Cordell v. Hamilton County Tennessee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

CHATTANOOGA DIVISION

JOHN CORDELL, )

)

) 1:21-CV-00315-DCLC-CHS

Plaintiff,

)

)

v.

)

)

HAMILTON COUNTY TENNESSEE, et

)

al.,

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Motion for Summary Judgment [Doc. 55] filed by

Defendants Hamilton County, Tennessee, and John Does 1, 2, and 3 (collectively, “Defendants”).

Plaintiff John Cordell filed a Response in Opposition [Doc. 58]. And Defendants filed a Reply

[Doc. 61]. The Motion is now ripe for adjudication. For the reasons explained below, Defendants’

Motion is GRANTED IN PART and DENIED IN PART.

I. FACTUAL BACKGROUND

On January 17, 2021, Joseph Mefford, accompanied by Cordell in the passenger seat, led

members of the Hamilton County Sheriff’s Office (“HCSO”) and other law enforcement agencies

in a high-speed pursuit [Doc. 1, ¶¶ 5.1-5.2; Doc. 59, pg. 34 ¶ 1]. During the pursuit, Cordell called

911 three times and informed the dispatcher he was not involved in the pursuit [Doc. 58-5, 95:10-

95:15, 95:21-95:24, 99:1-99:3, 99:13-99:18; Doc. 59, pg. 34 ¶ 3]. Law enforcement eventually

boxed in Mefford’s car, ending the pursuit [See Doc. 59, pg. 34 ¶ 4].

Three law enforcement personnel approached the passenger side and encountered Cordell,

who had his seatbelt buckled and hands raised [See Doc. 58-5, 41:2-41:5, 41:8-41:9; Doc. 59, pg.

34 ¶ 5]. The officers instructed Cordell both to exit and show his hands and not to move or reach

[Doc. 59, pg. 35 ¶ 6]. Unable to comply with both sets of instructions, Cordell remained in the

passenger seat with his hands raised [See Doc. 58-6, 41:11-41:17].

One of the officers unbuckled Cordell’s seatbelt, and the others pulled Cordell from the car

[Doc. 59, pg. 35 ¶ 9]. As they removed Cordell from the car, Defendant Deputy Sheriff Aaron

Cameron (hereafter “Deputy Cameron”) activated his taser on Cordell’s arm, and continued to tase

Cordell as he fell to the ground [Video File 11360_Armstrong_Road.mp4 (hereafter “Video”),

00:20-00:30].1 The video shows Deputy Cameron tased Cordell an additional six times: (1) once

when Cordell landed on the ground; (2-3) twice when Cordell rolled over on his back with his

arms raised; (4-5) twice when Deputy Cameron commanded Cordell to roll over onto his stomach;

and (6) once when Cordell rolled onto his left side [Video, 00:30-00:45]. Cordell ultimately rolled

onto his stomach and, while held down by four officers, handcuffed [Video, 00:45-00:1:10]. Law

enforcement personnel then raised Cordell up and placed him against a police cruiser and patted

him down [Video, 1:10-1:50, 2:15-2:48]. While being patted down, Cordell stated that he called

911 multiple times [Video, 1:30-1:32, 1:54-1:55]. After the pat-down, Deputy Cameron instructed

Cordell to sit down [Video, 2:48-2:50] and then forced Cordell to the ground [Video, 2:50-2:53;

Doc. 59, pg. 36 ¶ 17].

Deputy Cameron thereafter executed an Affidavit of Complaint, accusing Cordell of

“Resisting Arrest or Obstruction of Legal Process” [Doc. 58-7, pgs. 1-2]. Deputy Cameron

asserted that Cordell refused to comply with commands to exit Mefford’s car and, once forced out,

offered resistance by: (1) “tensing his arms”; (2) “concealing his hands underneath his body”; and

1 The Video, consisting of Deputy Cameron’s body camera footage, can be found in a flash

drive that was manually filed with the Court [Doc. 60].

(3) making “furtive movements by flailing his body and arms in various directions” [Doc. 58-7,

pg. 3]. Deputy Cameron stated that this “resistance” necessitated the use of his taser to “gain

compliance and to [e]ffect the arrest” [Id.]. Deputy Cameron stated that Cordell also refused to

comply with commands after being handcuffed [Id.]. And Deputy Cameron stated that although

Cordell claimed to have told dispatch that he was not involved in the pursuit, Deputy Cameron

was never apprised of that information [Id.]. The charge was later dismissed upon the state’s

motion [Doc. 58-8].

