Herron v. City Of Memphis, Tennessee;

Filing 17

ORDER granting 11 Motion for Judgment on the Pleadings. Signed by Judge S. Thomas Anderson on 7/15/11. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
TAMIKA HERRON,

)
)
Plaintiff,
)
)
v.
)
No. 10-2775-STA
)
RICKEY DUGGER, and
)
MEMPHIS, TENNESSEE,
)
)
Defendants.
)
______________________________________________________________________________
ORDER GRANTING DEFENDANT CITY OF MEMPHIS’S MOTION FOR
JUDGMENT ON THE PLEADINGS
______________________________________________________________________________
Before the Court is Defendant City of Memphis’s Motion for Judgment on the Pleadings
(D.E. # 11) filed on May 25, 2011. Plaintiff Tamika Herron has filed a response in opposition to
Defendant’s Motion. For the reasons set forth below, the Motion is GRANTED.
BACKGROUND
According to Plaintiff’s Complaint, on October 27, 2009, Plaintiff went to a house at
1021 Getwell, Memphis, Tennessee, where her cousin Britney Collins (“Collins”) resided, to
pick Collins up. (Compl. ¶ 7.) At that time Plaintiff was pregnant. (Id.) Prior to Plaintiff’s
arrival at the house, there had been a disagreement between Collins and other residents of the
house. (Id. ¶ 8.) During the disagreement, one of the other residents had assaulted Collins. (Id.)
Collins had called the Memphis Police Department to ask for officers to come to the scene. (Id.)
After Plaintiff arrived at 1021 Getwell, she and Collins went to a neighbor’s yard to wait

