Anderson v. Sumner County Sheriff's Office and/or Sumner County et al
MEMORANDUM signed by District Judge Aleta A. Trauger on 9/20/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
SUMNER COUNTY SHERIFF’S
OFFICE et al.,
Case No. 3:17-cv-00609
Judge Aleta A. Trauger
Before the court is the defendants’ Corrected Motion to Dismiss Amended Complaint
(Doc. No. 20). The motion has been fully briefed and is ripe for review. For the reasons stated
herein, the court will grant the motion and dismiss this action in its entirety.
Factual and Procedural Background
The plaintiff filed her initial Complaint in this action on March 17, 2017, asserting claims
against defendants the “Sumner County Sheriff’s Office and/or Sumner County,” Sumner
County Sheriff Sonny Weatherford, Sumner County Chief Deputy Aaron Pickard, and Officers
Kelly Smart, Keith Bean, Geoffrey Wall, and Jordan Holleran. (Doc. No. 1.) Rather than filing a
responsive pleading, the defendants filed a Motion to Dismiss (Doc. No. 5) and supporting
Memorandum (Doc. No. 6). The plaintiff filed a Response to Defendants’ Motion to Dismiss
(Doc. No. 9) and, at the same time, a Motion to Amend Complaint as a Matter of Course
Pursuant to Fed. R. Civ. P. 15(a)(1)(B) (Doc. No. 10) and the Preliminary Psychiatric Report
(Doc. No. 8), prepared by the plaintiff’s treating psychiatrist at her attorney’s request. Strictly
speaking, the motion was unnecessary, as the plaintiff did, in fact, have a right under Rule 15(a)
to amend her complaint in response to the defendant’s Motion to Dismiss without seeking leave
of court. The court nonetheless granted leave, and, after prompting by the court, the plaintiff has
now filed her Amended Complaint. (Doc. No. 26.) 1
In her Amended Complaint, the plaintiff alleges that she is an “older African-American
female” (Am. Compl. ¶ 35) who, at the time she initiated this action, was employed by the
Sumner County Sheriff’s Office as a Correctional Officer at the Sumner County Jail in Gallatin,
Tennessee. (Am. Comp. ¶¶ 1, 3.) Defendants Wall and Holleran, also Correctional Officers, are
white males who were twenty and twenty-one years old, respectively, in October 2016. (Am.
Compl. ¶¶ 7, 8.) On October 22, 2016, the plaintiff, Wall, and Holleran left work at the same
time and walked to the parking lot together. (Am. Compl. ¶ 20.) Wall and Holleran walked to
Wall’s vehicle while the plaintiff walked to her vehicle. When Wall and Holleran reached Wall’s
vehicle, Wall reached in and removed something from the vehicle. The plaintiff initially did not
know what it was, but she saw a red laser light hitting her vehicle and around her feet. She then
saw that Wall was holding a gun in his hand that had a flashlight and a laser pointer. (Am.
Compl. ¶ 21.) In response, the plaintiff, very frightened, screamed at Wall to stop before she was
accidentally shot. Wall laughed in response. The plaintiff’s fright and anxiety at having an actual
gun pointed at her caused her to need to use the bathroom, so she returned to the Sheriff’s Office
to do so. While she walked quickly back into the building, Wall kept the gun and its red laser
light trained on her, causing her additional fear and mental distress. The plaintiff used the
restroom, composed herself, and returned to her vehicle after she saw that Wall and Holleran had
left. (Am. Compl. ¶ 21.)
The plaintiff’s Motion to Amend incorporated the new paragraphs she sought to add to
her original pleading, but the plaintiff did not submit with her motion a separate proposed
The plaintiff asserts that the acts of Wall and Holleran “were likely violations of
Tennessee criminal law.” (Am. Compl. ¶ 22.) Specifically, the plaintiff cites to the Tennessee
statutes that define the offense of aggravated assault as the act of “intentionally or knowingly
caus[ing] another to reasonably fear imminent bodily injury” if such action also involves “the use
or display of a deadly weapon.” Tenn. Code Ann. §§ 39-13-101(a)(2), 39-13-102(a)(1)(A)(iii).
(Am. Compl. ¶ 23.)
The plaintiff alleges that Sumner County Sheriff’s Office policy requires all employees to
report to their immediate supervisor any violation of the law by anyone on the jail premises.
(Am. Compl. ¶ 24.) After this incident, the plaintiff “followed proper procedure for such an
event occurring on the premises of the jail” (Am. Compl. ¶ 21) by immediately calling her
supervisor, defendant Kelly Smart, to report that she had been the victim of an aggravated assault
on the jail premises. (Am. Compl. ¶ 24.) Under jail policy, Smart, as the plaintiff’s supervisor,
was required to notify the appropriate deputy sheriff, who was supposed to “investigate, report,
and, if necessary, obtain a warrant for the arrest of the person.” (Am. Compl. ¶ 24.)
The plaintiff also reported that Holleran had violated jail policy by bringing a personal
firearm onto jail premises. The plaintiff further alleges that, because Holleran was not yet
twenty-one years old at the time, 2 it was illegal for him to possess a firearm without a permit and
that her report gave rise to a need to investigate Holleran and Wall for a possible violation of
Tenn. Code Ann. § 39-17-1317(a)(1), which pertains to the illegal possession and carrying of a
firearm. (Am. Compl. ¶ 25.)
