United States District Court, E.D. Tennessee, Knoxville Division
Jordan United States District Judge.
matter is before the Court on Defendant Sheriff James L.
Berrong and Defendant Officer Mandy England's Motion to
Dismiss [doc. 19], Defendant Sheriff James L. Berrong and
Defendant Officer Mandy England's Brief in Support of the
Motion [doc. 20], Plaintiff Annissa Colson's Response in
Opposition [doc. 35], and Defendant Sheriff James L. Berrong
and Defendant Officer Mandy England's Reply [doc. 42].
For the reasons herein, the Court will grant the motion in
part and deny the motion in part.
Annissa Colson (“Ms. Colson”) alleges that one
evening she was involved in a car accident and that Officer
Dustin Cook (“Officer Cook”) and Officer Arik
Wilson (“Officer Wilson”), both of the Alcoa
Police Department, arrested her on charges that include
driving under the influence and reckless endangerment.
[Compl., doc. 1, ¶ 5]. Ms. Colson claims that, while at
the scene of the accident, she consented to a blood alcohol
test and that Officer Cook and Officer Wilson drove her to
Blount Memorial Hospital for the test. [Id.]. She
alleges, however, that she withdrew her consent once they
arrived at the hospital, causing Officer Cook and Officer
Wilson to instruct her to get back into their patrol vehicle.
[Id.]. At that point, Ms. Colson, who claims to
suffer from multiple anxiety disorders including
“severe panic disorder, ” alleges that she
experienced a “crippling panic attack, gasping for
breath, in obvious distress” and asked Officer Cook and
Officer Wilson to let her breathe. [Id. ¶¶
1, 5]. “I need to breathe. Please let me breath,
” she allegedly said to them. [Id. ¶ 56].
According to Ms. Colson, who refers to herself as
“diminutive, ” Officer Cook and Officer Wilson
believed that she was resisting their commands and responded
by forcing her back into their patrol vehicle. [Id.
¶ 6]. Specifically, she claims that Officer Cook pulled
her into the patrol vehicle from inside while Officer Wilson
pushed her into it, and in the process, Officer Wilson thrust
his knee into her knee and caused it to “pop.”
[Id. ¶¶ 6-7]. As they maneuvered her into
the patrol vehicle, they also allegedly employed
“pressure point tactics” on her-one clasping her
jugular and the other clasping her clavicle. [Id.
Ms. Colson was inside the patrol vehicle, she was allegedly
“screaming in pain and crying for her mother.”
[Id. ¶ 9]. Ms. Colson claims that Officer Cook
then contacted his supervisor, Lieutenant Keith Fletcher
(“Lieutenant Fletcher”), and requested guidance
on how to proceed, including advice as to whether they should
take Ms. Colson to have her knee examined by a medical
professional. [Id.]. Lieutenant Fletcher allegedly
told them to take Ms. Colson to Blount County Jail, where the
staff nurse could check her knee and conduct a mandatory
blood draw. [Id. ¶¶ 9, 64]. According to
Ms. Colson, they transported her to Blount County Jail, and
Officer Mandy England (“Officer England”) met
them there. [Id. ¶ 10]. Officer England allegedly
escorted Ms. Colson, who claims that she was “screaming
about her knee, ” to a room where she was
“surrounded by corrections staff” and strapped
into a “restraint chair.” [Id.
¶¶ 10, 66].
Colson maintains that Jennifer Russell, a staff nurse at
Blount County Jail, then performed a “cursory
examination” of her knee, found nothing wrong with it,
and attempted to draw her blood with Officer England's
help. [Id. ¶ 11]. In response, Ms. Colson
alleges that she became uncomfortable and resisted their
efforts, prompting Officer England to strike her in the face.