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for the police officers. (Id. ¶ 9.) Defendant Rickey Dugger, a Memphis Police officer, arrived at
the scene. (Id. ¶ 10.) As he was pulling into the driveway of the house, one of the residents of
1021 Getwell approached Plaintiff, attempting to strike her. (Id.) Plaintiff pushed the resident
away in self-defense. (Id.) Upon getting out of his police cruiser, Dugger approached Plaintiff
and told her to get on the ground. (Id. ¶ 11.) When Plaintiff attempted to comply with Dugger’s
command and told Dugger that she was pregnant, Dugger pushed Plaintiff violently to the
ground, putting the full weight of his body on her, digging his knee into her back, and causing her
intense pain and discomfort. (Id.)
Plaintiff was arrested and taken to Shelby County Jail East, where she was held until she
posted her $100 bond. (Id. ¶ 12.) Plaintiff was charged with criminal assault under booking
number #09209518, and the matter was prosecuted in Shelby County General Sessions Court.
(Id. ¶ 13.) Soon after her release, Plaintiff was admitted to Methodist-Lebonheur Hospital in
Memphis, where she was diagnosed with a miscarriage, ending her pregnancy and causing
her emotional distress from the loss of her unborn child as well as the physical pain and
discomfort of the miscarriage. (Id. ¶ 14.) Plaintiff alleges that her miscarriage was the direct
result of the excessive, unlawful, and unjustified physical force used against her by Defendant
Dugger. (Id. ¶ 15.) The criminal prosecution against Ms. Herron ultimately resulted with an
entry of declaration of nolle prosequi by the Shelby County District Attorney, and the case was
dismissed. (Id. ¶ 16.)
In addition to alleging that Defendant Dugger violated her constitutional rights, Plaintiff
alleges that the City of Memphis is liable pursuant to 42 U.S.C. § 1983. More specifically,
Plaintiff alleges that Defendant failed to have a use of force policy in effect at the time of her
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arrest that prohibited the use of excessive force in such circumstances presented by this case,
presumably where the arrestee is pregnant. (Id. ¶ 26.) Defendant’s policies and customs with
respect to the use of force at the time of Plaintiff’s arrest violated Plaintiff’s Fourth and
Fourteenth Amendment rights. (Id.) Plaintiff alleges that “[t]his inadequate training, as a result
of Memphis’s deliberate indifference” violated her rights and was the proximate cause of her
injuries and the death of her unborn child. (Id. ¶ 27.)
Plaintiff further alleges that Defendant delegated policy making authority to Defendant
Dugger and vested him, as a police officer, with authority to determine and establish policy with
respect to the arrest of individuals, including policy with respect to when and under what
circumstances to arrest an individual, the manner of effecting the arrest of an individual, and
when to use deadly force. (Id. ¶ 28.) Therefore, Defendant City of Memphis is liable for the
unlawful acts of Defendant Dugger. (Id.) Alternatively, Plaintiff alleges that Defendant City of
Memphis has a policy or custom of delegating discretion to its police officers when and under
what circumstances to arrest individuals, the amount of force to use in arresting an individual,
and the manner of effecting an arrest of an individual, all in violation of the Constitution. (Id. ¶
29.)
The Complaint also alleges that Defendant City of Memphis is liable under the Tennessee
Governmental Tort Liability Act for the negligent hiring and training of Defendant Dugger. (Id. ¶
35.) Plaintiff seeks to hold Defendant City of Memphis vicariously liable for any award of
punitive damages made against Defendant Dugger. (Id. ¶ 40.)
In its Motion for Judgment on the Pleadings, Defendant City of Memphis argues that
Plaintiff has failed to plead a plausible claim against it. Defendant contends that Plaintiff’s
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allegations are conclusory and without any factual support. The Court should dismiss Plaintiff’s
claim that the Memphis Police Department failed to have a policy on the use of force on October
27, 2009. The City states that this Court has received evidence of the MPD’s use of force policy
in many cases in the past. Second, Plaintiff’s failure to train claim is not supported by any
factual allegations. As such, Defendant is entitled to judgment on the pleadings. Third, Plaintiff
has failed to plead any facts to assert the City’s deliberate indifference, specifically, that the City
was aware of prior claims of unconstitutional conduct by Defendant Dugger or other MPD
officers. Likewise, Plaintiff has failed to plead any facts in support of her allegation that the City
has delegated policy-making authority to Defendant Dugger or that the City has a custom or
policy of delegating such authority to its officers. For all of these reasons, the Court should grant
Defendant judgment on the pleadings as to all of Plaintiff’s § 1983 claims.
Additionally, Defendant argues that it has immunity from suit under the GTLA because
Plaintiff’s tort claim against the suit is actually in the nature of a civil rights claim. Therefore,
immunity is not removed under the Act. Finally, the City posits that it is not liable for punitive
damages. Therefore, the Court should dismiss all claims against Defendant City of Memphis.
In her response in opposition, Plaintiff argues that she has plausibly plead her § 1983
claims against the City. Plaintiff recites her pleadings about the elements of her § 1983 claims
and the facts giving rise to those claims. Plaintiff asserts that she has made “specific factual
allegations concerning the City of Memphis’s policies, customs, and delegation of authority to
the individual officer, Defendant Dugger.” Taken together, Plaintiff argues that her pleadings
have plausibly alleged a § 1983 claim against the City. Plaintiff next denies that the MPD’s
official written policy on the use of force is dispositive because the alleged custom of the MPD
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as well as the alleged delegation of authority to MPD officers would have effectively overridden
the City’s written policy. Plaintiff further challenges without citation to any legal authority
Defendant’s argument that immunity is not waived for her GTLA claims sounding in civil rights.
Plaintiff does concede that Defendant City of Memphis cannot be held liable for any punitive
damages. Therefore, the Court should deny Defendant’s Motion in part.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) states, “After the pleadings are closed – but early
enough not to delay trial – a party may move for judgment on the pleadings.”1 Motions for
judgment on the pleadings may be granted where the moving party “is entitled to judgment as a
matter of law.”2 Just as with Rule 12(b)(6) motions, the Court must consider a Rule 12(c)
motion by taking all the “well-pleaded material allegations of the pleadings of the opposing
party” as true.3 A pleading’s factual allegations must be sufficient to give notice to the defendant
as to what claims are alleged, and the plaintiff must plead “sufficient factual matter” to render the
legal claim plausible, i.e., more than merely possible.4 However, “a legal conclusion couched as
a factual allegation” need not be accepted as true on a motion to dismiss, nor are recitations of

1

Fed. R. Civ. P. 12(c).

2

Cincinnati Ins. Co. v. Beazer Homes Invs., LLC, 594 F.3d 441, 444 (6th Cir.), vacated
on other grounds, 399 F. App’x 49 (6th Cir. 2010).
3

Id.