Based on jail policy, the plaintiff reasonably believed that Smart and the officers above
her in the chain of command would follow jail procedures for investigating the crimes reported
The plaintiff alleges elsewhere that Holleran was twenty-one years old on October 22,
2016. (Am. Compl. ¶ 8.) She alleges that Wall was only twenty. (Am. Compl. ¶ 7.)
by the plaintiff. (Am. Compl. ¶ 25.) Smart, however, took no meaningful action to report,
investigate, or arrest Holleran and Wall for their crimes or to report them to a deputy sheriff or
the sheriff. (Am. Compl. ¶ 26.) Instead, she issued a verbal counseling to Wall and directed him
to apologize to the plaintiff. (Am. Compl. ¶ 27.)
Upon later learning that Smart had not reported the incident up the chain of command as
required by jail policy, the plaintiff submitted a written report concerning the event to Captain
Canter, who is not a defendant in this action. (Am. Compl. ¶¶ 28–29; Orig. Compl. Ex. A, Doc.
No. 1-1.) Captain Canter disclosed the statement to defendant Bean, who advised Canter that he
would look into it and would brief Chief Deputy Sheriff Aaron Pickard about it. (Am. Compl. ¶
Bean thereafter investigated the incident by interviewing the plaintiff, Wall, Holleran,
and Smart. (Am. Compl. ¶ 31.) On November 9, 2016, he completed the investigation and
prepared a written report. (Am. Compl. ¶ 32; Orig. Compl. Ex. B, Doc. No. 1-2.) Bean’s report,
according to the plaintiff, confirms her version of events and her assertion that Wall, aided and
abetted by Holleran, committed the offense of aggravated assault, among other offenses, by
intentionally pointing a weapon at her and causing her to reasonably fear imminent bodily injury.
(Am. Compl. ¶33.) Rather than arresting and charging Wall and Holleran with criminal offenses,
however, Bean sustained the plaintiff’s complaint against them and recommended that Wall be
issued a written reprimand and that his duty firearm carry privilege be suspended indefinitely,
that Holleran receive a counseling session for failing to report misconduct known to personnel,
and that Smart receive a counseling session for failing to hand the incident appropriately. (Doc.
On November 10, 2016, Bean submitted his report to Chief Deputy Pickard. (Am.
Compl. ¶ 36.) On November 17, 2016, Pickard prepared written disciplinary statements for Wall
and Holleran, adopting Bean’s factual findings and disciplinary recommendations. (Orig. Compl.
Exs. C & D, Doc. Nos. 1-3, 1-4.) The plaintiff alleges that Pickard failed, however, to adopt her
most serious allegations regarding Wall’s act of following her with the laser beam from the gun
as she walked back into the building. (Am. Compl. ¶ 37.) Pickard was on notice that Wall and
Holleran had committed the offense of aggravated assault, but, instead of arresting them, he
adopted Bean’s disciplinary recommendations. (Am. Compl. ¶ 38.) On November 18, 2016,
Sheriff Weatherford approved and adopted Pickard’s actions (Orig. Compl. Ex. C & D, Doc.
Nos. 1-3, 1-4), despite also being on notice that Wall and Holleran had committed the offense of
aggravated assault while on jail premises, and despite being on notice that Pickard, Smart, and
Bean had “statutory duties to report, investigate, and arrest Wall and Holleran, but breached that
duty,” thus breaching his own statutory duty to report, investigate, and arrest Wall and Holleran.
(Am. Compl. ¶ 39.)
The plaintiff asserts that these decisions were made without consulting her and, therefore,
that the defendants’ actions “deprived [her] of her statutory victim rights.” (Am. Compl. ¶ 40.)
She was not informed of what had transpired until December 2, 2016, when she contacted Bean
to find out. (Am. Compl. ¶¶ 41, 42.) The plaintiff also provided the Sumner County District
Attorney with a copy of Bean’s written report, but the district attorney declined to prosecute
Wall and Holleran. (Am. Compl. ¶ 47.)
The plaintiff sought legal counsel. On December 12, 2016, the plaintiff’s attorney
contacted Sumner County’s Law Director, Leah Dennen, to inform her that the plaintiff had been
the victim of aggravated assault on jail premises by two officers with the Sumner County
Sheriff’s Office, that the plaintiff was required to come into regular contact with Wall and
Holleran while on the job, and that, as a result, she was being subjected to a hostile work
environment. (Am. Compl. ¶¶ 45–46; Orig. Compl. Ex. F, Doc. No. 1-6.) The plaintiff’s attorney
requested, on her behalf, that she be placed on administrative leave with pay until the matter was
resolved. (Am. Compl. ¶ 46; Orig. Compl. Ex. F, Doc. No. 1-6.) Sumner County denied the
plaintiff’s request for leave without pay, and the plaintiff continued to work because she needed
the job. (Am. Compl. 67.)
The new allegations in the plaintiff’s Amended Complaint primarily concern back-andforth correspondence between plaintiff’s counsel and defense counsel concerning the plaintiff’s
deteriorating mental health as a result of her continued exposure to what she deemed a hostile
work environment, her continued demands that the Sumner County Sheriff’s Office place Wall
and Holleran on administrative leave and conduct an actual criminal investigation into their
actions, and the defendant’s assertion that the Sheriff’s Office had determined that Wall and
Holleran had not committed a crime. In the course of this correspondence, according to the
plaintiff, defense counsel admitted that Bean made the determination, even before interviewing
them, that Wall and Holleran had not committed a crime. (Am. Compl. ¶¶ 68–74 & Exs. I–J,
Doc. Nos. 26-1, 26-2.) The plaintiff asserts that this means that Bean “had already prejudiced the
case even before he knew what Wall/Holleran would have to say, particularly since he based his
opinion on their state of minds, thereby indicating that Sgt. Bean’s investigation was a pretext to
protect Wall/Holleran from criminal prosecution. This act by the Defendant Sgt. Bean effectively
denied the Plaintiff access to criminal justice as a victim of a violent crime.” (Am. Compl. ¶ 75.)
