Jacobi v. Robertson County, Tennessee et al

Filing 38

MEMORANDUM OPINION AND ORDER: For the reasons stated herein, Defendants' motion for summary judgment 17 is GRANTED as to Plaintiff's claims of excessive force and cruel and unusual punishment against the County and malicious prosecution against Deputy Pentecost. As to all other claims, because the Court sua sponte has raised issues that potentially could result in summary judgment against Plaintiff, Plaintiff must be given an opportunity to present evidence and argument on thes e issues in an attempt to avoid summary judgment. Accordingly, Plaintiff shall have until January 31, 2023 to file supplemental evidence or briefing to respond on the issue of deliberate indifference and causation raised by the Court herein with r espect to the remainder of her claims. The Court intends to rule on the Motion as promptly as feasible after January 31, 2023. Signed by District Judge Eli J. Richardson on 1/17/23. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
INA JACOBI,
Plaintiff,
v.
ROBERTSON COUNTY, TENNESSEE,
DEPUTY JARRETT PENTECOST
in his official and individual capacity

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NO. 3:20-cv-00797
JUDGE RICHARDSON

Defendants.
MEMORANDUM OPINION AND ORDER
This case concerns the Robertson County Detention Center’s use of the Inmate
Communication System (“ICS”) and Deputy Jarrett Pentecost’s two arrests of Plaintiff for
allegedly sending threatening messages through the ICS to Bridget Freeman, an individual
incarcerated at the Robertson County Jail at the time of Plaintiff’s arrests.
Pending before the Court is the motion for summary judgment (Doc. No. 17, “Motion”)
filed by Defendants Robertson County (“the County”) and Deputy Jarrett Pentecost (“Deputy
Pentecost”) (collectively, “Defendants”). Plaintiff responded, (Doc. No. 26), and Defendants
replied (Doc. No. 34). In addition, the Court has identified potential grounds for summary
judgment not raised not by Defendants. Though the Court has the authority to raise issues sua
sponte at the summary judgment stage, the opposing party “must ‘be afforded notice and
reasonable opportunity to respond to all the issues to be considered by the court.’” Shelby Cty.
Health Care Corp. v. S. Council of Indus. Workers Health & Welfare Tr. Fund, 203 F.3d 926, 931
(6th Cir. 2000) (quoting Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 105
(6th Cir. 1995)). Therefore, the Court wishes to provide Plaintiff the opportunity to submit

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supplemental briefing and any additional evidence relevant to the issues raised sua sponte by the
Court. If Plaintiff wishes to file additional evidence or briefing as to her claims, she can do so by
January 31, 2023. If no additional evidence or briefing is filed, the Court will consider the materials
provided in response to Defendants’ motion to summary judgment to make its ruling.
FACTS1
1. THE INMATE COMMUNICATION SYSTEM
The Inmate Communication System (“ICS”) is at the center of this case. The ICS permits
incarcerated persons at the Robertson County jail (“Jail”) to communicate with individuals outside
of the jail. (Doc. No. 28 at 1). Vendengine Inc., a private subcontractor, created the ICS and
continues to maintain and service the program. (Id. at 2–3). The ICS was put in place to limit the
amount of physical mail passing through the Jail, which in turn preserves the Jail’s resources and
helps limit potential contraband from entering the Jail. (Id. at 5). Because the ICS is primarily a
“feature” (as the parties put it) of the Jail and not a tool of law enforcement writ large, law
enforcement officers such as Deputy Pentecost do not come into contact with the ICS on a daily
basis. (Id.). And it appears, albeit without being directly addressed by either side in their briefing,
that law enforcement officers receive no formal training from the County or other governmental
entity on the ICS.
Plaintiff alleges that the ICS is susceptible to manipulation, such that the sender of an
electronic message can make it appear that an electronic message was sent from someone other

Unless indicated otherwise (as for example when particular facts are identified as being merely asserted
by a party or otherwise qualified in some manner), the facts set forth in this section are undisputed. Thus,
the facts set forth herein are either undisputed or specifically identified as disputed. In stating the facts
herein, the Court often uses the language used by the party that asserted the facts in the first instance; this
helps the Court ensure that the facts as stated herein are undisputed, even if the language used is less precise
or thorough than the Court would have used were it writing on a blank slate.  

