McPeters v. Parker et al

Filing 39

MEMORANDUM: The Court will accordingly GRANT the Moving Defendants motion to dismiss (Doc. 9) and DISMISS all of Plaintiffs claims against the Moving Defendants. An appropriate order will enter.Signed by District Judge Curtis L Collier on 3/28/2019. (DJH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

APRIL DIANE McPETERS,
Plaintiff,
v.
TONY C. PARKER, in his individual
capacity and in his official capacity
as Commissioner of the Tennessee
Department of Correction, et al.,
Defendants.

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3:18-CV-39
Judge Curtis L. Collier
Magistrate Judge H. Bruce Guyton

MEMORANDUM
Before the Court is a motion to dismiss filed by five of the six Defendants in this action,
each of whom is an officer or employee of the Tennessee Department of Correction (the “TDOC”):
Tony Parker, the TDOC Commissioner (“Commissioner Parker”); Alisha Shoates James, the
Assistant Commissioner for Community Supervision (“Assistant Commissioner James”); David
Lane, the Correctional Administrator for the East Division of Probation (“Administrator Lane”);
Paul C. Gore, a supervisor within the Division of Probation and Parole (“Officer Gore”); and Wade
A. Adcock, another supervisor within the Division of Probation and Parole (“Officer Adcock”)
(collectively, the “Moving Defendants”). (Doc. 9.) Plaintiff, April Diane McPeters, responded in
opposition (Doc. 20), and the Moving Defendants replied (Doc. 22). For the reasons set out below,
the Court will GRANT the motion to dismiss.

I.

BACKGROUND1
Plaintiff was previously on probation with the state of Tennessee after pleading guilty to

food stamp fraud. At the time of the events giving rise to the Complaint, in late 2016 and early
2017, she had been on probation for approximately five years without incident.
Officer Adcock hired Defendant Bryant Lamont Thomas (“Officer Thomas”) as a
Probation and Parole Officer for the TDOC in May 2016. In late 2016, Officer Thomas was
assigned to supervise Plaintiff. Officer Thomas initially used text messages to communicate with
Plaintiff regarding matters relevant to her supervision. After their second in-person meeting in
Officer Thomas’s office, however, he began to send her informal, conversational text messages.
In February 2017, Officer Thomas told Plaintiff he would be conducting home visits rather
than meetings in his office from then on. After this announcement, Officer Thomas began sending
harassing and exploitive text messages to Plaintiff, including inappropriate personal questions and
requests for sexually explicit pictures.
Officer Thomas arrived at Plaintiff’s home for an ostensible home visit on an unspecified
date in 2017. He was armed and wearing his Probation and Parole Officer badge. He walked
through the house to make sure no one else was there. He then forced Plaintiff to show him
photographs of herself and to delete many of the text messages he had sent her. With his hand on
his firearm, he forced Plaintiff to perform oral sex on him.

1

This summary of the facts accepts all of the factual allegations in Plaintiff’s Complaint
as true. See Gunasekera v. Irvwin, 551 F.3d 461, 466 (6th Cir. 2009).
2

Plaintiff reported the rape to two male officers who are not identified by name.2 She was
subjected to increasingly strict supervision in retaliation for her report. Plaintiff asked Officer
Gore, who was Officer Thomas’s supervisor at the time, to assign her to a female Probation
Officer, but Officer Gore refused to do so. The two male officers to whom Plaintiff had made the
report performed a surprise home visit and purported to find probable cause for new criminal
charges against her. Neither Officer Gore nor Officer Adcock, who was Officer Thomas’s
previous supervisor, followed TDOC procedures requiring a formal report and investigation of
Officer Thomas’s rape of Plaintiff.
Officer Thomas was terminated in 2017 for an unrelated incident.
Plaintiff alleges that the trauma she suffered from the rape and the Moving Defendants’
retaliation against her prevented her from maintaining employment or staying off of drugs, which
then led to her being incarcerated again. Plaintiff also alleges that “[m]ultiple complaints of sexual
harassment and assault have been lodged by female probationers against male Probation and Parole
Officers in the Clinton, Tennessee Probation Field Office and across Tennessee. Officer Thomas
assaulted multiple probationers and/or parolees under his supervision.” (Doc. 1 at 9, ¶ 41.)
Plaintiff filed this action on February 1, 2018. (Doc. 1.) She asserts a single cause of
action against the Moving Defendants, in their respective individual and official capacities, for
violation of her civil rights under 42 U.S.C. § 1983. She asserts causes of action against Officer

