Hershberger v. Town of Collierville et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION, REMANDING CASE TO STATE COURT. Signed by Judge Samuel H. Mays, Jr on 12/2/14. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JOHN R. HERSHBERGER,
Plaintiff,
v.
TOWN OF COLLIERVILLE; THE
COLLIERVILLE POLICE
DEPARTMENT, THE COLLIERVILLE
CHIEF OF POLICE, LARRY
GOODWIN, in his official and
individual capacities, JOHN
DOE SUPERVISORY OFFICERS A and
B, in their official and
individual capacities, and
JOHN DOE POLICE
OFFICERS/JAILERS 1-3, in their
official and individual
capacities,
Defendants.

)
)
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No. 14-2153

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

On

November

(“Hershberger”),
Complaint

8,
an

2013,

Plaintiff

attorney

against

Collierville

Chief

Larry

of

Police

Supervisory

Officers

proceeding

Defendants,

(“Collierville”),

Police

Goodwin
A

and

John

Town

pro

and

Hershberger

se,

of

Department,

(“Chief
B,

R.

a

Collierville
Collierville

Goodwin”),
John

filed

Doe

John

Doe

Police

Officers/Jailers 1-3, alleging violations of 42 U.S.C. § 1983,
the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to

the United States Constitution, the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101, et seq., the Tennessee Human
Rights

Act,

Tenn.

Code.

Ann.

§§

4–21–101,

et

seq.,

and

Tennessee Disability Act, Tenn. Code. Ann. § 8–50–103.
ECF No. 1-1.)

the

(Compl.,

The Complaint was originally filed in the Circuit

Court of Shelby County, Tennessee, and the case was removed to
this Court on March 4, 2014.

(Notice of Removal, ECF No. 1.)

By standing order, the case was referred to the United States
Magistrate Judge for management and pretrial matters.
Order 2013-05, Apr. 29, 2013.)

(Admin.

On June 25, 2014, Defendants

Collierville, Collierville Police Department, and Chief Goodwin
(collectively, “Defendants”) moved to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Dismiss,

ECF

No.

10.)

Hershberger

did

not

(Mot. to

respond

to

the

motion.
Before the Court is the Magistrate Judge’s August 13, 2014
Report and Recommendation (the “Report”) recommending “that the
defendants’ motion to dismiss be granted as to Hershberger’s
claims arising under federal law and that Hershberger’s state
law claims be remanded to state court.”
August

27,

2014,

counsel

behalf of Hershberger.
September

8,

2014,

entered

a

(Rep., ECF No. 12.)
notice

of

appearance

(Notice of Appearance, ECF No. 14.)
Hershberger

objected

Judge’s Report and Recommendation.
2

to

the

On
on
On

Magistrate

(Objection, ECF No. 17.)

For

the

ADOPTED,
case

following

reasons,

Hershberger’s

is

REMANDED

the

federal

to

the

Magistrate
claims

Circuit

are

Court

Judge’s

Report

DISMISSED,
of

and

Shelby

is
the

County,

Tennessee.
I.

Background
According to the Complaint, during a routine traffic stop

on

Highway

385

East,

John

Doe

Police

Officer

1

issued

Hershberger a misdemeanor citation in lieu of arrest for driving
on a suspended license.

Hershberger alleges that he attempted

to show the officer documentation establishing that Hershberger
had paid the ticket for which his license had been suspended,
but the officer refused to review the document and issued the
citation instead.

(Compl., ¶¶ 7-8.)

was November 8, 2012.
On

November

Hershberger’s court date

(Id. ¶ 11.)

4,

2012,

Hershberger

sustained

lacerations to his left hand in a chainsaw accident.
He

underwent

surgery,

was

administered

severe

(Id. ¶ 9.)

antibiotics

and

pain

medication, was given strict guidelines about the dressing and
care

of

his

wounds,

orthopedic surgeon.

and

was

advised

to

follow

up

with

an

(Id. ¶¶ 9-10.)

On the morning of his court appearance, November 8, 2012,
Hershberger was “somewhat sedated from pain medication” and had
failed to take his ADHD medication because of possible negative
drug interactions.

(Id. ¶ 11.)

He arrived at the courthouse at
3

approximately

8:50

A.M.

and

was

informed

at

clerical employee that court had adjourned.

9:00

A.M.

by

(Id. ¶¶ 13-15.)

