The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion to dismiss filed by the defendant, City of Morristown, Tennessee. [Doc. 11]. Plaintiff has responded to the motion and has attached certain transcripts and exhibits in opposition to the motion. [Doc. 26]. Plaintiff has also filed a supplemental response, [Doc. 29], and the defendant has replied. [Doc. 30]. The matter is now ripe for disposition.
As it must when considering a Rule 12(b)(6) motion, the Court will accept as true all factual allegations in the complaint and construe the complaint in the light most favorable to the plaintiff. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983). Indeed, the facts as alleged by the plaintiff cannot be disbelieved by the Court. See, e.g., Neitzke v. Williams, 490 U.S. 319 (1989); Murphy v. Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). Where there are conflicting interpretations of the facts, they must be construed in the plaintiff's favor. Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039-40 (6th Cir. 1991). A Rule 12(b)(6) motion tests only whether the plaintiff has pleaded a cognizable claim. Scheid v. Fanny Farmer Candy Shops, Inc., 859 2d 434, 436 (6th Cir. 1998). The complaint, however, must do more than make bare assertion of legal conclusions. Columbia Natural Resources, Inc. v. Tadem, 58 F.3d 1101, 1109 (6th Cir. 1995). Legal conclusions or unwarranted factual inferences need not be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The complaint "must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." LRL Props. v. Portage Metro Housing Authority, 55 F.3d 1097, 1103 (6th Cir. 1995).
When a motion to dismiss under Rule 12(b)(6) is accompanied by matters outside the pleadings, as in this case, it is within the district court's discretion to consider such matters and decide the motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(b). A district court must, however, provide a party with an opportunity to respond with relevant evidence before converting a motion to dismiss pursuant to Rule 12(b)(6) into a motion for summary judgment. See Briggs v. Ohio Elections Comm'n, 61 F.3d 487, 493 (6th Cir. 1995).
The plaintiff urges the Court to treat the motion of the City of Morristown as motion for summary judgment and, although the defendant has not submitted any evidence along with its reply, the City of Morristown has replied to the motion and states no explicit objection to having its motion treated as one for summary judgment. After considering the parties' filings and the nature of the exhibits and transcripts submitted, however, the Court will not exercise its discretion to consider the motion as one for summary judgment and will decide the motion by applying the standard applicable to Rule 12(b)(6) motions.
For the reasons which follow, the Court will deny the motion of the City of Morristown.
This action, brought pursuant to 42 U.S.C. § 1983, arises out of an incident which occurred on November 28, 2006, in Hamblen County, Tennessee, within the Eastern District of Tennessee. The co-defendant, Devin Cribley, was employed as a police officer by the Morristown Tennessee Police Department. He also worked as a volunteer fireman with the co-defendant, West Hamblen Volunteer Fire Department.
On November 28, 2006, the plaintiff left his place of employment shortly after noon. On his way home, and while traveling on McBride Road, the plaintiff, while negotiating a curve, encountered an automobile in his lane of travel. The plaintiff swerved to avoid a collision and ran his 1993 Dodge Dakota pickup truck off the road into a ditch and was unable to remove his car from the ditch line. The plaintiff then attempted to telephone relatives to come to retrieve him and his automobile but he could not obtain a signal on his cell phone. The plaintiff, therefore, walked up the slope of a nearby ridge to try to obtain cell coverage. After reaching his father by telephone, the plaintiff saw a man later identified as the defendant, Devin Cribley, standing at the bottom of the hill.
Devin Cribley was off duty from his employment as a police officer and his reason for being at the location is unclear from plaintiff's complaint.*fn1 Defendant Cribley was dressed in a pair of overalls and cut off t-shirt and appeared to be pointing at plaintiff and commanded the plaintiff to walk to him. Plaintiff put his hands in the air because he did not know whether Cribley was armed and assumed that Cribley was the owner of the land. Plaintiff walked approximately 100 yards down the hillside toward Devin Cribley. As he approached Devin Cribley, a second man, later identified as the defendant, David Cribley, who was dressed almost identically to Devin Cribley, walked over to him. Neither man was holding a weapon; however, the defendant Devin Cribley was holding a radio. At that point, plaintiff put his hands down because he did not believe he was either in danger or that either of the Cribley brothers were armed.
Suddenly, and without warning, both defendants, Devin Cribley and David Cribley, grabbed for the plaintiff. Plaintiff tried to wrest himself from their grasp. Shortly thereafter, Devin Cribley identified both himself and his brother as off duty police officers. The brothers, who had been joined at that point by the defendant, Ryan McClellan, dragged the plaintiff "across a cow pasture," dropped him into a mud puddle, and started to kick him in the face.
After plaintiff was dragged to the side of McBride Road, the defendant, Frankie Lane, a deputy sheriff with the Hamblen County, Tennessee Sheriff's Department arrived. Plaintiff was taken to the front of Lane's cruiser. Lane, who had plaintiff in his grasp after being released by the Cribleys, released plaintiff from his grasp, causing plaintiff to hit, face first, on the bumper of defendant Lane's cruiser. Plaintiff was then transported to the Hamblen County Sheriff's Department where he was detained for approximately eight hours and then released on bond. ...