Opinion
No. 1:02-cv-146
January 26, 2004
MEMORANDUM AND ORDER
This suit arises out of an incident where a police officer employed by the Town of Benton Police Department, defendant Joe Gunnoe ("Gunnoe"), arrested plaintiff Joe W. Gregory ("Gregory"). Gregory contends that during the course of the arrest, Officer Gunnoe used excessive force thereby depriving Gregory of rights secured to him by the Fourth Amendment to the United States Constitution.
Gregory brings a federal civil rights claim against Gunnoe and defendant Town of Benton, Tennessee, for damages pursuant to 42 U.S.C. § 1983 invoking the Court's subject matter jurisdiction under 28 U.S.C. § 1331. In addition, Gregory asserts a related common law tort claim for assault solely against Gunnoe under Tennessee law. The Court has supplemental jurisdiction over the common law assault claim against Gunnoe pursuant to 28 U.S.C. § 1367(a). As the Court reads and understand's Gregory's complaint, he is not making a common law tort claim for assault against defendant Town of Benton.
The matter presently before the Court is a motion by the Town of Benton for summary judgment to dismiss the § 1983 claim brought against it. [Court File No. 13]. Gregory has not timely filed a response to the motion and the Court deems Gregory to have waived opposition to the motion. E.D.TN. LR 7.2. The Court cannot automatically grant the summary judgment motion simply because Gregory has not timely filed a response in opposition. The Court is required to examine the record and determine whether the Town of Benton has met its burden of demonstrating the absence of a genuine issue of material fact and that it is entitled to summary judgment as a matter of law. Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir. 1998); Wilson v. City of Zanesville, 954 F.2d 349, 351 (6th Cir. 1992); Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991).
After reviewing the record, the Court concludes that the Town of Ben ton's summary judgment motion is well taken; and it will be GRANTED pursuant to FED. R. Civ. P. 56. Gregory's complaint against the Town of Benton will be DISMISSED WITH PREJUDICE. I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The Court must view the facts contained in the record and all reasonable inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a rational jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907. While the Court draws all reasonable factual inferences in the light most favorable to plaintiff Gregory, the Court may grant summary judgment to defendant Town of Benton if the record taken as a whole could not lead an objective, rational jury to find for Gregory. Matushita, 475 U.S. at 587; McKinnie v. Roadway Express, Inc., 341 F.3d 554, 557 (6th Cir. 2003).
II. Facts
Gregory has not submitted any proof, either by way of sworn affidavit or deposition under Rule 56. The Town of Benton submits the affidavit of William Dewitt King, Jr. ("King"). [Court File No. 16]. King is the Chief of Police for the Benton Police Department. Gregory has not presented any proof to dispute or rebut King's affidavit. Consequently, the Court accepts King's affidavit as being true and correct.
The Court has reviewed the record in the light most favorable to Gregory and makes the following findings of fact. Gregory is a resident of Polk County, Tennessee. Gunnoe was employed as a police officer by the Town of Benton's Police Department. On July 26, 2001, Gregory was driving an automobile in the Town of Benton when he was stopped by Officer Gunnoe for a traffic violation. Gunnoe observed Gregory running through a red stop light. Officer Gunnoe activated the emergency lights on his police car and signaled for Gregory to pull over and stop. Gregory stopped and exited his automobile.
The parties' version of events diverge at this juncture in the narrative. In the complaint, Gregory alleges that he was assaulted by Gunnoe, and that Gunnoe used excessive force to arrest Gregory According to Gregory, Gunnoe knocked him to the ground. Once Gregory was laying on the ground, Gunnoe put his knee across Gregory's neck. It is alleged that Gunnoe twisted Gregory's arm behind his back and rammed Gregory's face into the ground. Gregory says that he had his billfold in his hand ready to show his driver's license in compliance with Gunnoe's instructions. Gunnoe arrested Gregory for resisting arrest. Gregory further contends that at no time previous to the assault had he been belligerent, evasive, or uncooperative. The "resistence" for which Gregory was arrested consisted merely of Gregory questioning the justification for the traffic stop and requesting time to retrieve his wallet containing his driver's license.
