# Boucher v. Tennessee

> District Court, E.D. Tennessee · May 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10433832

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** May 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10433832

## How later opinions describe it (automated extraction)

- explaining that the imprecise nature of probable cause means “officers will often find it difficult to know how the general standard of probable cause applies in ‘the precise situation encountered.’”
- explaining that Eight Amendment claims require application of the deliberate indifference standard, in which a plaintiff must offer “proof that a municipal actor disregarded a known or obvious consequence of his action”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE

CLAYTON BOUCHER, )
)
Plaintiff, )
) No. 2:19-cv-45
v. )
) Judge Collier
JOHNSON CITY, TENNESSEE, SHANE )
MALONE, in his individual and official ) Magistrate Judge Steger
capacities, and PAUL MILLER, in his )
individual capacity, )
)
Defendants. )

M E M O R A N D U M
Before the Court is a motion for summary judgment by Defendant Shane Malone in his
individual capacity (“Officer Malone”). (Doc. 32.) Plaintiff has responded in opposition (Doc.
35) and the time to file a reply has expired. See E.D. Tenn. L.R. 7.1(a). For the reasons outlined
below, the Court will GRANT Officer Malone’s motion for summary judgment.
I. BACKGROUND
On March 28, 2018, Officer Malone, a detective with the Johnson City Police Department
(“JCPD”), was assigned to investigate a report of harassment and/or stalking of an employee at the
Food City store on South Roan Street. (Doc. 33-1 [Malone Decl.] at 4.)
JCPD was first informed of the alleged harassment on March 26, 2018, when Chasity
Thompson reported that her seventeen-year-old daughter, Brooklyn Burkett, was being harassed
by a white male while Ms. Burkett was working at Food City.1 (Id. at 1–2.) Ms. Burkett stated

1 Courts generally cannot consider hearsay statements in deciding motions for summary
judgment. See Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994). However, Malone has
moved for summary judgment on the basis of qualified immunity, which requires the Court to
consider the facts known to Malone at the time of Plaintiff’s arrest. Thus, statements from
that the man appeared to be in his early thirties, was about five feet and five inches tall, and
weighed around one hundred eighty pounds. (Id. at 2.) She also stated he carried a pink and purple
backpack and seemed to be homeless. (Id.) Ms. Thompson explained that she needed a police
report so the Food City store managers could take action to protect her daughter. (Id.) The police
officer writing the report told Ms. Burkett to call 911 if the man returned to the store. (Id.)

Two days later, on March 28, 2018, JCPD officers were called to Food City because the
alleged harasser had returned. (Id.) The three responding officers spoke with Ms. Burkett, Ms.
Thompson, the store managers, and the suspect. (Id. at 2–3.)
Ms. Burkett provided a written statement to police describing the alleged harassment she
had experienced. (Id. at 18.) She explained that in November 2017, she was in the Bakery Deli
section of Food City when the suspect started a conversation with her. (Id.) The suspect then left
the Bakery Deli, but returned to tell Ms. Burkett she was pretty, at which point Ms. Burkett walked
away. (Id.) Later that night, the store received a call from a man claiming to be Ms. Burkett’s
friend. (Id.) The man explained that he and Ms. Burkett were supposed to hang out that night, but

he had lost her phone number. (Id.) The call was transferred to Ms. Burkett and the caller told her
he was “the man at the deli.” (Id.) The man then asked Ms. Burkett for her address so they could
hang out, which prompted Ms. Burkett to hang up the phone. (Id.)
Ms. Burkett explained that she did not see the suspect for about a month, but then he began
visiting the store again and would stay for a couple of hours at a time. (Id. at 19.) Ms. Burkett

witnesses and incident reports are used solely to aid the Court in determining whether qualified
immunity applies, and are not used for the truth of the matter asserted therein. See Shipp v. United
States, 212 F. App’x 393, 401–02 (6th Cir. 2006) (explaining that statements offered to show an
officer had probable cause for an investigation were not hearsay evidence); Jerome v. Crum, 695
F. App’x 935, 936 n.1 (6th Cir. 2017) (explaining that the use of statements to determine whether
officer had probable cause was permissible at the summary judgment stage because the statements
were not offered for their truth).
stated that during this time the suspect tried to speak to her twice. (Id.) In early March 2018, while
Ms. Burkett was ringing up a customer’s purchases, the suspect asked her if she was the only
employee up front. (Id.) The store’s front-end manager instructed Ms. Burkett to go to the back
of the store while the manager rang up the suspect’s purchases. (Id.) Then, on March 25, 2018,
the suspect tried to get into Ms. Burkett’s check-out line, but her front-end manager again

