Wiggins v. Metropolitan Government of Nashville-Davidson County, Tennessee et al

Filing 99

REPORT AND RECOMMENDATION: The undersigned recommends that: (1) Defendant Norris'Partial Motion to Dismiss (Docket No. 59) be GRANTED, and that Plaintiff's unlawful detention/false arrest claim and conspiracy claims against him be DISMISS ED; (2) DefendantLogan's Motion to Dismiss (Docket No. 62) be GRANTED, and that Plaintiff's claims against it be DISMISSED; (3) Defendant Kevin Crotts' Motion for a Partial Dismissal of Plaintiff's First Amended Complaint (Dock et No. 68) be GRANTED as to Plaintiff's unlawful detention / false arrest claim and conspiracy claims, and that those claims against him be DISMISSED, but DENIED AS MOOT with regard to Counts I, III, V, and VIII, as those claims are not asser ted against him; (4) Defendants Tim Brewer, William Hampton, and James Dunaway's Motion to Dismiss (Docket No. 71) be GRANTED, and that Plaintiffs claims against them be DISMISSED; (5) Defendant Metro Govt.'s Motion to Dismiss (Docket No. 75) be GRANTED, and that Plaintiff's claims against it be DISMISSED; and (6) Defendant Keith McNamara's Motion to Dismiss (Docket No. 79) be GRANTED, and that Plaintiff's claims against him be DISMISSED. Signed by Magistrate Judge E. Clifton Knowles on 11/25/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

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

JERALD WIGGINS,
Plaintiff,
v.
METROPOLITAN GOVERNMENT OF
NASHVILLE-DAVIDSON COUNTY,
TENNESSEE, et al.
Defendants.

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Case No. 3:14-cv-01950
Judge Haynes / Knowles

REPORT AND RECOMMENDATION
This matter is before the Court upon two Partial Motions to Dismiss Plaintiff’s Amended
Complaint (Docket Nos. 59, 68), and four Motions to Dismiss Plaintiff’s Amended Complaint
(Docket Nos. 62, 71, 75, 79). The first Partial Motion to Dismiss is filed by Defendant Matthew
Norris (Docket No. 59), while the second is filed by Defendant Kevin Crotts (Docket No. 68).
The first Motion to Dismiss is filed by Defendant Logan’s Roadhouse, Inc. (Docket No. 62); the
second is filed by Defendants Tim Brewer, William Hampton, and James Dunaway (Docket No.
71); the third is filed by Defendant Metropolitan Government of Nashville-Davidson County,
Tennessee (“Metro Govt.”) (Docket No. 75); and the fourth is filed by Defendant Keith
McNamara (Docket No. 79). In support of their Motions, Defendants have filed corresponding
Memoranda of Law. Docket Nos. 60, 63, 69, 72, 76, 80.
Plaintiff has filed a “Consolidated Response to Defendants’ Motions to Dismiss.” Docket

No. 87. With leave of Court, Defendants have filed Replies. Docket Nos. 94, 95, 96, 97.1
Plaintiff, who is represented by counsel, filed his Amended Complaint on April 9, 2015,
arguing that Defendants violated his Fourth and Fourteenth Amendment rights “pursuant to 42
U.S.C. 1983, 1985 and the common and statutory laws of the State of Tennessee.” Docket No.
53. Specifically, Plaintiff avers as follows:
GENERAL ALLEGATIONS
13.

On or about October 7, 2013, Plaintiff, who was parked at a
Logan’s Roadhouse restaurant located at 1715 Gallatin Pike
North, Madison, was approached by one or more of the
individually named Defendant police officers and accused
of engaging in criminal conduct. Defendant police officers
situated their vehicles behind Plaintiff’s car such that
Plaintiff could not leave and drew their service weapons
and pointed them at the plaintiff.

14.

The person parked adjacent to the plaintiff, Jackie Carter, a
white male, was approached by Defendant Crotts and
questioned while Defendant Norris approached the
plaintiff, an African American male, to be questioned.

15.

Jackie Carter claimed that the plaintiff sold him drugs at
which point Defendant Crotts ordered Defendant Norris to
arrest the plaintiff and place him in handcuffs, which Norris
did.

16.

Plaintiff was handcuffed and made to sit on the ground
beside his car.

17.

The other individually named defendant officers appeared
on the scene and commenced to search Plaintiff’s car.

18.

Four to five of the individually named officers, including
Norris and Crotts, began putting on purple surgical gloves

1

Docket No. 94 is a Joint Reply filed by Defendants Kevin Crotts and Matthew Norris.
Likewise, Docket No. 96 is a Joint Reply filed by Defendants Tim Brewer, James Dunaway,
William Hampton, and Keith McNamara.
2

and starting chanting “nuts and butts, nuts and butts.”
19.

Defendant Crotts questioned the plaintiff if he had anything
on him and said that if he did he was “going down”. Crotts
then told the plaintiff that he would be taken into the
Logan’s restroom to be searched.

20.

Either Defendant Crotts or Norris contacted their
supervisor, Defendant Sgt. Dunaway, and obtained
departmental approval to conduct a “more in-depth” search
of the plaintiff in the Logan’s restroom per departmental
policy. Sgt. Dunaway, after being made aware
of their intentions, approved the search in a public
restroom.

21.

When Plaintiff protested and said he did not feel
comfortable going into a public bathroom, Crotts pushed
him through the door of the restaurant.

22.

Once in the restaurant, Crotts asked the General Manager of
the Logan’s, Gerald Dorfler, if they could use the restaurant
bathroom for a search of the plaintiff to which the General
Manager agreed.

23.

Once in the bathroom, Plaintiff, with both Crotts and Norris
present, again protested by saying he did not feel
comfortable being searched in a public restroom. Crotts
pushed the plaintiff over a sink with one hand on his neck
and with the other hand started to remove Plaintiff’s pants
and underwear. All while the plaintiff was still handcuffed.

24.

Plaintiff protested again and in desperation and with his
pants and underwear already pulled down, said that he
would squat and cough.

25.

In response, Crotts said, “no, that ain’t going to get it. I got
to go in you.”

26.

Plaintiff started to resist and told Crotts that he was not
going to let him go in his ass and to take him to the
hospital.

27.

Crotts became extremely angry and hit the plaintiff with his
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closed fist on his face.
28.

Plaintiff yelled for help as loud as he could. In fact, Plaintiff
yelled so loud that the General Manager heard it along with
several patrons eating their meals in close proximity
to the bathroom.

29.

Upon hearing the yelling, the General Manager, Gerald
Dorfler, went to the back of the restaurant where the other
officers were congregated and told them of the yelling. Two
of the other officers responded to the bathroom where
Dorfler saw them go in.

30.

Defendant Norris stood by or assisted while all of this was
happening.

31.

After the punch to the face, Plaintiff was thrown to the
ground by both Crotts and Norris and put face down on the
dirty public restroom floor with his pants and underwear
pulled down.

32.

While on the floor of the public restroom and held down by
Norris, Crotts proceeded to penetrate the plaintiff’s rectum
with his finger in search of drugs.

33.

After Crotts completed his rectal digital penetration, he and
Norris further discussed what had just occurred while
leaving the plaintiff on the floor fully exposed and still
handcuffed with his hands behind his back.

34.

Plaintiff was then escorted back outside where the other
individually named officers taunted him about letting
Jackie Carter go free.

35.