4

Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (citing Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009)).
5

the elements of a cause of action sufficient.5 Thus, although the factual allegations in a
complaint need not be detailed, they “must do more than create speculation or suspicion of a
legally cognizable cause of action; they must show entitlement to relief.”6
ANALYSIS
I.

Section 1983 Claims Against the City of Memphis for Violations of Plaintiffs’
Fourth and Fourteenth Amendment Rights
Plaintiff’s only federal cause of action against Defendant City of Memphis is her § 1983

claim for violation of her Fourth and Fourteenth Amendment rights to be from the use of
excessive force. Construing the Complaint in the light most favorable to the Plaintiff and
accepting all factual allegations as true, the Court concludes that the City of Memphis is entitled
to judgment as a matter of law on Plaintiff’s § 1983 claims. Section 1983 creates a cause of
action when there is a deprivation “of any rights, privileges, or immunities secured by the
Constitution,” as a result “of any statute, ordinance, regulation, custom, or usage, of any State.”7
In cases of local government liability, a plaintiff must allege the following: (1) that the plaintiff
has suffered a deprivation of a constitutional right; and (2) the local government is responsible
for that violation.8 Furthermore, a local governmental entity, such as a municipality, “is not

5

Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007));
6

League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)
(emphasis in original) (citing Twombly, 127 S.Ct. at 1964-65).
7

42 U.S.C. § 1983.

8

Doe v. Claiborne County, Tenn. By and Through Claiborne County Bd. of Educ., 103
F.3d 495, 505-506 (6th Cir. 1996).
6

vicariously liable under § 1983 for the constitutional torts of its agents: it is only liable when it
can be fairly said that the [entity] itself is the wrongdoer.”9 Instead, a plaintiff must allege that
the constitutional tort was a result of a policy or custom of the local government entity itself.10
In the Motion before the Court, Defendant City of Memphis has not challenged Plaintiff’s
allegation that Defendant Dugger used excessive force in effecting Plaintiff’s arrest on October
27, 2009. For purposes of this Motion, the Court need not reach that issue. The Court holds that
even if Defendant Dugger used excessive force in making the arrest, Plaintiff has failed to state a
claim to make the City liable for the alleged constitutional violation. In order to establish the
second prong of her § 1983 claim, Plaintiff must show that the City of Memphis was responsible
for the alleged constitutional deprivations. A municipality cannot be held liable pursuant to §
1983 under a theory of respondeat superior for the actions of its employees.11 For a municipality
to be liable under § 1983, the local government’s policy or custom must be the “moving force of

9

Collins v. City of Harker Heights, Tex., 503 U.S. 115, 121, 112 S. Ct. 1061, 117 L. Ed.
2d 261 (1992). See also Jett v. Dallas Independent School District, 491 U.S. 701, 726-29, 109 S.
Ct. 2702, 105 L. Ed. 2d 598 (1989) (discussing history of civil rights statutes and concluding that
Congress plainly did not intend to impose vicarious liability on counties, municipalities or other
local governmental bodies); City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197,
103 L. Ed. 2d 412 (1989) (rejecting simple vicarious liability for municipalities under § 1983).
10

City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S. Ct. 915, 99 L. Ed. 2d 107
(1988) (interpreting rejection of respondeat superior liability by Monell v. Dept. of Soc. Serv.,
436 U.S. 658, 691 (1978), as a command that “local governments . . . should be held responsible
when, and only when, their official policies cause their employees to violate another person’s
constitutional rights”); Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292, 89
L. Ed. 2d 452 (1986) (same); Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997)
(rejecting claims against city and county and holding that “in order to state a claim against a city
or a county under § 1983, a plaintiff must show that his injury was caused by an unconstitutional
‘policy’ or ‘custom’ of the municipality”, citing Pembaur).
11

