Jones v. Montgomery
Filing
31
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGEMENT 15 . Signed by Chief Judge J. Daniel Breen on 1/25/16. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DENNIS JONES,
Plaintiff,
v.
No. 15-1142
RICKY MONTGOMERY,
Defendant.
_____________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT
_____________________________________________________________________________
In this action filed on June 4, 2015, Plaintiff, Dennis Jones, seeks damages pursuant to
Title 42, section 1983 of the United States Code from Defendant, Ricky Montgomery, an officer
of the Lexington Police Department, for violations of the Fourth and Fourteenth Amendments to
the United States Constitution, and for claims under Tennessee common law. (Docket Entry
“D.E.” 1.) Before the Court is Defendant’s August 11, 2015 motion for summary judgment,
requesting the Court grant qualified immunity and/or summary judgment due to a lack of
genuine issues of material fact in accordance with Federal Rule of Civil Procedure 56. (D.E.
15.)1
1
On October 20, 2015, well after the prescribed time, this Court issued an order giving
Plaintiff eleven days to show cause why the case should not be dismissed for failure to respond
to Defendant’s motion for summary judgment. (D.E. 20.) Plaintiff’s counsel responded, stating
that he had “totally overlooked” the email notice of Defendant’s motion. The Court will not
dismiss the case on this ground, but cautions Plaintiff that any other unexcused failures to meet
1
I. FACTS ALLEGED
Jones alleges the following facts. On June 2, 2014, a Henderson County grand jury
returned sealed indictments against Plaintiff. Two days later, Montgomery and Investigator
Stephen Clark of the Henderson County Sheriff’s Department undertook to arrest Jones, pursuant
to the indictments. Montgomery and Clark went to Plaintiff’s residence, knocked on the door,
and upon Jones answering, informed him that he was under arrest.
He was then offered
paperwork, which explained the reasons for the arrest. Plaintiff asked Clark to allow him to
smoke a cigarette while he read the papers. Clark acquiesced. Plaintiff avers that while he was
looking over the indictments, Defendant slapped the cigarette from his hand, pushed him
violently against his mobile home, and presumably evinced intent to handcuff Jones. Jones
requested that, because he had recently undergone fusion surgery on his right wrist, he not be
handcuffed tightly.2 Furthermore, Jones asked to be handcuffed in front of his body and not
behind his back. In response to this request, Defendant stated that he “didn’t give a damn” about
Plaintiff’s wrist and handcuffed him tightly behind his back.
Jones complained about the pain caused by the handcuffs first to Montgomery and then to
Officer Tracy Taylor, who arrived on the scene shortly after the arrest. Taylor asked how he was
doing, and he responded that he was in pain from the handcuffs and the previous surgery. Taylor
then replaced Montgomery’s handcuffs with her own, but handcuffed Plaintiff’s hands in front of
deadlines will result in the case’s dismissal. Accordingly, Defendant’s objection to the late-filed
response (D.E. 23) is OVERRULED.
2
Jones maintains that both Montgomery and Clark knew about his wrist surgery as they
had interviewed Jones’s mother a month prior, seen him with a cast on his right wrist, and, upon
inquiry, learned that Plaintiff had recently undergone fusion surgery.
2
his body and loosely enough so as to not cause pain. Taylor transported Jones to the Henderson
County Jail, where he repeated his complaint of wrist pain.
Jones asserts that the handcuffs were tight enough to cause an extreme amount of pain,
swelling, and decreased mobility. These injuries caused him to incur medical bills.
Jones brings two claims against Montgomery: 3 1) violation of 42 U.S.C. § 1983 for use
of excessive force in violation of the Fourth Amendment of the United States Constitution, and
2) the Tennessee common law torts of assault and battery. Montgomery moves for summary
judgment, arguing that he is entitled to qualified immunity and Jones has not raised a genuine
issue of material fact. The Court will address each argument in turn.
II. STANDARD OF REVIEW
The Court must inquire whether the movant is entitled to summary judgment as a matter
of law because no genuine issues of material fact remain. Under Rule 56 of the Federal Rules of
3
The complaint is ambiguous in at least two important respects (D.E. 1): 1) page one
states an intention to bring claims pursuant to 42 U.S.C. §§ 1983 and 1988 for violations of the
Fourth and Fourteenth Amendments to the United States Constitution. Plaintiff, however, limits
his claims to violations under the Fourth Amendment. Thus, it could be inferred that he has
abandoned the Fourteenth Amendment argument. See infra note 4 and accompanying text.