Hershberger, an attorney, asked to speak with the judge.
clerk denied his request.
for Hershberger’s arrest.

a

The

The clerk then found a bench warrant
(Id. ¶¶ 15-16.)

After a second clerk

took the bench warrant to the judge to be signed, two officers
arrived at the clerk’s office and arrested Hershberger, placing
handcuffs on his injured hand over Hershberger’s objections that
his hand could not sustain pressure.

(Id. ¶¶ 17-19.)

After Hershberger had been processed and confined in the
Collierville Jail, he was permitted to make phone calls on his
personal cellphone.
Hershberger
municipal

had

When John Doe Police Officer 2 discovered

called

judge,

Judge

Officer

2

Craig
took

Hall

(“Judge

Hershberger’s

Hershberger was able to complete the call.
Hershberger
appointment

explained
that

that

afternoon

medication for his hand.
if

and

when

Judge

Hershberger.

he
and

had

an

needed

a

Hall”),
phone

the

before

(Id. ¶¶ 20-21.)

orthopedic
dressing

surgery

change

and

John Doe Police Officer 2 said that,

Hall

Hershberger

called,
alleges

Officer
that

Judge

2

would
Hall

inform

called

30

minutes later, but due to a shift change, Officer 2 was no
longer on duty.

(Id. ¶¶ 22-24.)

John Doe Police Officers 3 and 4 were on duty after the
shift

change

and

did

not

appear
4

to

know

of

Hershberger’s

conversations with Officer 2.

Hershberger alleges Officers 3

and 4 did not respond to his questions or concerns about his
injured hand, made misleading and mocking comments to him, and
informed him that he would be able to make a phone call after
the

shift

change.

(Id.

¶¶

24-25.)

The

officers

told

Hershberger that he would be released when someone posted bond
for him, and Hershberger responded that no one could post bond
if he were not given an opportunity to make a phone call.
¶ 26.)

(Id.

Officers 3 and 4 allegedly continued to mock Hershberger

and give aggravating responses.
the office area and his cell.

They closed the door between

(Id. ¶¶ 27-28.)

Hershberger, concerned about his hand and seeking not to be
ignored, began kicking at the base of the jail cell bars.

An

officer came out and told him to stop, and Hershberger again
requested a phone call.

(Id. ¶¶ 30-33.)

The officer denied his

request, and Hershberger began kicking the bars again.
officers returned and
Hershberger
John

Doe

asked

Police

to

said
speak

Officers

3

Both

they were tired of his behavior.
to

the

and

4

shift
then

commanding
placed

officer.

handcuffs

shackles on Hershberger and returned him to his cell.

and

(Id. ¶¶

34-36.)
Hershberger,

who

could

no

longer

kick

the

cell

door

effectively, began to beat the side of the metal toilet.

The

officers returned, opened the cell door, and sprayed Hershberger
5

in the face with pepper spray.

Hershberger ran into the cell to

take cover, and John Doe Police Officers 3 and 4 pursued him,
spraying him with pepper spray as he lay on the ground.
37-39.)

(Id. ¶¶

A short time later, Hershberger was removed from the

jail cell, his right eye swollen and his face, head, neck, and
shirt covered in pepper spray.

He was taken before the judge

but did not have any of the supporting documentation to show
that he had paid the ticket.
speak to the judge.
Hershberger

He alleges he was not permitted to

(Id. ¶¶ 43-45.)

was

transported

to

the

Shelby

County

Jail,

where he was permitted to use the telephone to call his wife.
His lawyer posted bond within an hour and a half, Hershberger
was

transferred

back

to

the

Collierville

released at 1:00 A.M. on November 9, 2012.
II.

Jail,

and

he

was

(Id. ¶¶ 48-51.)

Jurisdiction
Hershberger alleges violations of 42 U.S.C. § 1983, the

First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the
Constitution, and the ADA.

(Compl.)

The Court has federal

question jurisdiction under 28 U.S.C. § 1331.
supplemental

jurisdiction

over

the

The Court has

Hershberger’s

state

law

claims under 28 U.S.C. § 1367 because they derive from a “common
nucleus of operative fact.”

See 28 U.S.C. § 1367; United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).

6

III. Standard of Review
A.

Pro Se Litigant Standard Not Applicable
“Pro se

[pleadings] are

[generally] to be held to less

stringent standards than formal pleadings drafted by lawyers,
and

should

therefore

be

liberally

construed.”

Williams

v.