In drafting the affidavit of complaint, Crotts failed to
mention that he punched the plaintiff or that Plaintiff had
yelled for help and resisted the search and instead deceived
the judicial commissioner into finding probable cause by
omission of pertinent facts.

36.

Norris, likewise filed false reports failing to detail what had
actually happened in the bathroom and claiming that
Plaintiff gave his consent for a strip search.
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37.

The other person detained at the Logan’s, Jackie Carter, a
white male who admitted that he was in possession of
drugs, was not forced to submit to a digital rectal
penetration like the plaintiff, who is African American.
Crotts and Norris are both white as are all the other
individually named defendants.

38.

Some of the restaurant patrons were so disturbed by
Plaintiff’s yelling for help that the General Manager had to
offer them free meals to account for the disturbance.

39.

After the plaintiff was arrested and in jail, his girlfriend,
Kara Childers, filed a complaint on Plaintiff’s behalf with
Metro’s Office of Professional Responsibility.

40.

Even though Dunaway had given approval to conduct a
more “in-depth” body search of the plaintiff in a public
bathroom, he was assigned to conduct the investigation.

41.

As part of the investigation, Dunaway interviewed Norris
on January 28, 2014. On January 29, 2014, the day after his
interview where he was informed of the allegations
against him, Norris drafted a supplemental report that
claimed that after “retrieving the narcotics, Mr. Wiggins
began to yell and scream in an attempt to create a
disturbance.” This part of the supplemental report was
never mentioned in any previous statements made by
Norris.

42.

However, in his answer to Plaintiff’s complaint (D.E. 1),
Norris claims that the plaintiff’s “yelling loudly” occurred
at “some point”, not specifying that the yelling occurred
after the search like in his supplemental report.

43.

As part of the investigation, Dunaway interviewed Crotts
on January 28, 2014. Crotts referred to his original report
and stated that everything he did was pursuant to
department policy.

44.

Despite the other individually named officers being aware
that Crotts and Norris were taking the plaintiff into the
bathroom for a “more in-depth” body search and despite
several of them seeing the plaintiff lying naked on the
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bathroom floor, none submitted any use of force reports or
reported the unlawful digital rectal search to superiors in
the department, all in an apparent coverup of what had
happened.
45.

Dunaway, after interviewing Norris and Crotts, to whom he
had given permission to take the plaintiff into a public
restroom for a “more in-depth” body search, concluded that
both “officers conducted themselves with professionalism,
and at no point was force used against Jerald Wiggins nor
was he abused physically or verbally.”

46.

Plaintiff was charged in a two count indictment. Count 1
alleged that the plaintiff was in possession with intent to
sell over .5 grams of cocaine. This count was in reference
to drugs pulled out of Plaintiff’s rectum after the digital
penetration by Crotts.

47.

Count 2 was for the sale of less than .5 grams of cocaine.
This was in reference to the drugs that were alleged to have
been sold to Jackie Carter in the Logan’s parking lot
before the plaintiff was ever taken into the restroom.

48.

On February 6, 2015, Plaintiff pled guilty to Count 2,
relating to the sale of drugs in the parking lot.

49.

Count 1, relating to the drugs found after the digital
penetration of the plaintiff’s rectum in the restroom, was
dismissed by the State.

50.

To this day, no officers have been disciplined or counseled
in any way about this incident nor about conducting body
cavity searches in public restrooms.

Id.
Plaintiff sues Defendants Logan’s Roadhouse, Metro Govt., Crotts, Norris, Dunaway,
Hampton, McNamara, and Brewer for violating his rights under § 1983, and Defendants Crotts,
Norris, Dunaway, Hampton, McNamara, and Brewer for violating his rights under § 1985. Id.
He further sues Defendant Logan’s Roadhouse for negligence; Defendants Crotts and Norris for
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assault and battery; and Defendants Metro Govt., Crotts, Norris, Dunaway, Hampton,
McNamara, and Brewer for violation of Tenn. Code Ann. § 40-7-121. Because Plaintiff does not
specify the capacity in which he sues the individual Defendants, Plaintiff sues the individual
Defendants solely in their official capacities as “sworn police officers.” See id.; Wells v. Brown,
891 F.2d 591 (6th Cir. 1989). Plaintiff seeks compensatory and punitive damages, injunctive
relief, attorneys fees and costs, and other such relief as the Court deems just. Id.
For the reasons discussed below, the undersigned recommends that: (1) Defendant
Norris’ Partial Motion to Dismiss (Docket No. 59) be GRANTED, and that Plaintiff’s unlawful
detention / false arrest claim and conspiracy claims against him be DISMISSED2; (2) Defendant
Logan’s Motion to Dismiss (Docket No. 62) be GRANTED, and that Plaintiff’s claims against it
be DISMISSED3; (3) Defendant Kevin Crotts’ Motion for a Partial Dismissal of Plaintiff’s First
Amended Complaint (Docket No. 68) be GRANTED as to Plaintiff’s unlawful detention / false
arrest claim and conspiracy claims, and that those claims against him be DISMISSED, but
DENIED AS MOOT with regard to Counts I, III, V, and VIII, as those claims are not asserted
against him4; (4) Defendants Tim Brewer, William Hampton, and James Dunaway’s Motion to

2

Because Defendant Norris’ Motion is a Partial Motion to Dismiss which seeks
dismissal of Plaintiff’s unlawful detention / false arrest claims and conspiracy claims, only those
claims should be dismissed; Plaintiff’s remaining claims against him should proceed at this
juncture.
3

As noted, Plaintiff’s sole federal claim against Defendant Logan’s is his § 1983 claim.
Because the undersigned recommends that Defendant Logan’s Motion to Dismiss be granted, the
undersigned recommends that this Court should decline to exercise its supplemental jurisdiction
over Plaintiff’s negligence claims against Defendant Logan’s, and Defendant Logan’s should be
terminated as a party to this action.
4

Because Defendant Crotts’ Motion seeks partial dismissal of the claims discussed, only
those claims should be dismissed; Plaintiff’s remaining claims against him should proceed at this
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Dismiss (Docket No. 71) be GRANTED, and that Plaintiff’s claims against them be
DISMISSED; (5) Defendant Metro Govt.’s Motion to Dismiss (Docket No. 75) be GRANTED,
and that Plaintiff’s claims against it be DISMISSED; and (6) Defendant Keith McNamara’s
Motion to Dismiss (Docket No. 79) be GRANTED, and that Plaintiff’s claims against him be
DISMISSED.
II. Law
A. Fed. R. Civ. P. 12(b)(6)
Fed. R. Civ. P. 12(b)(6) provides that a claim may be dismissed for failure to state a claim
upon which relief can be granted. In order to state a claim upon which relief can be granted, a
complaint must contain either direct or inferential allegations respecting all material elements to
sustain a recovery under some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.
2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Id. A complaint containing a statement of facts that merely creates a suspicion of a
legally cognizable right of action is insufficient. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955,
1965 (2007). The “[f]actual allegations must be enough to raise a right to relief above the
speculative level”; they must “state a claim to relief that is plausible on its face.” Id. At 1965,
1974. See also, Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th
Cir. 2007).
Moreover, the United States Supreme Court has recently addressed the appropriate
standard that must be applied in considering a Motion to Dismiss for failure to state a claim. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Iqbal Court stated in part as follows:

juncture.
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Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice . . . . Rule
8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss . . . . Determining whether a
complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. . . . But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not “show[n]” - “that the pleader
is entitled to relief.”
556 U.S. at 678-79 (citations omitted).
B. 42 U.S.C. § 1983
Plaintiff alleges violations of his Fourth and Fourteenth Amendment rights pursuant to 42
U.S.C. § 1983. See Docket No. 1. Section 1983 provides, in part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress...
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48, 108 S. Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct.