Nevertheless, the Court will address all possible Fourteenth Amendment claims. 2) Jones states
that he is suing the Defendant “in his individual capacity as an employee of the City of
Lexington, Tennessee.” This statement is unclear as to whether Plaintiff intends to bring suit
against Montgomery in his individual or official capacity. The parties, however, appear to
assume that the suit is one against Defendant in his individual capacity. Plaintiff requests
punitive damages—a remedy available only to prevailing plaintiffs on individual capacity
claims. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); McCrary v. Ohio Dep’t of Human
Servs., No. 99-3597, 2000 WL 1140750, at *3 (6th Cir. Aug. 8, 2000). In addition, Defendant
asserts the defense of qualified immunity—a defense only available in individual capacity cases.
See Everson v. Leis, 556 F.3d 484, 493 (6th Cir. 2009). Nothing in the pleadings indicates that
Jones intended to bring both official and individual capacity claims. Accordingly, the Court is
convinced that these claims are against Montgomery in his individual capacity, not in his official
capacity.
3
Civil Procedure, a court “shall grant summary judgment if the movant 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). “A dispute about a material fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the non-moving party.’” Smith v. Perkins Bd. of
Educ., 708 F.3d 821, 825 (6th Cir. 2013) (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 551
(6th Cir. 2002)). A court’s function at the summary judgment stage is not to “weigh the
evidence and determine the truth of the matter”; rather, it is “to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); see Bobo v.
United Parcel Serv., Inc., 665 F.3d 741, 748 (6th Cir. 2012) (“Credibility determinations . . . and
the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
(quoting Anderson, 477 U.S. at 255)).
The moving party “has the initial burden of showing the absence of a genuine dispute as
to a material fact.” Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 520
(6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the motion is
properly supported, “the opposing party must go beyond the contents of its pleadings to set forth
specific facts that indicate the existence of an issue to be litigated.” Slusher v. Carson, 540 F.3d
449, 453 (6th Cir. 2008). A court must grant summary judgment “after adequate time for
discovery and upon motion, 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; see In re Morris, 260 F.3d 654, 665 (6th Cir.
2001). Finally, although a court does not weigh the evidence at this stage, it “must view all
evidence and draw any reasonable inferences therefrom in favor of the nonmoving party.”
4
Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 426 (6th Cir. 2014) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If . . . the
defendant disputes the plaintiff’s version of the story, the defendant must nonetheless be willing
to concede the most favorable view of the facts to the plaintiff . . . .” Morrison v. Bd. of Trustees
of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009); (quoting Berryman v. Rieger, 150 F.3d 561,
563 (6th Cir. 1998)).
Thus, in this case, Montgomery bears the burden of showing the absence of a genuine
issue of material fact, and the Court must view all evidence in the light most favorable to Jones.
II. QUALIFIED IMMUNITY
Defendant also insists that he is entitled to qualified immunity. This is partially a
threshold issue, because if he is indeed entitled to qualified immunity, the Court need not inquire
as to whether any genuine issue of material fact exists under Rule 56 as to the federal claims.
Morrison, 583 F.3d at 400.
Qualified immunity shields individual government officials
“performing discretionary functions from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Id. (quoting Feathers v. Aey, 319 F.3d 843, 847 (6th Cir. 2003)); see also
Essex v. Cty. of Livingston, 518 F. App’x 351, 356 (6th Cir. 2013). Qualified immunity is a
defense both to liability and to the suit itself, Jones v. Sandusky Cty., Ohio, 541 F. App’x 653,
660 (6th Cir. 2013), and offers “an entitlement not to stand trial or face the other burdens of
litigation,” Morrison, 583 F.3d at 400 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
The doctrine “seeks to prevent government officials, such as police officers, from being held
5
liable for reasonable mistakes, including mistakes of law, fact, or mixed questions of law and
fact.” Jones, 541 F. App’x at 660.
Qualified immunity is determined by courts examining whether an officer’s “actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 395-96 (1989); see
also Griffith v. Coburn, 473 F.3d 650, 656 (6th Cir. 2007). Furthermore, “[a] defendant enjoys
qualified immunity on summary judgment unless the facts alleged and the evidence produced,
when viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find
that: (1) the defendant violated a constitutional right; and (2) the right was clearly established.”
Morrison, 583 F.3d at 400; see also Saucier v. Katz, 533 U.S. 194, 202 (2001); Benison v. Ross,
765 F.3d 649, 664 (6th Cir.), reh’g & suggestion for reh’g en banc denied, 771 F.3d 331 (6th
Cir. 2014).
Thus, how a right is defined assumes utmost importance. A right is clearly established
only if its contours are “sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Morrison, 583 U.S. at 400 (quoting Anderson v. Creighton, 483
U.S. 635 (1987)).
“In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. The United States Supreme Court has “repeatedly
told courts . . . not to define clearly established law at a high level of generality.” Mullenix v.
