The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
Alleging a violation of their civil rights pursuant to 42 U.S.C. § 1983, plaintiffs David and Jennifer Crowel, husband and wife, seek compensatory and punitive damages arising out of their arrest for disorderly conduct and resisting arrest*fn1 by police officers employed by the City of Madisonville, Tennessee (the "City"). The defendants include not only the City and five named police officers but also an unspecified number of "unknown officers." [See Doc. 1, p.1].*fn2 More specifically, plaintiffs allege that these police officers, acting in both their individual and official capacities, violated their rights under the Fourth Amendment*fn3 because they were arrested without probable cause and because the police officers used excessive force in effecting that arrest. Plaintiffs also allege that the City is liable because of its failure to properly train its police officers as to what constitutes to fact witnesses is now closed because that was to have occurred at least 60 days before trial, i.e., at least 60 days before the last assigned trial date of May 22, 2007 [see Doc. 11, p.1]. Normally, a dismissal on Fed. R. Civ. P. 4(m) grounds is without prejudice. However, this observation, while technically correct, is of little practical relevance given the fact that even if plaintiffs were permitted to file their claims today against any other police officers, plaintiffs' claims would be barred by the applicable statute of limitations. See 3 Moore's Federal Practice, § probable cause to arrest for either disorderly conduct or resisting arrest. Finally, plaintiffs allege a state law cause of action for assault and battery.*fn4
This matter is presently before the court on all defendants' motion for summary judgment [Doc. 23]. The issues raised have now been fully briefed by the parties [see Docs. 24, 29, 31, 33, and 36], so that this motion is ripe for adjudication. For the reasons that follow, defendants' motion will be granted in part and denied in part whereby summary judgment will be entered in favor of defendants with respect to all § 1983 claims except as to plaintiffs' claim for being arrested without probable cause. As to that claim, the court finds that there are genuine issues of material fact as to whether there was probable cause to arrest either plaintiff for disorderly conduct or Mr. Crowel for resisting arrest. Consequently, plaintiffs' claim on that issue against Detective James D. Bivens and Sergeant John Wilburn, the only two officers who signed the affidavits of complaint against plaintiffs for these charges,*fn5 must be decided by a jury to determine whether either officer has any liability in his individual capacity. The court will also dismiss without prejudice plaintiffs' state law claims for assault and battery.
The facts in this case primarily involve a credit card and cussing and, up to a point, are not in dispute. The parties agree that the events that led to the arrests at issue began with plaintiffs' trip, following a typical work day, to the Madisonville Wal-Mart on Monday, April 11, 2005, to pick up a few "odds and ends" which they neglected to purchase over the weekend [see Doc. 39-3, p.53].*fn6 Plaintiffs are regular customers at Wal-Mart, spending between $10,000 to $12,000 a year at that store. On this particular day, plaintiffs had purchased approximately $180 worth of merchandise.
This entire unfortunate and almost unbelievable series of events began when a problem arose in swiping Mr. Crowel's credit card at the check-out counter.*fn7
Mr. Crowel may have initially tried to swipe the card or the cashier may have initially tried to swipe the card. Either way, the cashier eventually asked Mr. Crowel for his card. This procedure was not unusual because Mr. Crowel purposefully did not put his signature on it so that cashiers are compelled to routinely ask him for identification. Not surprisingly, therefore, this particular cashier asked Mr. Crowel for some ID, and he provided his driver's license to her. This cashier, for whatever reason, also had to get permission from another associate or a supervisor to run the card through or to obtain some sort of approval - Mr. Crowel just did not know. Consequently, another employee did come over to assist the cashier or to approve the purchase. It is at this point in time when the court must segregate by party or witness the various versions of events which subsequently transpired in order to analyze fully the plethora of legal issues raised by defendants' motion.