9

1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams,
474 U.S. 327, 330-331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)); Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action have exercised
power “possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” Id. at 49, 108 S. Ct. 2255, quoting United States v. Classic, 313
U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941).
C. 42 U.S.C. § 1985(3)
Generally, § 1985 prohibits class-based conspiracies to deny an individual his civil rights.
See 42 U.S.C. § 1985.
42 U.S.C. § 1985 states as follows:
(1) Preventing officer from performing duties
If two or more persons in any State or Territory conspire to
prevent, by force, intimidation, or threat, any person from
accepting or holding any office, trust, or place of confidence under
the United States, or from discharging any duties thereof; or to
induce by like means any officer of the United States to leave any
State, district, or place, where his duties as an officer are required
to be performed, or to injure him in his person or property on
account of his lawful discharge of the duties of his office, or while
engaged in the lawful discharge thereof, or to injure his property so
as to molest, interrupt, hinder, or impede him in the discharge of
his official duties;
(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to deter,
by force, intimidation, or threat, any party or witness in any court
of the United States from attending such court, or from testifying to
any matter pending therein, freely, fully, and truthfully, or to injure
such party or witness in his person or property on account of his
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having so attended or testified, or to influence the verdict,
presentment, or indictment of any grand or petit juror in any such
court, or to injure such juror in his person or property on account of
any verdict, presentment, or indictment lawfully assented to by
him, or of his being or having been such juror; or if two or more
persons conspire for the purpose of impeding, hindering,
obstructing, or defeating, in any manner, the due course of justice
in any State or Territory, with intent to deny to any citizen the
equal protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the laws;
(3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State
or Territory the equal protection of the laws; or if two or more
persons conspire to prevent by force, intimidation, or threat, any
citizen who is lawfully entitled to vote, from giving his support or
advocacy in a legal manner, toward or in favor of the election of
any lawfully qualified person as an elector for President or Vice
President, or as a Member of Congress of the United States; or to
injure any citizen in person or property on account of such support
or advocacy; in any case of conspiracy set forth in this section, if
one or more persons engaged therein do, or cause to be done, any
act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of having
and exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
Id.
The Sixth Circuit enumerated the following elements of a conspiracy claim under § 1985:
(1)

a conspiracy involving two or more persons;

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(2)

for the purpose of depriving, directly or indirectly, a person
or class of persons of the equal protection of the laws; and

(3)

an act in furtherance of the conspiracy;

(4)

which causes injury to a person or property, or a
deprivation of any right or privilege of a citizen of the
United States.

See, e.g., Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir.
2007); Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534,
1538-39 (6th Cir. 1987); Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994).
Courts have construed the language of the second element, above, as requiring plaintiffs
to allege that the conspiracy in question was motivated by a class-based animus, such as race.
See Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1998).
Section 1985(3) conspiracy claims must be pled with some degree of specificity. See,
Ctr. for Bio-Ethical Reform, Inc., 477 F.3d at 832; Vakilian, 335 F.3d at 518; Gutierrez, 826 F.2d
at 1538-39.
D. Qualified Immunity
The individual Defendants have asserted that they are qualifiedly immune from liability.
Qualified immunity is “an immunity from suit rather than a mere defense to liability.” Saucier v.
Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Qualified immunity
generally shields government officials performing discretionary functions from liability for civil
damages “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, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1983). The right at issue “must have been

12

articulated with a significant degree of particularity,” (Eugene D. v. Karman, 889 F.2d 701, 706
(6th Cir. 1989), so that it is sufficiently clear to a reasonable official that his or her conduct
would violate the right at issue. Qualified immunity is available as long as the official’s actions
“could reasonably have been thought consistent with the rights [he or she is] alleged to have
violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523
(1987).
The initial inquiry and threshold question, according to the Supreme Court, is: “Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Id., citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.
Ct. 1789, 1973, 114 L. Ed. 2d 277 (1991). If no constitutional right was violated, there is no
necessity for further inquiry. Id.
A critical question is whether “any official in the defendants’ position would understand
that what he did violated those rights.” O’Brien v. City of Grand Rapids, 23 F. 3d 990, 999 (6th
Cir. 1994). Qualified immunity, therefore, “does not turn on the subjective good faith of the
official; rather, it turns on the ‘objective legal reasonableness’ of his actions, assessed in light of
the legal rules that were ‘clearly established’ at the time the actions were taken.” Id., (quoting
Harlow, 457 U.S. at 818-19). “If officers of reasonable competence could disagree on whether
the conduct violated the plaintiff’s rights,” qualified immunity will apply. Id., (quoting
Grossman v. Allen, 950 F. 2d 338, 341 (6th Cir. 1991)(citations omitted).
III. Analysis
As noted, the instant Report and Recommendation addresses six pending Motions. The
undersigned will address each in turn.
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A. Defendant Norris’ Partial Motion to Dismiss (Docket No. 59)
Defendant Matthew Norris filed his Partial Motion to Dismiss and accompanying
Memorandum of Law on April 17, 2015, arguing that: (1) Plaintiff’s unlawful detention / false
arrest claim brought pursuant to 42 U.S.C. § 1983 should be dismissed because Plaintiff pled
guilty to the criminal matter that underlies this cause of action, thereby conclusively establishing
probable cause for his arrest; and (2) Plaintiff’s conspiracy claim brought pursuant to 42 U.S.C.
§ 1985(3) should be dismissed because Plaintiff has not plead that claim with the requisite
specificity, as his Amended Complaint fails to include any facts establishing how a conspiracy
was purportedly formed, much less that a conspiracy existed. Docket Nos. 59, 60. Defendant
Norris further contends that Plaintiff’s conspiracy claim is barred by the intra-corporate
conspiracy doctrine. Id.
As noted above, Plaintiff has filed one Consolidated Response addressing all six of the
instant Motions. Docket No. 87. As pertains to the unlawful detention / false arrest claim
arguments raised by Defendant Norris, Plaintiff concedes that he does not contest the lawfulness
of his initial detention, and the “Court can grant the motion to dismiss on this sub-claim.” Id., p.
2-3.5 Regarding Defendant Norris’ civil rights conspiracy claim arguments, Plaintiff maintains
that he pled eleven specific allegations that sufficiently establish the requisite elements of this
claim, such that his § 1985 claim may survive Defendant Norris’ Partial Motion to Dismiss. Id.,
p. 6-8. Plaintiff further argues that Defendant Norris’ citation of the “intra-corporate conspiracy
5

