United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION
PHAM UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Dismiss filed by defendant City of
Memphis pursuant to Federal Rule of Civil Procedure 12(b)(6)
on August 13, 2019. (ECF No. 26.) Plaintiff Walter McGhee, II,
proceeding pro se, filed a response on September 23,
2019. (ECF No. 29.) For the following reasons, the
undersigned recommends that the motion be granted.
PROPOSED FINDINGS OF FACT
filed a complaint and motion to proceed in forma
pauperis on June 13, 2018. (ECF Nos. 1; 2.) The court
granted the motion to proceed in forma pauperis and
ordered that process be issued and served on the
City. (ECF No. 6.) The docket reflects that the
City was served on August 27, 2018. (ECF No. 9.) Because the
City did not file an answer or otherwise appear, the court
entered an order to show cause on January 30, 2019, directing
the City to file an answer or responsive pleading within 21
days, and directing the Clerk of Court to mail that Order to
the City Attorney. (ECF No. 12.) The docket reflects that a
certified mail receipt was returned on February 4, 2019.
However, the City took no action. The court thereafter set a
status conference for April 30, 2019. (ECF No. 13.) Prior to
the conference, McGhee filed a motion pursuant to Federal
Rule of Civil Procedure 55, requesting “the Clerk to
enter Default and Default Judgment against defendant, City of
Memphis.” (ECF No. 14 at 1.) He also sought a judgment
of $75, 000.00, costs, and reasonable attorney's fees.
(ECF No. 14-1 at 1-2.) The City then filed an answer to the
complaint, appeared at the status conference, and pursuant to
this court's direction, responded to McGhee's filing.
(ECF Nos. 18; 19; 20.) Based on the City's response, this
court recommended that McGhee's Rule 55 motion be denied.
(ECF No. 21.) Neither party filed objections, and the
district judge entered an order adopting the R&R and
denying the motion for entry of default and for a default
judgment. (ECF No. 22.) The City now moves for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF
McGhee's complaint is titled “Negligence Complaint,
” it appears that he is asserting a violation under 42
U.S.C. § 1983. (ECF No. 1 at 1.) McGhee alleges that on
May 27, 2017, false charges against him were dismissed in
state court. (Id.) McGhee alleges that he was
“arrested without probable cause or physical
evidence” and that the “City of Memphis failed to
properly train police officers in collecting evidence to
ensure an arrest with probable cause.” (Id.)
McGhee asserts that the “City and police were negligent
because they failed to tag evidence into Shelby [County]
jail.” (Id.) According to McGhee, “[t]he
City and police knew or should have known that evidence is
important in making a lawful arrest.” (Id. at
PROPOSED CONCLUSIONS OF LAW
order to avoid dismissal for failure to state a claim,
“‘a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'” Allen v.
Alexsander, No. 19-1315, 2019 WL 4667707, at *2 (6th
Cir. Sept. 12, 2019) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)); see also Fed.R.Civ.P.
12(b)(6). “A claim is plausible on its face if the
‘plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Ctr. for
Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,
369 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at
678). Without factual allegations in support, mere legal
conclusions are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 679.
se complaints are held to less stringent standards than
formal pleadings drafted by lawyers and are thus liberally
construed. Williams v. Thomas, No.
1:16-cv-01330-JDB-cgc, 2019 WL 1905166, at *1 (W.D. Tenn.
Apr. 29, 2019); Williams v. Curtin, 631 F.3d 380,
383 (6th Cir. 2011). Even so, pro so litigants must
adhere to the Federal Rules of Civil Procedure, see Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), and the
court cannot create a claim that has not been spelled out in
a pleading. See Brown v. Matauszak, 415 Fed.Appx.
608, 613 (6th Cir. 2011); Payne v. Sec'y of
Treas., 73 Fed.Appx. 836, 837 (6th Cir. 2003).
§ 1983 Claim
first asserts a § 1983 claim against the City. To state
a claim under 42 U.S.C. § 1983, “a plaintiff must
allege two elements: (1) a depravation of rights secured by
the ‘Constitution and laws' of the United States
(2) committed by a defendant acting under the color of state
law.” Wilborn v. Shelby Cty. Sheriff's
Dep't, No. 19-2301-JDT-CGC, 2019 WL 4394760, at *2
(W.D. Tenn. Sept. 12, 2019) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 150 (1970)). When a
§ 1983 claim is made against a municipality, a court
must analyze: “(1) whether the plaintiff's harm was
caused by a constitutional violation; and (2) if so, whether
the municipality is responsible for that violation.”