The Town of Benton has a different version of events. It contends that Gregory did not properly stop his automobile when directed to do so by Officer Gunnoe. According to the Town of Benton, Gregory only stopped his automobile after ignoring Gunnoe's directive to stop on the roadway and after Gregory drove into a field. In its answer [Court File No. 5], the Town of Benton admits it was necessary for Gunnoe to use force to arrest Gregory and this involved a physical struggle on the ground. However, the Town of Benton denies that Gunnoe used excessive force or assaulted Gregory. The Town of Benton denies that Gunnoe knocked Gregory to the ground, put a knee across Gregory's neck, rammed Gregory's face into the ground, and twisted Gregory's arm behind his back other than as necessary to apply handcuffs to Gregory.
There are issues of material fact in dispute whether Gunnoe assaulted Gregory and whether Gunnoe used excessive force. However, the specific issue to be resolved here is whether Gregory can prove that the Town of Benton has any liability under 42 U.S.C. § 1983. The Court must determine if there is a genuine issue of material fact in dispute whether the Town of Benton can be held liable for Gunnoe's alleged conduct pursuant to § 1983. The Court finds there is not a genuine issue of material fact in dispute which precludes the entry of summary judgment in favor of the Town of Benton.
In his complaint, Gregory avers that Gunnoe has a history, known to the Town of Benton and its Police Department, of using excessive force during traffic stops and for making a comparatively high number of arrests of persons on the charge of resisting arrest. Gregory contends the Town of Benton had reason to know or believe that Officer Gunnoe regularly violated the Fourth Amendment rights of citizens during traffic stops but it failed to take reasonable care to prevent such violations. The problem is that Gregory has not submitted any proof to the Court to support these bare allegations in his pleadings.
When a summary judgment motion is made, Gregory cannot defeat it merely by resting or relying upon his unsworn complaint. Moreover, Gregory's allegations are refuted by King's affidavit which stands unchallenged.
III. Analysis
The Town of Benton cannot be held vicariously liable for constitutional torts committed by its employees and agents pursuant to 42 U.S.C. § 1983 based on the doctrine of respondeat superior. It is well settled that thee is no respondeat superior liability under § 1983 for governmental entities. Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 387, 403 (1997); Collins v. Barker Heights, 503 U.S. 115, 121 (1992); Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978); Gregory v. Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir. 2000); Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997); Doe v. Claiborne County, Tenn., 103 F.3d 495, 507 (6th Cir. 1996). A municipality may not be sued under § 1983 solely on the basis that an injury has been inflicted by one of its police officers.
"Instead, it is when the execution of a government's policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694; see also Brown, 520 U.S. at 403-04; Gregory, 220 F.3d at 441; Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998); Stemler, 126 F.3d at 865. Gregory is required to demonstrate that the Town of Benton, through its deliberate conduct, was the "moving force" behind the alleged deprivation or violation of his federal constitutional rights. Brown, 520 U.S. at 405; Gregory, 220 F.3d at 442. In the absence of any proof from Gregory, the Court can only conclude that he cannot meet his burden of showing the Town had a policy or custom allowing its police officers to use excessive force when making arrests in violation of the Fourth Amendment to the United States Constitution.
Gregory must also show there is a direct causal link between the governmental policy or custom and the deprivation of his federal constitutional rights. Gregory is required to prove that his particular injury was incurred as a result of the execution of the governmental policy or custom. Brown, 520 U.S. at 405; Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986); Gregory, 220 F.3d at 442; Stemler, 126 F.3d at 865; Claiborne County, 103 F.3d at 508; Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993). This is necessary to avoid de facto respondeat superior liability which is prohibited by Monell, and its progeny. Claiborne County, 103 F.3d at 508. In the absence of any proof from Gregory, the Court concludes that Gregory cannot meet his burden of proving such a causal connection.