Plaintiff concedes that he was under full arrest at the time he was taken into the Logan’s
restroom and does not contest the lawfulness of the original detention and arrest; he does,
however, maintain that his body cavity search that took place inside the Logan’s restroom was
unlawful and that he was the victim of excessive force during that body cavity search. Docket
No. 87, p. 5.
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doctrine” is misplaced, as: (1) Plaintiff does not allege that the individual Defendants conspired
with the municipal defendant, Defendant Metro Govt., to violate his rights, but rather, alleges
that the individual Defendants conspired with each other to violate his rights; (2) it cannot
“possibly be construed that the individual police officers who are alleged to have raped the
plaintiff in the Logan’s restroom were acting on behalf of the municipal corporation while they
were committing the rape”; and (3) it cannot be construed that the individual police officers were
“pursuing [the municipality’s] lawful business” in the process. Id., p. 8-9. Plaintiff argues,
therefore, that the individual Defendants can be held liable for conspiring with each other to
violate his rights. Id.
Defendant Norris has filed a Joint Reply with Defendant Kevin Crotts, reiterating
Plaintiff’s concession that he did not intend to include language about unlawful detention / false
arrest in his Amended Complaint, and asserting that the eleven facts cited by Plaintiff as support
for his argument that he has sufficiently pled conspiracy actually fail to do so. Docket No. 94.
Specifically, Defendant Norris contends that: (1) “merely being present at the scene of a
constitutional violation does not establish a conspiracy”; and (2) “merely communicating about a
particular situation or incident does not establish a conspiracy.” Id., p. 3. Defendant Norris
maintains that Plaintiff’s allegations “do not in any way suggest an agreement to violate
Plaintiff’s equal protection rights or any sort of shared racial animus;” and in fact, fail to “suggest
an agreement about anything at all.” Id., p. 4. Defendant Norris asserts that the allegations of
Plaintiff’s Amended Complaint instead “simply suggest that the officers in the same unit worked
together on an arrest and search.” Id. Defendant Norris reiterates his contention that Plaintiff’s
conspiracy claim should be dismissed. Id.
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As discussed above, in order to allege a viable conspiracy claim under 42 U.S.C.
§ 1985(3), Plaintiff must plead, with some degree of specificity: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges or immunities of the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States. See, e.g., Ctr. for Bio-Ethical
Reform, Inc., 477 F.3d at 832; Vakilian, 335 F.3d at 518; Gutierrez, 826 F.2d at 1538-39. As can
be seen in the factual allegations set forth in Plaintiff’s Amended Complaint, recounted above,
Plaintiff has failed to so plead. Accordingly, Plaintiff cannot sustain his conspiracy claim against
Defendant Norris.
Because Plaintiff does not contest dismissal of his unlawful detention / false arrest claim,
and because Plaintiff has failed to plead the elements of conspiracy with the requisite specificity,
these claims should be DISMISSED, and Defendant Norris’ Partial Motion to Dismiss (Docket
No. 59) should be GRANTED.
B. Defendant Logan’s Roadhouse Inc.’s Motion to Dismiss (Docket No. 62)
Defendant Logan’s Roadhouse, Inc. (“Logan’s”), filed its Motion to Dismiss, supporting
Memorandum of Law, and Collective Exhibits A-D, on April 21, 2015, arguing, inter alia, that
Plaintiff’s claims against it should be dismissed because: (1) Plaintiff does not allege that
Defendant Logan’s had any involvement in the surveillance, apprehension, arrest of Plaintiff, or
the decision by the police to conduct either a search or a body cavity search; (2) Plaintiff does not
allege that Logan’s knew that police intended to conduct a body cavity search (Plaintiff alleges
only that the body cavity search was illegal); (3) Plaintiff does not factually allege that Logan’s
16

was a state actor; (4) Plaintiff does not allege that the Logan’s manager acted pursuant to a
company rule, policy, or procedure when he allegedly allowed the officers to use the restaurant
bathroom; and (5) Plaintiff does not allege that Logan’s acquiesced to any alleged unlawful
conduct of its manager.6 Docket Nos. 62, 62-1, 62-2, 62-3, 62-4, 63.
Plaintiff responds, “while it is accurate to say that Plaintiff ‘does not allege that the
Logan’s manager knew that the officers in the restroom were involved in any unlawful conduct
or who or why someone was yelling’, the ‘General Manager’ clearly was aware that the police
intended to use Logan’s restroom to conduct a search of a handcuffed individual and agreed to
allow his restaurant’s restroom to be the location of the search.” Docket No. 87, p. 20. Plaintiff
contends that “Logan’s granting permission to the police to use its bathroom for what clearly was
an intended search of a handcuffed African American by white police officers was the proximate
cause of his injuries in that bathroom.” Id.
Regarding Defendant Logan’s assertion that Plaintiff failed to factually allege that
Logan’s was a state actor, Plaintiff responds, “the complaint clearly puts Logan’s on notice that it
‘act[ed] as a government agent by allowing the use of its premises for an intrusive body cavity
search and under color of law . . .’ violated Plaintiff’s rights.” Id., p. 21. Plaintiff argues that
Logan’s does not have to be an officer of the State to act “under color of law,” but rather, can
simply be a “willful participant in joint activity with the State or its agents.” Id., citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 150 (1970). Plaintiff notes that the Sixth Circuit has held that
6

Defendant Logan’s also argues that this Court lacks subject matter jurisdiction over
Plaintiff’s claims against it because Plaintiff’s claims are barred by Heck v. Humphrey. Because
the undersigned recommends dismissal based upon substantive grounds, the undersigned will not
discuss Defendant Logan’s Heck arguments, Plaintiff’s responses thereto, or Defendant Logan’s
arguments in reply. See Docket Nos. 62, 87, 97.
17

“Private persons jointly engaged with state officials in a deprivation of civil rights are acting
under color of law for purposes of § 1983.” Id., citing Hooks v. Hooks, 771 F.2d 935, 943 (6th
Cir. 1985). Plaintiff asserts that the Sixth Circuit “has recognized as many as four tests to aid
courts in determining whether challenged conduct is fairly attributable to the State: (1) the public
function test; (2) the state compulsion test; (3) the symbiotic relationship or nexus test; and
(4) the entwinement test.” Id., citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992);
Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 298 (2001).
Plaintiff states:
The state-compulsion test requires “proof that the state
significantly encouraged or somehow coerced the private party,
either overtly or covertly to take a particular action so that the
choice is really that of the state.” Amer. Postal Workers Union,
Local 96 v. City of Memphis, 361 F.3d 898, 905 (6th Cir. 2004).
The nexus test “requires a sufficiently close relationship between
the state and the private actor so that the action taken may be
attributed to the state.” Id. A private individual acts under color of
state law when “he has acted together with or has obtained
significant aid from state officials.” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982).
Thus, the complaint, by alleging that the Logan’s General Manager
agreed to the police request to use the Logan’s bathroom to
conduct a law enforcement search for drugs of a handcuffed
individual, infers that the general manager “acted together with”
the state officials. He also effectively turned the Logan’s
restaurant into a police precinct or jail where persons in custody are
searched for contraband.
Id., p. 21.7
As to Defendant Logan’s argument that a private party cannot be held liable under a
theory of respondeat superior, Plaintiff argues that he “makes no such derivative § 1983 claim,”
7

Plaintiff does not discuss the public function test. See id.
18

but instead, argues that “a private actor can be liable for a policy or custom of that private party
under § 1983 the same as a municipality.” Id., p. 22, citing Monell v. New York City Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). Plaintiff contends that the decision to allow the police to
search him in the Logan’s restroom was made by the General Manager of that Logan’s facility.
Id. Plaintiff argues that the General Manager would have been the highest ranking Logan’s
employee on site and therefore was the “official policymaker” who decided whether the facility’s
restroom could be used by police to conduct searches, such that liability can impugn. Id.
In its Reply, Defendant Logan’s reiterates its argument that Plaintiff’s Amended
Complaint simply alleges that the officers brought Plaintiff into the Logan’s restaurant and asked
to use the restroom to search him; it does not allege that the restaurant manager knew why the
search was being conducted, whether Plaintiff had consented to the search, the type of search to
be conducted, or that an allegedly illegal body cavity search would be conducted, nor does it
allege that the Logan’s manager was either in the bathroom during, or in any way participated in,
the search. Docket No. 97, p. 2. Defendant Logan’s contends that absent more, Plaintiff’s
allegations fail to state a claim against it. Id.
Defendant Logan’s argues that Plaintiff’s Response specifically:
-

does not allege that the Logan’s manager knew that the
officers intended to or would be involved in any unlawful
conduct in the restroom (Pl.’s Resp., p. 21, D.E. No. 87);