1

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than the actual sender. Indeed, Plaintiff contends that the information fields for a particular
message, such as the phone number and name, in the ICS can be easily filled in by the sender (prior
to sending) to misrepresent who is actually sending the message, i.e., to make it appear that a
different individual is sending the message. (Doc. No. 27 at 3). Plaintiff refers to this tactic as
“spoofing.” (Id.). It is through these manipulative tactics, Plaintiff alleges, that she was framed for
sending threatening electronic messages to Bridget Freeman in the Jail, when in fact someone else
sent those messages. The County contends that, prior to this lawsuit, it had never been aware of
potential problems with spoofing associated with the ICS. (Doc. No. 17 at 7–8).
2. PLAINTIFF’S ARRESTS
In August 2019, Deputy Pentecost was dispatched to the residence of Kyle Freeman to
investigate a report that Plaintiff had sent threatening electronic messages to Mr. Freeman’s wife,
Bridget Freeman, via the Inmate Communication System (“ICS”). (Doc. No. 28 at 6). Deputy
Pentecost conducted an in-person interview of Mr. Freeman during which Mr. Freeman told
Deputy Pentecost that Bridget had received correspondence from Plaintiff saying that Plaintiff was
“out for blood” and that she was going to harm Mr. Freeman. (Id. at 7). Mr. Freeman also provided
a written statement to Deputy Pentecost, in which he stated that Plaintiff had sent a message to his
wife, Bridget, “stating she was gonna kill me tonight . . . .” (Id. at 7). Deputy Pentecost also
interviewed Bridget Freeman while she was incarcerated at the Jail and obtained a written
statement from her, in which she stated that Plaintiff was threatening to kill her and her husband.
(Id. at 8).
Deputy Pentecost then obtained and examined a written report from a supervisor at the Jail
(where Bridget Freeman was in fact incarcerated at the time) that included the electronic
correspondence at issue in the investigation. (Id. at 9). The County refers to the report as the “First

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ICS Printout.” (Id.). Mentioned in one of the messages was the name of Plaintiff’s late daughter,
“Mary [C]arol.” (Id. at 11). The messages were also displayed alongside a telephone number, 615838-9088 and the name “Grace,” Plaintiff’s middle name. (Id. at 11, 25).
After reviewing the First ICS Printout, Deputy Pentecost went to Plaintiff’s residence to
investigate further. Once he arrived, he spoke with Terry Williams, Plaintiff’s significant other,
who confirmed that the “615” phone number belonged to Plaintiff. (Id. at 13). When Plaintiff
arrived moments later, she also confirmed that the phone number belonged to her and that she was
the only one with access to her phone. (Id. at 14).2 At some point in the discussion, Plaintiff told
Deputy Pentecost that she and Mr. Freeman were in a disagreement regarding a camera, which
Deputy Pentecost took to be a possible motive for the threatening messages. (Id. at 16).
Deputy Pentecost then placed Plaintiff under arrest for assault, and she was booked at the
Jail on August 22, 2019 at 1:00 A.M. (Id. at 17). Plaintiff was released on bond that same morning
subject to several conditions, including refraining from contacting Bridget Freeman and making
future threats against her. (Id. at 18). That same day, Deputy Pentecost was told by the supervisor
at the Jail that Bridget Freeman had received additional threatening electronic messages via the
ICS. (Id. at 18). Plaintiff was then arrested that evening for allegedly violating her bond conditions
and an Order of Protection that Bridget Freeman had obtained against her. (Id. at 32).

The Court notes that there is disagreement between the parties regarding the extent to which Deputy
Pentecost examined Plaintiff’s phone while at her residence. (Doc. No. 28 at 14–15). Defendants contend
that Deputy Pentecost received consent from Plaintiff to examine her phone while at her residence prior to
the first arrest, but Plaintiff alleges that “Deputy Pentecost refused to look at Plaintiff’s phone . . . .” (Id. at
15). Plaintiff asserts that Deputy Pentecost did not look at Plaintiff’s phone until her second arrest and that
his review of the device did not reveal any direct evidence of the threatening messages sent to Bridget
Freeman. (Id. at 15). The Court notes that to the extent that Deputy Pentecost attempted to examine
Plaintiff’s phone prior to either of her arrests, that only bolsters the Court’s conclusion that Deputy
Pentecost conducted a reasonable investigation. Nonetheless, as discussed below, because the Court need
not reach the question of whether Deputy Pentecost had probable cause to arrest Plaintiff, it is not necessary
for the Court to resolve this factual dispute.

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PROCEDURAL BACKGROUND
Plaintiff filed this action against Robertson County and Deputy Jarrett Pentecost, alleging
under 42 U.S.C. § 1983 that her arrests and detention violated several of her constitutional rights
and that the County and Deputy Jarrett Pentecost committed several state torts against her. Plaintiff
requests compensatory and punitive damages and injunctive relief.
On January 28, 2022, Defendants moved for summary judgment on all claims against them.
(Doc. No. 17). Plaintiff filed a response (Doc. No. 26, “Response”) and Defendants filed a reply
(Doc. No. 34). As indicated above, the Court herein discusses issues not raised by the parties.
Plaintiff therefore may respond by submitting additional evidence or briefing by January 31, 2023.
If no additional evidence or briefing is submitted, the Court will resolve the Motion based on the
current record.
LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “By its very terms,
this standard provides that the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary
under applicable law is of no value in defeating a motion for summary judgment. See id. at 248.
On the other hand, “summary judgment will not lie if the dispute about a material fact is
‘genuine[.]’” Id.
A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect
the outcome of the suit under the governing substantive law.” Reeves v. Swift Transp. Co., 446