intervened by opening a new check-out line. (Id.)
Mr. Presley, the assistant store manager, also provided a written statement to police on
March 28, 2018. (Id. at 20.) Mr. Presley explained that on March 25, 2018, he was informed that
the man who had been bothering Ms. Burkett was back at the store. (Id.) Mr. Presley observed
the suspect sitting in the Bakery Deli area and later encountered him in an aisle. (Id.) Mr. Presley
then followed the suspect to the front of the store as he walked towards Ms. Burkett’s check-out
line before the front-end manager intervened and opened a new check-out line. (Id.)
After the March 28, 2018, incident, police identified the suspect as Plaintiff, Clayton
Boucher. (Id. at 13.)

Once he was assigned to the matter, Officer Malone reviewed Plaintiff’s criminal history,
the incident reports, and the witness statements. (Id. at 4.) Officer Malone learned that Plaintiff
was a registered sex offender, had been charged with seven counts of aggravated statutory rape,
was in jail in November 2017, and had pleaded guilty to one count of aggravated statutory rape in
December 2017, at which point he was released from jail. (Id.) Officer Malone then had Plaintiff
brought in for questioning. (Id.)
Plaintiff told Officer Malone he was homeless and had been going to the Food City store
on South Roan Street since December 2017. (Id. at 26, 28 [Pl. Interview Tr. 6:6–7, 8:19–23].) He
explained he went to Food City six days a week, usually visiting after work, and would stay there
for up to four hours at a time. (Id. at 26, 28 [Pl. Interview Tr. 6:14–15, 8:22–24].) Plaintiff stated
that he had to walk approximately eight miles to get to the store. (Id. at 27, 28 [Pl. Interview Tr.
7:22–25, 8:6–12].) Plaintiff denied any wrongdoing, asserted Ms. Burkett must have confused
him for someone else, and denied even knowing who Ms. Burkett was. (Id. at 25, 30 [Pl. Interview
Tr. 5:13–24, 10:21–24].) Ultimately, Officer Malone arrested Plaintiff for aggravated stalking.

(Id. [Malone Decl.] at 5.)
On March 26, 2019, Plaintiff filed suit against Officer Malone, among others, alleging
claims of unlawful seizure and false imprisonment pursuant to 42 U.S.C. § 1983, a claim of
deliberate indifference, and a state law claim of reckless infliction of emotional distress. (Doc. 1.)
On January 31, 2020, Officer Malone filed a motion for summary judgment in his
individual capacity. (Doc. 32.) Officer Malone contends that, based on the totality of the
circumstances, he had probable cause to arrest Plaintiff, or at the least, a reasonable officer would
have believed probable cause existed for an arrest. (Doc. 33.) As a result, Officer Malone asserts
he is entitled to qualified immunity and the claims against him in his individual capacity should

be dismissed. (Id.)
In response, Plaintiff contends Officer Malone is not entitled to qualified immunity because
there was no probable cause to arrest him and a reasonable officer would have known probable
cause was lacking. (Doc. 37.) Specifically, Plaintiff argues Officer Malone should have
immediately eliminated him as a suspect because he was incarcerated in November 2017, when
the stalking reportedly began. (Id.) By arresting him in spite of this exculpatory information,
Plaintiff asserts Officer Malone violated his constitutional rights and the claims against Officer
Malone should not be dismissed. (Id.)
II. STANDARD OF REVIEW
Summary judgment is proper when “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 showing no genuine issue of material fact remains.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th

Cir. 2003).
If the moving party meets its initial burden, “the non-moving party must go beyond the
pleadings and come forward with specific facts to demonstrate that there is a genuine issue for
trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). A genuine issue for trial
exists if there is “evidence on which the jury could reasonably find for the plaintiff.” Rodgers v.
Banks, 344 F.3d 587, 595 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986)) (internal quotations omitted). In addition, should the non-moving party fail to provide
evidence to support an essential element of its case, the movant can meet its burden by pointing
out such failure to the court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