-

does not allege the manager knew what type of search
would be conducted (Pl.’s Resp., p. 20, D.E. No. 87);

-

fails to identify any custom, policy, or practice of Logan’s
that proximately caused a violation of Plaintiff’s
constitutional rights (Pl.’s Resp., p. 21, D.E. No. 87); and

19

-

fails to allege (or even acknowledge) that the Davidson
County Criminal Court found that Plaintiff had consented
to the search, that the officers had probable cause to make a
search, that the officers did not violate Tenn. Code Ann.
§ 40-7-121 in conducting the search, and that Plaintiff had
cocaine outside of his body between his buttocks, not in his
anus (Pl.’s Resp., p. 20, at Note 10; see also Ex. C to
Motion to Dismiss, D.E. No. 62-3, pg. 7 of 7).

Id., p. 8.
Defendant Logan’s further argues that Plaintiff’s Response does not address the Amended
Complaint’s failure to allege that:
-

Plaintiff was a customer at the restaurant;

-

anyone at Logan’s knew about or had any involvement in
the surveillance, apprehension, or decision to search
Plaintiff;

-

Logan’s incited, instigated, or directed any search of
Plaintiff;

-

Plaintiff ever expressed an objection to the Logan’s
manager about being searched;

-

Logan’s manager was inside the bathroom during the
purported search.

Id., p. 9.
Defendant Logan’s additionally argues that Plaintiff’s claims against it should be
dismissed because Plaintiff’s Amended Complaint fails to actually allege state action by Logan’s,
fails to identify which test applies to Logan’s, fails to identify where such conduct is alleged in
the Amended Complaint, and fails to identify any specific joint action between Metro Govt. and
Logan’s. Id. Finally, Defendant Logan’s argues that Plaintiff’s Amended Complaint fatally fails
to allege any wrongful conduct by Logan itself. Id. Defendant Logan’s concedes that a
corporation can be held liable under § 1983 if the complaint sufficiently alleges an
20

“impermissible policy” or a “constitutionally forbidden” rule or procedure of the corporation that
was the “moving force of the constitutional violation.” Id., p. 10. Defendant Logan’s contends,
however, that Plaintiff’s Amended Complaint makes no reference whatsoever to any custom or
policy of Logan’s and does not assert that Logan’s acted pursuant to any custom or policy. Id.,
citing Docket No. 53, Amended Complaint, ¶¶ 22, 28-29, 63-64. Defendant Logan’s notes that
Plaintiff’s Amended Complaint also fails to factually allege that Logan’s authorized or
acquiesced in the purported conduct of its manager. Id.
As noted above, Plaintiff’s sole federal claim against Defendant Logan’s is that
Defendant Logan’s violated his rights under 42 U.S.C. § 1983. Docket No. 53. Plaintiff also
asks this Court to exercise its supplemental jurisdiction and hold Defendant Logan’s liable under
a negligence theory based on premises liability.8 Id.
As an initial matter, the parties concede that Defendant Logan’s cannot be held liable
under § 1983 upon a respondeat superior theory. Thus, in order to hold Defendant Logan’s
liable for its General Manager allowing the police to use its restroom to search Plaintiff, Plaintiff,
in his Amended Complaint, must allege the existence of an “impermissible [Logan’s] policy” or
a “constitutionally forbidden” Logan’s rule or procedure that was the “moving force of the
constitutional violation.” See, e.g., Monell, 436 U.S. at 694; Street v. Corrections Corp. Of Am.,
102 F.3d 810, 818 (6th Cir. 1996); Hutchinson v. Metro. Gov’t of Nashville and Davidson Cnty.,
685 F. Supp. 2d 747, 751 (M.D. Tenn. 2010). Plaintiff’s Amended Complaint, however, does
8

In his Consolidated Response, Plaintiff details the arguments relating to his negligence
claim. Docket No. 87. Because the undersigned recommends granting Defendant Logan’s
Motion to Dismiss, the undersigned further recommends that the Court decline to exercise its
supplemental jurisdiction over this negligence claim. Accordingly, the undersigned will not
recount Plaintiff’s arguments on this point herein.
21

not reference any official custom or policy of Logan’s, much less allege that any official custom
or policy of Logan’s was the “moving force of the constitutional violation.” Moreover,
Plaintiff’s Amended Complaint does not allege wrongful conduct by Defendant Logan’s itself; it
does not allege that Defendant Logan’s authorized, participated in, or acquiesced to the conduct
of its General Manager. Absent such allegations, Plaintiff simply cannot sustain his § 1983 claim
against Defendant Logan’s, and Defendant Logan’s Motion to Dismiss should be GRANTED.
C. Defendant Kevin Crotts’ Motion for a Partial Dismissal of Plaintiff’s First Amended
Complaint (Docket No. 68)
Defendant Crotts’ filed his Motion for a Partial Dismissal of Plaintiff’s First Amended
Complaint and accompanying Memorandum of Law on April 22, 2015, arguing that: (1) Count I
of Plaintiff’s Amended Complaint applies only to Defendant Metro Govt and should therefore be
dismissed against him; (2) Count II of Plaintiff’s Amended Complaint (his unlawful detention /
false arrest claim brought pursuant to 42 U.S.C. § 1983) should be dismissed because Plaintiff
pled guilty to crime for which he asserts he was unlawfully detained, thereby conclusively
establishing probable cause for his arrest; (3) Count III of Plaintiff’s Amended Complaint is
directed only to Defendant Logan’s and therefore should be dismissed against him; (4) Count
IV of Plaintiff’s Amended Complaint (his conspiracy claim brought pursuant to 42 U.S.C.
§ 1985(3)) should be dismissed because it is barred by the intra-corporate conspiracy doctrine
and was not plead with sufficient specificity; (5) Count V of Plaintiff’s Amended Complaint (a
state-law negligence claim) is directed only to Defendant Logan’s and therefore should be
dismissed against him; (6) Count VI of Plaintiff’s Amended Complaint (a state-law claim for
assault and battery) should only proceed if an underlying federal claim proceeds; (7) Count VII