2

The chronology of events following Officer Thomas’s rape of Plaintiff is unclear. The
Court has posited the order of events set out in the following paragraph by construing the
Complaint in the light most favorable to Plaintiff. See Gunasekera, 551 F.3d at 466. The exact
order of events is not critical to the Court’s resolution of the motion, however.
3

Thomas for violation of her civil rights under 42 U.S.C. § 1983 and for assault and battery.3 She
also seeks injunctive relief on her civil rights claims against all Defendants, economic and
noneconomic damages against all Defendants, and attorney’s fees and costs. Finally, Plaintiff
seeks certification of a class action for equitable and injunctive relief on behalf of two classes:
(1) the class of all females who have been supervised by the TDOC for probation or parole from
February 1, 2017, on, and (2) the class of all females who have had cause to report sexual
harassment by a TDOC officer and who remain under TDOC supervision because they are
incarcerated, on probation, or on parole.
The Moving Defendants move to dismiss all Plaintiff’s claims against them under Federal
Rule of Civil Procedure 12(b)(1) or 12(b)(6). (Doc. 9.) Plaintiff has responded (Doc. 20), and
the Moving Defendants have replied (Doc. 22). The Court held a hearing on the motion to dismiss
on November 14, 2018. (Doc. 37.)

II.

STANDARD OF REVIEW
A.

Subject-Matter Jurisdiction, Fed. R. Civ. P. 12(b)(1)

When a defendant moves to dismiss for a lack of subject-matter jurisdiction under Rule
12(b)(1), the plaintiff has the burden of proving jurisdiction. Davis v. United States, 499 F.3d 590,
593–94 (6th Cir. 2007). A Rule 12(b)(1) motion may present either a facial attack, which questions
the sufficiency of the pleadings, or a factual attack, which challenges the factual existence of
subject-matter jurisdiction. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). The Moving

3

Plaintiff’s claims against Officer Thomas are not at issue in this motion to dismiss.
4

Defendants do not specify here, but appear to make a facial attack on the sufficiency of Plaintiff’s
pleadings as to Plaintiff’s standing to bring a claim for injunctive relief. “When reviewing a facial
attack, a district court takes the allegations in the complaint as true,” though conclusory allegations
and legal conclusions will not prevent dismissal. Gentek Bldg. Prods. v. Sherwin-Williams Claims,
491 F.3d 320, 330 (6th Cir. 2007).
B.

Failure to State a Claim, Fed. R. Civ. P. 12(b)(6)

A party may move to dismiss a claim for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, a court must accept all of the factual
allegations in the complaint as true and construe the complaint in the light most favorable to the
plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (quoting Hill v. Blue Cross &
Blue Shield of Mich., 49 F.3d 710, 716 (6th Cir. 2005)). The court is not, however, bound to accept
as true bare assertions of legal conclusions. Papasan v. Allain, 478 U.S. 265, 286 (1986).
In deciding a motion to dismiss under Rule 12(b)(6), a court must determine whether the
complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need only contain a
“short and plain statement of the claim showing that the pleader is entitled to relief,” Ashcroft v.
Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)), this statement must
nevertheless contain “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged,” id. at 678. Plausibility as explained by the
Court “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
5

complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 678.
If a party presents matters outside the pleadings in connection with the motion, the court
must either exclude those matters from consideration or treat the motion as one for summary
judgment. Fed. R. Civ. P. 12(d).

III.