Deputy Cameron also prepared a Resistance Report, in which he gave a slightly different

description of Cordell’s resistance:

Cordell, while giving the appearance of complying by raising his hands, refused to

obey verbal commands to exit the vehicle. Cordell had to be forcibly removed from

the vehicle and once out, continued to offer resistance to being taken into custody

by tensing his arms and body and making furtive movements, at times, concealing

his hands underneath his body. Cordell retained control of his arms hidden

underneath his body. Officers feared Cordell was concealing a weapon . . . . I

conducted a drive stun with my Taser . . . in an attempt to gain compliance and to

[e]ffect the arrest of Cordell. Cordell made erratic movements during which and as

a result contact with my taser was lost and regained several times. . . . Once in

custody Cordell continued to refuse to comply with commands and had to be

forcibly taken to the ground, via leg sweep, into a seated position. . . . Cordell will

be charged with resisting stop, frisk, halt for his actions.

[Doc. 58-16, pg. 2].

Sheriff’s Sergeant Eric Baxter (hereafter “Sergeant Baxter”) reviewed Deputy Cameron’s

report and body camera footage and determined that “Deputy Cameron followed policy and

procedure during the pursuit and arrest. I approve his actions” [Doc. 58-16, pg. 9]. The Resistance

Report was then forwarded to Sheriff’s Lieutenant Henry Ritter, who, in turn, forwarded the report

to HCSO’s Internal Affairs Division (hereafter “Internal Affairs”) [Id.]. The next day, Cordell

filed a complaint of excessive force with Internal Affairs [Doc. 56-16, ¶ 12; Doc. 59, pg. 36 ¶ 22].

Cordell asserted that over the course of the incident, he was tased several times, struck twice with

a police baton, punched three times, and kicked four times by the arresting officers [Doc. 56-17,

pgs. 1-2].

Internal Affairs investigated Cordell’s allegations and, after Cordell filed the Complaint,

issued two reports with its findings [Docs. 56-17, 58-9]. During the investigation, Deputy

Cameron asserted that he tased Cordell because Cordell failed to comply with commands to exit

Mefford’s car and, while on the ground, to place his hands behind his back [Doc. 58-9, pg. 8].

Deputy Cameron stated that he forced Cordell to the ground after the pat-down search because he

felt Cordell “pull away” in the opposite direction he wanted Cordell to go [Id.]. Internal Affairs

concluded that Deputy Cameron violated HCSO’s excessive use of force policy [Doc. 56-17, pg.

7; Doc. 58-9, pg. 9]. Internal Affairs also confirmed that Cordell contacted the Rhea County,

Tennessee, 911 center, but the information he provided was not relayed to Hamilton County 911

[Doc. 58-9, pg. 9]. Sheriff Jim Hammond concurred with Internal Affairs and ordered that Deputy

Cameron be disciplined with a 24-hour suspension and eight hours of remedial training [Doc. 56-

20].

II. PROCEDURAL HISTORY

Based on the above facts, Cordell initiated this action against Hamilton County, Deputy

Cameron, and John Does 1, 2, and 3 [Doc. 1; Doc. 31].2 Cordell claims that Deputy Cameron and

the John Does are liable under 42 U.S.C. § 1983 and Tennessee law for excessive use of force,

false arrest, and malicious prosecution [Doc. 31, ¶¶ 6.1-7.8, 10.1-10.5]. Cordell contends that

Hamilton County is derivatively liable under 42 U.S.C. § 1983 because it “lacked adequate

customs, policies, procedures, supervision, investigation, and training of its employees to prevent

2 Cordell also sued Rhea County and Deputy Sheriffs Chris Rice and Alexandria Paul [Doc.

31]. Cordell’s claims against them were dismissed by stipulation of the parties [Docs. 47, 51].

individuals, including Mr. Cordell, from being arrested without probable cause and to prevent its

officers from using excessive force” [Doc. 31, ¶ 8.2]. And he asserts that Hamilton County is

vicariously liable under Tenn. Code. Ann. § 8-8-301 et seq. [Doc. 31, ¶¶ 9.1-9.3].

Defendants now move for summary judgment on Cordell’s claims against Hamilton

County and the John Does [Doc. 55], supported by a Statement of Material Facts [Doc. 56] and

Memorandum [Doc. 57]. Cordell filed Responses to both Defendants’ Motion and Statement of

Material Facts [Docs. 58, 59], including an objection to Defendants’ reliance on previously

undisclosed evidence [Doc. 59, pgs. 1-3]. Defendants filed a Reply [Doc. 61].