Curtin, 631 F.3d 380, 383 (6th Cir. 2011)(internal quotation
marks

omitted).

attorney,

Where

however,

the

a

pro

se

pleadings

plaintiff
are

considered on a more relaxed standard.”

“not

is

a

licensed

entitled

to

be

Morrison v. Tomano, 755

F.2d 515, 517 (6th Cir. 1985); see also Harbulak v. Suffolk
Cnty., 654 F.2d 194, 198 (2d Cir. 1981) (holding that, when a
pro

se

plaintiff

consideration

is

which

a

lawyer,

the

he

courts

“cannot

customarily

claim

the

grant

to

special
pro

se

parties”).
B.

Standard for Review of Magistrate Judge’s Report
Congress enacted 28 U.S.C. § 636 to relieve the burden on

the federal judiciary by permitting the assignment of district
court duties to magistrate judges.
237

F.3d

States,

598,
490

602

U.S.

(6th
858,

Cir.

See United States v. Curtis,

2001)

869-70

(citing

(1989));

Gomez

see

v.

also

Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

United

Baker

v.

“A district

judge must determine de novo any part of a magistrate judge’s
disposition that has been properly objected to.”
P.

72(b);

28

U.S.C.

§

636(b)(1)(C).
7

After

Fed. R. Civ.
reviewing

the

evidence, the court is free to accept, reject, or modify the
proposed findings or recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)(C).

The district court is not required to

review—under a de novo or any other standard—those aspects of
the report and recommendation to which no proper objection is
made.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

The district

court should adopt the findings and rulings of the magistrate
judge to which no specific objection is filed.
C.

Id. at 151.

Standard for Motion to Dismiss
In addressing a motion to dismiss for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6), the court
must construe the complaint in the light most favorable to the
plaintiff and accept all well-pled factual allegations as true.
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523,
527

(6th

Cir.

2007).

A

plaintiff

can

support

a

claim

“by

showing any set of facts consistent with the allegations in the
complaint.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

(2007).
This standard requires more than bare assertions of legal
conclusions.

Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356,

361 (6th Cir. 2001).

“[A] formulaic recitation of the elements

of a cause of action will not do.”
To

survive

a

motion

to

dismiss,

Twombly, 550 U.S. at 555.
a

complaint

must

contain

sufficient facts “to ‘state a claim to relief that is plausible
8

on its face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(quoting Twombly, 550 U.S. at 570).

“The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of

the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
plaintiff

with

no

facts

Id. at 1949 (citation omitted).

and

“armed

with

nothing

more

conclusions” cannot “unlock the doors of discovery.”

A

than

Id. at

1950.
IV.

Analysis

A.

Waiver of Objections
The

Magistrate

Judge

found

that

Hershberger’s

claims

arising under federal law should be dismissed for failure to
state a claim on which relief may be granted.
12.)

Hershberger,

motion,
Report.

now

objects

having
to

failed

to

respond

portions

of

the

(Objection, ECF No. 17.)

(Report, ECF No.
to

Defendants’

Magistrate

Judge’s

Defendants argue that “a

party’s failure to respond to a motion should be treated as [a
waiver of] his objections.”

(Resp., at 4-5.)

“[F]ailing to respond to a motion referred to a magistrate
judge and then opposing the motion in an objection to a report
and recommendation issued by the magistrate judge circumvents
the entire referral process.”

Estate of Hickman v. Moore, 3:099

CV-69, 2011 WL 1058934 (E.D. Tenn. Mar. 21, 2011).

Allowing a

party to ignore a motion and then, after reading the magistrate
judge’s

report,

irreconcilable

oppose

with

§

the

636’s

motion
goal

through

of

judicial

objection
economy.

is
See

Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991) (holding that the requirements of the Magistrates Act
are supported by sound considerations of judicial economy).

The

Sixth Circuit Court of Appeals has not addressed the failure to
respond, but district courts within the Sixth Circuit have held
that

a

party

objections

he

who

fails

may

have

recommendation.
defendants’

to
to

respond
the

to

a

magistrate

motion

waives

judge’s

any

subsequent

See Moore, 2011 WL 1058934 (holding that the

failure

to

respond

to

the

plaintiff’s

motion

foreclosed the defendants’ ability to object to the report and
recommendation);

Watson v. Rentenbach Eng’g Co., 3:09-CV-150,

2013 WL 1292674 (E.D. Tenn. Mar. 28, 2013) (“[P]laintiff did not
file a timely response to the motion prior to issuance of the R
& R.

