was personally or
directly involved in the officers’ actions against her.5 Rather, her individual-capacity
claims against Sheriff Berrong are based on allegations that, while executing his
responsibilities as a supervisor, he encouraged or implicitly authorized his officers’
unconstitutional actions against her. [See Pl.’s Resp. at 14 (stating that the allegations
implicate Sheriff Berrong “in his role as a supervisor”)].

Tenn. Code Ann. section 41-4-101 states that “[t]he sheriff of the county has, except in
cases otherwise provided by law, the custody and charge of the jail of the county and of all
prisoners committed to the jail and may appoint a jailer, for whose acts the sheriff is civilly
responsible.”
4
An individual-capacity claim differs from an official-capacity claim under § 1983. An
individual-capacity claim attaches personal liability to a state official for an alleged wrongdoing
under color of state law, whereas an official-capacity claim attaches liability only to the
municipality or government entity. Essex v. County of Livingston, 518 F. App’x 351, 354–55 (6th
Cir. 2013); see Cady v. Arenac County, 574 F.3d 334, 342 (6th Cir. 2009) (“In an official capacity
action, the plaintiff seeks damages not from the individual officer, but from the entity for which
the officer is an agent.” (quotation omitted)).
5
Ms. Colson acknowledges in her response that Sheriff Berrong did not have “‘active’
involvement . . . in [her] ordeal.” [Pl.’s Resp. at 15].
7
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1. Ms. Colson’s Style of Pleading
Sheriff Berrong maintains that Count Four, Count Nine, and Count Ten require
dismissal because Ms. Colson “broadly alleges how all defendants should be held liable
without mentioning or attempting to specify how Sheriff Berrong should be held liable.”
[Defs.’ Br. at 5]. At first blush, Sheriff Berrong appears to be correct in his assessment of
these counts, which contain no specific allegations against him in their respective bodies.
Rather, Ms. Colson indiscriminately pools all Defendants into these counts and, for the
most part, does not levy allegations against any individual Defendant but against all
Defendants at once. This haphazard style of pleading is generally grounds for dismissal.
See Tuck v. Off Shore Inland Marine & Oilfield Co., No. 12-0379-WS-M, 2013 WL 81135,
at *4 n.8 (S.D. Ala. Jan. 4, 2013) (“Part of plaintiffs’ problem is that their Complaint lumps
the four original defendants together in an undifferentiated mass, which is often itself a
defect under Rule 8.” (citations omitted)); Petrovic v. Princess Cruise Lines, Ltd., No. 1221588-CIV, 2012 WL 3026368, at *3 (S.D. Fla. July 20, 2012) (“[A] complaint that
‘lump[s] all the defendants together in each claim and provid[es] no factual basis to
distinguish their conduct’ fails to satisfy Rule 8.” (quotation omitted)); Ismail v. City of
Vallejo, No. C 93-3253 BAC, 1994 WL 317602, at *2 (N.D. Cal. June 21, 1994)
(“Plaintiff’s complaint lumps the defendants together and does not identify the role of any
particular defendant in causing a deprivation of plaintiff’s federally protected civil rights.
The complaint fails to meet the pleading requirements for a Section 1983 claim. The
plaintiff must sort out and allege the conduct of each defendant which he claims resulted
in a deprivation of his federally protected civil rights.” (citation omitted)).
8

A careful reading of the Complaint, however, shows that Ms. Colson’s allegations
in Count Four, Count Nine, and Count Ten—though perhaps not models of pleading—are
technically not lacking in allegations against Sheriff Berrong specifically. Sheriff Berrong
loses sight of the fact that Ms. Colson incorporates by reference into these counts other
paragraphs from the Complaint, and some of these paragraphs contain allegations that are
particular to Sheriff Berrong. See generally Hishon v. King & Spalding, 467 U.S. 69, 73
(1984) (“A court may dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations.” (emphasis
added) (citation omitted)). For instance, in Count Four, Ms. Colson incorporates by
reference the following allegation against Sheriff Berrong from Count Three:
112. No one, not . . . Sheriff Berrong, or any other supervisors
named herein took disciplinary action against England.
Similarly, in Count Nine and Count Ten, she incorporates by reference—from Count Six,
Count Seven, and Count Eight—the following allegations against Sheriff Berrong:
133. Sheriff Berrong . . . had an opportunity to implement corrective
action against the various officers involved, but . . . did not. Instead, [he]
implicitly authorized, approved, or knowingly acquiesced in those
officers’ conduct, implicitly acquiescing in the use of excessive force and
cruel and unusual punishment as well.
134. Sheriff Berrong . . . had a duty to train and supervise [his]
departments’ officers to avoid the use of excessive force, cruel and
unusual punishment, and deprivation of adequate medical care. Yet, [he]
failed to train and supervise those officers properly and failed to
competently and properly investigate the use of excessive force.
135. It is highly unlikely that incidents such as those described
herein would not have been reviewed by . . . Sheriff
Berrong . . . . Nevertheless, none of the officers involved were
disciplined.
9

