Campbell v. Cheatham County Sheriff's Department

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MARK CAMPBELL and )

SHERRIE CAMPBELL, )

)

Plaintiffs, )

) NO. 3:19-cv-00151

v. )

)

CHEATHAM COUNTY SHERIFF’S )

DEPARTMENT, et al., )

)

Defendants. )

MEMORANDUM OPINION

Mark and Sherrie Campbell1 filed this action under 42 U.S.C. § 1983 against the Cheatham

County Sheriff’s Department (“Sheriff’s Department”), the Cheatham County Municipal

Government, Cheatham County Sheriff Mike Breedlove in his official capacity, and James Fox

and Christopher Austin in their individual capacities as officers for the Sheriff’s Department.

Before the Court are two Motions for Summary Judgment: one filed by the Sheriff’s Department,

the Cheatham County Municipal Government, and Sheriff Breedlove (collectively, the “County”)

(Doc. No. 65); and one filed by Officers Fox and Austin (the “Officers”) (Doc. No. 69). Plaintiffs

filed a Response to each Motion, (Doc. No. 75 (Response to the County); Doc. No. 78 (Response

to the Officers)), and the Officers filed a Reply (Doc. No. 80). For the following reasons, the

County’s Motion will be granted, and the Officers’ Motion will be granted in part and denied in

part.

1 For clarity and brevity, the Court may refer to Plaintiffs by their first names below.

I. Background

A. Shooting at the Campbell Residence

Around 9:15 p.m. on August 21, 2018, Officers Fox and Austin were dispatched to the

Campbell residence after the Cheatham County Emergency Communications Center received

three 9-1-1 hang-up calls that it associated with Plaintiffs’ address. (Doc. No. 71-1 at 5–6; Doc.

No. 78-1 ¶ 2.) Plaintiffs deny any connection to the phone or phone number associated with these

calls. (Doc. No. 75-1 ¶¶ 1, 3.) Nonetheless, the parties agree that the Officers drove to Plaintiffs’

residence to perform a “welfare check.” (Doc. No. 78-1 ¶ 4.)

Around 9:39 p.m., the Officers arrived at Plaintiffs’ residence in marked patrol cars

equipped with dashboard cameras, wearing uniforms equipped with body cameras. (Doc. No. 75-

1 ¶¶ 2, 4–5.) Plaintiffs (Doc. Nos. 8, 27) and the Officers (Doc. No. 73) submitted footage of the

ensuing events from Fox’s dash-cam and each Officers’ body-cam.2

The Officers did not activate the emergency lights on their cars, but their headlights

remained on and pointed toward Plaintiffs’ residence as they approached the residence on foot.

(Doc. No. 75-1 ¶ 6.) A porch light controlled by a heat sensor turned on as the Officers approached.

(Doc. No. 78-1 ¶ 7; M. Campbell Dep.3 at 40.) Austin remained on the ground in front of the porch

as Fox walked up four steps to a small landing to knock on the door. (Fox dash-cam; Fox body-

cam; Austin body-cam.) Fox claims that he observed a security camera on the porch (Doc. No. 71-

2 The Officers also submitted an audio recording of a 9-1-1 call from Sherrie beginning shortly after the

shooting and lasting approximately 24 and a half minutes. (See Doc. Nos. 73, 114.) The Court will refer to

this recording as “Sherrie 9-1-1 Call.”

3 The Court will refer to the following deposition transcripts, using each deposition’s internal pagination,

as: Doc. Nos. 67-4, 71-6, 75-2 at 24–39 (“M. Campbell Dep.”); Doc. No. 75-2 at 40–44 (“S. Campbell

Dep.”); Doc. Nos. 67-1, 75-2 at 18–23 (“Fox Dep.”); Doc. No. 67-2 (“Austin Dep.”); Doc. Nos. 67-3, 75-

2 at 4–17 (“Breedlove Dep.”).

2 ¶ 3), and Mark testified that he has a fake security camera on the porch to deter neighbors (M.

Campbell Dep. at 54).

Based on the three videos supplied by the parties, the Court has established the following

timeline of events, beginning with Fox’s knock and concluding with Fox firing his gun. The

“seconds elapsed” reflects the approximate time of an event after the first knock:

Seconds Elapsed Description of Event

0 Fox knocks three times

1–5 Fox walks down the steps and stands next to Austin

10 Mark says, “You got a gun?” through the closed door

12–17 Fox unholsters his gun4 and walks to the other side of Austin while saying,

“Mark . . . come on out Mark, what’s up man?”

18 Mark again says, “You got a gun?”5

21 Fox says, “What’s going on Mark?”

23 Mark says, “I got one too.”6

24–25 Fox draws his gun and turns his back to the door as he walks behind Austin

26 Mark begins to open the door

27 Fox turns quickly back toward the door

28 Fox says, “Do what Mark?” and then fires two shots toward the door in

rapid succession7

29 Austin trips or jumps to the ground

30 Fox says, “You good?”

31 Fox fires six shots toward the door in rapid succession

4 This act is not visible from the footage, but Fox claims as much in his declaration. (Doc. No. 71-2 ¶ 4.)

5 Fox claims that, at this point, he believed that Mark “knew that law enforcement was outside the residence”

because of Fox’s prior interactions with Mark, Mark’s “security lights and camera being on the porch, and

[Mark’s] questioning.” (Doc. No. 71-2 ¶ 4.) The Officers also point to Sherrie’s 9-1-1 call, which includes

her isolated statement that Mark “woke [her] up screaming, saying something about the police shot into the

house.” (Doc. No. 75-1 ¶ 29; Sherrie 9-1-1 Call.) Mark, on the other hand, testified that he did not know

that law enforcement was outside until later when he went out his back door to “find out who was shooting

at [him]” and saw police vehicles in the yard and driveway. (M. Campbell Dep. at 79–80.)