At summary judgment, the court’s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonably find for the non-movant. Anderson, 477
U.S. at 248–49. The court should view the evidence, including all reasonable inferences, in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907
(6th Cir. 2001). If the court concludes, based on the record, that a fair-minded jury could not return
a verdict in favor of the non-movant, the court should grant summary judgment. Anderson, 477
U.S. at 251–52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
III. DISCUSSION
Officer Malone has moved for summary judgment on the basis of qualified immunity.
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009).
An officer is entitled to qualified immunity “if (1) the officer[] did not violate any
constitutional guarantees or (2) the guarantee, even if violated, was not ‘clearly established’ at the
time of the alleged misconduct.” Arrington-Bey v. City of Bedford Heights, Ohio, 858 F.3d 988,
992 (6th Cir. 2017). In evaluating whether an officer is entitled to qualified immunity, courts have
discretion to decide “which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at
236.
The Court will first consider Officer Malone’s assertion of qualified immunity as to

Plaintiff’s § 1983 claims and will then turn to Plaintiff’s claims of deliberate indifference and
reckless infliction of emotional distress.
A. 42 U.S.C. § 1983 Claims
Plaintiff claims Officer Malone unlawfully seized and imprisoned him in violation of the
Fourth Amendment.2 (Doc. 1 at 4-5 [Counts I–II].) In response, Officer Malone asserts he is

2 Because both of Plaintiff’s § 1983 claims turn on whether there was probable cause for
the arrest or whether a reasonable officer would have concluded there was probable cause, the
Court will consider the claims together. See Reid v. West, No. 2:14-CV-334, 2015 WL 268980, at
*4 n.2 (E.D. Tenn. Jan. 21, 2015) (“False arrest and false imprisonment claims are functionally
the same and the Court applies the same analysis to both claims.”); Gumble v. Waterford Twp.,
171 F. App’x 502, 507 (6th Cir. 2006) (considering false arrest and false imprisonment claims
together).
entitled to qualified immunity on Plaintiff’s § 1983 claims because he had probable cause to arrest
Plaintiff, or, in the alternative, a reasonable officer would have believed probable cause existed to
arrest Plaintiff.
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause. . . .” U.S. Const. amend. IV.
“Because arrests are ‘seizures’ of ‘persons,’ they must be reasonable under the circumstances.”
District of Columbia v. Wesby, 138 S. Ct. 577, 585–86 (2018) (citing Payton v. New York, 445
U.S. 573, 585 (1980)). A warrantless arrest is reasonable under the Fourth Amendment when it is
“in a public place for a felony, or a misdemeanor committed in the officer’s presence . . . if the
arrest is supported by probable cause.” Maryland v. Pringle, 540 U.S. 366, 370 (2003).
“[P]robable cause is a fluid concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
Illinois v. Gates, 462 U.S. 213, 232 (1983). Probable cause requires a “reasonable grounds for

belief, supported by less than prima facie proof but more than mere suspicion.” United States v.
McClain, 444 F.3d 556, 562 (6th Cir. 2005) (internal quotations and citations omitted); see also
Gates, 462 U.S. at 243 n.13 (explaining that probable cause “requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.”).
In evaluating whether an officer had probable cause for an arrest, the Court must look to
the totality of the circumstances and determine whether, at the time of the arrest, “the facts and
circumstances within [the officer’s] knowledge and of which [the officer] had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the [plaintiff]
had committed or was committing an offense.” Beck v. State of Ohio, 379 U.S. 89, 91 (1964). An
officer’s “subjective reason for making the arrest need not be the criminal offense as to which the
known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
Here, Officer Malone contends there was probable cause to arrest Plaintiff for harassment,
stalking, or aggravated stalking under Tennessee law. (Doc. 33.) However, only the latter two
charges could have established probable cause for a warrantless arrest under these circumstances.