Luna, 136 S.Ct. 305, 305 (2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Instead,
“[t]he dispositive question is whether the violative nature of particular conduct is clearly
established.” Id. Moreover, the inquiry “must be undertaken in light of the specific context of
the case, not as a broad general proposition.” Id. (citing Brosseau v. Haugen, 543 U.S. 194, 198
6
(2004); Saucier, 533 U.S. at 201). This requirement “balances [] the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Wood v. Moss,
134 S. Ct. 2056, 2067 (2014) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Of
particular importance in this case, “[t]he issue of whether qualified immunity is applicable to an
official’s actions is a question of law. However, where the legal question of qualified immunity
turns upon which version of the facts one accepts, the jury, not the judge, must determine
liability.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004). Where, as
they do here, the “parties dispute virtually all of the essential facts surrounding the excessive
force claim, and the evidence proffered by the nonmoving party would support a conclusion that
excessive force was used, neither the defendant[’s] qualified-immunity arguments nor [his]
arguments concerning liability may be resolved on summary judgment.”
See Giannola v.
Peppler, No. 96-2467, 1998 WL 96557, at *3 (6th Cir. Feb. 23, 1998) (quoting Jackson v.
Hoylman, 933 F.2d 401, 403 (6th Cir. 1991)).
A. § 1983 GENERALLY
Section 1983 provides a private right of action against any person who subjects “any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights[ or] privileges . . . secured by the Constitution and laws[.]” 42 U.S.C. § 1983;
Rehberg v. Paulk, 132 S. Ct. 1497, 1501 (2012). The statute “creates no substantive rights, but
merely provides remedies for deprivations of rights established elsewhere.” Flint v. Kentucky
Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001) (citing Oklahoma City v. Tuttle, 471 U.S. 808
(1985)). A plaintiff suing under the statute must demonstrate the denial of a constitutional right
7
caused by a defendant acting under color of state law. Carl v. Muskegon Cty., 763 F.3d 592, 595
(6th Cir. 2014).
B. FOURTH AMENDMENT CLAIMS – EXCESSIVE FORCE
Jones alleges that Montgomery violated his constitutional right to be free from excessive
force.
The Fourth Amendment’s unreasonable seizure jurisprudence must be used when
analyzing such claims. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001). The Sixth
Circuit has stated,
whether an officer has exerted excessive force during the course of seizure is
determined under an “objective reasonableness” standard.
This entails
balanc[ing] the consequences to the individual against the government’s interests
in effecting the seizure. The assessment involves a fact-specific inquiry based on
the totality of the circumstances that pay[s] particular attention to 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. The Court should judge the lawfulness of the conduct from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.
Morrison, 583 F.3d at 401 (citations omitted) (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th
Cir. 2002); Kostrzewa, 247 F.3d at 639).
In deciding whether qualified immunity applies to this case, the Court must assess the
event in individual segments to determine the reasonableness of the police officer’s conduct as to
each action. Phelps v. Coy, 286 F.3d 295 (6th Cir. 2002). Thus, the Court must make separate
qualified immunity determinations for each instance of excessive force alleged: a) slapping
Defendant’s cigarette out of his hand after an officer had told him that he could smoke while
waiting for the transfer van; b) pushing Defendant against the wall of the trailer while arresting
him; and c) causing Defendant injury by handcuffing him too tightly.
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1. Slapping
The Sixth Circuit has held that, in many instances, slapping can be a gratuitous use of
force. Lucier v. City of Ecorse, 601 F. App’x 372, 379 (6th Cir. 2015). Unlike other uses of
force, it is less likely to serve the purposes of law enforcement officers and, thus, more likely to
be an example of excessive force. See id. (“Viewing the facts in the light most favorable to
[p]laintiff, the district court correctly concluded that, at the time of [p]laintiff’s arrest, his right to
be free from ‘such acts of gratuitous force’ [i.e. slapping] was clearly established.”); Pigram v.
Chaudoin, 199 F. App’x 509, 513 (6th Cir. 2006) (“In contrast, a slap to the face of a handcuffed
suspect—even a verbally unruly suspect—is not a reasonable means of achieving anything more
than perhaps further antagonizing or humiliating the suspect.”); Carico v. Benton, Ireland &
Stovall, 68 F. App’x 632, 637 (6th Cir. 2003) (noting that the plaintiff could “clearly claim
excessive force against [the officer] for the slap to the face”). Thus, it is well established in this
Circuit that slapping can be an example of excessive force.