On May 22, 2017, the plaintiff received a Preliminary Report from psychiatrist Dr.
William Kenner, who diagnosed the plaintiff with post traumatic stress disorder (“PTSD”). (Am.
Compl. ¶ 76; Doc. No. 8.) Dr. Kenner further opined that the atmosphere at the Sumner County
Sheriff’s Office was unsupportive of the plaintiff and that continuing to work there would
damage her health and prolong her symptoms. Plaintiff’s counsel informed the defendants of Dr.
Kenner’s assessment and provided them with a copy of the Preliminary Report. (Am. Compl. ¶¶
76, 77 & Ex. K.)
Based on Dr. Kenner’s conclusion that continued employment with the Sumner County
Sheriff’s Office would be detrimental to her mental health, the plaintiff left her employment
effective May 25, 2017. She alleges that she was constructively discharged as a result of the
hostile work environment created by the defendants. On May 30, 2017, defense counsel
acknowledged the plaintiff’s decision to leave her employment and notified plaintiff’s counsel
that the defendants considered her to have resigned. (Am. Compl. ¶¶ 77, 78 & Ex. K.)
Based on these allegations, the plaintiff purports to state the following claims against the
A claim under 42 U.S.C. § 1983,
(a) against Wall and Holleran on the basis that these defendants, while
acting under color of law, deprived the plaintiff of her rights to liberty and equal
protection, when they committed the offense of aggravated assault against her on
the premises of the Sumner County Sheriff’s Office by creating a hostile work
environment after she reported their actions; and
(b) against Smart, Bean, Pickard, and Weatherford on the basis that these
defendants, while acting under color of law, deprived the plaintiff her rights to
liberty, due process (substantive and procedural), and equal protection by failing
to report, investigate, and cause the arrests of Wall and Holleran and by tolerating
and causing a hostile work environment and forcing a constructive discharge;
(c) against the Sumner County Sheriff’s Office based on a failure to train
A claim under 42 U.S.C. § 1981 against the Sumner County Sheriff’s Office and
the individual defendants;
Claims of hostile work environment, constructive discharge, and retaliation in
violation of Title VII 3 and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-2-101 et seq.,
against the Sumner County Sheriff’s Office, based on the hostile work environment the plaintiff
endured as a result of the conduct of individual defendants who were motivated by the plaintiff’s
age, race, and sex; and based on her constructive discharge;
Claims under 42 U.S.C. § 1985 against all defendants based on a conspiracy to
deprive the plaintiff of her right to equal protection; and
Supplemental state law claims against Wall and Holleran for assault, battery,
outrageous conduct, and intentional infliction of mental distress, and against the Sumner County
Sheriff’s Office under a respondeat superior theory and based on its own negligence.
The plaintiff seeks compensatory and punitive damages, front pay or reinstatement and
all other equitable and legal relief to which she is entitled.
Standard of Review
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
Federal Rules of Civil Procedure require that a plaintiff provide “‘a short and plain statement of
The plaintiff filed an EEOC charge and was provided notice of her right to sue dated
December 20, 2016. (See Orig. Compl. Exs. 7–8, Doc. Nos. 1-7, 1-8.)
the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)).
The court must determine whether “the claimant is entitled to offer evidence to support the
claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the
“facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on
“legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action”; instead, the
plaintiff must plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Section 1983 Claims
Claims Against Wall and Holleran
The defendant argues that (1) the plaintiff fails to show that Wall and Holleran were
acting “under color of law” when they pointed a loaded weapon at her; and (2) the plaintiff’s
claims against Wall and Holleran “do not fit into the equal protection framework.” (Doc. No. 19,
at 9.) In response to the Motion to Dismiss the Amended Complaint, the plaintiff utterly fails to
address the question of whether Wall and Holleran were acting under color of state law. In her
response to the original Motion to Dismiss, however, she argues that the defendants somehow
admitted that Wall and Holleran were acting under color of law when the Sumner County
Sheriff’s Office took disciplinary action against them based on their conduct.
“A § 1983 claim must present two elements: (1) that there was the deprivation of a right
secured by the Constitution and (2) that the deprivation was caused by a person acting under
color of state law.” Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). “The
traditional definition of acting under color of state law requires that the defendant . . . exercised
power possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” West v. Atkins, 487 U.S. 42, 49–50 (1988) (internal citation and
quotation marks omitted).
Citing West, the Sixth Circuit has recognized that “Section 1983 is generally not
implicated unless a state actor’s conduct occurs in the course of performing an actual or apparent
duty of his office, or unless the conduct is such that the actor could not have behaved as he did
without the authority of his office.” Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir.
