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Hall v. Metropolitan Government of Nashville and Davidson County

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

January 5, 2018

RACHEL HALL, Plaintiff,
v.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al., Defendants.

          MEMORANDUM

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         Plaintiff Rachel Hall initiated this action by filing a Complaint in the Circuit Court for Davidson County, Tennessee, asserting claims under 42 U.S.C. § 1983 and state law. (Compl., Doc. No. 1.) The case was removed to this court on the basis of federal question jurisdiction. Now pending are four separate Motions to Dismiss filed by the five defendants: the Metropolitan Government of Nashville and Davidson County (“Metro”) (Doc. No. 5); Don Aaron (Doc. No. 7); Megan Arnett and Benjamin Winkler (Doc. No. 9); and Elizabeth Berry-Loucks (Doc. No. 12).

         The motions have been fully briefed and are ripe for review. For the reasons set forth herein, the motions filed by Berry-Loucks (Doc. No. 12) and by Arnett and Winkler (Doc. No. 9) will be granted in part and denied in part. The motions filed by Aaron (Doc. No. 7) and Metro (Doc. No. 5) will be granted in their entirety.

         I. Factual and Procedural Background

         The facts are taken from the Complaint, and the court accepts the factual allegations as true for the purpose of ruling on the Rule 12(b)(6) motions.

         Defendants Arnett, Berry-Loucks, and Winkler are or were at all relevant times employed by Metro as police officers with the Metro-Nashville Police Department. Defendant Aaron is or was employed by Metro as the Police Department Public Affairs Manager.

         Rachel Hall returned to her apartment in Antioch, Tennessee in the early morning hours of Tuesday, August 16, 2016, after having been out of town for a few days. Metro police officers, including Arnett, Berry-Loucks, and Winkler, among others, were at her apartment when she arrived. Prior to Hall's arrival, the police officers had already “bagged and tagged” all contraband found in the apartment, or on individuals in the apartment, and had placed several individuals, most of whom were in her apartment without Hall's knowledge or permission, under arrest for possession of drug contraband. (Compl. ¶ 14.)

         Upon approaching the premises to inquire why the police were on the scene, Hall was handcuffed and “shoved” into her apartment. (Compl. ¶ 15.) Hall offered no resistance to her rough treatment by the officers and was compliant with the officers' commands. Hall was taken to the bedroom of her residence so that Berry-Loucks and Arnett, the two female officers on the scene, could search her person. Berry-Loucks violently grabbed Hall and began to search her. Berry-Loucks did not give any commands or ask any questions as she began her search.

         While conducting the search, Berry-Loucks found a syringe in Hall's bra, which she removed by the plastic plunger end. After retrieving the syringe, Berry-Loucks cursed at Hall and screamed at her that she “could have” been injured by the syringe. (Compl. ¶ 20.) Berry-Loucks then hit Hall across the face with such force that Hall fell backwards onto the bed. Hall “experienced great physical pain” as a result of being struck. (Compl. ¶ 21.) Berry-Loucks pulled Hall off of the bed and hit her again in the face, causing further pain and causing Hall to lose her balance.

         Thereafter, while Hall “begged” her to “stop hitting her, ” Berry-Loucks “turned her around, pushed her face-down over the bed, and . . . began a violent digital search of Ms. Hall's vagina.” (Compl. ¶ 23.) “Using her fingers, Defendant Berry-Loucks digitally penetrated Ms. Hall's vagina at least five times conducting an ‘on-scene cavity search, ' without probable cause or a subpoena.” (Compl. ¶ 24.) Defendant Megan Arnett was present during this assault and “observed the entire ordeal” but “did not verbally or physically intervene.” (Compl. ¶ 29.) The plaintiff alleges that Arnett “had both the opportunity and means to prevent the harm to Ms. Hall.” (Compl. ¶ 30.)