Bumpus v. Dyersburg, Tennessee, No. 18-1246-JDT-CGC,
2019 WL 4279032, at *3 (W.D. Tenn. Sept. 10, 2019) (quoting
Collins v. City of Harker Heights, Tex., 503 U.S.
115, 120 (1992)). A municipality cannot be held responsible
for a constitutional deprivation unless there is a direct
causal link between a municipal policy or custom and the
alleged constitutional deprivation. Monell v. Dep't
of Soc. Servs. of the City of New York, 436 U.S. 658,
691-92 (1978); Baynes v. Cleland, 799 F.3d 600, 621
(6th Cir. 2015). “Official municipal policy includes
the decisions of a government's lawmakers, the acts of
its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.”
Connick v. Thompson, 563 U.S. 51, 61 (2011)
(citations omitted). The plaintiff must “identify the
policy, connect the policy to the city itself and show that
the particular injury was incurred because of the execution
of that policy.” Jackson v. City of Cleveland,
925 F.3d 793, 829 (6th Cir. 2019) (quoting Coogan v. City
of Wixom, 820 F.2d 170, 176 (6th Cir. 1987)).
Furthermore, the policy or custom must be “‘the
moving force' behind the deprivation of plaintiff's
constitutional rights.” Brown v. Battle Creek
Police Dep't, 844 F.3d 556, 573 (6th Cir. 2016).
“Although civil rights plaintiffs are not required to
plead the facts demonstrating municipal liability with
particularity, Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163,
168-69 (1993), the complaint must be sufficient to put the
municipality on notice of the plaintiff's theory of
liability[.]” Jones v. City of Memphis, No.
2:14-cv-02295-JDT-tmp, 2015 WL 1542205, at *12 (W.D. Tenn.
Apr. 6, 2015) (collecting cases); see also Wittstock v.
Mark a Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003)
(“To avoid dismissal under Rule 12(b)(6), a complaint
must contain either direct or inferential allegations with
respect to all material elements of the claim.”).
case, the complaint appears to assert that the City is liable
under § 1983 based on the Memphis Police
Department's alleged unconstitutional conduct.
Specifically, McGhee alleges that police officers arrested
him without probable cause. McGhee now seeks to hold the City
liable for failing to properly train the police officers.
“In limited circumstances, a local government's
decision not to train certain employees about their legal
duty to avoid violating citizens' rights may rise to the
level of an official government policy for purposes of §
1983.” Connick, 563 U.S. at 61. However,
“[a] municipality's culpability for a deprivation
of rights is at its most tenuous where a claim turns on a
failure to train.” Id. (citing Oklahoma
City v. Tuttle, 471 U.S. 808, 822-23 (1985)). “To
satisfy the statute, a municipality's failure to train
its employees in a relevant respect must amount to
‘deliberate indifference to the rights of persons with
whom the [untrained employees] come into contact.'”
Id. (quoting City of Canton v. Harris, 489
U.S. 378, 388 (1989)). “Only then ‘can such a
shortcoming be properly thought of as a city ‘policy or
custom' that is actionable under § 1983.'”
Id. (quoting Canton, 489 U.S. at 389). The
“stringent” standard of deliberate indifference
“requir[es] proof that a municipal actor disregarded a
known or obvious consequence of his action.”
Id. (quoting Board of Comm'rs of Bryan Cty.
v. Brown, 520 U.S. 397, 403 (1997)). “Thus, when
city policymakers are on actual or constructive notice that a
particular omission in their training program causes city
employees to violate citizens' constitutional rights, the
city may be deemed deliberately indifferent if the
policymakers choose to retain that program.”
Id. (citing Bryan Cty., 520 U.S. at 407).
“A pattern of similar constitutional violations by
untrained employees is ‘ordinarily necessary' to
demonstrate deliberate indifference for purposes of failure
to train.” Id. at 62 (quoting Bryan
Cty., 520 U.S. at 409).
has not provided factual allegations sufficient to meet the
“stringent” standard of deliberate indifference.
See id. at 61. The complaint contains no specific
factual allegations regarding deficiencies in the training
regimen implemented by the City. Moreover, the complaint does
not allege that the City had notice of any training
deficiencies. See id. at 62 (“Without notice
that a course of training is deficient in a particular
respect, decisionmakers can hardly be said to have
deliberately chosen a training program that will cause
violations of constitutional rights.”). Similarly, the
complaint provides no reference to any “pattern of
similar constitutional violations.” See id.
The complaint details only a single isolated incident of an
alleged unconstitutional deprivation. The conclusory
allegation that the City failed to train the police officers
is insufficient on its own to state a claim under §
1983. Consequently, the complaint fails to establish a
plausible basis for liability against the City under §