The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
This plaintiff's complaint is before the Court on the motion for summary judgment filed by two of the defendants, Judith Mayes and Leashia Reece [Doc. 24]. The plaintiff has not responded to the motion for summary judgment and the time for response has expired. The plaintiff's failure to respond, in and of itself, may serve as grounds for the granting of the defendants' motion. LR 7.2 of the Local Rules of the United States Court for the Eastern District of Tennessee. Nevertheless, the Court will address the merits of the defendants' motion.
Summary judgment is appropriate when "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of proving that no material facts exist, and the court must draw all inferences in a light most favorable to the non-moving party. A court may grant summary judgment when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Once the moving party has proved that no material facts exist, the non-moving party must do more than raise a metaphysical or conjectural doubt about issues requiring resolution at trial. Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (citations omitted).
In accordance with long standing summary judgment principles, this Court must construe the evidence in this record most favorably for the plaintiff because she is the litigant opposing summary judgment. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986); Scott v. Clay County, 205 F.3d 867, 871 (6th Cir.2000). As explained by the Sixth Circuit in Scott:
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). See also Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Adams v. Metiva, 31 F.3d 375, 378-79 (6th Cir.1994). (emphasis added) Id. at 871.
Viewing the facts in the light most favorable to the plaintiff, the following sets forth the background of this dispute:
On February 7, 2005, the plaintiff stopped at the Hartford Citgo in Cocke County, Tennessee, to purchase gasoline for his car. As he was pumping gasoline into his vehicle, the plaintiff realized he had forgotten his wallet. The plaintiff stopped the pump, having dispensed only $5.51 worth of gasoline. The plaintiff then entered the store and informed Judith Mayes and Leashia Reece, employees of the Hartford Citgo, that he did not have the ability to pay for the gasoline he had pumped. The plaintiff's complaint indicates that his request that he leave some collateral for payment was refused and he then contacted a friend to obtain a credit card number to purchase the gasoline. Ms. Mayes and Ms. Reese attempted to run the credit card number given them by the plaintiff, but the number did not "go through." The plaintiff who, by his own testimony, weighed 220 pounds, and stood a foot taller than Ms. Mayes and Ms. Reese then raised his voice and began to use profanity. At this time, it was dark and the Hartford Citgo is located in an isolated area.
Either Ms. Mayes or Ms. Reese called the Sheriff's Department, and informed the Sheriff's Department that Mr. Balcom purchased gasoline, lacked the money to pay for it, and had raised his voice. In response to this call, Sgt. Richard Caldwell arrived at the Hartford Citgo and arrested the plaintiff for theft of property under $500.00. The plaintiff was later released on bond and the grand jury handed down an indictment against the plaintiff for theft of property under $500.00. Charges against the plaintiff were eventually dropped, the plaintiff agreeing to pay restitution to Hartford Citgo.
The plaintiff filed a complaint in this Court against Cocke County, Tennessee, Ms. Mayes and Mrs. Reese for violation/deprivation of plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983, false arrest, malicious prosecution, and abuse of process.
In order for the plaintiff to establish a claim under § 1983 against Ms. Mayes and Ms. Reese, private individuals, the plaintiff must identify rights secured by the Constitution or other federal law and a deprivation of that right by the defendants while acting under color of state law. Wolotsky v. Huhn, 960 F. 2d 1331 (6th Cir. 1992). In Wolotsky, the Sixth Circuit, summarizing Supreme Court authority, found that there are three situations by which a private person may act under the color of law pursuant to § 1983. Id. Determination of whether a private person is acting under color of state law is by application of the public function test, the state compulsion test, and the symbiotic relationship test. Id. at 1335. The applicability of any of the three tests to a private individual is sufficient to establish a claim under § 1983.
Under the public function test, the private party must "exercise powers which are traditionally exclusively reserved to the state, such as holding elections, or eminent domain." Id. (citation omitted). The plaintiff only alleges that Ms. Mayes and Ms. Reese called the police and described the plaintiff's actions. This notification of the sheriff's ...