2001). “The key determinant is whether the actor intends to act in an official capacity or to
exercise official responsibilities pursuant to state law. Logically, then, not every action
undertaken by a person who happens to be a state actor is attributable to the state.” Id. (citing
West, 487 U.S. at 50). Thus, “the acts of state officials ‘in the ambit of their personal pursuits’ do
not constitute state action.” Id. (quoting Screws v. United States, 325 U.S. 91, 111 (1945)). “[A]
defendant’s private conduct, outside the course or scope of his duties and unaided by any indicia
of actual or ostensible state authority, is not conduct occurring under color of state law.” Id. “The
fact that a police officer is on or off duty, or in or out of uniform is not controlling. ‘It is the
nature of the act performed, not the clothing of the actor or even the status of being on duty, or
off duty, which determines whether the officer has acted under color of law.’” Burris v. Thorpe,
166 F. App’x 799, 802 (6th Cir. 2006) (quoting Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.
Based on these principles, the Sixth Circuit has repeatedly held that a police officer does
not act under color of state law when he acts completely outside the authority of his office. See,
e.g., Burris, 166 F. App’x at 800, 802–03 (holding that a police officer, “even while on duty and
in uniform,” did not act under color of state law when he engaged in consensual sexual
intercourse with a civilian during a “citizen ride-along”); McNeese v. Vandercook, 173 F.3d 429
(Table), 1999 WL 133266, at *2 (6th Cir. Feb. 25, 1999) (holding that a deputy sheriff who
struck a fellow deputy while on the job waiting for roll call did not act under color of state law);
Mooneyhan v. Hawkins, 129 F.3d 1264 (Table), 1997 WL 685423, at *4 (6th Cir. Oct. 29, 1997)
(holding that a police officer did not act under color of state law when he took advantage of his
friendship with the plaintiff, not his authority as a police officer, to rape her).
In attempt to avoid dismissal of her § 1983 claims against them, the plaintiff argued, in
her Response to the defendants’ Motion to Dismiss her original Complaint, that the defendants
admitted that Wall and Holleran were acting under color of state law when Bean noted in his
official report that if officers are in uniform or “do anything that would bring embarrassment or
discredit” to the office, then the Sheriff’s Office “could intervene on off-duty behavior.” (Doc.
No. 9, at 7 (quoting Doc. No. 1, Ex. B, at 3).) In addition, the defendants approved the taking of
disciplinary action against Wall and Holleran based on their conduct. This evidence, however,
does not suggest that the officers were acting under color of law. It merely establishes that they
could be disciplined for actions taken while off duty and not acting under color of law.
Even viewed in the light most favorable to the plaintiff, the facts establish that Wall and
Holleran were not acting under color of state law during the incident giving rise to the plaintiff’s
claims. Neither officer purported to exercise his authority as a police officer in aiming a firearm
at the plaintiff, and the gun at issue was a personal weapon, not one issued by the Sumner
County Sheriff’s Office. The defendants were off duty at the time of the event, having been
released from their shift at the jail. Their actions are not “fairly attributable” to the state. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982).
The court finds that the plaintiff fails to state a claim under § 1983 against Wall and
Holleran, because she has failed to show that they were acting under color of state law. Their
motion to dismiss the § 1983 claim against them will therefore be granted.
Claims Against Smart, Bean, Pickard, and Weatherford
The plaintiff asserts that Smart, Bean, Pickard, and Weatherford, while acting under color
of state law, violated her right to liberty, due process, and equal protection when they violated
their obligations under state law to “report, investigate, and cause the arrests of Wall and
Holleran” (Am. Compl. ¶ 48.) Specifically, she maintains that, under Tennessee law, the
defendants have a statutorily imposed duty “to ferret out crimes, to secure evidence of crimes,
and to apprehend and arrest criminals” (Am. Compl. ¶ 14 (quoting Tenn. Code Ann. § 38-3102(b)); to arrest any person whom they reasonably suspect of “being armed with the intention
of . . . assaulting . . . another person or otherwise breaking the peace” (Am. Compl. ¶ 17 (quoting
Tenn. Code Ann. § 38-3-108)); and to provide certain information to victims of violent crimes
(Am. Compl. ¶ 44 (quoting Tenn. Code Ann. § 40-38-113)). The plaintiff insists that the
defendants’ failure to carry out these duties constitutes a violation of § 1983. She also claims that
the defendants violated her substantive and procedural due process rights when they acted with
deliberate indifference to her federally protected rights by failing to investigate and arrest Wall
and Holleran. And she claims that these defendants’ acts violated her substantive due-process
rights because they shock the conscience. (Doc. No. 21, at 3–4.)
The defendants, in response, argue that: (1) the plaintiff’s own allegations show that the
defendants actually investigated the incident and disciplined Wall and Holleran, and that,
otherwise, § 1983 “cannot be used to force the state to prosecute or to establish liability for
failure to prosecute” (Doc. No. 19, at 6–7 (citations omitted)); (2) the state statutes cited by the
plaintiff do not create constitutional rights or duties; and (3) the alleged conduct is not
conscience-shocking so as to support a substantive due process claim.
The court agrees, for the reasons explained below, that the § 1983 claims against
defendants Bean, Smart, Pickard, and Weatherford are subject to dismissal.
Failure to investigate, arrest or prosecute
A § 1983 action cannot be used to force the state to prosecute. Collyer v. Darling, 98
F.3d 211, 222 (6th Cir. 1996), cited in Ferqueron v. Nichols, 145 F.3d 1331 (Table), 1998 WL
246352, at *2 (6th Cir. May 6, 1998). Likewise, to the extent the plaintiff seeks to hold the
supervisory officers liable in their individual capacity for failing to further investigate and to
arrest Wall and Holleran, the court finds that she fails to state a claim under 42 U.S.C. § 1983.