136. Ratification of such conduct by . . . Sheriff Berrong . . . sent a
message that officers are allowed to do whatever they want, whenever
they want, to whomever they want, irrespective of the
Constitution. . . . Sheriff Berrong [was] involved, at least in part, in
creating and enforcing their departments’ policies. Here, they did not
punish officer misconduct, including the use of excessive force and
failure to provide adequate medical care, but “rubber stamped” that
conduct.
142. By ratifying Plaintiff’s mistreatment . . . Sheriff Berrong
acquiesced in the unconstitutional conduct of [his] subordinates through
the execution of their job functions.
156. At all times material hereto, Sheriff Berrong authorized the use
of a “restraint chair” at the Blount County Jail[.]
157. The use of the “restraint chair” under the facts of this case on
an inmate who suffers from a severe mental disorder constituted cruel and
unusual punishment, which violated Plaintiff’s rights under the Eighth
and Fourteenth Amendments.
160. The use of the “restraint chair” is expressly prohibited by the
policies and procedures of many corrections facilities, but Sheriff
Berrong has known that the “restraint chair” at the Blount County Jail
was being used as punishment for certain inmates, including inmates with
severe mental disorders. He failed to take action to prevent the abuses.
Clearly, Ms. Colson does not fall short of apprising Sheriff Berrong of how she believes
that he—and he specifically—is liable under Count Four, Count Nine, and Count Ten. The
issue of whether these allegations add up to factually sufficient claims for supervisory
liability, however, is a separate one that the Court will now consider.
2. The Contours of Supervisory Liability under § 1983
In Ashcroft v. Iqbal, the Supreme Court stated that in suits under § 1983, “the term
‘supervisory liability’ is a misnomer” because “each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” 556 U.S. at 677. In other
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words, a supervisory official cannot be liable under a theory of vicarious liability, id. at
676, or in other words, “simply because he or she was charged with overseeing a
subordinate who violated the constitutional rights of another,” Peatross, 818 F.3d at 241
(citation omitted). A supervisor’s mere failure to act is therefore not enough to establish
supervisory liability; instead “supervisory liability requires some ‘active constitutional
behavior’ on the part of the supervisor.” Id. (quotation omitted); see Salehpour v. Univ. of
Tenn., 159 F.3d 199, 206 (6th Cir. 1998) (“[S]upervisory liability under § 1983 cannot
attach where the allegation of liability is based upon a mere failure to act. Instead the
liability must be based upon active unconstitutional behavior.” (citation omitted)).
The term “active,” however, “does not mean ‘active in the sense that the supervisor
must have physically put his hands on the injured party or even physically been present at
the time of the constitutional violation.” Peatross, 818 F.3d at 242 (citation omitted).
Rather, an individual-capacity claim against a supervisor for failure to train or supervise
an offending subordinate is actionable if that supervisor (1) “encouraged the specific
incident of misconduct or in some other way directly participated in it” or (2) “implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct.” Hays v.
Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982); see Peatross, 818 F.3d at 242
(reiterating these two elements). By satisfying either of these two elements, a plaintiff
establishes what courts have described as a necessary causal connection between the
execution of a supervisor’s job function and the constitutional deprivation at issue. See
Claiborne County, 103 F.3d at 511 (“[A] show[ing] that a supervisory official at least
implicitly authorized, approved or knowingly acquiesced in the unconstitutional
11

conduct . . . . follow[s] section 1983’s requirement that the person sought to be held
accountable actually have ‘caused’ the deprivation[.]” (quotation omitted)); see also
§ 1983 (stating that liability attaches to a person who, under color of state law, “subjects,
or causes to be subjected, any citizen” to a constitutional deprivation (emphasis added)).
A supervisor implicitly authorizes, approves, or knowingly acquiesces to a
subordinate’s unconstitutional conduct “when a history of widespread abuse puts th[at]
responsible supervisor on notice of the need to correct the alleged deprivation, and
he . . . fails to do so.” Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 440 (6th Cir.
2002) (quotation omitted)). To suffice to put a supervisor on notice, however, the
widespread abuse must be “obvious, flagrant, rampant, and of continued duration, rather
than isolated occurrences,” id. at 440–41 (internal quotation omitted)—strong adjectives
that demand allegations not merely on par with negligence, see id. at 439 (“[I]t is not
enough for the plaintiff to show that the defendant supervisors were sloppy, reckless or
negligent in the performance of their duties.”); see also Claiborne County, 103 F.3d at 513
(affirming dismissal of supervisory liability claims against school officials because even
though they knew of previous incidents and investigations involving a teacher’s
molestation of students, their failure to take action to prevent the teacher from molesting
another student was more akin to negligence, rather than awareness of the need to correct
widespread unconstitutional conduct).
To this Court’s knowledge, the Sixth Circuit has never issued an opinion in which
it found a pattern of abuse to be so “obvious, flagrant, rampant, and of continued duration”
that a supervisor’s mere awareness of it was, by itself, sufficient to create supervisory
12

liability. Rather, the Sixth Circuit has traditionally found supervisory liability claims to be
plausible only when a supervisor is on notice of misconduct and in some way acts in
relation to the misconduct. See Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988) (“[S]he
has merely claimed that the appellants were aware of the alleged harassment, but did not
take appropriate action. This is insufficient to impose liability on supervisory personnel
under § 1983.” (citation omitted)); Hays, 668 F.2d at 873–74 (“The mere ‘failure to act
(even) in the fact of a statistical pattern’ of incidents of misconduct . . . [is] insufficient to
base [supervisory] liability on.” (quoting Rizzo v. Goode, 423 U.S. 362, 376 (1976))); see
also Essex v. County of Livingston, 518 F. App’x 351, 357 (6th Cir. 2013) (determining
that a deputy’s sexual assault could not impose supervisory liability on the sheriff simply
based on an allegation that the sheriff had read newspaper articles about deputies who had
perpetrated sexual assaults in “other jurisdictions” (emphasis added)); cf. Iqbal, 556 U.S.
at 677 (“[R]espondent believes a supervisor’s mere knowledge of his subordinate’s
discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject
this argument. Respondent’s conception of ‘supervisory liability’ is inconsistent with his
accurate stipulation that petitioners may not be held accountable for the misdeeds of their
agents.”). The Sixth Circuit has reiterated this stance in its most recent case law.
In Peatross, a decedent’s estate sued the Memphis Police Department’s director
under a theory of supervisory liability after officers had shot the decedent to death. 818
F.3d at 237–39. To support its claim, the estate pleaded that the director failed to train and
supervise his officers to avoid the use of excessive force, inadequately investigated their
use of excessive force, attempted to hide their use of excessive force by making false
13

