Alexander v. Byrd et al

Filing 116

ORDER GRANTING DEFENDANTS 79 MOTION FOR SUMMARY JUDGMENT. Signed by Chief Judge S. Thomas Anderson on 6/21/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
DAWN ALEXANDER,

)
)
Plaintiff,
)
v.
)
No. 14-1022-STA-egb
)
TONY M. BYRD, Deputy Sheriff for Gibson
)
County, Tennessee, individually,
)
)
Defendant.
)
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Before the Court is Defendant Tony M. Byrd’s Motion for Summary Judgment (ECF No.
79) filed on November 20, 2015. Plaintiff Dawn Alexander has responded in opposition, and
Defendant has filed a reply brief.

On March 24, 2017, the case was transferred to the

undersigned for all further proceedings. For the reasons set forth below, Defendant’s Motion for
Summary Judgment is GRANTED.
BACKGROUND
Plaintiff filed a Complaint on January 28, 2014, alleging the violation of her
constitutional rights under 42 U.S.C. § 1983 as well as claims under Tennessee law. Plaintiff
brought § 1983 claims for the infringement of her Fourth and Eighth Amendment rights to be
free from arrest, imprisonment, the unreasonable use of force, and prosecution without probable
cause. Plaintiff also alleged claims for malicious prosecution, false arrest/imprisonment, assault
and battery, and the intentional infliction of emotional distress, all under Tennessee common
law. The Complaint named as Defendants Gibson County, Tennessee; the Gibson County
Sheriff’s Department; the City of Medina, Tennessee; Tony M. Byrd, a Gibson County deputy
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sheriff in his individual capacity (“Deputy Byrd”); Chad Lowery, the chief of police for the City
of Medina (“Chief Lowery”); and Jason McCallister, a Medina police officer (“Officer
McCallister”). On October 24, 2014, the Court dismissed all of Plaintiff’s § 1983 claims against
Gibson County and the Gibson County Sheriff’s Department and declined to exercise
supplemental jurisdiction over Plaintiff’s state law claims against any Defendant. However, the
Court denied Deputy Byrd’s motion to dismiss (ECF No. 32) the § 1983 claims against him in
his individual capacity. The parties subsequently filed stipulations of dismissal (ECF Nos. 36,
48) as to the City of Medina, Chief Lowery, and Officer McCallister, as to all claims, leaving
only Plaintiff’s § 1983 claims against Deputy Byrd for trial.
On July 1, 2015, counsel for Deputy Byrd filed a suggestion of death (ECF No. 64)
reporting the death of Deputy Byrd, and the Court granted Plaintiff’s motion to substitute the
administrator ad litem for Deputy Byrd’s estate on February 15, 2016. Deputy Byrd now seeks
judgment as a matter of law on Plaintiff’s § 1983 claims against him. Pursuant to Local Rule
56.1(a), Defendant has prepared a statement of facts “to assist the Court in ascertaining whether
there are any material facts in dispute.” Local R. 56.1(a). A fact is material if the fact “might
affect the outcome of the lawsuit under the governing substantive law.” Baynes v. Cleland, 799
F.3d 600, 607 (6th Cir. 2015) (citing Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) and
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). A dispute about a material fact
is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. For purposes of summary judgment, a party
asserting that a material fact is not genuinely in dispute must cite particular parts of the materials
in the record and show that the materials fail to establish a genuine dispute or that the adverse
party has failed to produce admissible evidence to support a fact. Fed. R. Civ. P. 56(c)(1).

2

The non-moving party at summary judgment is required to respond to each of the moving
party’s statements of fact “by either (1) agreeing that the fact is undisputed; (2) agreeing that the
fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3)
demonstrating that the fact is disputed.” Local R. 56.1(b). Additionally, the non-moving party
may “object that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Where the non-moving asserts that
a genuine dispute of material fact exists, the non-moving must support his or her contention with
a “specific citation to the record.” Local R. 56.1(b). If the non-moving fails to demonstrate that
a fact is disputed or simply fails to address the moving party’s statement of fact properly, the
Court will “consider the fact undisputed for purposes” of ruling on the Motions. Fed. R. Civ. P.
56(e)(2); see also Local R. 56.1(d) (“Failure to respond to a moving party’s statement of material
facts, or a non-moving party’s statement of additional facts, within the time periods provided by
these rules shall indicate that the asserted facts are not disputed for purposes of summary
judgment.”). Under Rule 56 of the Federal Rules of Civil Procedure, the Court “need consider
only the cited materials” but has discretion to “consider other materials in the record.” Fed. R.
Civ. P. 56(c)(3).
The Court finds that the following facts are undisputed for purposes of Deputy Byrd’s
Rule 56 Motion, unless otherwise noted. On January 28, 2013, Plaintiff arrived at her son’s
home at 21 Sitka Road in Gibson County, Tennessee. (Def.’s Statement of Undisputed Fact ¶ 1.)
Upon her arrival, Plaintiff noticed police cars parked in the driveway of her sister’s house at 19
Sitka Road. (Id.) Plaintiff parked her vehicle and walked over to her sister’s house to see what
was happening. (Id. ¶ 2.)1 As Plaintiff walked up her sister’s driveway, she saw four men
1

