Guy v. The Metropolitan Government of Nashville and Davidson County, Tennessee et al

Filing 121

MEMORANDUM signed by District Judge Waverly D. Crenshaw, Jr on 6/8/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
AMY ELIZABETH GUY,
Plaintiff,
v.
THE METROPOLITAN
GOVERNMENT OF
NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE, and
JANIE ROMINES
Defendants.

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NO. 3:14-cv-01585
JUDGE CRENSHAW

MEMORANDUM OPINION
Plaintiff Amy Guy filed this action, pursuant to 28 U.S.C. § 1983, against Davidson
County, Tennessee, Deputy Sheriff Janie Romines and The Metropolitan Government of Nashville
and Davidson County, Tennessee (“Metro”), after Romines sprayed Guy with a chemical spray
inside the Davidson County Correctional Development Center-Female (the “Correctional
Center”). Before the Court are Romines’s and Metro’s motions for summary judgment. (Docs. No.
77, 82.) For the following reasons, both motions for summary judgment are DENIED.
I.

UNDISPUTED FACTS AND PROCEDURAL HISTORY
The facts relating to the incident are mainly undisputed, as the incident was filmed by the

Correctional Center’s surveillance video.
A. THE INCIDENT
On September 11, 2013, Romines was stationed as the only correctional officer in the O
pod of the Correctional Center. (Doc. No. 94 at 4.) At approximately 2:30p.m., Romines ordered
the inmates congregated in the day room of the O Pod to go to their cells. (Id. at 8-9.) At this point,

Guy, a pretrial detainee, approached Romines at her work station and told her that Guy wanted to
see a nurse. (Id. at 9.) Romines did not respond to Guy’s request, but instead ordered her to return
to her cell. (Id. at 10.) When she did not voluntariliy return to her cell, Romines began to escort
Guy to her cell. (Id.) Guy continued to ask Romines about medical services, and paused multiple
times while being escorted to her cell. (Id. at 11.) After one instance where Guy paused, Romines
claims she believed Guy started turning toward Romines, so she sprayed Guy for one or two
seconds with Freeze +P chemical spray. (Id.) After Romines sprayed Guy with the chemical spray,
Guy put her hand up around her face. (Id. at 12.) Romines claims that Guy’s hand contacted
Romines’s arm, causing two scratches. (Id. at 12.) This incident was filmed from two angles by
the Correctional Center’s surveillance video. (Doc. No. 92.)
After the incident, Romines filed a Disciplinary Incident Report. (Doc. No. 97-8.) She
stated that as she was escorting Guy to her room, Guy stopped. (Id.). Romines stated that she then
took her chemical spray in her right hand and ordered Guy to move, but Guy refused, but instead
slowly started turning and “waving her hand.” (Id.) Romines stated she then sprayed Guy with the
chemical spray. (Id.) Romines stated that after spraying Guy, she became combative, grabbing her
arm and hand. (Id.)
Romines also took out a warrant against Guy for assault of an officer, an A misdemeanor.
(See Doc. No. 97-13 (the General Sessions order dismissing the warrant)). In the warrant, Romines
stated that she “ordered [Guy] to move and she confinued [sic] to refuse. She slowly turned, and
began waiving her hand trying to hit me.” (See Doc. No. 97-12 (email from Guy’s public defender
to the prosecutor)). Guy’s public defender emailed the prosecutor, telling her that the “lie in the
warrant taken out by Officer Jamie Romines horrifies” her. (Id.) The General Sessions judge
dismissed the warrant at the request of the State. (Doc. No. 97-13.)

