Perry v. Carter County, Tennessee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

CECIL H. PERRY, )

)

Plaintiff, )

)

v. ) No. 2:17-CV-213-DCP

)

CARTER COUNTY, TENNESSEE, and )

BARNEY BROWN, individually and in his )

official capacity as Constable for Carter County, )

Tennessee, )

)

Defendants. )

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the

Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings,

including entry of judgment [Doc. 23].

Now before the Court is a Motion for Summary Judgment [Doc. 24], filed by Defendant

Carter County, Tennessee (“Defendant Carter County”). The Motion is ripe and ready for

adjudication. Accordingly, for the reasons explained below, the Court hereby GRANTS

Defendant Carter County’s Motion [Doc. 24].

I. BACKGROUND

The Court will begin with the allegations in the Complaint and then turn to the parties’

statement of undisputed facts.

A. Allegations in the Complaint

The Complaint [Doc. 1] in this matter was filed on November 22, 2017. The Complaint

states that Defendant Barney Brown was a constable of Carter County and that he was an elected

official and policy maker for Carter County. [Doc. 1 at ¶ 3]. The Complaint alleges that on

December 2, 2016, Plaintiff was traveling on US-19E when he encountered Defendant Brown.

[Id. at ¶ 4]. Defendant Brown stopped Plaintiff for an alleged traffic violation. [Id. at ¶ 5]. The

Complaint states that Defendant Brown was driving what appeared to be a patrol car, and he

identified himself as a constable, although he had no credentials and wore civilian attire. [Id. at ¶

6].

The Complaint alleges that during the stop, Defendant Brown informed Plaintiff that he

could write him a ticket, and Plaintiff advised Defendant Brown to “write the ticket[,] and I will

be on my way.” [Id. at ¶ 7]. Defendant Brown responded that he could take Plaintiff to jail. [Id.

at ¶ 8]. Plaintiff grew concerned and asked to speak to Defendant Brown’s supervisor. [Id. at ¶

9]. The Complaint states that Defendant Brown’s demeanor changed drastically and that

Defendant Brown informed Plaintiff that he was a constable and stated, “You don’t think I got the

power! I got the power.” [Id. at ¶ 10]. Plaintiff began to fear for his safety and attempted to roll

up the window, at which point, Defendant Brown drew a handgun and placed it on Plaintiff’s head.

[Id. at ¶ 11]. Plaintiff placed his hands in the air and informed Defendant Brown that he would do

anything Defendant Brown said. [Id. at ¶ 12].

The Complaint states that Defendant Brown ordered Plaintiff to get his registration, and

Plaintiff stated that he could not do so because the way he was sitting and asked to exit the car.

[Id. at ¶ 13]. Defendant Brown held Plaintiff at gun point for several minutes, and during that

time, Plaintiff looked for an opportunity to flag down any car that might pass. [Id. at ¶ 14].

Plaintiff saw an oncoming vehicle, and ran into the roadway, shouting for help and asking for

someone to call 911. [Id. at ¶ 15]. Defendant Brown ordered Plaintiff to return to the roadside,

and Plaintiff continued to stay in the roadway, waving his arms and screaming for help. [Id. at ¶

16]. Defendant Brown entered Plaintiff’s vehicle, removed the keys from the ignition, threw

Plaintiff’s keys to the grass, and then left the scene. [Id. at ¶ 17]. Once Defendant Brown left the

scene, Plaintiff used his cell phone to call for help. [Id. at ¶ 18].

The Complaint avers that the Carter County Sherriff’s Department responded to the call,

and Plaintiff was informed that because the incident involved another officer, the case would be

investigated by the Tennessee Bureau of Investigation (“TBI”). [Id. at ¶ 19]. The Complaint

alleges that a few days later, Plaintiff was contacted by an agent with the TBI, and that on March

13, 2017, the Carter County grand jury indicted Defendant Brown for aggravated assault and

official oppression. [Id. at ¶¶ 20-21].

With respect to Defendant Carter County, Plaintiff alleges that it was deliberately

indifferent for reinstating Defendant Brown as a constable (Count Five) and that it was deliberately

indifferent by failing to train constables (Count Six). [Id. at ¶¶ 34-43].