[Id.]. Afterwards, Ms. Colson claims that, while
still in the restraint chair, she repeatedly requested the
opportunity to use the restroom but was denied that
opportunity, and she eventually urinated on herself several
times. [Id. ¶ 12]. According to Ms. Colson, the
officers reacted with laughter. [Id.]. A male
officer then allegedly placed her in a “semi-choke
hold” while Officer England forced a helmet onto her
head. [Id. ¶¶ 13, 73-74]. Ms. Colson
claims that she told the officer he was hurting her neck and
that he replied, “good.” [Id. ¶
73]. She allegedly remained fastened in the restraint chair
for roughly another five hours. [Id. ¶¶
Colson asserts that after she was released from Blount County
Jail, she learned that she had suffered “a tibial
plateau fracture, a torn ACL, [and] a torn LCL, ” in
addition to abrasions and bruises to her neck, chest, arms,
and foot. [Id. ¶ 16]. She also maintains that
she experienced “substantial mental anguish.”
[Id.]. As a result, she has filed this lawsuit
against the City of Alcoa, Tennessee; Blount County,
Tennessee; and officers of these local governments in their
official and individual capacities, bringing several claims
under 42 U.S.C. §§ 1983, 1985, 1986, 1988 and
alleging violations of her constitutional rights under the
Fourth, Eighth, and Fourteenth Amendments. [Id. at
32-53]. She pleads that these violations consist of use of
unlawful and excessive force, cruel and unusual punishment,
failure to train and supervise, failure to provide adequate
medical treatment, and failure to protect. [Id.].
Ms. Colson also brings common law claims under Tennessee law
for assault and battery against Officer Cook, Office Wilson,
and Officer England; intentional infliction of emotional
distress against all Defendants; and negligence against all
Defendants. [Id. ¶¶ 178-94]. Defendants
Sheriff James L. Berrong (“Sheriff Berrong”) and
Officer England now move for dismissal of certain claims
against them in their individual capacities. Sheriff Berrong
requests dismissal of all the § 1983 claims and state
law claims, [Defs.' Br. at 4-12], and Officer England
moves for dismissal of the negligence claim, [id. at
Federal Rule of Civil Procedure 8(a)(2), “[a] pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the plaintiff's complaint must contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that create a reasonable inference
that the defendant is liable for the alleged conduct in the
considering a motion to dismiss under Rule 12(b)(6), a court
accepts the allegations in the complaint as true and
construes them in a light most favorable to the plaintiff.
Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions, ” however. Iqbal, 556 U.S.
at 678. A plaintiff's allegations must consist of more
than “labels, ” “conclusions, ” and
“formulaic recitation[s] of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citation
omitted); see Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” (citation omitted)). “Although a motion
pursuant to Rule 12(b)(6) invites an inquiry into the legal
sufficiency of the complaint, not an analysis of potential
defenses to the claims set forth therein, dismissal
nevertheless is appropriate when the defendant is entitled to
a meritorious affirmative defense such as qualified
immunity.” Peatross v. City of Memphis, 818
F.3d 233, 240 (6th Cir. 2016).
1983 permits a claim for damages against “[e]very
person who, under color of [state law], subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. Because
§ 1983 has “a ‘color of law'
requirement, ” a defendant “can be held liable
only if state law, whether provided by statute or judicially
implied, empowers him with some legal obligation to
act.” Doe v. Claiborne County, 103 F.3d 495,
512 (6th Cir. 1996) (citation omitted). A claim under §
1983 therefore consists of two elements: (1) the defendant
deprived the plaintiff of a constitutional right or a federal
statutory right and (2) the defendant deprived the plaintiff
of one of these types of rights while acting under color of
state law (i.e., state action). Id. at 511;
Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.
1991). “Absent either element, a section 1983 claim
will not lie.” Christy, 103 F.3d at 511.
of the length of the Complaint, which exceeds sixty pages,
and the relatively large number of Defendants in this action,
the Court begins with an overview of the allegations against
Sheriff Berrong. Ms. Colson prefaces her claims by describing
the City of Alcoa's and Blount County's policies as
the “moving force” behind the alleged
infringements of her constitutional rights:
17. The moving force behind the violations of Plaintiff's
constitutional rights was Alcoa and Blount County's
policies, customs, or practices to employ and apply the same
protocols, conventions, customs, or rules of conduct in
handling suspects or inmates who suffer from severe mental
disorders, here, a severe anxiety and panic disorder, as they
do in handling other un-afflicted inmates. This practice is
accepted as a policy or custom of deliberate indifference to
the safety of suspects or inmates who suffer from
debilitating mental disorders.