Plaintiff has responded that this statement is disputed in part and then asserted a number
of additional facts about what Plaintiff did after she noticed the police cars. The Court finds that
3

huddled behind her sister’s vehicle. (Id. ¶ 3.) The four men were Deputy Byrd of the Gibson
County Sheriff’s Department and Chief Lowery, Officer McCallister, Officer Don Burress of the
Medina Police Department. (Id. ¶ 4.) Plaintiff disputes this fact and argues that a police
dashcam video recording shows that the fourth man was Hayden Green, Plaintiff’s nephew, and
not Officer McCallister. (Pl.’s Resp. to Def.’s Statement ¶ 4.) The dashcam video is an exhibit
to Deputy Byrd’s Rule 56 Motion.
Prior to Plaintiff’s arrival on the scene, Officer Burress had pulled over Plaintiff’s
nephew Hayden Green on suspicion that Green was driving under the influence and that Green
had been involved in a hit-and-run auto accident in the Medina city limits. (Def.’s Statement of
Undisputed Fact ¶ 5.)2

Shortly after Officer Burress stopped Green, Chief Lowery and Officer

McCallister arrived on the scene. (Id. ¶ 6.) The parties disagree over whether the Medina Police
Department had the authority to stop Green outside of the Medina city limits. Deputy Byrd
arrived on the scene after Chief Lowery and Officer McCallister. (Id. ¶ 7.) The parties agree
that Deputy Byrd had no authority over Chief Lowery, Officer Burress, or Officer McCalister, in
that Deputy Byrd did not supervise or control Medina Police officers. The parties disagree over
whether Deputy Byrd had the legal authority to stop Medina Police officers acting outside of the
scope of their employment and beyond the limits of their lawful jurisdiction. (Id. ¶¶ 8, 9.)
none of the additional facts cited show that a genuine dispute exists about Defendant’s statement.
In fact, the Court finds that none of Plaintiff’s additional facts appear about to be material to the
issues presented at summary judgment.
2

Plaintiff does not dispute that Officer Burress had pulled Green over and suspected that
Green was involved in a hit-and-run accident. Plaintiff does dispute whether Officer Burress had
a reasonable suspicion that Green was driving under the influence. (Pl.’s Resp. to Def.’s
Statement ¶ 5.) Plaintiff points out that Officer Burress was outside of the Medina city limits
and therefore outside of his jurisdiction. (Id.) But Plaintiff has not shown why these facts
actually dispute Defendant’s claim that Officer Burress suspected Green was driving under the
influence.
4

According to Defendant, Deputy Byrd was not involved in making the traffic stop and was
present at the scene simply to provide assistance to the Medina Police if necessary. (Id. ¶ 10.)
Plaintiff cites the fact that Officer Burress requested his dispatcher to send a “county unit” out
because the stop had occurred in the county, and not in the City of Medina. (Pl.’s Resp. to Def.’s
Statement ¶ 10.) Plaintiff argues that Officer Burress needed Deputy Byrd to effectuate an arrest
in the county. (Id.)
After making the stop, Officer Burress interviewed Green and conducted field sobriety
tests to determine whether Green had been driving under the influence. (Def.’s Statement of
Undisputed Fact ¶ 11.) Officer Burress concluded that Green was intoxicated and was the driver
involved in the hit-and-run accident. (Id. ¶ 12.) The City of Medina officers placed Green under
arrest. (Id.) When Green refused to comply with the officers’ instructions, Chief Lowery and
Officer McCallister assisted Officer Burress in handcuffing Green. (Id. ¶ 13.)3 Upon her arrival
in the driveway, Plaintiff recognized that her nephew was in the middle of the group of officers.
(Id. ¶ 14.) Chief Lowery, Deputy Byrd, and Officer Burress ordered Plaintiff to return to her
vehicle, and Plaintiff refused. (Id. ¶ 16.) Plaintiff asked “what is going on?” to which her
nephew responded, “I don’t know, Mama Dawn, they are arresting me for nothing.” (Id. ¶¶ 17,
18.)
When Officer McCallister asked Plaintiff to leave the scene, Plaintiff answered, “No, this
is my nephew, this is all of our properties.” (Id. ¶ 19.) The video shows Officer McCallister
again asking Plaintiff to leave; Plaintiff took one step back and then said she wanted to ask her
nephew some questions. (Id. ¶ 20.) Officer McCallister put his hand on Plaintiff’s right arm and
again told her to go back to her car. (Id. ¶ 21.) Plaintiff told Officer McCallister to get his
3