22

of Plaintiff’s Amended Complaint (a state-law claim against the individual Defendants brought
under Tenn. Code Ann. § 40-7-121) should only proceed if an underlying federal claim proceeds;
and (8) Count VIII of Plaintiff’s Amended Complaint (a state-law claim against Defendant Metro
Govt. brought under Tenn. Code Ann. § 40-7-121) is directed only to Defendant Metro Govt. and
therefore should be dismissed against him. Docket Nos. 68, 69. Accordingly, Defendant Crotts
seeks dismissal of Counts I, III, IV, V, and VIII in their entirety, as well as that portion of Count
II that alleges unlawful detention against him. Id.
As noted above, Plaintiff has filed one Consolidated Response addressing all six of the
instant Motions. Docket No. 87. As relates to Defendant Crotts’ Motion, Plaintiff responds that
he is “perplexed” by Defendant Crotts’ request to dismiss “counts that clearly do not apply to
him.” Id., p. 26-27. Plaintiff states that he “can only respond to this strange request by saying
that it just doesn’t matter if the Court dismisses those counts that clearly do not pertain to him or
not.” Id., p. 27. Regarding his unlawful detention claim, Plaintiff reiterates that he does not
make a claim of unlawful detention or arrest related to his charge of selling cocaine and the
inclusion of that claim in the Amended Complaint was a “mere oversight.” Id. With respect to
his conspiracy claim, Plaintiff incorporates by reference his responses to Defendant Norris’
conspiracy arguments, set forth above. Id.
As discussed, Defendant Crotts has filed a Joint Reply with Defendant Norris. Docket
No. 94. Because the arguments in that Reply have been set forth in detail above, they will not be
recounted here.
Inasmuch as Defendant Crotts seeks dismissal of Counts I, III, V, and VIII, those claims
are explicitly not levied against Defendant Crotts, and do not contain allegations against him that
23

can be dismissed. Accordingly, Defendant Crotts’ Motion for a Partial Dismissal should be
DENIED AS MOOT with regard to Counts I, III, V, and VIII. For the reasons discussed above
with Defendant Norris’ Partial Motion to Dismiss, however, Defendant Crotts’ Motion for Partial
Dismissal should be GRANTED with regard to the unlawful detention claim in Count II and the
conspiracy claim in Count IV. The remaining claims for which Defendant Crotts’ does not move
for dismissal should be permitted to proceed at this juncture.
D. Defendants Tim Brewer, William Hampton, and James Dunaway’s Motion to Dismiss
(Docket No. 71)
Defendants Tim Brewer, William Hampton, and James Dunaway filed their Motion to
Dismiss, accompanying Exhibits, and supporting Memorandum of Law on April 23, 2015,
arguing that the only claims Plaintiff levies against them are: (1) Count II, the unlawful detention
claim brought under § 1983; (2) Count IV, the conspiracy claim brought under § 1985(3); and
(3) Count VII, the state-law claim brought under Tenn. Code Ann. § 40-7-121 for an unlawful
body cavity search. Docket Nos. 71, 71-1, 71-2, 71-3, 72. Defendants Brewer, Hampton, and
Dunaway argue that these claims should be dismissed as to them because: (1) for the § 1983
claim, they are protected by qualified immunity since Plaintiff has failed to plead that the actions
of these individual officers violated his well-established constitutional rights; (2) for the
§ 1985(3) claim, the intra-corporate conspiracy doctrine applies and bars the claim because they
work for the Metro Govt. and were acting within the scope of their employment; and (3) these
individual officers did not conduct or “cause to be conducted” a body cavity search, such that
they cannot be held liable under Tenn. Code Ann. § 40-7-121. Docket No. 71.
As discussed, Plaintiff has filed one Consolidated Response addressing all six of the

24

instant Motions. Docket No. 87. Responding to Defendants Brewer, Hampton, and Dunaway’s
argument that they are entitled to qualified immunity, Plaintiff states:
. . . Plaintiff clearly alleges that four to five officers taunted him as
they sang “nuts and butts” repeatedly. This included Crotts and
Norris, so three other officers were involved in this action which
indicates they knew what was about to happen to the plaintiff.
Excluding Norris and Crotts and excluding Dunaway who was not
present at the scene, leaves only Hampton, Brewer and McNamara
- the remaining three. Thus, Plaintiff clearly implies, by process of
elimination, that Hampton and Brewer knew what was about to
happen and failed to intervene and also made it possible by
remaining outside to ostensibly guard the scene. It is also implied
that they were there as Crotts and Norris began putting on surgical
gloves which could only be for the purpose of intruding in a body
cavity. Hampton and Brewer clearly could have intervened and
insisted that Plaintiff be taken to a more private and official
location for the strip search or body cavity search, as the case may
be. . . . This is not a case of “mere presence”. . . . Singing “nuts and
butts” and watching as two fellow officers put on blue surgical
gloves and push a handcuffed arrestee into a public restroom would
have put a reasonable officer on notice that something more than a
pat-down was about to occur.
Id., p. 28 (footnote omitted).
Plaintiff also argues that “what happened was not merely an unconstitutional search,” but
rather, “was aggravated rape.” Id., p. 29. Plaintiff contends that it “is common sense that a
police officer may not rape a handcuffed arrestee,” such that it was “clearly established” that
these Defendants had a duty to intervene to stop an allegedly unconstitutional search. Id.
With regard to the conspiracy claim, Plaintiff incorporates by reference his arguments on
this point, set forth above. As to his state-law claim against these Defendants brought pursuant
to Tenn. Code Ann. § 40-7-121, Plaintiff responds:
the term “cause” in T.C.A. 40-7-121 is not defined and defendants
do not cite to any authority that supports their argument that this
25

statute only creates a cause of action against those who “actually
engaged in the body cavity search”. To the contrary, it also creates
a cause of action against the municipal employer which could not
have “actually” engaged in the body cavity search. At a minimum,
these defendants “caused” the unlawful penetration by supporting
Crotts and Norris in what they were about to do and chanting in
unison “nuts and butts” as a rallying cry.
Id., p. 30.
Defendants Brewer, Hampton, and Dunaway have filed a Reply, that is also joined by
Defendant Keith McNamara. Docket No. 96. In their Reply, these Defendants respond:
Plaintiff relies on three facts to establish that the individual officers
knew an unconstitutional body cavity search would occur and,
therefore, should have insisted that Plaintiff “be taken to a more
private and official location for the strip search or body cavity
search, as the case may be.” (Docket No. 87, Page ID# 956).
Specifically, Plaintiff alleges that 1) the chanting of “nuts and
butts”, 2) Officers Norris and Crotts putting on surgical gloves, and
3) taking Plaintiff to a public restroom, establish that the Individual
Defendants were on notice that more “than a pat-down was about
to occur.” Id. Each of those facts standing alone, or taken
together, do not constitute a constitutional violation. Nor do they
support an inference that the individual officers knew that a
“digital rectal search” would occur. . . .
The Amended Complaint contains no factual allegation linking the
chanting of exposed body parts to what Plaintiff alleges actually
happened - a digital rectal search. Similarly, the simple act of
putting on gloves before searching a known drug dealer does not
equal notice that a body cavity search would occur. Finally, taking
Plaintiff to the bathroom was consistent with Metro Nashville
Police Department (“MNPD”) policy. . . . Absent specific wellpleaded factual allegations that the Individual Defendants were on
notice that a digital rectal search would occur, the Section 1983
claim against the Individual Defendants must be dismissed.
Id., p. 2.
Defendants note that Plaintiff’s Response does not challenge Defendant Dunaway’s