“[T]he law is clear that a private citizen has no constitutional, statutory, or common law right to
require a public official to investigate or prosecute a crime.” Woods v. Miamisburg City Schs.,
254 F. Supp. 2d 868, 873 (S.D. Ohio 2003) (citations omitted); see also Fulson v. City of
Columbus, 801 F. Supp. 1, 6 (S.D. Ohio 1992) (“A public official charged with the duty to
investigate or prosecute a crime does not owe that duty to any one member of the public, and
thus no one member of the public has a right to compel a public official to act.”).
Although the plaintiff could potentially assert an equal protection claim based on a failure
to investigate or pursue prosecution if she alleged that the failure was based on her race or that
her allegations of unlawful behavior were treated differently than similar complaints by a white
person or against black officers, the plaintiff fails to allege plausible facts suggesting that the
decision not to arrest or pursue prosecution was related to her race or resulted in disparate
treatment. 4 Accord Jones v. Union Cnty., Tenn., 296 F.3d 417, 426 (6th Cir. 2002) (holding that
the plaintiff failed provide evidence to support an equal protection claim where she failed to
show that she was “intentionally and purposefully discriminated against because of her
membership in a protected class”). Although the plaintiff alleges that she is African American
and that defendants are white, she does not allege any facts plausibly linking the defendants’
decisions to her race (or age or gender). As set forth above, to state a colorable claim, the
plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of
action”; she must, instead, plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
The court therefore finds that the Amended Complaint fails to state a claim against any of
the individual defendants based on the failure to investigate, arrest or prosecute.
Failure to comply with state statutes
Even assuming that the state statutes upon which the plaintiff relies create a duty under
state law, 5 the violation of a right created and recognized by state law does not amount to a
constitutional violation and is not actionable under § 1983. The Sixth Circuit has held that “a
violation of a state statute does not create a liberty interest or property right under the Due
Process Clause of the Fourteenth Amendment.” Jones, 296 F.3d at 429. Moreover, generally
speaking, “[t]he violation of a right created and recognized only under state law is not actionable
under § 1983.” Id. (quoting Harrill v. Blount Cnty., Tenn., 55 F.3d 1123, 1125 (6th Cir. 1995)).
The defendants’ failure to comply with their supposed obligation to pursue legal action against
Wall and Holleran and to ensure that they were arrested did not violate the plaintiff’s
The plaintiff alleges that she was received disparate treatment from that of Wall and
Holleran, but she fails show that they were similarly situated with her.
The defendants dispute that proposition, based on state law. (See Doc. No. 24, at 3.)
Deliberate indifference to conscience-shocking conduct
The plaintiff also attempts to state a substantive due process claim based on her assertion
that the defendants’ conduct is so deplorable as to shock the conscience. This claim fails because
the allegations in the Amended Complaint, construed in the light most favorable to the plaintiff,
do not establish that any of the defendants’ conduct was “so brutal and so offensive to human
dignity” as to shock the conscience. Rochin v. California, 342 U.S. 165, 174 (1952).
The Sixth Circuit has defined this type of substantive due process claim as involving
“actions that ‘government officials may not take no matter what procedural protections
accompany them,’ alternatively known as actions that ‘shock the conscience.’” Braley v. City of
Pontiac, 906 F.2d 220, 225 (6th Cir. 1990) (quoting Wilson v. Beebe, 770 F.2d 578, 585–86 (6th
Cir. 1985) (en banc). 6 In Puckett v. Lexington–Fayette Urban County Government, 566 F. App’x
462 (6th Cir. 2014), the Sixth Circuit noted that the “‘shock the conscience’ strain of successful
substantive due process claims is recognized ‘in the exclusive context of cases involving
physical abuse.’” Id. at 472 (quoting Choate’s Air Conditioning & Heating, Inc. v. Light, Gas,
Water Div. of City of Memphis, 16 F. App’x 323, 329 (6th Cir. 2001)). And even within that
strain, conduct that “shocks the conscience” is generally “conduct that is ‘so “brutal” and
“offensive” that it [does] not comport with traditional ideas of fair play and decency.’” Id.
(quoting Handy–Clay v. City of Memphis, Tenn., 695 F.3d 531, 547–48 (6th Cir. 2012)).
Here, the conduct in question is not the alleged aggravated assault by Wall and
Holleran—which, however reprehensible, did not involve physical contact or physical injury.
A § 1983 substantive due process claim must either be based on “a violation of an
explicit constitutional guarantee (e.g., a fourth amendment illegal seizure violation),” which is
not alleged here, “or on behavior by a state actor that shocks the conscience.” Braley, 906 F.2d at
Rather, the conduct at issue is the other individual defendants’ violation of their purported duty
to investigate, arrest, and prosecute Wall and Holleran for such behavior. Their conduct, a step
removed from that of Wall and Holleran, also did not involve physical abuse and does not
remotely qualify as conscience-shocking.
The court finds, in sum, that the Amended Complaint fails to state a claim under § 1983
against defendants Smart, Bean, Pickard, and Weatherford.
Claim Against Sumner County Sheriff’s Office/Sumner County
The Amended Complaint also purports to state § 1983 claims against Sumner County and
against the natural-person defendants in their official capacities. (See Orig. and Am. Compl. ¶¶
3–8.) The official capacity claims are equivalent to claims against the government entity that
employs them. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 90 n.55 (1978).
