O'Connor et al v. Cunningham et al

Filing 54

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Waverly D. Crenshaw, Jr on 6/28/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TABETHA O’CONNOR, et al.,
Plaintiffs,
v.
DEPUTY CHISTOPHER
CUNNINGHAM and SUMNER
COUNTY, TENNESSEE,

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NO. 3:13-cv-00229
JUDGE CRENSHAW

Defendants.
MEMORANDUM OPINION
Plaintiffs Tabetha and Ricky O’Connor brought this action on behalf of minor children,
herein referred to as Jane Doe and John Doe, along with the non-minor party Shawn O’Connor.
They filed this action against Defendants Sumner County, Tennessee (“Sumner County”), and
Sumner County Deputy Sherriff Christopher Cunningham, both in his individual and official
capacity, pursuant to 42 U.S.C. § 1983 and Tennessee state law, after Sheriff Cunningham
allegedly violated the minor children and Shawn O’Connor’s constitutional rights. Before the
Court is Sumner County’s motion for summary judgment (Doc. No. 23) and Plaintiffs’ crossmotion for partial summary judgment. (Doc. No. 30.) Because the suit against an individual in his
official capacity is the equivalent as a suit against the governmental entity employing
him, Kentucky v. Graham, 473 U.S. 159, 166 (1985), the motion brought by Sumner County
includes all claims involving Cunningham in his official capacity. For the following reasons,
Sumner County’s motion for summary judgment (Doc. No. 23) is GRANTED IN PART and
DENIED IN PART, and Plaintiffs’ cross-motion for partial summary judgment (Doc. No. 30) is
DENIED.

I.

UNDISPUTED FACTS
On July 26, 2012, at approximately 3:00 a.m., Cunningham stopped thirteen-year-old Jane

Doe, her sixteen-year-old boyfriend John Doe, and eighteen-year-old Shawn O’Connor on a street
in Sumner County. (Doc. No. 23-7 at 1.) Jane Doe and John Doe were in a non-physical argument
over pictures of herself that she sent to another boy. (Doc. No. 23-2 at 17.) Cunningham asked
Jane Doe if John Doe assaulted her, which she denied. (Doc. No. 23-7 at 1.) He then left the boys
in the front of the car and took Jane Doe to the back of his car and asked her to raise her shirt to
her midriff so that he could check for bruises. (Id.) Cunningham then checked her pockets with his
hands. (Id.) At approximately 3:15 a.m., Cunningham transported all three back to Jane Doe’s
residence. (Id.)
At the residence, Cunningham left the two boys unattended inside the patrol car and went
inside the house with Jane Doe. (Id.) Cunningham told Jane Doe not to wake her parents. (Id.)
Cunningham looked through Jane Doe’s mother’s cell phone because that is the phone on which
Jane Doe took the pictures of herself, but she had already deleted the pictures she sent to the other
boy. (Id.) Jane Doe cannot remember if she consented to the search of her mother’s cell phone.
(Doc. No. 23-2 at 28.) Cunningham asked Jane Doe to change into the bra and shirt she was
wearing in the pictures she sent the other boy. (Id.) He left the room while she was changing, but
did not shut the door all the way. (Id.) He took pictures of Jane Doe changing. (Doc. No. 23-5 at
4.)
Based on this conduct, the Sumner County Sheriff’s Office charged Cunningham with
seven policy violations: (1) the mission statement; (2) the code of ethics; (3) violation of law
(unlawful photographs of a minor); (4) truthfulness; (5) on duty conduct; (6) conduct unbecoming

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a deputy; and (7) neglect of duty. (Doc. No. 23-12 at 5.) The Sumner County Sheriff’s Office
terminated Cunningham’s employment. (Doc. No. 23-13 at 3.) Ultimately, the State of Tennessee
charged Cunningham with unlawful photography and violation of privacy and official misconduct,
to which Cunningham pleaded guilty. (Doc. No. 23-10 at 8-9.)
In the seven years prior to the incident, Cunningham had numerous disciplinary actions
taken against him, including: (1) verbal reprimand for tardiness; (2) written reprimand for
reclassifying a trustee to lockdown and leaving his bill fold in pod; (3) written reprimand for
tardiness; (4) verbal reprimand for failing to start and keep round sheets current during shift; (5)
written reprimand for neglect of duty for failing [to] properly process a prisoner who was released
early; (6) written counseling session for failing to operate a vehicle in a safe, conservative, and
lawful manner; (7) written disciplinary record for overbearing conduct while performing duties
and a counseling session for lecturing and scolding a resident upon arriving at a 9-1-1 call. (Doc.
No. 32 at 10-12.) There were also civilian complaints against Cunningham that Sumner County
dismissed, including: (1) complaint by a civilian for an improper stop and rudeness; (2) complaint
by a civilian that Cunningham was rude to his high school daughter and another adult on the scene,
and that Cunningham searched the high schooler’s vehicle without proper permission; (3)
complaint by a civilian claiming to have been pulled over without cause numerous times; and (4)
complaint by a civilian that Cunningham searched the civilian’s daughter’s phone without a
warrant. (Id. at 11.) Regarding the fourth one, Cunningham did not record the alleged-“consent,”
and the investigator suggested that Cunningham should not search cell phones on future stops “for
a better reason than simple traffic violations.” (Id. at 11-12.)
II.