III. LEGAL STANDARD

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 movant can discharge his burden by either affirmatively producing evidence establishing that

there is no genuine dispute of material fact or pointing out the absence of support in the record for

the nonmovant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has

discharged this burden, the nonmoving party can no longer rest on the allegations in the pleadings

and must point to specific facts supported by evidence in the record demonstrating that there is a

genuine issue for trial. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The

Court’s role is to determine whether, viewing the facts and drawing all inferences therefrom in the

light most favorable to the nonmovant, a reasonable juror could return a verdict for the nonmovant.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255-56 (1986).

IV. ANALYSIS

A. Evidentiary Issues

Cordell objects to Defendants’ reliance on the Declaration of Miriam Laracuente and a

2020 assessment from the Commission on Accreditation for Law Enforcement Agencies

(“CALEA”) on HCSO’s compliance with CALEA standards because they were not disclosed

during discovery [Doc. 59, pg. 1-3; see Docs. 56-1, 56-2]. In her Declaration, Laracuente states

that she is the “Professional Standards and Accreditation Manager” for HCSO [Doc. 56-1, ¶ 2].

Laracuente asserts that HCSO has been accredited since 2013 by CALEA, which she describes as

the “highest possible accreditation in the law enforcement community” [Id., ¶¶ 4-5, 15]. To be

accredited, Laracuente states that law enforcement agencies must implement and follow standards

promulgated by CALEA, satisfy national standards, and review and update policies based on new

court rulings [Id., ¶ 5, 17]. Laracuente states that CALEA conducts compliance assessments every

four years, with sub-assessments conducted over the course of the four-year period [Id., ¶ 19].

Laracuente contends that CALEA completed its four-year assessment of HCSO in 2020,

concluding that that HCSO satisfied CALEA’s standards for, among other areas, use of force, use

of less than lethal weapons, supervisory accountability, training, and compliance with

constitutional requirements [Id., ¶¶ 20, 22-30, 35]. Laracuente’s Declaration also quotes excerpts

of CALEA’s 2020 assessment regarding the form of HCSO’s training, HCSO’s Internal Affairs,

and HCSO’s policy regarding motor vehicle pursuits [Id., ¶¶ 33, 36, 40-41]. Attached to

Laracuente’s Declaration is CALEA’s 2020 assessment of HCSO [Id., ¶ 20; see Doc. 56-2].

Cordell also objects to Defendants’ reliance on the Declaration of Captain Spencer Daniels because

it is incomplete [Doc. 59, pg. 2; see Doc. 56-3]. Defendants did not address Cordell’s objections

in their Reply [See generally Doc. 61].

Cordell’s objections are well-taken. The Court’s Scheduling Order set April 19, 2023, as

the deadline for Defendants to disclose expert testimony and May 19, 2023, as the deadline for all

discovery [Doc. 20, ¶¶ 4.e.-4.f.]. Cordell’s uncontested allegation establishes that Defendants

violated the Scheduling Order and their obligation under the Federal Rules of Civil Procedure to

supplement discovery production. See Fed.R.Civ.P. 26(a)(1)(A)(i)-(ii), 26(a)(2)(D)(ii), 26(e). The

Court cautioned that failure to comply with the Scheduling Order’s requirements “will result in

the exclusion of witnesses [and] exhibits” [Doc. 20, ¶ 9]. The Rules likewise require exclusion

“unless the failure . . . was substantially justified or . . . harmless,” which Defendants have failed

to establish. Fed.R.Civ.P. 37(c)(1); see Roberts v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir.

2003) (stating that the party to be sanctioned carries burden under Rule 37(c)(1)). Cordell’s

objection to Laracuente’s Declaration and CALEA accreditation materials is therefore

SUSTAINED and the Court will not consider the declaration in ruling on the motion for summary

judgment.

Review of Captain Daniels’s purported declaration confirms that it is incomplete. It

consists of ten paragraphs numbered “40” through “49” and Captain Daniels’s signature [Doc. 56-

3]. However, there is no declaration that the statements asserted therein were made under penalty

of perjury. 28 U.S.C. § 1746. Thus, the Court cannot consider it. Rogers v. Henry Ford Health

Sys., 897 F.3d 763, 766 n.1 (6th Cir. 2018). Cordell’s objection to Captain Daniels’s declaration

is therefore SUSTAINED and the Court will not consider this declaration in ruling on the motion

for summary judgment.

