Nissen v. County of Sumner, Tennessee et al

Filing 191

MEMORANDUM AND ORDER: The plaintiff's Objections to the Report and Recommendation are OVERRULED. The Report and Recommendation (Docket No. 175 ) is ACCEPTED and made the findings of fact and conclusions of law of this court. For the reas ons expressed therein, it is hereby ORDERED that the defendants' Motion for Summary Judgment (Docket No. 142 ) is GRANTED, and the plaintiff's federal claims are DISMISSED WITH PREJUDICE. It is further ORDERED that the plaintiffs request that the court exercise its supplemental jurisdiction is DENIED, and the plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE. It is further ORDERED that the plaintiff's request for oral argument is DENIED. Signed by District Judge Aleta A. Trauger on 5/19/15. (xc:Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JUSTIN DANIEL NISSEN,

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Plaintiff,
v.
COUNTY OF SUMNER, et al.,
Defendants.

Case No. 3:13-cv-0842
Judge Trauger

MEMORANDUM AND ORDER
On February 26, 2015, the Magistrate Judge issued a Report & Recommendation (“R&R”
(Docket No. 175), to which the plaintiff, Justin Daniel Nissen, has filed timely Objections
(Docket No. 182), and the defendants have filed a Response (Docket No. 190). The R&R
recommends that (1) the defendants’ Motion for Summary Judgment (Docket No. 142) be
granted, (2) the plaintiff’s federal claims be dismissed with prejudice, (3) the court deny the
plaintiff’s request to exercise supplemental jurisdiction over his state law claims, and (4) the
plaintiff’s state law claims be dismissed without prejudice. For the reasons discussed herein, the
court will overrule the plaintiff’s Objections and accept the R&R.
BACKGROUND1
The plaintiff, who is pro se, is an inmate in the Sumner County Jail (“SCJ”). The
plaintiff was arrested on August 25, 2012, apparently without a warrant, and was held at the SCJ
as a pretrial detainee during the events relevant to this action. He filed this civil rights action
against the County and a handful of individual defendants on August 23, 2013, alleging that
three officers, Lieutenant David Fitch, Officer Ronald Hopkins, and Derick Case (the “Officer

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The background is taken from the R&R.
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Defendants”), used excessive force against him in violation of his rights under the Fourth and
Fourteenth Amendments. The plaintiff further alleged that the officers are liable under
Tennessee law for torts including assault and battery and that Sumner County (“the County”) is
liable under 42 U.S.C. § 1983 for the “unskillfulness” of the officers.
The Magistrate Judge described the facts underlying the plaintiff’s claims extensively in
the R&R, familiarity with which is assumed. Briefly, the plaintiff asserts that, on August 25,
2012, he was arrested and taken to the SCJ on a charge of disorderly conduct. The plaintiff
further alleges that he broke his right hand approximately ten days before his arrest. He testified
at his deposition that he informed the officers who arrested him (who are not parties to this
action) of his injury and also wrote that his hand was broken on an intake form when he arrived
at the SCJ. The plaintiff admits that he did not inform the Officer Defendants that his hand was
broken until after the events giving rise to his claims arose.
The plaintiff testified at his deposition that, while he was awaiting release on bond, he
yelled to his girlfriend, who was being held in an adjacent cell. The plaintiff further testified
that, following his attempt to contact his girlfriend, Fitch and Hopkins entered the plaintiff’s
holding cell and ordered him to sit down and be quiet. The plaintiff admitted that, in response,
he “hollered” back at Fitch and Hopkins. The parties appear to agree that, over the next several
minutes, the plaintiff verbally “acted out” in his holding cell.
Subsequently, Fitch and Hopkins reentered the plaintiff’s cell and again instructed him to
sit down and be quiet. The plaintiff admitted at his deposition that he responded by cursing at
Fitch. According to the plaintiff’s deposition testimony, Fitch and Hopkins began to exit the
holding cell but, at the last second, turned around and removed the plaintiff from his cell.