STANDARD OF REVIEW

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In reviewing a motion for summary judgment, this Court will only consider the narrow
question of whether there are “genuine issues as to any material fact and [whether] the moving
party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A motion for summary
judgment requires that the Court view the “inferences to be drawn from the underlying facts . . . in
light most favorable to the party opposing the motion.” Matsushita Elec. Ind. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The opponent, however, has the burden of showing that a “rational trier of fact [could] find for the
non-moving party [or] that there is a ‘genuine issue for trial’” Matsushita, 475 U.S. at 587. “The
mere existence of a scintilla of evidence in support of plaintiff’s position, however, will be
insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). If the evidence offered by the
nonmoving party is “merely colorable,” or “not significantly probative,” or not enough to lead a
fair-minded jury to find for the nonmoving party, the motion for summary judgment should be
granted. Anderson, 477 U.S. at 479-52. “A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Hill v. White, 190 F.3d 427,
430 (6th Cir. 1999) (citing Anderson, 477 U.S. at 247-49).
III.

ANALYSIS
Sumner County argues that it is entitled to summary judgment because there is no evidence

that it was deliberately indifferent and was the moving force behind the deprivation of Plaintiffs’
rights. (Doc. No. 24 at 16.) It further asks the Court to decline to retain supplemental jurisdiction
on the state law claims. (Doc. No. 24 at 24.) Plaintiffs argue that there was an “obvious need to
have policies and proper training with respect to dealing with juveniles and parental notification,”

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and Sumner County had no such policies or training. (Doc. No. 31 at 16-17.) Plaintiffs also ask
the Court to grant them summary judgment on the state law claim. (Doc. No. 31 at 17.)

A. MUNICIPAL LIABILITY
Sumner County asks for summary judgment on the municipal liability claim because there
is no link between its training and the violation of Plaintiffs’ rights. (Doc. No. 24 at 18.)
A municipality cannot be held liable under § 1983 on the basis of respondeat
superior. See Thomas v. City of Chattanooga, 398 F.3d 426, 432-+33 (6th Cir. 2005)
(citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). Under § 1983, a municipality
can be held liable only if the plaintiff demonstrates that the alleged federal violation was a direct
result of the city’s official policy or custom. Burgess v. Fisher, 735 F.3d 462, 478 (6th Cir. 2013)
(citing Monell, 436 U.S. at 693). A plaintiff can make a showing of an illegal policy or custom by
demonstrating one of the following: (1) the existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a custom or
tolerance of, or acquiescence in, federal rights violations. Burgess, 735 F.3d at 478.
Plaintiffs claim only that Sumner County had inadequate training or supervision. The
inadequacy of police training can serve as a basis for § 1983 liability where the failure to train
amounts to deliberate indifference to the rights of persons with whom the police come into
contact. Slusher v. Carson, 540 F.3d 449, 457 (6th Cir. 2008). A plaintiff can establish deliberate
indifference where a violation of her rights is highly predictable, or plainly obvious, consequence
of a municipality’s failure to train. Gregory v. City of Louisville, 444 F.3d 725, 752-53 (6th Cir.
2006). To plead deliberate indifference, the plaintiff may allege prior instances of unconstitutional