26

assertion that his approval of a strip search did not violate Plaintiff’s rights. Id., p. 3. Defendants
contend that the Amended Complaint itself actually specifies that it was a strip search, not a body
cavity search, for which Defendant(s) Crotts and/or Norris sought approval. Id., referencing
Amended Complaint, ¶ 20. Defendants maintain that Plaintiff’s Amended Complaint contains
no arguments that a strip search was not warranted and/or should not have been approved. Id.
Defendants argue, therefore, that all claims against Defendant Dunaway for his approval of the
search should be dismissed. Id.
Addressing Plaintiff’s Response to their argument that they are qualifiedly immune, these
Defendants argue that Plaintiff has not met his burden of showing that they had a duty to
intervene under the circumstances presented herein. Id., p. 4. Regarding Plaintiff’s conspiracy
claim, Defendants argue that “[i]t is only because of their status as police officers that all of the
individual Defendants came into contact with the Plaintiff, arrested him, and searched him,” such
that “their actions took place within the ambit of their employment as police officers” and the
intra-corporate conspiracy applies, barring Plaintiff’s § 1985(3) claim. Id., p. 5-6.
Turning first to Defendant Dunaway, Plaintiff concedes that Defendant Dunaway was not
present on the scene at the Logan’s restaurant, but nevertheless seeks to impose liability upon
him as the supervisor, for approving the request of Defendants’ Crotts and Norris to conduct a
strip search of Plaintiff prior to arriving on the scene and evaluating the circumstances
surrounding the request. Docket No. 87, p. 28. While Plaintiff argues that Defendant Dunaway’s
approval of the search request before responding to the scene and evaluating the circumstances
surrounding the request violates Metro policy, it simply does not rise to a violation of Plaintiff’s
rights under § 1983. There is nothing in the record to demonstrate that Defendant Dunaway had
27

any knowledge that any search beyond the requested strip search would occur. He was not
present on the scene, nor did he participate in any of the events of which Plaintiff complains.
Additionally, for the reasons discussed above, Plaintiff cannot sustain his § 1985(3) conspiracy
claim. Accordingly, Plaintiff’s federal claims should be DISMISSED against Defendant
Dunaway. Absent a sustainable federal claim, this Court should decline to exercise its
supplemental jurisdiction over Plaintiff’s state-law claim against him.
Turning next to Defendants Brewer and Hampton, Plaintiff’s arguments relating to why
they are not qualifiedly immune are conclusory and speculative. Plaintiff acknowledges that:
. . . Plaintiff clearly implies, by process of elimination, that
Hampton and Brewer knew what was about to happen and failed to
intervene and also made it possible by remaining outside to
ostensibly guard the scene. It is also implied that they were there as
Crotts and Norris began putting on surgical gloves which could
only be for the purpose of intruding in a body cavity.
Docket No. 87, p. 28 (emphasis added).
Plaintiff also conclusorily and speculatively argues that “[s]inging ‘nuts and butts’ and
watching as two fellow officers put on blue surgical gloves and push a handcuffed arrestee into a
public restroom would have put a reasonable officer on notice that something more than a patdown was about to occur.” Id. Plaintiff characterizes his digital search as “aggravated rape” and
argues that the “common sense” knowledge that an “aggravated rape” would occur after
“[s]inging ‘nuts and butts’ and watching as two fellow officers put on blue surgical gloves and
push a handcuffed arrestee into a public restroom” imposes liability upon Defendants Brewer and
Hampton for failing to intervene, even though Plaintiff acknowledges that Defendants Brewer
and Hampton were outside the restroom when the search occurred.

28

As noted, conclusory allegations are not enough to impose liability under § 1983. Taking
the facts in the light most favorable to Plaintiff, Plaintiff’s factual allegations simply do not
demonstrate that Defendants Brewer and/or Hampton violated Plaintiff’s constitutional rights.
Thus, Plaintiff cannot sustain his § 1983 claims against them, and those claims should be
DISMISSED. Moreover, Plaintiff has not rebutted Defendants affirmative defense of qualified
immunity. Additionally, for the reasons discussed above, Plaintiff cannot sustain his § 1985(3)
conspiracy claim and that claim should likewise be DISMISSED. Because Plaintiff’s federal
claims should be DISMISSED against Defendants Brewer and Hampton, this Court should
decline to exercise its supplemental jurisdiction over Plaintiff’s state-law claim against them.
The undersigned therefore recommends that the Motion to Dismiss filed by Defendants Tim
Brewer, William Hampton, and James Dunaway (Docket No. 71) be GRANTED.
E. The Metropolitan Government’s Motion to Dismiss (Docket No. 75)
Defendant Metro Govt. filed its Motion to Dismiss and accompanying Memorandum of
Law on April 23, 2015, arguing that Plaintiff’s claims against it9 should be dismissed because:
(1) Plaintiff has now been convicted of the crime for which he claims he was unlawfully detained
and searched; (2) the Amended Complaint fails to plead sufficient facts to support a municipal
liability claim under § 1983; and (3) absent a sustainable federal claim, this Court should decline
to exercise supplemental jurisdiction over Plaintiff’s state-law claim. Docket Nos. 75, 76.
As noted, Plaintiff has filed one Consolidated Response addressing all six of the instant

9

Plaintiff levies two claims against Defendant Metro Govt. specifically: Count I, which is
a § 1983 claim against it for failure to adequately train and supervise its officers with respect to
detentions without probable cause; and Count VIII, a state-law claim brought under Tenn. Code
Ann. § 40-7-121.
29

Motions. Docket No. 87. Regarding Defendant Metro Govt. specifically, Plaintiff responds that
he has withdrawn the unlawful detention claim, but continues to maintain that excessive force
was used in the unlawful body cavity search and when Defendant Crotts allegedly punched him
in the face. Id., p. 31. Plaintiff argues that the search was carried out in contravention of official
Metro Govt. policy, which dictates that such searches be conducted in a private place. Id., p. 32.
Plaintiff contends that he has sufficiently pled facts to establish a plausible claim for municipal
liability because:
Metro thus should have known that the events did not occur
pursuant to policy and failed to correct the problem or train its
officers on what to do in the future. Indeed, even conducting a
strip search in a public restroom is in violation of policy and
conducting it where the event will be challenged by a police officer
and a suspect is ripe with risk. Thus, given all these facts as true, a
reasonable jury - especially one that believes Plaintiff was raped by
Crotts with the assistance of Norris - could conclude that this was
pursuant to an utter failure to train and to control its officers from
crossing the line.
Id.
Defendant Metro Govt. has filed a Reply to Plaintiff’s Consolidated Response. Docket
No. 95. In its Reply, Defendant Metro Govt. argues, “As for his municipal liability claim related
to the alleged body cavity search, it fails because Plaintiff has provided no well-pleaded factual
allegations that this search was anything other than the act of a few “rogue” officers who violated
policy rather than pursuant to any unconstitutional custom, policy or practice of the Metropolitan
Government.” Id., p.1. Defendant Metro Govt. further contends:
Here, Plaintiff makes the over-arching allegation that the
Metropolitan Government inadequately investigates incidents of
body cavity searches. Doc. No. 53 at ¶¶ 52, 54. Yet Plaintiff does
not identify or describe in any manner any other alleged body
30

cavity searches by MNPD officers that have occurred. Nor does he
make any specific allegations regarding any shortcomings in
investigating these purported incidents, or sufficiently allege how
the inadequate investigations of some unnamed, undescribed other
body cavity searches could be the “moving force” behind the
violation of Plaintiff’s rights in this case. Furthermore, as Plaintiff
points out in his response, MNPD actually has a policy prohibiting
the kinds of searches alleged to have occurred in this case, and the
search as characterized by Plaintiff actually violated that policy.
Doc. No. 87 at 32-33.
Id., p. 2. (Footnote omitted.)
Defendant Metro Govt. additionally argues that Plaintiff’s cannot use this one incident to
establish that Metro Govt. must have a custom, policy, or practice of allowing illegal body cavity
searches to occur. Id. Defendant Metro Govt. notes that deliberate indifference requires a
showing of prior instances of unconstitutional conduct. Id., p. 2-3. As to Plaintiff’s state-law
claim against it, Defendant Metro Govt. argues that this Court should decline to exercise
supplemental jurisdiction over that claim, since Plaintiff cannot sustain his federal claims against
it. Id., p. 3.
As discussed above, Plaintiff has withdrawn his unlawful detention claim and Defendant
Metro Govt.’s Motion should be GRANTED with respect to that claim. Regarding Plaintiff’s
allegations that Metro Govt. is liable to him for the alleged failure to train its officers on the issue
of body cavity searches and alleged failure to properly investigate incidents of body cavity
searches, Plaintiff’s allegations are speculative, conclusory, and limited to the single incident at
issue. Plaintiff has failed to provide any well-pled factual support for his assertion that any
unconstitutional body cavity search of Plaintiff was caused by a municipal custom, policy, or
practice. Additionally, Plaintiff fails to allege prior instances of unconstitutional conduct