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The parties’ accounts of the subsequent events differ. The plaintiff claims that, in short,
Fitch and Hopkins (1) pulled his arms behind his back and caused harm to his injured hand,
despite the plaintiff’s informing them at that time that his hand was injured; and (2) caused the
plaintiff to fall, perhaps by pushing the plaintiff so that he tripped over his pants. The plaintiff
further testified at his deposition that, after he was pulled off the floor by Hopkins and Fitch,
Officer Case “manhandled” him in a different cell.
In the R&R, the Magistrate Judge described the events as depicted by a video filed by the
defendants and recorded by a security camera at the jail. The recording lacks audio. The
Magistrate Judge wrote:
A copy of the jail security video . . . shows the following: 1) plaintiff pacing back
and forth in cell 508 for more than two minutes . . .; 2) Fitch going to the door of
the cell and talking to plaintiff; 3) Fitch deciding a few moments later to open the
cell door; 4) plaintiff again up and moving around in the cell; 5) Fitch opening the
cell door with Hopkins in attendance; 6) Fitch entering the cell with Hopkins
remaining in the doorway; 7) Fitch twice pointing his finger at plaintiff and
saying something to him; 8) Fitch turning to leave the cell as Hopkins backs away
from the door; 9) Fitch suddenly turning back and reentering the cell followed by
Hopkins; 10) Fitch and Hopkins pulling plaintiff up/toward them and removing
him from the cell.
The security video shows Fitch and Hopkins escorting plaintiff from the
sergeant’s office and releasing area. . . . The security video shows Hopkins
controlling plaintiff on the right side having hooked his left arm under plaintiff’s
right arm. Plaintiff’s right arm also is extended and straight to the rear. Neither
Officer has hold of plaintiff’s right hand. Plaintiff’s demeanor does not appear to
be that of someone in pain. The security video also shows that plaintiff’s pants
had slipped a couple of inches as he exited the cell, and that they were about to
slip below his buttocks just prior to exiting the sergeant’s office and releasing
area.
...
The second part of the security video shows plaintiff entering the prisoner
entrance and sally area. The security video shows that Fitch has adjusted his hold
on plaintiff and, although he still has plaintiff by the left hand, he has pushed
plaintiff’s left arm up and toward the center of his back in what plaintiff refers to
as a “chicken wing hold.”

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...
The third part of the security video shows plaintiff being escorted into the holding
cell and incoming area beyond. This part of the security video shows that Fitch
has maintained his “chicken wing hold” on plaintiff, and that Officer Hopkins is
not using plaintiff’s right hand to control him as plaintiff’s right arm can be seen
fully extended down at his side.
...
Plaintiff’s knees can be seen to buckle just as he goes through the door from the
holding cell into the incoming area. . . . It cannot be determined from the security
video whether Fitch pushed plaintiff, or whether plaintiff merely tripped over his
pants over which plaintiff appears to stumble at the time he falls. Fitch testified at
his deposition that he did not notice plaintiff’s pants were down around his ankles
until after everyone got off the floor, but not before.
...
Fitch testified that, as plaintiff began to fall, he and Hopkins tried to hold him up,
but that plaintiff pulled them to the ground. The security video shows that Fitch
and Hopkins remain upright initially as plaintiff begins to fall. As he continues to
fall, plaintiff pulls Fitch down . . . [the] security video shows Hopkins take a wide
stance to brace himself, but the plaintiff’s momentum pulls him down as well.
...
The security video shows two other officers enter the room as plaintiff struggles
with Hopkins, bringing the total number of officers in the room to five. The
security video shows plaintiff struggling against Hopkins, at one point nearly
throwing him off.
(Docket No. 175 at 13-15.) Officer Case testified at his deposition that he did not enter the
room where the plaintiff was struggling until after the plaintiff had fallen to the floor. Case
further testified that he was unsure whether the plaintiff was squirming because he was hurt or
because he was trying to escape the officers. Case testified that he saw the plaintiff as a threat
because of his behavior. Case further testified that, after he and Hopkins helped the plaintiff
back onto his feet, the plaintiff resisted when Case and Hopkins were escorting him to a cell to
be handcuffed. Case testified that the plaintiff only stopped resisting after Case threatened to
spray him with pepper spray.
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The Officer Defendants and the County filed the pending Motion for Summary Judgment
on November 14, 2014. (Docket No. 142.) The defendants argue that there are no genuine
issues of material fact in this matter because (1) the Officer Defendants are entitled to qualified
immunity; (2) the plaintiff has failed to demonstrate any custom, policy, or practice of the
County that violates his rights; (3) the Fourth Amendment does not apply to the plaintiff; (4) the
Officer Defendants did not violate the plaintiff’s Fourteenth Amendment rights; (5) the Officer
Defendants did not commit battery; and (6) the plaintiff’s cause of action under Tenn. Code.
Ann. 11-47-190 must be dismissed because the statute does not exist.
The plaintiff opposed the motion on December 16, 2014 (Docket No. 156), and the
defendants filed a Reply in support of their motion on December 30, 2014 (Docket No. 163).
The Magistrate Judge issued the R&R on February 26, 2015. Specifically, the Magistrate Judge
concluded that (1) the defendants are entitled to summary judgment as to the plaintiff’s Section
1983 claim premised on his Fourth Amendment rights because the plaintiff was a pretrial
detainee at all times relevant to the action and, therefore, was not protected under the Fourth
Amendment; (2) the undisputed facts support the conclusion that the Officer Defendants acted in
a good faith effort to maintain and restore discipline and, therefore, there is no Fourteenth
Amendment violation and the officers are entitled to summary judgment on the ground of
qualified immunity; (3) because there is no underlying constitutional violation attributable to the
Officer Defendants, the court cannot impute a violation to their employer, the County, and,
consequently, the County is also entitled to summary judgment; (4) even if the evidence
demonstrated a constitutional violation, the plaintiff has failed to set forth any evidence to
support his claim that the County is liable because it has a policy of inadequate supervision and
discipline of officers who employ excessive force; and (5) the court should decline to exercise its