6 Both Officers claim they feared for their safety at this point. (Doc. No. 71-1 ¶ 3; Doc. No. 71-2 ¶ 4.)

7 Both Officers claim they believe Mark had a gun when he opened the door. (Doc. No. 71-1 ¶ 5; Doc. No.

71-2 ¶ 4.) Fox testified that he fired his weapon because he “perceived what [he] observed . . . to [be] a

firearm.” (Fox Dep. at 25–26.) Mark, however, testified that he did not have a gun and that he thinks he had

his cell phone in his hand. (M. Campbell Dep. at 45, 48, 72).

(Fox dash-cam; Fox body-cam; Austin body-cam.) After the first two shots, Mark fell to the floor

inside the house, kicked the door shut, and yelled for Sherrie to call 9-1-1 because “somebody”

was shooting at them. (M. Campbell Dep. at 50; S. Campbell Dep. at 33–34). Sherrie was in the

bedroom at the time. (S. Campbell Dep. at 33.) The shots did not hit anyone, and law enforcement

did not locate a weapon in a subsequent search of the residence. (Doc. No. 75-1 ¶¶ 35–36.)

The Officers then made their way behind a patrol car as Fox reported “shots fired” over the

radio. Almost a minute later, Mark yelled profanities at Fox and Austin through the closed door.

A few minutes later, Mark opened the door and stood on the porch, holding up a flat, reflective,

rectangular item in his right hand. Fox and Austin yelled at him to get on the ground and show his

hands. Mark yelled that his phone was in his hand. Mark lifted his empty left hand, yelled he was

not getting on the ground, yelled for Fox and Austin to shoot him, yelled profanities, and then went

inside and shut the door. About a minute later, Mark again opened the door and stood in the

doorway, appearing to talk on the phone and point at Fox and Austin. Fox and Austin yelled at

him to show his hands. Mark yelled back and then went inside and shut the door. (Fox dash-cam;

Fox body-cam; Austin body-cam.)

Meanwhile, after the Officers returned to the patrol car, they made several statements

reflecting that they did not know what, if anything, Mark has holding when he opened the door.

For instance, Fox asked, “What did he point at us?” and Austin replied, “I don’t know, he just

came out the door and pointed something, so I ducked.” Fox also reported over the radio that Mark

“came out the door with something in his hands.” Austin later asked what Mark came “out the

door with,” and Fox replied, “I don’t know, he had something in his hand and he raised it up.”

Austin responded, “He came out the door with his hand raised, that’s where I heard you shooting,

I just backed up.” (Fox body-cam; Austin body-cam.)

Several other officers responded to the area, one of whom apprehended and arrested Mark

in the backyard about 9 minutes after Mark’s last interaction with Fox and Austin. (Fox dash-cam;

Fox body-cam; Austin body-cam.) On three separate occasions, Fox explained the shooting to

other officers on the scene. Each time, Fox stated that he fired after Mark asked if Fox and Austin

had a gun, said that he had a gun, opened the door, and “lift[ed] something up.” During one of

these explanations, Austin stated that Mark “came to the door, had a gun,” before trailing off. (Fox

body-cam; Austin body-cam.)

After Mark’s arrest, Fox and Austin accompanied a Detective to “clear the house.” Sherrie

was still in the bedroom with the door closed and still on the phone with 9-1-1. Austin and another

officer directed Sherrie to come out with her hands visible, and she complied. Austin cuffed and

detained Sherrie for about 3.5 minutes while other officers finished clearing the house. The

Detective questioned Sherrie, directed Austin to uncuff her, continued questioning her, and then

directed her to complete a written statement. Sherrie was crying off and on for much of this

interaction until she was taken to complete a statement. (Fox body-cam; Austin body-cam.)

B. Cheatham County’s Practices and Customs8

New hires for the Cheatham County Sheriff’s Department receive 12 to 14 weeks of

training through the Tennessee Law Enforcement Training Academy, during which they “learn all

8 Plaintiffs object to the format of the County’s Statement of Undisputed Material Facts. (Doc. No. 78-1 at

1–2.) The Court agrees that the County presented several categories of non-factual statements as statements

of fact, including allegations (id. ¶¶ 1–2, 9, 17–18), summarized or quoted deposition testimony (id. ¶¶ 8,

13–15, 19–39, 42–43), and legal conclusions (id. ¶¶ 40–41, 44). This format is improper because a party

moving for summary judgment should set forth each fact “in a separate, numbered paragraph” that is

“supported by specific citation to the record.” Local Rule 56.01(b). Regardless, “Rule 56(c)(1)(A) permits

a party seeking summary judgment to rely on,” among other things, “‘depositions’ . . . in the record.” Mount

Vernon Fire Ins. Co. v. Liem Constr., Inc., No. 3:16-cv-00689, 2017 WL 1489082, at *2 (M.D. Tenn. Apr.

26, 2017). Thus, for the purpose of ruling on the pending summary judgment motions, the Court will

consider any assertions of fact within the deposition testimony cited in the County’s Statement of

Undisputed Material Facts. However, the Court will not consider any extraneous, non-material statements

within this testimony.

the basic skills,” including constitutional law, use of force, physical fitness, and shooting. (Doc.

No. 78-1 ¶ 27; Breedlove Dep. at 21.) After this training, new hires are placed on a one-year

probation, but they may “start riding within six weeks or two months” based on the evaluation of

a supervisor. (Breedlove Dep. at 21.)

All Sheriff’s Department officers are required to complete 40 annual hours of “in-service”

training, which includes training on the use of deadly force under state law, firearms, emergency

vehicles, domestic violence cases, and other areas. (Id. at 23, 25–28.) Officers Fox and Austin each

testified that they received training on the use of force. (Fox. Dep. at 16; Austin Dep. at 11.)

It is Sheriff’s Department policy to respond to all 9-1-1 hang-up calls, and the response is

typically considered a “welfare check.” (Breedlove Dep. at 33.) It is not departmental policy for

officers to immediately identify themselves as law enforcement when they knock on the door of a

residence. (Id. at 37.) Sheriff Breedlove testified that “[i]t depends on the situation itself and the

nature of the call,” and that for welfare checks, the process typically goes as follows: “[W]e come,

we knock on the door, and mostly in all cases somebody on the other end is going to go, ‘who is

it?’ ‘Sheriff’s office.’ Or they’re going to look out the window and see that the sheriff’s office is

here.” (Id. at 37–38.) Fox testified that he was trained to announce himself as law enforcement

when executing a search warrant. (Fox. Dep. at 10.)

