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Strong v. City of Athens

United States District Court, E.D. Tennessee, at Chattanooga

February 2, 2015

BLAIR L. STRONG, et al., Plaintiffs,
CITY OF ATHENS, et al., Defendants.


THOMAS W. PHILLIPS, Senior District Judge.

This civil rights action stems from a series of "bar checks" at plaintiffs' restaurant in Athens, Tennessee. Two motions filed by defendants Lieutenant Daniel Ruskey ("Lt. Ruskey") and Trooper Rick Ray ("Trooper Ray")[1] are pending: the motion for judgment on the pleadings [Doc. 15] and the motion for summary judgment [Doc. 36]. Because the plaintiff's amended complaint supersedes the original complaint, see In re Refrigerant Compressors Antitrust Litigation, 731 F.3d 586, 589 (6th Cir. 2013), the motion for judgment on the pleadings [Doc. 15] will be DENIED as moot.

Lt. Ruskey and Trooper Ray filed exhibits and a memorandum of law in support of their motion for summary judgment [Docs. 36-1 - 36-7, 37, 38], to which plaintiff responded [Doc. 42] and defendants replied [Doc. 44]. After hearing oral argument on January 26, 2015 and carefully considering the pending motion and related pleadings in light of the entire record, the defendants' motion for summary judgment [Doc. 36] will be GRANTED.

I. Relevant Facts

As the Court is obliged to do in reviewing a motion for summary judgment, the facts of this case will be viewed in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587 (1986).

Plaintiff BStrong Enterprises, LLC ("BStrong") is a corporation operating as an entertainment venue selling alcoholic beverages at the Open Door restaurant in McMinn County, Tennessee [Doc. 35 at ¶ 9(a)]. Plaintiff Blair L. Strong is the sole owner and proprietor of the Open Door.[2] His wife, plaintiff OneYang Strong, manages the Open Door [Doc. 36-4 at p. 3]. Lt. Ruskey and Trooper Ray are officers of the Tennessee Highway Patrol ("THP") [Docs. 45-4 at p. 47; 45-2 at p. 4].

As background, plaintiffs claim that in August 2011, Trooper Ray approached Mr. and Mrs. Strong in the early morning hours while they were on the front steps of the Open Door [Doc. 35 at ¶ 23(a); Doc. 36-4 at p. 17]. At that time, Trooper Ray's daughter was included in an ongoing investigation of underage drinking in a parking lot across from the Open Door [Doc. 35 at ¶ 23]. Trooper Ray approached the Strongs and demanded that they produce identification [Doc. 35 at ¶ 23(a)]. When Mr. Strong objected, Trooper Ray became angry and told Mr. Strong "that the next time [Trooper Ray] comes to the Open Door that he would find a way to place Blair in handcuffs, and "we" would conduct bar checks on his business from now on." [ Id . at ¶ 23(b)]. The Strongs "understood" Trooper Ray's comments "as a threat to shut down the business without justification and to use the bar checks as a pretext to harass and intimidate plaintiffs and plaintiff's customers with the goal of preventing plaintiffs from conducting business." [ Id . at ¶ 23(c)]. It is undisputed that Lt. Ruskey was not present during this event. The plaintiffs contend that the August 2011 incident forms the basis for the defendants' subsequent "agenda" to "get" the plaintiffs, but there are no facts in the record to support this supposition.

Prior to 2012 and from January 2012 up to November 2012, THP officers, including Lt. Ruskey and Trooper Ray, conducted "bar checks" or tavern checks at the Open Door and other businesses in McMinn County [Doc. 35 at ¶ 12; Doc. 36-3 at ¶ 2]. This was an attempt by the officers to stem the incidents of alcohol-related fatality accidents [Doc. 36-3 at ¶ 2]. Each bar was checked 1-2 times per month and each bar check normally lasted 10-15 minutes [Doc. 36-3 at ¶ 2]. The amended complaint alleges that defendants, with other unidentified officers, would enter the Open Door to conduct warrantless searches and non-consent searches of all portions of the business, demand production of patrons' identification, and "stand around within the business for prolonged periods of time simply glaring at the patrons." [Doc. 35 at ¶¶ 13-14]. Mr. Strong testified that 10 minutes is a "prolonged period of time" and that a bar check should only take "zero minutes" [Doc. 36-4 at pp. 11, 21]. Mr. Strong also testified that the defendants did not "glare" at the Open Door patrons, they merely watched them [Doc. 36-4 at p. 13]. The amended complaint also alleges that these bar checks interfered with plaintiffs' ability to conduct business and make profits and scared away patrons [Doc. 35at ¶ 15]. However, Mr. Strong testified that he could not name any particular customer who had stopped coming to the Open Door because of the bar checks. "I don't know why they're not coming because I don't ask them, but I can only assume." [Doc. 36-4 at pp. 15-16].