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F.3d 637, 640 (6th Cir. 2006) (citing Anderson, 477 U.S. at 248), abrogated on other grounds by
Young v. Utd. Parcel Serv., 575 U.S. 206 (2015). A genuine dispute of material fact exists if the
evidence is such that a reasonable jury could return a verdict for the non-moving party. Harris v.
Klare, 902 F.3d 630, 634–35 (6th Cir. 2018). The party bringing the summary judgment motion
has the initial burden of identifying portions of the record that demonstrate the absence of a genuine
dispute over material facts. Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir.
2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Alternatively, the moving
party may meet its initial burden by otherwise “show[ing]”—even without citing materials of
record—that the nonmovant “cannot produce admissible evidence to support a material fact (for
example, the existence of an element of a nonmovant plaintiff’s claim).” Fed. R. Civ. P.
56(c)(1)(B). If the summary judgment movant meets its initial burden, then in response the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Pittman,
901 F.3d at 628.3 Importantly, “[s]ummary judgment for a defendant [that has met its initial burden
as the movant] is appropriate when the plaintiff ‘fails to make a showing sufficient to establish
the existence of an element essential to [her] case, and on which [she] will bear the burden of proof
at trial.’” Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 805–06 (1999) (quoting Celotex, 477
U.S. at 322).
Any party asserting that a fact cannot be or genuinely is disputed (i.e., any party seeking
summary judgment and any party opposing summary judgment, respectively) can support the
assertion either by: (a) citing to materials in the record, including, but not limited to, depositions,
documents, affidavits, or declarations, Fed. R. Civ. P. 56(c)(1)(A), or (b) “showing” (i) that the
adverse party cannot produce admissible evidence to raise a genuine dispute as to that fact or (ii)

Courts (appropriately) at times refer interchangeably to a party being able to raise a genuine issue as to
fact and a reasonable jury being able to find in the party’s favor on that fact, and this Court does likewise.

3

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that contrary to the claim of the adverse party, the materials cited by the adverse party do not
actually establish the absence or presence (as the case may be) of a genuine dispute as to that fact.
In reviewing a motion for summary judgment, this court must view the evidence in the
light most favorable to the non-moving party. Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020)
(quoting Anderson, 477 U.S. at 248). Likewise, the court should view the facts and draw all
reasonable inferences in favor of the non-moving party. Pittman, 901 F.3d at 628. Credibility
judgments and weighing of evidence are improper. Hostettler v. College of Wooster, 895 F.3d 844,
852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact,
summary judgment is not appropriate. Id. The court determines whether sufficient evidence has
been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla
of evidence in support of the non-moving party’s position will be insufficient to survive summary
judgment; rather, there must be evidence upon which the jury could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
On a motion for summary judgment, a party may object that the supporting materials
specified by its opponent “cannot be presented in a form that would be admissible in evidence.”
Fed. R. Civ. P. 56(c)(2). Upon such an objection, the proponent of the supporting material must
show that the material is admissible as presented or explain how it could be presented in a form
that would be admissible. Thomas v. Haslam, 303 F. Supp. 3d 585, 624 (M.D. Tenn. 2018);
Mangum v. Repp, 2017 WL 57792, at *5 (6th Cir. Jan. 5, 2017) (citing Fed. R. Civ. P. 56(c)
advisory committee’s note to 2010 amendment).

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DISCUSSION
1. MALICIOUS PROSECUTION
Plaintiff alleges that her two arrests by Deputy Pentecost, and subsequent initiation of her
criminal prosecution, support a malicious-prosecution claim under § 1983. (Doc. No. 1 at 9, 10).
Constitutional malicious-prosecution claims—as distinguished from malicious-prosecution tort
claims under state law—are premised on the Fourth Amendment as incorporated into the
Fourteenth Amendment. See Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). “To succeed
on a malicious-prosecution claim under § 1983 [against a particular defendant] when the claim is
premised on a violation of the Fourth Amendment, a plaintiff must prove the following: First, the
plaintiff must show that a criminal prosecution was initiated against the plaintiff and that the
defendant ma[d]e, influence[d], or participate[d] in the decision to prosecute.” See id. at 308–309
(internal quotation marks omitted). “Second, because a § 1983 claim is premised on the violation
of a constitutional right, the plaintiff must show that there was a lack of probable cause for the
criminal prosecution.” See id. at 308. The plaintiff also must show that “as a consequence of the
legal proceeding,” she suffered a “deprivation of liberty, as understood in our Fourth Amendment
jurisprudence, apart from the initial seizure.” See id. at 308–309 (internal quotation marks
omitted). And finally, “the criminal proceeding must have been resolved in the plaintiff’s favor.”
See id. at 309.
Because Plaintiff’s claim of malicious prosecution is against Deputy Pentecost in his
individual capacity, the doctrine of qualified immunity is implicated. “Qualified immunity shields
government officials from civil liability in the performance of their duties so long ‘as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Getz v. Swoap, 833 F.3d 646, 652 (6th Cir. 2016) (quoting Harlow v.