Monell, 436 U.S. at 691.
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the constitutional violation.”12 A “custom” for purposes of Monell liability must “be so
permanent and well settled as to constitute a custom or usage with the force of law.”13 In turn,
the notion of “law” must include “[d]eeply embedded traditional ways of carrying out state
policy.”14 It must reflect a course of action deliberately chosen from among various
alternatives.15 In short, a “custom” is a “legal institution” not memorialized by written law.16
Additionally, Plaintiff must show a direct causal link between the custom and the constitutional
deprivation, that is, “the particular injury was incurred because of the execution of that policy.”17
The inadequacy of police training may serve as the basis for § 1983 liability, but only
where the failure to train “amounts to deliberate indifference to the rights of persons with whom
the police come into contact.”18 Only where a municipality’s failure to train its employees in a
relevant respect evidences a “deliberate indifference” to the rights of its inhabitants can such a

12

Polk County v. Dodson, 454 U.S. 312, 326, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1982)
(quoting Monell, 436 U.S. at 694).
13

Monell, 436 U.S. at 691 (internal quotation marks and citation omitted); see also
Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.), cert. denied, 510 U.S. 826, 114
S.Ct. 90, 126 L.Ed.2d 57 (1993).
14

Nashville, Chattanooga & St. Louis Ry. Co. v. Browning, 310 U.S. 362, 369, 60 S. Ct.
968, 972, 84 L. Ed. 1254 (1940).
15

City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791

16

Feliciano, 988 F.2d at 655.

(1985).

17

Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993) (citation omitted),
cert. denied, 510 U.S. 1177, 114 S. Ct. 1219, 127 L. Ed. 2d 565 (1994).
18

Slusher v. Carson, 540 F.3d 449, 457 (6th Cir. 2008) (quoting City of Canton, 489 U.S.

at 388).
8

shortcoming be properly thought of as a “policy or custom” under § 1983.19
“To succeed on a failure to train or supervise claim, a plaintiff must prove the following:
(1) the training or supervision was inadequate for the tasks performed; (2) the inadequacy was
the result of the municipality’s deliberate indifference; and (3) the inadequacy was closely related
to or actually caused the injury.”20 In order to make these showings, the “plaintiff [must] do
more than point to something the city could have done to prevent the unfortunate incident.”21 To
show deliberate indifference, Plaintiff must show prior instances of unconstitutional conduct
demonstrating that the City has ignored a history of abuse and was clearly on notice that the
training in this particular area was deficient and likely to cause injury.22 In the alternative, “a
single violation of federal rights, accompanied by a showing that a municipality has failed to
train its employees to handle recurring situations presenting an obvious potential for such a
violation, could trigger municipal liability.”23
Just as with a motion to dismiss, Plaintiff must state a claim for relief that is plausible on
its face to survive a motion for judgment on the pleadings.24 A claim is plausible when the

19

Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003).

20

Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006) (citing Russo v.
City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992)).
21

Kahlich v. City of Grosse Pointe Farms, 120 F. App’x 580, 585 (6th Cir. 2005).

22

Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (citations and quotation
marks omitted).
23

Plinton, 540 F.3d at 464 (quoting Bd. of County Comm'rs of Bryan County v. Brown,
520 U.S. 397, 409, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)).
24

See Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955).
9

plaintiff pleads facts that allow the court to draw the reasonable inference that defendant is liable
for the misconduct alleged.25 This plausibility standard is not a “probability requirement,” but
rather requires more than a sheer possibility of unlawful actions.26 If a complaint pleads facts
that are “merely consistent with” liability, it “stops short of the line between possibility and
plausibility of relief.”27
Applying the Iqbal pleading standard, the Court holds that Plaintiff has failed to allege
plausible § 1983 claims against the City of Memphis. The Court must “begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the assumption of
truth.”28 Plaintiff’s claims regarding Defendant City of Memphis’ custom, policy or practice of
concerning excessive force, training, and delegation of authority amount to legal conclusions
without additional factual assertions of any kind. In fact, the Court finds that all of Plaintiff’s
allegations are nothing more than formulaic recitations of the elements of a § 1983 claim. For
this reason alone, Plaintiff’s claims should be dismissed.29
It is true that Plaintiff has alleged in some detail the circumstances surrounding her arrest.
Yet other than to deny that the City of Memphis had policies on the use of force, the Complaint
25

Id.

26

Id.

27

28

Id.
Iqbal, 129 S. Ct at 1950.