31

demonstrating that Defendant Metro Govt. ignored a history of abuse and had been clearly on
notice that the training in the area of body cavity searches was deficient and likely to cause
injury. See, e.g., St. John v. Hickey, 411 F.3d 762, 776 (6th Cir. 2005); Fisher v. Harden, 398
F.3d 837, 849 (6th Cir. 2005). Absent such, Plaintiff cannot sustain his § 1983 municipal liability
claim against Defendant Metro Govt., and Defendant Metro Govt.’s Motion to Dismiss should be
GRANTED.
Because the undersigned recommends dismissal of Plaintiff’s federal claims against
Defendant Metro Govt., the undersigned further recommends that this Court decline to exercise
its supplemental jurisdiction over Plaintiff’s state-law claim against Defendant Metro Govt.
F. Defendant Keith McNamara’s Motion to Dismiss (Docket No. 79)
Defendant Keith McNamara filed his Motion to Dismiss, accompanying Exhibits, and
supporting Memorandum of Law on April 29, 2015. Docket Nos. 79, 79-1, 79-2, 79-3, 80.
Defendant McNamara argues that Plaintiff’s three claims against him should be dismissed
because: (1) he is qualifiedly immune; (2) Plaintiff has failed to plead that Defendant
McNamara’s actions violated his well-established constitutional rights; (3) the intra-corporate
conspiracy doctrine applies and bars Plaintiff’s § 1985(3) conspiracy claims since Defendant
McNamara works for Metro Govt. and acted within the scope of his employment; and
(4) Defendant McNamara did not “conduct or cause to be conducted” a body cavity search, such
that he cannot be held liable under Tenn. Code Ann. § 40-7-121. Id.
As discussed, Plaintiff has filed one Consolidated Response addressing all six of the
instant Motions. Docket No. 87. With respect to Defendant McNamara specifically, Plaintiff
notes that Defendant McNamara’s arguments are “essentially the same as raised by other
32

defendants” and he incorporates by reference his earlier responses thereto. Id., p. 33-34.
As noted above, Defendant McNamara filed a joint Reply with Defendants Brewer,
Hampton, and Dunaway. Docket No. 96. Because these arguments have been recounted above,
the undersigned will not repeat them.
Plaintiff’s sole allegation against Defendant McNamara specifically is that he did not
submit “any use of force reports” or report the “unlawful digital rectal search to the superiors in
the department, all in an apparent cover-up of what happened.” Docket No. 53, ¶ 44. Plaintiff
levies no facts that Defendant McNamara in any way knew that a body cavity search would take
place, much less that he observed, participated in, or approved of, the search of Plaintiff.
As an initial matter, Plaintiff has cited no authority for the proposition that there is a
constitutional right to have a report filed. Additionally, Plaintiff has not demonstrated that
Defendant McNamara’s alleged failure to file said report caused him injury; rather, Plaintiff
alleges that his injuries resulted from the digital search.
Regarding Plaintiff’s general allegations against the individual police officers as a group,
as discussed above, Plaintiff’s allegations are speculative, conclusory, and unsustainable.
Taking the facts in the light most favorable to Plaintiff, Plaintiff’s factual allegations
simply do not demonstrate that Defendant McNamara violated his constitutional rights. Thus,
Plaintiff cannot sustain his § 1983 claims against him, and those claims should be DISMISSED.
Moreover, Plaintiff has not rebutted Defendant McNamara’s affirmative defense of qualified
immunity.
Additionally, for the reasons discussed above, Plaintiff cannot sustain his § 1985(3)
conspiracy claim and that claim should likewise be DISMISSED. Because Plaintiff’s federal
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claims should be DISMISSED against Defendant McNamara, this Court should decline to
exercise its supplemental jurisdiction over Plaintiff’s state-law claim against him. The
undersigned therefore recommends that Defendant McNamara’s Motion to Dismiss (Docke4t
No. 79) be GRANTED.
IV. Conclusion
For the reasons discussed above, the undersigned recommends that: (1) Defendant Norris’
Partial Motion to Dismiss (Docket No. 59) be GRANTED, and that Plaintiff’s unlawful
detention/false arrest claim and conspiracy claims against him be DISMISSED10; (2) Defendant
Logan’s Motion to Dismiss (Docket No. 62) be GRANTED, and that Plaintiff’s claims against it
be DISMISSED11; (3) Defendant Kevin Crotts’ Motion for a Partial Dismissal of Plaintiff’s First
Amended Complaint (Docket No. 68) be GRANTED as to Plaintiff’s unlawful detention / false
arrest claim and conspiracy claims, and that those claims against him be DISMISSED, but
DENIED AS MOOT with regard to Counts I, III, V, and VIII, as those claims are not asserted
against him12; (4) Defendants Tim Brewer, William Hampton, and James Dunaway’s Motion to

10

As noted, because Defendant Norris’ Motion is a Partial Motion to Dismiss which
seeks dismissal of Plaintiff’s unlawful detention / false arrest claims and conspiracy claims, only
those claims should be dismissed; Plaintiff’s remaining claims against him should proceed at this
juncture.
11

As noted, Plaintiff’s sole federal claim against Defendant Logan’s is his § 1983 claim.
Because the undersigned recommends that Defendant Logan’s Motion to Dismiss be granted, the
undersigned recommends that this Court should decline to exercise its supplemental jurisdiction
over Plaintiff’s negligence claims against Defendant Logan’s, and Defendant Logan’s should be
terminated as a party to this action.
12

Because Defendant Crotts’ Motion seeks partial dismissal of the claims discussed,
only those claims should be dismissed; Plaintiff’s remaining claims against him should proceed
at this juncture.
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Dismiss (Docket No. 71) be GRANTED, and that Plaintiff’s claims against them be
DISMISSED; (5) Defendant Metro Govt.’s Motion to Dismiss (Docket No. 75) be GRANTED,
and that Plaintiff’s claims against it be DISMISSED; and (6) Defendant Keith McNamara’s
Motion to Dismiss (Docket No. 79) be GRANTED, and that Plaintiff’s claims against him be
DISMISSED.
In light of the foregoing, the undersigned recommends that Plaintiff’s claims against
Defendants Logan’s Roadhouse, Inc., Tim Brewer, William Hampton, James Dunaway, Metro
Govt., and Keith McNamara be DISMISSED and that they be TERMINATED as Defendants in
this action. The undersigned further recommends that claims discussed herein against
Defendants Norris and Crotts be DISMISSED, but that Plaintiff’s remaining claims against them
proceed. Accordingly, Defendants Norris and Crotts should remain parties in this action.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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________________________________
E. CLIFTON KNOWLES
United States Magistrate Judge

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