Plaintiff asserts that Deputy Byrd was also present and assisted in handcuffing Green,
though Plaintiff cites no evidence to support her claim.
5

“hands off me” and refused to leave. (Id. ¶ 22.) At that point Officer McCallister put Plaintiff
under arrest and began to place her in handcuffs. (Id. ¶¶ 23, 25.) Plaintiff asserts that Officer
McCallister gripped her arm and shoulder forcefully as he went to apply the handcuffs while
Deputy Byrd stood by. (Pl.’s Resp. to Def.’s Statement ¶ 23.) Officer McCallister put Plaintiff
in his patrol car by forcing her to walk down the driveway. (Def.’s Statement of Undisputed
Fact ¶ 26.)4 While Deputy Byrd denies that he directed or assisted in any way in the effort to
arrest Plaintiff, Plaintiff asserts that Deputy Byrd directed Officer McCallister to put Plaintiff in
his patrol car. (Pl.’s Resp. to Def.’s Statement ¶ 29.) Plaintiff further asserts that Deputy Byrd
filed the affidavit of complaint against her and otherwise failed to intervene when the other
officers placed her under arrest, used excessive force, and detained her unreasonably. (Id.)
After sitting in the patrol car for 30 to 45 minutes, Plaintiff was joined in the car by
Officer McCallister who informed Plaintiff she was under arrest for assaulting a police officer.
(Def.’s Statement of Undisputed Fact ¶ 30.) Officer McCallister was the only officer on the
scene to advise Plaintiff she was under arrest. (Id. ¶ 31.) Officer McCallister transported
Plaintiff to the Gibson County Jail where Plaintiff was booked into the jail. (Id. ¶ 32.) That
evening, Gibson County General Sessions Judge Mark Agree called the jail and ordered that
Plaintiff be released on her own recognizance. (Id. ¶ 33.)5 Plaintiff was released at 7:18 p.m.
(Id.)

4

Plaintiff adds that Deputy Byrd pushed her face down onto the trunk of the police car
while Officer McCallister frisked her for weapons. (Pl.’s Resp. to Def.’s Statement ¶¶ 27, 28.)
For reasons more fully explained below, the Court holds that this portion of Plaintiff’s summary
judgment affidavit is not admissible.
5

Plaintiff states that Judge Agee’s involvement is disputed because she has no personal
knowledge of it. Be that as it may, Plaintiff has cited no evidence to show that a genuine dispute
exists about Judge Agee’s order.
6

Later that night, Deputy Byrd filed two affidavits of complaint with the Gibson County
General Sessions Court, charging Plaintiff with resisting arrest and assaulting a police officer.
(Id. ¶ 34.) The parties seem to dispute the timing of Deputy Byrd’s affidavits: Deputy Byrd’s
statement of fact suggests he prepared the affidavits after Plaintiff was released; Plaintiff
maintains she was not released until much later. It is undisputed that Plaintiff was never served
with any warrants while she was still at the jail. (Id. ¶ 35.)
On April 2, 2013, the court conducted a preliminary hearing on the charges and dismissed
them for lack of probable cause. (Id. ¶ 36.)6 During the preliminary hearing, Judge Thomas L.
Moore, presiding, heard testimony and reviewed the video recording of the episode, though he
did not listen to the audio. (Id. ¶ 37.) Judge Moore found that there was no evidence of assault.
(Id.)7 The video never shows Deputy Byrd physically touching Plaintiff. (Id. ¶ 39.) Deputy
Byrd was not involved in placing handcuffs on Plaintiff or removing the handcuffs from
Plaintiff. (Id. ¶ 40.)8
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that a party is entitled to summary
judgment if the moving party “shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp.
6