The Defendant states in his motion for summary judgement that Jones was indicted for
six counts of sale and delivery of Oxycodone. This is not a violent crime, and no allegations
have been made that Jones had been violent either during or prior to the arrest, that he was a
danger to the officers, or that he was resisting arrest. The facts of this incident are disputed,
however, and the parties vary drastically in their accounts. Defendant does not attempt to show
why the slap was a reasonable use of force. Instead, he disputes that it happened at all, and the
legal question of qualified immunity turns on whose version of the facts one accepts. See
Pouillon v. City of Owosso, 206 F.3d 711, 715 (6th Cir. 2000). Viewing the facts in the light
most favorable to the Plaintiff, a reasonable factfinder could find that Montgomery slapped Jones
9
and that this was an example of unconstitutional excessive force.
Accordingly, qualified
immunity is DENIED on this issue.
2. Pushing
Pushing a suspect against a wall or other object has likewise been held to be an
established example of excessive force. Although “[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers violates the Fourth Amendment,”
Alkhateeb v. Charter Twp. of Waterford, 190 F. App’x 443, 449 (6th Cir. 2006) (quoting
Graham, 490 U.S. at 396), Courts inquire into the specific facts of the case and determine
whether the push was reasonable within the context. “The question whether force is excessive
turns on the objective reasonableness of the officer’s conduct under the circumstances.” Id.
Particularly, when a suspect is fleeing or resisting arrest, courts have upheld the rights of officers
to detain such a suspect with physical force. See Goodrich v. Everett, 193 F. App’x 551, 557
(6th Cir. 2006) (holding the physical tackling of plaintiff, a suspected violent criminal, in order
to prevent escape is not an excessive use of force).
However, violently shoving a defendant against a wall or other such structure while
arresting him has consistently been held by the Sixth Circuit to be an unlawful use of force,
absent circumstances such as flight, general unruliness, or danger on the part of the arrestee. See,
e.g., Carpenter v. Bowling, 276 F. App’x 423, 426-28 (6th Cir. 2008) (denying qualified
immunity for officer who threw suspect against van despite fact that suspect did not resist arrest);
Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 171 (6th Cir. 2004) (denying qualified
immunity for officers who threw Plaintiff against a wall and knocked her face into a display case
while arresting her); Burden v. Carroll, 108 F. App’x 291, 293-94 (6th Cir. 2004) (denying
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qualified immunity for officer who pushed belligerent suspect against brick wall after suspect
had reportedly threatened someone); cf. Miller v. Sanilac Cty., 606 F.3d 240, 257 (6th Cir. 2010)
(granting qualified immunity to officer who pushed plaintiff because no allegation had been
made that the shove was violent, malicious, or gratuitous); Lockett v. Donnellon, 38 F. App’x
289, 291-92 (6th Cir. 2002) (finding no excessive force when officers pushed and pulled plaintiff
into police car in a rough manner where suspect was uncooperative and verbally abusive).
In this case, Jones has alleged that Montgomery “pushed him violently against Plaintiff’s
mobile home,” in preparation for handcuffing him. Defendant has not offered any context or
explanation for why this happened but instead disputes its occurrence. Indeed, Defendant has
not alleged that Jones was hostile, abusive, or combative. The only evidence offered on this
matter is Plaintiff’s undisputed account that he was never “rude, hostile, or threatening, either
verbally or physical.” (D.E. 1 ¶ 17.) Again, this question turns on whose version of the facts
one accepts. Viewing the facts in the light most favorable to the Plaintiff, a reasonable juror
could find that Montgomery violently pushed Jones and that this was an example of
unconstitutional excessive force. Accordingly, qualified immunity is DENIED on this issue.
3. Handcuffing
In Burchett v. Kiefer, the Sixth Circuit stated,
The tightness of the handcuffs themselves causes greater concern. The right to be
free from excessively forceful handcuffing is a clearly established right for
qualified immunity purposes, and applying handcuffs [too] tightly . . . raises
concerns of excessive force. Our precedents allow the plaintiff to get to a jury
upon a showing that officers handcuffed the plaintiff excessively and
unnecessarily tightly and ignored the plaintiff’s pleas that the handcuffs were too
tight.
11
310 F.3d at 944-45 (citations omitted) (quoting Kostrzewa, 247 F.3d at 641) (citing Martin v.
Heideman, 106 F.3d 1308, 1310, 1313 (6th Cir. 1997)); see also Meadows v. Thomas, 117 F.
App’x 397, 404 (6th Cir. 2004). The court in Meadows articulated a two-prong test, based on
Burchett, for establishing a viable Fourth Amendment claims for excessively forceful
handcuffing. In order to satisfy the test, a plaintiff must,
(1) allege that he complained to the officers that the handcuffs were too tight (or
that there is evidence to infer that the officers should have known that the
handcuffs were too tight); and (2) as a result of being left in handcuffs that were
applied too tightly, he incurs injury to his wrists.