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B. THE POLICY
The Davidson County Sheriff’s Office (“DCSO”) has two official policies that relate to
officers using chemical sprays on inmates: the DCSO Use of Force Policy, and the DCSO Use of
Chemical Agents Policy. (Docs. No. 97-9, 97-10.)
The Use of Force Policy defines the five levels of perceived action by an individual. (Doc.
No. 97-9 at MG 001305-06.) A passive resistant individual is defined as an individual that is
“unresponsive to requests or commands but generally passive.” (Id.) The Use of Force Policy also
defines what are the appropriate “Reasonable Officer’s Response[s].” (Id. at MG 001306.)
“Controlling/defensive tactics” are defined as steps that “must be taken for self-preservation or
protection of other employees.” (Id.) The use of chemical agents is an example of a
controlling/defensive tactic. (Id.) The Use of Force Policy also provides guidelines for when an
officer should use a chemical agent on an inmate. (Id. at MG 001307.) It allows use of chemical
agents during inmate altercations or if the officer issues the inmate a direct order to stop and the
inmate refuses to comply. (Id.) “Chemical agents will be used to help prevent injuries to
officers/inmates or other subjects in an attempt to gain control of a situation or to help de-escalate
noncompliant behavior.” (Id.)
The DCSO Use of Chemical Agents Policy further defines the situations when officers may
use chemical agents. (Doc. No. 97-10 at 1.) It authorizes the use of chemical agents only for the
following purposes: (1) “to prevent the commission of a felony or misdemeanor;” (2) “in selfdefense and in defending the public, staff and inmates;” (3) “to prevent or halt damage to
property;” (4) “to enforce agency policy and institutional rules and directives;” (5) “to prevent or
quell a disturbance;” and (6) “to prevent escape.” (Id.)

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In her deposition, Romines testified that she believes she is allowed to utilize chemical
agents in “passive resistance.” (Doc. No. 97-2 at 9.) She testified that this opinion is “based on the
training [she] received from the Davidson County Sheriff’s Department.” (Id.)
C. PRIOR DISCIPLINE INVOLVING CHEMICAL SPRAY
Years before the incident at issue here, on February 27, 2009, Romines attended the
Ombudsman School to speak with at risk students. (Doc. No. 97-15.) During her presentation, she
stated, “When you don’t go to your rooms when I tell you to I use this.” (Id.) She proceeded to
pull out her chemical spray and held it above her head. She then told the students, “Anytime you
don’t do what we say we can use this, it is stronger than what the Police have.” (Id.) The DCSO
issued Romines a “Letter of Concern,” informing her that the “director and teachers present were
dissatisfied with your presentation and [ ] requested that you refrain from speaking to their students
in the future.” (Id.) The letter did not mention whether her information regarding the chemical
spray was correct. (See id.)
II.

STANDARD OF REVIEW
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

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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
In her Amended Complaint, Guy asserts two claims against Romines (1) unlawful arrest

and malicious prosecution and (2) excessive force. (Doc. No. 69 at 10-11.) She further alleges that
Metro is liable under the doctrine of municipal liability. (Id. at 11.) In Romines’s motion for
summary judgment, she argues (1) the Court should dismiss Guy’s unlawful arrest and malicious
prosecution claim for lack of proof; (2) the Court should dismiss Guy’s excessive force claim for
lack of proof; (3) the Court should dismiss both of Guy’s claims under the doctrine of qualified
immunity; and (4) the Court should dismiss Guy’s deliberate indifference to serious medical needs
claim for lack of proof, if Guy asserts one. (Doc. No. 78 at 4-5.) In Metro’s motion for summary
judgment, it argues that it is not liable for Guy’s injuries. (Doc. No. 83 at 3.)
A. UNLAWFUL ARREST AND MALICIOUS PROSECUTION
Romines argues that the Court should grant her motion for summary judgment on the
unlawful arrest and malicious prosecution claim because (1) probable cause existed for the
warrant, and (2) the criminal charges were not terminated in Guy’s favor. (Doc. No. 78 at 5-10.)
Guy responds that probable cause did not exist for Romines’s warrant because, even if Guy
scratched Romines’s arm after Romines sprayed her, she did not “intentionally, knowingly, or