David Crowel's Version of Events
While the plaintiffs were waiting for the transaction to be completed, Mr. Crowel noticed that the cashier had laid his credit card with the magnetic strip face-down on the demagnetizer in the scanning area of her work station. Mr. Crowel was familiar with the demagnetizer and knew that it was used to demagnetize the magnetic strip on some items for security purposes. Mr. Crowel expressed his concern, saying, "That's not a good idea to lay that down there. Please don't lay that there." [Doc. 39-3 at p.62]. The clerk responded, "I don't believe that really hurts them." [Id. at p.63]. Mr. Crowel then responded, "I'd really appreciate it if you would not lay that on the magnetic strip. I've had a card ruined for that." [Id.]. Nevertheless, the clerk took the card and moved it back and forth over the magnetic strip, all the while saying, "Well, I really don't believe that. Do you?" [Id.]. Mr. Crowel then stated, "I can't believe you did that." [Id.]. Mr. Crowel believes that it was at this point in time when another associate came over to approve the sale. The cashier then asked that associate if the demagnetizer would "mess the card up," and she told her it could. [Id. at p.65].
Mr. Crowel next told his wife that he was going over to the Customer Service desk to speak to a manager. However, when he went over to the Customer Service desk, he spoke instead with another associate about his problem with the cashier and his credit card. Mr. Crowel told the associate that he did not appreciate what the cashier did to his card and that Wal-Mart needed to train its associates not to do that. Mr. Crowel further explained to that associate that he used his credit card to make many purchases, that he was going out of town, that he very rarely carried cash, and that this was his only available credit card. Mr. Crowel also told the associate that he was concerned that the cashier might have ruined the magnetic strip on his card. The associate responded that Wal-Mart did train its associates on that issue and that she would look into the matter.
Mr. Crowel further testifies that all during this conversation with the associate at the Customer Service desk, an individual, who is now identified as Detective Bivens, interrupted him on three occasions.*fn8 The first interruption occurred when Bivens told Mr. Crowel that he was being "too loud." [See id., p.81]. Mr. Crowel did not pay much attention to Bivens because he appeared to be just another customer based on his dress - he was wearing very casual clothing including shorts, a polo shirt, and flip flops or sandals. Mr. Crowel does admit, however, that he has been told that his "voice carries[,]" i.e., that he could easily be heard "within 50 feet." [See id., p.67]. Nevertheless, Mr. Crowel testifies he was not being unreasonably loud, yelling, or cursing at that time.
Bivens soon interrupted Mr. Crowel's conversation again, indicating that he was a police officer, to which Mr. Crowel, speaking to the associate, said, "Yeah, right." [See id., p.83]. The associate immediately responded, "Oh, no, he is." [Id.]. Mr. Crowel then observed, "Well, he's not on duty." [Id.].
Bivens indicated, however, that he was on duty "24 - 7." [See id., p.85]. Mr. Crowel likewise stated, "Yeah, Buddy, so am I. I'm on duty 24 - 7, too." [Id.]. Mr. Crowel next told Bivens that he was trying to conduct some business, implying that Bivens should mind his own business. Mr. Crowel expected some respect from Bivens since he was on private property and was a paying customer of Wal-Mart. Moreover, he had a complaint with Wal-Mart and not the police.
Eventually, Mr. Crowel became exasperated with his response at the Customer Service desk and simply wanted the general manager's phone number because it was not posted on the wall as in most Wal-Marts. The Customer Service associate left, telling Mr. Crowel that she would come back with the number. Instead, she came back with another manager, John Cagle.
While he was waiting for the Customer Service associate to return, Bivens told Mr. Crowel that he was going to call the police. Mr. Crowel told him that he thought Bivens was a police officer. Mr. Crowel next asked Bivens for his badge and identification, which Bivens did not produce.
Also, while he was waiting, Mr. Crowel went over to talk with his wife about what was occurring at the Customer Service desk, as well as the harassment he was receiving from Bivens. Mr. Crowel told his wife that Bivens claimed to be a police officer, although he had no identification. Additionally, while waiting, Mr. Crowel spoke with a friend who came by to say, "Hello," and talked with him for a minute.
Shortly afterwards, the Crowels again asked Bivens for his badge. Although Bivens did not have one, he pulled out something akin to a business card or driver's license and Mrs. Crowel reached out to steady it so that she could read it. Mr. Crowel still did not believe that Bivens was really a police officer based on the way he conducted himself.