         Hall's hands were handcuffed behind her back during this entire event. She had exhibited no threatening or aggressive behavior toward any of the police officers at the scene and had been fully compliant with the officers' verbal commands.

         At some point, several male police officers entered the room, and the assault by Berry-Loucks terminated. After some discussion, one or more unknown officers contacted detectives with the Division of Sex Crimes to talk to Hall. Hall was transported to Nashville General Hospital where she was interviewed and given a sexual assault examination.

         After this incident, Berry-Loucks was decommissioned, assigned to desk duty, and issued a misdemeanor citation for “slapping” Hall. (Compl. ¶ 35.)

         While Hall was being treated at General Hospital, defendant Don Aaron, as Public Affairs Manager for Metro Police Department, issued a press release (“the Press Release”) which, Hall claims, contained untrue statements, including that Berry-Loucks was “stuck” with the syringe, that she had merely “slapped” Hall, and that Hall was in possession of other items of contraband that the defendants knew had never been in her possession. (Compl. ¶ 36.) It was published along with a “mug shot” photograph. Hall alleges that the photograph was republished by other media outlets, causing her humiliation and emotional distress. (Compl. ¶ 37.) She asserts, “upon information and belief, ” that Aaron “knew or recklessly disregarded the false and misleading nature of the information published in the press release and the false light [in] which said release depicted Ms. Hall.” (Compl. ¶ 38.)

         Hall claims that Arnett “knowingly and deliberately, or with a reckless disregard for the truth, completed three arrest warrant affidavits” charging Hall with a felony drug offense, possession of a firearm, and criminal simulation. (Compl. ¶ 39.) Similarly, she alleges that Winkler “knowingly and deliberately, or with a reckless disregard for the truth, ” swore out an arrest warrant charging her with possession of a legal drug without a prescription, unlawful use of drug paraphernalia, and theft of merchandise. (Compl. ¶ 40.) Hall was not charged with possession of the syringe, and all charges against her were subsequently dismissed.

         The Complaint purports to assert claims under 42 U.S.C. § 1983, based on violations of the plaintiff's rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Hall's claims against Metro are premised upon (1) an alleged custom or practice of permitting police officers to perform “on-scene cavity searches” (Compl. ¶ 42); (2) an alleged custom or practice authorizing the use of excessive force; (3) a failure to supervise or train the individual defendants amounting to deliberate indifference to the plaintiff's constitutional rights; and (4) inadequate and constitutionally deficient hiring procedures. She asserts that the Metro Nashville Police Department is biased toward people of low socioeconomic status and that the conduct complained of is the result of such bias. (Compl. ¶ 65.) She also brings claims against Metro under the Tennessee Governmental Tort Liability Act for negligence and false imprisonment. (Compl. ¶¶ 79-85.)

         Broadly construed, the Complaint asserts claims against Berry-Loucks and Arnett in their individual capacities under § 1983, based on excessive force, false imprisonment, false arrest, and malicious prosecution, as well as state-law claims for assault and battery, false imprisonment, false arrest, and malicious prosecution. The Complaint likewise asserts claims against Winkler under federal and state law for false imprisonment, false arrest, and malicious prosecution. The Complaint purports to state claims against the police officers involved in Hall's detention in both their individual and official capacities.

         The claim against Aaron is premised solely on the Press Release, which the plaintiff contends resulted in false light invasion of privacy in violation of Tennessee law.

         The defendants have now filed Motions to Dismiss, along with supporting Memoranda, seeking dismissal of all claims against them. (Doc. Nos. 5-10, 12-13.) The motions are premised upon Rule 12(b)(6) of the Federal Rules of Civil Procedure and the doctrine of qualified immunity. The plaintiff has filed a Response in opposition to each motion. (Doc. Nos. 19-22.)

