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Massey v. Hess

September 17, 2007


The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge

Chief Judge Curtis L. Collier


Plaintiffs Susan Massey ("Plaintiff") and her husband, William Scott Massey, filed suit against Defendants D. L. Hess and Kathleen Oelschlegel, individually and in their capacities as officers of the Prince William County, Virginia, Police Department (collectively, "Virginia Defendants"), Jason Wagnon, Curtis Morris, and Keith Jennings, individually and in their capacities as officers of the Chattanooga, Tennessee, Police Department (collectively, "Chattanooga Defendants"), and the City of Chattanooga, Tennessee ("City"). The Virginia Defendants filed a motion for summary judgment (Doc. No. 74) and memorandum in support (Doc. No. 75), to which Plaintiff and her husband filed responses (Doc. Nos. 86 & 87).*fn1 The Chattanooga Defendants and City also filed a motion for summary judgment (Doc. No. 82) and memorandum in support (Doc. No. 83), to which Plaintiff and her husband filed untimely responses (Doc. Nos. 90 & 91). The Court did not consider Plaintiff's and her husband's untimely responses.*fn2

For the following reasons, the Court will GRANT IN PART and DENY IN PART the Virginia Defendants' motion for summary judgment and DISMISS all claims against Defendant Hess. The Court will GRANT IN PART and DENY IN PART the motion for summary judgment filed by the Chattanooga Defendants and City.


Plaintiff and her husband, residents of Hamilton County, Tennessee, had been foster parents in Tennessee for several years, taking care of two severely physically-disabled and mentally-handicapped children (Doc. No. 1, pp. 1-2). In November 2004, one of the children died. Two weeks later, the second child died while the family was in Virginia (id.; Doc. No. 86, p. 2). That death prompted the Virginia Defendants, who are detectives employed by the Prince William County, Virginia, Police Department, to visit Plaintiffs in Hamilton County (Doc. No. 1, p. 2; Doc. No. 75, p. 2).

On the morning of December 16, 2004, the Virginia Defendants went to Plaintiff's home and told Plaintiff and her husband they needed to interview them regarding the child's death in Virginia (Doc. No. 1, p. 2; Doc. No. 16, p. 2; deposition of Susan Massey ["Massey dep."],*fn3 pp. 32-34). The Virginia Defendants were in plain clothes and were accompanied by Eunice Lackey, an investigator from the Tennessee Department of Child Services*fn4 (Massey dep., pp. 32-33, 43). The Virginia Defendants asked to interview Plaintiff first (id. at p. 33; Doc. No. 75, Exh. 3 ["Hess affidavit"], p. 4; Doc. No. 75, Exh. 4 ["Oelschlegel affidavit"], p. 4). She said "okay" and rode with either the Virginia Defendants or Ms. Lackey to a building to be interviewed (Doc. No. 1, p. 2; Doc. No. 16, p. 2; Massey dep., p. 33; Lackey affidavit, p. 4). Although the building is locked from the outside, there are no restrictions on exiting (Massey dep., p. 125-26; Hess affidavit, p. 5; Oelschlegel affidavit, p. 5).

Plaintiff, who was 38 years old at the time, was questioned by the Virginia Defendants for eight hours (Massey dep., pp. 35-36, 38, 48). Because they were police officers, Plaintiff thought she was not allowed to leave but they never told her she could not leave (Doc. No. 1, p. 2; Massey dep., pp. 43, 128; Hess affidavit, p. 6). Defendant Oelschlegel did most of the questioning; as the questioning became more intense, with accusations that Plaintiff wilfully harmed her recently deceased daughters, Plaintiff became distraught and locked herself in a bathroom (Doc. No. 1, pp. 2-3; Massey dep., pp. 37-39, 126). When she emerged from the bathroom, Defendant Hess asked Plaintiff if she wanted to finish the interview at another time, but Plaintiff told them to continue (id. at p. 41). Defendant Oelschlegel had been asking most of the questions all day, and Plaintiff was irritated at her questioning, so she turned her chair so her back faced Defendant Oelschlegel (id. at p. 45). To defuse the tension, Defendant Hess began asking the questions, which Plaintiff preferred (id.). On the occasions when Defendant Oelschlegel interjected, Plaintiff ignored her (id.).

After Defendant Hess told Plaintiff he had no more questions, Plaintiff decided to leave the building (id. at pp. 46, 52). The Virginia Defendants told Plaintiff they would call her husband to pick her up, but she declined and said she was going to a friend's house (id. at p. 48; Oelschlegel affidavit, p. 6). Plaintiff repeatedly told the Virginia Defendants she wanted to be left alone (Massey dep., p. 48). After eight hours of often accusatory questioning, she was having trouble controlling her emotions and wanted to get away from the Virginia Defendants (id.). Specifically, she felt Defendant Oelschlegel was harassing her (id. at p. 53).

