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Cross v. Metropolitan Government of Nashville/Davidson County

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

December 18, 2014

JACKIE GILBERT CROSS, JR., Plaintiff,
v.
METROPOLITAN GOVERNMENT OF NASHVILLE/DAVIDSON COUNTY, et al., Defendants.

MEMORANDUM

TODD J. CAMPBELL, District Judge.

Pending before the Court are Plaintiff's Motion for Partial Summary Judgment, Docket No. 92, and the Motion for Summary Judgment filed by Defendants William Loucks and Gene Donegan ("Defendants"), Docket No. 94. For the reasons stated herein, Defendants' motion will be GRANTED as to all claims except Plaintiff's false-light claim, which will be dismissed without prejudice, and Plaintiff's Motion will be DENIED as moot.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action arises from a criminal sting operation known as "Operation Death Cooker, " conducted by the Special Investigations Division ("SID") of the Metropolitan Nashville Police Department ("MNPD"), which targeted illegal methamphetamine manufacture and distribution. Plaintiff alleges that Defendants caused criminal charges to be brought against him without probable cause to believe that he had committed a crime and that his being indicted on a criminal charge led to his being terminated from his employment with the Metro public school system. During the events that led to the filing of this Complaint, Defendant Loucks was a detective in the SID and led the Operation Death Cooker investigation. Defendant Donegan was a sergeant, the head of the SID, and Detective Loucks' supervisor. As the Court will deny Plaintiff's motion for summary judgment as moot, the facts herein are those viewed in the light most favorable to the Plaintiff.

On February 13, 2011, Plaintiff purchased the medication pseudoephedrine, commonly known by the trade name "Sudafed, " at the pharmacy counter of a Wal-Mart store in Nashville to treat his cold symptoms. Pseudoephedrine products are used in the manufacture of methamphetamine and can only be sold by licensed pharmacies. Because of the potential for illegal use of pseudoephedrine, Tennessee law limits how much of the drug an individual can purchase within a thirty-day time period. Individuals who manufacture methamphetamine often hire individuals, known by police as "smurfs, " who collectively gather the requisite amount of pseudoephedrine necessary for production of methamphetamine while making it appear that they are separate, unrelated purchases made for individual, proper medical usage. Unbeknownst to Plaintiff, his pseudoephedrine purchase occurred within the same fifteen minutes as the purchases made by five men who were, on that same day, apprehended in the Wal-Mart parking lot with a woman named Teresa Kingsmill. Detective Loucks was actively investigating Teresa Kingsmill for running a methamphetamine cook group along with her boyfriend Shane Oakley. Ms. Kingsmill had paid each of the five homeless men with her to purchase pseudoephedrine for use in manufacturing methamphetamine. Plaintiff was not a part of this criminal enterprise in any way.

Wal-Mart entered the purchases made on February 13, 2011, including purchaser information, into a statewide database. That database downloads information into the Tennessee Methamphetamine Task Force Information System ("TMIS"), which allows law enforcement agencies to track pseudoephedrine purchases. When Detective Loucks obtained the pseudoephedrine purchase log from TMIS for February 13, 2011, he saw Plaintiff's name on the list at the same time frame as the purchases made by Ms. Kingsmill's agents. The proximity in time of the purchases coupled with statements made by Teresa Kingsmill that day, caused Detective Loucks to believe Plaintiff was involved in the criminal enterprise. As a result, Detective Loucks included Plaintiff's name in the case summary he created to keep track of the suspects in the investigation. Detective Loucks wrote under the pictures and names of the five men questioned with Teresa Kingsmill on February 13, 2011 that each was a multiple purchaser of pseudoephedrine and was present in the Wal-Mart parking lot with Ms. Kingsmill on that date. Detective Loucks cut and pasted that entry in the word-processing document from one individual's description to the next, and mistakenly cut and pasted the same description under Plaintiff's name. Detective Loucks admits this mistake, states that he did not realize the mistake until after Plaintiff was indicted and filed a complaint with the MNPD Office of Professional Accountability, but stands by his belief that, given other information he obtained in the investigation, primarily statements by Teresa Kingsmill, there was probable cause to indict Plaintiff.

Starting on February 13, 2011, and on several occasions of later questioning by the police, Ms. Kingsmill made a number of vague and ambiguous statements. The parties vigorously dispute the content of some of Ms. Kingsmill's statements and the reasonableness of Detective Loucks' interpretations of her statements. The bottom line is that Plaintiff maintains that he was not involved in the manufacture of methamphetamine in any manner, that there was no probable cause for his indictment, that Detective Loucks' investigation was incompetent, at best, and that Detective Loucks' incompetent investigation and the misleading information he testified to before the grand jury caused Plaintiff to be wrongfully indicted. The Court will not detail here the many factual disputes about the nature of the evidence against Plaintiff, but instead will assume, for the purpose of considering Defendants' motion for summary judgment, which requires the Court to view the evidence in the light most favorable to the non-moving party, that Plaintiff is correct in asserting that Detective Loucks' investigation was sloppy and that there was not probable cause to support his indictment.