The Court separately notes that the Declaration of Lieutenant Robert D. Lee is unsigned

[Doc. 56-16, pg. 4]. Lieutenant Lee’s Declaration is therefore not competent summary judgment

evidence and forms no part of this Memorandum Opinion and Order, except to the extent the facts

asserted therein are undisputed for purposes of summary judgment.

B. John Doe Defendants

Defendants move for summary dismissal of the John Doe defendants because they have

not been named and the time to do so has passed [Doc. 57, pgs. 1-2, 6-7]. Cordell does not object

to Defendants’ request, indicating that he would have agreed to stipulate to the John Does’

dismissal [Doc. 58, pg. 15]. Defendants’ Motion is therefore GRANTED IN PART with respect

to the John Doe defendants.

C. Liability under 42 U.S.C. § 1983

Cordell seeks to hold Hamilton County liable under 42 U.S.C. § 1983 for Deputy

Cameron’s alleged false arrest for resisting arrest and excessive use of force in effectuating the

arrest. Defendants move for summary judgment on this claim, asserting that Cordell cannot

present evidence to support any of his theories of § 1983 liability. First, Defendants argue that

Cordell’s pleadings failed to identify the policies he contends are illegal and that the record does

not establish a custom of arrests unsupported by probable cause or improper taser use [Doc. 57,

pgs. 11-14]. Second, Defendants argue that there is no evidence of a deficiency in HCSO training

about use of force, use of a taser, or determining probable cause [Doc. 57, pgs. 16-17]. And third,

Defendants argue that there is no evidence that HCSO failed to respond to repeated complaints of

deputy misconduct, investigate deputy misconduct, or discipline deputies for their misdeeds [Doc.

57, pgs. 17-20].

Cordell responds that Hamilton County’s written policies are unconstitutional as written

because: (1) they do not mention a requirement of probable cause, define probable cause, or require

that a deputy consider exculpatory evidence [Doc. 58, pgs. 17, 19-21]; and (2) Hamilton County’s

use of force policies do not include a use of force continuum, fail to provide definitions to direct

officer discretion on the amount of force to use, and include mere “pulling away” as an example

of active resistance [Doc. 58, pgs. 17-20]. Cordell argues that HCSO impermissibly instructs

deputies to use “whatever force is necessary,” fails to distinguish between volitional acts and

movements caused by a deputy, and fails to provide instruction on whether to consider exculpatory

evidence [Doc. 58, pgs. 21-22]. And Cordell argues that Sergeant Baxter’s approval of Deputy

Cameron’s conduct, delays in the investigation into Deputy Cameron’s conduct, and the lack of

an investigation into other law enforcement personnel involved in Cordell’s arrest establish a

failure to supervise and investigate [Doc. 58, pgs. 23-24].

Defendants reply that there is no evidence that Hamilton County was on notice of any

deficiency in its policies, without which Cordell cannot succeed on an official-policy theory [Doc.

61, pgs. 3-4]. Defendants further reply that there is no evidence that Sheriff Hammond deliberately

elected to pursue a course of action relative to training that would constitute deliberate indifference

[Doc. 61, pgs. 6-9]. And Defendants argue that alleged deficiencies in an investigation after the

constitutional injury occurred are not enough to sustain a failure to investigate claim [Doc. 61, pg.

8].

Section 1983 of Title 42 creates a private cause of action for violations of constitutional

rights. Liability under § 1983 extends to local government entities when the predicate

unconstitutional act “occurred because of a municipal policy or custom.” Burgess v. Fischer, 735

F.3d 462, 478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).

This can be established in one of four ways:

(1) the existence of an illegal official policy or legislative enactment;

(2) that an official with final decision making authority ratified illegal actions;

(3) the existence of a policy of inadequate training or supervision; or

(4) the existence of a custom of tolerance or acquiescence of federal rights

violations.

Id. (paragraph breaks added). Here, Cordell seeks to establish liability on all but the last theory

[Doc. 1, ¶ 8.2]. Each theory is addressed in turn.