18. Defendants knew, or should have known, by Plaintiff's
actions, statements, and medications, that Plaintiff suffered
from a severe mental disorder. . . . The officers responded
just as they would have to any non-compliant suspect or
inmate, disregarding her severe mental disorder.
[Compl. ¶¶ 17-18]. Ms. Colson endeavors to link
this alleged policy and the officers' alleged actions to
Sheriff Berrong by pleading that, under Tenn. Code Ann.
section 41-4- 101,  he is “statutorily responsible for
the operation of the Blount County Jail; for the screening[,
] hiring, firing, training and the supervision of the
jailers, deputies, corrections officers, and other jail
personal; and responsible for the safety and welfare of those
housed in the Jail.” [Id. ¶¶ 34-35].
the backdrop of these general assertions, Ms. Colson goes on
to allege four individual-capacity claims against Sheriff
Berrong under § 1983: one for use of unlawful and
excessive force against her (Count Four); a second for
failure to train and supervise personnel (Count Six); a third
for failure to provide her with adequate medical treatment
(Count Nine); and a fourth for failure to keep her free from
harm while she was in custody (Count Ten). Nowhere does Ms.
Colson plead that Sheriff Berrong was personally or directly
involved in the officers' actions against
Rather, her individual-capacity claims against Sheriff
Berrong are based on allegations that, while executing his
responsibilities as a supervisor, he encouraged or implicitly
authorized his officers' unconstitutional actions against
her. [See Pl.'s Resp. at 14 (stating that the
allegations implicate Sheriff Berrong “in his role as a
Ms. Colson's Style of Pleading
Berrong maintains that Count Four, Count Nine, and Count Ten
require dismissal because Ms. Colson “broadly alleges
how all defendants should be held liable without mentioning
or attempting to specify how Sheriff Berrong should be held
liable.” [Defs.' Br. at 5]. At first blush, Sheriff
Berrong appears to be correct in his assessment of these
counts, which contain no specific allegations against him in
their respective bodies. Rather, Ms. Colson indiscriminately
pools all Defendants into these counts and, for the most
part, does not levy allegations against any individual
Defendant but against all Defendants at once. This haphazard
style of pleading is generally grounds for dismissal. See
Tuck v. Off Shore Inland Marine & Oilfield Co., No.
12-0379-WS-M, 2013 WL 81135, at *4 n.8 (S.D. Ala. Jan. 4,
2013) (“Part of plaintiffs' problem is that their
Complaint lumps the four original defendants together in an
undifferentiated mass, which is often itself a defect under
Rule 8.” (citations omitted)); Petrovic v. Princess
Cruise Lines, Ltd., No. 12-21588-CIV, 2012 WL 3026368,
at *3 (S.D. Fla. July 20, 2012) (“[A] complaint that
‘lump[s] all the defendants together in each claim and
provid[es] no factual basis to distinguish their conduct'
fails to satisfy Rule 8.” (quotation omitted));
Ismail v. City of Vallejo, No. C 93-3253 BAC, 1994
WL 317602, at *2 (N.D. Cal. June 21, 1994)
(“Plaintiff's complaint lumps the defendants
together and does not identify the role of any particular
defendant in causing a deprivation of plaintiff's
federally protected civil rights. The complaint fails to meet
the pleading requirements for a Section 1983 claim. The
plaintiff must sort out and allege the conduct of each
defendant which he claims resulted in a deprivation of his
federally protected civil rights.” (citation omitted)).
careful reading of the Complaint, however, shows that Ms.
Colson's allegations in Count Four, Count Nine, and Count
Ten-though perhaps not models of pleading-are technically not
lacking in allegations against Sheriff Berrong specifically.