statements to federal officials, and knew of fifty-four shootings by the Memphis Police
Department’s officers in a four-year span—a pattern that had once led him to express his
intention to improve departmental discipline. Id. at 243. The Sixth Circuit held that these
allegations raised a plausible claim for supervisory liability against the director. Id. at 243–
44. While it reasoned that the director’s alleged knowledge of the pattern of shootings
helped to solidify the claim, this allegation was not the bedrock of the claim’s sufficiency;
rather, it brought the claim “a step further” toward sufficiency. Id. at 243. Indeed, in the
same opinion, the Sixth Circuit recognized that a “failure to act (even) in the face of a
statistical pattern of incidents of misconduct’ is not sufficient to confer [supervisory]
liability.” Id. at 241–42 (quotation omitted). The Sixth Circuit’s strongest reaction came in
response to the allegation that the director made false statements and performed bogus
internal investigations—affirmative actions in relation to the misconduct that equated to
ratification and rubber-stamping:
[The] Estate alleges that [the Director] . . . attempted to cover-up the
unconstitutional conduct of his subordinates by exonerating the officers in an
effort to escape liability. . . . Here, we have allegations that a government
official with supervisory responsibility ratified the conduct of officers who
shoot first and make judgments later, evincing a brazen disregard for human
life. Ratification of such conduct is abhorrent.
Id. at 243, 246.6 In reaching this decision, the Sixth Circuit relied on its opinion in Coley
v. Lucas County, 799 F.3d 530 (6th Cir. 2015), another instructive case in which it also
held that a supervisory liability claim was factually sufficient.

The Sixth Circuit also held that the factual allegations as to the director’s ratification of
the wrongful conduct were specific enough even to overcome the director’s defense of qualified
immunity: “The sufficiency of the Complaint requires rejection of [the director’s] claim of
qualified immunity at the dismissal stage.” Peatross, 818 F.3d at 246.
14
6

In Coley, an officer put a pretrial detainee in a chokehold, causing him to die and
prompting his family to sue the officer’s supervisor, a sheriff, in his individual capacity
under § 1983. Id. at 534–35, 541–42. The family’s claim consisted of allegations that the
sheriff failed to train and supervise his staff on the use of proper force and inadequately
investigated the use of excessive force. Id. at 542. Although the family did not allege a
pattern of widespread abuse, they did allege that, like in Peatross, the sheriff tried to cover
up the officer’s conduct. Id. Specifically, the family alleged that the sheriff had “full
knowledge of the assault” but “made false statements to federal officials about [his]
knowledge.” Id. Based on these allegations, the Sixth Circuit concluded that the family
pleaded a sufficient claim for supervisory liability but only “insofar as they have shown
that [the sheriff] ‘at least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate,’ when he helped [the officers] cover
up their unconstitutional actions.” Id. (emphasis added) (quotation omitted). The Sixth
Circuit’s decision in this case, as well as in Peatross, show that, again, supervisory liability
not only requires a supervisor to be aware of the misconduct but also to act affirmatively
in relation it.
3. The Factual Sufficiency of the Supervisory Liability Claims
Sheriff Berrong argues that dismissal of the four individual-capacity claims against
him is appropriate because the Complaint is without any allegation as to his personal
involvement in his officers’ alleged misconduct against Ms. Colson—or in other words,
the causal connection necessary to implicate him in the alleged constitutional deprivations

15

is absent. [Defs.’ Br. at 4–12]. He maintains that Ms. Colson, at most, conclusorily asserts
that he knowingly acquiesced in the alleged unconstitutional behavior. [Id. at 7].
Before appraising Ms. Colson’s claims for factual sufficiency, the Court reiterates
that a § 1983 action requires two inquiries: (1) whether a plaintiff has asserted an injury
under the Constitution at all and, if so, (2) whether the injury resulted from state action, or
under color of state law. Claiborne County, 103 F.3d at 505–06, 511. The threshold inquiry
is therefore whether the alleged conduct amounts to a deprivation under the Constitution.
Id.; see Dillingham v. Millsaps, 809 F. Supp. 2d 820, 841 (E.D. Tenn. 2011) (recognizing
that “[o]bviously Sheriff Bivens can only be liable if the underlying conduct was
unconstitutional”). Sheriff Berrong makes no argument under this threshold issue; he does
not challenge whether his officers’ alleged conduct deprived Ms. Colson of a right under
the Fourth, Eighth, and Fourteenth Amendments. And of course, under the second half of
the inquiry, he does not contend that this case is without alleged state action. Instead, he
pursues dismissal of the § 1983 claims based on the absence of causation between his
responsibilities as Sheriff of Blount County and the alleged unconstitutional behavior by
his officers. The Court will therefore examine the § 1983 claims that Sheriff Berrong
believes require dismissal—Count Four, Count Six, Count Nine, and Count Ten—for at
least a reasonable inference that Sheriff Berrong implicitly authorized, approved, or
knowingly acquiesced in the alleged wrongful conduct. [See Pl.’s Resp. at 19 (contending
that “[t]aken as true, the facts alleged here and inferences drawn therefrom support the
plausible inference that Sheriff Berrong acquiesced in the unconstitutional conduct”)].

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i. Count Four: Excessive Force
In Count Four, Ms. Colson makes only one allegation against Sheriff Berrong, and
it is bereft of factual enhancement and insufficient to link him to his subordinates’ alleged
use of excessive force. In paragraph 112, which Ms. Colson incorporates into Count Four
by reference, she states that “[n]o one, not . . . Sheriff Berrong, or any other supervisors
named herein took disciplinary action against England.”7 “The simple failure to discipline
an officer for using excessive force,” however, “does not make the officer’s supervisors
liable under § 1983.” Galvan v. Monroe, No. 1:15-cv-00049, 2015 WL 4419611, at *3
(M.D. Tenn. July 17, 2015) (citing Frodge v. City of Newport, 501 F. App’x 519, 532 (6th
Cir. 2012)). Without more grist, this allegation is—at best—consistent with simple
negligence, which cannot sustain a claim for supervisory liability. City of Roseville, 296
F.3d at 439; see Deom v. Walgreen Co., 591 F. App’x 313, 320 (6th Cir. 2014) (“[When]
the context makes the factual allegations at most consistent with both conduct that is
actionable and conduct that is not, more is required to ‘nudge[] [the] claims across the line
from conceivable to plausible’” (quoting Twombly, 550 U.S. at 570)). The Court will
therefore dismiss Count Four as it pertains to Sheriff Berrong in his individual capacity.
ii. Count Six: Failure to Train and Supervise
Although Count Six, in comparison to Count Four, contains a fourfold increase in
the allegations against Sheriff Berrong, they are all equally feeble and do not form a