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Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity will ordinarily apply unless it is
obvious that a reasonably competent official would have concluded that the actions taken were
unlawful.” See Swoap, 833 F.3d at 652. When an officer-defendant is entitled to qualified
immunity as to a particular claim, that claim must be dismissed.
In her response to Defendants’ motion for summary judgment, Plaintiff expends several
pages arguing why her claim for malicious prosecution ought to survive based on the alleged lack
of probable cause to arrest Plaintiff on both occasions. Curiously, however, Plaintiff then concedes
that Deputy Pentecost is entitled to qualified immunity, and that the Court should “grant summary
judgment to Deputy Pentecost based on his having qualified immunity.” (Doc. No. 27 at 22).
Plaintiff thus has abandoned the claim against Deputy Pentecost, and therefore summary judgment
in his favor is warranted. See, e.g., Conner v. Hardee’s Food Sys., Inc., 65 F. App’x. 19 (6th Cir.
2003) (finding that the plaintiffs had abandoned their claim “[b]ecause [they] failed to brief the
issue before the district court”); Parker v. Zale Corp., 864 F. Supp. 2d 670, 684–85 (E.D. Tenn.
2012) (noting that defendants are entitled to summary judgment as to claims that
plaintiff abandons at the summary judgment stage).
Given Plaintiff’s attention to her malicious-prosecution claim in her Response, it remains
plausible that she perhaps believes that a malicious-prosecution claim can survive against the
County. Municipalities cannot be held liable under Section 1983 on a respondeat superior theory.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, a municipality can be liable
under Section 1983 only on the basis of so-called Monell liability, which requires the plaintiff to
establish that: “(1) the plaintiff’s harm was caused by a constitutional violation; and (2) the
[municipality] was responsible for that violation.” Spears v. Ruth, 589 F.3d 249, 256 (6th Cir.
2009). Given the requirements of Monell liability, “municipalities are liable for harms resulting

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from a constitutional violation only when the injury resulted from an ‘implementation of [the
municipality’s] official policies or established customs.’” Spears, 589 F.3d at 256 (quoting Monell,
436 U.S. at 708 (Powell, J., concurring)) (emphasis in original). Monell liability requires a showing
that the alleged misconduct is the result of a policy, statement, regulation, decision or custom
promulgated by the municipality or its agent. Monell, 436 U.S. at 690–91. A plaintiff can make a
showing of an illegal policy or custom by demonstrating one of the following circumstances: “(1)
the existence of an illegal official policy or legislative enactment; (2) that an official with final
decision making authority ratified illegal actions; (3) the existence of a policy of inadequate
training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal
rights violations.” Burgess v. Fisher, 735 F.3d 462, 478 (6th Cir. 2013). The Court addresses below
the possibility of Monell liability for the County based on the alleged malicious prosecution. But
with respect to Plaintiff’s claim of malicious prosecution against Deputy Pentecost, suffice it to
say that (as noted above) Plaintiff has abandoned the claim.
The Court pauses to make an additional point about the claim against Deputy Pentecost
and its relationship to the claim against the County. From the face of the Complaint, it appears that
Plaintiff purports to sue Deputy Pentecost in his official capacity (as well as his individual
capacity). Suing an individual in his or her official capacity “generally represents another way of
pleading an action against an entity of which an officer is an agent.” See Monell, 436 U.S. at 690
n. 55. Therefore, to the extent that Plaintiff seeks to hold Deputy Pentecost liable in his official
capacity for the claims contained in the Complaint, these “claims are duplicative of the municipal
liability claim lodged against the County,” Carthew, 709 F. Supp. 2d at 19, that the Court
addresses below. When such duplication is identified in the context of a motion for summary
judgment, courts have granted summary judgment on the duplicative official-capacity claim

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brought against the individual defendant(s). See e.g., Just. v. Atchison, No. CIV.A. 5:08-148-JMH,
2009 WL 3413914, at *2 (E.D. Ky. Oct. 20, 2009) (ruling that “summary judgment on all of the
claims against all [individual] Defendants in their official capacities will be granted
as duplicative of the claims against [the county defendant]”); Brown v. Wichita Cnty., No. 7:05–
CV–0108–O–KA, 2009 WL 2393821, at *3 n. 1 (July 23, 2009) (granting summary judgment for
Wichita County Sheriff in his official capacity as duplicative of suit against Wichita County). This
Court will do likewise.
2. FAILURE TO TRAIN
a. Malicious Prosecution
Plaintiff alleges that the County is liable under § 1983 because it failed to train Deputy
Pentecost on the ICS and this failure led to her alleged malicious prosecution. Specifically,
Plaintiff argues that the County should have trained its “officers on the ICS such they [had] a basic
understanding of the ICS operation and of the vulnerability of the ICS to spoofers….” (Doc. No.
27 at 17). The County argues that Plaintiff cannot meet the deliberate-indifference standard
required to support her failure-to-train claim. Plaintiff, by contrast, argues that the County’s failure
to provide any training to officers such as Deputy Pentecost on the ICS amounts to deliberate
indifference due to the vulnerability of the ICS to spoofing. Although not an issue raised by
Defendants, the Court finds it likely that Plaintiff’s concession of Deputy Pentecost’s qualified
immunity as to her malicious prosecution claim precludes her from succeeding on her failure-totrain claim.
For a municipality to be liable under § 1983 based on harm resulting from the failure to
implement a municipal policy, the lack of a policy must amount to deliberate indifference to the
injured party. See Blackmore v. Kalamazoo Cty., 390 F.3d 890, 900 (6th Cir. 2004); see also