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recklessly” cause the scratches, but instead was just trying to protect herself. (Doc. No. 93 at 5-6.)
Additionally, she argues that when the state court dismissed the charge at the request of the state,
that adjudication was in her favor. (Id. at 7.)
Unlawful arrest and malicious prosecution are two separate claims under the Fourth
Amendment. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (quoting Barnes v. Wright,
449 F.3d 709, 715-16 (6th Cir. 2006)). To prove an unlawful arrest claim when the plaintiff’s arrest
was based on a facially valid warrant, the plaintiff must “prove by a preponderance of the evidence
that in order to procure the warrant, [the defendant] ‘knowingly and deliberately, or with a reckless
disregard for the truth, made false statements or omissions that create[d] a falsehood’ and ‘such
statements or omissions [we]re material, or necessary, to the finding of probable cause.” Id.
(quoting Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000)).
To prove a claim of malicious prosecution under the Fourth Amendment, a plaintiff must
prove four elements: (1) “a criminal prosecution was initiated against the plaintiff and [ ] the
defendant made, influenced, or participated in the decision to prosecute;” (2) there “was a lack of
probable cause for the criminal prosecution;” (3) “as a consequence of the legal proceeding, the
plaintiff suffered a deprivation of liberty, as understood in our Fourth Amendment jurisprudence,
apart from the initial seizure;” and (4) “the criminal proceeding must have been resolved in the
plaintiff’s favor.” Sykes, 625 F.3d at 308.
1. Unlawful Arrest
The question of whether Romines’s false statements were material to the finding of
probable cause is a dispute of material fact in this case. Romines concedes, for the purposes of this
motion, that Guy did not wave her hand at Romines and try to hit her. (Doc. No. 78 at 8.) Romines
claims that it is undisputed that Romines believed that Guy scratched her, which is still sufficient

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for probable cause of assault. (Id. at 9.) However, as Guy argues, Romines must have believed that
Guy “intentionally, knowingly, or recklessly” caused the scratches on her arm. There is a disputed
issue of fact as to whether Romines believed that Guy “intentionally, knowingly, or recklessly”
caused the scratches, so the Court denies summary judgment on this element. This is the only
element that Romines contests in the unlawful arrest claim; accordingly, the Court denies summary
judgment on the claim.
2. Malicious Prosecution
There is a question of material fact as to whether probable cause existed for the criminal
prosecution for the malicious prosecution claim. As explained above, it is disputed whether
Romines believed that Guy “intentionally, knowingly, or recklessly” caused the scratches.
Therefore, the Court denies summary judgment on this element.
The criminal proceeding was resolved in Guy’s favor. The Tennessee Supreme Court has
previously held that a “nolle prosequi” constitutes a “termination of the criminal prosecution in
defendant’s favor . . . .” Scheibler v. Steinburg, 167 S.W. 866 (Tenn. 1914). It found that a nolle
prosequi is “a discharge without acquittal, and can be awarded only by the Attorney General and
the court.” Id. The Tennessee Rules of Criminal Procedure allow the state to “terminate a
prosecution by filing a dismissal of an indictment, presentment, information, or complaint.” TENN.
R. CRIM. P. 48(a). The Rules do not refer to a nolle prosequi. Therefore, the Court finds that a nolle
prosequi and a dismissal at the request of the state are the functional equivalents of each other.
Following the Scheibler decision, the Court holds that the dismissal at the request of the state
resolves the criminal proceeding in Guy’s favor. As such, the Court denies summary judgment on
this element. These are the only two elements that Romines contests regarding Guy’s malicious
prosecution claim. The Court denies summary judgment on the claim.

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B. EXCESSIVE FORCE
Romines argues that the Court should grant her motion for summary judgment on the
excessive force claim because: (1) the use of force was de minimis and (2) Romines’s actions were
not objectively unreasonable “from the perspective of a reasonable officer on the scene.” (Doc.
No. 78 at 11-13.) Guy counters that the force that Romines used was not de minimis and was
objectively unreasonable. (Doc. No. 93 at 3-4.)
When a pretrial detainee alleges excessive force, she must prove “that the force purposely
or knowingly used against [her] was objectively reasonable.” Kingsley v. Hendrickson, 135 S.Ct
2466, 2473 (2015). “[O]bjective reasonableness turns on the ‘facts and circumstances of each
particular case.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “A court must make
this determination from the perspective of a reasonable officer on the scene, including what the
officer knew at the time . . . .” Id. A court must “account for the ‘legitimate interests that stem from
[the government’s] need to manage the facility in which the individual is detained,’ appropriately
deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are needed to preserve
internal order and discipline and to maintain institutional security.’” Id. (quoting Bell v. Wolfish,
441 U.S. 520, 540 (1979)).
First, Romines argues that “de minimis use of force does not rise to the level of a
constitutional violation.” (Doc. No. 78 at 12.) She argues that the force she used on Guy was de
minimis because it was only a “short burst of chemical spray towards Plaintiff’s face.” (Id.)
Further, she argues that Guy “did not suffer any permanent or long term physical, mental, or
emotional injury as a result of the use of force incident.” (Id.) However, a “significant injury is
[not] a threshold requirement for stating an excessive force claim.” Wilkins v. Gaddy, 559 U.S.
34, 36 (2010). Instead, the “core judicial injury” is “whether force was applied in a good-faith