7

This allegation is the only factual assertion against Sheriff Berrong. Ms. Colson does
incorporate by reference two other allegations that concern Sheriff Berrong, but in them, she
merely traces Tenn. Code Ann. section 41-4-101’s language. [See Compl. ¶¶ 35–36].
17

plausible claim for supervisory liability. Excluding paragraph 112, which Ms. Colson also
incorporates into Count Six by reference and which fails for the reasons that the Court has
identified, Count Six contains four allegations against Sheriff Berrong:
133. Sheriff Berrong . . . had an opportunity to implement corrective
action against the various officers involved, but . . . did not. Instead, [he]
implicitly authorized, approved, or knowingly acquiesced in those
officers’ conduct, implicitly acquiescing in the use of excessive force and
cruel and unusual punishment as well.
134. Sheriff Berrong . . . had a duty to train and supervise [his]
departments’ officers to avoid the use of excessive force, cruel and
unusual punishment, and deprivation of adequate medical care. Yet, [he]
failed to train and supervise those officers properly and failed to
competently and properly investigate the use of excessive force.
135. It is highly unlikely that incidents such as those described
herein would not have been reviewed by . . . Sheriff
Berrong . . . . Nevertheless, none of the officers involved were
disciplined.
136. Ratification of such conduct by . . . Sheriff Berrong . . . sent a
message that officers are allowed to do whatever they want, whenever
they want, to whomever they want, irrespective of the
Constitution. . . . Sheriff Berrong [was] involved, at least in part, in
creating and enforcing their departments’ policies. Here, they did not
punish officer misconduct, including the use of excessive force and
failure to provide adequate medical care, but “rubber stamped” that
conduct.
Ms. Colson intones the common-law parlance “implicitly authorized, approved, or
knowingly acquiesced,” summarizes Sheriff’s Berrong’s responsibility to supervise and
train his subordinates under Tenn. Code. Ann. section 41-4-101, and conclusorily refers to
unidentified acts of ratification and rubber stamping. These allegations consist of nothing
more than canned recitations of the common-law labels associated with supervisory
liability. See Twombly, 550 U.S. at 555 (citation omitted). They are devoid of facts.
18

The mere allegation that Sheriff Berrong failed to implement training that might
have spared Ms. Colson from her alleged injuries does not, without more, add up to a
plausible claim for supervisory liability. See Ontha v. Rutherford County, 222 F. App’x
498, 504 (6th Cir. 2007) (“[T]o establish supervisory liability, it is not enough to point after
the fact to a particular sort of training which, if provided, might have prevented the harm
suffered in a given case.”). In addition, although Ms. Colson asserts that Sheriff Berrong
most likely reviewed the incidents yet did not discipline his officers, she weaves no facts
into this assertion to distinguish it from an equally plausible explanation that a sloppy or
negligent investigation resulted in the lack of discipline. See City of Roseville, 296 F.3d at
439, 441. Ms. Colson’s allegation that Sheriff Berrong conducted an incompetent and
improper investigation suffers from the same shortcoming—a lack of facts to distinguish
it from a sloppy or negligent investigation. See Frodge, 501 F. App’x at 532 (“[E]ven an
inadequate investigation is . . . insufficient to trigger liability because a supervisory liability
claim ‘cannot be based on simple negligence.’” (quotation omitted)). These allegations as
to Sheriff Berrong’s failure to investigate and failure to discipline his officers appear to be
the foundation for Ms. Colson’s contention that Sheriff Berrong ratified or rubber stamped
their alleged misconduct, but because these allegations lack factual support themselves,
they cannot lay roots for other assertions of wrongdoing like ratification.
Ms. Colson, however, contends that her allegation as to Sheriff Berrong’s failure to
perform an adequate investigation is sufficient to erect a plausible claim for supervisory
liability against Sheriff Berrong. [Pl.’s Resp. at 17]. In raising this argument, she relies on
the Sixth Circuit’s opinion in Marchese v. Lucas, 758 F.2d 181 (6th Cir. 1985), pointing
19

out that in this case the Sixth Circuit made “a finding of supervisory liability [that] was
premised on the failure to initiate and conduct any ‘meaningful investigation on the part of
the Sheriff himself.’” [Pl.’s Resp. at 17 (quoting id. at 187–88)]. Marchese, however, is
hardly analogous to the facts here. First, Marchese was an opinion that arose during the
post-judgment stage—a totally different posture from this case, which is of course still in
the pleading stage. Second, the appeal in Marchese dealt with judgment against the sheriff
in his official capacity, not in his individual capacity. See Marchese, 758 F.2d at 181, 188
(“This is an appeal from a judgment . . . against William Lucas in his official capacity as
Sheriff . . . . [T]he Sheriff is sued here in his official capacity and in that capacity, he had
a duty to both know and act.”). An individual-capacity claim against a supervisor and the
relevant legal standard affiliated with it were therefore not in play in Marchese, unlike in
this case.
Finally, the Court would be remiss if it did not address Ms. Colson’s allegations in
paragraph 138, in which she appears to assert that Count Six, as a whole, exhibits
recklessness or gross negligence on Sheriff Berrong’s part:
138. The conduct of the Individual Defendants, in their individual
capacities, was intentional, malicious, willful, wanton and in reckless
disregard of Plaintiff’s constitutional rights and/or grossly negligent in
that this conduct shocks the conscience and is fundamentally offensive to
a civilized society.
Although supervisory liability is available when “training . . . is so reckless or grossly
negligent that future police misconduct is almost inevitable,” Hays, 668 F.2d at 874
(citation omitted), paragraph 138 is merely a collage of common-law labels, with no facts
to underpin the allegation of recklessness or gross negligence. Indeed, “[n]egligence does
20