Sheriff Breedlove also personally maintains a Facebook page for the Cheatham County

Sheriff’s Department. (Breedlove Dep. at 72.) He claims that the purpose of the page is to inform

the public about crimes and the Department’s efforts to deter them, develop a relationship with the

community, and enlist the public’s help in locating individuals with outstanding arrest warrants.

(Id. at 72–73.) Breedlove testified that he writes “snippets and stories” about criminal activity

using “humor [and] seriousness.” (Id. at 73–74.) He also testified that he has used the page to

“shame[] criminals” to deter criminals and drug dealers. (Id. at 75–76.)

C. This Lawsuit

On February 16, 2019, Plaintiffs filed this lawsuit asserting four claims. In Count I,

Plaintiffs assert that Officer Fox used excessive force against them. (Doc. No. 1 ¶¶ 47–58.) In

Count II, Plaintiffs assert that Officer Austin failed to protect them from Fox’s use of force. (Id.

¶¶ 59–69.) In Count III, Plaintiffs assert a claim of municipal liability against the County. (Id. ¶¶

70–81.) And in Count IV, Plaintiffs assert that all Defendants are liable for the Tennessee tort of

intentional (or negligent) infliction of emotional distress. (Id. ¶¶ 82–98.) The Officers and the

County move for summary judgment on all claims.

II. Legal Standard

The Court will grant summary judgment to a moving party that shows “there is no genuine

dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A genuine dispute of material fact exists ‘if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.’” Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir.

2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court “must

ultimately decide ‘whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Burgess v.

Fischer, 735 F.3d 462, 471 (6th Cir. 2013) (quoting Anderson, 477 U.S. at 251–52). In doing so,

the Court “draw[s] all reasonable inferences in the light most favorable to the non-moving party.”

Davis v. Gallagher, 951 F.3d 743, 747 (6th Cir. 2020) (citing Anderson, 477 U.S. at 251–52). “But

where, as here, there is ‘a videotape capturing the events in question,’ the court must ‘view[] the

facts in the light depicted by the videotape.’” Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir.

2012) (quoting Scott v. Harris, 550 U.S. 372, 378–81 (2007)).

III. Analysis

A. Fourth Amendment Claims against the Officers

Counts I and II are asserted on behalf of both Plaintiffs. That is, both Mark and Sherrie

assert that Officer Fox used excessive force against them, and that Officer Austin failed to protect

them from that use of force. These claims arise under the Fourth Amendment. See Graham v.

Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims that law enforcement officers have used excessive

force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”);

Pineda v. Hamilton Cnty., Ohio, 977 F.3d 483, 493 (6th Cir. 2020) (collecting cases) (“[A] nearby

officer who does not actively participate in the use of excessive force may still violate the Fourth

Amendment if the officer fails to intervene to stop a fellow officer’s use of such force.”) The Court

will address two preliminary arguments raised by the Officers before turning to their qualified

immunity defense.

1. Statute of Limitations

The Officers contend that Plaintiffs’ Section 1983 claim against Officer Fox is barred by

the statute of limitations because they did not serve Fox in a timely manner. (Doc. No. 70 at 21–

23.) Plaintiffs disagree. (Doc. No. 75 at 15–18.) The Court concurs with Plaintiffs.

For Section 1983 claims, state law determines “the length of the limitations period,” as

well as the “closely related” issue of how to apply the statute of limitations. Markowitz v. Harper,

197 F. App’x 387, 389 (6th Cir. 2006) (quoting Harris v. United States, 422 F.3d 322, 331 (6th

Cir. 2005)). In Tennessee, the limitations period is one year. Jordan v. Blount Cnty., 885 F.3d 413,

415 (6th Cir. 2018) (citing Tenn. Code Ann. § 28-3-104(a)). Meanwhile, under federal law, the

limitations period starts running “when the plaintiff knows or has reason to know of the injury

which is the basis of his action.” Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843

(6th Cir. 2015) (quoting Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005)).

Here, the shooting incident at Plaintiffs’ residence occurred on August 21, 2018, so

Plaintiffs had one year from that date to file any Section 1983 claim related to the shooting.

Plaintiffs initiated this action well within this deadline by filing the complaint on February 16,

2019. (Doc. No. 1.) The Officers nonetheless argue that Plaintiffs’ Section 1983 claim against

Officer Fox is untimely because Plaintiffs did not comply with Tennessee Rule of Civil Procedure

3, which establishes that “timely service of process is essential to the commencement of an action

such that the statute of limitations is satisfied.” Dolan v. United States, 514 F.3d 587, 595 (6th Cir.

2008) (applying Tennessee Rule of Civil Procedure 3 to Bivens claims).

Tennessee Rule of Civil Procedure 3 provides:

All civil actions are commenced by filing a complaint with the clerk of the court.

An action is commenced within the meaning of any statute of limitations upon such

filing of a complaint, whether process be issued or not issued and whether process

be returned served or unserved. If process remains unissued for 90 days or is not

served within 90 days from issuance, regardless of the reason, the plaintiff cannot

rely upon the original commencement to toll the running of a statute of limitations

unless the plaintiff continues the action by obtaining issuance of new process within

one year from issuance of the previous process or, if no process is issued, within

one year of the filing of the complaint.

Tenn. R. Civ. P. 3 (emphasis added).

Here, process issued for Fox (and the other Defendants) on February 19, 2019. (Doc. No.