Plaintiff therefore ‘waived any objections to the motion,

and, thus, the recommendation.’” (quoting MW Mapleleaf Partners,
LLC

v.

Fifth

Third

Bank,

Inc.,

No.

5:09–380–KKC,

2010

WL

5463299, at *1 (E.D.Ky. Dec. 22, 2010))).
Against these strong policy concerns, the language of § 636
mandates that the Court “make a de novo determination of those
portions

of

the

report

.

.

.
10

to

which

objection

is

made.”

Motions to dismiss are treated differently than other motions.
Local Rule 7.2 provides that “[f]ailure to respond timely to any
motion,

other

claim

or

action, may be deemed good grounds for granting the motion.”

LR

7.2(a)(2).

than

Local

one

Rule

requesting

12.1,

contains no similar language.

dismissal

governing

of

a

motions

to

dismiss,

Because the underlying motion is

a motion to dismiss, the Court will review de novo all of the
Magistrate Judge’s findings

to which Hershberger specifically

objects.
B.

Hershberger’s Claims against John Doe Defendants
Because § 1983 does not provide a statute of limitations,

federal courts borrow the forum state’s statute of limitations.
Wallace v. Kato, 549 U.S. 384, 388 (2007).

In Tennessee, a

federal civil rights action brought under § 1983 must be filed
within

one

year

from

the

time

the

Tenn. Code Ann. § 28-3-104(a)(3).

cause

of

action

accrued.

The Magistrate Judge found

that, “[e]ven if Hershberger now substitute[s] named defendants
for these John Doe defendants, his claims against them are timebarred because the change in parties cannot relate back to the
November 8, 2013 filing date.”
objects.

(Rep., at 10-11.)

Hershberger

(Objection, at 7-12.)

Rule 15 of the Federal Rules of Civil Procedure governs
whether

amended

pleadings

relate

original pleading:
11

back

to

the

date

of

the

(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original
pleading when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence
set out--or attempted to be set out--in the original
pleading; or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it
will not be prejudiced in defending on the
merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party’s identity.
Fed R. Civ. P. 15(c).
days.

The period provided by Rule 4(m) is 120

Fed R. Civ. P. 4(m).

Hershberger argues that Defendants’ Answer shows “that the
unnamed John Does were interviewed in detail in preparation of
the Answer and were well aware of the lawsuit.”
10.)

(Objection, at

Hershberger also cites Berndt v. Tennessee, 796 F.2d 879

(6th Cir. 1986), which states that, “where the complaint alleges
in substance that the new defendants committed the illegal acts
and are officials of the original defendant, that relationship
may

imply

receipt

of

sufficient
12

notice.”

Id.

at

882.

(See

Objection, at 10-11.)

Hershberger argues that, like the Doe

defendants in Berndt, the John Doe defendants here are officials
of

the

original

defendant,

Collierville.

(Id.

at

11.)

Hershberger argues that the John Doe defendants had actual or
constructive

notice

within

120

days

of

the

filing

of

the

Complaint, and if he amends the Complaint to properly name the
defendants, the amendment should relate back to the date of the
filing of the original Complaint.
Hershberger’s arguments are not well taken.
John

Doe

defendants

amendment

cannot

Complaint.

had

relate

actual
back

to

or

Even if the

constructive

the

date

of

notice,
the

the

original

An amended complaint that changes defendants1 relates

back to the date of the original Complaint only if the newlynamed

defendant

“knew

or

should

have

known

that,

but

for

a

mistake concerning the identity of the proper party, the action
would

have

been

brought

against

15(c)(1)(C)(ii) (emphasis added).

[him].”

Fed

R.

Civ.

P.

The Sixth Circuit has held

that “this requirement is not satisfied where the caption of an
original

complaint

refers

to

‘unknown

police

officers’

and,

after the expiration of the applicable limitations period, an
amended complaint specifically names those officers.”

Force v.

City of Memphis, 101 F.3d 702, *3 (6th Cir. 1996) (citing Cox,
1

“Substituting a named defendant for a ‘John Doe’ defendant is considered a
change in parties, not a mere substitution of parties.” Cox v. Treadway, 75
F.3d 230, 240 (6th Cir. 1996).

13

75 F.3d at 240).

Hershberger’s lack of knowledge of the names

of the officers is not a mistake within the meaning of Rule 15,
and an amendment that changes defendants cannot relate back to
the date of the original Complaint.
C.

