The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
The plaintiffs' Title 42 United States Code section 1983 complaint is before the Court on the Defendant Hawkins County Sheriff's Department's Motion to Dismiss, [Doc. 9], Defendants Brad Depew, Scott A. Stewart, Kenneth Ferguson, Greg Larkins, Warren Rimer, Hawkins County, and Hawkins County Sheriff's Department's "Motion for Partial Dismissal as to All Defendants," [Doc. 10], and Defendant Deputies Ferguson and Larkin's Motion for Summary Judgment, [Doc. 15]. This Court will address each motion in turn after briefly addressing the facts alleged in the complaint.
Plaintiffs claim that on July 21, 2006, Hawkins County Sheriff's Department Detective Brad Depew approached Plaintiff Randy Harold Wright ("Mr. Wright") at a market in Hawkins County and questioned Mr. Wright. Shortly thereafter, Deputies Stewart, Ferguson, and Larkins joined Detective Depew, and they assaulted Mr. Wright by "slamming" him into a vehicle three times, placed him into a hot patrol car with no ventilation for an "unreasonably protracted period of time," and injured him by driving at an "unreasonabl[y] high rate of speed, tossing [him] from side to side in the back seat" of the car. Mae Alise Wright ("Mrs. Wright") is married to Mr. Wright, the alleged 1983 victim.
In Defendant Hawkins County Sheriff's Department's Motion to Dismiss, the Sheriff's Department argues that is it not a separate legal entity from Hawkins County and, therefore, should be dismissed. The plaintiffs argue that there are no facts in the record that establish that the two are separate. According to Kurz v. Michigan, 548 F.2d 172, 174 (6th Cir.), cert. denied, 434 U.S. 972 (1977), and Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir.1991), the Hawkins County Sheriff's Department is not a suable entity. As such, the Defendant Hawkins County Sheriff's Department's Motion to Dismiss, [Doc. 9], is GRANTED, and it is hereby ORDERED that the complaint against the Hawkins County Sheriff's Department is DISMISSED WITH PREJUDICE.
Regarding all defendants' motion for partial dismissal, the defendants argue that Mrs. Wright's Title 42 United States Code section 1981 claim in particular, as well as her other claims, should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). See 42 U.S.C. § 1981 (2008); Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) requires the Court to construe the complaint in the light most favorable to the plaintiffs, accept all the complaint's factual allegations as true, and determine whether the plaintiffs undoubtedly can prove no set of facts in support of the claims that would entitle them to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.), cert. denied, 498 U.S. 867 (1990). The Court may not grant such a motion to dismiss based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir.1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). "[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (citations omitted).
First, Plaintiff Mrs. Wright stated in her response to the defendants' motion that the section 1981 claim as to her was a mistake and, thus, withdraws that portion. Accordingly, the complaint's section 1981 claim as to Mrs. Wright is DISMISSED WITH PREJUDICE. Second, as to Mrs. Wright's other charges in the complaint, this Court finds it very difficult to discern from the complaint what those are exactly; however, she argues that they are state law claims for which this Court has supplemental jurisdiction. See 28 U.S.C. § 1367 (2008). The complaint only addresses these claims in paragraph 16. It states:
As a direct and approximate result the negligent and for/or intentional act of the Defendants, Plaintiff Mrs. Mae Alise Wright, has personally suffered loss of consortium, severe emotional, and psychological damage. In addition, Plaintiff Mrs. Mae Alise Wright has been financially burdened with the cost of treatment for Plaintiff Randy Harold Wright's severe emotional, and psychological damage, pain and suffering, and mental anguish, and will continue to be financial responsible for those damages in the near future. Plaintiff Mrs. Mae Alise Wright financial suffering in direct and approximate result of the negligent and for/or intentional acts of the Defendants.
Furthermore, it is unclear whether the complaint alleges that Mrs. Wright was present during the alleged assault of her husband or that she was personally assaulted. From the complaint, this Court gleans the following charges by Mrs. Wright: loss of consortium, intentional infliction of emotional distress, negligent infliction of emotional distress, and financial loss as a result of plaintiffs' treatment.