Plaintiff started walking down the stairs to exit the building when, she says, Defendant Oelschlegel "came chasing me down" to tell her that she should ride home with the detectives (id., p. 46). Plaintiff refused, saying, "I don't want anything to do with you people. Leave me alone" (id.). As Plaintiff turned away to continue exiting, Defendant Oelschlegel grabbed Plaintiff's sweater (id.). Plaintiff asked if she was being arrested, and Defendant Oelschlegel let go (id.). Plaintiff was not injured and she left the building (id. at pp. 46, 126).

Because Plaintiff would not ride home with the Virginia Defendants, Defendant Hess called Plaintiff's husband and arranged for him to pick up his wife (Doc. No. 83 #2 Supplement ["William Scott Massey dep."], pp. 55-57; Hess affidavit, p. 6). Plaintiff's husband told Defendant Hess to follow her, so he would know where his wife was, so the Virginia Defendants followed Plaintiff in their police vehicle as she walked along the street outside the building (William Scott Massey dep., p. 57; Hess affidavit, pp. 6-7; Oelschlegel affidavit, pp. 6-7).

The Virginia Defendants and child services investigator believed Plaintiff was extremely agitated, acting erratically and crying uncontrollably (Lackey affidavit, p. 6; Hess affidavit, p. 7; Oelschlegel affidavit, p. 8). Indeed, Plaintiff says that as she walked down the sidewalk, passerbys asked if she was ok because she was "crying so hard I can hardly see," as a result of having spent the day being interrogated (Massey dep., pp. 57, 61). The Virginia Defendants thought Plaintiff was approaching strangers in the street seeking a ride and at one point thought she was almost hit by a car (Hess affidavit, p. 7; Oelschlegel affidavit, pp. 6-7; Lackey dep., pp. 6-7). However, Plaintiff insists she merely asked people in a vehicle if they knew when a public transit bus would come (Massey dep., pp. 49-50). Concerned about Plaintiff's safety, the Virginia Defendants asked Ms. Lackey to contact the Chattanooga police (Lackey dep., pp. 6-7; Oelschlegel affidavit, p. 7; Hess affidavit, p. 8).*fn5 Plaintiff soon boarded a bus, glad to finally be free of the Virginia Defendants (Massey dep., pp. 50-51, 166). But the bus was soon stopped by Chattanooga police cars (id. at pp. 51, 166).

The Chattanooga Defendants had responded to a call that "a woman was extremely distraught and needed to be taken into protective custody" (Doc. No. 83, Exh. 4 ["Jennings affidavit"], p. 1; Exh. 7 ["Morris affidavit"], p. 1; Exh. 8 ["Wagnon affidavit"], p. 1). They boarded the bus along with Defendant Oelschlegel (Massey dep., p. 172). The Chattanooga Defendants describe Plaintiff as being distraught and crying, and they believed she was a danger to herself (Morris affidavit, p. 1; Doc. No. 86, Exh. 4 ["incident report"], p. 3). Upon boarding the bus, Defendant Wagnon told Plaintiff, "Get off the bus, don't make us hurt you" (Massey dep., p. 178). She responded, "Since when is it a crime to ride a bus?" (Massey dep., p. 170). The officer then started trying to "grab" her, which she resisted (id. at pp. 170, 182). Defendant Wagnon characterized his action as attempting to escort Plaintiff off the bus (Wagnon affidavit, p. 2). He contends Plaintiff resisted by "grabbing my hands and pulling away" (incident report, pp. 2-3). Defendant Oelschlegel claims Plaintiff punched her and struck the Chattanooga Defendants with her fists and legs (Oelschlegel affidavit, pp. 7-8). Plaintiff acknowledges she was "flailing" her arms and legs but denies intentionally hitting any officers (Massey dep., pp. 184-85).

After repeated attempts to remove Plaintiff from the bus, Defendant Wagnon used a taser on Plaintiff (Jennings affidavit, p. 1; Morris affidavit, p. 2; Wagnon affidavit, p. 2; incident report, p. 3). Defendant Morris then used his taser on Plaintiff several times until the officers were able to handcuff Plaintiff (Jennings affidavit, p. 2; Morris affidavit, p. 2; incident report, p. 3). During this incident, Defendant Oelschlegel helped the Chattanooga Defendants take custody of Plaintiff (Massey dep., pp. 53-54). Defendant Hess never boarded the bus (id. at p. 54; Lackey affidavit, p. 7; Oelschlegel affidavit, p. 9).

After being carried off the bus Plaintiff was taken to a mental health facility and then to a hospital because of injuries sustained while being handcuffed and removed from the bus (Massey dep., p. 62). As a result of the taser being applied repeatedly, Plaintiff was shaking back and forth so much that she was unable to answer hospital employees' questions and the employees speculated she was on drugs (id. at p. 63). No charges have been brought in connection with the children's deaths (Doc. No. 1, p. 2; Doc. No. 16, ¶ 2).

