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McWilliams v. Johnson City

United States District Court, E.D. Tennessee, Greeneville

September 18, 2017




         Johnson City, Tennessee, the only remaining defendant in this section 1983 action, filed a Motion to Dismiss or, in the Alternative, for Summary Judgment, [Doc. 33]. The defendant argues first that there is no underlying constitutional violation. Second, the defendant argues that no policy or custom was a moving force in causing a constitutional violation. The plaintiff has responded, [Doc. 38], and the defendant replied, [Doc. 39].[1] For the reasons stated below, the Court finds that there was no constitutional violation, and the defendant's motion is GRANTED. Because the motion is granted on the first ground, this Court will not address the second.

         I. FACTS

         The facts are fully set out the defendant's statement of material facts, [Doc. 34], and brief, [Doc. 36]. This Court notes that the plaintiff failed to follow this Court's Scheduling Order in properly responding to the defendant's statement of facts. See [Doc. 29]. Nevertheless, in the plaintiff's response, [Doc. 38], he fails to dispute the defendant's material facts. As such, the Court sets forth below the facts from defendant's brief:

On May 24, 2012, Aaron McWilliams submitted an application to the City of Johnson City seeking an on premise beer license. [Decl. Feathers, Ex. “A”, ¶ 3]. The application was distributed to various departments of the City on the same day the application was filed with the request that the departments perform their respective customary investigative evaluations as to whether the beer license should be recommended for approval. [Decl. Feathers, Ex. “A”, ¶ 4]. More than one City department had difficulty communicating with McWilliams to allow their evaluation of the application. Both the Fire Department and Building Department were unable to make inspection arrangements with McWilliams until nearly two (2) months after his beer application had been distributed for review. [Decl. Feathers, Ex. “A”; See, email attachments].
With respect to the Police Department, McWilliams' beer license application was initially assigned to Investigator Joey Whitlock in the department's Criminal Investigation Division [“CID”], but reassigned to a more experienced investigator, Lieutenant Steve Sherfey, when Officer Whitlock was unable to reach McWilliams. [Decl. Sherfey, Ex. “B”, ¶ 4]. Lieutenant Sherfey's need to communicate with McWilliams was necessitated when, among other things, several serious prior criminal charges were discovered with respect to McWilliams. The reported past criminal charges included:
08/24/1995 - Mecklenburg, NC - Convict: Fictitious Info to Officer; 07/21/1997 - Cabarrus, NC - Convict: Disorderly Conduct; 05/01/1998 - Mecklenburg, NC - Arraigned: Assault on a Female; 05/01/1998 - Mecklenburg, NC - Arraigned: Misdemeanor Larceny; 05/01/1998 - Mecklenburg, NC - Arraigned: False Imprisonment; 01/23/1997 - Cabarrus, NC - Obstructing Justice (Principal); 08/21/1996 - Cabarrus, NC - Arraigned: Assault on a Female; 07/21/1997 - Cabarrus, NC - Convict: Disorderly Conduct (Principal); 07/11/1993 - Cabarrus, NC - Arraigned: Felony Riot; 07/11/1993 - Convict: Riot - Inciting; 07/11/1993 - Cabarrus, NC - Convict: Assault on a Govt. Official; 10/15/1992 - Cabarrus, NC - Convict: Disorderly Conduct; 04/07/1992 - Cabarrus, NC - Convict: Carrying Concealed; 09/23/1991 - Cabarrus, NC - Convict: Second Degree Trespass; 09/11/1991 - Cabarrus, NC - Arraigned: Assault With a Deadly Weapon; 08/26/1991 - Cabarrus, NC - Convict: First Degree Trespass; 07/25/1991 - Cabarrus, NC - Convict: Assault on a Female; 07/23/1991 - Cabarrus, NC - Convict: Simple Assault; 09/12/1990 - Cabarrus, NC - Convict: Fictitious Info to Officer; 11/03/1988 - Cabarrus, NC - Convict: Simple Assault; 11/03/1988 - Cabarrus, NC - Damage to Property (Principal); 11/03/1988 - Cabarrus, NC - Convict: Damage to Personal Property; 11/03/1988 - Cabarrus, NC - Arraigned: Felony Probation; 10/27/1988 - Cabarrus, NC - Convict: Simple Assault; 10/25/1988 - Cabarrus, NC - Convict: Assault With a Deadly Weapon; 04/29/1988 - Cabarrus, NC - Convict: Simple Assault.