Meadows, 117 F. App’x at 405. Here, Plaintiff claims that Montgomery handcuffed him too
tightly.
He maintains that he: 1) asked Defendant specifically not to cuff him tightly; 2)
complained to Defendant once the handcuffs were in place; 3) complained to Taylor when she
arrived to transport him; and 4) complained to personnel when he arrived at the police station.
Moreover, he alleges he incurred injury as a result, included swelling, pain, and lack of mobility
sufficient to incur medical bills. Again, Montgomery offers no explanation other than to say that
he was not the officer who cuffed Jones. Clark, he insists, was the one who cuffed him, and
Clark states that he cuffed Jones in front of his body and not tightly. Yet again, this is a dispute
over whose account is to be accepted. Viewing the facts in the light most favorable to the
Plaintiff, a reasonable factfinder could find that Montgomery handcuffed Jones too tightly and
that this was an example of unconstitutional excessive force. Accordingly, qualified immunity is
DENIED on this issue.
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III. SUMMARY JUDGMENT
A. VERIFIED COMPLAINTS ON SUMMARY JUDGMENT
Montgomery argues that Plaintiff’s notarized complaint does not meet the personal
knowledge requirement of Rule 56, and, thus, no genuine issue of material fact exists. However,
this case does involve a factual dispute: Jones alleges that Montgomery committed the alleged
violations, while Defendant maintains that the events alleged never occurred, but if they did, he
did not commit them. (D.E. 23 at 2.)4
For statements to be considered on a motion for summary judgment under Rule 56, they
must be based on personal knowledge.
Fed. R. Civ. P. 56(c)(4).
Defendant alleges that
Plaintiff’s notarized complaint (D.E. 1) and subsequent declaration (D.E. 21-2) do not meet this
standard. Montgomery cites Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831
(1950); Totman v. Louisville Jefferson City Metro Gov’t, 391 F. App’x 454, 464 (6th Cir. 2010);
and Abdelkhaleq v. Precision Door of Akron, 653 F. Supp. 2d 773, 787 (N.D. Ohio 2009), for the
proposition that statements made according to the declarant’s “best knowledge and belief” do not
satisfy Rule 56’s personal knowledge requirement.
All of the cases cited, however, are distinguishable from the instant case. In all three, the
plaintiffs offered declarations that, in certain parts, were based solely on their belief and not
personal knowledge. See Hazeltine, 339 U.S. at 831 (stating summarily that “the affidavit in
4
The Court notes that on November 19, 2015, Plaintiff filed the affidavit of Stephen
Justice, stating that he had witnessed the arrest that is the subject to this lawsuit. (D.E. 27.)
Defendant objected to this filing, as it was untimely. (D.E. 28.) At this point in the proceedings,
the Court neither weighs the evidence nor inquires into the truth of the allegations. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, its role is to determine whether there is a
genuine issue for trial. Id. In this analysis, the effect of the late-filed affidavit is slight at best.
Accordingly, Defendant’s objection is OVERRULED.
13
support thereof was made upon information and belief and the relevant portion, at least, does not
comply with Rule 56(e) of the Federal Rules of Civil Procedure.”); Totman, 391 F. App’x at 464
(finding the pleadings to extend beyond the plaintiff’s personal knowledge and, thus, failing Rule
56(e) personal knowledge requirement); Abdelkhaleq, 653 F. Supp. 2d at 786 (finding statements
such as, “I have experienced first hand that [my wife] is an habitual liar and her recollection of
events concerning [Defendant] cannot be trusted,” to be based on declarant’s belief, and, thus,
not sufficient to raise a genuine issue of material fact).
Furthermore, the Sixth Circuit has held that a “verified complaint . . . carries the same
weight as would an affidavit for the purposes of summary judgment.” El Bey v. Roop, 530 F.3d
407, 414 (6th Cir. 2008); see also Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993)
(explaining that where a party files a verified complaint, the allegations contained therein “have
the same force and effect as an affidavit for purposes of responding to a motion for summary
judgment”); Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992) (concluding that a
prisoner’s signed complaint with a statement declaring the truth of the allegations under penalty
of perjury was sufficient to place controverted facts into issue).
In this case, Jones’s complaint was verified with the standard notary language: “The
Plaintiff in the foregoing Complaint personally appeared before me, the undersigned authority,
and on his oath stated that the facts and matters set forth in his foregoing Complaint are true, to
the best of his knowledge, information and belief.” (D.E. 1 at 7.) This is boilerplate language,
however. The allegations in the complaint are of a nature that could only be made based on
personal knowledge. They are not statements of belief, but instead of events that allegedly
happened to the declarant.