Detective Loucks gave his case summary and other evidence he had collected to Davidson County Assistant District Attorney ("ADA") Homlar. ADA Homlar performed several tasks with respect to the individuals identified in the case summary, including reviewing biographical information, conducting criminal background checks, reviewing warrants in unrelated cases, reviewing TMIS reports of known associates, listening to the jail calls of Ms. Kingsmill, and being present when the search warrant was executed at the Kingsmill/Oakley residence. He also met with at least one individual personally because the case summary entry for that individual conflicted with other evidence. After further investigation, ADA Homlar concluded that individual was not a smurf. With respect to Plaintiff, ADA Homlar conducted a TMIS search and a criminal background check. He also reviewed an affidavit of a previous unrelated charge for which Jackie Cross received a conditional judgment, and ran a TMIS search on an individual referenced in that affidavit.

ADA Homlar prepared the indictment that was presented to the grand jury on November 14, 2011, stemming from Operation Death Cooker. The parties agree that Detective Loucks did not have authority to include or exclude an individual from the indictment. It was ADA Homlar's responsibility to review the evidence to determine if it would support a conviction and to exclude any individual for whom there was insufficient evidence to pursue charges. ADA Homlar never had a discussion with Sergeant Donegan about who should or should not be included in the indictment. Sergeant Donegan maintains he was not involved with the Operation Death Cooker investigation at all, although ADA Homlar testified that Sergeant Donegan at times was involved in a hands-on way in investigations and that he thought that Sergeant Donegan may have been involved in an incident in which police officers followed Ms. Kingsmill by car.

ADA Homlar prepared a PowerPoint presentation to assist Detective Loucks in his presentation to the grand jury, which Detective Loucks only had about five minutes to review before presenting it to the grand jury. Docket No. 95-3, at 15, 185 (Homlar Dep.). The parties have presented the Court with copies of slides from the PowerPoint presentation that were shown to the grand jury and also with Detective Loucks' declaration in which he details his statements to the grand jury about Plaintiff. Plaintiff believes the slides and statements Detective Loucks made to the grand jury about his involvement were misleading, particularly a slide that listed his name among six individuals identified as "co-conspirators" with Teresa Kingsmill at the Wal-Mart on February 13, 2011. Detective Loucks stands by the information contained in the slides and his testimony, arguing that he believes other statements made by Ms. Kingsmill created probable cause to believe Plaintiff was, in fact, a co-conspirator with Ms. Kingsmill at the Wal-Mart, even though the police did not see him in her car.

On November 22, 2011, after the grand jury returned an indictment against Plaintiff and thirty-eight other individuals allegedly involved in the methamphetamine cook group, the MNPD released a press release describing Operation Death Cooker, and including the names of all thirty-nine individuals indicted. Plaintiff's name and picture were included in the press release. Docket No. 95-20 (press release). Detective Loucks gave Sergeant Donegan a "brief summary" for use in the press release and also had a brief conversation with the MNPD public affairs manager before the press release was issued. Docket No. 120-1, at 159-60 (Loucks' Depo.). Sergeant Donegan also was interviewed by a local news station, which identified him as having worked undercover, along with his team, on Operation Death Cooker. The only indicted individuals who were referenced by name in the television news coverage were Shane Oakley and Teresa Kingsmill.

Once arrested, Plaintiff's criminal defense attorney told ADA Homlar that Mr. Cross denied being involved in any criminal activity. This led ADA Homlar to review the evidence against Plaintiff and to discover that the police had not, in fact, seen him with Teresa Kingsmill in the Wal-Mart parking lot, as Detective Loucks' case summary mistakenly indicated. ADA Homlar determined that there was insufficient evidence to proceed against Plaintiff and dismissed the criminal charges against him by entry of a nolle prosequi.

On January 12, 2012, Plaintiff submitted a complaint with MNPD's Office of Professional Accountability alleging that Detective Loucks had wrongfully investigated and sought his indictment. The OPA assigned Sergeant Donegan to investigate the complaint. Sergeant Donegan discussed the complaint with ADA Homlar and Detective Loucks. Plaintiff argues that Donegan's discussion with ADA Homlar was inappropriately informal and that his report of their discussion was inaccurate.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983. On May 7, 2013, the Court dismissed all of Plaintiff's claims against Defendant Metropolitan Government of Nashville/Davidson County, his claims against all Defendants for deprivation of his liberty interests in his reputation, his substantive due process claims, and his defamation claims. Plaintiff articulates his federal causes of action against Defendants Loucks and Donegan under § 1983 as follows:

1. False arrest, false imprisonment, and malicious prosecution claims against both Loucks and Donegan arising from inadequate investigation, pursuit of criminal charges, arrest and imprisonment of Plaintiff without probable cause, Docket No. 15 ¶ 60;

2. False arrest, false imprisonment, and malicious prosecution claims against Defendant Donegan for conducting the investigation into Mr. Cross's OPA complaint and for exonerating Loucks based on the grand jury's ...


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