         II. Legal Standards

         A. Rule 12(b)(6)

         In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require that a plaintiff provide “‘a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). The court must determine whether “the claimant is entitled to offer evidence to support the claims, ” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         The complaint's allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery, ” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action”; instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         B. Section 1983 and Qualified Immunity

         Section 1983 provides “a cause of action for deprivation under color of state law, of any rights, privileges or immunities secured by the Constitution or laws of the United States.” Jones v. Muskegon Cnty., 625 F.3d 935, 940-41 (6th Cir. 2010) (internal quotation marks and citation omitted). However, “[u]nder the doctrine of qualified immunity, ‘government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In resolving a government official's claim to qualified immunity, the court must “look to whether (1) the facts that the plaintiff has alleged or shown establish the violation of a constitutional right, and (2) the right at issue was ‘clearly established' at the time of the alleged misconduct.” Stoudemire v. Mich. Dep't of Corrs., 705 F.3d 560, 567 (6th Cir. 2013) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The district court has discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S.at 236.

         The “key determination” is whether the defendant who claims qualified immunity “was on notice that his alleged actions were unconstitutional.” Grawey v. Drury, 567 F.3d 302, 313 (6th Cir. 2009). The Supreme Court has stressed that the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Id. Rather, it means that, “in light of pre-existing law[, ] the unlawfulness must be apparent.” Id. (collecting cases); Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”).

         A defendant bears the initial burden of putting forth facts suggesting that she was acting within the scope of her discretionary authority. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992). The ultimate burden of proof, however, is on the plaintiff to show that the defendant is not entitled to qualified immunity. Id.

         III. Don Aaron's Motion to Dismiss

         A. The Parties' Positions

         Hall asserts only one claim against defendant Don Aaron, the Police Department Public Affairs Manager: false light invasion of privacy under Tennessee law.

         The Tennessee Supreme Court expressly recognized the separate tort of false light invasion of privacy in 2001. It initially defined the tort as set forth in the Restatement (Second) of Torts:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 643-44 (Tenn. 2001) (quoting Restatement (Second) of Torts § 652E (1977)). The court determined, however, that the appropriate standard for false light invasion of privacy claims asserted by a private plaintiff regarding a matter of private concern is “simple negligence.” Id. at 648. “For all other false light claims, ” in particular those asserted by a plaintiff who is a public official or public figure, or for claims asserted by a private individual about a matter of public concern, the “actual malice” standard applies. Id. at 647-48.

         Literal truth is generally not a defense in a false light claim:

The facts may be true in a false light claim. However, the angle from which the facts are presented, or the omission of certain material facts, results in placing the plaintiff in a false light. Literal accuracy of separate statements will not render a communication “true” where the implication of the communication as a whole was false. . . . The question is whether [the defendant] made discrete presentations of information in a fashion which rendered the publication susceptible to inferences casting [the plaintiff] in a false light.

West, 53 S.W.3d at 645 n.5 (alterations in original; internal quotation marks and citations omitted). “Thus, the falsehood involved in a false light action ‘may consist in dissemination of matters which, while technically true, give an objectionably false impression where the communicator fails to modify the basic statement with amplifying facts which modify the statement to create a less objectionable impression corresponding to full reality.'” Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 318 (Tenn. Ct. App. 2012) (quoting Russell G. Donaldson, Annotation, False Light Invasion of Privacy-Cognizability and Elements, 57 A.L.R.4th 22, § 13 (Cum. Supp. 2012)). There are, however, defenses to the claim.

         The West court held that the “absolute and conditional privileges” established by Sections 652F- G of the Restatement (Second) of Torts, which apply to defamation, also apply to false light invasion of privacy. One of these privileges is the “fair report privilege.” Eisenstein, 389 S.W.3d at 323.