Officer Malone could not have lawfully arrested Plaintiff for harassment without a warrant because
no officers were present at the Food City store when the alleged conduct took place and the alleged
conduct does not trigger the felony provision of the harassment statute. 3 See Pringle, 540 U.S. at
370. In contrast, the felony provision of the stalking statute did apply in this case,4 and aggravated
stalking is always a felony offense. See Tenn. Code Ann. § 39-17-315(b), (c)(2). Thus, if Officer
Malone had probable cause to arrest Plaintiff for stalking or aggravated stalking, then he is entitled
to qualified immunity. See Arrington-Bey, 858 F.3d at 992.
Stalking is defined as “a willful course of conduct involving repeated or continuing
harassment of another individual that would cause a reasonable person to feel terrorized,

frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to

3 Harassment is a Class A misdemeanor, or lower, unless the harassment is committed by
an individual who is incarcerated, on pretrial diversion, probation, community correction, or
parole, and the person being harassed was the victim of the individual’s prior crime. See Tenn.
Code Ann. § 39-17-308. While it appears Plaintiff was on probation when he allegedly harassed
Ms. Burkett, there is no evidence that the crime for which he was on probation involved Ms.
Burkett. (See Doc. 33-1 at 4.)

4 Stalking is a Class A misdemeanor unless “the defendant, at the time of the offense, was
required to or was registered with the Tennessee bureau of investigation as a sexual offender,
violent sexual offender or violent juvenile sexual offender, as defined in § 40-39-202[,]” at which
point stalking is a Class E felony. Tenn. Code Ann. § 39-17-315(b). Plaintiff was a registered sex
offender at the time of the arrest, and thus the felony provision of the statute applies. (Doc. 33-1
at 4.)
feel terrorized, frightened, intimidated, threatened, harassed, or molested[.]” Tenn. Code Ann.
§ 39-17-315(a)(4). The statute defines “harassment” as:
conduct directed toward a victim that includes, but is not limited to, repeated or
continuing unconsented contact that would cause a reasonable person to suffer
emotional distress, and that actually causes the victim to suffer emotional distress.
Harassment does not include constitutionally protected activity or conduct that
serves a legitimate purpose[.]

Tenn. Code Ann. § 39-17-315(a)(3).
Unconsented contact includes:
any contact with another person that is initiated or continued without that person’s
consent, or in disregard of that person’s expressed desire that the contact be avoided
or discontinued. Unconsented contact includes, but is not limited to, any of the
following:

(A) Following or appearing within the sight of that person;
(B) Approaching or confronting that person in a public place or on private
property;
(C) Appearing at that person’s workplace or residence;
(D) Entering onto or remaining on property owned, leased, or occupied by
that person;
(E) Contacting that person by telephone;
(F) Sending mail or electronic communications to that person; or
(G) Placing an object on, or delivering an object to, property owned, leased,
or occupied by that person[.]

Tenn. Code Ann. § 39-17-315(a)(5).
Finally, emotional distress is defined as “significant mental suffering or distress that may,
but does not necessarily, require medical or other professional treatment or counseling.” Tenn.
Code Ann. § 39-17-315(a)(2).
Aggravated stalking occurs when a person commits the offense of stalking and:
(A) In the course and furtherance of stalking, displays a deadly weapon;
(B) The victim of the offense was less than eighteen (18) years of age at
any time during the person’s course of conduct, and the person is five
(5) or more years older than the victim;
(C) Has previously been convicted of stalking within seven (7) years of the
instant offense;
(D) Makes a credible threat to the victim, the victim’s child, sibling, spouse,
parent or dependents with the intent to place any such person in
reasonable fear of death or bodily injury; or
(E) At the time of the offense, was prohibited from making contact with
the victim under a restraining order or injunction for protection, an
order of protection, or any other court-imposed prohibition of conduct
toward the victim or the victim’s property, and the person knowingly
violates the injunction, order or court-imposed prohibition.