[Decl. Sherfey, Ex. “B”, ¶ 6 and attached printout]. As indicated from the printout, these criminal charges had reportedly occurred mostly in the 1990's and Lieutenant Sherfey was unable to establish the final disposition of McWilliams' criminal charges and whether those criminal charges would preclude the issuance of a beer license under the terms of Johnson City's “alcoholic beverage” ordinance. [Decl. Sherfey, Ex. “B”, ¶ 7]. The past practice based on the language of the ordinance was that only convictions in the ten (10) year period prior to the submittal of the beer application were to be used in evaluating an applicant. [Decl. Sherfey, Ex. “B”, ¶ 12, Attached Johnson City Ordinance No. 8-212(k)]. Lieutenant Sherfey is prohibited from using the National Crime Information Center (NCIC) data base for the purpose of a criminal background check of a beer license applicant. [Decl. Sherfey, Ex. “B”, ¶ 6]. Therefore, as is standard practice in Johnson City, Lieutenant Sherfey utilized a data base known as “Tennessee Leads Online” [TLO]. Id.
Since Lieutenant Sherfey was unable to communicate with McWilliams, at some point in the summer of 2012, the ranking officer in the Criminal Investigation Division sent McWilliams' beer application back to the City employee in the Finance Department who was responsible for processing beer applications. [Decl. Sherfey, Ex. “B”, ¶ 9]. Lieutenant Sherfey considered it highly unusual that McWilliams had not contacted him about his beer application since it had been his experience that most applicants for this type of license typically called him checking on how soon he could complete his investigation to allow their license application to move forward. [Decl. Sherfey, Ex. “B”, ¶ 8]. Lieutenant Sherfey thought that perhaps McWilliams had abandoned his pursuit of a beer license. [Decl. Sherfey, Ex. “B”, ¶ 8].
In late September, 2012, approximately four (4) months after submitting his beer application, McWilliams left a telephone message for Lieutenant Sherfey and on September 27, 2012, Lieutenant Sherfey returned his telephone call. [Decl. Sherfey, Ex. “B”, ¶ 10]. Lieutenant Sherfey acknowledges that due to the passage of time he could not initially remember who Aaron McWilliams was, but ultimately made the connection and told McWilliams he had unsuccessfully tried to reach him. [Decl. Sherfey, Ex. “B”, ¶ 10]. According to Lieutenant Sherfey, McWilliams was irate, hostile, mad and accused him of lying about his efforts to contact him. [Decl. Sherfey, Ex. “B”, ¶ 10].
Lieutenant Sherfey, after the September 27, 2012 telephone conversation, retrieved McWilliams beer application, contacted a Police Department in North Carolina where some of McWilliams' criminal charges had originated, but was unable to verify actual convictions of McWilliams. [Decl. Sherfey, Ex. “B”, ¶ 12]. Lieutenant Sherfey also contacted the ETSU Department of Public Safety to verify if McWilliams was in fact a student there and whether McWilliams address that was provided on the beer application was the same as that listed on ETSU's records. [Decl. Sherfey, Ex. “B”, ¶ 11]. Lieutenant Sherfey also inquired about whether or not ETSU had any information about McWilliams' past criminal charges, some of which appeared to be felony charges. [Decl. Sherfey, Ex. “B”, ¶ 11].
Unknown to Lieutenant Sherfey, Officer Orr with the ETSU Department of Public Safety made inquiry of Student Affairs to determine if McWilliams had disclosed his criminal charges when applying to enroll at ETSU. [See, email to McWilliams provided by McWilliams to undersigned counsel, Ex. “C”]. McWilliams, as indicated in the email [Ex. C”] was summoned to appear in the Office of Student Affairs on October 23, 2012 and questioned about his past criminal charges. [Id.].
During the inquiry by ETSU, McWilliams submitted to the Office of Student Affairs a North Carolina website public record printout reflecting his time of incarceration and referencing only the criminal offenses resulting in those incarcerations. [‘Ex. “D”, Record obtained from ETSU by subpoena, dated February 3, 2017, Doc. 31, Subpoena, PageID #: 96; note printed date of October 23, 2012] but also available at: “North Carolina Criminal Offender -- Public Information: http:/// w&offender0277159&searchLaastName=mcwilliams&search=aar on&listurl=pagelistoffendersearchresults&listpage=1]. None of the charges leading to the incarceration of McWilliams appear to be based on a felony conviction. Id.
Whether McWilliams made additional disclosures to ETSU's Office of Student Affairs other than the North Carolina Public Information printout is unknown to this defendant, but ETSU “cleared [McWilliams] to return to class by Dean of Students and Public ...

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