5 at 4.) But Plaintiffs did not serve Fox within 90 days of that date. Thus, to satisfy the statute of

limitations under Tennessee law, Plaintiffs were required to “obtain[] issuance of new process

within one year from” February 19, 2019. See Tenn. R. Civ. P. 3. And Plaintiffs did just that, by

obtaining issuance of an alias summons for Fox on January 2, 2020. (Doc. No. 39.) The record

reflects that Fox was personally served the next day. (Doc. No. 40 at 2.) Accordingly, by the

express terms of Tennessee Rule of Civil Procedure 3, Plaintiffs may “rely upon the original

commencement” of the action on February 16, 2019, for purposes of the statute of limitations.

The Officers argue that Plaintiffs served Fox “an invalid summons” because they had yet

to be granted an extension of time to serve Fox under Federal Rule of Civil Procedure 4(m). (Doc.

No. 70 at 23.) But the question of timely service under Rule 4(m) is distinct from the question of

timeliness under the Tennessee statute of limitations. See Farivar v. Lawson, No. 3:14-CV-76-

TAV-HBG, 2017 WL 149970, at *6 (E.D. Tenn. Jan. 13, 2017) (quoting Sydney v. Columbia

Sussex Corp., No. 3:13-CV-312-TAV-CCS, 2014 WL 7156953, at *5 (E.D. Tenn. Dec. 15, 2014))

(“It’s not the failure to serve within the 120 days . . . that has undone the plaintiff here. It is state

law, which must be satisfied in addition to the Rule 4(m) requirement.”). Non-compliance with

Rule 4(m) only affects a state statute of limitations where “the failure to serve process causes the

district court to dismiss the action.” Sydney, 2014 WL 7156953, at *6 (quoting Mann v. Am.

Airlines, 324 F.3d 1088, 1091 (9th Cir. 2003)). That is not the case here, as the Magistrate Judge

ultimately granted Plaintiffs’ motion for an extension of time to serve Fox under Rule 4(m). (Doc.

No. 45.) Thus, Plaintiffs’ Section 1983 claims against Fox are not subject to dismissal as untimely

under the applicable statute of limitations.

2. Seizure of Mark and Sherrie

Next, the Officers argue that Plaintiffs’ Fourth Amendment claims fail as a matter of law

because neither Mark nor Sherrie were “seized” when Fox fired at Mark and missed. Although

Plaintiffs do not directly respond to these arguments, the Court finds summary judgment to be

inappropriate on this basis.

A citizen has standing to bring a Fourth Amendment claim when he or she is “seized” by

a law enforcement officer. See Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2005) (quoting United

States v. Richardson, 949 F.2d 851, 855 (6th Cir. 1991)) (“The[] safeguards of the Fourth

Amendment, ‘with respect to police/citizen contact, vest only after [a] citizen has been seized.’”).

“A seizure occurs where, ‘in view of all the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.’” Id. (quoting United States v.

Mendenhall, 446 U.S. 544, 544 (1980)).

a. Mark

The Officers contend that they did not seize Mark within the meaning of the Fourth

Amendment because Fox’s shots did not strike Mark or cause him to submit to the Officers’

authority. (Doc. No. 70 at 9–10.) Even though Mark was not hit by the gunfire, however, a

reasonable person in Mark’s circumstances would not have believed that he was free to leave the

premises. See Floyd v. City of Detroit, 518 F.3d 398, 405–06 (6th Cir. 2008) (rejecting officer’s

argument he could not have violated a citizen’s Fourth Amendment rights by shooting at and

missing the citizen); see also Rodriguez v. Passinault, 637 F.3d 675, 687 (6th Cir. 2011) (citations

omitted) (stating that it “goes against established law” to believe that a citizen cannot “maintain

an excessive force/unreasonable seizure Fourth Amendment claim without having been shot”).

The dash- and body-cam footage reflects that Fox knocked on Plaintiffs’ front door,

responded to Mark’s question through the closed door with a command to “come on out,” and soon

thereafter fired two shots toward Mark as Mark opened the door. Fox fired another six shots at

Mark about 3 seconds later. Fox and Austin retreated behind the police cars in the front yard but

remained on the scene. And Mark was aware of their continued presence, as reflected by his

intermittent exchanges with Fox and Austin through the closed door and from the front porch.

Based on this evidence, Fox’s shots “ha[d] the intended effect of contributing to [Mark’s]

immediate restraint” within the residence. See Jacobs v. Alam, 915 F.3d 1028, 1042 (6th Cir. 2019)

(quoting Thompson v. City of Lebanon, 831 F.3d 366, 371 (6th Cir. 2016)) (finding seizure where

officer shot at and missed a plaintiff within a house who, according to plaintiff, retreated to another

part of the residence and only later learned it was law enforcement who shot at him). Accordingly,

Mark was seized for Fourth Amendment purposes.9

b. Sherrie

The Officers also argue that Sherrie was not “seized” because Fox did not know she was

in the residence when Fox fired at Mark. (Doc. No. 70 at 17–18.) A seizure occurs “when there is

a governmental termination of freedom of movement through means intentionally applied.”

Rodriguez, 637 F.3d at 680 (quoting Brower v. Cnty. of Inyo, 489 U.S. 596–97 (1989) (emphasis

in original)). In other words, an officer must “willfull[y]” apply the means by which he terminates

a citizen’s freedom of movement, but a seizure may “occur[] even when an unintended person or

thing is the object of the detention or taking.” Id. at 681 (quoting Brower, 489 U.S. at 596).

In Fisher v. City of Memphis, for example, the Sixth Circuit held that “an officer’s

intentionally applied exertion of force directed at a vehicle to stop it effectuates a seizure of all

occupants therein,” regardless of “whether the police were aware of [a] passenger’s presence in

the vehicle.” Rodriguez, 637 F.3d at 686 (citing Fisher, 534 F.3d 312, 318–19 (6th Cir. 2000)).