B. Factual Background

The following facts are taken from the parties’ briefs, unless otherwise noted. On

November 23, 2009, Defendant Brown executed an Affidavit for Election to the Office of

Constable, wherein he swore that he had not been convicted in any federal or state court of a felony.

[Doc. 24-1]. Subsequently, on August 5, 2010, Defendant Brown won the election to the office of

Constable for a four-year term. [Doc. 24-2]. The parties do not appear to dispute that Defendant

Brown’s term began on September 1, 2010.

On September 20, 2010, the Carter County Commission (“County Commission”) held a

meeting, and the minutes of the meeting reflect that County Commission accepted Defendant

Brown’s resignation. [Doc. 24-3 at 1]. Specifically, the county attorney reported that Defendant

Brown’s resignation was official after it was revealed that Defendant Brown had a prior felony

conviction. [Id. at 2]. Later, on October 18, 2010, the County Commission held another meeting,

wherein Defendant Brown announced that he had submitted his resignation after being accused of

a felony on the advice of his attorney. [Doc. 24-4 at 3]. He stated that any trouble he had been in

occurred when he was a teenager and that if reinstated, he would protect and serve the people of

the Second District to the best of his ability. [Id.]. The County Commission voted to reelect

Defendant Brown as the Constable of the Second District. [Id. at 4].

According to Defendant Carter County, at the time of Defendant Brown’s reappointment,

the exact circumstances of his felony were unclear. Thereafter, it was determined that in 1959,

Defendant Brown was convicted of breaking and entering and larceny. [Doc. 24-5]. His jail

sentence of five years was suspended as long as he complied with the rules of probation, paid

restitution, obtained a job and remained lawfully employed, and was home each night at 9:00 p.m.

[Id.].

On August 7, 2014, Defendant Brown was elected to a new, four-year term, which began

on September 1, 2014. [Doc. 24-6]. Subsequently, on December 2, 2016, Defendant Brown

performed a traffic stop on Plaintiff while Plaintiff was traveling on U.S. Highway 19E. [Doc. 24-

7]. The actions that occurred during the stop serve as the basis for Plaintiff’s Complaint.

II. POSITIONS OF THE PARTIES

As mentioned above, Plaintiff alleges two counts against Defendant Carter County: (1)

deliberate indifference for reinstating Defendant Brown, and (2) deliberate indifference for failing

to train Defendant Brown. Defendant Carter County moves for summary judgment, arguing that

it is entitled to judgment as a matter of law as to both counts.

For grounds, Defendant Carter County states that its 2010 decision to reinstate Defendant

Brown was not deliberately indifferent to Plaintiff’s rights and that there is no causal link between

the 2010 reinstatement and the alleged constitutional violation in 2016. Further, Defendant Carter

County argues that it has no duty to train a constable because a constable is a state official; that

even if Defendant Brown was a county official, it has no duty to train him because he is responsible

for his own training; and that Defendant Brown has obtained the training that is required by law.

Finally, Defendant Carter County argues that Plaintiff has sued Defendant Brown in his official

capacity, which is redundant because Carter County is already a Defendant in this matter.

Plaintiff filed a Response [Doc. 26], arguing that the Motion should be denied, or in the

alternative, that the case should be stayed until the criminal charges against Defendant Brown are

resolved.1 Plaintiff argues that the County Commission took action to appoint Defendant Brown,

despite his previous resignation. Plaintiff argues that Defendant Carter County exercised decision-

making authority over the constable, regardless of whether the constable itself is a state or county

officer. Plaintiff asserts that Defendant Carter County permitted Defendant Brown to occupy his

office in direct violation of Tennessee Code Annotated § 8-10-102(a)(1)(D). Plaintiff argues that

the reason the Tennessee General Assembly requires that constables have no prior felony

convictions is to prevent criminal behavior, such as that which was experienced by Plaintiff.

Plaintiff asserts that Defendant Carter County intentionally ignored the requirements of Tennessee

Code Annotated § 8-10-102(a)(1)(D), and therefore, was deliberatively indifferent to the rights of

citizens. In the alternative, Plaintiff states that pursuant to Federal Rule of Civil Procedure 56(d),

he needs additional facts and that he cannot conduct discovery because Defendant Brown is

currently facing criminal charges.

Defendant Carter County filed a Reply [Doc. 30], maintaining that there is no causal link

between the 2010 reinstatement of Defendant Brown and Plaintiff’s 2016 allegations of harm.