DISCUSSION
The Moving Defendants seek dismissal of all claims against them, presented in the

following, sometimes overlapping, categories: (a) Plaintiff’s claims for injunctive relief, on the
grounds that she lacks standing to seek such relief; (b) Plaintiff’s class-action allegations, on the
grounds that she cannot serve as the class representative; (c) Plaintiff’s damages claims against
them in their official capacities; (d) Plaintiff’s claims against them in their individual capacities
for (i) their actions or inactions that allowed the rape to take place, (ii) their alleged retaliation after
the rape, and (iii) their failure to provide medical care after the rape; and (e) all of Plaintiff’s
individual-capacity claims against them, based on qualified immunity.
Plaintiff argues that she is asserting one overarching claim under § 1983, not multiple
standalone claims. But as a practical matter, the Court can only assess the sufficiency of a § 1983
claim by examining the specific violations alleged against the specific defendants. The seriousness
of Plaintiff’s allegations does not change this.
Defendants’ arguments in turn below.

6

The Court therefore considers the Moving

A.

Plaintiff’s Standing to Seek Injunctive Relief

The Moving Defendants move under Rule 12(b)(1) to dismiss all of Plaintiff’s injunction
claims against them for lack of subject-matter jurisdiction. They argue Plaintiff does not have
standing to seek injunctive relief because she has not shown “a non-speculative threat that [she]
will again experience injury as a result of the alleged wrongdoing.” (Doc. 10 at 15 (quoting Werner
v. Primax Recoveries, Inc., 365 F. App’x 664, 668 (6th Cir. 2010).) They point out that Officer
Thomas is no longer employed by TDOC and Plaintiff is no longer on probation, in that she is
currently incarcerated.
Plaintiff responds that an ongoing pattern of abuse against a particular class of targets
conveys standing on members of that class to seek injunctive relief. See Budget Charters, Inc. v.
Pitts, No. 3:17-cv-722, 2018 WL 1745780, at *5 (M.D. Tenn. Apr. 11, 2018). She argues that she
“has identified an ongoing pattern of abuse directed against a particular class of targets,” namely
sexual harassment and assaults of female Tennessee probationers by their male probation officers.
(Doc. 20 at 12 (citing Doc. 1 at 9, ¶ 41).)
Federal courts have subject-matter jurisdiction over “Cases” and “Controversies.” U.S.
Const. art. III, § 2. For a case or controversy to exist, a plaintiff must meet the “irreducible
constitutional minimum” requirements of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555,
559–60 (1992). Those requirements are: (1) an injury in fact; (2) a causal link between the injury
and the defendant’s action or inaction; and (3) a likelihood that a decision in the plaintiff’s favor
will redress the injury. Id. at 560. An injury in fact must be “concrete and particularized,” as well
as “actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks omitted).

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A plaintiff seeking injunctive relief “must show actual present harm or a significant
possibility of future harm.” Blakely v. United States, 276 F.3d 853, 873 (6th Cir. 2002) (quoting
Grendell v. Ohio Sup. Ct., 252 F.3d 828, 832 (6th Cir. 2001)); see also City of Los Angeles v.
Lyons, 461 U.S. 95, 101–10 (1983) (federal courts lack jurisdiction over claim for injunctive relief
where there is no real or immediate threat of future harm). Mere allegations that a plaintiff may
suffer possible injury in the future are not sufficient to satisfy Article III’s standing requirement.
Rosen v. Tenn. Comm’r of Fin. & Admin., 288 F.3d 918, 929 (6th Cir. 2002) (quoting Whitmore
v. Arkansas, 495 U.S. 149, 158 (1990)).
Previous harm from illegal conduct “might be ‘evidence bearing on whether there is a real
and immediate threat of repeated injury,’” but “where the threat of repeated injury is speculative
or tenuous, there is no standing to seek injunctive relief.” Grendell, 252 F.3d at 833 (quoting
Lyons, 461 U.S. at 102). For example, where a plaintiff alleged police had previously placed him
in an illegal choke hold and sought an injunction to prevent it from happening again, the Supreme
Court held the plaintiff had not established a real and immediate threat of being subjected to such
harm again. Lyons, 461 U.S. at 105. Rather,
[i]n order to establish an actual controversy in this case, Lyons would have had not
only to allege that he would have another encounter with the police but also to make
the incredible assertion either, (1) that all police officers in Los Angeles always
choke any citizen with whom they happen to have an encounter, whether for the
purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered
or authorized police officers to act in such manner. Although Count V alleged that
the City authorized the use of the control holds in situations where deadly force was
not threatened, it did not indicate why Lyons might be realistically threatened by
police officers who acted within the strictures of the City’s policy.
Id. at 105–06.