Plaintiff objects that the transcript of the hearing is inadmissible hearsay and lacks
relevance to the claims in this suit. Because the Court finds it unnecessary to consider the
transcript to decide the Motion for Summary Judgment, the Court need not decide whether it is
admissible or relevant.
7

Judge Moore remarked during the preliminary hearing that Plaintiff’s actions appeared
to be “classic” disorderly conduct. Plaintiff has objected to the admissibility of Judge Moore’s
comments from the bench. The Court notes Plaintiff’s objection for the record. The Court finds
it unnecessary to consider Judge Moore’s comments to decide the issues presented in Deputy
Byrd’s Motion for Summary Judgment.
8

Plaintiff did not actually respond to this statement of fact. As such, the Court finds it
undisputed for purposes of the Motion for Summary Judgment.
7

v. Catrett, 477 U.S. 317, 322 (1986). The Supreme Court has stated that “[t]hough determining
whether there is a genuine issue of material fact at summary judgment is a question of law, it is a
legal question that sits near the law-fact divide.” Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009). In
reviewing a motion for summary judgment, the evidence must be viewed in the light most
favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986), and the “judge may not make credibility determinations or weigh the evidence.”
Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).

When the motion is supported by

documentary proof such as depositions and affidavits, the nonmoving party may not rest on his
pleadings but, rather, must present some “specific facts showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324. It is not sufficient “simply [to] show that there is some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. These facts must be
more than a scintilla of evidence and must meet the standard of whether a reasonable juror could
find by a preponderance of the evidence that the nonmoving party is entitled to a verdict.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In this Circuit, “this requires the
nonmoving party to ‘put up or shut up’ [on] the critical issues of [his] asserted causes of action.”
Lord v. Saratoga Cap., Inc., 920 F. Supp. 840, 847 (W.D. Tenn. 1995) (citing Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989)).
When determining if summary judgment is appropriate, the Court should ask “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-side that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
Summary judgment must be entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

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ANALYSIS
Section 1983 imposes liability on any “person who, under color of any statute, ordinance,
regulation, custom or usage, of any State” subjects another to “the deprivation of any rights,
privileges, or immunities secured by the Constitution or laws.” 42 U.S.C. § 1983. In order to
prevail on such a claim, a section 1983 plaintiff must establish “(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).
“Section 1983 is not the source of any substantive right,” Humes v. Gilless, 154 F. Supp. 2d
1353, 1357 (W.D. Tenn. 2001), but creates a “species of tort liability” for the violation of rights
guaranteed in the Constitution itself. Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 916 (2017)
(quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). So the “threshold inquiry” under §
1983 is “to identify the specific constitutional right” at issue. Id. (quoting Albright v. Oliver, 510
U.S. 266, 271 (1994)). Then the court “must determine the elements of, and rules associated
with, an action seeking damages for its violation.” Id. (citing Carey v. Piphus, 435 U.S. 247,
257–258 (1978)).
In this case the constitutional source of each of Plaintiff’s claims is the Fourth
Amendment. The Fourth Amendment protects “[t]he right of the people to be secure in their
persons . . . against unreasonable . . . seizures.” Id. “A person is seized by the police and thus
entitled to challenge the government’s action under the Fourth Amendment when the officer, by
means of physical force or show of authority, terminates or restrains his freedom of movement
through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007) (internal
citations and punctuation omitted). Plaintiff alleges that Deputy Byrd is liable under § 1983 for