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Escamilla v. Webb Cnty., Tex., No. 5:11-CV-13, 2015 WL 3771085, at *6 (S.D. Tex. June 17,
2015) (“For a [municipality] to be liable for failing to act affirmatively, such as a failure to train
or supervise, or a failure to implement a policy, a plaintiff must show that the [municipality] was
deliberately indifferent to the fact that its failure to act would likely cause violations of particular
constitutional rights.” (citation omitted)). As indicated above, a failure to train can be a
circumstance that supports Monell liability, but only if there exists what amounts to a municipal
policy (as opposed to a mere instance) of inadequate training. See Burgess, 735 F.3d at 478.
Moreover, the alleged failure to train must reflect a deliberate indifference to the rights of those
who come within the sphere of municipal employees. See Cerbelli v. City of New York, 600 F.
Supp. 2d 405, 412 (E.D.N.Y. 2009) (“To the extent plaintiff’s Monell claim is based on [a
municipality’s] alleged failure to train. . . , plaintiff must show that the alleged failure ‘amounts to
deliberate indifference to the rights of persons with whom the [municipal employees] come into
contact.’” (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989))). In summary, to establish
a municipality’s liability based on a failure-to-train theory, a plaintiff must show that the
municipality 1) acted with deliberated indifference “to the fact that its inadequate training or
supervision would lead its agents to violate constitutional rights,” and 2) the improper training
“actually caused” the plaintiff’s injury. See Gambrel v. Knox County, Kentucky, 25 F.4th 391, 408–
409 (6th Cir. 2022). The Court is unpersuaded that Plaintiff can succeed on either requirement.
i.

Deliberate indifference

The Sixth Circuit has found that “[t]o show deliberate indifference, a plaintiff must prove
that the violation of a clearly established right was a ‘known or obvious consequence’ of the lack
of training or supervision.” See Gambrel, 25 F.4th at 408 (quoting Connick v. Thompson, 563 U.S.

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51, 61 (2011)); Watson v. Sexton, 755 F. Supp. 583 (S.D.N.Y. 1991) (“To be ‘deliberately
indifferent’ to rights requires that those rights be clearly established.”).
The requirement, for a failure-to-train claim, that the right at issue be “clearly established”
is reminiscent of the requirements for qualified immunity. But the existence of such a requirement
for a failure-to-train claim does not suggest that municipal defendant can have qualified immunity
the way an individual defendant can; indeed, the U.S. Supreme Court rejected such a suggestion
over four decades ago. See Owen v. City of Independence, Mo., 445 U.S. 622, 638 (1980). Rather
than going to whether a municipality has qualified immunity (which, as just noted, as a matter of
law it cannot), the requirement that a constitutional right be clearly established for a municipality
to be liable (based on deliberately indifference to such right) serves to prevent the excessive
liability that would be engendered by holding “local government automatically liable for the
injuries that their agents cause.” See Gambrel, 25 F.4th at 408.
The deliberate indifference requirement adds an additional layer to a failure-to-train claim.
The plaintiff must establish not only a failure on the part of a municipality to train its agents, but
also a resulting violation of a clearly established constitutional right at the hands of a municipal
agent. “When a plaintiff attempts to establish municipal liability based on a ‘failure to train
employees,’ he must show the municipality’s ‘deliberate indifference to constitutional rights.’
Nichols v. Wayne Cnty., Michigan, 822 F. App’x 445, 452 (6th Cir. 2020) (quoting Arrington-Bey
v. City of Bedford Heights, 858 F.3d 988, 994 (6th Cir. 2017)). “But a municipal policymaker
cannot exhibit fault rising to the level of deliberate indifference to a constitutional right when that
right has not yet been clearly established.” Id. (internal quotation marks omitted). It follows that
where a plaintiff is unable to prove either the underlying violation of a constitutional right or that