The Sixth Circuit reasoned that, “[b]y shooting at the driver of the moving car, [the officer]

intended to stop the car, effectively seizing everyone inside, including the [passenger].” Id. at 687

9 That is not to say that a seizure necessarily occurs every time an officer fires his weapon. As the Officers

point out, the Sixth Circuit has twice concluded that an officer did not seize a citizen by shooting and

missing. (Doc. No. 70 at 9 (citing Cameron v. City of Pontiac, 813 F.2d 782, 785 (6th Cir. 1987) and Adams

v. City of Auburn Hills, 336 F.3d 515, 519 (6th Cir. 2003)). But the Sixth Circuit has also clarified that “the

key distinction” of these two cases is that they “involved police firing errant shots at a fleeing suspect,”

Floyd, 518 F.3d at 405 (emphasis in original), something not present here.

(quoting Fisher, 234 F.3d at 318). And in Rodriguez v. Passinault, the Sixth Circuit held that Fisher

applies even where the passenger is not struck by the officer’s gunfire. Id.

Here, following the Sixth Circuit’s guidance in Fisher and Rodriguez, the Court concludes

that Sherrie was “seized” for Fourth Amendment purposes. It is undisputed that Fox intentionally

fired at Mark as Mark opened the front door. Thus, Plaintiffs’ residence “was the intended target

of [Fox’s] intentionally applied exertion of force.” Rodriguez, 637 F.3d at 683 (quoting Fisher,

234 F.3d at 318). And by shooting at Mark, Fox intended to acquire physical control over the

residence, “effectively seizing everyone inside, including” Sherrie. See id. (quoting Fisher, 234

F.3d at 318–19). Accordingly, even though the Officers were not aware of Sherrie’s presence, she

was also seized under the Fourth Amendment.

3. Qualified Immunity

The Officers next argue that they are entitled to qualified immunity on Plaintiffs’ Section

1983 claims. (Doc. No. 70 at 6–17.) The Court analyzes “a defendant’s assertion of qualified

immunity in two steps: (1) determining whether the defendant violated a constitutional right and

(2) deciding whether that right was clearly established at the time of the incident.” Fazica v. Jordan,

926 F.3d 283, 289 (6th Cir. 2019) (citing Shreve v. Franklin Cnty., 743 F.3d 126, 134 (6th Cir.

2014)). As explained below, qualified immunity will be denied on Plaintiffs’ excessive force claim

against Officer Fox but granted on their failure-to-protect claim against Officer Austin.

a. Excessive Force

i. Constitutional Violation

To determine if Officer Fox’s “use of force was excessive and thus in violation of the

Fourth Amendment,” the Court considers “‘whether [his] actions [we]re objectively reasonable in

light of the facts and circumstances confronting [hi]m, without regard to . . . underlying intent or

motivation.’” Bard v. Brown Cnty., Ohio, 970 F.3d 738, 753 (6th Cir. 2020) (quoting Graham v.

Connor, 490 U.S. 386, 397 (1989)).

Where, as here, an officer uses deadly force, that use of force “is only constitutionally

permissible if ‘the officer has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others . . . .’” Livermore ex rel. Rohm v. Lubelan, 476

F.3d 397, 404 (6th Cir. 2007) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). There are

“three non-exclusive factors that lower courts should consider in determining the reasonableness

of force used: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate

threat to the safety of the police officers or others; and (3) whether the suspect actively resisted

arrest or attempted to evade arrest by flight.” Jacobs, 915 F.3d at 1040 (quoting Livermore, 476

F.3d at 404).

Accepting the facts depicted by the dash- and body-cams, and accepting Plaintiffs’ version

of facts that are not clear from the footage, a reasonable jury could conclude that Fox’s use of force

was objectively unreasonable. The Officers do not attempt to argue that the first or third factors

mentioned above weigh in their favor, and for good reason. When Fox fired at Mark as he opened

the front door, Plaintiffs were not committing a crime; indeed, they were not suspected of being

involved in criminal activity of any kind, as it is undisputed that the Officers were dispatched to

Plaintiffs’ residence for a “welfare check” triggered by 9-1-1 hang-up calls. Plaintiffs also were

not resisting arrest or fleeing at the time; Mark was met with gunfire within about two seconds of

opening the front door part-way.

Rather, it is the second factor that is in dispute. “In excessive force cases, the threat factor

is ‘a minimum requirement for the use of deadly force,’ meaning deadly force ‘may be used only

if the officer has probable cause to believe that the suspect poses a threat of severe physical harm.’”

Mullins v. Cyranek, 805 F.3d 760, 766 (6th Cir. 2015) (quoting Untalan v. City of Lorain, 430

F.3d 312, 314 (6th Cir. 2005)).

The Officers argue that they “feared for their lives and considered [Mark] a threat” because

Mark “advis[ed them] that he had a gun and then proceeded to open his front door with something

believed to be a gun in his hand.” (Doc. No. 70 at 14.) Given the totality of the circumstances,

however, it was not reasonable for Fox to perceive Mark as posing an immediate threat of severe

physical harm.

First, while it is undisputed that Mark stated he had a gun, it is important to put that

statement in context. To recap, Fox knocked on Plaintiffs’ door at 9:30 at night without comment,

meaning that the Officers did not announce that they were law enforcement. About 10 seconds

later, Mark said, “You got a gun?” through the closed door. Fox responded, while unholstering his

gun, “Mark . . . come on out Mark, what’s up man?” Mark then repeated, “You got a gun?” Fox

said, “What’s going on Mark?” And at that point, with the door still closed, Mark stated, “I got

one too.”10 Viewing these facts in a light favorable to Plaintiffs, Mark’s statement was defensive

and did not give Fox and Austin reason to think that Mark intended to use a gun imminently. See

Woodcock v. City of Bowling Green, 679 F. App’x 419, 424–25 (6th Cir. 2017) (concluding it

was objectively unreasonable for an officer to shoot an individual who “had told the police over

the phone that he had a gun”).

Moreover, it is not reasonable for an officer to use deadly force on an individual just

because he believes that the individual possesses a gun. “[M]erely possessing a weapon is not

enough—the officer must reasonably believe the individual poses a danger of serious physical

10 To be clear, Mark testified that he did not, in fact, have a gun at that time, but he did not know who had

just knocked on his door and lied about having a gun to deter them from coming inside. (M. Campbell Dep.

at 47–48.)

harm to himself or others to justify deadly force.” Jacobs, 915 F.3d at 1040 (citing Bouggess v.