Two specific bar checks are the subject of this action. On October 21-22, 2012, Lt. Ruskey participated in a bar check at the Open Door and observed Mr. Strong serve alcohol to a female customer who appeared to be underage[3] [Doc. 36-3 at ¶ 3]. When Lt. Ruskey asked her for identification, she did not have any identification [ Id .]. Lt. Ruskey, believing that a crime may have been committed, then asked Mr. Strong for his identification, which he repeatedly refused to provide [ Id .]. Lt. Ruskey followed Mr. Strong around the bar for some period of time asking for his identification [ Id .]. Lt. Ruskey also asked all the customers in the Open Door to hold up their identification, which he claims took only about 1-2 minutes [ Id .]. Mr. Strong complains that the officers went into "private" areas of the Open Door - the kitchen, bar area, and waitress station [Doc. 36-4 at p. 10]. This bar check lasted approximately 45 minutes [Doc. 36-5 at p. 47].

On November 2, 2012, Lt. Ruskey and Trooper Ray participated in a bar check and audit of the Open Door with Kim Boleyn, an agent of the Tennessee Alcoholic Beverage Commission ("ABC") [Doc. 35 at ¶ 25; Doc. 36-2 at ¶ 3; Doc. 36-3 at ¶ 4]. Agent Boleyn testified that they intended to conduct a "saturation" for all of the bars in Athens that evening and she also intended to do a routine food service audit at the Open Door [Doc. 42-2 at p. 5]. She described a "saturation" as when different state and local law enforcement agencies come together to saturate the establishment checking for violations [ Id . at p. 14]. This "saturation" was planned after Lt. Ruskey contacted Agent Boleyn to ask questions as to state rules and regulations regarding establishments that sell liquor by the drink [ Id . at pp. 18-19].

During the November 2, 2012 bar check, Agent Boleyn was meeting with Mrs. Strong in the office, while THP Sergeant Mike Brown, who is not a defendant, was standing in the threshold of the office doorway [Doc. 42-2 at pp. 7, 9, 39-40]. Mr. Strong entered the office and attempted to close the door on Sergeant Brown, striking him on the elbow with the door [Doc. 42-2 at pp. 9-11, 15, 40-41]. A physical scuffle ensued which resulted in Sergeant Brown arresting Mr. Strong for assault [Doc. 42-2 at pp. 41-42]. Agent Boleyn testified that they did not check any other bars on November 2 as intended because they went to the emergency room with Sergeant Brown [ Id. at p. 15]. Mr. Strong has admitted that neither Lt. Ruskey nor Trooper Ray arrested him [Doc. 36-4 at pp. 17-18]. Mr. Strong complains that the officers entered the office, which was private, but did so while Agent Boleyn was there [Doc. 36-4 at p. 20]. Following a preliminary hearing, a McMinn County General Sessions judge found that probable cause existed to bind Mr. Strong over to the grand jury for the assault charges and a grand jury indicted Mr. Strong for the assault [Doc. 36-4 at p. 81; Doc. 42-2 at pp. 78-79]. Mr. Strong was ultimately acquitted of the assault charges [Doc. 35 at ¶ 27].

II. Standard of Review

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). "Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations." Curtis Through Curtis v. Universal Match Corp., 778 F.Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. 317). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.

The Court's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the record "to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus, "the inquiry performed is the threshold inquiry of determining whether there is a need for a trial-whether, in other words, there are any genuine ...

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