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conduct demonstrating that the governmental entity has ignored a history of abuse and was clearly
on notice that the training in this particular area was deficient and likely to cause injury. Slusher,
540 F.3d at 457; Gregory, 444 F.3d at 752-53. In the alternative, where the constitutional violation
is not alleged to be part of a pattern of past misconduct, a plaintiff may plead that a supervisory
official or municipality has essentially completely failed to train the police force or trained it so
that it is so reckless or grossly negligent that future police misconduct is almost inevitable or would
properly be characterized as substantially certain to result. Hays v. Jefferson Cnty., Ky., 668 F.2d
869, 874 (6th Cir. 1982) (citing Leite v. City of Providence, 463 F. Supp. 585, 590-91 (D.R.I.
1978)).
Here, Plaintiffs claim deliberate indifference and that the municipality has essentially
completely failed to train the police force. (Doc. No. 31 at 16-17.) The Court concludes that
Sumner County was not on notice of a deficiency of training in a particular area. Nothing in any
of the disciplinary reports shows that any of the prior complaints were made by minors or parents
of minors. Additionally, even assuming the two complaints made by fathers of high school students
involved minors, the Sumner County Sheriff’s Department dismissed both complaints and there is
no evidence that the dismissals of the complaints were improper. Finally, even if the Court were
to assume that the Sumner County Sheriff’s Department improperly dismissed the last complaint
regarding the search of the cell phone, the investigator warned Cunningham not to search phones
without more reason than just a traffic stop. This is not condoning the actions, but instead providing
further training. There is no proof of deliberate indifference on the part of the Sumner County, nor
is there proof of causation for Cunningham’s constitutional violations in this case. The Court grants
summary judgment to Sumner County on this claim.

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There is also no proof that Sumner County completely failed to train its police force in
dealing with juveniles and parental notification. Sergeant Jeff Puccini testified that every officer
goes to the Tennessee Law Enforcement Training Academy (the “Academy”) in order to get
certified. (Doc. No. 23-5 at 6.) According to the Academy’s syllabus, Cunningham took a class on
juvenile law. (Doc. No. 23-17 at 2.) Plaintiffs do not assert that this training was inadequate, put
forth proof that other officers who took this class had problems with juveniles, or even offer
evidence that Cunningham had a pattern of previous problems with juveniles. 1 See Russo v. City
of Cincinnati, 953 F.2d 1036, 1047 (6th Cir. 1992) (denying summary judgment when plaintiffs
asserted that the training defendant’s officers received was inadequate). Even if the two or three
citizen complaints did involve juveniles and did establish a pattern, those did not involve the
specific constitutional violations in this case, and therefore are inadequate to establish a municipal
liability claim. Connick v. Thompson, 563 U.S. 51, 62-63 (2011). Additionally, Plaintiffs do not
present any authority that requires Sumner County to have a separate written policy regarding
juveniles, and the Court does not know of any. Even if Sumner County unconstitutionally failed
to have a policy, it is undisputed that Cunningham received the proper training regarding juveniles,
and therefore Plaintiffs cannot prove that the lack of policy caused Plaintiffs’ injuries. Therefore,
the Court grants summary judgment to Sumner County on this claim.
B. STATE LAW CLAIM
In their response to Sumner County’s motion for summary judgment, Plaintiffs moved for
partial summary judgment on the state law claims. (Doc. No. 30.) Sumner County is correct that
the dispositive motions deadline was February 13, 2015, and Plaintiffs did not move for summary

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While Cunningham had two or three citizen complaints that may have involved juveniles—although there is no
proof that they did—two or three instances over the course of seven years does not constitute a pattern of wrongful
behavior.
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judgment until March 17, 2015. (Doc. No. 20.) Plaintiffs did not file a motion to extend the
dispositive motions deadline, nor did they offer good cause for filing their dispositive motion three
weeks late. Therefore, the Court denies Plaintiffs’ motion for summary judgment on the state law
claim.
The Court will, however, retain supplemental jurisdiction over the state law claim. The
Court may decline to exercise supplemental jurisdiction over the state law claims if it dismisses
“all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3) (2006). “In determining
whether to retain jurisdiction over state-law claims, a district court should consider and weigh
several factors, including the ‘values of judicial economy, convenience, fairness, and
comity.’” Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010) (quoting CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “When all federal claims are dismissed before
trial, the balance of considerations usually will point to dismissing the state law claims . . . .” Id.
at 952 (quoting Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996)).
Factors that weigh in favor of retaining supplemental jurisdiction include: (1) if the plaintiff
engages in forum shopping; (2) if the parties had completed discovery; or (3) if there are ripe
motions for summary judgment. Id. (citing Harper v. AutoAlliance Intern. Inc., 392 F.3d 195, 21112 (6th Cir. 2004)).
Here, this case has been pending for three years. The parties have completed discovery,
fully-briefed the motions for summary judgment, and trial is approaching in three months. The
relevant factors weigh in favor of the Court retaining supplemental jurisdiction. Therefore, the
Court denies Sumner County’s motion for summary judgment on the state law claim.
IV.

CONCLUSION

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For the foregoing reasons, Sumner County’s motion for summary judgment (Doc. No. 23)
is GRANTED IN PART with respect to the municipal liability claim, and DENIED IN PART
with respect to the state law claim. Plaintiffs’ motion for partial summary judgment (Doc. No. 30)
is DENIED. The Court will file an accompanying order.

IT IS SO ORDERED.

____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE

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