See Force, 101 F.3d at *4.

Hershberger’s § 1983 Claims against Collierville
The Magistrate Judge found that Hershberger’s allegations

fall short of stating claims under § 1983 against Collierville
because they lack the factual support of a policy or custom
causing

constitutional

Hershberger
against

objects

to

Collierville,

Complaint

support

a

Fourteenth Amendment.

violations.
the

(Rep.,

dismissal

arguing

that

of

the

“failure-to-train

his

facts

at
§

alleged

theory”

(Objection, at 13.)

1983

13-15.)
claims
in

under

the
the

Defendants argue

that “the facts Hershberger cites relate to the conduct of the
Doe defendants,” not Collierville.

(Resp., at 10.)

The Supreme Court has held that a local government may not
be held vicariously liable under § 1983 for injuries inflicted
by its employees or agents.

Monell v. Department of Social

Services of City of New York, 436 U.S. 658, 694 (1978).

A local

government is only liable under § 1983 when a “policy or custom
. . . inflicts the injury.”

Id.

Accordingly, to survive a motion to dismiss under Rule
12(b)(6), a plaintiff must adequately plead (1) that a
violation of a federal right took place, (2) that the
defendants acted under the color of state law, and (3)

14

that a municipality’s
violation to happen.
Bright

v.

Gallia

County,

policy
Ohio,

or

753

custom
F.3d

caused

639,

that

660

(6th

Cir.

2014)(citing Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008)).
Pretrial

detainees

“adequate

medical

Amendment

rights

have

treatment
of

a

Fourteenth

that

prisoners.”

is

Amendment

analogous

Watkins

right

to

the

Eighth

City

v.

to

of

Battle

Creek, 273 F.3d 682, 686 (6th Cir. 2001) (citing City of Revere
v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)); Ford v. County
of

Grand

Traverse,

535

F.3d

483,

495

(6th

Cir.

2008)

(“The

Eighth Amendment, by its terms, applies only to post-conviction
inmates.

Pretrial

equivalent

right

detainees,
to

however,

adequate

medical

are

guaranteed

treatment

Process Clause of the Fourteenth Amendment.”).
v.

M.S.

Connor

(explaining
until

after

that

et

al.,

Eight

490

U.S.

Amendment

conviction

and

1865,

511 U.S. 825, 834 (1994).

Due

n.6

(1989)

not

attach

does
A

inadequate care must meet two requirements.

the

See also Graham
1870

protection

sentence).

by

the

claim

alleging

Farmer v. Brennan,

“First, the deprivation alleged must

be, objectively, ‘sufficiently serious.’”

Id. (citing Wilson v.

Seiter, 501 U.S. 294, 299 (1991) (stating that the wanton supply
of

insufficient

medical

needs

constitutional rights) (dicta).
care

providers

act

with

may

violate

a

prisoner’s

The second requirement is that

“deliberate
15

indifference”

to

those

medical needs.

See id.

See also Jackson v. Wilkins, 517 Fed.

App’x 311, 317 (2013) (holding that “deliberate indifference to
serious medical needs” is a violation of a detainee’s Fourteenth
Amendment rights).
To allege deliberate indifference adequately, a plaintiff
must state facts that show “defendants knew of and disregarded a
substantial risk of serious harm to [the pretrial detainee’s]
health and safety.”

Estate of Owensby v. City of Cincinnati,

414 F.3d 596, 603 (6th Cir. 2005) (citation omitted).
To hold a local government liable, a plaintiff must plead
that

the

constitutional

violation

resulted

from

a

policy

or

custom by identifying:
(1) The municipality’s legislative enactments or
official agency policies; (2) actions taken by
officials with final decision-making authority; (3) a
policy of inadequate training or supervision; or (4) a
custom of tolerance or acquiescence to federal rights
violations.
Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 2009).

A conclusory

allegation that a city employed an unlawful policy or custom,
without

identifying

the

policy

or

stating

conformance to that custom, is not sufficient.

a

pattern

of

See Iqbal, 129

S. Ct. 1937, 1949 (2009); Huffer v. Bogen, 503 Fed. App’x 455,
462 (6th Cir. 2012) (dismissing a § 1983 claim against a county
defendant when the complaint “failed to identify any policy or
custom that resulted in a constitutional violation”); Broyles v.
16

Correctional Medical Services, Inc., 2009 WL 3154241, at *2 (6th
Cir.