1. Official Policy

The first theory of municipal liability under § 1983 requires the plaintiff to establish that

an identified policy is either “facially unconstitutional as written or articulated” or “facially

constitutional but consistently implemented to result in constitutional violations.” Gregory v. City

of Louisville, 444 F.3d 725, 752 (6th Cir. 2006). “An official written policy is itself

unconstitutional only if it affirmatively allows or compels unconstitutional conduct.” Edwards v.

City of Balch Springs, 70 F.4th 302, 309 (5th Cir. 2023) (internal quotation marks omitted); accord

Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012); Szabla v. City of Brooklyn Park,

486 F.3d 385, 392 (8th Cir. 2007). Otherwise, the plaintiff “‘must demonstrate that the municipal

action was taken with ‘deliberate indifference’ as to its known or obvious consequence.’”

Gregory, 444 F.3d at 752 (quoting Board of Cnty. Comm’rs v. Brown, 520 U.S. 397, 407, 137

(1997)).

Cordell claims Hamilton County’s policies addressing probable cause do not expressly

require probable cause to exist for an officer to make an arrest. He further claims the policies do

not define probable cause and do not require an officer to consider exculpatory evidence in making

that determination. Hamilton County’s policy explicitly defers to “the requirements of federal,

state, and local law,” in reference to making probable cause determinations [Doc. 58-11, ¶ 1]. And

federal law requires officers to have probable cause to effect an arrest. Thus, contrary to Cordell’s

argument, Hamilton County’s policy does require probable cause to effect an arrest. This issue is

without merit.

Cordell also challenges Hamilton County’s use of force policies because they give the

arresting deputy discretion with improper guidance on what constitutes active resistance that

would justify use of a taser. However, the policies as written do not authorize or compel the

excessive use of force. Hamilton County’s policies authorize only what force “a reasonable deputy

would deem necessary” after considering the totality of the circumstances [Doc. 56-9, ¶ A; see

also id., ¶ C.1.]. That policy requires the officer to use only “the minimal amount of force

reasonably necessary” [Doc. 56-18, ¶ 1.K.]. Hamilton County’s policies also prohibit the use of a

taser: (1) on a suspect who “no longer poses a threat, has complied with the deputies instructions,

loses the ability to escape, or any other time that the use would be inconsistent with current

training” [Doc. 56-10, ¶ III.B.3.]; (2) “to gain compliance over subjects who the deputy reasonably

believes [are] not presenting an immediate, credible threat to the safety of the deputy(s), the public

or to themselves” [Id., ¶ III.B.8.]; or (3) “[p]unitively or for purposes of coercion (where no threat

exists)” [Id., ¶ III.B.10.]. And the policies discourage the use of a taser “[w]hen a prisoner is

handcuffed, unless combative and uncooperative or poses a threat to the deputy, themselves or

others” [Id., ¶ III.B.11.h.].

Although Hamilton County’s policies list “pulling away” among examples of active

resistance in response to which a taser may be used [Id., ¶ III.B.3], they nevertheless must be read

in conjunction with the repeated emphasis on what is objectively reasonable under the

circumstances. And pulling away can, in the presence of other circumstances, constitute active

resistance. See Bell v. City of Southfield, 37 F.4th 362, 368 (6th Cir. 2022); Goodwin v. City of

Painesville, 781 F.3d 314, 326 (6th Cir. 2015). Cordell cannot therefore establish municipal

liability based on the text of Hamilton County’s policies.

2. Ratification

Cordell also seeks to hold Hamilton County liable under § 1983 on a theory that they

ratified Deputy Cameron’s conduct. The Supreme Court “has rejected respondeat superior

theories that subject employers like [HCSO] to liability for their employees’ actions.” Pineda v.

Hamilton Cnty., 977 F.3d 483, 494 (6th Cir. 2020) (citing Brown, 520 U.S. at 403). “Because

municipal liability requires an unconstitutional ‘policy’ or ‘custom,’ [the Sixth Circuit has] held

that an allegation of a single failure to investigate a single plaintiff's claim does not suffice.” Id.

at 495 (emphasis in original). Liability can attach only if there “is an inadequate investigation in

this instance [and] a clear and persistent pattern of violations in earlier instances.” Id. (internal

quotation marks omitted).

Here, Cordell points to Sergeant Baxter’s approval of Deputy Cameron’s conduct, the

delays in investigating his complaint, and the lack of an investigation into the other officers who

participated in his arrest. Cordell has presented no evidence of a “clear and persistent pattern of

violations in earlier instances.” Id. The most he alleges is a failure to conduct an adequate

investigate here. But an inadequate investigation in a single instance is not enough. Id. And the

fact that Sergeant Baxter approved of Deputy Cameron’s conduct is also not sufficient because

that approval did not cause Cordell’s injury. See id. at 496 (supervisor’s after-the-fact approval of

the investigation did not cause Pineda's injury”) (internal quotation marks and citations omitted).

