Fathera v. Smyrna Police Department et al

Filing 71

MEMORANDUM OPINION. Signed by Magistrate Judge E. Clifton Knowles on 5/1/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ROBERT WAYNE FATHERA,

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Plaintiff,

v.

TOWN OF SMYRNA, TN, and
OFFICER GARY SCHOON,
Defendants.

CASE NO. 3:10-01013
JUDGE KNOWLES
JURY DEMAND

MEMORANDUM OPINION
I. Introduction and Background
This matter is before the Court upon a “Motion to Dismiss and for Summary Judgment”
filed by Defendant Town of Smyrna, Tennessee (“Defendant”). Docket No. 47. Defendant
contemporaneously filed a supporting Memorandum of Law. Docket No. 48.
Plaintiff has filed a Response in Opposition to the instant Motion and supporting
Memorandum of Law. Docket Nos. 58, 59.
Defendant has filed a Reply (Docket No. 64), in response to which Plaintiff has filed his
own “Reply” (Docket No. 66).
The parties have consented to have a United States Magistrate Judge conduct all
proceedings in this case. Docket Nos. 38, 40.
Plaintiff, who was originally proceeding pro se and in forma pauperis, but has since

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retained counsel, filed this action alleging violations of his constitutional rights pursuant to 42
USC §1983. See Docket Nos. 1, 3, 17, 24. Plaintiff originally sued Smyrna Police Officer Gary
Schoon and the Smyrna Police Department in their individual and official capacities, seeking
$250,000 from the Smyrna Police Department and $100,000 from Officer Schoon, as well as
training for the Smyrna Police Department regarding police brutality and excessive force. See
Docket No. 1. Upon learning that the Smyrna Police Department was not a proper Defendant in
this action, Plaintiff amended his Complaint to name the Town of Smyrna, Tennessee as a
Defendant.1 See Docket No. 17.
The factual allegations of Plaintiff’s Complaint, in their entirety, are as follows:
(1) On 11/9/09 I Robert Wayne Fathera was stoped by the Smyrna
police department in davidson co. after I evaded arrest from
Rutherford co. Once I stoped I got out of the car lay flat on the
ground with arms extended out to my side. Officer Gary Schoon
came jumped on my back cuffed me and just started hitting me in
my fact many many times causing a gash along my whole right eye
brow, 2 con cussians in my face, a cut on my left eye, crushed
sinusis, nerve damage from nose to my upper teeth.
I was beat so bad I didn’t know where I was, w here I went or how
I got there.
(2) Once I ended up at Smyrna police department I was put in a
holding cell bleeding. Blood dripping on my cloths, I was covered
in it. I was held there 3 hours being questions when I shouldve
been taken to the hospital.
When I was transported to Rutherford County Jail as soon as the
office and I walked in officer Vaughn 3rd shift said, NO! Get him
out of here, your not levening him here were not responsable for
that. Once back in his patrol car he called Lt. Cutshaw on his cell
phone not police radio and said he was taking me to M.T.M.C.
cause the jail wouldn’t take me. The Lt said no bring him back to
stonecrest. We went there and on a few occasions the nurse was
very rough cleaning out my eye, leaving rocks in it which I dug out

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On April 26, 2011, the Smyrna Police Department was terminated as a party in this
action. See Docket No. 28.
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2 weeks later. Once back at the jail the nurse “Lisa” took several
pictures of me thats still on the computer. The next day the nurse
practitioner took more pictures and said she thought I was gonna
lose my eye. If I didn’t resist arrest they hadno right beating me th
way they did. Smyrna police department. / Officer Gary Schoon.
Docket No. 1.2
As noted, this matter is before the Court upon a “Motion to Dismiss and for Summary
Judgment” filed by Defendant Town of Smyrna, Tennessee. Docket No. 47. Although
Defendant has submitted numerous Exhibits and other supporting materials, the undersigned
declines to consider them because the allegations of Plaintiff’s Complaint form a sufficient basis
upon which the undersigned can rule on the instant Motion. Because it is unnecessary for the
undersigned to consider matters outside the pleadings with regard to the instant Motion, the
undersigned will consider the instant Motion as a Motion to Dismiss. See Fed. R. Civ. P. 12.
Defendant is a municipality. Municipalities can be held liable under §1983, but only if a
plaintiff demonstrates that an official municipal policy, practice, or custom caused him injury.
Monell v. NY City Dept. Of Soc. Servs., 436 U.S. 658, 691 (1978). As can be seen in the quoted
passages above, Plaintiff never avers the existence of any municipal policy, practice, or custom,
much less one that caused him injury. Absent such averment, Plaintiff cannot sustain his claim
against Defendant.
Plaintiff’s counsel argues in the supporting Memorandum of his Response that Plaintiff’s
claim against Defendant is that Defendant is liable for Plaintiff’s lack of medical care. Docket
No. 59. Again, Plaintiff fails to allege that any official municipal policy, practice, or custom of

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Plaintiff’s Amended Complaint adds the Town of Smyrna as a Defendant, but does not
contain any new factual allegations. See Docket No. 17.
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Defendant caused him injury; and again, absent such averment, Plaintiff cannot sustain his claim
against Defendant.
For the reasons set forth above, Defendant’s Motion to Dismiss will be GRANTED, and
the Town of Smyrna, Tennessee will be TERMINATED as a party to this action.

AN APPROPRIATE ORDER WILL BE ENTERED.

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E. CLIFTON KNOWLES
United States Magistrate Judge

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