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Millinder v. Hudgins

United States District Court, W.D. Tennessee, Eastern Division

October 21, 2019




         The informer's privilege is a long-standing rule of law that allows the government “to withhold from disclosure the identity of persons who furnish information” concerning criminal activity to law enforcement. State v. Ostein, 293 S.W.3d 519, 527 (Tenn. 2009) (quoting Roviaro v. United States, 353 U.S. 53, 59 (1957)). This case presents a troubling example of the government disregarding the informer's privilege and disclosing the identity of an informer to the suspects he had reported to the police. Before the Court is Defendants Joseph Hudgins, Jr. and Decatur County, Tennessee's Motion for Summary Judgment (ECF No. 34) filed on July 15, 2019. Despite a failure to safeguard the informer's anonymity in this case, Defendants' Motion must be GRANTED.


         This is an action under 42 U.S.C. § 1983 for the violation of Millinder's constitutional rights. Millinder alleges that he acted as an informant to report drug trafficking activity in Decatur County, Tennessee. Hudgins, who was at the time a Decatur County law enforcement official, took Millinder's tip and used the information to obtain a search warrant that led to two arrests and the bust of a drug, gambling, and alcohol ring. Millinder alleges that Hudgins created a risk to his personal safety by placing Millinder's written statement and personal identifying information in an investigative file that was later produced to the district attorney's office. The assistant district attorney prosecuting the case then produced the file with Millinder's statement and information to the attorney for the suspects in the course of discovery in the case against the suspects, thereby allowing the suspects to learn about Millinder's identity and involvement in the investigation of their crimes. Hudgins and Decatur County now seek summary judgment on Millinder's claims, arguing that Millinder cannot prove that Hudgins violated his rights. Defendants argue in the alternative that Hudgins is entitled to qualified immunity.

         I. Factual Background

         The Court first considers whether a genuine issue of material fact exists to preclude judgment as a matter of law at this stage of the case. In support of their Motion for Summary Judgment, Defendants have asserted that a number of facts are undisputed for purposes of Rule 56. Local Rule 56.1(a) requires a party seeking summary judgment to prepare a statement of facts “to assist the Court in ascertaining whether there are any material facts in dispute.” Local R. 56.1(a). A fact is material if the fact “might affect the outcome of the lawsuit under the governing substantive law.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. For purposes of summary judgment, a party asserting that a material fact is not genuinely in dispute must cite particular parts of the record and show that the evidence fails to establish a genuine dispute or that the adverse party has failed to produce admissible evidence to support a fact. Fed.R.Civ.P. 56(c)(1).

         The Court finds that the following facts are not in dispute for purposes of deciding Defendants' Rule 56 Motion. After his wife discovered marijuana in their son's pants pocket, Plaintiff David Millinder decided to conduct his own investigation into the source of the drugs. (Defs.' Statement of Undisputed Fact ¶¶ 1, 2; ECF No. 35-2). Millinder asked his nephew where a teenager could buy drugs in the area, and his nephew took him to Billy Bob's Bar. (Id. ¶ 3.) There, Millinder observed his nephew purchase $1, 200 worth of marijuana from Jeff Hopper. (Id. ¶ 4.) Having witnessed an illegal drug transaction, Millinder contacted Defendant Joseph Hudgins, a criminal investigator employed at the Decatur County Sheriff's Department. (Id. ¶¶ 5-7.) Hudgins asked Millinder to meet him under a bridge in a secluded location for safety reasons. (Pl.'s Statement of Fact ¶ 12, ECF No. 38-1.)

         On February 1, 2016, Millinder met Hudgins, reported what he had observed, and completed a written statement. (Defs.' Statement of Undisputed Fact ¶ 10; Pl.'s Statement of Fact ¶ 15.) Millinder wrote in his statement that he had seen “a pound of weed bought from Jeff Hopper's house” within the last 24 hours. (Defs.' Statement of Undisputed Fact ¶ 11.)[1]Plaintiff's report was consistent with other information Hudgins had previously received about Jeff Hopper. (Pl.'s Statement of Fact ¶¶ 13, 18.) So using Millinder's information, Hudgins obtained a search warrant for Hopper's home. During the search of Hopper's residence, Hudgins discovered marijuana, firearms, and drug paraphernalia. (Id. ¶ 22.) Based on the evidence recovered during the search, police then obtained arrest warrants for Hopper and his girlfriend Judy Mills and made the arrests at Billy Bob's Bar. (Id. ¶ 25.) As part of a search of the bar incident to the arrests, police found more weapons, gambling machines, and evidence of illegal alcohol sales. (Id. ¶ 26.) Hopper and Mills were both charged and eventually pleaded guilty to avoid trial. (Id. ¶ 39.)

