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Ghunim v. Cunningham

United States District Court, M.D. Tennessee, Nashville Division

December 16, 2019

ODAI GHUNIM, Plaintiff,
v.
VICTORIA CUNNINGHAM, Defendant.

          MEMORANDUM

          Aleta A. Trauger United States District Judge.

         Before the court is defendant Victoria Cunningham's Motion to Dismiss all claims brought against her by plaintiff Odai Ghunim. (Doc. No. 10.) For the reasons set forth herein the motion will be granted, and this case will be dismissed with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Ghunim alleges in his Complaint that, on the night of March 13, 2017, he was working as general manager at a Shell gas station-convenience store located on Murfreesboro Pike in Nashville. Around 9:00 p.m., a customer named Tobias Ragland, whom the plaintiff knew had previously been banned from the store for cause, entered the store to buy cigarettes. Ghunim chose to wait on Ragland rather than making a scene. He gave Ragland the requested pack of cigarettes, took his money, and then placed Ragland's change on the counter mat rather than in Ragland's hand. (Compl., Doc. No. 1 ¶¶ 6-7.)

         Ragland was angered by Ghunim's placing the change on the mat. He became verbally abusive, threw the counter mat at Ghunim, and spit in his face. (Id. ¶ 8.) Ghunim checked to make sure that his 40-caliber pistol was at his side, but he did not draw the weapon. Instead he picked up a toy foam bat and tried to get Ragland to leave the store. Instead of leaving, Ragland proceeded to knock the cash register and displays off the counter. (Id. ¶ 9.) Ghunim asked him to leave the store, but Ragland grabbed him, bent him over an ice cream cooler, and managed to take possession of Ghunim's pistol. (Id. ¶¶ 10-12.)

         At this point, another clerk working at the store came to Ghunim's aid, and the two of them wrestled the pistol from Ragland. Ragland then began to attack with the foam bat that he had by then taken from Ghunim. Ghunim, again in possession of his pistol and desperate to end the confrontation, shot a round down and into the floor, which caused Ragland to run out the door, still yelling at Ghunim. Ghunim stepped out of the store and fired a second round, this time, he alleges, into the air, to ensure that Ragland did not return. (Id. ¶¶ 13-14.)

         Ghunim attempted to call the police but his call did not go through. Ragland, however, had no such difficulty. As a result of Ragland's call, defendant Victoria Cunningham, a police officer employed by the Metropolitan Nashville Police Department, arrived on the scene. She first interviewed Ragland. (Id. ¶ 15.) She then entered the store and interviewed Ghunim. Although he was cooperative, Cunningham told Ghunim to “shut up” when he tried to relay his version of events. (Id. ¶ 16.) She also refused to watch the “entire” security video of the episode. (Id.)

         Cunningham prepared an affidavit in support of her request for an arrest warrant for the plaintiff. She swore in her affidavit that the physical altercation between Ragland and Ghunim caused “the victim, ” i.e., Ragland, to push the cash register off the counter, which Ghunim alleges was “blatantly untrue, ” as she would have known if she had watched the surveillance video. (Id. ¶ 17.) She also referred to Ragland as the “victim” and left out important details, such as that Ragland initiated the confrontation by spitting in Ghunim's face and attempting to destroy the store. (Id. ¶¶ 17-18.)

         While attempting to clean up after Ragland's rampage, Ghunim's fellow clerk picked up the spent shell casings that had been ejected from Ghunim's gun. He gave them to Ghunim, who put them in his pocket. Although Ghunim admitted to Cunningham that he had fired his gun twice, Cunningham did not ask him about the shell casings. She later charged him with tampering with evidence. She also initially charged him with vandalism as well, but this charge was dismissed prior to trial. (Id. ¶¶ 19-20.)

         The plaintiff asserts that, based on false statements or intentional omissions, Cunningham “effected a false and unlawful arrest, ” requiring the plaintiff to make bond to guarantee his subsequent appearance at trial. He also alleges “upon information and belief” that Cunningham testified falsely before the Grand Jury for Davidson County, Tennessee in order to procure his indictment on charges of aggravated assault and tampering with evidence and that she testified falsely at trial. The Complaint does not clearly identify how Cunningham's testimony was false, other than by asserting that Cunningham falsely testified that the plaintiff had covered up a bullet hole in the store glass window to conceal where the bullet had ricocheted off the floor from the first shot, which, the plaintiff claims, a viewing of the security video shows is not true. (Id. ¶¶ 21- 23.) Construing the Complaint broadly in favor of the plaintiff, the court understands the plaintiff also to be alleging that Cunningham's false testimony was consistent with the false statements in her warrant affidavit.

         The plaintiff also finds it suspicious that Ragland was never charged with any crime, despite the fact that he had previously been banned from the store and that he was the person who “first posed a threat with the gun, who also testified falsely at Plaintiff's criminal trial, along with Cunningham.” (Id. ¶ 24.) The plaintiff speculates as to his belief that some prior relationship existed between Ragland and Cunningham. (Id.) Ghunim asserts that he was acting in self-defense in firing at Ragland. (Id. ¶ 25.)

         The plaintiff spent five days in jail following his arrest, was on appearance bond for seventeen months pending trial, and finally was acquitted of all charges after a trial on August 6 and 7, 2018. (Id. ¶ 25.)

         The plaintiff filed suit on August 5, 2019, asserting claims against Cunningham for malicious prosecution and intentional or negligent infliction of emotional distress.

         The defendant filed her Motion to Dismiss and supporting Memorandum on September 4, 2019. (Doc. Nos. 10, 11.) The plaintiff filed a Response (Doc. No. 15), and the plaintiff filed a Reply (Doc. No. 17). Along with the Reply, the defendant submitted a DVD with two security videos of the event giving rise to the Complaint, showing the altercation from two different perspectives.

         The first of these, “Channel 4, ” does not show the inception of the altercation, as the camera was pointed toward the store's exit. It captures the struggle from the middle, showing the plaintiff whacking Ragland repeatedly with the foam bat until Ragland tackled him against the ice cream freezer and attempted to gain control of the pistol. The video shows the plaintiff regaining control of the pistol and firing it toward Ragland, but it does not clearly show that the plaintiff's first shot was aimed down toward the floor. In addition, the video confirms that the plaintiff walked out of the store and fired the second shot after Ragland had left the scene. The video does not necessarily substantiate Ghunim's claim that he shot “into the air” (Doc. No. 1 ¶ 14), as he claims. Instead, a reasonable person viewing the video might conclude that he shot straight ahead, toward the retreating Ragland.

         “Channel 5” of the DVD, from a different camera, catches the inception of the altercation. It clearly shows the men having words across the store counter, but it also shows that the plaintiff appears to be the first to escalate the dispute by bringing out the bat and swinging it toward Ragland while they were still separated by the store counter.

         II. ...


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