14
Moreover, even if the verified complaint was not sufficient to satisfy the requirement,
Jones subsequently filed a declaration under penalty of perjury, explicitly alleging personal
knowledge. (D.E. 21-2); see 28 U.S.C. § 1746 (2015) (stating that when a person is required to
provide evidence or proof, an unsworn statement made under penalty of perjury is to be given
the same force and effect as a sworn declaration, as long as the statement substantially contains
the following language: “I declare (or certify, verify, or state) under penalty of perjury under the
laws of the United States of America that the foregoing is true and correct.”)
Plaintiff’s
statement contains the prescribed language.
On this point, the Court is unmoved by Defendant’s recrimination that Jones did not
capitulate in light of Clark’s declaration contradicting the Plaintiff’s version of events and
instead chose to “stick to his story.” (D.E. 24 at 3.) Moreover, it would appear that Defendant
concedes that summary judgment is not appropriate at this juncture: “If this were a mere dispute
between Jones and Montgomery as to what Montgomery did or did not do, a reasonable jury
could find in favor of Jones.” (Id. at 2.) In fact, this is a factual dispute between the Plaintiff and
Defendant over what the Defendant did or did not do, and Plaintiff has raised a genuine issue of
material fact. Accordingly, summary judgment is DENIED on this ground.
B. FOURTEENTH AMENDMENT CLAIM
Plaintiff also avers that Defendant’s actions violated the Fourteenth Amendment.
Montgomery requests summary judgment as to this claim on the grounds that the Fourth
Amendment creates the applicable right at issue in this case, and, “where a particular
constitutional amendment provides an ‘explicit source of constitutional protection,’ the courts
will apply that amendment, and not the Fourteenth Amendment’s substantive due process
15
clause.’” (D.E. 15-1) (citing Graham, 490 U.S. at 395).5 The Fourteenth Amendment Due
Process Clause prohibits state and local governments from “depriv[ing] any person of life,
liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1. The clause
contains both procedural and substantive guarantees. EJS Props., LLC v. City of Toledo, 698
F.3d 845, 855 (6th Cir. 2012), cert. denied, 133 S. Ct. 1635 (2013). Procedural due process
generally provides that “government action depriving a person of life, liberty, or property . . . [,
even that which survives substantive due process scrutiny,] must . . . be implemented in a fair
manner.” United States v. Salerno, 481 U.S. 739, 746 (1987) (citing Mathews v. Eldridge, 424
U.S. 319, 335 (1976)); see also EJS Props., 698 F.3d at 855. Substantive due process, on the
other hand, “prevents the government from engaging in conduct that shocks the conscience or
interferes with rights implicit in the concept of ordered liberty.” Prater v. City of Burnside, Ky.,
289 F.3d 417, 431 (6th Cir. 2002) (quoting Salerno, 481 U.S. at 746) (alterations omitted). The
facts of this case, in theory, would invoke the latter.
Substantive due process protects against “governmental power . . . being used for
purposes of oppression, regardless of the fairness of the procedures used.” Pittman v. Cuyahoga
Cty. Dep’t of Children & Family Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting Howard v.
5
In his response to Defendant’s motion for summary judgment, Jones does not speak in
any way to Defendant’s assertion that the Fourteenth Amendment is inapplicable. Thus, Plaintiff
can be said to have abandoned this argument. The Sixth Circuit’s jurisprudence on abandonment
of claims is clear: “a plaintiff is deemed to have abandoned a claim when a plaintiff fails to
address it in response to a motion for summary judgment.” Brown v. VHS of Michigan, Inc., 545
F. App’x 368, 372 (6th Cir. 2013) (citing Hicks v. Concorde Career Coll., 449 F. App’x 484,
487 (6th Cir. 2011) (holding that a district court properly declines to consider the merits of a
claim when a plaintiff fails to address it in a response to a motion for summary judgment));
Clark v. City of Dublin, 178 F. App’x 522, 524-25 (6th Cir. 2006) (recognizing that the failure to
respond properly to motion for summary judgment arguments constitutes abandonment of a
claim)).
16
Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)); see also Epperson v. City of Humboldt, Tenn., No.
15-1074, 2015 WL 6440740, at *8 (W.D. Tenn. Oct. 21, 2015).
Courts must, however,
“carefully scrutinize so-called substantive due process claims brought under § 1983 because
guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”
Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 452 (6th Cir. 2002) (quoting Collins v.
City of Harker Heights, Tex., 503 U.S. 115, 125 (1992)). Therefore, when another provision of
the Constitution “provides an explicit textual source” for protection against the alleged rights
violation, it “must be the guide for analyzing [the] claims” instead of the “more generalized
notion of ‘substantive due process’ “embodied in the Fourteenth Amendment. Graham, 490
U.S. at 395. When such an amendment exists, the substantive due process claim is properly
dismissed. Heike v. Guevara, 519 F. App’x 911, 923 (6th Cir.) (per curiam), cert. denied, 134 S.