8

The type of evidence required to satisfy a plaintiff’s burden to establish subject-matter
jurisdiction varies depending on the stage of the litigation. Lujan, 504 U.S. at 561. “At the
pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element” of
jurisdiction. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Plaintiff has failed to allege sufficient facts to demonstrate standing to seek injunctive
relief. The Complaint is devoid of allegations of a likelihood of future harm to herself. She alleges
injury from a past violation of her rights—Officer Thomas’s sexual harassment and rape of her,
followed by alleged retaliation and failure to aid by Moving Defendants—but she never alleges a
likelihood of future harm. In her response to the Moving Defendants’ motion, she does assert it is
likely she will return from incarceration to probation or parole.4 (Doc. 20 at 13.) She stops short,
however, of asserting that she is likely to suffer sexual harassment, assault, or retaliation by a
probation officer if she is returned to probation or parole. Instead, she relies on Budget Charters,
arguing she is within the particular, limited class of targets of an ongoing pattern of abuse by male
probation officers. (Doc. 20 at 12–13.)
In Budget Charters, the district court “look[ed] at the substance of the plaintiff’s allegations
to assess ‘the reality of the threat of repeated injury.’” Budget Charters, 2018 WL 1745780, at *5
(quoting Lyons, 461 U.S. at 107 n.8). The plaintiff, a bus company from Philadelphia, alleged
there was an ongoing scheme by Tennessee police targeting out-of-state tour buses, and that the
plaintiff bus company was continuing to operate tours into the state of Tennessee. The district

4

Plaintiff relies generally on a report she attaches to her response, entitled “Tennessee
Felon Population Update, April 2018.” (Doc. 20 at 13 (citing Doc. 20-2).) This is a twenty-two
page document containing various statistics. Plaintiff does not direct the Court to any specific part
of the document, and the Court has not searched the document for potentially relevant information.
9

court distinguished the “much more specific abuse” and the more limited class of potential targets
from the allegations in Lyons, 461 U.S. 95, in which the risk of the plaintiff’s being a second time
subjected to a choke hold by police was significantly more speculative. Budget Charters, 2018
WL 1745780, at *6.
Here, Plaintiff’s alleged past injury is some evidence of a future risk. Something that has
happened once, may, generally speaking, happen again. She has also alleged the existence of “a
system in which Probation and Parole Officers abuse their authority to violate the rights of those
under their supervision.” (Doc. 1 at 13, ¶ 65.) But Plaintiff’s Complaint as a whole does not show
either actual present harm or a significant possibility of future harm to herself. See Blakely, 276
F.3d at 873. While there may be a reasonable possibility that Plaintiff will in future be placed on
probation or parole, to say that she would at that time be subjected a second time to sexual
harassment, rape, or retaliation by a probation officer is mere speculation. She does not, as in
Budget Charters, allege the existence of a scheme in which female probationers or parolees are
affirmatively targeted for harassment and abuse. She alleges only a “system” in which such abuses
may occur, one experience of abuse against herself, and a general allegation of other instances of
abuse.5
Despite the reasonable possibility of Plaintiff’s again being under supervision at some point
in time, the allegations in this case are more like those in Lyons, where there was only a speculative
risk that the plaintiff, among all the citizens of Los Angeles, would again be arrested and placed

5

As discussed below, Plaintiff’s general allegation of other reports of abuse provides no
information on their respective dates, locations, or recipients, or on the total number of such
reports, other than that they are “multiple.” Infra § III(D)(1)(a) (citing Doc. 1 at 9, ¶ 41).
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in a chokehold for no reason, than they are like those in Budget Charters, in which the plaintiff
was within the relatively small subset of out-of-state tour buses being targeted by an alleged police
scheme. Plaintiff’s allegations of harm are serious. But they do not show a significant possibility
she will suffer future harm at the hands of probation or parole officers. Plaintiff therefore lacks
standing to seek injunctive relief, and this Court lacks jurisdiction over her claims for injunctive
relief.
B.