         Millinder's allegations against Hudgins and Decatur County in this case stem from the handling of his February 2016 statement reporting Hopper's illegal activities. According to Millinder, Hudgins assured him that his identity would remain confidential and that his statement would be stored in a locked cabinet, though Defendants add that the state would have called Millinder as a witness if the case had gone to trial. (Id. ¶ 17.) A confidential informant usually has some connection to or involvement with the criminal enterprise he reports to the police; whereas, a citizen informant has no such connection. (Id. ¶¶ 6-8.) Even though there was no evidence Millinder was involved in Hopper's criminal activity, Hudgins treated Millinder like a confidential informant, not a citizen informant. (Id. ¶¶ 9, 15.) Hudgins assigned Millinder a confidential informant number and required him to complete the paperwork for confidential informants, all out of concern over Millinder's motives in reporting Hopper, even after Millinder's tip was corroborated by what the police found at Hopper's home and Billy Bob's Bar. (Id. ¶¶ 15, 16.)

         Under Decatur County policies, a source's statements and personal information were deemed confidential. (Id. ¶ 10.) Hudgins testified that while employed by Decatur County, his practice was to keep confidential informant statements in a confidential file separate from his investigative file. (Id. ¶ 27.) Hudgins did not produce confidential files to the District Attorney, only investigative files. (Id. ¶ 28.) Before turning over an investigative file to the District Attorney, Hudgins would typically review the file and remove or redact any personal or confidential information. (Id. ¶¶ 11, 29.) Although Hudgins viewed Millinder like a confidential informant, Hudgins did not follow his normal practice of storing Millinder's statement in a confidential file. Instead, Hudgins kept Millinder's informant statement in the investigative file. (Id. ¶ 32.) In Hudgins's opinion, Millinder's statement was “the basis for the whole case.” (Defs.' Statement of Undisputed Fact ¶ 13.)

         When Hudgins left his employment at the Decatur County Sheriff's Department in October 2016, a copy of Millinder's statement incriminating Hopper was still in Hudgins's investigative file. (Id. ¶ 17.) The parties dispute how exactly the investigative file containing a copy of Millinder's written statement came to the District Attorney's Office. Hudgins claims that all of his investigative files and his confidential files remained in the custody of the Decatur County Sheriff's Department at the time of his resignation. (Id. ¶ 18.) Hudgins denies that he personally provided a copy of the investigative file containing Millinder's statement to the DA. (Id. ¶ 22.) Millinder contends that Hudgins's other testimony shows Hudgins had already turned the investigative file over to the DA before he left the Sheriff's Department. In any event, it is undisputed that Hudgins did not disclose Millinder's identity or produce any information about Millinder to the suspects themselves, Hopper and Mills. (Id. ¶¶ 23-24.)

         The Assistant DA responsible for the prosecution against Hopper and Mills was Lisa Miller. (Id. ¶¶ 47, 60.) Miller was employed by the State of Tennessee in Tennessee's 24th Judicial District, which included Decatur County. (Id. ¶¶ 48, 49.) Miller testified that law enforcement generally provided her with a complete file for each case, including the name of any confidential informant. (Id. ¶¶ 51-53.) During Miller's tenure, her District followed an open file policy where criminal defense attorneys were granted full access to all materials in the investigative file. (Id. ¶ 54-55.) This meant that an attorney for a defendant would have access to the name, date of birth, and address of any individual identified in a criminal investigative file. (Id. ¶ 57.) Miller testified that her practice was not to remove any information identifying a confidential informant. (Id. ¶ 58.) In Miller's opinion, a defense attorney had the right to discover information about a confidential informant so that the attorney could question the informant as part of the defense and independently ascertain whether the attorney had any ethical conflict in the case based on the informant's involvement. (Id. ¶ 59.) Attorney Stephen Milam represented Hopper and Mills. (Id. ¶ 61.) Milam filed a motion for discovery and inspection on behalf of both Hopper and Mills and was granted full access to the investigative file for each defendant. (Id. ¶¶ 62-66.) Miller testified that if Millinder's written statement was contained in the investigative file, then Milam would have received it as part of the production of the investigative file. (Id. ¶¶ 68-69.)