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effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id.
(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Here, based on the video and the record
before the Court, there is a disputed issue of a material fact as to whether Romines’s force was
applied in a “good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Therefore, the Court denies summary judgment on this element.
Next, there is a disputed issue of material fact as to whether Romines’s use of force was
objectively reasonable from the perspective of a reasonable officer in her position. Romines
believes she acted reasonably because she knew Guy had a potential for violence, Guy stopped
walking to her room, and Guy turned toward Romines. (Doc. No. 78 at 13.) Guy argues that there
was no reason for Romines to perceive her as a threat when she was only asking for medical
assistance. (Doc. No. 93 at 4-5.) The video also makes this a disputed issue of a material fact for
the jury to decide. The Court denies summary judgment on this element. As these are the only
elements that Romines disputes regarding the excessive force claim, the Court denies summary
judgment on the claim.
C. QUALIFIED IMMUNITY
Romines alleges she is entitled to qualified immunity because she did not violate any of
Guy’s clearly-established constitutional rights. She argues that “a reasonable officer confronted
with the situation in this cases would have acted with at least as much force as the force used by
Officer Romines.” (Doc. No. 78 at 17.)
Qualified immunity is an affirmative defense that shields government officials performing
discretionary functions from liability for civil actions insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The initial question is whether “the facts

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alleged show the [defendant’s] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S.
194, 201 (2001). The next step is to determine whether the constitutional right at issue has been
“clearly established” under the law. Cope v. Heltsley, 128 F.3d 452, 458 (6th Cir. 1997).
Here, there is a dispute of material fact on whether Romines violated Guys’s clearlyestablished constitutional rights. Romines’s only argument for qualified immunity is that she acted
as any reasonable officer would in her situation. As discussed in Section B of this opinion, the
question of whether a reasonable officer would have acted with at least as much force as Romines
did is a disputed issue of a material fact. Again, this is the only argument Romines raises on the
qualified immunity question; accordingly, the Court denies summary judgment on Romines’s
qualified immunity defense.
D. DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS
Romines also moves for summary judgment on Guy’s deliberate indifference to serious
medical needs claim, “[t]o the extent that Plaintiff attempts to assert such a claim . . . .” (Doc. No.
78 at 17-18.) Romines claims that Guy did not prove that she has “a serious medical condition that
supports a claim for deliberate indifference under the Fourteenth Amendment.” (Id. at 18.)
Specifically, Romines refers to the facts that Guy “refused medical treatment only a few hours
before the use of force incident,” she “did not require significant medical treatment after the use
of force,” and she “did not seek medical treatment for a period of weeks or months after she was
released from detention.” (Id. at 18-19.) Guy responds that Romines knew Guy was asking for
medical help and refused to help her. (Doc. No. 92 at 10-11.)
While the Eighth Amendment does not apply to pretrial detainees, the Due Process Clause
of the Fourteenth Amendment provides them with a right to adequate medical treatment that is
analogous to prisoners’ rights under the Eighth Amendment. Gray v. City of Detroit, 399 F.3d 612,

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615-16 (6th Cir. 2005). A detainee’s right is violated “when prison doctors or officials are
deliberately indifferent to the prisoner’s serious medical needs.” Comstock v. McCrary, 273 F.3d
693, 702 (6th Cir 2001). There is an objective and a subjective component to a deliberate
indifference claim. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component
requires the existence of a “sufficiently serious” medical need. Id. A “serious medical need is one
that has been diagnosed by a physician as mandating treatment or one that is so obvious that even
a lay person would easily recognize the necessity for a doctor’s attention.” Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004). To prove the subjective component, a
plaintiff must show that the defendant “subjectively perceived facts from which to infer substantial
risk to the prisoner, that he did in fact draw that inference, and that he then disregarded the
risk.” Dominguez v. Corrections Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009).
Here, a dispute of material fact exists as to whether Guy had a “sufficiently serious”
medical need. In a form signed on the day Romines allegedly was deliberately indifferent to Guy’s
medical needs, a nurse states that Guy refused treatment. (Doc. No. 77-1 at 27.) The form states
that Guy refused medication, specifically “Librium/CIWA/COWS.” The form states that the
potential consequences of refusing the medication includes the worsening of medical conditions,
death, or permanent disability. (Id.) This information is sufficient to create a dispute of material
fact as to whether Guy could meet the objective criteria. Therefore, the Court denies summary
judgment on this element.
Romines does not argue for summary judgment on the subjective element of this claim, so
the Court denies summary judgment on the deliberate indifference to serious medical needs claim.