Sheriff Berrong loses sight of the fact that Ms. Colson
incorporates by reference into these counts other paragraphs
from the Complaint, and some of these paragraphs contain
allegations that are particular to Sheriff Berrong. See
generally Hishon v. King & Spalding, 467 U.S. 69, 73
(1984) (“A court may dismiss a complaint only if it is
clear that no relief could be granted under any set
of facts that could be proved consistent with the
allegations.” (emphasis added) (citation omitted)). For
instance, in Count Four, Ms. Colson incorporates by reference
the following allegation against Sheriff Berrong from Count
112. No one, not . . . Sheriff Berrong, or any other
supervisors named herein took disciplinary action against
in Count Nine and Count Ten, she incorporates by
reference-from Count Six, Count Seven, and Count Eight-the
following allegations against Sheriff Berrong:
133. Sheriff Berrong . . . had an opportunity to implement
corrective action against the various officers involved, but
. . . did not. Instead, [he] implicitly authorized, approved,
or knowingly acquiesced in those officers' conduct,
implicitly acquiescing in the use of excessive force and
cruel and unusual punishment as well.
134. Sheriff Berrong . . . had a duty to train and supervise
[his] departments' officers to avoid the use of excessive
force, cruel and unusual punishment, and deprivation of
adequate medical care. Yet, [he] failed to train and
supervise those officers properly and failed to competently
and properly investigate the use of excessive force.
135. It is highly unlikely that incidents such as those
described herein would not have been reviewed by . . .
Sheriff Berrong . . . . Nevertheless, none of the officers
involved were disciplined.
136. Ratification of such conduct by . . . Sheriff Berrong .
. . sent a message that officers are allowed to do whatever
they want, whenever they want, to whomever they want,
irrespective of the Constitution. . . . Sheriff Berrong [was]
involved, at least in part, in creating and enforcing their
departments' policies. Here, they did not punish officer
misconduct, including the use of excessive force and failure
to provide adequate medical care, but “rubber
stamped” that conduct.
142. By ratifying Plaintiff's mistreatment . . . Sheriff
Berrong acquiesced in the unconstitutional conduct of [his]
subordinates through the execution of their job functions.
156. At all times material hereto, Sheriff Berrong authorized
the use of a “restraint chair” at the Blount
157. The use of the “restraint chair” under the
facts of this case on an inmate who suffers from a severe
mental disorder constituted cruel and unusual punishment,
which violated Plaintiff's rights under the Eighth and
160. The use of the “restraint chair” is
expressly prohibited by the policies and procedures of many
corrections facilities, but Sheriff Berrong has known that
the “restraint chair” at the Blount County Jail
was being used as punishment for certain inmates, including
inmates with severe mental disorders. He failed to take
action to prevent the abuses.
Ms. Colson does not fall short of apprising Sheriff Berrong
of how she believes that he-and he specifically-is liable
under Count Four, Count Nine, and Count Ten. The issue of
whether these allegations add up to factually sufficient
claims for supervisory liability, however, is a separate one
that the Court will now consider.
The Contours of Supervisory Liability under § 1983
Ashcroft v. Iqbal, the Supreme Court stated that in
suits under § 1983, “the term ‘supervisory
liability' is a misnomer” because “each
Government official, his or her title notwithstanding, is
only liable for his or her own misconduct.” 556 U.S. at
677. In other words, a supervisory official cannot be liable
under a theory of vicarious liability, id. at 676,
or in other words, “simply because he or she was
charged with overseeing a subordinate who violated the
constitutional rights of another, ” Peatross,
818 F.3d at 241 (citation omitted). A supervisor's mere
failure to act is therefore not enough to establish
supervisory liability; instead “supervisory liability
requires some ‘active constitutional behavior' on
the part of the supervisor.” Id. (quotation
omitted); see Salehpour v. Univ. of Tenn., 159 F.3d
199, 206 (6th Cir. ...