The opinion of the court was delivered by: Dennis H. Inman United States Magistrate Judge
On June 24, 2005, the plaintiff was arrested by Michael Price, a Deputy Sheriff of Hawkins County, Tennessee. Deputy David Lafollette assisted in arresting plaintiff . Plaintiff claims that the deputies had no probable cause to arrest him, and that they used excessive force in making that arrest. He has sued Hawkins County, Hawkins County Sheriff Warren Rimer, and deputies Price and Lafollette under 42 U.S.C. § 1983 for false arrest and excessive force. He also alleges that Hawkins County and its Sheriff failed to adequately train and supervise the deputies, as a result of which the plaintiff was denied his constitutional rights under the Fifth, Eighth, and/or [sic] Fourteenth Amendment to the Constitution.
It is difficult to ascertain from plaintiff 's complaint whether he is asserting a separate state law claim for assault and battery, or if the language regarding assault and battery is simply an allegation made in support of his constitutional claim for excessive force. The court will assume, as has the defendants, that plaintiff has alleged a state law claim for assault and battery.
Plaintiff also makes a claim of negligence, although it is unclear whether that allegation is directed to false arrest, or the force used to effectuate that arrest, or both.
Lastly, in their motion for summary judgment, the defendant s refer to a cause of action based on "outrageous conduct." The court had read, and re-read several times, plaintiff 's complaint, and nowhere therein can the court ferret out any language, artful or inartful, that suggests that the plaintiff has asserted outrageous conduct as a cause of action. Oddly, as best as can be ascertained, it seems that defendant s' counsel suggested to plaintiff during the course of his discovery deposition that he was claiming that deputy Price acted outrageously.*fn1 Inasmuch as defendant s' counsel assumes that plaintiff has raised a claim of outrageous conduct, the court will do likewise.
Thus, it appears that the plaintiff is suing (1) Hawkins County, Sheriff Rimer, deputy Price and deputy Lafollette for false arrest and excessive force used in the course of that arrest; (2) Hawkins County and Sheriff Rimer for inadequate training and supervision of the deputies of the Sheriff's Department; (3) deputy Price and deputy Lafollette for assault and battery; and (4) Hawkins County and Sheriff Rimer for negligence. Based on paragraph 17 of the complaint, plaintiff argues that Hawkins County and Sheriff Rimer should be vicariously liable under 42 U.S.C. § 1983 for the assault and battery and the false arrest committed by the two deputies.
The defendant s have moved for summary judgment, (Doc. 22), relying upon the pretrial discovery depositions of the plaintiff and deputy Price, and plaintiff 's answers to defendant s' first set of interrogatories.
Summary judgment is appropriate only if there are no genuine issues regarding any material facts and, based upon those undisputed facts, the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c). The moving party has the initial burden of proving that there are no genuine issues of material facts and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 47 U.S. 317 (1986); Street v. J.C.Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). If the moving party meets that burden, the non-material moving party then has the burden of producing evidence that demonstrates the existence of a fact, or a dispute concerning a material fact, that precludes summary judgment. The court must draw all possible favorable inferences in favor of, and construe the evidence in the light most favorable to, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, the evidence in favor of the non-moving party must be enough to support a jury verdict in that party's favor. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, supra, at 2511.
There are disputed issues of fact as discussed hereafter. The version most favorable to the plaintiff must be assumed to be true for purposes of ruling on defendant 's motion. Similarly, where more than one inference can be drawn from a fact, the court must adopt the one more favorable to the plaintiff .
The parties' respective versions of the plaintiff 's arrest and the events leading up to it are similar in a few particulars, but for the most part are markedly different. It is undisputed that (1) a citizen called the Hawkins County Sheriff's Office to report that an unnamed intoxicated man was in the middle of Pinhook Road, stopping cars in an attempt to sell crack cocaine. That intoxicated man was plaintiff 's son; plaintiff's cousin, Darryl Heder, told the plaintiff that his son was drunk and in the road stopping cars. Plaintiff thereupon walked from his house to the road to check on his son. He confronted his son, ordering him to return to plaintiff 's house. He also told his son that he intended to call the police. Plaintiff's son walked to his father's house, after which plaintiff began walking towards his house.
Deputies Michael Price and David Lafollette of the Hawkins County Sheriff's Department were the officers who responded to the report of an intoxicated man in the roadway. Each officer was in his own marked car. As plaintiff was walking along the edge of the road (but not in the road) towards his house, deputy Price pulled up behind plaintiff . Aware of the headlights behind him, plaintiff turned his head and recognized that the car was a Sheriff's Department cruiser. Nevertheless, he continued walking towards his house.