Mattingly, 482 F.3d 886, 896 (6th Cir. 2007)); see also Thomas v. City of Columbus, Ohio, 854

F.3d 361, 366 (6th Cir. 2017) (“[W]e do not hold that an officer may shoot a suspect merely

because he has a gun in his hand. Whether a suspect has a weapon constitutes just one consideration

in assessing the totality of the circumstances.”). As explained by the Sixth Circuit, “the

reasonableness of an officer’s asserted fear” of an individual who they reasonably believed to

possess a gun “will often turn on whether an armed suspect pointed h[is] weapon at another

person.” Hicks v. Scott, 958 F.3d 421, 435–36 (6th Cir. 2020) (collecting cases).

Here, a genuine dispute of fact exists on this point. Of the three videos submitted by the

parties, only Officer Austin’s body-cam depicts Mark opening the door, and only then for a split-

second. (See Austin body-cam at 7:17.) This footage depicts an indistinct, shaded figure opening

the door part-way; it is unclear whether Mark was holding anything in his hand, and if so, what it

looked like. (Id.) Fox testified that he perceived Mark to be holding a gun when Mark opened the

door. (Fox. Dep. at 25–26, 29.) But in the immediate aftermath of the shooting, at no point does

Fox claim to have perceived Mark as holding a gun, either when discussing the incident with

Austin or explaining what happened to other law enforcement officials who arrived on the scene.

Law enforcement did not locate any weapon when they searched the residence following the

incident. And Mark testified that he did not have a weapon when he opened the door (M. Campbell

Dep. at 44–45), although he “think[s] [he] had [his] cell phone in [his] hand” so he could call 9-1-

1 if someone was breaking into his car (id. at 48). Given the ambiguity of the video footage, and

the conflicting accounts of the parties, material factual disputes preclude a finding that Fox’s use

of lethal force was objectively reasonable. See Hicks, 958 F.3d at 436 (collecting cases) (“[I]f a

suspect possessed a gun, we will generally deny qualified immunity only if there is a genuine

dispute of fact as to whether the gun was pointed at someone.”).

The two cases on which the Officers primarily rely to argue to the contrary are

distinguishable. (See Doc. No. 70 at 13–14 (citing Pollard v. City of Columbus, Ohio, 780 F.3d

395 (6th Cir. 2015) and Simmonds v. Genesee Cnty, 682 F,3d 438 (6th Cir. 2012)). That is, in both

Pollard and Simmonds, “the officers’ belief that they faced immediate danger did not rest only on

indications that [the shooting targets] were armed; the belief also rested on [the targets’] menacing

gestures, which were reasonably interpreted as demonstrating an intention to shoot.” Knowlton,

726 F. App’x at 331 (distinguishing Pollard and Simmonds). But here, as explained above, genuine

factual disputes exist as to whether Mark made a “menacing gesture[] . . . reasonably interpreted

as demonstrating an intention to shoot.” See id.

ii. Clearly Established Right

At the time Fox fired into Plaintiffs’ residence, it was clearly established that “using deadly

force against a suspect who does not pose a threat to anyone and is not committing a crime or

attempting to evade arrest violates the suspect’s Fourth Amendment rights.” Thompson, 831 F.3d

at 372 (citing Murray-Ruhl v. Passinault, 246 F. App’x 338, 347 (6th Cir. 2007) and Ciminillo v.

Streicher, 434 F.3d 461, 467 (6th Cir. 2006)); see also Jacobs, 915 F.3d at 1040 (quoting King v.

Taylor, 694 F.3d 650, 664 (6th Cir. 2012)) (“It has been clearly established in this circuit for some

time that individuals have a right not to be shot unless they are perceived as posing a threat to

officers or others.”). Of course, the Supreme Court has cautioned that such general statements of

the law “do not by themselves create clearly established law outside ‘an obvious case.’” White v.

Pauly, 137 S. Ct. 548, 552 (2017) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). Thus,

the Court must consider whether it was clearly established that Plaintiffs had a right to be free from

the use of lethal force “in ‘the specific context of the case.’” Mullenix v. Luna, 577 U.S. 7, 16

(2015) (quoting Brosseau, 543 U.S. at 198).

Considering the particularized facts of this case, there is an important factual dispute about

Mark’s appearance to Fox when Mark opened the front door. Accepting Plaintiffs’ version of the

facts, he was not holding a gun or a weapon of any kind; he testified that he may have been holding

a cell phone, but the extremely brief and indistinct video footage of Mark opening the door does

not show him making a menacing gesture or pointing anything at Fox and Austin. On these facts,

this case is sufficiently similar to Floyd, a 2008 case in which the Sixth Circuit denied qualified

immunity to officers where there was a dispute of fact about whether the shooting target was armed

and performed a threatening act before the officers shot at him. See 518 F.3d 407 (“The officers’

contrary assertion that Floyd was in fact armed and fired first is simply irrelevant . . . .”). As in

Floyd, Fox fired “without (1) announcing [himself] as [a] police officer[], (2) ordering [Mark] to

surrender, or (3) pausing to determine whether [Mark] was actually armed.” See 518 F.3d at 409.

Thus, as in Floyd, the Court concludes that Plaintiffs’ right to be free from the use of lethal force

was clearly established when construing the facts in their favor.11 Summary judgment is therefore

inappropriate on Plaintiffs’ excessive force claim.

b. Failure to Protect

Even accepting Plaintiffs’ version of the facts, however, they have not demonstrated that

Officer Austin violated their constitutional rights. Plaintiffs assert that Austin failed to protect them

from Fox’s use of force. To prove a constitutional violation by “a nearby officer who d[id] not

actively participate in the use of excessive force,” a plaintiff must “establish that ‘(1) the officer

11 The Officers attempt to distinguish Floyd, in part, by arguing that Floyd “claimed that he halted with his

hands up and stated, ‘I don’t have a gun’ before being shot by unprovoked law enforcement.” (Doc. No. 80

at 4 (emphasis added)). However, Floyd claimed he made that statement only “after hearing the first shot,”

which missed. Floyd, 518 F.3d at 402 (emphasis added).

observed or had reason to know that excessive force would be or was being used, and (2) the

officer had both the opportunity and the means to prevent the harm from occurring.’” Pineda, 977

F.3d at 493 (quoting Fazica v. Jordan, 926 F.3d 283, 289 (6th Cir. 2019)). The footage submitted

by the parties does not support either showing.