When the manager returned, Mr. Crowel explained to him what happened including that the associate from Customer Service had asked if she could take his card, ring up a phony sale, and credit it back to see if the card still worked. And, according to the associate, after doing so, the card was still functional. At that point, the manager apologized, telling Mr. Crowel he would look into the matter and take care of it so that no one else would be inconvenienced. Mr. Crowel emphasized the fact that it was critical for his card to work because he had to go out of town and that he had no other credit card. The manager also insisted on giving the Crowels a gift card, and Mr. Crowel told him there was no need for that. Nevertheless, the manager insisted that he take the gift card. According to Mr. Crowel's recollection, his conversation with the manager lasted four or five minutes.
While all of this was occurring, a number of police officers came up and were standing nearby watching the events unfold. Mr. Crowel asked the manager why the police were there, and the manager stated that he had nothing to do with it. The manager further indicated that he was in charge of the store, that it was private property, and that he had no idea what the police officers were doing there. Moreover, according to Mr. Crowel, the manager indicated that he would take care of any problem with the police officers.
When his conversation with the manager ended, Mr. Crowel walked towards his shopping cart near the restrooms. One of the police officers then yelled to him something like, "Where are you going," or "Where do you think you are going?" [See id., p.105]. Mr. Crowel responded by telling him, "My business is done" and "I'm going home." [Id.].
Mr. Crowel next became aware that the police officers were "tugging" on him. [See id., p.106]. However, he could not identify which officers grabbed him at that point because his back was to them. Mr. Crowel also said to them, "I am not resisting." [Id.]. Mr. Crowel stated that the officers were "pulling [his] arms in different directions and that somebody hit him in the legs to spread his legs apart." [See id., p.107] He also heard one of the officers state, "He's resisting arrest," a statement with which he vigorously disagreed. [See id., p.114]. Additionally, Mr. Crowel heard his wife ask the police officers what was going on and then observed the officers grab her. By Mr. Crowel's estimation, he was in handcuffs within ten seconds. Defendants Daniel Dockery and John Wilburn then escorted Mr. Crowel to the police car, when Mr. Crowel exclaimed, "This is bullshit." [See id., p.115].
Mr. Crowel also testifies that he did not disrupt any of the activities in the store. In fact, Mr. Crowel does not believe that people were even stopping to listen to what was occurring between him and the Wal-Mart employees. Customer Service was taking care of its business, and other customers were having their sales rung up at the various cash registers. Furthermore, no Wal-Mart employee ever asked Mr. Crowel to calm down.
In apparent support of his excessive force claim, Mr. Crowel testifies that the only injury he received during his arrest was a mark on his wrist about the size of a dime (or less) as the result of the handcuffs being too tight [see Doc. 39-2, pp.25, 27]. Although Mr. Crowel alleges in his complaint that he was "slammed" into a wall during his arrest [see Doc. 1, p.4], there is no testimony to now support that particular allegation.
Jennifer Crowel's Version of Events
Mrs. Crowel testifies that, after she and her husband did their normal Wal-Mart shopping and then some, they went to the cash register to pay for their merchandise. Apparently, because of the amount of the bill, the cashier had to call someone to come over and approve it. While waiting, the cashier laid the credit card down on the magnetic strip. Mr. Crowel then asked her "politely" not to do that because it could demagnetize the card [see Doc. 31-4, p.3].*fn9 The cashier responded, "I don't believe that," and then proceeded to swipe the card over the magnetic strip again [id.]. Mr. Crowel asked her again not to do that and also asked to speak to a manager.
After the cashier completed the Crowels' order, she started on the next one with no apology whatsoever to them. Mr. Crowel then went over to the Customer Service desk and Mrs. Crowel moved out of the way and stood in front of the register area so that the customer behind her could complete her transaction.
While the Crowels were talking between themselves and waiting for the manager at the service desk, the individual now identified as Detective Bivens walked "right up into our faces ... like he was trying to butt into the conversation." [Id. at 7]. Mrs. Crowel said, "Excuse me, sir, but this is between myself, my husband, and Wal-Mart." [Id.]. Bivens then stated that he was "a cop." [Id.]. Mrs. Crowel pointed out that she did not know Bivens was a police officer when she first told him to excuse himself. After Bivens told Mrs. Crowel that he was a police officer, she asked if he had any identification. Bivens pulled out his ID and "shoved it in [her] face and literally moved it in [her] face." [Id. at 8]. Mrs. Crowel then reached out to stop him from moving it by touching the corner of his wallet, and he "jerked it away from [her]." [Id.]. Bivens never stopped moving his identification long enough for Mrs. Crowel to be able to read it.