Ct. 341 (2013).
Generally speaking, the Due Process Clause “confer[s] no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.”
DeShaney v.
Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 196 (1989). The purpose of the Due
Process Clause is “to protect the people from the State, not to ensure that the State protect[s]
them from each other.” Id. In DeShaney, a young boy who had been beaten and permanently
injured by his father brought a due process claim against municipal officials for failing to remove
him from his father’s home after they had reason to believe he was being abused. Id. at 192-94.
The United States Supreme Court declined to impose liability, finding that “[w]hile the State
may have been aware of the dangers that Joshua faced in the free world, it played no part in their
17
creation, nor did it do anything to render him any more vulnerable to them.” Id. at 201. This
statement has led the Sixth Circuit, as well as others, to recognize an exception to the general
rule for “state-created dangers.” See Jasinski v. Tyler, 729 F.3d 531, 538 (6th Cir. 2013). In this
Circuit, a plaintiff may bring a state-created danger claim by demonstrating
(1) an affirmative act by the State that either created or increased the risk that the
plaintiff would be exposed to private acts of violence; (2) a special danger to the
plaintiff created by state action, as distinguished from a risk that affects the public
at large; and (3) the requisite state culpability to establish a substantive due
process violation.
Id. at 538-39 (quoting Schroder v. City of Fort Thomas, 412 F.3d 724, 728 (6th Cir. 2005)).
The complaint in this case, as noted above, alleges only that Jones was involved in an
incident in which he was detained, arrested, and physically injured by Defendant. Plaintiff has
not alleged that the officer placed him at risk of a violent act by a third party. Nor is there an
allegation of a third party being present. Accordingly, the Plaintiff has failed to properly allege a
state-created danger claim. See Camp v. Knox Cty., Tenn., No. 3:14-CV-257-PLR-HBG, 2015
WL 461642, at *4 (E.D. Tenn. Feb. 3, 2015) (where plaintiffs’ state-created danger claim lacked
allegations that defendants placed Camp at risk of an act of violence by a third party or that there
was even a third party present, Fourteenth Amendment claim was dismissed; the proper analysis
of the plaintiff’s claim was the Fourth Amendment’s reasonableness standard).
A second exception, the “custody” or “special relationship” exception, has also been
recognized by the Sixth Circuit. See Jahn v. Farnsworth, 617 F. App’x 453, 463 (6th Cir. June
29, 2015); Cutlip v. City of Toledo, 488 F. App’x 107, 112 n.3 (6th Cir. 2012); Jackson v.
Schultz, 429 F.3d 586, 590 (6th Cir. 2005). Arising from DeShaney’s conclusion,
18
when the State takes a person into its custody and holds him there against his will,
the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being. The rationale for this
principle is simple enough: when the State by the affirmative exercise of its power
so restrains an individual’s liberty that it renders him unable to care for himself,
and at the same time fails to provide for his basic human needs—e.g., food,
clothing, shelter, medical care, and reasonable safety—it transgresses the
substantive limits on state action set by the Eighth Amendment and the Due
Process Clause.
DeShaney, 489 U.S. at 199-200 (citation omitted). The state’s affirmative act of restraining a
person’s freedom to act on his own behalf triggers substantive due process protections with
respect to “incarcerated prisoners, those involuntarily committed to mental institutions, foster
children, pre-trial detainees, and those under other similar restraint of personal liberty.” Jackson,
429 F.3d at 590.
This exception does not appear to the Court to be applicable to the facts alleged in this
case, and Plaintiff has offered nothing to convince it to the contrary. The clear gravamen of the
instant matter is excessive force. “[I]f the plaintiff was a free person, and the use of force
occurred in the course of an arrest or other seizure, then the plaintiff’s claim arises under the
Fourth Amendment and its reasonableness standard.” Lanman v. Hinson, 529 F.3d 673, 680 (6th
Cir. 2008). In so finding, the Lanman court observed that “this is seen most clearly in the law
enforcement setting of arrests or investigatory stops[.]” Id. Accordingly, the true vehicle for this
claim is the Fourth Amendment, which holds law enforcement officers accountable for injuries
sustained as a result of a direct encounter between them and private citizens. See Lane v. Pulaski
Cty., Ky., Civ. No. 12-62-GFVT, 2014 WL 996293, at *9 (E.D. Ky. Mar. 13, 2014) (in case
involving the fatal shooting of the plaintiff’s decedent by police during a domestic violence call,
court dismissed Fourteenth Amendment substantive due process claim, describing plaintiff’s
19
claim as “trying to place a square peg in a round hole”). Accordingly, Defendant’s motion for
summary judgment on this issue is GRANTED, and the Fourteenth Amendment claim is
DISMISSED.