         Hall alleges that Aaron violated her privacy when he:

(1) failed to mention the other people charged at the scene in the press release, (2) announced that the drugs, which were found on other specific individuals who were never alluded to or named in the press release, were in the sole possession of the Plaintiff, (3) omitted from his press release the fact that Plaintiff arrived at the residence after others had been detained, arrested and all contraband secured (the only item on Plaintiff's person was a syringe which she was not charged with possessing), (4) did not disclose in the release that the guns, drugs and other items seized at the scene were already attributed to the other individuals prior to Plaintiff making the scene, and (5) Defendant Aaron disseminated false information in the press release stating that Officer Berry-Loucks was “stuck by an uncapped syringe concealed in the woman's bra.”

(Doc. No. 21, at 7.)

         For his part, Aaron contends that the false light claim against him should be dismissed because: (1) the alleged police misconduct and criminal activity are matters of public concern, and Hall has not adequately pleaded actual malice; (2) Hall has not adequately pleaded actual damages; (3) Aaron is entitled to qualified immunity; and (4) the fair report privilege applies.

         Because the Complaint does not adequately plead malice, the court finds, as set forth below, that the claim is subject to dismissal for failure to state a claim for which relief may be granted.

         B. Actual Malice-The Press Release

         In response to the Motion to Dismiss, Hall concedes that the matter is “likely” one of public concern and that the actual malice standard applies. (Doc. No. 21, at 8.) The court finds that the plaintiff's arrest on drug charges is a matter of public concern. Accord Restatement (Second) of Torts § 652D cmt. f (“Those who commit crime or are accused of it . . . are nevertheless persons of public interest, concerning whom the public is entitled to be informed.”), quoted in Armstrong v. NBC Universal Inc., No. 1:11CV-P67-M, 2012 WL 4098984, at *4 (W.D. Ky. Sept. 17, 2012), aff'd (6th Cir. Oct. 31, 2013). Matters “customarily regarded as ‘news'” typically are within “the scope of legitimate public concern.” Restatement (Second) of Torts § 652D cmt. g; see also Id. (“Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids . . . and many other similar matters of genuine, even if more or less deplorable, popular appeal.”). Thus, the actual malice standard applies.

         “‘[T]he term ‘actual malice' refers to the publication of a statement with knowledge of falsity or with reckless disregard as to truth or falsity.' It is a subjective standard.” Eisenstein v. WTVF-TV (“Eisenstein II”), No. M2015-00422-COA-R3-CV, 2016 WL 2605752, at *5 (Tenn. Ct. App. May 3, 2016) (quoting Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 300 (Tenn. Ct. App. 2007), and citing Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)).

         The Press Release states in full as follows:

South Precinct Officer Elizabeth Berry-Loucks has been decommissioned and assigned to desk duty after she was arrested by citation today on a charge of misdemeanor assault.
Berry-Loucks, while conducting a 5 a.m. search of a woman under arrest on felony heroin and gun charges, was stuck by an uncapped syringe concealed in the woman's bra. She is alleged to have immediately reacted by slapping the suspect in the face with her open hand.
Rachel E. Hall, 22, is charged with possession of heroin for resale, felony theft, possession of pills without a prescription, unlawful use of drug paraphernalia, and violation of Tennessee's Crooks with Guns law. She is jailed in lieu of $25, 000 bond. Recovered from Hall's . . . apartment were 9.5 grams of heroin, 2.9 grams of cocaine, 112 miscellaneous pills in baggies, and 3 pistols (2 of which were reported stolen in Hermitage-area burglaries).
Berry-Loucks, who sought medical treatment for the needle stick, is a three-year veteran of the MNPD. The Office of Professional Accountability is conducting an administrative investigation of her actions early today.

(Doc. No. 7-1.) The Press Release includes a photograph of Berry-Loucks and a “mug shot” of Hall. (See id.; Compl. ¶ 37.)

         Hall avers that Aaron had access to all of the facts of the incident prior to issuing a public statement and, specifically, that he knew or should have known that the plaintiff's complaint about Berry-Loucks was of a sexual nature and not related solely to her being struck in the face and that the contraband mentioned in the release was found on other ...


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