1 The Court notes that on August 28, 2018, the undersigned held a Scheduling Conference

with the parties. During the Scheduling Conference, Plaintiff stated that his request for a stay is

moot given that the Court set the trial date “far out.”

Defendant Carter County asserts that Plaintiff failed to respond to its argument that there is no

causal link between the reinstatement and the alleged harm, and therefore, Plaintiff’s claim should

be dismissed.

In addition, Defendant Carter County argues that it was not deliberately indifferent in its

decision to reinstate Defendant Brown because Plaintiff cannot establish that Defendant Brown’s

background shows that he was highly likely to inflict the particular harm that later occurred.

Further, Defendant Carter County argues that with respect to Plaintiff’s failure to train allegations,

Defendant Brown had more training than what was legally required. In the alternative, Defendant

Carter County maintains that it had no duty to train him, even if Defendant Brown is deemed a

county official.2

Plaintiff filed a Response [Doc. 32] to Defendant Carter County’s Reply. Plaintiff asserts

that the facts of Defendant Brown’s criminal case are inextricably connected to the underlying

facts of the instant matter. Plaintiff states that he is incapable of obtaining information from

Defendant Brown that would allow him to address the issues cited by Defendant Carter County.

Plaintiff states that pursuant to Tennessee Code Annotated § 8-10-101, the County Commission

has the authority to abolish or retain the office of constable. Plaintiff argues that the Carter County

Commission intentionally violated the statute by reinstating Defendant Brown for the office of

constable because he is a convicted felon. Plaintiff argues that with respect to his allegations about

2 The Court notes that Plaintiff filed a Response [Doc. 32] to Defendant Carter County’s

reply, asserting that the facts of Defendant Brown’s criminal case are inextricably connected to the

underlying facts of the instant matter and that Plaintiff is incapable of obtaining information from

Defendant Brown that would allow him to address the issues cited by Defendant Carter County.

Plaintiff further argued that Defendant Brown’s deposition was necessary with respect to the

failure to train allegations in order to determine the extent of Defendant Brown’s training.

Defendant moved to strike Plaintiff’s response, which the Court granted [Doc. 40] because

Plaintiff failed to respond to Defendant Carter County’s motion to strike and the filing was in

violation of Local Rule 7.1(d).

the failure to train, Defendant Brown’s deposition is necessary in order to determine the extent of

his training. Plaintiff explains that Defendant Brown’s deposition at this time is problematic due

to his pending criminal trial.

III. STANDARD OF REVIEW

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “if the

movant 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). The moving party bears the burden of

establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317,

330 n. 2 (1986); Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and

all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving

party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett

v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).

“Once 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.” Curtis v. Universal

Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To

establish a genuine issue as to the existence of a particular element, the non-moving party must

point to evidence in the record upon which a reasonable finder of fact could find in its favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be

material; that is, it must involve facts that might affect the outcome of the suit under the governing

law. Id.

The Court’s function at the point of summary judgment is limited to determining whether

sufficient evidence has been presented to make the issue of fact a proper question for the finder of

fact. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or determine the truth of

the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft of a

genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.

1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a

need for a trial—whether, in other words, there are any genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”

Anderson, 477 U.S. at 250.

IV. ANALYSIS

As mentioned above, Plaintiff alleges two counts against Defendant Carter County: (1)

deliberate indifference for reinstating Defendant Brown in 2010, and (2) deliberate indifference

for failing to train constables. Defendant Carter County has moved for summary judgment on both

counts. Further, Defendant Carter County requests that the claims against Defendant Brown in his

official capacity be dismissed as they are duplicative of the claims against it.

The Court will address these arguments separately.

A. Defendant Brown’s Reinstatement

Defendant Carter County asserts that Plaintiff’s deliberate indifference for reinstating

Defendant Brown in 2010 should be dismissed as a matter of law. Defendant Carter County argues

that Plaintiff has not established a causal link between Defendant Brown’s reinstatement and the

violation of Plaintiff’s constitutional rights. In addition, Defendant Carter County asserts that the

reinstatement decision did not make it highly likely that Defendant Brown would have inflicted

the particular injuries alleged in the instant lawsuit.