Class Allegations

Defendants argue that because Plaintiff lacks standing to bring a claim for injunctive relief,
she cannot serve as class representative. See Rosen v. Tenn. Comm’r of Fin. & Admin., 288 F.3d
918, 928 (6th Cir. 2002) (class representative must have personal standing at the start of litigation).
Plaintiff does not dispute this legal premise, but argues she has standing to seek injunctive relief,
as discussed above. Because the Court concludes Plaintiff lacks standing to seek injunctive relief,
she cannot serve as class representative, and the class allegations must be dismissed.
C.

Damages from Defendants in their Official Capacities

The Moving Defendants ask the Court to dismiss Plaintiff’s official-capacity claims against
them for damages for failure to state a claim under Rule 12(b)(6). The Moving Defendants assert
as grounds their Eleventh Amendment immunity and that § 1983 does not create a cause of action
against a state, or an individual acting in his or her official capacity for the state, because a state is
not a “person” under § 1983.
Plaintiff concedes the Moving Defendants are correct as a legal matter. She asserts the
Moving Defendants have misinterpreted her Complaint as asserting a damages claim against them

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in their official capacities. To the extent her Complaint is unclear, she asks for leave to amend to
clarify that she is not seeking damages against any Defendant in an official capacity.
Plaintiff’s Complaint does appear to seek damages against the Moving Defendants in their
official capacities, in that it does not distinguish between the Defendants’ different capacities in
her demand. (Doc. 1 at 20, ¶ 4 (seeking judgment “against Defendants for economic and
noneconomic damages”).) Neither a state nor a state actor in his or her official capacity is a
“person” subject to a suit for damages under § 1983. Wolfel v. Morris, 972 F.2d 712, 718–19 (6th
Cir. 1992). An official-capacity action against a state actor seeking prospective relief, such as an
injunction, by contrast, is not treated as an action against the state, and a state official sued in an
official capacity therefore is a “person” under § 1983 in a suit for injunctive relief. Id. at 719; see
also Hamilton’s Bogarts, Inc. v. Mich., 501 F.3d 644, 654 n.8 (6th Cir. 2007). The Court will
grant the motion to dismiss as to Plaintiff’s claim for damages against the Moving Defendants in
their official capacities.
D.

Plaintiff’s Individual-Capacity Claims

The Moving Defendants ask the Court to dismiss Plaintiff’s individual-capacity claims
against them for failure to state a claim under Rule 12(b)(6). These portions of the motion are
directed towards Plaintiff’s claims for damages and injunctive relief. Because the Court lacks
subject-matter jurisdiction of Plaintiff’s claims for injunctive relief, supra § III(A), the Court will
consider the parties’ arguments only as to Plaintiff’s individual-capacity damages claims.
1.

Actions or Inactions Before the Rape

The Moving Defendants ask the Court to dismiss Plaintiff’s individual-capacity claims
against them on the circumstances that led up to the rape itself, namely the failure to train or
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supervise Officer Thomas and the failure to establish policies to prevent sexual assault against
probationers.6
a.

Failure to Train or Supervise

The Moving Defendants argue they cannot be held liable for any alleged failure to train or
supervise Defendant Thomas leading up to the rape. They argue individual supervisory liability
cannot be founded on a mere failure to act; there must be some active participation by the
supervisor in unconstitutional behavior. See Gregory v. City of Louisville, 444 F.3d 725, 751 (6th
Cir. 2006) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). Such active
participation requires, at a minimum, that the supervising defendant “at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct.” Peatross v. City of Memphis,
818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee v. Luttrell, 99 F.3d 293, 300 (6th Cir. 1999)).
Theories of individual supervisory liability are, in this way, stricter than theories of municipal
liability for a failure to train or supervise employees, which may be premised on a failure to act.
See Essex v. Cty. of Livingston, 518 F. App’x 351, 355 (6th Cir. 2013). Defendants point out that
the Complaint contains no allegation of active participation by Defendants in this case; the
Complaint alleges merely that the Defendants failed to “properly hire, train, and supervise” TDOC
employees. (See Doc. 1 at 4–5, ¶¶ 2–6.)