To establish municipal liability under § 1983, the plaintiff must demonstrate both (1) the
deprivation of a constitutional right, and (2) that the municipal entity is responsible for that
deprivation. Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.
2006). “For liability to attach, both questions must be answered in the affirmative.” Doe v.
Claiborne Cnty., 103 F.3d 495, 506 (6th Cir. 1996). That is, to establish that Sumner County
caused the underlying constitutional violation, the plaintiff must actually establish the predicate
Here, the court has concluded that the Amended Complaint fails to allege facts showing
that any of the individual defendants violated the plaintiff’s constitutional rights for purposes of
stating a claim under § 1983. A fortiori, the plaintiff cannot establish liability on the part of
Sumner County for having caused any such constitutional violation. Accordingly, the officialcapacity claims against the natural-person defendants and the claim against the municipality
under § 1983 are also subject to dismissal for failure to state a claim for which relief may be
Section 1981 Claim
In the original Complaint, the plaintiff alleges that the defendants’ actions violated 42
U.S.C. § 1981. In her Response to the defendants’ first Motion to Dismiss, the plaintiff states
that, in light of McCormick v. Miami Univ., 693 F.3d 654 (6th Cir. 2012), she is withdrawing her
claim under § 1981. 7 (Doc. No. 9, at 2.) Because the plaintiff has withdrawn the claim and does
not assert a § 1981 claim in the Amended Complaint, the motion to dismiss this claim is moot.
Section 1985(3) Claim
Section 1985 prohibits conspiracies “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.” 42 U.S.C. § 1985(3). To prevail on a § 1985(3) claim,
a plaintiff must prove “‘(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; (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.’” Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (quoting United Bhd.
of Carpenters & Joiners v. Scott, 463 U.S. 825, 828–29 (1983)). The Supreme Court has also
stated that “[t]he language requiring intent to deprive of equal protection, or equal privileges and
immunities, means there must be some racial or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ actions.” Griffin v. Breckenridge, 403 U.S. 88,
McCormick establishes that “§ 1983 is the exclusive mechanism to vindicate violations
of § 1981 by an individual state actor” acting in either his official or individual capacity.
McCormick, 693 F.3d at 660, 661.
The precise basis for the plaintiff’s § 1985(3) claim is unclear. The Amended Complaint
states only: “Plaintiff alleges that the facts set forth herein constitutes [sic] a conspiracy among
the Defendants to deny her equal protection under 42 U.S.C. § 1985.” (Am. Compl. ¶ 59.) Thus,
as the court understands it, the alleged conspiracy involves the failure of the individual
defendants and, arguably, the prosecuting attorney, to investigate, arrest, and prosecute Wall and
Holleran for their actions. The court finds that the Amended Complaint fails to state a claim
under § 1985(3) for two reasons.
First, as demonstrated above, the plaintiff’s allegations are insufficient to establish a
violation of her equal protection rights for purposes of stating a claim under § 1983.
Consequently, the defendants also cannot be liable, based on the same actions, for conspiring to
violate the plaintiff’s equal protection rights. Accord Thompson v. City of Memphis, 86 F. App’x
96, 103 (6th Cir. 2003) (“Thompson’s claims under both § 1983 and § 1985(3) thus depend on
hi[s] successfully establishing that the defendants discriminated against him . . . . If he was not
discriminated against, there has been no violation of his right to equal protection and no
conspiracy to deprive him of his right to equal protection.”).
And second, the plaintiff does not allege any facts that, if true, would establish that any of
the defendants’ actions was in any way motivated by racial or other class-based animus. She
states only that she is African American and that the defendants are Caucasian. She leaps from
that premise to the conclusion that the defendants’ actions are motivated by race. More evidence,
beyond the plaintiff’s speculation, is needed to support such a leap. Accord Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005); (upholding the dismissal of § 1985(3)
conspiracy claim where the plaintiff “produced no evidence to demonstrate that his [wrongful]
arrest . . . was in any way motivated by racial or other class-based animus”); Bass v. Robinson,
167 F.3d 1041, 1051 (6th Cir. 1999) (upholding dismissal of conspiracy claim where the plaintiff
failed to show that police officers’ use of excessive force was motivated by any invidious classbased animus).
The § 1985 conspiracy claim will be dismissed on both grounds.
Title VII Claims
Hostile Work Environment Claim Against Sumner County Sheriff’s
A hostile work environment claim under Title VII requires proof that:
(1) plaintiff belongs to a protected class; (2) she was subject to unwelcome
harassment; (3) the harassment was based on [her membership in the protected
class]; (4) the harassment affected a term, condition, or privilege of employment;
and (5) the defendant knew or should have known about the harassment and failed
to take action.
Phillips v. UAW Int’l, 854 F.3d 323, 327 (6th Cir. 2017) (citing Moore v. KUKA Welding Sys. &
Robot Corp., 171 F.3d 1073, 1078–79 (6th Cir. 1999). Without conceding that the facts as
alleged establish the existence of a hostile work environment, the defendants focus their
argument on whether the plaintiff has shown either that the alleged harassment was motivated by
her membership in a protected class or that the employer knew of the alleged harassment and
failed to take corrective action.
“Conduct that is not explicitly race-based may be illegally race-based and properly
considered in a hostile-work-environment analysis when it can be shown that but for the
employee’s race, she would not have been the object of harassment.” Clay v. United Parcel
Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007). The defendants here argue that the plaintiff has not
shown that race played any part in the alleged harassment or the SCSO’s disciplinary decisions.