Plaintiff responds that Defendant Carter County appointed Defendant Brown despite that

he had once resigned and in violation of Tennessee Code Annotated § 8-10-102(a)(1)(D). Plaintiff

argues that the County Commission was clearly aware of the disqualifying circumstance and that

the purpose of Tennessee Code Annotated § 8-10-102(a)(1)(D) is to prevent criminal behavior,

such as the behavior that Plaintiff experienced.

It is well established that a plaintiff cannot prevail against a municipality under § 1983

based on the conduct of an employee. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978).

“[R]espondeat superior is not available as a theory of recovery under section 1983.” Monroe v.

McNairy Cty., Tenn., 850 F. Supp. 2d 848, 873 (W.D. Tenn. 2012) (quoting Vereecke v. Huron

Valley Sch. Dist., 609 F.3d 392, 403 (6th Cir. 2010)) (other citations omitted). In order to establish

liability on part of the municipal entity for a violation of § 1983, a plaintiff must show: (1)

deprivation of a constitutional right, and (2) that the municipal entity is responsible for that

deprivation. Doe v. Claiborne Cty. Bd. Of Educ., 103 F.3d 495, 505-06 (6th Cir. 1996) (citing

Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)). The plaintiff must be able to “show

a direct causal link between the custom and the constitutional deprivation; that is, she must show

that the particular injury was incurred because of the execution of that policy.” Doe, 103 F.3d at

508 (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)) (other citations

omitted) (emphasis in Doe). In other words, the constitutional violation “must be closely related

to the ultimate injury.” City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989).

The Court agrees with Defendant Carter County that there is no direct causal link between

the reinstatement of Defendant Brown in 2010 and the constitutional violations that Plaintiff

alleges in this case.3 In his Complaint, Plaintiff alleges that after Defendant Brown resigned, the

3 The Court notes that the minutes from the County Commission’s meeting reflect that the

“[c]ounty [a]ttorney advised the Commissioners to ‘reelect’ Constable Brown as opposed to

‘reinstating’ him to avoid any legalities due to the fact that [the] position had been advertised.”

[Doc. 24-4 at 3-4]. Each Commissioner voted on his/her choice for Constable, and Defendant

Brown received a majority of the votes. [Id. at 4]. The minutes conclude, “Barney Brown was

reelected Constable of the 2nd District.” [Id.]. Thus, while the minutes reflect that Defendant

Brown was “reelected,” the Court will use the term “reinstated” because both parties state that

Defendant Brown was reinstated.

County Commission reappointed him and that the County Commission’s actions resulted in the

Defendant Brown coming into contact with other individuals. Here, Defendant Brown was

reinstated in 2010, and his four-year term in office expired on August 31, 2014. He was then

elected by the voters of Carter County to a new, four-year term beginning on September 1, 2014.

Plaintiff asserts that Defendant Brown’s reinstatement was in violation of Tennessee Code § 8-10-

102(a)(1)(D), which states that in order to qualify for an election for constable, an individual

cannot have a felony conviction. Given that he was elected after the County Commission’s

reinstatement, however, the Court finds Plaintiff’s argument not well taken. In addition, Plaintiff

generally argues that Defendant Carter County’s continued retention of Defendant Brown as

constable and in violation of state law placed persons in contact with Defendant Brown. The Court

agrees with Defendant Carter County that a violation of state law does not necessarily equate to a

violation of constitutional rights. Monroe v. McNairy Cty., Tenn., 520 F. Supp. 2d 917, 920 (W.D.

Tenn. 2007) (“Violations of state law alone are not sufficient to state a § 1983 claim.”).4

Accordingly, based on these facts, the Court does not find that Defendant Carter County’s

reinstatement of Defendant Brown was the moving force behind the constitutional violations.

In any event, even if a direct causal link were established, the Court does not find that the

decision to reinstate Defendant Brown was deliberately indifferent. Defendant Carter County has

compared the facts in this case to lawsuits against municipalities for improper hiring decisions.

4 The Court notes that there are other remedies for such violations of state law as alleged

in the Complaint, such as quo warranto actions or ouster suits. See Tennessee Code Annotated §

8-47-101; State ex rel. Estes v. Hicks, No. E1999-01603-COA-R3CV, 2000 WL 336530, at *1

(Tenn. Ct. App. Mar. 31, 2000); Tenn. Op. Att'y Gen. No. 99-025, 1999 WL 98347 (Feb. 16,

1999); see also Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc) (“A state

ought to follow its law, but to treat a violation of state law as a violation of the Constitution is to

make the federal government the enforcer of state law. State rather than federal courts are the

appropriate institutions to enforce state rules.”).