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such right was clearly established, they cannot proceed on the related failure-to-train claim.
Nichols illustrates this concept. 822 F. App’x 445.
In Nichols, the Sixth Circuit affirmed the dismissal of a failure-to-train claim because the
plaintiff (Nichols) failed to prove a violation of a constitutional right that was clearly established.
Officers seized Nichols’s car on suspicion that it was involved in a violation of Michigan’s Identity
Theft Protection Act. See Nichols, 822 F. App’x at 446. The prosecutor never initiated forfeiture
proceedings, and Nichols eventually had his car returned. See id. Nichols then filed suit against
the county alleging that the Due Process Clause entitled him to an intervening hearing between the
seizure of his car and the forfeiture proceedings. See id. Specifically, Nichols argued that the
county prosecutor “failed to train and supervise attorneys” on the need for “prompt post-seizure,
pre-forfeiture hearings in front of a neutral decision maker.” See id. at 451–452 (internal quotation
marks omitted). The Sixth Circuit disagreed. Because Nichols failed to direct the court to any
precedent sufficient to prove that such a constitutional right to an intervening hearing within a
certain time was clearly established, his failure-to-train claim could not proceed. See id. at 452.
Therefore, in Nichols, the plaintiff had to prove that he both suffered a violation of a clearly
established constitutional right and that the county (i.e., the county prosecutor, who was the
“municipal policymaker” of the kind to which the Sixth Circuit was referring) failed to train the
attorneys so as to avoid violation of that right. Because the plaintiff could not meet the first
requirement, his failure-to-train claim could not proceed.
Plaintiff faces a similar problem in this case as to her failure-to-train claim premised on a
violation of her right against malicious prosecution. Plaintiff conceded that Deputy Pentecost is
entitled to qualified immunity, and therefore she has implicitly waived (or perhaps forfeited) any
argument that she had a clearly established right against her alleged malicious prosecution.

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Although Plaintiff’s concession on this point was made with respect to Deputy Pentecost’s
qualified immunity, the Court is hard-pressed to find that the right was clearly established for
purposes of a claim against the County when (by Plaintiff’s own concession) the right was not
clearly established for purposes of a claim against Deputy Pentecost. Therefore, the Court finds it
unlikely that Plaintiff is able to raise a genuine issue of material fact as to her failure-to-train claim
against the County—i.e., that it is unlikely that she will be able to show evidence sufficient to raise
a genuine dispute as to the material (indeed essential) issue of whether Deputy Pentecost violated
a clearly established right of Plaintiff against malicious prosecution as required to show the
deliberate indifference that is indispensable to Plaintiff’s failure-to-train claim against the County.4
ii.

Causation

Even if Plaintiff were successful in proving deliberate indifference, which the Court finds
that she likely will not be, the Court finds that causation is likely lacking. Plaintiffs pursuing a
failure-to-train claim must prove “two types of causation from the common law of torts: but-for
(or factual) causation and proximate causation.” See Gambrel, 25 F.4th at 408–209. Actual
causation requires “proof that proper training would have prevented” the particular constitutional
violation, whereas proximate cause requires “that a municipality could reasonably foresee that an
employee’s wrongful act would follow from the lack of training.” See id. at 409. Although this
point is not often discussed in this circuit, other courts have noted that “[t]o establish a causal
nexus ‘the identified deficiency in [the] training program must be closely related to the ultimate

Arguably, where the underlying alleged constitutional violation supporting the failure-to-train claim is
one attributable directly to the county (such as an allegedly unconstitutional municipal ordinance), the
plaintiff should not be required to prove a violation of a clearly established right. Arrington-Bey v. City of
Bedford Heights, Ohio, 858 F.3d 988, 994 (6th Cir. 2017).
4

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[constitutional] injury.” Parker v. School District of Philadelphia, 346 F. Supp. 3d 738, 746 (E.D.
Pa. 2018) (internal quotation marks omitted).
It remains unclear how adequate training on the ICS would have changed Deputy
Pentecost’s decision to arrest Plaintiff (on both occasions), thereby beginning the process of her
prosecution. As noted, Plaintiff argues that the County should have trained its officers to have a
“basic understanding of the ICS operation” and of the “vulnerability of the ICS to spoofers….”
(Doc. No. 27 at 17). Although Plaintiff fails to provide any additional description of the nature or
extent of training that she contends should have been given (and would have prevented injury to
Plaintiff), it seems that Plaintiff is alluding to training geared to warning law enforcement officers
that the ICS—like almost any technology that permits electronic communication—is susceptible
to hacking or spoofing. In other words, any training on the ICS would include a warning to officers
not to take the information from the messages sent via the ICS at face-value as to who sent the
message (and any other information relevant to the investigation, such as the phone number), but
instead, to take reasonable investigatory steps to corroborate that information.
Deputy Pentecost, however, did not rely solely on the information from the face of the
electronic messages. He conducted a thorough investigation, interviewing and taking the written
statements of several witnesses, examining Plaintiff’s phone, identifying a motive, using
contextual clues from the messages to connect them with Plaintiff, and matching the identifying
information from the messages with that belonging to Plaintiff, as well as gathering additional
facts. Plaintiff appears to be under the illusion that a training would have necessarily resulted in
Deputy Pentecost believing that the identifying information from the ICS messages was false.
(Doc. No. 27 at 12). This, however, is a logical leap. At most the training would have ensured that
officers corroborate the information available from the ICS. Because Deputy Pentecost carried out