In Clay, the plaintiff did not allege that any expressly racial comments were made in the
workplace, but she alleged that “the facially neutral conduct of her supervisor towards her was,
in fact, based on her race.” Id. In support of that theory, she submitted affidavits from herself and
two co-workers that stated that her supervisor singled her out and criticized her for conduct “in
which her white counterparts engaged with impunity,” id., including, for example, eating a
doughnut while waiting for a coworker, the route she took to get to her work station, leaving her
work station to get a cup of coffee, using the bathroom at the end of a break, and the size of her
earrings. Id. The court found that the affidavits describing these incidents “set forth specific
conduct for which [the plaintiff] was berated and for which her white co-workers were not; thus,
the district court erred in finding that these affidavits did not provide sufficient detail.” Id.
Conversely, in this case, the plaintiff does not allege any facts suggesting race-based
harassment other than the fact that she is black and the defendants are white. The plaintiff asserts
that the supervisory defendants’ pursuit of a grievance procedure, rather than a criminal
prosecution, was a “gross violation of procedure and law [that] was discriminatory because it
favored young Caucasian males at the expense of an older African-American female. (Am.
Compl. ¶ 35.) She maintains that denying her request for paid leave had the effect of continuing
to expose her a hostile work environment, but she does not explain how the environment was
hostile, because she does not allege that any other harassing conduct occurred after the October
2016 incident in the parking lot, other than the SCSO’s refusal to move Wall and Holleran to a
different shift so the plaintiff would not come in contact with them. 8 Instead of facts, the plaintiff
Correspondence between counsel for the plaintiff and the defendants attached to the
Amended Complaint indicates that the SCSO offered to move the plaintiff to a different shift, but
she refused, so neither she nor Wall and Holleran were moved. She asserts in her EEOC charge
that, “[e]ver since the incident, [her] co-workers”—presumably referring to Wall and Holleran—
“have treated [her] in an aggressive manner.” (Doc. No. 1-7.) But she does not include that
allegation or describe such behavior in her Amended Complaint—or show how it was related to
her protected status.
supports her claim with conclusory, unsupported assertions, including that the grievance
procedure “favored young Caucasian males at the expense of an older African-American female”
(Am. Compl. ¶ 35); that the rejection of her claim for paid leave exposed her to “a hostile work
environment based on her race” (Am. Compl. ¶ 46); and that the defendants’ actions were
pretextual insofar as they demonstrated that the SCSO “favored Defendants Wall and Holleran,
at the Plaintiff’s expense, thereby creating a hostile work environment based on her race, age,
and sex.” (Am. Compl. ¶ 82.)
Allegations that a plaintiff belongs to a protected class and has been subject to harassing
behavior are simply not sufficient to state a hostile work environment claim. See, e.g., Hairston
v. Dep’t of Veterans Affairs, No. 1:15-CV-660, 2015 WL 9304558, at *4 (W.D. Mich. Dec. 21,
2015) (“[T]he fact of a protected status is not enough; [the plaintiff] must allege harassment
based on that protected status.”). The factual content in this case—as distinct from the
conclusory and speculative assertions—does not show that any ongoing harassing behavior
occurred or that the purported harassment was racially motivated.
Because the plaintiff has not alleged facts suggesting that the conduct about which she
complains was motivated by her protected status as an “older” African-American woman, the
court finds that she fails to state a claim of hostile work environment, without reaching the
question of whether the employer is liable for any purported harassing behavior.
The plaintiff alleges in the Amended Complaint that the defendants, “acting both in their
individual and official capacities, created a hostile work environment beginning when Plaintiff
was assaulted on October 22, 2016 and continuing to May 25, 2017, which caused her
constructive discharge.” (Am. Compl. ¶ 79.) She alleges that the defendants, “acting in both their
individual and official capacities, deliberately created intolerable working conditions as
perceived by a reasonable person and did so with the intentions of forcing the Plaintiff to leave
her job.” (Am. Comp. ¶ 80.)
To prevail on a constructive discharge allegation based on a hostile work environment,
the plaintiff “must show harassing behavior sufficiently severe or pervasive to alter the
conditions of [her] employment” and “that the abusive working environment became so
intolerable that [her] resignation qualified as a fitting response.” Penn. State Police v. Suders,
542 U.S. 129, 133, 134 (2004). “In other words, workplace harassment that is severe and
pervasive enough to create a hostile work environment may in some circumstances
constructively discharge the employee.” Plautz v. Potter, 156 F. App’x 812, 819 (6th Cir. 2005).
In a case where, as here, the plaintiff has failed to allege facts supporting her hostile work
environment claim, which is a predicate of her constructive discharge claim, she necessarily fails
to allege sufficient facts to support a constructive discharge claim. See Suders, 542 U.S. at 149
(“Creation of a hostile work environment is a necessary predicate to a hostile-environment
constructive discharge case.”); Plautz, 156 F. App’x at 819 (“We have already decided that the
complained of actions do not rise to the level of creating a hostile work environment, and
therefore they necessarily do not rise to the level of compelling a reasonable person to resign.”);
Cooper v. Jackson-Madison County Gen. Hosp. Dist., 742 F. Supp. 2d 941, 957 (W.D. Tenn.
2010) (“Because the Court has already held that Cooper has not alleged facts sufficient to prove
that he suffered a hostile work environment, it is not necessary to analyze his hostile work
environment constructive discharge claim. Cooper’s contention is predicated on the same facts as
his hostile work environment claim, and the constructive discharge claim likewise fails.”).
