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Smith v. Kennemore

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

December 12, 2019

ROBIN ANNETTE SMITH, Plaintiff,
v.
MALCOLM KENNEMORE, Defendant,

          MEMORANDUM AND ORDER

          SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant Malcolm Kennemore's motion for summary judgment with supporting brief [Docs. 27 & 28]. Plaintiff Robin Smith filed a response in opposition [Doc. 34], and Defendant filed a reply [Doc. 37]. This matter is now ripe. For the reasons stated below, Defendant's motion [Doc. 27] will be GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         Plaintiff and Defendant are neighbors, though not friendly with one another. Plaintiff was at home on August 4, 2017, at around 8:30 a.m., when she saw Defendant's wife following a dog into Plaintiff's backyard. The dog had apparently escaped Defendant's yard. Plaintiff came outside and informed Defendant's wife that she (Plaintiff) would shoot the dog if the dog came onto Plaintiff's property again.[1]

         At the time, Defendant was a sergeant with the Chattanooga Police Department (“CPD”).[2]Around 12:30 p.m., he drove over to Plaintiff's house, approached her front door and rang the bell. When Plaintiff opened the door, Defendant asked if Plaintiff was the person who threatened to shoot his wife and his dog. Plaintiff admitted to threatening to shoot the dog, but denied threatening to shoot Defendant's wife. At that point, according to Plaintiff, Defendant became angry and started shaking and speaking loudly. Plaintiff also claims Defendant reached across the threshold of the door and poked Plaintiff in the chest with his finger. Plaintiff then retrieved a large walking stick. Meanwhile, Plaintiff's friend, who was upstairs during the altercation, called 911. At some point, Plaintiff asked Defendant to leave but he refused.

         Defendant claims Plaintiff struck him repeatedly with the stick and that he sustained an injury to his wrist attempting to deflect the stick. Plaintiff denies hitting Defendant with the stick, but Plaintiff admits Defendant had a knot on his wrist after the incident (which required no medical treatment). Defendant grabbed the stick and pulled it out of Plaintiff's hands, pulling Plaintiff out of her house and onto the porch in the process. Defendant told Plaintiff he was taking the stick with him “for evidence” and he put it in his car [Doc. 34-1 at Page ID # 268].

         Shortly thereafter, Defendant called 911. Two Hamilton County Sheriff's Department (“HCSD”) deputies soon arrived and interviewed Defendant and Plaintiff. Defendant gave the deputies the stick. Plaintiff was arrested on charges of aggravated assault and taken first to the hospital due to high blood pressure, and then to jail for booking. The charge was amended to misdemeanor assault at some point, possibly when she first appeared before a magistrate. Regardless, the charge was dismissed altogether on August 27, 2018 [Doc. 28-7].

         At the time of her encounter with Defendant, Plaintiff was not aware Defendant was a CPD officer. Defendant was off-duty, he was not wearing any clothing indicating he was a police officer, and the car he drove was unmarked. He was carrying a weapon, but it was concealed as is required by CPD policy. Defendant worked as a polygraph examiner, so it was normal for him to look like an ordinary civilian rather than a police officer, even when on duty. He did not identify himself as a police officer when he called 911, but one of the responding HCSD deputies knew Defendant, and so Defendant did identify himself when the HCSD deputies arrived, but Defendant did not show anyone his badge. After that day, Defendant did not speak to the responding HCSD deputies about the incident or the criminal case at any time.

         The true bill returned in Plaintiff's Hamilton County criminal case identified the “prosecutors” of the case as (1) Joshua Richmond, one of the responding HCSD deputies, and (2) Defendant [Doc. 34-9]. Deputy Richmond is further identified as “#2799, Hamilton County Sheriff's Department.” Written beside Defendant's name is his home address, and nothing on the true bill indicates Defendant was a CPD officer.

         Plaintiff filed this lawsuit in Hamilton County Circuit Court on July 20, 2018. Defendant removed it to this Court on November 5, 2018, and Plaintiff filed an amended complaint with no objection on April 17, 2019 [Doc. 20]. In her amended complaint, Plaintiff asserts two causes of action pursuant to 42 U.S.C. § 1983: count one for “unlawful entry and seizure without probable cause, ” which essentially relates to the events leading up to Defendant calling 911; and count two for malicious prosecution, which essentially relates to the 911 call and events following. She also asserts state law tort claims for assault (count three), battery (count four), conversion (count five), and malicious prosecution (count six).

         Defendant argues Plaintiff's claims should be dismissed for a number of reasons. First, as to the federal civil rights claims, Defendant claims Plaintiff cannot show Defendant was acting “under color of” state law, a requirement of 42 U.S.C. § 1983. If all of the federal claims are dismissed, Defendant argues the Court should, in its discretion, decline to exercise supplemental jurisdiction over the remaining state law claims, as permitted by 28 U.S.C. § 1367(c)(3). In the alternative, Defendant argues he is immune from suit on the Section 1983 unlawful entry claim (qualified immunity), and on the assault and battery claims (state law immunity). He also argues Plaintiff cannot prove various elements of her malicious prosecution and conversion claims, and that the assault, battery, and conversion claims should be dismissed because the record reflects he was acting in self-defense.

         A. Summary Judgment

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material” fact is one that matters-i.e., a fact that, if found to be true, might “affect the outcome” of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine” dispute exists with respect to a material fact when the evidence would enable a reasonable jury to find for the non-moving party. Id.; Jones v. Sandusky Cnty., Ohio, 541 Fed.Appx. 653, 659 (6th Cir. 2013); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). In determining whether a dispute is “genuine, ” the court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson, 477 U.S. at 249. Instead, the court must view the facts and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, 253 F.3d at 907.

         In ruling on a motion for summary judgment, the court may consider any affidavits along with any pleadings, depositions, answers to interrogatories, or admissions. Pennycuf v. Fentress Cnty. Bd. of Educ., 404 F.3d 447, 450 (6th Cir. 2005). The moving party bears the initial burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jones, 541 Fed.Appx. at 659. The movant must support its assertion that a fact is not in dispute by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex, 477 U.S. at 323. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Stated differently, “[o]nce the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.” Toledo v. CSX Transp., Inc., No. 3:16-CV-475-TAV-DCP, 2018 WL 4923361, at *3 (E.D. Tenn. Oct. 10, 2018) (quotation marks omitted) (quoting Curtis Through Curtis v. Universal Match Corp., 778 F.Supp. 1421, 1423 (E.D. Tenn. 1991)).

         The court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; Nat'l Satellite Sports, 253 F.3d at 907.

         II. ...


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