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Perry v. Carter County

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

July 29, 2019

CECIL H. PERRY, Plaintiff,
CARTER COUNTY, TENNESSEE, and BARNEY BROWN, individually and in his official capacity as Constable for Carter County, Tennessee, Defendants.



         This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 23].

         Now before the Court is a Motion for Summary Judgment [Doc. 24], filed by Defendant Carter County, Tennessee (“Defendant Carter County”). The Motion is ripe and ready for adjudication. Accordingly, for the reasons explained below, the Court hereby GRANTS Defendant Carter County's Motion [Doc. 24].

         I. BACKGROUND

         The Court will begin with the allegations in the Complaint and then turn to the parties' statement of undisputed facts.

         A. Allegations in the Complaint

         The Complaint [Doc. 1] in this matter was filed on November 22, 2017. The Complaint states that Defendant Barney Brown was a constable of Carter County and that he was an elected official and policy maker for Carter County. [Doc. 1 at ¶ 3]. The Complaint alleges that on December 2, 2016, Plaintiff was traveling on US-19E when he encountered Defendant Brown. [Id. at ¶ 4]. Defendant Brown stopped Plaintiff for an alleged traffic violation. [Id. at ¶ 5]. The Complaint states that Defendant Brown was driving what appeared to be a patrol car, and he identified himself as a constable, although he had no credentials and wore civilian attire. [Id. at ¶ 6].

         The Complaint alleges that during the stop, Defendant Brown informed Plaintiff that he could write him a ticket, and Plaintiff advised Defendant Brown to “write the ticket[, ] and I will be on my way.” [Id. at ¶ 7]. Defendant Brown responded that he could take Plaintiff to jail. [Id. at ¶ 8]. Plaintiff grew concerned and asked to speak to Defendant Brown's supervisor. [Id. at ¶ 9]. The Complaint states that Defendant Brown's demeanor changed drastically and that Defendant Brown informed Plaintiff that he was a constable and stated, “You don't think I got the power! I got the power.” [Id. at ¶ 10]. Plaintiff began to fear for his safety and attempted to roll up the window, at which point, Defendant Brown drew a handgun and placed it on Plaintiff's head. [Id. at ¶ 11]. Plaintiff placed his hands in the air and informed Defendant Brown that he would do anything Defendant Brown said. [Id. at ¶ 12].

         The Complaint states that Defendant Brown ordered Plaintiff to get his registration, and Plaintiff stated that he could not do so because the way he was sitting and asked to exit the car. [Id. at ¶ 13]. Defendant Brown held Plaintiff at gun point for several minutes, and during that time, Plaintiff looked for an opportunity to flag down any car that might pass. [Id. at ¶ 14]. Plaintiff saw an oncoming vehicle, and ran into the roadway, shouting for help and asking for someone to call 911. [Id. at ¶ 15]. Defendant Brown ordered Plaintiff to return to the roadside, and Plaintiff continued to stay in the roadway, waving his arms and screaming for help. [Id. at ¶ 16]. Defendant Brown entered Plaintiff's vehicle, removed the keys from the ignition, threw Plaintiff's keys to the grass, and then left the scene. [Id. at ¶ 17]. Once Defendant Brown left the scene, Plaintiff used his cell phone to call for help. [Id. at ¶ 18].

         The Complaint avers that the Carter County Sherriff's Department responded to the call, and Plaintiff was informed that because the incident involved another officer, the case would be investigated by the Tennessee Bureau of Investigation (“TBI”). [Id. at ¶ 19]. The Complaint alleges that a few days later, Plaintiff was contacted by an agent with the TBI, and that on March 13, 2017, the Carter County grand jury indicted Defendant Brown for aggravated assault and official oppression. [Id. at ¶¶ 20-21].

         With respect to Defendant Carter County, Plaintiff alleges that it was deliberately indifferent for reinstating Defendant Brown as a constable (Count Five) and that it was deliberately indifferent by failing to train constables (Count Six). [Id. at ¶¶ 34-43].