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the reasonable steps to attempt to confirm the identity of the sender of the ICS messages, Plaintiff
is unlikely to be able to show but-for causation. Even if Deputy Pentecost had not undertaken the
investigatory steps that he did, the Court refuses to assume that the training suggested by Plaintiff
would have necessarily corrected a misimpression of Deputy Pentecost that the messages were not
spoofed. In other words, the Court does not accept the premise that that those working in law
enforcement operate on the assumption that all electronically sent messages bear truthful and
accurate information regarding the identity of the sender, unless and until they are explicitly
warned that the assumption is unsafe and that the purported identity of the sender may be
inaccurate. Such a premise flies in the face of common sense, not to mention the real-world
experience of the undersigned.5 Therefore, the Court remains unpersuaded that Plaintiff would be
able to prove that adequate training on the ICS would have prevented the alleged malicious
prosecution of Plaintiff, which in turn prevents Plaintiff from succeeding on her failure-to-train
claim.6

The undersigned spent approximately a decade doing criminal investigations, first as a sworn federal agent
and then as a federal prosecutor. A particular focus of his work (especially as a federal agent) was
investigating threatening communications (including electronically sent messages) violative of federal law.
Over and over during this time, he encountered situations where the actual identity of the sender of a
threatening message was vital to an investigation. It would be a huge understatement to say that in these
situations, the purported identity of the sender of a message (as reflected in the body and/or the header of
an electronic message) was not assumed the be the actual identity of the sender. It was entirely obvious to
the undersigned that no such assumption should be made, and the undersigned would be giving himself far
too much credit were he to maintain that this would not likewise be obvious to the vast majority of lawenforcement personnel tasked with investigating threatening communications.
The undersigned notes that his experience in law enforcement does not bias him in favor of either
Defendant in any way whatsoever.

5

6

Plaintiff may argue that the existence of causation is belied by the fact that Deputy Pentecost agreed in
his deposition that without the phone number in the data field in the ICS and his belief that the information
was accurate, “he would not have had probable cause to have arrested the [Plaintiff].” (Doc. No. 27 at 7).
Such an argument, however, would not hold water. Indeed, had it provided training on the susceptibilities
of the ICS to spoofing or hacking, the County may have thereby made clear (in what the undersigned is
confident would already have been understood by the vast majority of law-enforcement personnel) that the
sender information in the ICS message here at issue could have been spoofed (or otherwise inaccurate). But

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b. Remaining Failure-To-Train Claims
In additional to her failure-train-claim based on her alleged malicious prosecution, Plaintiff
alleges that the County’s failure to train Deputy Pentecost on the ICS also resulted in “excessive
force, unlawful seizure, illegal arrest, false imprisonment, and incarceration of the [Plaintiff] and
cruel and unusual punishment.” (Doc. No. 1 at 11). With respect to the failure-to-train claims based
on excessive-force and cruel-and-unusual punishment, Plaintiff has implicitly forfeited (or waived,
or abandoned) these claims by failing to defend against Defendants’ arguments made in their
motion for summary judgment. Therefore, summary judgment on Plaintiff’s the failure-to-train
claims for excessive force and cruel and unusual punishment is warranted. See Nichols v. Michigan
City Plant Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives any
arguments that were not raised in its response to the moving party’s motion
for summary judgment.”).7
Furthermore, as is the case here, when “a false-imprisonment claim arises out of an alleged
false arrest,” the claims are treated as “identical.” See Weser v. Goodson, 965 F.3d 507, 513 (6th
Cir. 2020).8 Therefore, though Plaintiff’s false imprisonment and false arrest violations are brought

that is not to say that had Deputy Pentecost been provided such training, he necessarily would have
concluded (considering all the circumstances surrounding that message as illuminated by his investigation)
that the message actually was spoofed.
7

The Court notes that it is particularly odd that Plaintiff asserts failure-to-train claims based on alleged
violations of her rights against excessive force and cruel and unusual punishment. Beyond the fact that
Plaintiff likely cannot establish that the County was deliberately indifferent, Plaintiff has alleged no facts
explaining how the County’s failure to provide training on the ICS would have caused any alleged excessive
force in the carrying out of her arrest(s) or infliction of cruel and unusual punishment while incarcerated.
That is, any training on the ICS provided to law enforcement would have no bearing on how arrests
connected to information gathered from the ICS are carried out, let alone how those arrestees are then
treated once incarcerated.

8

Because Plaintiff provides no additional facts as to her alleged false imprisonment, the Court assumes that
the alleged false imprisonment consisted of her detention after her arrests.