Thus, he cannot succeed on a ratification theory.

3. Failure to Supervise

To state a § 1983 claim for failure to supervise, Cordell must show: “(1) the training or

supervision was inadequate for the tasks performed; (2) the inadequacy was the result of the

municipality's deliberate indifference; and (3) the inadequacy was closely related to or actually

caused the injury.” Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th

Cir. 2006). To show the municipality was “deliberately indifferent,” Cordell must further show

either “prior instances of unconstitutional conduct demonstrating that the [municipality] has

ignored a history of abuse and was clearly on notice that the training in this particular area was

deficient and likely to cause injury,” Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005), or “a

single violation of federal rights, accompanied by a showing that a municipality has failed to train

its employees to handle recurring situations presenting an obvious potential for such a violation,”

Brown, 520 U.S. at 409.

As Hamilton County observes, Cordell’s Amended Complaint does not specify what is

wrong about HCSO’s supervision of Deputy Cameron individually or of its deputies generally [See

generally Doc. 31]. Cordell’s Response does not clarify the basis for liability under this theory as

distinguished from his ratification theory [See Doc. 58, pgs. 22-24]. To the extent Cordell relies

on Sergeant Baxter’s after-the-fact approval of Deputy Cameron’s conduct, that is not enough.

See Ward v. County of Cuyahoga, 721 F. Supp. 2d 677, 693 (N.D. Ohio 2010) ([A]n after-the-fact

report has no bearing on whether the County was deliberately indifferent to an obvious need to

provide adequate . . . supervision prior to the incident.”). Liability for inadequate supervision

requires (1) that a flaw in Deputy Cameron’s supervision be the “moving force” behind his use of

excessive force and false arrest and (2) that Hamilton County was deliberately indifferent to the

“known or obvious” constitutional violations that would result from that flaw. Gambrel v. Knox

Cnty., 25 F.4th 391, 408 (6th Cir. 2022) (internal quotation marks omitted).

There is no evidence in the record of a pattern of past complaints about Deputy Cameron

specifically or HCSO deputies generally from which a reasonable juror could find that Hamilton

County was deliberately indifferent to inadequate supervision of HCSO personnel. See Winkler v.

Madison Cnty., 893 F.3d 877, 903 (6th Cir. 2018). And Cordell failed to otherwise identify a flaw

in supervision which led to Deputy Cameron’s use of force or unlawful arrest. See Ellis ex rel.

Pendergrass, 455 F.3d at 700. Therefore, Cordell cannot succeed on a failure-to-supervise theory.

4. Failure to Train

i. Probable Cause

Cordell claims HCSO failed to properly train its officers in making probable cause

determinations. Liability on this theory requires either: (1) a pattern of constitutional violations;

or (2) a single constitutional violation, “accompanied by a showing that [Hamilton County] has

failed to train its employees to handle recurring situations presenting an obvious potential for such

violation.” Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (internal quotation

marks omitted). Cordell explicitly disclaims reliance on the former [Doc. 58, pg. 22], so he must

present evidence that shows “a complete failure to train the police force, or training that is so

reckless or grossly negligent that future police misconduct is almost inevitable or would properly

be characterized as substantially certain to result.” Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th

Cir. 1982) (internal citations omitted).

The parties agree that HCSO trains its officers about probable cause and that Deputy

Cameron received probable cause training [Doc. 56, ¶¶ 60-62, 81; Doc. 59, pgs. 23-24, 27; see

also Doc. 56-4, ¶¶ 18-19, 45; Doc. 58-2, 48:4-48:21]. Captain Daniels’s deposition testimony and

Sergeant Durham’s declaration provide that probable cause training is covered every other year as

part of “strategies and tactics of patrol stops” training, including that officers are to consider all

the facts available without assuming probable cause exits [Doc. 56-4, ¶¶ 18-20; Doc. 58-2, 48:4-

48:21, 49:1-49:4; Doc. 58-3, 70:3-70:8]. Cordell has not shown that the training the municipality

provides its officers is deficient regarding probable cause determinations or consideration of

exculpatory evidence in making those judgments. See Zavatson v. City of Warren, 714 F. App’x

512, 527 (6th Cir. 2017).

ii. Use of Force

Cordell also claims HCSO failed to properly train on use of force. As with probable cause,

the parties agree that HCSO trains its deputies on the use of force and that Deputy Cameron

received use of force training [Doc. 56, ¶¶ 49, 64-74, 81; Doc. 59, pgs. 21, 24-27; see also Doc.