         B. Factual Background

         The following facts are taken from the parties' briefs, unless otherwise noted. On November 23, 2009, Defendant Brown executed an Affidavit for Election to the Office of Constable, wherein he swore that he had not been convicted in any federal or state court of a felony. [Doc. 24-1]. Subsequently, on August 5, 2010, Defendant Brown won the election to the office of Constable for a four-year term. [Doc. 24-2]. The parties do not appear to dispute that Defendant Brown's term began on September 1, 2010.

         On September 20, 2010, the Carter County Commission (“County Commission”) held a meeting, and the minutes of the meeting reflect that County Commission accepted Defendant Brown's resignation. [Doc. 24-3 at 1]. Specifically, the county attorney reported that Defendant Brown's resignation was official after it was revealed that Defendant Brown had a prior felony conviction. [Id. at 2]. Later, on October 18, 2010, the County Commission held another meeting, wherein Defendant Brown announced that he had submitted his resignation after being accused of a felony on the advice of his attorney. [Doc. 24-4 at 3]. He stated that any trouble he had been in occurred when he was a teenager and that if reinstated, he would protect and serve the people of the Second District to the best of his ability. [Id.]. The County Commission voted to reelect Defendant Brown as the Constable of the Second District. [Id. at 4].

         According to Defendant Carter County, at the time of Defendant Brown's reappointment, the exact circumstances of his felony were unclear. Thereafter, it was determined that in 1959, Defendant Brown was convicted of breaking and entering and larceny. [Doc. 24-5]. His jail sentence of five years was suspended as long as he complied with the rules of probation, paid restitution, obtained a job and remained lawfully employed, and was home each night at 9:00 p.m. [Id.].

         On August 7, 2014, Defendant Brown was elected to a new, four-year term, which began on September 1, 2014. [Doc. 24-6]. Subsequently, on December 2, 2016, Defendant Brown performed a traffic stop on Plaintiff while Plaintiff was traveling on U.S. Highway 19E. [Doc. 24-7]. The actions that occurred during the stop serve as the basis for Plaintiff's Complaint.


         As mentioned above, Plaintiff alleges two counts against Defendant Carter County: (1) deliberate indifference for reinstating Defendant Brown, and (2) deliberate indifference for failing to train Defendant Brown. Defendant Carter County moves for summary judgment, arguing that it is entitled to judgment as a matter of law as to both counts.

         For grounds, Defendant Carter County states that its 2010 decision to reinstate Defendant Brown was not deliberately indifferent to Plaintiff's rights and that there is no causal link between the 2010 reinstatement and the alleged constitutional violation in 2016. Further, Defendant Carter County argues that it has no duty to train a constable because a constable is a state official; that even if Defendant Brown was a county official, it has no duty to train him because he is responsible for his own training; and that Defendant Brown has obtained the training that is required by law. Finally, Defendant Carter County argues that Plaintiff has sued Defendant Brown in his official capacity, which is redundant because Carter County is already a Defendant in this matter.

         Plaintiff filed a Response [Doc. 26], arguing that the Motion should be denied, or in the alternative, that the case should be stayed until the criminal charges against Defendant Brown are resolved.[1] Plaintiff argues that the County Commission took action to appoint Defendant Brown, despite his previous resignation. Plaintiff argues that Defendant Carter County exercised decision-making authority over the constable, regardless of whether the constable itself is a state or county officer. Plaintiff asserts that Defendant Carter County permitted Defendant Brown to occupy his office in direct violation of Tennessee Code Annotated § 8-10-102(a)(1)(D). Plaintiff argues that the reason the Tennessee General Assembly requires that constables have no prior felony convictions is to prevent criminal behavior, such as that which was experienced by Plaintiff. Plaintiff asserts that Defendant Carter County intentionally ignored the requirements of Tennessee Code Annotated § 8-10-102(a)(1)(D), and therefore, was deliberatively indifferent to the rights of citizens. In the alternative, Plaintiff states that pursuant to Federal Rule of Civil Procedure 56(d), he needs additional facts and that he cannot conduct discovery because Defendant Brown is currently facing criminal charges.

         Defendant Carter County filed a Reply [Doc. 30], maintaining that there is no causal link between the 2010 reinstatement of Defendant Brown and Plaintiff's 2016 allegations of harm.

         Defendant Carter County asserts that Plaintiff failed to respond to its argument that there is no causal link between the reinstatement and the alleged harm, and ...

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