First, in the short time period after Fox knocked on the door and before Fox discharged his

gun, Austin did not have reason to know that Fox would fire. The amount of time from first knock

to first shot was about 28 seconds. During this time, Fox exchanged words with Mark through the

closed door, walked to the other side of Austin, and walked behind Austin with his back to the

door. Fox also drew his gun as he started walking behind Austin, but that occurred only 3 or 4

seconds before Fox fired the first shot. Austin, meanwhile, remained stationary, such that he was

standing between Fox and the door when Mark began to open it. Thus, if Austin knew that Fox

was about to shoot toward the door, then Austin also voluntarily stood in the line of fire. The Court

will not draw that unreasonable conclusion.

Second, Austin did not have the opportunity and means to intervene in Fox’s use of force

because the incident did not last long enough for Austin “to both perceive what was going on and

intercede to stop it.” See Burgess v. Fischer, 735 F.3d 462, 475–76 (6th Cir. 2013) (collecting

cases). The amount of time between Fox drawing his weapon and firing at Mark was about 3 or 4

seconds. No reasonable juror could find that Austin committed a constitutional violation by failing

to prevent Fox from firing his weapon in this short amount of time. See Bard, 970 F.3d at 753

(“The video of this incident confirms that the other officers did not have the opportunity to prevent

any possible harm from occurring, given that the use of force lasted approximately three

seconds.”). Austin then either tripped or jumped to the ground, where he was in no position to

prevent Fox from firing the next six shots. The entire sequence from Fox drawing his weapon to

taking his final shot lasted less than 10 seconds. Again, this brief window of time does not reflect

that Austin committed a constitutional violation. See Pineda, 977 F.3d at 493 (quoting Alexander

v. Carter for Boyd, 733 F. App’x 256, 265 (6th Cir. 2018)) (“[O]ur caselaw suggests that ‘an

excessive use of force lasting ten seconds or less does not give a defendant ‘enough time to

perceive the incident and intervene’ to stop such force.’”).

Accordingly, the Officers will be granted summary judgment on Plaintiffs’ failure-to-

protect claim against Officer Austin.

B. Municipal Liability Claim against the County

Plaintiffs also assert a municipal liability claim against the Cheatham County Municipal

Government, the Sheriff’s Department, and Sheriff Mike Breedlove in his official capacity. To

impose municipal liability under Section 1983, Plaintiffs “must show (1) that they suffered a

constitutional violation and (2) that a municipal policy or custom directly caused the violation.”

Hardrick v. City of Detroit, Mich., 876 F.3d 238, 243 (6th Cir. 2017) (citing Monell v. New York

City Dep’t of Soc. Servs., 436 U.S. 658, 690–92 (1978)).

1. Redundant Party

Initially, the County contends that Plaintiff’s official-capacity claims against Sheriff

Breedlove should be dismissed as redundant because they are essentially claims against the

County, and the County itself is named as a Defendant. (Doc. No. 66 at 7.) Plaintiffs do not respond

to this argument, and the Court agrees with the County. See Jackson v. Shelby Cnty. Gov’t, No.

07-6356, 2008 WL 4915434, at *2 (6th Cir. 2008 Nov. 10, 2008) (“[T]he district court properly

granted summary judgment to the defendants on the claims against the sheriff in his official

capacity because those claims mirror the claims against the County, and are therefore redundant.”);

see also Sagan v. Sumner Cnty. Bd. of Educ., 726 F. Supp. 2d 868, 876 (M.D. Tenn. 2010) (“[A]

claim against an individual in her official capacity is tantamount to a claim against the employer

and . . . where, as here, the employer is also sued, the official-capacity suit against the employee

is simply redundant and may be dismissed.”). Because Plaintiffs bring only official capacity claims

against Sheriff Breedlove, he will be dismissed as a party.12

2. Policy or Custom

Turning to the substance of this claim, the Court has concluded that the Officers are not

entitled to summary judgment on Plaintiffs’ Fourth Amendment excessive force claim against Fox.

Thus, for Plaintiffs’ claims against the County to survive summary judgment, they must

demonstrate that the County had a policy or custom that directly caused this asserted constitutional

violation.

“There are four methods of proving a municipality’s illegal policy or custom: the plaintiff

may prove ‘(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.’” Wright v. City of Euclid, Ohio, 962 F.3d 852, 880 (6th Cir. 2020)

(quoting Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019)).

In the Complaint, Plaintiffs allege that: (1) Sheriff Breedlove, the official “responsible for

implementing the County’s policies,” created “a culture and unwritten policy within the Sheriff’s

Department that encourages disrespect, arrogance, malice and abuse” by maintaining “a

departmental Facebook page where it is his regular practice to mock and ridicule citizens who have

12 Although the County does not move for summary judgment on this ground, the Court also notes that

Plaintiffs’ municipal liability claim against the Sheriff’s Department is subject to dismissal because

“sheriff’s departments are not proper parties to a § 1983 suit.” See Mathes v. Metro. Gov’t of Nashville and

Davidson Cnty., No. 3:10-cv-0496, 2010 WL 3341889, at *2 (M.D. Tenn. Aug. 25, 2010) (collecting cases).