2009)

unsupported

(“[B]are
by

any

allegations
evidence,

of

are

a

custom

insufficient

or
to

policy,
establish

entitlement to relief.”); accord Rowland v. City of Memphis, et
al., 2013 WL 2147457, at *5 (W.D. Tenn., May 15, 2013)(“[T]he
three

allegations

in

the

Amended

Complaint

that

refer

to

‘policies and procedures’ are conclusory.”)
To plead a § 1983 claim based on a failure to train that is
sufficient to withstand a Rule 12(b)(6) motion after Iqbal and
Twombly, a plaintiff must plead more facts than those that would
support the alleged underlying constitutional violation.
v. City of Memphis, 238 F.3d 422 (6th Cir. 2000).
policy

or

custom

of

insufficient

training

Madyun

To plead a

adequately,

a

plaintiff must state facts to support a finding of deliberate
indifference—that

the

municipality

training was lacking.
388-89

(1989).

“Only

knew

yet

ignored

that

its

City of Canton v. Harris, 489 U.S. 378,
where

a

failure

to

train

reflects

a

deliberate or conscious choice by a municipality—a policy as
defined by our prior cases—can a municipality be liable for such
a failure under § 1983.”

Harris, 489 U.S. at 388-89.

Paragraph 57 of the Complaint, the only paragraph in which
Hershberger specifically alleges the existence of a policy, is
conclusory:

“The

Collierville

Municipal

Court

and

the

Collierville Police Department maintain a policy and practice of
17

willful

ignorance

of

circumstances

within

their

knowledge

or

control without a good-faith justification for the policy and/or
practice.”
three

(Compl., ¶ 57.)

additional

claim.

In his objection, Hershberger cites

paragraphs

(Objection, at 15.)

to

support

his

failure-to-train

Paragraph 64 is no less conclusory

than paragraph 57: “The failure of the Defendants to enforce the
laws of the State of Tennessee and the United States regarding
the use of excessive force and the cruel and unusual punishment
of

those

and/or

individuals

deliberate

Paragraph

65

in

custody

indifference

alleges

that

.

amounts
.

.

to

.”

“Defendant

gross

negligence

(Compl.,
Collierville

¶

64.)

Police

Department . . . knowingly failed to enforce the laws of the
State of Tennessee . . . .”

(Id. ¶ 65.)

That paragraph, also

conclusory, alleges only a failure to enforce Tennessee laws.
Paragraph

66

alleges

that

“Defendant

Officers’

deliberate

misfeasance and malfeasance, indicates that the officers were
not

appropriately

supervised.”

interviewed,

(Id. ¶ 66.)

hired,

evaluated,

and/or

Like the other paragraphs Hershberger

cites, paragraph 66 is conclusory and does not offer factual
support for a failure-to-train custom or policy.

(Id.)

Although Hershberger plausibly alleges that he was deprived
of his rights under the Constitution, he does not state a claim
that

his

injuries

were

caused

by

a

policy

or

custom.

Collierville is not vicariously liable for the deprivation of
18

Hershberger’s rights.

Monell, 436 U.S. at 694.

Hershberger

does not identify any enactment or specific Collierville policy
or

custom

of

tolerance

violations.

See

Collierville

policies

or

Spears,

acquiescence

589

led

to

federal

F.3d
his

to

at

256.

His

deprivation

rights

claim

of

that

rights

is

entirely conclusory because he alleges no facts to support it.
See

Broyles,

2009

WL

3154241

at

*2.

Although

Hershberger

alleges that Collierville failed to “appropriately interview[],
hire[],

evaluate[],

and/or

supervise[]”

its

employees,

Hershberger offers no facts to show that Collierville knew yet
ignored that its training was lacking.
Harris, 489 U.S. at 388-89.
that

authorities

ignored.

(Compl., at ¶ 66.) See

Hershberger cites no past incidents
Without

adequately

pleading

the

existence of a policy or custom that caused the deprivation of
his constitutional rights, Hershberger fails to state a § 1983
claim against Collierville for which relief can be granted.
D.

Hershberger’s § 1983 Claims against Chief Goodwin
The Magistrate Judge found that “Hershberger’s complaint

contains

no

allegations

of

affirmative

misconduct

by

Chief

Goodwin . . . . Hershberger has not pleaded facts to support his
bare allegation that Chief Goodwin knowingly acquiesced to the
unconstitutional

conduct

to

support

a

theory

of

Hershberger objects.

supervisory

liability.”

