United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE.
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]. 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
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
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
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
[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].
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”, ¶
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”,
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:
None of the charges leading to the incarceration of
McWilliams appear to be based on a felony conviction.
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 ...