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false arrest, the use of excessive force in effecting the arrest, and malicious prosecution, all in
violation of Plaintiff’s Fourth Amendment rights. The Court considers each claim in turn.
I. Plaintiff’s Abandoned Claim for Section 1983 Malicious Prosecution
As a procedural matter, Plaintiff has failed to respond to the argument raised in
Defendant’s opening brief for the dismissal of Plaintiff’s constitutional claim for malicious
prosecution. The Fourth Amendment applies to protect an individual from malicious prosecution
under § 1983. Sanders v. Jones, 845 F.3d 721, 728 (6th Cir. 2017) (citing Spurlock v. Satterfield,
167 F.3d 995, 1005–06 (6th Cir. 1999)). In order to make out a § 1983 malicious prosecution
claim, a plaintiff must prove the following elements: “(1) a criminal prosecution was initiated
against the plaintiff, and the defendant made influenced, or participated in the decision to
prosecute; (2) there was a lack of probable cause for the criminal prosecution; (3) the plaintiff
suffered a deprivation of liberty, as understood under Fourth Amendment jurisprudence, apart
from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff’s favor.” Id.
(citing Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010)). Defendant’s Motion asserts that
Plaintiff cannot prove the elements necessary to make out the claim, specifically that Plaintiff
cannot show a deprivation of her liberty other than the initial arrest. Plaintiff did not oppose or
in any way respond to Defendant’s argument.
“[A] plaintiff is deemed to have abandoned a claim when [she] fails to address it in
response to a motion for summary judgment.” Haddad v. Sec’y, U.S. Dept. of Homeland Sec.,
610 F. App’x 567, 568–69 (6th Cir. 2015) (quoting Brown v. VHS of Mich., Inc., 545 F. App’x
368, 372 (6th Cir. 2013)). District courts in this Circuit routinely grant summary judgment as to
claims a plaintiff fails to support or address in a response to a motion for summary judgment.
Burress v. City of Franklin, Tenn., 809 F. Supp. 2d 795, 809 (M.D. Tenn. 2011); Anglers of the

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Au Sable v. U.S. Forest Serv., 565 F. Supp. 2d 812, 839 (E.D. Mich. 2008); Dage v. Time
Warner Cable, 395 F. Supp. 2d 668, 679 (S.D. Ohio 2005); Kattar v. Three Rivers Area Hosp.
Auth., 52 F. Supp. 2d 789, 798 n.7 (W.D. Mich. 1999). See also Clark v. City of Dublin, No. 053186, 2006 WL 1133577, at *3 (6th Cir. Apr. 27, 2006) (where the appellant did not properly
respond to the arguments asserted against his ADEA and ADA claims by the appellees in their
motion for summary judgment, the appellant had abandoned his ADEA and ADA claims);
Conner v. Hardee’s Food Sys., No. 01-5679, 2003 WL 932432, at *4 (6th Cir. Mar. 6, 2003)
(finding that, “Because Plaintiffs failed to brief the issue before the district court . . . Plaintiffs
abandoned their . . . claim.”); Hazelwood v. Tenn. Dept. of Safety, No. 3:05-cv-356, 2008 WL
3200720, at *8 (E.D. Tenn. Aug. 5, 2008).
Defendant has raised a meritorious defense to Plaintiff’s § 1983 claim for malicious
prosecution. Based on Plaintiff’s waiver of her claim and for the reasons stated in Defendant’s
opening memorandum, the Court holds that Defendant is entitled to judgment as a matter of law
on Plaintiff’s Fourth Amendment claim for malicious prosecution.

Therefore, Defendant’s

Motion for Summary Judgment is GRANTED as to Plaintiff’s claim for malicious prosecution
under § 1983.
II. Section 1983: Excessive Force
Defendant next seeks summary judgment on Plaintiff’s claim that officers used excessive
force to remove her from the scene of her nephew’s arrest, including grabbing her by the arms
and shoulders, pushing her to one of the police cruisers, bending her across the trunk of the
cruiser before frisking her for weapons, and applying the handcuffs too tightly. The Fourth
Amendment protects against the use of excessive force in the course of an investigation or arrest.
Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014) (citing Graham v. Connor, 490 U.S. 386, 394

11

(1989)). The Court judges the use of force under an objective standard of reasonableness under
all of the circumstances, allowing “for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 395, 396-97.
The Court examines factors such as “the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1,
8–9 (1985)). The “ultimate inquiry is whether the totality of the circumstances justifies a
particular sort of seizure.’” Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 404 (6th Cir.
2007) (quoting St. John v. Hickey, 411 F.3d 762, 771 (6th Cir. 2005)), as “judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).
The Court holds that Plaintiff has failed to prove that Deputy Byrd is liable for the use of
excessive force against her. Generally, an officer’s “mere presence during [an arrest], without a
showing of some direct responsibility, cannot suffice to subject [him] to liability.” Burgess v.
Fischer, 735 F.3d 462, 475 (6th Cir. 2013). “To hold an officer liable for the use of excessive
force, a plaintiff must prove that the officer ‘(1) actively participated in the use of excessive
force, (2) supervised the officer who used excessive force, or (3) owed the victim a duty of
protection against the use of excessive force.’” Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir.
2010) (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)). First, Plaintiff has not shown
that Deputy Byrd actively participated in the use of excessive force against her. Plaintiff has
adduced evidence about the actions of other Defendants and alleged how they used excessive
force against her. Plaintiff has stipulated to the dismissal of her claims against those Defendants.