(Rep., at 12.)

at 17-18.)

Citing Ontha v. Rutherford Cnty., Tennessee, 222 F.
19

(Objection,

App’x

498

(6th

Cir.

2007),

Hershberger

argues

that

“[a]

supervisory officer may be liable for the unconstitutional acts
of his subordinates, even if it is undisputed that the officer
had

no

direct

personal

involvement

in

the

unconstitutional

actions that caused the plaintiff’s injuries.”

(Objection, at

17-18.)
Ontha does not support Hershberger’s argument.
F.

App’x

supervise,

at

504

control

(“[A]
or

supervisory

train

the

official’s

offending

Ontha, 222
failure

individual

is

to
not

actionable unless the supervisor either encouraged the specific
incident

of

misconduct

or

in

some

other

way

directly

participated in it.” (internal quotation marks omitted)).

In

Ontha, the court held that the plaintiff’s § 1983 claims could
not survive because the defendant supervisor was not personally
involved in the unconstitutional actions.
Because
superior,

§

1983

“proof

of

liability
personal

cannot

Id. at 505.

be

involvement

supervisor to incur personal liability.”

based
is

on

respondeat

required

for

a

Kosloski v. Dunlap,

347 F. App’x 177, 180 (6th Cir.2009) (quoting Miller v. Calhoun
County, 408 F.3d 803, 817 n.3 (6th Cir.2005)).

“At a minimum, a

§ 1983 plaintiff must show that a supervisory official at least
implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.”

Petty

v. County of Franklin, Ohio, 478 F.3d 341, 349 (6th Cir.2007)
20

(quoting Taylor v. Michigan Dep’t of Corrs., 69 F.3d 76, 81 (6th
Cir.1995)).

“A plaintiff must show that a supervising officer

did more than play a passive role in the alleged violation or
showed

mere

tacit

approval

of

the

goings

on.

Nor

can

the

liability of supervisors be based solely on the right to control
employees, or simple awareness of employees’ misconduct.”

Id.

at 486–87 (internal citations and quotation marks omitted).
Hershberger fails to allege any affirmative misconduct by
Chief Goodwin.

In his Complaint, Hershberger concludes that

Chief Goodwin “knowingly failed to enforce the laws of the State
of Tennessee pertaining to the use of force and possibly deadly
force . . . .”
sufficient.

(Compl. ¶ 65.)

A “mere failure to act” is not

Walters v. Stafford, 317 F. App’x 479, 486 (6th

Cir.2009) (quoting Gregory v. City of Louisville, 444 F.3d 725,
751 (6th Cir.2006)).

Hershberger does not allege that Chief

Goodwin encouraged or otherwise participated in unconstitutional
acts.

Nor

conclusion

does
that

Hershberger
Chief

allege

Goodwin

facts

to

the

acquiesced

knowingly

support

in

unconstitutional acts of the officers.
E.

Hershberger’s First Amendment Claim
The Magistrate Judge found that Hershberger fails to state

a claim for interference with the right of access to the courts
because

Hershberger

does

not

“allege

elements of a right to access claim.”
21

any

of

the

requisite

(Rep., at 16-17.)

In his

objection, Hershberger quotes Stockenauer v. DeLeeuw, 57 F.3d
1070 at *1 (6th Cir. 1995) (per curiam): “It is not necessary
for Plaintiff to prove that he was prejudiced in his lawsuit for
there to be a constitutional violation.

It is enough if the

Plaintiff proves by a preponderance of the evidence that he was
deprived

of

the

ability

(Objection, at 18.)
the

ability

exonerated

To

possess

the

legal

materials.”

Hershberger alleges that he was deprived of

possess

legal

(Id.)

him.

plaintiff’s
rejected.

to

to

The

requested

jury

materials

that

Stockenauer

instruction,

could

quotation
which

the

have

is

the

court

Stockenauer, 57 F.3d at *1.

state

a

claim

for

interference

with

access

to

the

courts, a plaintiff must allege that (1) he was prevented from
filing

a

non-frivolous

legal

claim,

(2)

he

suffered

actual

injury, and (3) his legal claim was lost or rejected or he is
currently prevented from bringing the claim.

Clark v. Corr.

Corp. of Am., 113 F. App’x 65, 68 (6th Cir. 2004).