6

Plaintiff mentions the Moving Defendants’ respective duties “to properly hire, train, and
supervise” TDOC employees in the “Parties” section of her Complaint. (Doc. 1 at 4–5, ¶¶ 2–6
(emphasis added).) She makes no further allegations about what Defendants did wrong in hiring
Defendant Thomas, nor does she otherwise mention a negligent hiring claim in her Complaint.
Therefore, it appears she is not asserting a negligent hiring claim in this action.
13

Plaintiff essentially agrees with the law cited by Defendants on this point. She argues,
however, that deliberate indifference can also satisfy the requirement for active participation
through implicitly authorizing, approving, or knowingly acquiescing in unconstitutional conduct
of a subordinate. See Howard v. Knox Cty., Tenn., 695 F. App’x 107, 113 (6th Cir. 2017) (plaintiffs
sufficiently alleged defendant’s knowledge of teacher’s abuse of students such that defendant’s
inaction could constitute deliberate indifference and support supervisory liability under § 1983).
She argues that, as alleged in Paragraph 41 of the Complaint, there have been “[m]ultiple
complaints of sexual harassment and assault” in the Clinton office and elsewhere in the state, and
that Defendant Thomas has assaulted multiple women under his supervision. (See Doc. 1 at 9,
¶ 41.) Plaintiff also attaches to her response an exhibit consisting of media reports about physical
and sexual assaults by probation officers on their probationers in the United States. (Doc. 21-1,
Pl.’s Ex. A.)

Plaintiff argues these widespread reports are sufficient to show deliberate

indifference by Defendants. To the extent the consideration of such reports would prevent
dismissal of the Complaint, she asks leave to amend in order to allege them.
The Court of Appeals for the Sixth Circuit has explained that deliberate indifference in an
individual supervisory liability case
. . . is a question of proportionality. The court should first take into consideration
the information available to the supervisor at the time, and whether the information
available to the supervisor showed a strong likelihood that the defendant would
engage in similar behavior in the future. . . . Next the court must consider whether,
in light of that information, the . . . official’s response rises to the level of deliberate
indifference.
Howard, 695 F. App’x at 113–14 (citations and internal quotation marks omitted). A complaint
containing allegations of “numerous examples where parents and students complained to [the

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supervisory defendant] about specific incidents of abuse” was sufficient to satisfy the first
requirement, for example. Id. at 114 (emphasis in original).
As the Moving Defendants argue, Plaintiff has not sufficiently alleged supervisory claims
against any Defendant in this case. She has alleged no active participation by any Moving
Defendant leading up to the rape. In her response, she points to Officer Gore’s and Officer
Adcock’s general duties to train Officer Thomas in their respective roles as his supervisors (Doc.
20 at 2 (citing Doc. 1 at 4–5, ¶¶ 5, 6)), and her Complaint alleges a failure by Commissioner Parker,
Assistant Commissioner James, and Administrator Lane to implement policies to prevent sexual
misconduct and to report sexual misconduct (Doc. 1 at 9, ¶¶ 43, 44). None of these allegations
shows an implicit authorization, approval, or knowing acquiescence in Officer Thomas’s rape of
Plaintiff.
Turning to Plaintiff’s arguments on deliberate indifference as satisfying the requirement
for active participation, the Court must consider the information available to each Moving
Defendant before the rape and whether it showed a strong likelihood that Officer Thomas would
engage in similar behavior in the future. See Howard, 695 F. App’x at 113–14. The Court must
then consider whether each Moving Defendant’s response, or lack thereof, to that information rises
to the level of deliberate indifference. See id.
The Complaint speaks in generalities of “multiple complaints” in Clinton and across
Tennessee. (Doc. 1 at 9, ¶ 41.) There is no information on the specific content of these complaints,
the relative number that were made about the Clinton office, or the dates on which the complaints
were made. There is also no information on the people to whom they were made, including
whether any of the complaints were made to any of the Moving Defendants, or whether any of the
15