The Court agrees that this is a helpful comparison of analyzing the facts in this case. For instance,

the Supreme Court explained as follows:

Where a plaintiff presents a § 1983 claim premised upon the

inadequacy of an official's review of a prospective applicant's

record, however, there is a particular danger that a municipality will

be held liable for an injury not directly caused by a deliberate action

attributable to the municipality itself. Every injury suffered at the

hands of a municipal employee can be traced to a hiring decision in

a “but-for” sense: But for the municipality's decision to hire the

employee, the plaintiff would not have suffered the injury. To

prevent municipal liability for a hiring decision from collapsing

into respondeat superior liability, a court must carefully test the link

between the policymaker's inadequate decision and the particular

injury alleged.

Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997). The Supreme Court

continued, “[A] finding of culpability simply cannot depend on the mere probability that any

officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a

finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff.”

Id. at 412. The Court further explained, “The connection between the background of the particular

applicant and the specific constitutional violation alleged must be strong.” Id.

In the present matter, Defendant Brown was convicted of a felony of breaking and entering

and larceny in 1959 at the age of seventeen (17) years old. The Court agrees with Defendant Carter

County that no reasonable person could conclude that Defendant Brown’s conviction (51 years

ago) would have made it highly likely that Defendant Brown would inflict the particular injury

(excessive force and false arrest/seizure) allegedly suffered by Plaintiff. Accordingly, the Court

finds that there are no genuine issues of material fact as to Count Five, and the Court will grant

summary judgment in favor of Defendant Carter County on this claim.

B. Failure to Train

The Complaint alleges that Defendant Carter County failed to “adequately train and/or

supervise Constable[s], including Defendant Brown as to proper policies, procedures, practices,

customs, edicts as to the use of force that subsequently resulted in the use of excessive force and

or the false arrest of Plaintiff Perry” and that such actions “amount to deliberate indifference to the

rights of Plaintiff Perry to be free from excessive force and/or false arrest.” [Doc. 1 at 7]. As

mentioned above, Defendant Carter County argues that it has no duty to train a constable because

a constable is a state official; that even if Defendant Brown was a county official, it has no duty to

train him because he is responsible for his own training; and that, in any event, Defendant Brown

has obtained the training that is required by law.

The Court need not address whether Defendant Carter County has a duty to train

constables, and specifically Defendant Brown, because Plaintiff’s argument in this regard is

undeveloped. A plaintiff may bring a § 1983 claim based on inadequacy of law enforcement

training only if the alleged failure to train equates to deliberate indifference to rights of individuals

with whom the officers come into contact. See Canton v. Harris, 489 U.S. 378, 388 (1989).

Deliberate indifference arises if the state actors should have known, either based on a history of

constitutional violations or because such likelihood was obvious, that constitutional rights

violations were likely absent better training. Ellis ex rel. Pendergrass v. Cleveland Mun. School

Dist., 455 F.3d 690, 700-01 (6th Cir. 2006). Here, Plaintiff has not proffered sufficient evidence

to raise issues of fact as to Defendant Carter County’s failure to train constables in the use of force.

Assuming there was a duty to do so under these facts,5 Plaintiff has not produced evidence of

5 In Boswell v. Powell, the Tennessee Supreme Court held, “We think, however, that a

sheriff and constable while elected by the voters of the particular county, are both essentially state

officers. The chief duties of both are to enforce the laws of the state. Both are constitutional

officers.” 43 S.W.2d 495, 495 (Tenn. 1931) (citing Tenn. Const. art. 7, § 1; art. 6, § 15). In 1964,

Defendant Carter County’s failure to act in response to repeated complaints. See Burgess v.

Fischer, 735 F.3d 462 (6th Cir. 2013) (citing Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir.

2010)). Moreover, while it is arguably “inherently foreseeable” that failure to properly train

constables in the appropriate use of force could result in excessive force violations, Plaintiff neither

produces evidence identifying the inadequacy of the use of force training actually provided nor

attempts to show a link between his allegations of failure to train and the conduct at issue in this

case.