56-4, ¶¶ 4, 22-33, 45; Doc. 56-13, pgs. 5, 7; Doc. 56-14, pgs. 6, 13-15, 29, 33, 36-41; Doc. 58-2,

31:9-34:19]. Cordell asserts that there are two flaws in the substance of that training: (1) it instructs

deputies to use “whatever force” is necessary; and (2) it fails to train deputies to distinguish

between levels of resistance [Doc. 58, pg. 22].

The first asserted flaw is based on Sergeant Durham’s deposition testimony that HCSO

trains its deputies to use “whatever force is necessary to effect control” [Doc. 58, pg. 21]. But

that’s not all Sergeant Durham said. Sergeant Durham also said that need for force follows from

whether the individual is a threat [See Doc. 58-4, 40:3-40:9]. And Sergeant Durham testified about

the kinds of resistance that would allow for the use of a taser [Doc. 58-4, 31:3-31:18]. Moreover,

Lieutenant Lee testified that “whatever amount of force would not be reasonable” and that “the

necessary amount and the least amount would be the same” [Doc. 58-4, 20:3-20:4, 20:6-20:8].

Together, the evidence of HCSO’s training does not lead to the inference that it trained its officers

to use any amount of force the officer saw fit.

The second flaw is based on Sergeant Durham’s purported deposition testimony that

deputies are trained to view mere pulling away as active resistance that would justify the use of a

taser [Doc. 58, pg. 21]. But that is not what Sergeant Durham said, he testified that he taught the

difference between active and passive resistance and prohibited the use of a taser for passive

resistance [Doc. 58-4, 31:3-31:18, 40:12-40:18]. He also contrasted two examples to illustrate the

difference: (1) refusing to comply with a command (passive resistance) [Doc. 58-4, 34:1-34:7];

and (2) “the guy that you go to put a hand on that jerks away and tries to run” [Doc. 58-4, 34:8-

34:11 (emphasis added)], or verbal threats coupled with threats of physical aggression and

movement toward the officer (active resistance) [Doc. 58-4, 31:9-31:14]. Both examples are

consistent with Sixth Circuit precedent. See Baker v. Union Twp., 587 F. App’x 229, 236 (6th Cir.

2014) (“Flight is a form of resisting arrest and flight alone has been held to warrant deployment of

a taser[.]”); Eldridge v. City of Warren, 533 F. App’x 529, 535 (6th Cir. 2013) (“[N]oncompliance

alone does not indicate active resistance; there must be something more[, including] a verbal

showing of hostility [or] a deliberate act of defiance using one’s own body[.] (Internal citations

omitted)). Cordell has not otherwise submitted evidence on the substance of HCSO’s training on

the use of force. Cordell therefore failed to put forward sufficient evidence from which a

reasonable juror could find that HCSO’s training was so inadequate as to make it obvious that

tasers would be deployed against nonresistant arrestees.

Because Cordell has failed to present sufficient evidence from which a reasonable trier of

fact could find in his favor on his asserted grounds for why Hamilton County is liable under 42

U.S.C. § 1983, Defendants’ Motion is GRANTED with respect to Cordell’s § 1983 claims against

Hamilton County. The Court now turns to Cordell’s state law claims under Tenn. Code Ann. § 8-

8-302 against Hamilton County.

D. Vicarious Liability under Tenn. Code Ann. § 8-8-302

Defendants also move for summary judgment on Cordell’s state law claim for vicarious

liability under Tenn. Code Ann. § 8-8-302. Defendants argue that Tennessee courts interpret Tenn.

Code Ann. § 8-8-302 to require that the offending deputy misuse his office to facilitate a crime

before the municipality can be held liable, to which Deputy Cameron’s conduct does not arise [See

Doc. 57, pgs. 21-24]. Cordell responds that none of the cases Defendants cite supports their

position [Id.]. Defendants’ Reply does not further address vicarious liability but limits its Motion

to “summary judgment on the federal claims” [Doc. 61, pg. 9].