Bivens then told Mrs. Crowel that he was calling the police, and she replied, "Okay." [Id. at 9]. The Crowels continued to wait at the Customer Service desk for the manager to arrive. After the manager did so, the Crowels chatted with him briefly. The employee at the service desk offered to check the Crowels' credit card by actually running it through and then voiding the sale. The Crowels granted her permission to do so. Additionally, Wal-Mart gave the Crowels a gift certificate or a gift card for all of their hassle. Everything ended on a positive note with the manager even making a joke, causing all of them to laugh. The Wal-Mart manager also told them that he would take care of the police, that he did not call the police, and that he did not need them.
As the Crowels were leaving the store, Mrs. Crowel got a little bit ahead of her husband when she heard a commotion behind her. When she turned around, Mrs. Crowel observed at least six officers around her husband. Mrs. Crowel then exclaimed, "Hey, wait a minute." [Id. at 10]. Then one of the officers replied, "Do you know what you just did?" When Mrs. Crowel stated that she did not, the officer informed her that she had just interfered with an arrest. Several Madisonville police officers then grabbed Mrs. Crowel, put her face against the wall, and handcuffed her [id.].
Mrs. Crowel also alleges in her complaint that she "was forced to expose her brassiere in the presence of male law enforcement officers and male inmates" while being detained at the Monroe County Jail [see Doc. 1, p.4]. However, Mrs. Crowel admits in her deposition that none of these male officers lifted her shirt at the jail and that it was actually a female officer who lifted her shirt after she told Mrs. Crowel she was going to do so. Although Mrs. Crowel testifies that the female police officer did that in front of one of the defendant officers and another male officer in the room, she can identify neither. The only injury Mrs. Crowel received as a result of her arrest was a bruise on her right shoulder "the size of a half dollar" which lasted for one week. [See Doc. 23-5, p.60]. However, Mrs. Crowel admits that she bruises quite "[e]asy." [Id. at 62]. Moreover, although Mrs. Crowel alleges in her complaint -like her husband - that the arresting officers "slammed" her against a wall during the course of her arrest, she now admits that there was no mark on her face as a result of having it "smooshed" against the wall as the officers were placing handcuffs on her. [Id. at 66].
Detective Bivens Version of Events
Detective Bivens went into the Madisonville Wal-Mart on the day in question and walked to the Customer Service desk to return something he had bought either that day or the day before. It was at that point that he heard "the hollering and carrying on" at the cash register at the check out lane, which was approximately ten feet from where he was standing [see Doc. 31-5, pp.3-4].*fn10
Bivens could overhear a male customer (now identified as Mr. Crowel) arguing over his credit card and, in particular, making accusations that Wal-Mart had ruined his card. He also overheard Mr. Crowel demand to speak with someone in management about this incident. Bivens describes Mr. Crowel as being "very, very irate and loud." [Id. at 4].
Furthermore, because Mr. Crowel would not "shut up," Bivens testifies that the Customer Service associate was having difficulty determining what had happened [id. at 5]. Bivens therefore told Mr. Crowel to, "Hold up a minute. Let her ask a question. Hold up." [Id.]. However, Mr. Crowel "just wouldn't shut up." [Id.]. Mr. Crowel continued to indicate that he wanted to speak to the general manager. In response, the associate told Mr. Crowel that she would go get a manager. The associate left briefly and spoke to another associate who was standing on the other side of Mr. Crowel. The associate then walked back over to him and started to say something, when Mr. Crowel exclaimed, "Lady, I don't want to speak to you. I want to speak to the general manager." [Id. at 7]. At that point, the associate turned and left, and Mr. Crowel began speaking in whispered tones to his wife.