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as-failure-to-train claims as is necessary to hold the County liable, the Court considers these
violations identical and will refer to them as a single failure-to-train claim based on Plaintiff’s two
allegedly illegal arrests.
Therefore, the remaining claims to be addressed are Plaintiff’s failure-to-train claims based
on illegal arrests and unlawful seizure violations, all of which require Plaintiff to prove lack of
probable cause. See Holloran v. Duncan, 92 F. Supp. 3d 774, 792 (W.D. Tenn. 2015); Waad v.
Willis, 2018 WL 6505371, at *13 (E.D. Mich. Dec. 11 2018). Further, because Plaintiff seeks to
hold the County liable for these alleged constitutional violations, she must also show that her rights
against the unlawful seizure and illegal arrests were clearly established.
It strikes the Court, however, that Plaintiff’s concession with respect to her malicious
prosecution claim against Deputy Pentecost may negatively affect her ability to succeed on her
failure-to-train claims based on unlawful seizure and illegal arrests violations. As discussed,
Plaintiff abandoned her malicious prosecution claim against Deputy Pentecost when she conceded
that Deputy Pentecost is entitled to qualified immunity on the grounds that it was not clearly
established that his actions regarding her arrests and eventual prosecution amounted to malicious
prosecution. Plaintiff asserts that probable cause to arrest her was lacking,9 and she treats probable
cause as the only element of a malicious prosecution claim that is subject to reasonable dispute.
This means that if she concedes that the violation of her right not to be subject to malicious
prosecution was not clearly established, (which she does), that must be because she concedes that

In her discussion of Deputy Pentecost’s qualified immunity, she writes, “Plaintiff genuinely believes that
Defendant Pentecost was at the time of the arrest and remains under the mistaken belief and assumption
that the ICS data was reliable and trustworthy . . . .” (Doc. No. 27 at 21). Her position is clearly that Deputy
Pentecost lacked probable cause based on the lack of reliability of the facial indication on the ICS messages
as to who sent them.

9

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the absence of probable cause was not clearly established, i.e., would not have been clear to a
reasonable officer in Deputy Pentecost’s position. So Plaintiff’s concession was really to the effect
that it was not clearly established that Deputy Pentecost lacked probable cause at the time of the
arrests.
Having effectively conceded that it is was not clearly established that probable cause was
lacking, and consequently, that it was not clearly established that Deputy Pentecost maliciously
prosecuted Plaintiff, Plaintiff seems unlikely to be able to succeed on her failure-to-train claim
against the County for the alleged unlawful seizure and illegal arrests she suffered. As noted,
Plaintiff will have to prove probable cause for both claims. Further, because she brings these claims
under a theory of failure to train, she will also have to prove that Deputy Pentecost’s actions
violated her clearly established rights against unlawful seizure and illegal arrest—something she
effectively conceded that she could not prove in connection with her claim against Deputy
Pentecost for malicious prosecution (by effectively conceding that it was not clearly established
that Deputy Pentecost lacked probable cause to arrest her).10 Therefore, the Court finds it unlikely
that Plaintiff will be able to prevail on her failure-to-train claims based on unlawful seizure and
illegal arrests violations against the County.

The Complaint refers to the state law tort of invasion of privacy. (Doc. No. 1 at 8, 11). Plaintiff does not
attempt to defend or pursue this claim in her response to Defendants’ motion to for summary judgment.
Her failure to mount a defense to Defendants’ arguments in their summary judgment motion as to the state
law claims is equivalent to a waiver or forfeiture of those claims. See Nichols v. Michigan City Plant
Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives any arguments that were
not raised in its response to the moving party's motion for summary judgment.”). Even assuming that
Tennessee courts uniformly recognize a stand-alone tort of invasion of privacy, the Complaint fails plead
any facts supporting such a claim. See Roberts v. Essex Microtel Associates, II, L.P., 46 S.W. 3d 205 (Tenn.
Ct. App. 2000) (discussing whether Tennessee recognizes the tort of invasion of privacy and determining
it does). While Tennessee Courts have not opined on the elements of the tort, the Second Restatement of
Torts—which is also cited by the court in Roberts—states that “the right of privacy is invaded by”
“unreasonable intrusion upon the seclusion of another…” Restatement (Second) of Torts § 652A(2)(a).
Plaintiff has supplied no facts rising to the level of an invasion of privacy. Instead, Plaintiff’s facts illustrate
nothing more than a routine investigation undertaken by a law enforcement official in ordinary course.

10

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CONCLUSION
For the reasons stated herein, Defendants’ motion for summary judgment is GRANTED as
to Plaintiff’s claims of excessive force and cruel and unusual punishment against the County and
malicious prosecution against Deputy Pentecost. As to all other claims, because the Court sua
sponte has raised issues that potentially could result in summary judgment against Plaintiff,
Plaintiff must be given an opportunity to present evidence and argument on these issues in an
attempt to avoid summary judgment. Accordingly, Plaintiff shall have until January 31, 2023 to
file supplemental evidence or briefing to respond on the issue of deliberate indifference and
causation raised by the Court herein with respect to the remainder of her claims. The Court intends
to rule on the Motion as promptly as feasible after January 31, 2023.
IT IS SO ORDERED.
_______________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

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