The opinion of the court was delivered by: Chief U.S. Judge Curtis L. Collier
Before the Court are the motions of defendants Chuck Nelms ("Nelms"), Bill Crawford ("Crawford"), and the City of Etowah ("City") (collectively "Defendants") for summary judgment (Court File Nos. 75, 77, 79). Plaintiff Teresa Evans ("Plaintiff") filed a response (Court File No. 91),*fn1 and Nelms and Crawford filed replies (Court File Nos. 94, 95). For the reasons set out below, the Court will GRANT IN PART and DENY IN PART Nelms's and Crawford's motions for summary judgment (Court File Nos. 75, 77), and will GRANT the City's motion for summary judgment (Court File No. 79).
I. FACTS AND PROCEDURAL BACKGROUND
Plaintiff's son, Brandon Noble ("Noble") was arrested in Cobb County, Georgia, for trafficking in methamphetamine on or about August 13, 2004 (Court File No. 75 Ex. 2; Pl.'s Dep. 150). Plaintiff and her mother, under the direction of Noble's attorney, secured a bond for Noble's release pending trial (Pl.'s Dep. 40). The bond was secured by Plaintiff's and her mother's houses (id.).*fn2 This bond was issued by the Empire Surety Group, Inc. ("Empire"). One of the conditions of Noble's release required Noble to live with Plaintiff in Etowah, Tennessee (id. at 41). Empire required Noble to call them every night from Plaintiff's residence (id. at 45).
Noble failed to appear for a court proceeding on October 31, 2005 (Court File No. 75 Ex.2). A Superior Court judge issued a bench warrant for Noble's arrest (id.). Plaintiff does not argue the warrant was invalid, but rather she states her son was in the psychiatric unit at Pine Ridge (Pl's Dep. 52). Her son's attorney told Plaintiff that if she faxed him paperwork showing her son was at the psychiatric unit, then the judge would withdraw the bench warrant (id. at 53). Plaintiff also states the lawyer and Empire had indicated as long as her son did a "walk-in" with his attorney before the second week in December, it would be "fine." (id. at 58-60). Plaintiff also states Noble actually met with Empire's bond agents after October 31 and they agreed he could surrender in December so he could be at home for Thanksgiving (id. at 61).
On November 10, 2005, the bond agents visited Plaintiff's home during a garage sale and talked with a neighbor (Pl.'s Dep. at 47-48). According to Plaintiff, the agents "prowled through [her] personal belongings," bought baseball cards and represented that they were interested in purchasing a piano (id.).
In November 2005, agents for Empire contacted defendant Nelms about Noble (Court File No. 93 Ex. 5, at 65). The bail bondsmen produced a business card and credentials identifying them as bonding agents (id.). The bail bondsmen also produced a copy of a bench warrant for the arrest of Noble (id. at 66), and requested the help of the Etowah Police Department in arresting Noble.
On November 22, 2005, one of the bonding agents informed Nelms that Noble was located at Plaintiff's residence (id. at 82). Officer Nelms was informed by one of the bonding agents that the agent had just spoken to Noble over the phone, and the caller identification on the bonding agent's cell phone matched the phone number at Plaintiff's residence (id. at 82), which was the residence of both Noble and Plaintiff (Pl's Dep. 13, 42).
Plaintiff was sitting on her couch and watching television when she heard a noise from the front door (id. at 67-68). Noble was in Plaintiff's bedroom talking with his grandmother (id.). After the noise Noble walked out of the bedroom and said "what hit the house?" (Id. at 68). Plaintiff told him to go back to the bedroom and he did so (id.). Plaintiff then went into Noble's room and could see people on the front porch, but could not tell who they were (id. at 71). Plaintiff then went to a closet in Noble's room and retrieved a .22 caliber rifle (id.). Plaintiff loaded the rifle, but when the officers identified themselves she laid the weapon on the bed and moved to open the front door (id. at 73). As she walked to the front door, Plaintiff yelled to the people at the front door to wait for her to open it (id. at 72-73).
Just as Plaintiff unlocked the door and began to open it, one of the people outside the door kicked it in (id. at 74). The door burst open and knocked Plaintiff backwards to the floor (id. at 80).
One of the intruders then seized her, picked her up, and threw her on the couch (id.). The officers and bail bondsmen stood over Plaintiff shining their flashlights in her eyes, and one repeatedly yelled, "where is he?" (id. at 87). Eventually, the police and bail bondsmen specified whom they were seeking, and Plaintiff called for Noble (id. at 88). When Noble entered the hall adjoining to the living room the four individuals turned and arrested him (id. at 89). The officers forced him back into a bedroom, made him lie on the bed, and handcuffed him (id.). While Noble was handcuffed, Nelms hit him in the back with a billy club (id. at 90). The rifle Plaintiff retrieved stood at the foot of the bed (id. at 100).
Plaintiff told Noble "don't you get up. If they want you to stand up, let them stand you up." (Id. at 96). Plaintiff says she was worried the police would claim Noble was resisting arrest if he tried to get up on his own, and the police would then continue to beat him without provocation (id.). Crawford replied by telling Plaintiff to "shut her d___ mouth" (id.). Crawford then pushed Plaintiff into the living room and kicked her in the leg so she fell to the floor (id. at 104-05). Crawford pulled Plaintiff upright by the neck of her shirt and handcuffed her (id. at 112). Plaintiff asked if she was being arrested and Crawford said no (id. at 113).