29

See Birgs v. City of Memphis, 686 F. Supp. 2d 776, 780-81 (W.D. Tenn. 2010)
(“Stripped of legal language, Plaintiff’s Complaint contains no facts that could plausibly lead one
to believe that the City deliberately ignored a history of abuse by officers in the Memphis Police
Department.”).
10

is devoid of any facts related to Memphis’ excessive force policy or a municipal custom, policy
or practice regarding the use of force on pregnant women. In short, Plaintiff’s Complaint
contains
no facts. . . that reasonably describe a specific policy or custom of the City [] that violated
[Plaintiffs’] constitutional rights. Instead, [the pleading] merely recites the elements of a
cause of action to hold the City [] responsible for the actions of its employees. This is
precisely the type of claim that is not actionable in a § 1983 action.30
As a result, Plaintiff’s pleadings have “stop[ped] short of the line between possibility and
plausibility” regarding municipal liability.31 Therefore, Defendant’s Motion for Judgment on the
Pleadings is GRANTED as to Plaintiff’s § 1983 claims.
II.

Tort Claims under the GTLA
The liability of the City for torts committed by its employees and agents is governed by

the Tennessee Governmental Tort Liability Act (“GTLA”).32 Under the GTLA, municipalities in

30

Buster v. City of Cleveland, No. 09-1953, 2010 WL 330261, at *9 (N.D. Ohio Jan. 21,
2010) (dismissing claim of Monell liability which only “tenders naked assertions devoid of
further factual enhancement”). See also Thomas v. City of Chattanooga, 398 F.3d 426, 432-33
(6th Cir. 2005) (“The danger in appellants’ argument is that they are attempting to infer a
municipal-wide policy based solely on one instance of potential misconduct. This argument,
taken to its logical end, would result in the collapsing of the municipal liability standard into a
simple respondeat superior standard.”).
31

See also Hutchison v. Metro. Gov’t of Nashville & Davidson, County, 685 F. Supp. 2d
747, 751 (M.D. Tenn. 2010) (dismissing § 1983 claim for Monell liability based on improper
traffic stop); Johnson v. Metro. Gov’t of Nashville & Davidson County, No. 10-0589, 2010 WL
3619790, at *3 (M.D. Tenn. Sept. 13, 2010); Ghaster v. City of Rocky River, No. 09-2080, 2010
WL 2802685, at *7 (N.D. Ohio May 12, 2010); Williams v. City of Cleveland, No. 09-1310, 2009
WL 2151778 (N.D. Ohio Jul 16, 2009) (plaintiff failed to state a Monell claim where he made
“no factual allegation that can support the conclusion that the City has a policy or custom of
ignoring exculpatory evidence and continuing with prosecutions”).
32

Tenn. Code Ann. § 29-20-205.
11

Tennessee are immune from suit with certain narrow exceptions and waivers of immunity set
forth in the Act. A municipality is generally subject to suit for civil actions sounding in
negligence unless the negligence claims “arise out of” the exceptions provided in Tenn. Code
Ann. § 29-20-205.33 The City retains immunity under the GTLA when the injury arises out of
one of the specified torts enumerated in subsection (2) of Section 29-20-205.34 Among the tort
claims excepted in subsection (2) are claims for violations of civil rights. Based on this
provision, the Court holds that the City is entitled to immunity from suit on claims of negligent
hiring and training pursuant to the “civil rights” exception in Tenn. Code Ann. § 29-20-205(2).
Therefore, Defendant’s Motion for Judgment on the Pleadings as to Plaintiff’s GTLA claim is
GRANTED.
III.

Claims for Punitive Damages Against the City of Memphis
Defendant argues and Plaintiff concedes that punitive damages are not available against

the City of Memphis. The Supreme Court has unequivocally held that “a municipality is immune
from punitive damages under 42 U.S.C. § 1983.”35 Thus, Defendants’ Motion for Judgment on
the Pleadings as to Plaintiff’s claim for punitive damages against the City of Memphis is
GRANTED.
CONCLUSION
Defendant City of Memphis’s Motion for Judgment on the Pleadings is GRANTED.
33

§ 29-20-205(2).

34

See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 82 (Tenn. 2001)

35

Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 69 L. Ed. 2d 616

(1981).
12

Plaintiff’s claims against the City of Memphis are hereby dismissed with prejudice.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: July 15th, 2011.

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