Hershberger

does not allege any of the required elements of a claim for
interference with access to the courts.
F.

Hershberger’s False Arrest and False Imprisonment Claims
The Magistrate Judge found that Hershberger fails to state

a claim for false arrest or false imprisonment because he does
not

“allege

warrant.”

facts

to

challenge

(Rep., at 18.)

the

validity

Hershberger objects.
22

of

his

arrest

(Objection, at

19.)

He

argues

that

he

“alleged

that

he

was

detained

by

officers while the Court Clerk left to get Hershberger’s arrest
warrant signed and entered into the Court’s electronic docket,”
and that such a detention is presumptively unreasonable. (Id.)
Hershberger’s Complaint includes the following allegations
about the warrant:
6. Pursuant to the warrant
arrest on November 8th,
Hershberger, was arrested
taken into the custody of
Police Department.

issued for the plaintiff’s
2012, Plaintiff, John R.
on November 8th, 2012 and
the defendant Collierville

. . .
15. When the clerical employee indicated that the
court was no longer in session, Plaintiff, an
attorney, requested that the Plaintiff might speak to
the Judge in order to reset the citation for the
Court’s afternoon docket.
The clerk stated that
criminal defendants were not allowed to speak to the
Judge and then began typing information into a
computer terminal.
16. After several minutes another clerical employee
appeared at the window with a stack of paper, which
the first clerical employee began looking through.
The first clerical employee selected two papers from
the stack and set them out, indicating to the second
clerical
employee
that
the
bench
warrant
for
Plaintiff’s arrest was not signed or entered in the
computer.
17. The second clerical employee took the two papers
and returned momentarily as two police officers
converged on either side of Plaintiff, held his arms
behind his back, and put handcuffs on him to transport
him to the jail. . . .
(Compl.

¶¶

6,

15-17.)

The

Complaint

does

not

allege

that

Hershberger was detained by the officers while the clerk left to
23

get

the

warrant

signed.

In

paragraph

6,

it

Hershberger was arrested “pursuant to the warrant.”

alleges

that

(Id. ¶ 6.)

“An arrest pursuant to a facially valid warrant is normally
a complete defense to a federal constitutional claim for false
arrest or false imprisonment made pursuant to § 1983.”

Voyticky

v. Vill. Of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005).
“Arrest

warrants

in

the

hands

of

a

police

facially invalid, are presumed valid.”

pursuant
valid.

no
to

facts

to

which

he

challenge
was

the

arrested,

unless

Fettes v. Hendershot,

375 F. App’x 528, 532 (6th Cir. 2010).
alleges

officer,

Because Hershberger

validity
the

of

warrant

the

warrant

is

presumed

The warrant is a complete defense to Hershberger’s false

arrest and false imprisonment claims.
G.

Remand
In

Gibbs,

the

Supreme

Court

stated,

“[I]f

the

federal

claims are dismissed before trial . . . the state claims should
be dismissed as well.”

383 U.S. at 726.

The Court has since

clarified that this rule is not to be applied inflexibly in all
cases.

Carnegie-Mellon University v. Cohill, 484 U.S. 343, 353

n. 7 (1988)
case

in

“The statement simply recognizes that in the usual

which

all

federal-law

claims

are

eliminated

before

trial, the balance of factors to be considered under the pendent
jurisdiction

doctrine—judicial

economy,

convenience,

fairness,

and comity—will point toward declining to exercise jurisdiction
24

over

the

remaining

state-law

claims.”

Id.

The

Court

also

instructed district courts to consider whether the plaintiff has
engaged
forum.

in

any

manipulative

tactics

to

achieve

desired

Id. at 357.

Hershberger

has

not

engaged

achieve his desired forum.

in

manipulative

strong

relevant

state

interest

in

factors—judicial

comity—favor remand.

tactics

to

The Court has not made an extensive

investment of judicial resources in this matter.
a

his

interpreting

economy,

its

convenience,

Tennessee has
statutes.
fairness,

The
and

The Court should not exercise supplemental

jurisdiction over Hershberger’s state law claims.
V.

Conclusion
For the foregoing reasons, the Magistrate Judge’s Report is

ADOPTED,
case

Hershberger’s

is

REMANDED

to

federal
the

claims

Circuit

are

Court

DISMISSED,
of

Shelby

and

the

County,

Tennessee.
So ordered this 2d day of December, 2014.

/s Samuel H. Mays, Jr.______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

25