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Plaintiff has not shown, however, that Deputy Byrd himself used any force against her or
“actively participated in the use of excessive force.” As such, Plaintiff cannot hold Deputy Byrd
individually liable for the use of excessive force for active participation in using excessive force.
It is true that Plaintiff has submitted a summary judgment declaration (ECF No. 109-2) in
which she avers that Deputy Byrd personally used force against her. Paragraph 15 of Plaintiff’s
declaration reads as follows: “When we got to the patrol car, I was thrown over the trunk and my
face was held flat against the hood by Deputy Byrd while McCallister frisked me. I told Byrd
and McCallister they were hurting me and the cuffs were too tight, but they made no effort to
alleviate the pain.” Viewing this evidence in a light most favorable to Plaintiff, this statement
shows that Deputy Byrd used some degree of force against Plaintiff. But Plaintiff’s declaration
contradicts her original Complaint (ECF No. 1) where she alleged in paragraph 28 that Officer
McCallister forced her head onto the trunk of the car before he frisked her for weapons. Plaintiff
is bound by the admissions in her pleadings and “cannot create a factual issue by subsequently
filing a conflicting affidavit.” Hughes v. Vanderbilt Univ., 215 F.3d 543, 549 (6th Cir. 2000)
(citations omitted). As such, the Court will disregard Plaintiff’s inconsistent claim at summary
judgment that Deputy Byrd used force against her during the frisk. Therefore, the Court holds
that Plaintiff has not shown that Deputy Byrd actively participated in the use of excessive force
against her.
Second, Plaintiff has argued that Deputy Byrd was the only officer present with the
jurisdiction to place her under arrest and that Deputy Byrd had authority to stop the other officers
from using excessive force against her and arresting her. Plaintiff’s theory is akin to a kind of
vicarious or supervisory liability to hold Deputy Byrd liable for the acts of others. But Plaintiff
has failed to show that Deputy Byrd had control as a supervisor over the conduct of the other

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officers. A supervisor can be personally liable under § 1983 if a plaintiff can prove that “the
supervisor encouraged the specific incident of misconduct or in some other way directly
participated in it” or at the very least “implicitly authorized, approved or knowingly acquiesced
in the unconstitutional conduct of the offending subordinate.” Coley v. Lucas Cnty., Ohio, 799
F.3d 530, 542 (6th Cir. 2015) (quoting Taylor v. Michigan Dep’t of Corr., 69 F.3d 76, 81 (6th
Cir. 1995)). Plaintiff cannot even show as a threshold matter that Deputy Byrd supervised any
of the other officers on the scene. In fact, Deputy Byrd was the only member of the Gibson
County Sheriff’s Department at the scene, and all of the other officers were members of the
Medina Police Department. Plaintiff cannot prove then that Deputy Byrd had any supervisory
control over the actions of the other officers. As a result, Deputy Byrd cannot be liable for the
acts of other parties.
In addition to showing that Deputy Byrd actively participated in the use of excessive
force or had supervisory power over the officers who allegedly used excessive force, Plaintiff
could also show that Deputy Byrd had a duty to protect her from the use of excessive force.
Binay, 601 F.3d at 650. A § 1983 plaintiff may hold an officer liable for excessive force if she
can prove that the officer “observed or had reason to know that excessive force would be or was
being used” and “had both the opportunity and the means to prevent the harm from occurring.”
Burgess, 735 F.3d at 475 (quoting Turner, 119 F.3d at 429). However, the Court holds that
Plaintiff has not properly raised a failure to protect theory of liability. Plaintiff has not explicitly
raised a failure to protect theory of liability in her pleadings and has not requested leave to
amend her pleadings to add such a claim. In her memorandum, Plaintiff identifies two kinds of
excessive force Deputy Byrd failed to stop: the assaults allegedly committed primarily by Officer
McCallister and the pain caused by tight handcuffing. But none of either party’s summary

