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Howard v. Fulcher

United States District Court, M.D. Tennessee, Nashville Division

September 29, 2014

CHRISTOPHER HOWARD, Plaintiff,
v.
CHRIS FULCHER, Defendant.

Memorandum

ALETA A. TRAUGER, District Judge.

This case is before the court on Defendant Chris Fulcher's motion for summary judgment. For the reasons articulated herein, the motion will be granted.

FACTUAL AND PROCEDURAL HISTORY

On July 28, 2012, the plaintiff was arrested in Cheatham County, Tennessee, and charged with domestic assault against Shonda Carver. Based on findings that the plaintiff was "a threat to the alleged victim or other family or household member" and also "a threat to the public safety, " the commissioner conditioned his release on bond on the following: (1) "The defendant is enjoined from threatening to commit or committing specified offenses against the alleged victim or other family or household member. No unlawful contact;" (2) "The defendant is prohibited from harassing [or] annoying the alleged victim either directly or indirectly;" (3) "The defendant is prohibited from using or possessing a firearm or other weapon specified by the court;" and (4) "The defendant is prohibited from using or consuming alcohol or controlled substances." (ECF 55-1 at 9.) The commissioner also required that plaintiff be held in jail for twelve hours before release "to protect the safety of the alleged victim and to ensure the appearance of the defendant in court." (Id.) The commissioner made these findings and imposed these restrictions on a pre-printed form entitled "Order Granting Bail for Domestic Abuse Cases, " with check marks next to the above pre-printed conditions. The commissioner did not put a check by the requirement that the defendant stay away from the home of the alleged victim or from any other location where the victim would be likely to be. (Id.) The plaintiff's signature appears at the bottom of this form order. (Id.)

This order setting bond conditions led to a record in the National Crime Information Center ("NCIC") database indicating that there was a "temporary order of protection" in effect against the plaintiff. (ECF 27-3, 27-12, 27-16.) Based on this NCIC record, the plaintiff was arrested on four different occasions in 2012 in White Bluff, Tennessee, which led to this lawsuit. The plaintiff's original complaint and amended complaint were filed pro se and in forma pauperis and named as defendants the three police officers who made these arrests and their police chief. In March 2014, the parties entered stipulations that the claims raised against two of the officers (Officers Hopper and Dorland) and against the police chief (Chief Holman) would be dismissed with prejudice. Thus, the only remaining defendant in this matter is Officer Chris Fulcher. The involvement of the previously-named defendants will be discussed herein, however, because the arrests made by the other officers provide useful context to the arrests made by Officer Fulcher.

The first arrest of which the plaintiff complained in his original and amended complaints occurred on October 3, 2012, when Officer Hopper, a police officer in White Bluff, Tennessee, spoke with Ms. Carver, who stated that the Plaintiff had been harassing her in violation of the order of protection that had been issued in Cheatham County. (ECF 26 at ¶ 1.)[1] Officer Hopper checked the NCIC database, which contained the name and description of the plaintiff, along with the following notation:

Temporary Protection Order... The subject is restrained from assaulting, threatening, abusing, harassing, following, interfering, or stalking the protected person and/or the child of the protected person.... Exparte [sic] order granting bail * served by deputy Phil Curran on July 28, 2012 * no unlawful contact * The defendant is prohibited from harassing and annoying the alleged victim either directly or indirectly * The defendant is prohibited from possessing or consuming alcohol or controlled substances * to be held in jail for 12 hours before release on bond to protect the safety of the alleged victim and to ensure the appearance of the defendant in court *... The subject may not threaten a member of the protected person's family or household. The subject is prohibited from possessing and/or purchasing a firearm or other weapon.

(ECF 26 at ¶ 2; ECF 27-3.)

When Officer Hopper arrived at Ms. Carver's house, she informed him that the plaintiff had come to her home that evening highly intoxicated, had threatened to "beat the hell" out of her, had threatened to "blow [the] brains out" of her male neighbor who was present in her home, had called numerous times, and had sent about thirty text messages. (ECF 26 at ¶¶ 3-4; ECF 32-3.) The following day, Officer Hopper obtained an arrest warrant based upon his Affidavit of Complaint that set forth as probable cause the statement of Ms. Carver and the information in the NCIC record that the plaintiff was in violation of his bond restrictions. ((ECF 26 at ¶¶ 5-6 6; ECF 27-5; ECF 26-6.) On December 17, 2012, the plaintiff pled guilty to this charge. (ECF 27-19.)

The parties agree that, on November 19, 2012, Officer Fulcher was dispatched to Ms. Carver's residence, where he found the plaintiff drinking a beer and clearly intoxicated. (ECF 51 at ¶ 7.) The parties also agree that the plaintiff had broken a window next to the door to gain entry to the residence and that he could not provide any proof that he lived there. (Id.) Police Chief Holman also was present at this arrest, having been called by Officer Fulcher for assistance based on the plaintiff's level of intoxication and statements Officer Fulcher claims were made by the plaintiff that made him feel it was prudent to have another officer present. (ECF 27-7, 27-21.) Officer Fulcher asserts that he checked the NCIC database, discovered that the order of protection against the plaintiff was still in effect, and placed the plaintiff under arrest for violating the protective order. (ECF 26 at ¶¶ 8-9.) The plaintiff disputes this, alleging that Officer Fulcher never checked the NCIC database and has never seen an order of protection. (ECF 51 at ¶ 8.)

The crux of the plaintiff's complaint against Officer Fulcher for the November 19, 2012 arrest is the officer's explanation in his deposition that, when he and other officers check to see if there is a valid order of protection, that consists of making a call to Central Dispatch but not personally looking at an NCIC report. He explained that officers have no direct access to NCIC in the field. (ECF 52-1 at 7-9, 15; ECF 55-2 at 28.) Accordingly, Officer Fulcher obtained the information that the plaintiff was subject to a restraining order from Central Dispatch and had not, prior to the date of the deposition, personally seen the NCIC report. When asked in the deposition what had caused him to believe there might be an order of protection against the plaintiff, the officer stated that he had been involved in plaintiff's earlier arrest in Cheatham County. (Id. at 9.)

The parties agree that, on November 21, 2012, Officer Fulcher again received several complaints that the plaintiff was intoxicated at Ms. Carver's house and that, upon his arrival, Officer Fulcher heard the plaintiff and Ms. Carver arguing loudly. (ECF 51 at ¶¶ 10-11.) Again, the parties disagree about whether Officer Fulcher checked the NCIC database and discovered a valid order of protection. (Id. at ¶ 12.) Officer Fulcher claims he did so. (ECF 26 at ¶12.) Officer Fulcher did not arrest the plaintiff on this date because the plaintiff was bleeding and indicated that he needed to be transported to the hospital. (ECF 55-1 at 121.) Officer Fulcher called an ambulance, which transported the plaintiff to the hospital.

The crux of the plaintiff's claim against Officer Fulcher about the November 21, 2012 incident seems to lie in the assertions made in Ms. Carver's affidavit. She states that, on November 22, 2012, she had a telephone conversation with Officer Fulcher in which he asked her if there was an order of protection from Cheatham County, to which she responded that there was not. (ECF 52-2 at 2.) She further alleges:

... Officer Fulcher told me that the day before he had called Cheatham County himself and spoke with an officer he knew and she confirmed that there was one. Unfortunately when he went back to do his paperwork, nearing the end of his shift, he was told by another officer that he couldn't give him some type of confirming code that Officer Fulcher needed because there was no order of that sort and the person he had originally spoken with had already left for the day. According to Fulcher, "it was like it vanished into thin air". [sic] He then ...

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