Moving Defendants had knowledge of the complaints. This is significantly different from the
specific complaints that were alleged to have been made to specific supervisory defendants in
deliberate-indifference cases. See, e.g., Howard, 695 F. App’x at 114. The Court cannot conclude
the information alleged in the Complaint showed a strong likelihood Officer Thomas would engage
in similar behavior in the future. Nor have the allegations in the Complaint shown more than a
“sheer possibility” that the information referred to in the Complaint was known to any of the
Moving Defendants. See Iqbal, 556 U.S. at 677–78.
The Complaint also alleges that Officer Thomas himself “assaulted multiple probationers
and/or parolees under his supervision.” (Doc. 1 at 9, ¶ 41.) This allegation is similarly devoid of
specifics. There is no information on the dates of the assaults, the jurisdictions in which they took
place, or even that there had been reports of such assaults, let alone whether any of the Moving
Defendants had knowledge of those assaults. The allegation about Officer Thomas therefore does
not change the degree to which the information available to any of the Moving Defendants
indicated a likelihood that Officer Thomas would engage in similar behavior in the future.
Nor would granting Plaintiff leave to amend her Complaint to include the news stories in
Exhibit A change the Court’s analysis. None of the stories Plaintiff attaches to her response
address incidents in the state of Tennessee, let alone the Clinton field office, and none are particular
to Officer Thomas. (Doc. 21-1.) They therefore would not strengthen the degree to which the
information available to the Moving Defendants indicate a likelihood of such behavior by Officer
Thomas in the future, even if Moving Defendants had been aware of the reports in Exhibit A.
Because the matters in Exhibit A to Plaintiff’s response would make no difference to the Court’s

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analysis, the Court does not grant Plaintiff leave to amend her Complaint to include them, and does
not consider them further in its analysis of the Moving Defendants’ motion to dismiss.
Considering the non-specific information and the lack of any allegation of such knowledge
by any particular Moving Defendant, the Court concludes that each Moving Defendant’s alleged
failure to properly train or supervise Officer Thomas does not rise to the level of deliberate
indifference.
Plaintiff’s reliance on cases involving a failure to train police officers in the use of
excessive force are off point. See, e.g., Coley v. Lucas Cty., 799 F.3d 530 (6th Cir. 2015) (sheriff’s
failure to train and supervise officers in use of excessive force and to investigate allegations of use
of excessive force, and false statements during investigation, showed knowing acquiescence in use
of excessive force); see also Peatross, 818 F.3d 233 (failure to train and supervise in use of
excessive force and to investigate allegations of use of excessive force, and attempted coverup,
showed knowing acquiescence in use of excessive force). The use of force is a foreseeable part of
a police officer’s job responsibilities, and courts have frequently recognized the need for training
on the degree to which that use is permissible. Plaintiff has pointed to no similar cases involving
sexual assault. On the other hand, the Moving Defendants have pointed to a number of cases
offering persuasive authority for the proposition that failing to train or establish policies against
sexual assault by law enforcement officers does not give rise to liability under § 1983.7 See infra
§ III(D)(1)(b).

7

These cases also show a greater level of specificity as to the allegations of knowledge by
the defendants of prior wrongful acts than the Complaint in this matter provides.
17

b.

Failure to Establish Policies to Prevent Sexual Assault

The Moving Defendants ask for dismissal of Plaintiff’s claims based on a failure to
establish or enforce policies against sexual harassment and assault. Defendants point to a number
of cases from district courts in the Sixth Circuit, and from courts elsewhere, holding that failing to
train or establish policies against sexual assault by law enforcement officers does not give rise to
liability under § 1983. See, e.g., Williams v. City of Detroit, No. 07-14858, 2009 WL 3059150
(E.D. Mich. Sept. 24, 2009); Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996). Plaintiff
makes no response to this caselaw. The Moving Defendants are entitled to dismissal of the portion
of Plaintiff’s claims predicated on Defendants’ alleged failure to establish or enforce policies or
training to prevent sexual harassment and assault.
2.