A custom must "be so permanent and well settled as to constitute a custom or usage with the force of law." Monell, 436 U.S. at 691; see also Claiborne County, 103 F.3d at 507. It must reflect a course of action deliberately chosen by the governmental entity from among various alternatives. Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985); Claiborne County, 103 F.3d at 508.
As the Court construes the complaint, Gregory contends the Town of Benton is liable under § 1983 predicated on the theory that it failed to adequately, train, supervise, and control Gunnoe so as to prevent the alleged violation of Gregory's Fourth Amendment right to be free from unreasonable seizure. In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court recognized that a governmental entity can be held liable under § 1983 for failure to properly train and supervise its employees. But liability will exist for the Town of Benton under § 1983 only if Gregory can prove that its failure to train, supervise, and/or control Officer Gunnoe evidences deliberate indifference by the Town of Benton to the rights of its inhabitants such that it in effect constitutes a governmental policy or custom within the Monell framework. City of Canton, 489 U.S. 378; Stemler, 126 F.3d at 865; Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247-48 (6th Cir. 1889). A showing of simple negligence or even gross negligence will not suffice to establish liability under § 1983. Deliberate indifference is a stringent standard of fault requiring proof that the Town of Benton disregarded a known or obvious consequence of its action. Brown, 520 U.S. at 410; Stemler, 126 F.3d at 865.
A plaintiff ordinarily cannot demonstrate that a governmental entity acted with deliberate indifference without proving that the governmental entity was aware of prior unconstitutional actions committed by its employees or agents and it failed to respond. City of Canton, 489 U.S. at 390-91; Stemler, 126 F.3d at 865. Moreover, it is not enough for a plaintiff to merely show that his specific injury could have been prevented or avoided with more or better police training. City of Canton, 489 U.S. at 390-91; Mayo v. Macomb County, 183 F.3d 554, 558 (6th Cir. 1999); Sova, 142 F.3d at 904; Lewis v. City of Irvine, Kentucky, 899 F.2d 451, 455 (6th Cir. 1990).
A policy of deliberate indifference may exist if a governmental entity fails to investigate an incident involving the violation of constitutional rights and fails to take action to punish or discipline the employees or agents responsible. In other words, a governmental entity can be held liable under § 1983 if it has ratified unconstitutional acts committed by its employees or agents by failing to meaningfully investigate those acts, and failing to make an effort to correct the misconduct and prevent it from recurring in the future. Leach, 891 F.2d at 1248; Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985).
Based on King's affidavit, the Court concludes that Gregory cannot prove or make out a prima facie claim that the Town of Benton failed to adequately train, supervise, and control Gunnoe. King's affidavit establishes that the Benton Police Department did adequately train, supervise, and control Gunnoe.
Gregory offers no proof showing that the Town of Benton acted with deliberate indifference with regard to the constitutional rights of its inhabitants protected by the Fourth Amendment. There is no proof that the Town of Benton acted with deliberate indifference by ignoring, disregarding, or failing to adequately respond to any similar unconstitutional acts of excessive force previously committed by Gunnoe during arrests. After Gunnoe arrested Gregory, the Benton Police Department promptly took meaningful and effective action to investigate the incident to determine whether Gunnoe had used excessive force. An independent investigation was conducted by the Tennessee Bureau of Investigation at King's request. In sum, Gregory has not shown there is any viable basis for imposing liability on the Town of Benton under § 1983. The allegations in Gregory's complaint asserting a § 1983 claim against the Town of Benton are not supported by any proof submitted pursuant to FED. R. Civ. P. 56.
IV. Conclusion
Accordingly, the motion by the Town of Benton for summary judgment [Court File No. 13] is GRANTED pursuant to FED. R. CIV. P. 56. Gregory's complaint against the Town of Benton is hereby DISMISSED WITH PREJUDICE. The only claims which remain before the Court for adjudication are Gregory's claims against defendant Gunnoe under 42 U.S.C. § 1983 and under Tennessee common law for assault.
SO ORDERED.