not become ‘gross’ just by saying so,” and an “allegation of gross negligence . . . will avail
the plaintiff nothing . . . if the facts alleged are not sufficient to make out a constitutional
violation.” Lewellen v. Metro. Gov’t of Nashville & Davidson Cty., 34 F.3d 345, 349 (6th
Cir. 1994) (quotation omitted). “[F]acts alleged in support of [a] legal conclusion of gross
negligence must be sufficient to charge the government officials with outrageous conduct
or arbitrary use of government power.” Id. (quotation omitted). Ms. Colson pleads no facts
in Count Six showing that Sheriff Berrong even knowingly acquiesced in the alleged
unconstitutional conduct, let alone engaged in conduct that is outrageous. The Court will
therefore dismiss Count Six as it pertains to Sheriff Berrong in his individual capacity.
iii. Count Nine: Failure to Provide Adequate Medical Care
Count Nine also lacks sufficient facts to support a plausible claim for supervisory
liability. While Count Nine has no allegations against Sheriff Berrong in its body, it does
have several allegations against him from Count Seven and Count Eight, which Ms. Colson
incorporates into Count Nine by reference:
142. By ratifying Plaintiff’s mistreatment . . . Sheriff Berrong
acquiesced in the unconstitutional conduct of [his] subordinates through
the execution of their job functions.
156. At all times material hereto, Sheriff Berrong authorized the use
of a “restraint chair” at the Blount County Jail[.]
157. The use of the “restraint chair” under the facts of this case on
an inmate who suffers from a severe mental disorder constituted cruel and
unusual punishment, which violated Plaintiff’s rights under the Eighth
and Fourteenth Amendments.
160. The use of the “restraint chair” is expressly prohibited by the
policies and procedures of many corrections facilities, but Sheriff
Berrong has known that the “restraint chair” at the Blount County Jail
21

was being used as punishment for certain inmates, including inmates with
severe mental disorders. He failed to take action to prevent the abuses.
The thrust of these allegations is that Sheriff Berrong implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional behavior against Ms. Colson—the alleged
lack of adequate medical care—by allegedly signing off on his subordinates’ use of the
restraint chair.8 She claims that Sheriff Berrong not only authorized the restraint chair’s
use but also knew that his subordinates were using it to discipline inmates suffering from
mental disorders like her own. [Compl. ¶¶ 156, 160].
As an initial matter, in paragraph 160, the allegation that Sheriff Berrong “kn[ew]
that the ‘restraint chair’ at the Blount County Jail was being used as punishment for certain
inmates, including inmates with severe mental disorders” is a conclusory statement, and
the Court is unable to accept it as true. Cf. Iqbal, 556 U.S. at 680–81 (analyzing a pleading
under the analog to § 1983 and declining to accept as true the conclusory allegation that
the “petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [the
respondent] to harsh conditions of confinement ‘as a matter of policy . . . for no legitimate
penological interest’”). Indeed, this allegation is far afield from the allegation concerning
the director’s knowledge of wrongful conduct in Peatross, in which the estate specifically

8

Although Ms. Colson styles Count Nine as a violation of § 1983 based on inadequate
medical care, the alleged unconstitutional behavior as it relates to Sheriff Berrong is not so much
his failure to provide adequate medical care as it is his authorization of the infliction of
psychological harm, which is a type of harm that can constitute cruel and unusual punishment
under the Eighth Amendment and excessive force under the Fourth Amendment. See Hudson v.
McMillian, 503 U.S. 1, 16 (1992) (Black, J., concurring) (“It is not hard to imagine inflictions of
psychological harm . . . that might prove to be cruel and unusual punishment.” (citing Wisniewski
v. Kennard, 901 F.2d 1276, 1277 (5th Cir. 1990))); see also McDonald v. Haskins, 966 F.2d 292,
295 (7th Cir. 1992).
22

pleaded that the director publicly spoke of a pattern of fifty-four shootings and a need for
improved disciplinary measures. Peatross, 818 F.3d at 243. Because Ms. Colson does not
plead facts showing that Sheriff Berrong had knowledge or notice of the restraint chair’s
use on inmates with mental disorders, she establishes no causal connection or bridge
between his approval of the restraint chair9 and his officers’ alleged unconstitutional
behavior against her. See Claiborne County, 103 F.3d at 511 (stating that the causal link
requires “a show[ing] that a supervisory official at least implicitly authorized, approved or
knowingly acquiesced in the unconstitutional conduct” (emphasis added) (quotation
omitted)); see also Essex, 518 F. App’x at 355 (noting that “[t]here must be some conduct
on the supervisor’s part to which a plaintiff can point that is directly correlated with the
plaintiff’s injury” (citation omitted)). In other words, Sheriff Berrong’s assent to the
restraint chair’s use on the general population, without more, is equally consistent with
negligence. The only remaining issue is whether, without Sheriff Berrong’s knowledge of
the restraint chair’s use on the mentally ill, Ms. Colson alleges a pattern of this type of use
that is so widespread that Sheriff Berrong nevertheless was effectively “on notice of the
need to correct the alleged deprivation.” City of Roseville, 296 F.3d at 440 (quotation
omitted).
At best, Ms. Colson sketches the blurred edges of a pattern of unconstitutional
behavior, alleging that “the ‘restraint chair’ at the Blount County Jail was being used as