Tenn. Code Ann. § 39-17-315(c)(1).
Officer Malone relies mainly on statements from eyewitnesses in support of his assertion
that probable cause existed for the arrest. Eyewitness statements “are generally entitled to a
presumption of reliability and veracity” because they are based on first-hand observations. Ahlers
v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999). Thus, an in-person identification alone will provide
sufficiently reliable evidence to support probable cause “unless, at the time of the arrest, there is
an apparent reason for the officer to believe that the eyewitness was lying, did not accurately
describe what he had seen, or was in some fashion mistaken regarding his recollection of the
confrontation.” Id. (internal quotations and citations omitted).
As discussed above, Ms. Burkett provided detailed allegations regarding Plaintiff’s
presence at the store and his repeated attempts to talk with her. She also provided a clear
description of the suspect’s appearance, which matched Plaintiff’s appearance, and identified
Plaintiff as the alleged harasser. The assistant manager, Mr. Presley, described his observations
of Plaintiff at the store, which supported Ms. Burkett’s statements. Nothing from the witnesses’
statements suggests they were lying, unable to accurately describe Plaintiff, or mistaken in
identifying Plaintiff, and Plaintiff has not offered any reasons to discredit their statements.
In addition, Plaintiff admitted to Officer Malone that he had been going to the Food City
on South Roan Street six days a week since December 2017, and that he would stay at the store
for up to four hours at a time. (Doc. 33-1 at 26, 28 [Pl. Interview Tr. 6:6–7, 8:19–23].) This
admission confirms Ms. Burkett’s statement regarding his presence at the store and strengthens
her ability to identify Plaintiff as the alleged harasser. Because of the lack of any reason to discredit
the witnesses’ statements, Officer Malone was entitled to rely on them to establish probable cause.
Based on these statements, Officer Malone had reason to believe Plaintiff was repeatedly
showing up at the Food City store and had attempted to talk to Ms. Burkett on multiple occasions,

including once asking her for her home address. As a result, Officer Malone had clear evidence
of continuing unconsented contact. See Tenn. Code Ann. § 39-17-315(a)(3), (a)(5)(C). In Ms.
Burkett’s first report to police, she stated that Plaintiff was harassing her and making her feel
uncomfortable. (Doc. 33-1 at 9.) This statement, combined with Ms. Burkett’s willingness to
involve the police on two occasions, provided evidence that Plaintiff’s actions caused Ms. Burkett
significant distress and that she subjectively felt “terrorized, frightened, intimidated, threatened,
harassed, or molested.” See Tenn. Code Ann. § 39-17-315(a)(4). In addition, Officer Malone
knew Plaintiff was a registered sex offender, triggering the felony provision of the stalking statute,
and that Ms. Burkett was seventeen years old and twelve years younger than Plaintiff, satisfying

the heightened requirements for aggravated stalking. See Tenn. Code Ann. § 39-17-315(b),
(c)(1)(B). Finally, a reasonable person would have felt “terrorized, frightened, intimidated,
threatened, harassed, or molested,” and likely suffered emotional distress, if a stranger began
showing up at his or her place of employment six days a week for over three months after
attempting to obtain his or her home address. Even viewing the evidence in the light most
favorable to Plaintiff, the totality of the circumstances provided sufficient basis for Officer Malone
to reasonably believe Plaintiff had engaged in stalking or aggravated stalking.
Plaintiff does not dispute the witnesses’ statements or attempt to undermine Officer
Malone’s reliance on them. Instead, Plaintiff argues there was no probable cause to arrest him
because he was incarcerated in November 2017, when Ms. Burkett said the harassment began.
While officers may not “turn a blind eye” to exculpatory evidence, Wilson v. Morgan, 477
F.3d 326, 336 (6th Cir. 2007), Plaintiff’s incarceration in November 2017 does not negate the

probable cause to arrest him in March 2018. Although Ms. Burkett stated the first incident
occurred in November 2017, she also described Plaintiff’s repeated visits to the store starting in
December 2017 and attempts to talk to her in March 2018. In addition, Ms. Burkett provided a
detailed description of her harasser, which matched Plaintiff’s appearance, and identified Plaintiff
as her alleged harasser to police the day before Plaintiff’s arrest. Further, Plaintiff’s admission
that he visited the store six times a week from December 2017 until March 2018 bolstered Ms.
Burkett’s identification of Plaintiff as the alleged harasser. Even viewing the evidence in the light
most favorable to Plaintiff, it is highly unlikely that Plaintiff was misidentified, and instead the
evidence suggests Ms. Burkett misremembered when the alleged harassment began.