It is at this juncture that plaintiff 's version of events, and deputy Price's version of events, diverge considerably.
The officer shined his light on plaintiff and told him to stop and turn around, and plaintiff did so. The deputy told plaintiff to walk back to the police car, and again plaintiff complied. When plaintiff arrived at the police car, deputy Price instructed him to place his hands on the police car. Again plaintiff obeyed. At that point, the deputy instructed the plaintiff to place his hands behind him so that he could be handcuffed, to which plaintiff responded, "Wait a minute buddy, I haven't done anything." Plaintiff testified that he was attempting to tell the deputy "what he was fixing to do," but the deputy wouldn't listen. Plaintiff kept asking the deputy why he was being arrested, but the deputy declined to tell him. Plaintiff testified that he did not want to be arrested, and that he did not intend to go to jail because he "hadn't done anything." He went on to testify that he refused to put his hands behind his back, and that he told the deputy that he was going to go home. On page 32 of his deposition, the following testimony appears:
I said, "Sir, I live right there." I pointed to my trailer. I said, "I have been sick all day. "I've had the flu or something. I'd been running a fever. I said, "I don't feel good." I said, "Leave me alone." And I tried to tell him, and I don't know whether he would listen to me or what his problem was. I tried to tell him my son was the one he wanted and that he was right over there at the house, just right there on hundred and fifty, two hundred feet. I pointed right there. I said, "He is the one you want he's dead dog drunk." I said, "I am sick. I don't feel good, I am going home."
I turned to go to the house. I don't know how many steps I took. He jerks me around. And when he spins me around then the mace comes in my eyes. Then I got tears.
Plaintiff ultimately acknowledged in his deposition that he did resist arrest, and that he vigorously resisted the officers' efforts to handcuff him. It finally took several other officers to accomplish the task. The officers pushed him to the ground, as a result of which plaintiff sustained some injuries.
The only description deputy Price had of the subject of the citizen complaint was that he was male and intoxicated. Deputy Price received the call at 12:34 a.m. and it took him approximately four minutes to get to the appropriate area of Pinhook Road. Deputy Lafollette also responded to the call.
Deputy Lafollette took the responsibility for investigating an automobile on or near the road. Deputy Price observed a pedestrian, now known to be the plaintiff , and indicated to Lafollette that he would "make contact" with that individual.
Price testified that as he came up behind plaintiff , plaintiff glanced at him for a second but kept walking. Price activated his blue lights, stopped his car, and got out. Price hailed plaintiff , saying "Hey, how are you doing?," to which the plaintiff responded, "I've not done nothing, I'm going home." Price then identified himself as a deputy sheriff, and told plaintiff to stop because he needed to talk to him for a moment. According to Price, plaintiff raised his voice somewhat and, in an "excited tone," said, "I've not done nothing. I'm going home," and he continued to walk away from Price.
When asked if he had observed plaintiff doing anything illegal or suspicious, Price testified that plaintiff was "in the area of the call" and matched the general description of the report. That report, of course, was merely that an intoxicated male was walking in the roadway. Price continued walking behind plaintiff . He testified that he asked plaintiff to stop "15 to 20 times." At some point plaintiff pointed to his home and said, "I live up here;" however, as far as Price could tell plaintiff was merely pointing up the road. Price testified that he could never get close enough to plaintiff , or calm him down enough, to tell him why he needed to talk to him. During the 15 times or so he told plaintiff to stop and talk, plaintiff had walked 20 to 25 feet, "maybe more, maybe less."
Plaintiff ultimately stood there with his fists clenched, yelling and screaming that he had done nothing, and that he was going to go home.
After plaintiff refused Price's numerous requests or demands that he stop and talk, Price told plaintiff that he was under arrest. Price attempted to take plaintiff by the arm, but plaintiff jerked his arm away. Price again tried to take him by the arm and once again he jerked free. As he did so, he kept moving away. It was clear to Price that plaintiff did not want to be arrested, and that he was "resisting more than assaulting."
Because of plaintiff 's refusal to stop and talk with Price, Price never had the opportunity to find out if plaintiff was the individual about whom the complaint had been made.
Finally, Price told plaintiff that if he did not cooperate he intended to spray him with pepper spray. As plaintiff continued yelling that he had done nothing wrong, Price ...