In paragraph 156, Ms. Colson’s alleges that “Sheriff Berrong authorized the use of a
‘restraint chair’ at the Blount County Jail[.]” This is not a conclusory allegation. See Riley v. Kurtz,
893 F. Supp. 709, 721 (E.D. Mich. 1995) (“[The allegation] specifically states that defendant
performed a particular action . . . . This is not conclusory.”). The Court therefore accepts it as true.
23
9

punishment for certain inmates, including inmates with severe mental disorders.” [Compl.
¶ 160]. This thumbnail allegation is far too general to allow the Court to draw even a
reasonable inference that a pattern of abuse—of “obvious, flagrant, [and] rampant”
proportions—occurred at Blount County Jail. City of Roseville, 296 F.3d at 440 (quotation
omitted). Ms. Colson must provide the Court with at least some facts from which it can
infer that the restraint chair’s alleged use on the mentally ill was “of continued duration,
rather than isolated occurrences.” Id. at 441 (quotation omitted); see Peatross, 818 F.3d at
243 (supporting allegations of a pattern of misconduct with factual details that included
references to fifty-four shootings in four years and eighteen in one year). In light of the
undeniable insufficiency of Ms. Colson’s allegations against Sheriff Berrong—not only in
this count but in the three other individual-capacity claims against him—the Court cannot
help but note Ms. Colson’s concession in her response that she “was in a poor position to
know the exact contours of Sheriff Berrong’s acts or omissions with respect to her without
the aid of discovery.” [Pl.’s Resp. at 5]. Under Rule 8, however, Ms. Colson is not entitled
to “unlock the doors of discovery . . . armed with nothing more than conclusions.” Iqbal,
556 U.S. at 678–79. The Court will therefore dismiss Count Nine against Sherriff Berrong
as it applies to him in his individual capacity.
iv. Count Ten: Failure to Protect
Count Ten contains no other allegations against Sheriff Berrong except those that
the Court has already found to be factually insufficient to support a claim for supervisory
liability. The Court will therefore dismiss Count Ten as it pertains to Sheriff Berrong in his
individual capacity.
24

4. The State Law Claims
In pursuing dismissal of the state law claims, namely Count Twelve for intentional
infliction of emotional distress and Count Thirteen for negligence, Sheriff Berrong argues
that the Tennessee Governmental Tort Liability Act (“TGTLA”), Tenn. Code Ann. section
29-20-101, gives him immunity from these claims. [Defs.’ Br. at 12]. In the alternative, he
maintains that Ms. Colson does not allege sufficient facts to support them. [Id. at 12–13].
i. Count Twelve: Intentional Infliction of Emotional Distress
To state a plausible claim for intentional infliction of emotional distress—also
known in Tennessee as a claim for outrageous conduct, Rogers v. Louisville Land Co., 367
S.W.3d 196, 204 (Tenn. 2012)—a plaintiff must allege facts showing that the conduct at
issue is (1) intentional or reckless, (2) outrageous, and (3) resulted in a serious mental
injury, Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 31
(Tenn. 2005). The first element’s state-of-mind requirement is “significantly higher” than
that for negligence, and it means that—at a minimum—a defendant has to “be aware of,
but consciously . . . disregard, a substantial and unjustifiable risk,” grossly deviating from
the standard of care. Id. at 39 (citations omitted). When a plaintiff bases a claim for
intentional infliction of emotional distress on reckless conduct, like Ms. Colson does here
in this case,10 that conduct “need not be directed at a specific person or occur in the
plaintiff’s presence.” Rogers, 367 S.W.3d at 205 (footnote omitted) (citing id. at 41).

Ms. Colson alleges that Sheriff Berrong’s “conduct was perpetrated . . . with reckless
disregard of the probability of inflicting[] mental anguish.” [Compl. ¶ 185].
25
10

Next, under the second element, the term “outrageous conduct” is exacting,
requiring conduct “so extreme in degree, as to go beyond all bounds of decency, and to be
regarded as atrocious, and utterly [i]ntolerable in a civilized community.” Doe 1, 154
S.W.3d at 39 (internal quotation marks and quotation omitted). Lastly, the third element
requires a plaintiff to suffer a mental injury that is “particularly serious,” id., which
demands a showing of “significant impairment in [a plaintiff’s] daily life,” Rogers, 367
S.W.3d at 210. The Tennessee Supreme Court has composed a non-exhaustive list of the
types of harm that qualify as a serious mental injury. Id. at 209–10. In addition, inclusive
in the third element is an implicit causal connection between the tortious conduct and the
mental injury. Doe 1, 154 S.W.3d at 31; see Rogers, 367 S.W.3d at 206 (acknowledging
that a claim for intentional infliction of emotion distress is untenable without a “serious
mental injury resulting from the defendant’s conduct” (emphasis added)).
The allegations comprising Ms. Colson’s claim for intentional infliction of
emotional distress are conclusory—no more than a regurgitation of key words and phrases
under Tennessee’s common law—and Ms. Colson does not mount a plausible claim. She
merely pleads that “[t]he conduct . . . was outrageous,” “perpetrated with the intent to
inflict, or with reckless disregard,” and “result[ed] [in] . . . personal injuries.” [Compl.
¶¶ 185, 187]. This Court’s sister courts have refused to accept similar allegations when
reviewing claims for intentional infliction of emotional distress under Tennessee law. See,
e.g., Mhoon v. Metro. Gov’t of Nashville & Davidson Cty., No. 3:16-cv-01751, 2016 WL
6250379, at *3–4 (M.D. Tenn. Oct. 26, 2016). Even when the Court vets the Complaint in
its entirety, see Hishon, 467 U.S. at 73, it still can find no allegations that equate to a
26

plausible claim. Ms. Colson’s assertions of Sheriff Berrong’s failure to train and censure
his officers, as well as his alleged failure to investigate competently their alleged
misconduct—while possibly consistent with negligence—do not evince a state-of-mind
that is “significantly higher” than one for negligence. Doe 1, 154 S.W.3d at 39. Simply,
these assertions, without more, do not take Ms. Colson’s claim beyond the realm of simple
negligence and into the ambits of intentional or reckless conduct.
The causal connection between Sheriff Berrong’s alleged tortious omissions and
any resulting “serious mental injury” to Ms. Colson is therefore too tenuous to establish a
plausible claim. Id. at 31. In fact, Ms. Colson pleads no serious mental injury at all, only
broad assertions of “mental anguish” and “personal injuries.” [Compl. ¶¶ 185, 187]. The
lone factually based mental injury that she claims to have endured was the aggravation of
her preexisting anxiety disorder, which, as alleged, does not constitute the sort of injury
that Tennessee’s courts envision as serious enough to support a claim for intentional
infliction of emotional distress. See Rogers, 367 S.W.3d at 209–10 (describing specific
types of mental injuries that “are pertinent to support a plaintiff’s claim” for intentional
infliction of emotional distress). The Court will therefore dismiss Count Twelve as it
pertains to Sherriff Berrong in his individual capacity.
ii. Count Thirteen: Negligence
To state a plausible claim for negligence, a plaintiff must allege facts establishing
that (1) the defendant owed a legal duty of care to the plaintiff, (2) the defendant engaged
in conduct that was below the applicable standard of care, amounting to a breach of the
legal duty, (3) an injury or loss, (4) cause in fact, and (5) proximate cause. Giggers v.
27

Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009). As an initial matter, the Court
notes that Ms. Colson brings her negligence claims under the TGTLA,11 which governs
liability in tort for Tennessee’s governmental entities and employees and which contains
the codification of Tennessee’s sovereign immunity law. As the fountainhead of sovereign
immunity for Tennessee’s governmental entities,12 the TGTLA insulates them, generally
but not exclusively, from lawsuits for tortious acts. See Tenn. Code Ann. § 29-20-201(a)
(“Except as may be otherwise provided in this chapter, all governmental entities shall be
immune from suit for any injury which may result from . . . the exercise and discharge of
any of their functions, governmental or proprietary.”). In addition to furnishing immunity
to governmental entities, the TGTLA extends immunity to their employees,13 but only
when immunity is unavailable to governmental entities under the statute—or, that is, when
immunity for governmental entities is “removed” by the TGTLA: “No claim may be
brought against an employee . . . [when] the immunity of the governmental entity is

She titles her claim in Count Thirteen as “Tennessee Governmental Tort Liability
Act/Negligence,” [Compl. at 55], and pleads that “[p]ursuant to the Tennessee Governmental Tort
Liability Act, the Defendants owed Plaintiff a duty of care to be free from excessive force and
cruel and unusual punishment and to provide [her] with a safe environment and adequate medical
care while [she] was detained in their custody,” [id. ¶ 192].
12
The definition of a “governmental entity” under the TGTLA is longwinded but includes
“any municipality, metropolitan government, [and] county” in Tennessee. Tenn. Code. Ann. § 2920-102(3)(A).
13
The TGTLA defines an “employee” as “any official (whether elected or appointed),
officer, employee or servant, or any member of any board, agency, or commission (whether
compensated or not), or any officer, employee or servant thereof, of a governmental entity,
including the sheriff and the sheriff's employees and, further including regular members of
voluntary or auxiliary firefighting, police, or emergency assistance organizations.” Id. § 29-20102(2) (emphasis added).
28
11

removed by this chapter[.]” Id. § 29-20-310(b).14 In other words, the TGTLA does not
provide governmental entities and employees with simultaneous immunity.
In one provision in particular, subsection 29-20-205(2), the TGTLA removes
immunity for governmental entities, and by extension provides it to employees, for an
injury “proximately caused by” an employee’s negligent conduct—except when the
negligent conduct causes an injury that “arises out of” a violation of an individual’s civil
rights:
Immunity from suit of all governmental entities is removed for injury
proximately caused by a negligent act or omission of any employee within
the scope of his employment except if the injury arises out of: False
imprisonment pursuant to a mittimus from a court, false arrest, malicious
prosecution, intentional trespass, abuse of process, libel, slander, deceit,
interference with contract rights, infliction of mental anguish, invasion of
right to privacy, or civil rights[.]
Tenn. Code Ann. § 29-20-205(2) (emphasis added).15 When this provision does not result
in the removal of immunity for governmental entities—that is, when the exception applies
because a negligent act “arises out of” a civil rights claim—employees are subject to
liability in their individual capacities for negligence. See Baker v. Snyder, No. 1:05-CV152, 2006 WL 2645163, at *10 (E.D. Tenn. Sept. 14, 2006) (“If the TGTLA does not
remove sovereign immunity from a governmental entity, that entity’s employees can be
liable in their individual capacities.” (citing Baines v. Wilson County, 86 S.W.3d 575, 583

This provision contains an exception for claims “for health care liability brought against
a health care practitioner.” Id. § 29-20-310(b).
15
This Court, in prior case law, construed the term “civil rights” that appears in this
provision to “mean[] and includ[e] claims arising under the federal civils rights laws, e.g., 42
U.S.C. § 1983.” Campbell v. Anderson County, 695 F. Supp. 2d 764, 778 (E.D. Tenn. 2010).
29
14

n.5 (Tenn. Ct. App. 2002), abrogated on other grounds by Young v. City of LaFollette, 479
S.W.3d 785 (Tenn. 2015))).
In short, the issue for the Court is whether, under subsection 29-20-205(2), Ms.
Colson’s negligence claim arises out of her civil rights claims. If so, Blount County has
immunity, and Sheriff Berrong would then be subject to liability for negligence in his
individual capacity, see Tenn. Code Ann. § 29-20-310(b); Baker, 2006 WL 2645163 at
*10—but only of course if Ms. Colson’s allegations amount to a plausible claim for
negligence, see Baines, 86 S.W.3d at 583 n.5 (stating that although the TGTLA creates
individual-capacity liability for employees if a governmental entity is immune, “[i]t is still
necessary that all the elements of the tort are alleged by the plaintiff”). If not, then the
inverse scenario occurs: governmental immunity is removed and Sheriff Berrong, as a
result, would retain immunity as an employee. See Tenn. Code Ann. § 29-20-310(b);
Baker, 2006 WL 2645163 at *10. Ms. Colson argues that Sheriff Berrong is not immune
because her negligence claim arises out of her civils rights claims and triggers the civil
rights exception under subsection 29-20-205(2). [Pl.’s Resp. at 23]. Sheriff Berrong,
however, maintains that subsection 29-20-310(b) provides him with immunity from her
negligence claim. [Defs.’ Br. at 12].
Because the Court already dismissed every § 1983 claim against Sheriff Berrong,
no civil rights claims remain standing against him, and Ms. Colson’s negligence claim
under subsection 29-20-205 cannot arise out of non-existent civil rights claims. See Butler
v. City of Englewood, No. 1:07-cv-184, 2008 WL 4006786, at *13 (E.D. Tenn. Aug. 25,
2008) (stating that the statutory phrase “arises out of” under subsection 29-20-205 means
30