The defendants argue that a section 1983 action is personal to the direct victim of the alleged constitutional tort. See Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000) (citing Jaco v. Bloechle, 739 F.2d 239, 241 (6th Cir. 1984) (both cases in the wrongful-death context)). Citing Claybrook v. Birchwell, they contend that no cause of action may lie for a family member under section 1983 for "emotional distress, loss of a loved one, or any other consequent collateral injuries allegedly suffered personally by the [alleged 1983] victim's family members." Id. Causes of action by a family member brought under section 1983 are different from derivative state causes of action which arise out of the same facts giving rise to a section 1983 action. See Kinzer v. Metropolitan Government of Nashville, 451 F.Supp.2d 931, 934-47 (M.D. Tenn. 2006) (examining Sixth Circuit, other federal circuit, and district court cases in deciding whether federal law bars a Tennessee state claim for loss of consortium arising out of facts giving rise to a section 1983 action); see also Purnell v. City of Akron, 925 F.2d 941 (6th Cir. 1991); Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984).
Several cases discuss, directly or indirectly, this distinction. See Purnell, 925 F.2d at 941; Jaco, 739 F.2d at 239; Kinzer, 451 F.Supp.2d at 931; see also, Claybrook , 199 F.3d at 356 (failing to reach the issue because the plaintiffs did not appeal the dismissal of the state law tort charges which accompanied the section 1983 claims). In Jaco v. Bloechle, which was a case in the wrongful-death context, a mother brought a section 1983 action on behalf of her deceased son allegedly killed by unjustifiable police action. 739 F.2d at 240. The district court had dismissed the action pursuant to Federal Rule of Civil Procedure 12(b)(6) because, under Ohio law, the decedent's civil rights claim did not survive his death. Id. The Sixth Circuit reversed, holding that the mother could bring the section 1983 action as a representative of her son's estate. Id. at 245. Most importantly, this decision did not foreclose state actions available to a decedent's family members. The court noted that "the claim of Jaco's heirs under the wrongful death enactment is a cause of action separate from the civil rights claim and should have been treated as a state claim subject to the trial court's pendent jurisdiction." Id. at 245 n. 5.
Furthermore, the Sixth Circuit addressed a plaintiff's ability to bring a pendent, state-law claim arising out of the same facts giving rise to a section 1983 action in Purnell v. City of Akron, also in the wrongful-death context. The administrator of the decedent's estate brought a state-law survival action alongside a section 1983 claim based upon the police officer's unconstitutional actions allegedly causing the decedent's death. 925 F.2d at 943. A second state wrongful death count was brought by the decedent's legitimate and illegitimate children as next of kin. Id. The district court held that the state wrongful death claim was pendent to the section 1983 action; however, the court denied the illegitimate children's petition to intervene. Id. The Sixth Circuit reversed the district court's decision regarding the intervention. Id. at 954. The circuit court noted that the Ohio wrongful death statute allows compensatory damages to the next of kin for "loss of support from the expected capacity of the decedent, loss of services and society of the decedent, loss of prospective inheritance, and mental anguish incurred by the surviving spouse, minor children, parents and next of kin." Id. at 949. Thus, the court recognized loss of consortium-type damages in Ohio's statute by the survivors. However, the court did not reach the issue of whether the decedent's children could state a claim for damages under section 1983 based on his death. Id. at 949 n. 6. Despite not reaching this issue, it can be inferred from Purnell's language that a derivative state-law claim could accompany a section 1983 claim.
Finally, in Kinzer v. Metropolitan Government of Nashville, the district court, after thorough analysis of relevant case law, decided that a wife's derivative claim for loss of consortium, which accompanied her husband's section 1983 action, did not arise under section 1983, but it arose alongside the section 1983 action. 451 F.Supp.2d at 947. Therefore, the court found, based upon Jaco, Purnell, and other case law, that the claim was not barred by federal law because causes of action arising under section 1983 were distinct from state-law claims which arose alongside a section 1983 claim. Id. The court concluded that it had pendent jurisdiction over this state-law claim, and the court denied the defendants' motion to dismiss. Id.
The cases cited above, especially Kinzer v. Metropolitan Government of Nashville, are similar to the case at bar. Plaintiff Mrs. Wright is possibly asserting state law claims which arose alongside her husband's section 1983 action. As such, to the extent Mrs. Wright is pursuing collateral claims arising under section 1983, the defendants' motion is GRANTED, [Doc. 10], and those causes of action are hereby DISMISSED WITH PREJUDICE. However, assuming that Plaintiff Mrs. Wright has adequately pled the state causes of action alongside her husband's section 1983 claims,*fn1 the defendants' motion is DENIED, and this Court will exercise supplemental jurisdiction over Mrs. Wright's state common law claims. See 28 U.S.C. § 1367.
Lastly, defendants Mr. Ferguson and Mr. Larkin, who are deputies with the Hawkins County Sheriff's Department, moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, claiming that because they were not present at the time the alleged constitutional injuries occurred, then there is no genuine issue of material fact as to them. See Fed. R. Civ. P. 56. They support their argument with their ...