Retaliation After the Rape

The Moving Defendants ask the Court to dismiss the claims against them for retaliation
after the rape, arguing the claims are threadbare legal conclusions that lump all of the Defendants
together without describing individual action by any of them. Plaintiff alleges that the Moving
Defendants collectively provided her with no recourse after the attack (Doc. 1 at 8, ¶ 33);
revictimized her (id. ¶ 34), in that they subjected her to increasingly strict supervision (id.) and
“authorized, approved, directed, and/or permitted the Probation and Parole Officers to whom Ms.
McPeters had reported the rape to search her home” (id. ¶ 37); and failed to investigate or report
the rape (id. at 9, ¶ 39). Such general allegations against all of a group of defendants collectively
are not sufficient to state a claim against any of them. See, e.g., Marcilis v. Township of Redford,
693 F.3d 589, 596 (6th Cir. 2012) (dismissing Bivens claim where complaint made only categorical
references to defendants).
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Plaintiff does allege that Officer Gore, specifically, refused Plaintiff’s request for a female
probation officer. (Doc. 1 at 8, ¶ 35.) But Plaintiff has offered no authority to show she had a
right to be supervised by a female probation officer. The Court cannot conclude that refusing to
assign a probation officer of a specific requested gender is a violation of a supervisee’s civil rights.
3.

Failure to Provide Medical Care After the Rape

The Moving Defendants ask the Court to dismiss Plaintiff’s claims against them for failing
to provide counseling, treatment, and care to her after the rape. Defendants argue they had no duty
to provide such care to Plaintiff because she was not in their custody in such a way as to restrain
her ability to obtain care for herself. See Peete v. Metro. Gov’t of Nashville & Davidson Cty., 486
F.3d 217, 223 (6th Cir. 2007) (state officers’ constitutional duty to provide medical care to
incarcerated prisoners and those under similar restraint); Bown v. Vore, No. 3:07-cv-375, 2007 WL
4224408, at *1 (S.D. Ohio Nov. 27, 2007) (probation officer does not have custody of probationer
unless he has made arrest and therefore has no constitutional duty to obtain medical care).
Plaintiff does not dispute the accuracy of the Moving Defendants’ legal premise. Instead,
she responds that she is not asserting a stand-alone claim for failure to obtain medical care or for
any other type of retaliation, but is making those allegations as part of her “over-arching § 1983
claim.” (Doc. 20 at 11 n.7.) But the Court can only assess the sufficiency of a § 1983 claim by
examining the specific violations alleged against specific defendants. Because the Moving
Defendants had no duty to provide counseling or other medical care to Plaintiff under these
circumstances, Plaintiff cannot state a claim against the Moving Defendants for violation of her
constitutional rights on these grounds.

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E.

Qualified Immunity

A defendant is entitled to qualified immunity if a court concludes either that the defendant
did not violate a constitutional right of the plaintiff or that the plaintiff’s relevant constitutional
right was not clearly established. Peatross, 818 F.3d at 240. The Moving Defendants argue they
are entitled to qualified immunity because, for the reasons described above, none of them violated
any of Plaintiff’s constitutional rights. Plaintiff attempts to show a violation of her constitutional
rights through Defendants’ alleged deliberate indifference, but she has not pleaded allegations
sufficient to show deliberate indifference or any other violation of her constitutional rights. See
supra § III(D). Therefore, in the alternative to the grounds above for dismissing Plaintiff’s claims
against the Moving Defendants, they are entitled to qualified immunity.

IV.

CONCLUSION
The Court lacks jurisdiction over Plaintiff’s claim for injunctive relief against the Moving

Defendants in both their individual and official capacities because Plaintiff lacks standing to assert
these claims. Supra § III(A). Her class allegations fail because, without standing, she cannot serve
as the class representative. Supra § III(B). Plaintiff’s claim for damages against the Moving
Defendants in their official capacities cannot proceed under 42 U.S.C. § 1983. Supra § III(C).
Her claims for damages against the Moving Defendants in their individual capacities fail to state
claims on which relief can be granted. Supra § III(D). The Moving Defendants are also entitled
to qualified immunity on Plaintiff’s claims. Supra § III(E). The Court will accordingly GRANT
the Moving Defendants’ motion to dismiss (Doc. 9) and DISMISS all of Plaintiff’s claims against
the Moving Defendants.
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An appropriate order will enter.

/s/____________________________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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