Section 8-8-302 provides:

. . . Anyone incurring any wrong, injury, loss, damage or expense resulting from

any act or failure to act on the part of any deputy appointed by the sheriff may bring

suit against the county in which the sheriff serves; provided, that the deputy is, at

the time of such occurrence, acting by virtue of or under color of the office.

Tenn. Code Ann. § 8-8-302. Section 8-8-303 waives sovereign immunity for counties for

violations of § 8-8-302. Tenn. Code Ann. § 8-8-303(a). “In interpreting this statutory scheme, the

Tennessee Supreme Court has held that it applies to non-negligent conduct of deputies and that

these claims are generally not barred by [Tennessee’s Governmental Tort Liability Act]

immunity.” Merolla v. Wilson Cnty., No. M2018-00919-COA-R3-CV, 2019 WL 1934829, at *6

(Tenn. Ct. App. May 1, 2019) (citing Jenkins v. Loudon Cnty., 736 S.W.2d 603, 609 (Tenn. 1987),

abrogated in part by Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001)). Where a plaintiff

alleges intentional tort claims, the claim against the county under Tenn. Code Ann. § 8-8-302 will

generally survive summary judgment to the same extent as the underlying tort claims. See, e.g.,

Pryor v. Coffee Cnty., No. 4:20-cv-00014, 2022 WL 131251, at *15 (E.D. Tenn. Jan. 12, 2022);

Howe v. Howell, No. 2:19-cv-00067, 2021 WL 1736822, at *12 (M.D. Tenn. May 3, 2021);

Simpson v. White Cnty., No. 2:13-cv-00087, 2016 WL 323732, at *7 (M.D. Tenn. Jan. 27, 2016);

Margeson v. White Cnty., Tenn., No. 2:12-00052, 2013 WL 6712843, at *11 (M.D. Tenn. Dec. 18,

2013).

Defendants claim that liability under Tenn. Code Ann. § 8-8-302 will attach only if Deputy

Cameron’s conduct was criminal [Doc. 57, pgs. 22-24]. But none of the cases Defendants cite

makes criminal conduct the exclusive threshold for liability; rather, they concern when a deputy

can be considered acting “by virtue of or under color of the office.” See Currie v. Haywood Cnty.,

No. W2010-00453-COA-R3CV, 2011 WL 826805, at *4 (Tenn. Ct. App. Mar. 10, 2011)

(unreported) (citing Tenn. Code Ann. § 39-16-402 for the proposition that a deputy acts “by virtue

of or under color of office” when he acts in his official capacity or takes advantage of his official

capacity to facilitate a crime); Doe v. Pedigo, No. E200201311COAR3CV, 2003 WL 21516220,

at *8-10 (Tenn. Ct. App. June 30, 2003) (unreported) (holding that a genuine dispute of fact existed

as to whether a doctor acted in the capacity of a deputy sheriff when he administered a hepatitis B

vaccine to a minor while awaiting calls to investigate crime scenes); J.W. ex rel. Watts v. Maury

Cnty., No. M2001-02768-COA-R3-CV, 2003 WL 1018138, at *7 (Tenn. Ct. App. Mar. 11, 2003)

(unreported) (holding that a genuine dispute of fact existed as to whether a School Resource

Officer acted by virtue of or under color of his office when the victim’s mother contacted him, he

persuaded the mother to let the victim sleep at his apartment, and he later assaulted the victim).

Here, there is no dispute that Deputy Cameron was acting in his capacity as deputy sheriff at the

time of the incident. And there is no dispute that Cordell’s claims against Deputy Cameron are

premised on non-negligent conduct. Defendants’ Motion is therefore DENIED as to derivative

liability under Tenn. Code Ann. § 8-8-302. Cf. Klaver v. Hamilton Cnty., No. 1:19-cv-198, 2022

WL 16731735, at *14 (E.D. Tenn. Feb. 2, 2022) (rejecting an identical argument by Hamilton

County).

V. CONCLUSION

For the reasons discussed above, Defendants’ Motion for Summary Judgment [Doc. 55] is

GRANTED IN PART and DENIED IN PART. Cordell’s claims against the John Doe

defendants are DISMISSED. Cordell’s 42 U.S.C. § 1983 claim against Hamilton County is

DISMISSED. And Cordell’s surviving vicarious liability claim under Tenn. Code Ann. § 8-8-

302 against Hamilton County will proceed.

SO ORDERED:

s/ Clifton L. Corker

United States District Judge