United States District Court, E.D. Tennessee, Chattanooga
MEMORANDUM AND ORDER
K. LEE UNITED STATES MAGISTRATE JUDGE.
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
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
time, Defendant was a sergeant with the Chattanooga Police
Department (“CPD”).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
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].
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].
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.
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.
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).
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.
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.
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)).
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.