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supplemental jurisdiction over the plaintiff’s state law claims for assault and battery, which were
pled improperly as claims under Alabama law (Section 11-47-190).
ANALYSIS
I.

Standard of Review
When a magistrate judge issues a report and recommendation regarding a dispositive

pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a specific objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C. §
636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of
Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Objections must be specific; an objection to the
report in general is not sufficient and will result in waiver of further review. See Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995).
II.

The Plaintiff’s Objections to the R&R
The plaintiff filed his Objections to the R&R on March 16, 2015. In a 16-page

memorandum that consists primarily of block quotations from various secondary sources and
(often uncited) federal case law, the plaintiff appears to make four objections with respect to the
R&R: (1) that “summary judgment” as a procedural mechanism is controversial; (2) that the
Magistrate Judge erred because he did not render appropriate assistance to the pro se plaintiff,
including by appointing an attorney; (3) that the Magistrate Judge’s conclusion as to the weight
of the evidence was inaccurate; and (4) that the Magistrate Judge improperly concluded that the
Officer Defendants were entitled to qualified immunity at the summary judgment stage. The
plaintiff also requests that this court permit the parties to engage in oral argument with respect to
the plaintiff’s Objections. Upon review of the Magistrate Judge’s findings, the Objections, and
the record, the court concludes that the plaintiff’s Objections must be overruled.

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A. The Plaintiff’s First, Second, and Third Objections Are Not Specific and Will Be
Overruled
As an initial matter, the plaintiff’s first objection is a general objection to Federal Rule of
Civil Procedure 56, not an objection to a specific issue addressed by the R&R or specific finding
contained therein. Instead, it appears to be a broad criticism of Rule 56 as a pretrial mechanism
for disposition and, therefore, the entirety of the Magistrate Judge’s report. It is well settled that
“a general objection to the entirety of the magistrate judge’s report has the same effect as would
a failure to object.” Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.
1991). Accordingly, the first objection will be overruled.
Similarly, the plaintiff’s second and third objections are not specific and, therefore, will
be overruled. The plaintiff’s second objection does not relate to the R&R and instead, asserts
that the Magistrate Judge failed to provide the plaintiff with proper assistance. Such an objection
is not specific to the R&R and, accordingly, it will be overruled.
The plaintiff’s third objection essentially constitutes a general disagreement with the
Magistrate Judge’s conclusion that there was no genuine issue of material fact in the record with
respect to his Section 1983 claims. The third objection primarily rehashes the arguments made
in the plaintiff’s Response in opposition to the defendants’ summary judgment motion related to
inconsistencies in the record. It is well settled that such an objection is insufficiently specific to
trigger this court’s de novo review. With respect to objections lacking specificity, the Sixth
Circuit has explained:
The district court’s attention is not focused on any specific issues for review,
thereby making the initial reference to the magistrate useless. The functions of
the district court are effectively duplicated as both the magistrate and the district
court perform identical tasks. . . . We would hardly countenance an appellant’s
brief simply objecting to the district court’s determination without explaining the
source of the error. We should not permit appellants to do the same to the district
court reviewing the magistrate’s report.
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Id.
The plaintiff’s first three objections consist of his general disagreement with (1) the
Federal Rules of Civil Procedure; (2) the Magistrate Judge’s treatment of the plaintiff as a party;
and (3) the Magistrate Judge’s determination as to the weight of the evidence in the record.
These objections fail to raise specific concerns with respect to the R&R. Accordingly, the court
finds de novo review unnecessary and will overrule the plaintiff’s first three objections.
B. The Plaintiff’s Fourth Objection Will Be Overruled
The plaintiff’s fourth objection is specific to the R&R. The plaintiff argues that the
Magistrate Judge erred when he concluded that qualified immunity shielded the Officer
Defendants because the undisputed facts establish that the officers acted in good faith to maintain
discipline at the SCJ and, therefore, the plaintiff’s Fourteenth Amendment rights were not
violated. The plaintiff’s “objection” consists in its entirety of a block quote copied from a case
that the plaintiff cites as McCloskey v. Courtnie, No. 05-cv-4641, 2012 WL 646291 (N.D. Cal.
Feb. 28, 2012).2
“Qualified immunity shields from liability for civil damages those officials whose
conduct does not violate clearly established statutory or constitutional rights of which a