However, even if there were merit to Plaintiff’s claim of mistaken identity due to his
November 2017 incarceration, “an officer is ‘under no obligation to give any credence to a
suspect’s story nor should a plausible explanation in any sense require the officer to forego arrest
pending further investigation,’ if the initially discovered facts provide probable cause.” Meakens
v. Benz, 515 F. App’x 414, 418 (6th Cir. 2013) (quoting Criss v. City of Kent, 867 F.2d 259, 263
(6th Cir. 1988)). Because Officer Malone had probable cause to arrest Plaintiff based on the
witnesses’ statements alone, see Ahlers, 188 F.3d at 370, he did not have to refrain from arresting
Plaintiff when Plaintiff claimed to be misidentified.
Based on the witnesses’ statements and identifications, combined with Plaintiff’s
admissions, the undisputed evidence shows Officer Malone had probable cause to arrest Plaintiff
for either stalking or aggravated stalking under Tennessee law. Accordingly, Officer Malone has
established he did not violate Plaintiff’s Fourth Amendment right to be free from unlawful
seizures, and he is entitled to qualified immunity.

Further, even if Officer Malone lacked probable cause to arrest Plaintiff, there is no
evidence to suggest the right violated was “clearly established” at the time of the arrest.
A right is “clearly established” where there is existing precedent that places “the statutory
or constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal
quotations and citations omitted); see also Ohio Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171,
1177 (6th Cir. 1988) (“[T]o find a clearly established constitutional right, a district court must find
binding precedent by the Supreme Court, its court of appeals, or itself.”). Courts must define the
right with specificity, particularly when rights implicate the Fourth Amendment and probable
cause. Wesby, 138 S. Ct. at 590 (explaining that the imprecise nature of probable cause means

“officers will often find it difficult to know how the general standard of probable cause applies in
‘the precise situation encountered.’”) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017)).
Thus, in the context of a warrantless arrest, a right is “clearly established” when it is so well defined
as to “obviously resolve whether the circumstances with which [the particular officer] was
confronted . . . constitute[d] probable cause.” Id. (internal quotations and citations omitted).
Here, there is no evidence to suggest a reasonable officer confronting the same situation
would have believed there was no probable cause to arrest Plaintiff for stalking or aggravated
stalking. See Wesby, 138 S. Ct. at 590. In fact, established case law suggests the opposite. Ms.
Burkett described a pattern of repeated harassment, provided a detailed description of the suspect’s
appearance that matched Plaintiff, and identified Plaintiff as her harasser. Ms. Burkett’s
identification was bolstered by Plaintiff’s admission that he had been going to the Food City store
six days a week since December 2017. The Sixth Circuit Court of Appeals has explicitly
recognized that an eyewitness identification alone can establish probable cause for an arrest. See
Ahlers, 188 F.3d at 370. Thus, the totality of the circumstances demonstrates a reasonable officer

would have believed there was probable cause to arrest Plaintiff. See Wesby, 138 S. Ct. at 591.
As a result, Officer Malone did not violate “clearly established” law when he arrested Plaintiff.
Even construing the evidence in the light most favorable to Plaintiff, Officer Malone has
demonstrated he is entitled to qualified immunity and Plaintiff has not offered any evidence to
demonstrate a reasonable jury would disagree. Accordingly, Plaintiff’s § 1983 claims against
Officer Malone will be dismissed on the basis of qualified immunity.
B. Reckless Infliction of Emotional Distress
Plaintiff has also asserted a state law claim against Officer Malone for reckless infliction
of emotional distress. (Doc. 1 at 5–6 [Count III].) Plaintiff contends Officer Malone was reckless

in his actions and could have avoided the false arrest and imprisonment by checking available
records and learning that Plaintiff was incarcerated at the time the stalking purportedly began. (Id.)
Officer Malone asserts he is entitled to qualified immunity on this claim for the same reasons he
is entitled to qualified immunity on Plaintiff’s § 1983 claims—even with the knowledge of the
November 2017 incarceration, Officer Malone still had probable cause to arrest Plaintiff, or in the
alternative, a reasonable officer would have believed probable cause existed for an arrest. (Doc.
33.)
Plaintiff failed to address Officer Malone’s arguments on the claim for reckless infliction
of emotional distress in his response to the motion for summary judgment. (See Doc. 37.) A
“[f]ailure to respond to a motion may be deemed a waiver of any opposition to the relief sought.”
E.D. Tenn. L.R. 7.2. Indeed, a failure to address a claim in a response to summary judgment can
be considered an abandonment of the claim. See, e.g., Brown v. VHS of Mich., Inc., 545 F. App’x
368, 372 (6th Cir. 2013) (“This Court’s jurisprudence on abandonment of claims is clear: a plaintiff
is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion

for summary judgment.”) (collecting cases).
Even if Plaintiff had not abandoned his claim for reckless infliction of emotional distress,
the Court finds Plaintiff has failed to state a plausible claim for reckless infliction of emotional
distress.
Under Tennessee law, reckless infliction of emotional distress is not a separate and distinct
tort from intentional infliction of emotional distress. See Rogers v. Louisville Land Co., 367
S.W.3d 196, 205 n.6 (Tenn. 2012). To prove an intentional infliction of emotional distress claim,
a plaintiff must show that “the defendant’s conduct was (1) intentional or reckless, (2) so
outrageous that it is not tolerated by civilized society, and (3) resulted in serious mental injury to

the plaintiff.” See Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004); Leach v. Taylor,
124 S.W.3d 87, 92 (Tenn. 2004). The burden to show the conduct was outrageous “is an exacting
standard requiring the plaintiff to show that the defendant’s conduct is ‘so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as
atrocious, and utterly intolerable in a civilized community.’” Miller v. Willbanks, 8 S.W.3d 607,
614 (Tenn. 1999) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
Here, Plaintiff contends Officer Malone acted recklessly by arresting him without checking
any records to determine if Plaintiff was able to engage in the alleged harassment in November
2017. However, in his declaration, Officer Malone states that he did review Plaintiff’s criminal
record and was aware of his incarceration in November 2017. (Doc. 33-1 [Malone Decl.] at 4.)
Further, as the Court discussed above, Plaintiff’s incarceration in November 2017 did not preclude
Officer Malone from arresting Plaintiff in March 2018 based on eyewitness statements. Even
construing the evidence in the light most favorable to Plaintiff, there is no evidence Officer Malone
engaged in any reckless conduct nor that Officer Malone’s arrest of Plaintiff constituted such

extreme and outrageous conduct “as to go beyond all possible bounds of decency and to be
regarded as atrocious, and utterly intolerable in a civilized community.” See Miller, 8 S.W.3d at
614 (internal quotations and citations omitted). Accordingly, Plaintiff’s claim for reckless
infliction of emotional distress will be dismissed.
C. Deliberate Indifference
Finally, Plaintiff has asserted a claim against Officer Malone for deliberate indifference.
(Doc. 1 at 6 [Count IV].) Officer Malone asserts there is no free-standing deliberate indifference
claim without reference to a constitutional right, and he argues the only applicable constitutional
right, the right to be free from unreasonable seizures, does not provide a basis for the claim because

he had probable cause to arrest Plaintiff. (Doc. 33.)
In his response to the motion for summary judgment, Plaintiff did not address Officer
Malone’s contention that his deliberate indifference claim fails as a matter of law. (Doc. 37.) As
discussed above, a “[f]ailure to respond to a motion may be deemed a waiver of any opposition to
the relief sought[,]” and can be considered an abandonment of the claim if the failure to respond
occurs at the summary judgment stage. See E.D. Tenn. L.R. 7.2; Brown, 545 F. App’x at 372.
Further, the Court agrees with Officer Malone that there is no free-standing deliberate
indifference claim. Rather, deliberate indifference is a higher standard of fault typically applied
in claims against state actors under the Eight and Fourteenth Amendments. See Shadrick v.
Hopkins Cty., Ky., 805 F.3d 724, 737 (6th Cir. 2015) (explaining that Eight Amendment claims
require application of the deliberate indifference standard, in which a plaintiff must offer “proof
that a municipal actor disregarded a known or obvious consequence of his action”) (internal
quotations omitted); Napier v. Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir. 2001) (applying the
deliberate indifference standard to Fourteenth Amendment claim).

Accordingly, Plaintiff’s deliberate indifference claim against Officer Malone in his
individual capacity will be dismissed.
IV. CONCLUSION
For the foregoing reasons, Malone’s motion for summary judgment (Doc. 32) will be
GRANTED. The claims alleged against Officer Malone in his individual capacity will be
DISMISSED.

An appropriate order will enter.
/s/____________________________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10433832. Public record. Not legal advice.