14

judgment submissions refer to such a duty or the legal standards for proving a claim of this kind.
The Court would decline to consider such a theory for this reason alone.
Furthermore, even if the Court liberally construed the arguments raised in Plaintiff’s
summary judgment brief, the Court would still decline to consider a failure to protect theory of
liability. The Sixth Circuit has held that it is improper for a plaintiff to raise “a new legal claim
for the first time in response to the opposing party’s summary judgment motion” insofar as “it
denies a defendant sufficient notice of what claims to investigate.” West v. Wayne Cnty., 672 F.
App’x 535, 541 (6th Cir. 2016) (citing Tucker v. Union of Needletrades, Indus. & Textile Emps.,
407 F.3d 784, 788 (6th Cir. 2005) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure § 2723 (3d ed. Supp. 2005)). And this restriction is
even more critical at summary judgment, “after a plaintiff has conducted discovery and has had
the opportunity to amend the complaint and raise additional theories.” Id. (citing Desparois v.
Perrysburg Exempted Vill. Sch. Dist., 455 F. App’x 659, 665 (6th Cir. 2012)). The Complaint
does not allege a duty to protect theory. Therefore, the Court concludes that Plaintiff has not
properly raised a duty to protect theory to hold Deputy Byrd liable for the use of excessive force.
The Court pauses to note a separate issue related to Plaintiff’s excessive force claim
against Deputy Byrd. Plaintiff’s Complaint alleges Deputy Byrd acted in concert with the other
officers and conspired with them to violate Plaintiff’s civil rights in violation of § 1983. Compl.
¶¶ 49, 50 (“Defendants without probable cause or reasonable belief that their actions were
justified conspired to arrest, imprison, and prosecute Plaintiff . . . .”). A plaintiff can establish a
§ 1983 claim for civil conspiracy by proving “that there was a single plan, that the alleged
coconspirator shared in the general conspiratorial objective, and that an overt act was committed
in furtherance of the conspiracy.” Bickerstaff v. Lucarelli, 830 F.3d 388, 400 (6th Cir. 2016)

15

(citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir. 2011). However,
Plaintiff has not made any of these showings or even argued in her summary judgment brief that
she can prove her initial allegations of a civil conspiracy. As such, the Court holds that Plaintiff
has waived this theory of liability against Deputy Byrd. For all of these reasons, the Court holds
that Deputy Byrd is entitled to judgment as a matter of law on Plaintiff’s excessive force claim.
III. Section 1983: False Arrest
Finally, Defendant seeks summary judgment on Plaintiff’s § 1983 claim for false arrest.
The Fourth Amendment protects against arrest without probable cause. Courtright v. City of
Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016) (citation omitted). To establish a § 1983 claim
for false arrest, a plaintiff must “prove that the arresting officer lacked probable cause to arrest
the plaintiff.” Amis v. Twardesky, 637 F. App’x 859, 861 (6th Cir. 2015) (quoting Sykes v.
Anderson, 625 F.3d 294, 305 (6th Cir. 2010)). Probable cause simply means a “reasonable
probability” that “under the totality of the circumstances” a suspect has committed a crime.
Courtright, 839 F.3d at 521.9 Even so, “[t]he Constitution does not guarantee that only the guilty