A few minutes later, the associate returned with a male manager. Bivens overheard Mr. Crowel tell the manager that the Wal-Mart employees "didn't know what they were doing, they needed training." [Id. at 8]. In Bivens' opinion, the manager was "being as nice as he could be to Mr. Crowel," indicating that he would find out what had happened and offered to give him "stuff ... ." [Id.]. At that point, according to Bivens, Mr. Crowel became "belligerent," "vulgar," and "loud," although he could not recall specifically what Mr. Crowel was saying [id. at 9]. Bivens told him to, "calm down." [Id.]. Mr. Crowel told Bivens, "This is none of your business. This is between me and Wal-Mart. This has nothing to do with you." [Id.]. At that point, Officer Bivens placed him under arrest. However, Mr. Crowel insisted that Bivens was not on duty, even after he had placed him under arrest. Consequently, Bivens picked up his cell phone and stated, "This is 904. Send me a marked unit to the Wal-Mart." [See Doc. 23-6, p.13]. Bivens also testifies that he wanted a marked unit so that Mr. Crowel could be transported to the jail. Bivens further testifies that he specifically informed Mr. Crowel that he was under arrest for disorderly conduct and told him that he needed to stop and sit down. Despite all of that, Bivens testifies that Mr. Crowel still did not believe that he was a police officer and that he needed to get a police officer over there.
Bivens states that they stood there for a few minutes when Mrs. Crowel realized that her husband had been placed under arrest. Consequently, Mrs. Crowel wanted to see Officer Bivens' ID. Like her husband, Mrs. Crowel could not believe that Officer Bivens was a police officer. Moreover, she informed Officer Bivens that all of this was none of his business and that it was "between us and Wal-Mart." [See Doc. 31-5, p.10].
At about this point in time, Sergeant John Wilburn, a named defendant, and Officer Kevin Peak, another named defendant, came onto the scene. While this was occurring, Mr. Crowel continued to talk to the manager, John Cagle. After Sergeant Wilburn arrived, Bivens told him, "Mr. Crowel is under arrest." [Id.]. After Mr. Crowel finished the conversation with Mr. Cagle, Bivens then stated to Wilburn, "Sergeant, this guy [Mr. Crowel] is under arrest for disorderly conduct." [Id. at 11]. Mr. Crowel, however, started walking away and Sergeant Wilburn advised Mr. Crowel that he needed to stop because he had just been placed under arrest. But Mr. Crowel just kept walking.
At that point in time, Mrs. Crowel demanded to see Bivens' ID. Officer Bivens responded, "Ma'am, this is my ID from the Madisonville Police Department[.]" [Id.]. However, Mrs. Crowel "smacked" the ID out of his hand. [Id.]. Consequently, Bivens told Officer Peak to take Mrs. Crowel into custody because she was under arrest for disorderly conduct.
Although Bivens was of the opinion that the Crowels were disrupting Wal-Mart employees from doing their work, he admits that other people were being checked out at the cash registers [id. at 6, 14, and 15]. In fact, Bivens admits that Mr. Crowel may not have been interrupting Wal-Mart's business in the least [id. at 16].
Officer Daniel Dockery's Version of Events
According to Officer Dockery, another named defendant, officers with the Madisonville Police Department, as well as officers from surrounding agencies, including Vonore and Tellico Plains, were attending an in-service training session at the Training Center in Madisonville on the day in question. However, instead of receiving the message that Bivens simply needed a marked unit at the Wal-Mart, all of these officers received a message from the county dispatcher stating, "904 [Bivens' call number] needs assistance at Wal-Mart."*fn11 As a result of this particular type of dispatch call, numerous officers, including officers from other agencies, left the in-service training session and raced to assist the officer who, to the best of their knowledge, needed their immediate help at the Wal-Mart. In fact, Dockery estimates that up to ten officers responded to this particular dispatch. Moreover, because the Training Center was only two miles from the Wal-Mart, it was not the least bit inconvenient for such a large number of officers to respond.
When Dockery arrived, he observed Sergeant Wilburn with Mr. Crowel. He overheard Wilburn tell Mr. Crowel that he was under arrest and further observed Wilburn grab Mr. Crowel's right wrist. Mr. Crowel then "shrugged away from him." [See Doc. 23-6, p.5]. Dockery went on to define the term "shrugged away" to mean that Mr. Crowel simply "[p]ulled away" from Sergeant Wilburn. [Id.]. Dockery also heard ...