Here, Defendant Carter County submitted the Declaration of Defendant Brown [Doc. 24-

11], attesting that the training certificates submitted therewith accurately reflect the training he

received from 2010 to the date of the incident on December 2, 2016. [Id. at ¶ 4]. Specifically, the

certificates provide as follows:

the Supreme Court reiterated that a constable is a constitutional officer. Glasgow v. Fox, 383

S.W.2d 9, 11 (Tenn. 1964) (citing Boswell, 43 S.W.2d at 495) (other citations omitted).

Specifically, in Glasgow, the Tennessee Supreme Court relied on Article 6, § 15 of the Tennessee

Constitution, which provided, “There shall be two Justices of the Peace and one Constable elected

in each district by the qualified voters therein, except districts including County towns, which shall

elect three Justices and two Constables.” Id. at 10 (quoting Art. 6, § 15) (emphasis omitted). The

Court also reasoned that statutes prescribe constables’ qualifications, terms of office, duties, and

compensation, and constables take an oath to serve the state. Id. (emphasis omitted). Further, the

Court reasoned, “A constable performs no part of any function of county or city government.” Id.

at 13.

In 1978, however, the Tennessee Constitution was amended, and as a result of the

amendments, Article 6, § 15 was repealed. Tenn. Op. Att'y Gen. No. 91-70, 1991 WL 535152, at

*2 (Aug. 1, 1991). According to the Tennessee Attorney General, constables are “no longer

constitutional officers” and that “[t]he members of the Limited Constitutional Convention of 1977

viewed constables as county officers.” Id. The Tennessee Attorney General opined that counties

could be held liable under 42 U.S.C. § 1983 for constables’ actions. Id. at *1. Given that Article

6, § 15 was repealed, which Glasgow relied on, in part, it is not clear whether counties have a duty

to train constables. Further, state law provides, “Each constable elected under Tennessee Code

Annotated § 8-10-101 shall complete forty (40) hours of in-service course time for each twelve-

month period during which the constable holds office, beginning on the date the constable is sworn

into office.” Tenn. Code Ann. § 8-10-202.

1. Certification of Completion for First Responders Suspicious

Substance Training dated August 10, 2010;

2. Certificate from the Unicoi County Sherriff’s Department for

completing a forty-hour P.O.S.T. (Peace Officer Standards &

Training Commission) approved training course titled “General in

Service Training,” which included courses on firearms, child abuse,

and E.V.O.C., (Emergency Vehicle Operations Course) dated May

19, 2011;

3. Certificate of Training from the Carter County Constables

Association, stating that Defendant Brown completed forty (40)

hours of training titled, “General Law Enforcement Procedures,”

which included classes on E.V.O.C., child sexual abuse training, and

firearms, dated August 2012;

4. Certificate of Training from the Carter County Constables

Association, stating that Defendant Brown completed forty (40)

hours of training titled, “General Law Enforcement Procedures,”

which included classes on E.V.O.C., child sexual abuse training,

mental illness, domestic violence, and firearms, dated June 2013;

5. Certificate of Training from the Carter County Constables

Association, stating that Defendant Brown completed forty (40)

hours of training titled, “General Law Enforcement Procedures,”

which included classes on E.V.O.C., child sexual abuse training,

mental illness, domestic violence, and firearms. The class included

sixteen (16) other topics, and the certificate is dated September

2014;

6. Certificate of Completion from the Tennessee Emergency

Management Agency for successfully completing a forty-hour

course on hazardous materials awareness, dated February 23, 2015;

7. Certificate of Training from the Carter County Constables

Association, stating that Defendant Brown completed a forty-hour,

in-service class, which included courses on E.V.O.C., child sexual

abuse training, mental illness, domestic violence, firearms, and

thirteen (13) other topics, dated August 2015; and

8. Certificate of Training from the Carter County Constables

Association, stating that Defendant Brown completed a forty-hour

in-service training class, which included courses on E.V.O.C.,

firearms, child sexual abuse, mental illness, active shooter, buildings

search, interview and interrogation, along with other special topics.

The training was from August 8 to August 17, 2016.

[Doc. 24-11 at 2-9].