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Plaintiff’s response in opposition to the Motion for Summary Judgment separately
argues the merits of her claim for false imprisonment based on Tennessee’s cite and release law.
To the extent that Plaintiff is alleging a § 1983 false imprisonment claim for the violation of her
rights under the U.S. Constitution, a violation of a state’s cite and release law does not per se rise
to the level of a Fourth Amendment violation. Virginia v. Moore, 553 U.S. 164, 176 (2008)
(holding that “warrantless arrests for crimes committed in the presence of an arresting officer are
reasonable under the Constitution, and that while States are free to regulate such arrests however
they desire, state restrictions do not alter the Fourth Amendment’s protections”). Additionally,
the Court’s analysis of Plaintiff’s false imprisonment claim largely tracks its analysis for the
false arrest claim. “False arrest and false imprisonment overlap; the former is a species of the
latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007). “False arrest is synonymous with false
imprisonment where one confines another purporting to act by authority of law which does not in
fact exist.” Trakhtenberg v. Cnty. of Oakland, 661 F. App’x 413, 419 (6th Cir. 2016) (quoting
McCune v. City of Grand Rapids, 842 F.2d 903, 906 (6th Cir. 1988)).
To the extent that Plaintiff is arguing the merits of a claim for false imprisonment under
Tennessee law, the Court has already declined to exercise supplemental jurisdiction over
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will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—
indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137, 145 (1979). Plaintiff
argues that the officers falsely arrested her because they lacked probable cause to charge her with
failure to obey a lawful command or assaulting an officer. According to Plaintiff, Deputy Byrd
is liable for false arrest because he was the only officer present with the legal authority to make
an arrest outside of the Medina city limits and that he was a participant in the arrest. Deputy
Byrd now seeks summary judgment on the claim, arguing that he did not arrest Plaintiff and that
even if the Court finds otherwise, the officers had probable cause to charge Plaintiff with another
offense, disorderly conduct.
The Court holds that Deputy Byrd is entitled to judgment as a matter of law because
Plaintiff cannot show that he placed her under arrest. Under § 1983, a defendant “cannot be held
liable for the conduct of another,” and each defendant’s liability must be individually. Apsey v.
Chester Twp., 608 F. App’x 335, 339 (6th Cir. 2015) (citing Pollard v. City of Columbus, 780
F.3d 395, 402 (6th Cir. 2015)). It follows that the “proper defendants in an action under § 1983 .
. . are the law enforcement officers who were personally involved in the incident alleged to have
resulted in a violation of the plaintiff’s civil rights.” Robertson v. Lucas, 753 F.3d 606, 618 (6th
Cir. 2014) (citation omitted). In this case, Plaintiff has failed to adduce evidence that Deputy
Byrd arrested her.
The undisputed facts show that Officer McCallister and Chief Lowery used physical
force to move Plaintiff away from the scene of her nephew’s arrest. Officer McCallister then
placed Plaintiff in handcuffs, frisked her for weapons, and sat in her the back of the patrol car.
Not surprisingly and perhaps most importantly, Officer McCallister was the only officer to
Plaintiff’s state law claims in this case. For these reasons the Court will not address Plaintiff’s
false imprisonment claim further.
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advise Plaintiff she was under arrest. The evidence further shows that Officer McCallister
transported Plaintiff to the Gibson County Jail and booked her into the jail. In sum, Officer
McCallister detained Plaintiff, restrained her liberty and freedom of movement, and finally
arrested her. For his part, Deputy Byrd was apparently only present on the scene and had no
“direct responsibility for” the arrest. Binay, 601 F.3d at 650 (quoting Ghandi v. Police Dept. of
City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984)). Without proof that Deputy Byrd had direct
responsibility for Plaintiff’s arrest, Plaintiff cannot make out a claim against Deputy Byrd for
false arrest.
To escape this conclusion, Plaintiff has adduced evidence that the Medina officers
requested the assistance of a sheriff’s deputy and that Deputy Byrd was dispatched to the scene.
According to Plaintiff, Deputy Byrd was the only law enforcement officer present with
jurisdiction to make an arrest. In fact, Plaintiff avers that Deputy Byrd told Officer McCallister
to put Plaintiff in a patrol car. It is true that Deputy Byrd ultimately prepared the affidavit of
complaint for the charges against Plaintiff. But none of this proof establishes that Deputy Byrd
was the officer who falsely arrested Plaintiff, as she claims. The fact that the Medina officers
requested a sheriff’s deputy and the Gibson County Sheriff’s Department dispatched Deputy
Byrd merely explains Deputy Byrd’s presence on the scene, and not whether he was directly
responsible for the arrest. The Court finds it unnecessary to decide the limits of the Medina
officers’ authority to place Plaintiff under her arrest. Plaintiff’s theory of the case is that the
officers lacked probable cause to arrest her, and any claim that the officers also lacked the
authority under Tennessee law to arrest would lie only against the officers acting outside of their
authority, not Deputy Byrd.

As for the affidavit of complaint, Deputy Byrd prepared the

affidavit some hours after Officer McCallister had placed Plaintiff under arrest and taken her to

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the jail. In other words, the false arrest was complete upon Officer McCallister’s handcuffing
her, putting her in the police car and transporting her to the jail. The Court holds that Deputy
Byrd’s involvement in the case simply does not make out a claim for false arrest. Therefore,
Defendant’s Motion is GRANTED on this claim.
CONCLUSION
The Court concludes that Deputy Byrd is entitled to judgment as a matter of law on all of
the remaining federal claims against him. Therefore, his Motion for Summary Judgment is
GRANTED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: June 21, 2017.

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