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The court notes that it has been unable to find the case as cited by the plaintiff. However, even
if the court were able to locate the correct opinion, the circumstances of the McCloskey case (if it
exists) as described in the quote submitted by the plaintiff are distinguishable from this case.
There, before reaching the issue of qualified immunity, the court had concluded that a dispute of
material fact existed as to whether an incident of excessive force had occurred. The quote, as
copied by the plaintiff, states: “Like in Lolli, the core issue for Plaintiff’s excessive force claim is
a factual determination of the extent of force that was used, and whether that amount of force
was excessive given the circumstances. . . . Because the facts relevant to the issue of qualified
immunity are inextricably intertwined with the disputed facts relevant to the issue of excessive
force, defendants are not entitled to summary adjudication on the issue of qualified immunity.”
(Docket No. 182 at 14.) Here, in the R&R, the Magistrate Judge first concluded that no
questions of fact existed with respect to a constitutional violation before concluding that the
officers were entitled to qualified immunity as to the plaintiff’s claims.
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reasonable person would have known.” Derfiny v. Pontiac Osteopathic Hosp., 106 F. App’x
929, 934 (6th Cir. 2004) (internal citation omitted). In analyzing qualified immunity claims,
courts employ a sequential analysis prescribed by the Supreme Court in Saucier v. Katz, 533
U.S. 194 (2001). “First, plaintiffs must show that defendants deprived them of a right protected
by the Constitution. Second, this right must be so clearly established that a reasonable officer
would understand that his or her actions would violate that right.” Derfiny, 106 F. App’x at 934.
Courts routinely employ this two-step analysis at the summary judgment stage. See, e.g.,
Johnson v. Johnson, 515 U.S. 304 (1995); Anderson v. Creighton, 483 U.S. 635, 640 (1987);
Summers v. Leis, 368 F.3d 881 (6th Cir. 2004).
Here, the Magistrate Judge, upon review of the undisputed facts, concluded that it was
undisputed that the Officer Defendants did not deprive the plaintiff of his constitutional rights.
Consequently, the Magistrate Judge determined that the Officer Defendants are entitled to
qualified immunity and therefore, summary judgment is appropriate for the officers as to the
plaintiff’s claims.
The plaintiff has failed to provide any persuasive legal authority to support his argument
that the Magistrate Judge improperly made a determination as to qualified immunity at the
summary judgment stage. Furthermore, the plaintiff has failed to make a specific objection with
respect to the facts in the record that support the Magistrate Judge’s conclusion. Accordingly,
the plaintiff’s fourth objection will be overruled.
C. The Plaintiff’s Request for Oral Argument Is Denied
The plaintiff’s Objections to the R&R will be overruled and the court will not require
further argument in this case, oral or written. Therefore, the plaintiff’s request for oral argument
will be denied.

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CONCLUSION
For these reasons, the plaintiff’s Objections to the Report and Recommendation are
OVERRULED. The Report and Recommendation (Docket No. 175) is ACCEPTED and made
the findings of fact and conclusions of law of this court. For the reasons expressed therein, it is
hereby ORDERED that the defendants’ Motion for Summary Judgment (Docket No. 142) is
GRANTED, and the plaintiff’s federal claims are DISMISSED WITH PREJUDICE. It is
further ORDERED that the plaintiff’s request that the court exercise its supplemental
jurisdiction is DENIED, and the plaintiff’s state law claims are DISMISSED WITHOUT
PREJUDICE. It is further ORDERED that the plaintiff’s request for oral argument is
DENIED.
Entry of this Order shall constitute final judgment in this action.
It is so ORDERED.
Enter this 19th day of May 2015.
_______________________________
ALETA A. TRAUGER
United States District Judge

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