Crawford took Plaintiff to a squad car (id. at 116). Plaintiff asked for her inhaler becuase she was having difficulty breathing, and Crawford said she "didn't need a damn thing." (Id.). Crawford then returned to the house, but soon walked back out, drove off with Plaintiff, and told her someone at the station wanted to talk with her (id. at 117). Crawford drove Plaintiff to the McMinn County Jail (id. at 118). Plaintiff had been constantly asking to see a warrant, but Crawford and the other officers never provided one (id.). And as he drove to the county jail Crawford said "you know how you been wanting to see a warrant? You're fixing to see one, but it's going to be on your d___ a__." (id. at 118-19). Once she arrived at the jail, an officer booked her and she had no further contact with Nelms or Crawford (id. at 120). Plaintiff was charged with being an accessory after the fact (Court File No. 93 Ex 3 at 6). The grand jury however did not find probable cause to believe an offense had been committed and returned a no true bill (id.).
Plaintiff filed a complaint in this action on November 21, 2006 (Court File No. 1). Empire and the bail bondsmen filed a motion to dismiss (Court File No. 10). Empire and the bail bondsmen argued any claim against them should be dismissed because there is no subject matter jurisdiction for Plaintiff's claims against them. The complaint relies upon federal question jurisdiction, which was established by Plaintiff's claims under 42 U.S.C. § 1983. Empire and the bail bondsmen argued these claims were not applicable to them because they were not acting under color of law (Court File No. 10 at 7). The Court denied in part Empire's motion to dismiss, but granted Empire's motion for a more definite statement of Plaintiff's state law claims (Court File No. 30). The Court dismissed Plaintiff's claims against Empire and the bail bondsmen under the First Amendment, Eighth Amendment, and 42 U.S.C. § 1985(c) (Court File No. 30; 29 at 13-16). Plaintiff, in response, filed an amended complaint (Court File No. 36).
Plaintiff's counsel moved to withdraw in late December 2007 (Court File No. 70). On January 17, 2008, before Plaintiff had secured replacement counsel, Defendants filed motions for summary judgment (Court File Nos. 75, 77, 79). Plaintiff obtained replacement counsel on February 11, 2008 (Court File No. 80). The deadline to respond to Defendants' dispositive motions passed on February 7. See E.D. TN. L.R. 7.1(a). Because Plaintiff never had an opportunity to respond to Defendants' motions for summary judgment the Court granted a further extension to respond on February 19, 2008 (Court File No. 84). Plaintiff then filed a response to Defendants' motions for summary judgment on March 10, 2008 (Court File Nos. 91, 93) to which Nelms and Crawford responded on March 14, 2008 (Court File No. 93).
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must demonstrate 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). That is, the moving party must provide the grounds upon which it seeks summary judgment, but does not need to provide affidavits or other materials to negate the non-moving party's claims. Celotex, 477 U.S. at 323. The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, and must submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The moving party is entitled to summary judgment if the non-movant fails to make a sufficient showing on an essential element for which it bears the burden of proof. Celotex, 477 U.S. at 323. In short, if the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court may enter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
As a threshold matter, the Court notes Plaintiff has only offered support for some of her claims. Plaintiff argues her claim against the City of Etowah for maintaining an unconstitutional policy or custom should survive summary judgment (Court File No. 93 at 3-4). Plaintiff also argues she has properly shown a genuine issue of material fact which supports her claims against Crawford and Nelms for excessive force, malicious prosecution, false arrest, and a conspiracy to deprive Plaintiff of her civil rights (id. at 4-6). Finally, Plaintiff claims to have appropriately supported her claims for false arrest, assault, aggravated assault, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence per se (id.).
Plaintiff appears to have abandoned or failed to support her claims under the Eighth Amendment (Complaint ¶ 1),*fn3 for violation of the Equal Protection Clause of the Fourteenth Amendment (Complaint ¶ 4), for violation of her freedom of speech under the First Amendment (Complaint ¶ 59(e)), for violation of her rights under the Due Process Clause of the Fourteenth Amendment (Complaint ¶ 4), her state law claim for defamation (Complaint ¶ 71), her state law claim for trespass to real property (Complaint ¶ 68), and for violation of Article 1 §§ 13 and 32 of the Tennessee Constitution (Complaint ¶ 59(f)). Under Rule 56 once a party has properly supported a motion for summary judgment, an opposing party, here Plaintiff, "may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). Because Plaintiff does not appropriately support her response to Defendants' motions for summary judgment on these claims, Defendants' motion for summary judgment on these claims will be GRANTED.
Defendants Schwind, Yeste, and Empire have not filed any motions and so all present claims remain pending against them.
A. Plaintiff's Allegation City of Etowah Maintains an Unconstitutionally Defective Training Program
Defendants argue Plaintiff has failed to appropriately support her claim against the City because she fails to show any evidence of an unconstitutional policy or custom (Court File No. 79). Plaintiff argues evidence of an unconstitutional policy or procedure may be found at various places between page 40 and page 104 of the Nelms Deposition (Court File No. 93 at 4). There is too much material to summarize here, but suffice it to say the deposition passages contain Nelms's narrative of the events on November 22, 2005. The deposition testimony also refers to Nelms's training in serving out-of-state warrants and extradition processes.
A plaintiff may not maintain an action against a city merely on the theory of respondeat superior, but rather must show an official policy or custom of the city violated his rights. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 692-94 (1978); Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006). "[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). A suit against an official in his official capacity is no different than a suit against the state itself. Printz v. United States, 521 U.S. 898, 931 (1997). So in order to maintain a suit against an official in his official capacity the plaintiff must allege that the municipal entity's policy or custom played a part in the violation.
However, "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion). "[E]ven a single act or decision may qualify as an official government policy, though it be unprecedented and unrepeated. But in any case acts will only be construed as official policy when they are those of a body ...