In response to Defendant Carter County’s properly supported Motion for Summary

Judgment, Plaintiff has relied merely on allegations and arguments, which are insufficient.

Plaintiff has presented no facts, and has not even conducted discovery designed to uncover facts

supporting his allegations. See [Doc. 27 at ¶¶ 7-8] (requesting that the Court deny Defendant’s

motion, or in the alternative, defer considering the motion to allow the parties to engage in

discovery after Defendant Brown’s criminal proceedings are resolved).6 Plaintiff instead relies on

speculative, unsupported allegations concerning lack of training, which does not amount to a

genuine issue of material fact. Harvey v. Campbell Cty., Tenn., 453 F. App'x 557, 565 (6th Cir.

2011) (“[Plaintiffs] rely instead on speculative, unsupported allegations to create metaphysical

doubt, which clearly does not amount to a genuine issue of material fact.”) (Citing Matsushita

6 Federal Rule of Civil Procedure 56(d) is the proper procedure to be followed when a party

concludes that additional discovery is necessary to respond to a motion for summary judgment.

Under Rule 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons,

it cannot present facts essential to justify its opposition, the court may: (1) defer considering the

motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)

issue any other appropriate order.” Fed. R. Civ. P. 56(d). Courts have explained that “Rule 56 also

requires that ‘a party making such a filing indicate to the district court its need for discovery, what

material facts it hopes to uncover, and why it has not previously discovered the information.’”

Williams v. Goodyear Tire & Rubber Co., No. 11-2035-STA, 2012 WL 1228860, at *2 (W.D.

Tenn. Apr. 11, 2012) (quoting Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000)).

“The Sixth Circuit has held that it is not an abuse of discretion for the district court to deny the

Rule 56 request for discovery when the party “makes only general and conclusory statements [in

its affidavit] regarding the need for more discovery and does not show how an extension of time

would have allowed information related to the truth or falsity of the [claim] to be discovered.” Id.

(quoting Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir.1999)) (brackets in Williams).

Not only did Plaintiff fail to file an affidavit or declaration, he did not explain his need for

such discovery or what material facts he hopes to uncover. Further, the Court notes that during

the Scheduling Conference in this matter, Defendant Brown’s attorney reported to the Court that

Defendant Brown’s criminal trial was scheduled for February 5, 2019. The Court is not sure if the

parties have proceeded with Defendant Brown’s deposition, but in any event, no party has filed a

supplemental brief relating to such discovery and the results thereof.

Elec. Indus. Co., 475 U.S. at 586). Given that the alleged failure to train is asserted in only the

most conclusory and legally insufficient manner, this claim must be DISMISSED.

C. Official Capacity Claim

Finally, Defendant Carter County argues that Plaintiff has sued Defendant Brown in his

official capacity, which is redundant because Carter County is already a Defendant in this matter.

As an initial matter, the Court notes that this position first appears inconsistent with

Defendant Carter County’s claim that Defendant Brown is a state official for whom it had no duty

to train. See [Doc. 25 at 14-21]. However, Defendant Carter County ultimately maintains that

whether Defendant Brown is considered a state official or a county official, it has no duty to train

constables. [Id. at 24]. For purposes of the official capacity claim, Defendant Carter County

asserts that “[t]o the extent that [Plaintiff] is suing [Defendant] Brown in his official capacity as a

county official of Carter County, then that claim should be dismissed as redundant . . .” [Id.].7

Section 1983 claims may be dismissed against government entity officials as redundant

when the plaintiff also sues the government entity. Foster v. Michigan, 573 F. App’x 377, 389–

90 (6th Cir. 2014) (“Where the entity is named as a defendant, an official-capacity claim is

redundant.”). Further, Plaintiff did not respond to Defendant Carter County’s argument.

Accordingly, the Court DISMISSES the claims against Defendant Brown in his official capacity.

7 In setting forth the basis for the official capacity claim, Plaintiff alleges that “Defendant

Brown is an elected official and is a policy maker for the Defendant Carter County, Tennessee.”

[Doc. 1 at ¶ 3].

V. CONCLUSION

Accordingly, for the reasons explained above, Defendant Carter County’s Motion for

Summary Judgment [Doc. 24] is GRANTED.

IT IS SO ORDERED.

ENTER:

. ) □

Dibra C0. bli

Debra C. Poplin

United States Magistrate Judge

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