Plaintiff alleges "all defendants" violated her rights under 42 U.S.C. § 1983 (Doc. No. 1, p. 6, pt. VII). Specifically, she contends the officers committed "false arrest, false imprisonment, and a knowing and intentional violation of Plaintiff's rights as guaranteed under the fourth, fifth, eighth and fourteenth amendments to the United States Constitution as to be free from unnecessary and illegal arrest and the use of unnecessary force under color of state law as guaranteed citizens by the provisions of 42 USC 1983, et seq." (Doc No. 1, p. 4, pt. V). In addition, Plaintiff seeks "damages" under 42 U.S.C. § 1988 (id. at p. 6, pt. VII). She also contends "the Defendants" violated Tennessee statutes prohibiting assault, aggravated assault, false arrest and imprisonment, and official oppression, and such violations constitute negligence per se (id. at p. 6), and the "defendants" committed common law assault, battery, false arrest, and false imprisonment (id. at p. 7).

Plaintiff's husband, William Scott Massey, seeks damages for the medical costs of alleviating Plaintiff's pain and suffering and also damages for depriving "him of the value of the comfort and society" of his wife (id. at p. 7, pt. XII).*fn6 Plaintiff and her husband seek $750,000 in compensatory damages, $550,000 in punitive damages, and attorney's fees and costs (id. at p. 8).


Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the burden rests on the moving party to conclusively show no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The moving party must demonstrate the absence of a genuine issue of material fact, but the non-movant is not entitled to a trial solely on the basis of its allegations. The non-movant must submit significant probative evidence to support its claim, and from which a jury could find for the non-movant. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party is entitled to summary judgment if the non-movant fails to make a satisfactory showing on an essential element of its case for which it bears the burden of proof. Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 252; Lansing Dairy v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).


A. Claims under 42 U.S.C. § 1983

Plaintiff sued under 42 U.S.C. § 1983 for alleged violation of her rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Section 1983 allows a person to sue to vindicate the deprivation of constitutional rights. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

To establish liability under § 1983, Plaintiff must demonstrate: (1) she was deprived of a right secured by the Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under the color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994).

1. Acting Under Color of Law

Though it has not been expressly raised as a defense, the Court must first examine whether the defendants were acting under color of law. See Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002) (holding that district court erred by accepting defendant's stipulation he acted under color of law). This issue is important because the Virginia Defendants did not have any police authority in Chattanooga.

State actors who exceed their authority can still be acting under color of law because the term applies more broadly than the mere authority to act. Screws v. United States, 325 U.S. 91, 110-11 (1945) (defining "under color of law" as acting under "pretense" of law). The key determinant is whether the defendant intends to act in an official capacity or to exercise official responsibilities pursuant to state law. West v. Atkins, 487 U.S. 42, 50 (1988); Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001). The conduct must also relate "in some meaningful way either to the actor's governmental status or to the performance of his duties." Waters, 242 F.3d at 359. Put another way, the conduct allegedly causing the deprivation of a constitutional right must be "fairly attributable" to the state, either because the actor is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Applied to police officers, "it is the nature of the act performed which determines whether the officer has acted under color of law." Neuens, 303 F.3d at 670 (citing Stengel v. Belcher, 522 F.2d 438, 440 (6th Cir. 1975)). When a police officer purports to exercise official authority, he has acted under color of law. Memphis, Tenn. Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 903 (6th Cir. 2004) (citing Waters, 242 F.3d at 359). "Such manifestations of official authority include flashing a badge, identifying oneself as a police officer, placing an individual under arrest, or intervening in a dispute between third parties pursuant to a duty imposed by police department regulations." Id. In contrast, officers do not act under color of law when their acts are in "the ambit of their personal pursuits." Monroe v. Pape, 365 U.S. 167, 185 (1961); Waters, 242 F.3d at 359.

In an unpublished decision, the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") held that an officer acted under color of law when he traveled to another state in which he had no legal authority while on duty, in uniform, and carrying out his assignment of locating escaped prisoners. Martin v. Harris, No. 87-5596, 1988 U.S. App. LEXIS 3419, *3, 1988 WL 24227, *1 (6th Cir. Mar. 17, 1988). In Rambo v. Daley, 851 F. Supp. 1222, 1226 (E.D. Ill. 1994), a district court analyzed cases where police officers acted outside the scope of their authority and discerned a rule that an active-duty police officer who acts like a police officer is acting under color of state law even if he is outside his jurisdiction. See also Barna v. City of Perth Amboy, 42 F.3d 809, 817 (3d Cir. 1994) (officers were not acting under color of law when they were off-duty, outside their jurisdiction, and involved in a personal dispute); but see Firman v. Abreu, 691 F. Supp. 811, 813 (S.D.N.Y. 1988) (holding that the principle of ...

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