The plaintiff’s constructive discharge claim must be dismissed for failure to state a claim.
The plaintiff mentions the term “retaliation” twice in her Amended Complaint, first to
assert that “all of the relevant facts set forth [in the Amended Complaint] establishes [sic] her
claims for discrimination and retaliation under Title VII and [the THRA]” (Am. Compl. ¶ 84);
and again to allege that “the Defendants’ failure to make a reasonable accommodation to her
exposure to a hostile work environment was done in violation of her seeking civil rights and
therefore constitutes retaliation” (Am. Compl. ¶ 87).
The defendants do not construe the Amended Complaint as stating an actionable claim
for retaliation and do not address any such claim. In her Response to the Motion to Dismiss the
Amended Complaint, the plaintiff quotes at length paragraphs 79 through 84 in support of her
argument that the Amended Complaint alleges sufficient facts to state claims for hostile work
environment and constructive discharge. (See Doc. No. 21, at 5–6.) Otherwise, she does not
explain how the Amended Complaint articulates a Title VII retaliation claim or otherwise
champion such a claim.
The court finds that the Amended Complaint, despite its passing reference to the term
“retaliation,” cannot reasonably be construed to state a retaliation claim. Title VII prohibits
discrimination against an employee because that employee has engaged in conduct protected by
Title VII. 42 U.S.C. § 2000e–3(a). “The opposition clause of Title VII makes it ‘unlawful . . . for
an employer to discriminate against any . . . employe[e] . . . because he has opposed any practice
made . . . unlawful . . . by this subchapter.’” Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir.
2014) (alterations in original; quoting 42 U.S.C. § 2000e–3(a)).
The plaintiff’s Incident Report to her supervisors concerning Wall and Holleran is not
activity protected by Title VII, because it does not allege that their actions were discriminatory or
motivated by discriminatory animus. The plaintiff did engage in protected activity later, when
she filed an EEOC claim and, arguably, when her attorney wrote letters to counsel for the
defendants. However, although she alleges that she was constructively discharged, she does not
actually allege that the defendants took any adverse action after she engaged in protected activity
that would support a retaliation claim. Rather, they continued to do what they had done since
closing the investigation on the plaintiff’s Incident Report, upholding her charge, and taking
disciplinary action against Wall, Holleran, and Smart. That is, they did nothing. 9 They took no
action—“because” of the plaintiff’s protected activity or otherwise. Moreover, because the
plaintiff fails to state a hostile work environment claim or a constructive discharge claim, and
because the defendant’s position remained the same both before and after the protected activity,
the SCSO’s inaction cannot be construed as retaliatory either.
To the extent the plaintiff intended to state a retaliation claim in the Amended Complaint,
she did not adequately signal that intent for purposes of putting the defendants on notice of such
a claim. And, even if she intended to state such a claim, the court finds that the Amended
Complaint does not allege sufficient facts to support such a claim.
Tennessee Human Rights Act Claims
The Amended Complaint also purports to state a claim under the Tennessee Human
Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq. (Am. Compl. Part C, “Claims Under
Title VII and T.C.A. § 4-12-101 et seq.”).) Claims under Title VII and the THRA are analyzed
identically. Bailey v. USF Holland, Inc., 526 F.3d 880, 885 n.1 (6th Cir. 2008). A conclusion that
the plaintiff fails to state a claim under Title VII requires dismissal of her THRA claims as well.
The email correspondence attached to the Amended Complaint indicates that, in
response to the plaintiff’s demands, the SCSO offered to move her to a different shift, but the
plaintiff refused the offer. The plaintiff does not allege in her Amended Complaint she was
actually required to move to a different shift.
See, e.g., Saulsberry v. Fed. Express Corp., 552 F. App’x 424, 430 (6th Cir. 2014) (dismissing
claims in tandem); Jackson v. Bd. of Educ., 494 F. App’x 539, 543 n.1 (6th Cir. 2012) (citing
Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001), for the proposition that a
“plaintiff’s failure to establish a Title VII prima facie case governs the outcome of [her] THRA
Because the plaintiff fails to state a claim for which relief may be granted under Title VII,
her THRA claim must also be dismissed.
Other State Law Claims
The court has now concluded that the Amended Complaint fails to state colorable claims
under federal law over which this court has federal question jurisdiction. 28 U.S.C. § 1331.The
plaintiff also asserts assorted Tennessee common law tort claims against Wall and Holleran,
including claims of assault, battery, outrageous conduct, and intentional infliction of mental
distress. She also maintains that the SCSO is vicariously liable for its employees’ actions under
the doctrine of respondeat superior and “owner liability.” (Am. Compl. ¶ 60.)
The court has supplemental jurisdiction over these claims, as they are “so related to
claims in the action within [the court’s] original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
However, under § 1367(c)(3), the court may decline to exercise such supplemental jurisdiction
once it has “dismissed all claims over which it has original jurisdiction.” Under this authority,
the court will decline to exercise supplemental jurisdiction over the plaintiff’s state law claims
and will, therefore, dismiss such claims without prejudice.
For the reasons set forth herein, the Amended Complaint will be dismissed in its entirety.
The plaintiff’s federal claims will be dismissed with prejudice, and her state claims will be
dismissed without prejudice. An appropriate Order is issued herewith.
ENTER this 20th day of September 2017.
ALETA A. TRAUGER
United States District Judge
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