C. STATE LAW CLAIMS
Plaintiff also alleges the Tennessee common law claims of assault and battery against
Defendant. These allegations would typically confer supplemental jurisdiction in this Court, as it
arises out of the same set of facts as Plaintiff’s § 1983 claims. See 28 U.S.C. § 1367(a).
However, “district courts have ‘broad discretion in deciding whether to exercise supplement
jurisdiction over state law claims,’” even if jurisdiction would otherwise be proper pursuant to
§ 1367(a). See Pinney Dock & Transp. Co. v. Penn Cent. Corp., 196 F.3d 617, 620 (6th Cir.
1999) (quoting Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254 (6th Cir. 1996));
Alexander v. Byrd, No. 14-1022, 2014 WL 5449626, at *8 (W.D. Tenn. Oct. 24, 2014). Under
§ 1367(c), a district court may decline to exercise supplemental jurisdiction if:
(1)
the claim raises a novel or complex issue of State law,
(2)
the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3)
the district court has dismissed all claims over which it has original
jurisdiction, or
(4)
in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(c). Neither party addressed the issue of whether this Court should exercise
supplemental jurisdiction over the state law claim. The Court will nevertheless examine the
jurisdictional basis, as “district courts are obligated to sua sponte consider whether they have
20
subject-matter jurisdiction.” Spencer v. Stork, 513 F. App’x 557, 558 (6th Cir. 2013); see
Alexander, 2014 WL 5449626, at *10.
Section 1367(c)(4), which permits declining jurisdiction in “exceptional circumstances,”
applies to Plaintiff’s state claim of assault and battery.
Courts and commentators have
recognized that “[t]he potential for jury confusion can be a sufficiently compelling reason for
declining jurisdiction” under § 1367(c)(4). Alexander, 2014 WL 5449626, at *10 (quoting
Padilla v. City of Saginaw, 867 F. Supp. 1309, 1315 (E. D. Mich. 1994)); see also United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 727 (1966) (noting, before the enactment of § 1367, that
the “likelihood of jury confusion in treating divergent legal theories of relief [may] justify
separating state and federal claims for trial,” in which case “jurisdiction should ordinarily be
refused”); 13D Charles Alan Wright, et al., Federal Practice & Procedure: Jurisdiction § 3567.3
(3d ed. 2014) (“The possibility of jury confusion might constitute an exceptional circumstance
that could present a compelling reason for declining supplemental jurisdiction.”). Where “the
advantages to be gained by trying . . . claims together are outweighed by the potential for
confusion of the issues by the jury,” it is judicious for a district court to decline exercising
supplemental jurisdiction. Alexander, 2014 WL 5449626, at *10 (quoting Padilla, 867 F. Supp.
at 1316-17).
In Alexander, the district court declined to exercise supplemental jurisdiction under
§ 1367(c)(4) where there were concerns of “different standards for . . . liability in the state and
federal claims [that] would likely mislead a jury.” Alexander, 2014 WL 5449626, at *11. The
court reasoned that “[t]rying the supplemental claims along with the federal claims . . . would run
a heightened risk that the jury would apply an incorrect legal standard to some causes of action.”
21
Id. This kind of error becomes more probable when a jury is asked to make both objective and
subjective inquiries. See Padilla, 867 F. Supp. at 1316 (“[T]he standard for the § 1983 suit is
objective reasonableness, while the standard for the state assault and battery claim is subjective
reasonableness. A jury could not be expected to understand and to apply the two different
standards of reasonableness in the same case.”).
In this case, as in Alexander, the circumstances present a scenario where, when taken as a
whole, jury confusion is particularly likely. The jury would be confronted with being asked to
make objective inquiries in the federal § 1983 claims and subjective inquiries in the state assault
and battery claims. As jury confusion is “particularly likely” in a scenario such as this and “error
becomes more probable,” the Court will decline to exercise its supplemental jurisdiction over
Plaintiff’s state law claim.
See id.
Accordingly, the state assault and battery claims are
DISMISSED without prejudice.
IV. CONCLUSION
For the reasons set forth herein, Defendant’s motion for summary judgment (D.E. 15) is
DENIED in part and GRANTED in part.
Claims under the Fourteenth Amendment are
DISMISSED and those pursuant to Tennessee state law are DISMISSED without prejudice.
Defendant’s motion to dismiss the Plaintiff’s Fourth Amendment claims is DENIED.
IT IS SO ORDERED this 25th day of January 2016.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
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