that state law claims must “directly flow from the allegations” comprising a federal civil
rights claim (quotation omitted)). Without an existing civil rights claim from which the
negligence claim against Sheriff Berrong can “directly flow,” id., the negligence claim is
not within subsection 29-20-205(2)’s civil rights exception. As a governmental employee
in Tennessee, Sheriff Berrong is therefore immune under the TGTLA, see Tenn. Code.
Ann. §§ 29-20-102(2), 29-20-310(b), and cannot be subject to liability for Ms. Colson’s
negligence claim against him. The Court will therefore dismiss Count Thirteen as it
pertains to Sheriff Berrong.
B. Officer England
Like Sheriff Berrong, Officer England also seeks dismissal of Count Thirteen by
relying on the TGTLA to argue that she is entitled to immunity. [Defs.’ Br. at 14]. Unlike
Sheriff Berrong, however, she has not pursued or obtained dismissal of Ms. Colson’s civil
rights claims against her under § 1983, which include: (1) excessive force and cruel and
unusual punishment (Count Three and Count Four), (2) failure to administer adequate
medical care (Count Nine), and (3) failure to protect (Count Ten). [Compl. at 36–38, 48–
53]. These claims therefore remain active and contain the following allegations, either in
the body of the claims or by reference from other portions of the Complaint:
11.
England was pressing hard on Plaintiff’s chest with her hand
and Plaintiff tried to move England’s hand with her chin. England reacted
by violently striking the restrained Plaintiff in the face.
13.
Male officers held Plaintiff’s neck while England forced a
helmet onto her head.
37.
At all relevant times, Corrections Officer Mandy England
(“England”), was employed by the BCSD.
31

72.
Plaintiff repeatedly asked for permission to go to the bathroom,
but England responded, “I don’t give a fuck what you asked for,” and
refused to allow Plaintiff a bathroom break. England was eventually
overhead saying, “we don’t even have to worry about it, she’s already
peed.” Plaintiff wound up urinating on herself multiple times, as England
and other officers laughed at her.
113. The totality of circumstances, as fully described above, reveals
that England’s blow to Plaintiff’s face was unreasonable, unnecessary, an
excessive use-of-force, and cruel and unusual punishment.
114. On or about June 23, 2015, England acted under color of law
and her acts deprived Plaintiff of rights secured to her under the
Constitution. Her actions proximately caused injuries to Plaintiff and her
disregard of Plaintiff’s civil rights was done by either actual malice or
deliberate indifference to Plaintiff’s civil rights.
115. England is also individually liable for the violation of
Plaintiff’s civil rights. Plaintiff suffered substantial and serious physical
and psychological injury to [her] body and mind, pain and suffering, and
medical expenses.
Ms. Colson incorporates into her negligence claim these very allegations of
unconstitutional conduct against Officer England. [Id. ¶ 190]. In this claim, she also pleads
that she was owed a legal duty to be free from this unconstitutional conduct,16 specifically
the use of excessive force and cruel and unusual punishment. [Id. ¶ 192]. Without question,
her allegations against Officer England for civil rights violations set the context for her
negligence claim, or phrased differently, her negligence claim “directly flow[s] from
the[se] allegations.” Butler, 2008 WL 4006786 at *13. For the purpose of the TGTLA,

“Whether a defendant owes a duty to a plaintiff in any given situation is a question of
law for the court. . . . to be determined by reference to the body of statutes, rules, principles, and
precedents which make up the law[.]” Jones v. Exxon Corp., 940 S.W.2d 69, 71 (Tenn. Ct. App.
1996). Officer England does not contest whether the TGTLA, or Tennessee law in general,
imposes on governmental employees a legal duty to use reasonable care to keep others free from
invasions of federally protected rights.
32
16

namely subsection 29-20-205(2), her negligence claim therefore arises out of her civil
rights claims under § 1983, see id.; see also Shelton v. Rutherford County, No. 3:08-cv0318, No. 3:08-cv-0413, 2009 WL 2929394, at *12 (M.D. Tenn. Sept. 8, 2009)
(“[N]egligence claims [that] are asserted in the context of a civil rights case and are based
upon the same actions that gave rise to the civil rights claims. . . . fall[] within . . . [the]
immunity [exception] under Tenn. Code. Ann. § [2]9-20-205.” (citation omitted)). Because
her negligence claim arises out of Officer England’s alleged civil rights violations, it
triggers the TGTLA’s civil rights exception, which strips immunity from Officer England.
See Tenn. Code. Ann. § 29-20-205(2); Baker, 2006 WL 2645163 at *10. The Court will
therefore decline to dismiss Count Thirteen as it pertains to Officer England in her
individual capacity.
IV. CONCLUSION
Under § 1983, Ms. Colson fails to allege plausible supervisory liability claims
against Sheriff Berrong in Count Four, Count Six, Count Nine, and Count Ten. As a result,
the Court will dismiss each of these counts as they pertain to Sheriff Berrong in his
individual capacity. In addition, Sheriff Berrong has immunity from Ms. Colson’s
negligence claim in Court Thirteen, which the Court will also dismiss. Officer England,
however, does not have immunity from this claim, and the Court will not dismiss it as it
pertains to her. Sheriff Berrong and Officer England’s Motion to Dismiss [doc. 19] is
therefore GRANTED in part and DENIED in part. The Court orders as follows:
1. Count Four, Count Six, Count Nine, Count Ten, Count Twelve, and Count
Thirteen are DISMISSED but only to the extent that they apply to Sheriff
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Berrong in his individual capacity. These counts remain pending in all other
respects.
2. Officer England SHALL serve a responsive pleading within fourteen days from
the date of this Order.
The Court will enter an order consistent with this opinion.
IT IS SO ORDERED.
ENTER:

s/ Leon Jordan
United States District Judge

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