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E. MUNICIPAL LIABILITY
In its motion for summary judgment, Metro argues that it is not liable for Romines’s actions
because (1) Guy’s harm was not caused by a constitutional violation; and (2) Metro is not
responsible for any violation that did occur. (Doc. No. 83 at 3.) Guy responds that it is a
constitutional violation to use chemical spray on a pre-trial detainee when the detainee is not being
threatening and that Metro is responsible for the constitutional violation because Romines was
following Metro’s Use of Chemical Agents Policy.
Municipalities are “persons” for the purposes of § 1983 liability. Monell v. Dep’t of Social
Servs. of the City of New York, 436 U.S. 658 (1978). However, municipalities cannot be held
liable pursuant to § 1983 under a theory of respondeat superior. Id. at 691; Bd. of Cnty. Comm’rs
v. Brown, 520 U.S. 397, 403 (1997). Instead, “a plaintiff seeking to impose liability on a
municipality under § 1983 [is required] to identify a municipal ‘policy’ or ‘custom’ that caused
the plaintiff’s injury.” Brown, 520 U.S. at 403. The plaintiff must demonstrate that, “through its
deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Id. at 404.
“That is, a plaintiff must show that the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Id.
An officer’s use of a chemical spray on a pretrial detainee who is disobeying direct orders
can be a constitutional violation. Metro’s first argument is that the Constitution allows officers to
use chemical sprays on inmates who are not following direct orders in all situations. (Doc. No. 83
at 3-4.) However, as discussed in Part B of this Section, the question of whether the use of force
is a constitutional violation turns on whether the officer acted in a “good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.” Because there is a dispute as

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to whether Romines acted in a good-faith effort or maliciously, the Court denies summary
judgment on the basis that Romines’s behavior is not a constitutional violation.
Viewing the facts in the light most favorable to Guy, Metro’s Use of Chemical Agents
Policy may be overly broad, allowing officers to use chemical weapons in situations that may not
be objectively reasonable. Guy’s argues that Metro has an “actual written policy permitting its
officers to use chemical weapons to enforce rules, which amounts to punishment.” (Doc. No. 95
at 6.) Metro responds that both the American Correctional Association (“ACA”) and the Tennessee
Corrections Institute (“TCI”) have accredited its training of officers regarding the use of force and
use of chemical agents (Doc. No. 85 at 2), and its policies are not unconstitutional. (Doc. No. 83
at 16.) However, Metro does not deny that its Use of Chemical Agents Policy allows an officer to
use a chemical spray on an inmate who is passively resistant. This, as discussed in Part B of this
opinion, can be a constitutional violation. Therefore, the Court finds the potential existence of an
unconstitutional policy connected to Metro because the Use of Chemical Agents Policy allows the
use of chemical agents in situations that may be unreasonable.
There is a dispute of a material fact on whether the policy was the “moving force” behind
Guy’s injuries. Romines testified in her deposition that she is allowed to utilize a chemical agent
in “passive resistance.” (Doc. No. 97-2 at 9.) She believed that to mean “when you’ve given
directives and they are noncompliant in order to get them to comply with the rules given to them.”
(Id.) She testified that this opinion is based on the training she received from the Davidson County
Sheriff’s Department. (Id.) This is sufficient to raise a dispute of material fact on whether Metro’s
Use of Force Policy was the “moving force” behind Guy’s injuries. Therefore, the Court denies
Metro’s motion for summary judgment on the municipal liability claim.

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IV.

CONCLUSION
For the foregoing reasons, Romines’s motion for summary judgment (Doc. No. 77) is

DENIED. Additionally, Metro’s motion for summary judgment (Doc. No. 82) 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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