         At some time after he had made his confidential report to the authorities, Millinder and his family endured a pattern of anonymous harassment and came to suspect that both Hopper and Mills had learned about Millinder's role as an informer. (Id. ¶ 40.) Unknown individuals vandalized the mailbox at the address listed on Millinder's confidential statement. (Id. ¶ 41.) On more than one occasion, shots were fired at Millinder's house. (Id. ¶ 42.) Millinder and his son experienced instances of unidentified individuals calling them “snitch.” (Id. ¶ 44.) Millinder's wife once saw Hopper himself drive up to the home, stop his car, and point a finger at her. (Id. ¶ 43.) Millinder's brother received a text message from Hopper inquiring about Millinder's involvement in the investigation. (Id. ¶¶ 33-34.) Although no one was ever physically harmed[2]and Millinder could not prove that Hopper or Mills was behind any of the anonymous the incidents, Millinder and his family eventually moved out of fear for their safety. (Id. ¶¶ 31-32, 41-42, 45.)

         II. Defendants' Motion for Summary Judgment

         In their Motion for Summary Judgment, Defendants argue that Millinder cannot prove his § 1983 claims as a matter of law. First, Millinder cannot show that he suffered any actual injury. Millinder has no proof that Hopper or Mills has personally participated in or caused any of the property damage or harassment experienced by Millinder's family. There is no evidence Hopper or Mills has personally threatened or physically harmed Millinder or any member of his family. As such, Millinder has failed to show that any harm is traceable to Hudgins or Decatur County. Second, there is no proof that Hudgins took any affirmative action to create or increase a risk of harm to Millinder from a third party. Hudgins denies that he personally delivered a copy of Millinder's informant statement to the District Attorney or Hopper or Mills. Even if Hudgins' decision to include Millinder's statement in the investigative file and produce the file to the DA had violated Millinder's rights, such a right was not clearly established at the time of these events. Hudgins simply did what a reasonable law enforcement officer would have done under the same circumstances. As a result, Defendants argue that the Court should grant them summary judgment on Millinder's § 1983 claims and decline to exercise supplemental jurisdiction over his state law claims.

         Millinder has responded in opposition. Millinder contends that Hudgins created or increased the risk of danger to him in two ways: by keeping Millinder's confidential statement in the investigative file and then by turning the file over to the DA. Hudgins not only failed to protect Millinder and hold his report in confidence but also allowed the information to be disclosed to the subjects of the investigation themselves and did so with deliberate indifference to Millinder's safety. Hudgins testified that he kept Millinder's statement in the investigative file because he was concerned Millinder had a vendetta against Hopper and believed Millinder's statement was the basis for the case against Hopper. But Millinder counters that the discovery of the contraband corroborating Millinder's account of drug trafficking should have dispelled whatever concerns Hudgins had about Millinder's motives. And it was the fruit of the searches that made out the case against Hopper and Mills, not Millinder's tip. Millinder further notes that under Tennessee law an accused has no right to discover the identity of an informant. According to Millinder, Hudgins had ample time to reach these conclusions and should have known to remove the statement from the investigative file. His failure to do so exhibited deliberate indifference to the risk of danger to Millinder. Millinder concludes by arguing that the contours of his privacy rights were established under Sixth Circuit precedent. Therefore, Defendants' Rule 56 Motion should be denied.


         Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment if the party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Supreme Court has stated that “[t]hough determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide.” Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009). In reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A court does not engage in “jury functions” like “credibility determinations and weighing the evidence.” Youkhanna v. City of Sterling Heights, 934 F.3d 508, 515 (6th Cir. 2019) (citing Anderson, 477 U.S. at 255). Rather, the question for the Court is whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict. Anderson, 477 U.S. at 252. In other words, the Court should ask “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-side that one party must prevail as a matter of law.” Id. at 251-52. Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         In this case Millinder would hold Hudgins liable pursuant to 42 U.S.C. § 1983, which creates a “species of tort liability” for the violation of rights guaranteed in the Constitution itself. Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 916 (2017) (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). Section 1983 imposes liability on a “person who, under color of any statute, ordinance, regulation, custom or usage, of any State” subjects another to “the deprivation of any rights, privileges, or immunities secured by the Constitution or laws.” 42 U.S.C. § 1983. Under § 1983, the Court's “threshold inquiry” is “to identify the specific constitutional right” at issue and then apply the ...

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