However, such a dismissal would not restrict Plaintiffs’ ability to pursue their municipal liability claim

directly against the County.

been ACCUSED of crimes within the county” (Doc. No. 1 ¶¶ 72–76, 78–79); and (2) the Sheriff’s

Department “has inadequately trained and/or disciplined its employees in the proper use of deadly

force” (id. ¶ 77). As explained below, Plaintiffs have not presented sufficient evidence to support

a municipal liability claim based on these allegations.

a. Facebook Page

As alleged in the Complaint, Sheriff Breedlove’s maintenance of the departmental

Facebook page implicates two of the four methods for proving an illegal policy or custom. That

is, Plaintiffs allege that the “ongoing existence” of the Facebook page maintained by Sheriff

Breedlove, an official with final decision making authority, reflects that Breedlove has ratified the

unconstitutional acts of Sheriff’s Department employees. (See Doc. No. 1 ¶ 75.) Plaintiffs also

allege that Breedlove’s maintenance of the Facebook page either created or contributed to a custom

of tolerance or acquiescence of federal rights violations. (See id. ¶¶ 73, 78.)

Importantly, however, the record does not contain any evidence regarding the specific

contents of the Facebook page, so the Court has no basis to conclude that either theory of municipal

liability is viable. In the Complaint, Plaintiffs include a hyperlink to the Facebook page with a few

purported quotes from it. (Id. ¶ 74.) But Plaintiffs “cannot merely rely on the allegations in their

complaint to defeat summary judgment.” Tullis v. UMB Bank, N.A., 423 F. App’x 567, 570 (6th

Cir. 2011) (citation omitted).

Similarly, in their Response to the County’s summary judgment Motion, Plaintiffs include

a hyperlink and invite the Court to undertake “a contemporaneous viewing of the department’s

Facebook page” and the “public comments from citizens.” (Doc. No. 78 at 11.) But the Court is

not required “to sift through the record in search of evidence to support a party’s opposition to

summary judgment,” Jackson v. Tenn. Dep’t of Safety, No. 3:05-CV-231, 2009 WL 1437570, at

*15 (E.D. Tenn. May 21, 2009) (quoting Fuentas v. Postmaster Gen. of U.S. Postal Serv., 282 F.

App’x 296, 300 (5th Cir. 2008))—much less sift through “inadmissible external hyperlinks that

lack a foundation in evidence,” see F.T.C. v. OMICS Grp., 374 F. Supp. 3d 994, 1002 n.2 (D. Nev.

2019) (citing Fed. R. Evid. 901(a)). And Plaintiffs do not request that the Court take judicial notice

of any specific content from the Sheriff’s Department Facebook page.

At his deposition, Sheriff Breedlove discussed his maintenance of the Facebook page in

general terms. (See Breedlove Dep. at 72–76.) But without any specific evidence of the Facebook

page’s content in the record, the Court cannot evaluate the extent to which it may or may not have

created or contributed to an illegal policy or custom. Plaintiffs cannot rely on argument and

unsubstantiated assertions to present their Facebook-based theories of municipal liability to a jury.

See Jones v. City of Franklin, 677 F. App’x 279, 282 (6th Cir. 2017) (citing Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990)) (“[C]onclusory allegations, speculation, and unsubstantiated

assertions are not evidence, and are not sufficient to defeat a well-supported motion for summary

judgment.”). Accordingly, in considering Plaintiffs’ municipal liability claims, the departmental

Facebook page does not factor into the Court’s analysis.

b. Failure to Train

Plaintiffs also allege that Officer Fox’s use of force was directly caused by a policy of

inadequate training. (See Doc. No. 1 ¶ 77.) “In order to show that a municipality is liable for a

failure to train its employees, a plaintiff must establish that: 1) the [municipality’s] training

program was inadequate for the tasks that officers must perform; 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.” Griffith v. Franklin Cnty., Ky., 975 F.3d 554, 583 (6th Cir. 2020)

(quoting Jackson, 925 F.3d at 834).

Plaintiffs argue that the Sheriff’s Department inadequately trained its officers “on the

requirement to announce themselves at person’s homes even when purportedly conducting

‘welfare checks’ on suspect’s homes.” (Doc. No. 78 at 7.) They also generally argue that “there

was a failure of training with regard to the shooting of unarmed plaintiffs.” (Id. at 9.)

As to the adequacy of the Sheriff Department’s training program, Sheriff Breedlove

testified that new hires receive 12 to 14 weeks of training through the state training academy on

areas including constitutional law and the use of force. Breedlove also testified that all officers

must complete 40 hours of annual training on areas including the use of deadly force under state

law. Officers Fox and Austin each testified that they received training on the use of force.

Plaintiffs do not point to any evidence creating a genuine dispute of fact on these claims.

But even assuming, without deciding, that the County’s training was inadequate in some way,

Plaintiffs have not demonstrated that any inadequacy was the result of the County’s deliberate

indifference. And because a reasonable jury could not find that the County was deliberately

indifferent, the Court need not consider whether any inadequacy was closely related to or actually

caused the injury. See Zavatson v. City of Warren, Mich., 714 F. App’x 512, 527 n.1 (6th Cir.

2017).

“There are ‘at least two situations in which inadequate training could be found to be the

result of deliberate indifference.’” Ouza v. City of Dearborn Heights, Mich., 969 F.3d 265, 287

(6th Cir. 2020) (quoting Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003)). “First, and

most commonly, a plaintiff can demonstrate deliberate indifference by showing that the

municipality has failed to act ‘in response to repeated complaints of constitutional violations by

its officers.’” Id. (quoting Cherrington, 344 F.3d at 646). Second, “[i]n a ‘narrow range of

circumstances,’” id. (quoting Bd. of Cnty. Commrs. of Bryan Cnty. v. Brown, 520 U.S. 397, 409

(1997)), “a plaintiff can show deliberate indifference based on ‘single-incident liability’ if the risk

of the constitutional violation is so obvious or foreseeable that it amounts to deliberate indifference

for the city to fail to prepare officers for it,” id. (quoting Connick v. Thompson, 563 U.S. 51, 63

(2011)). Plaintiffs argue both theories of deliberate indifference, and the Court will address each

in turn.

The first type of deliberate indifference requires a plaintiff to “show prior instances of

unconstitutional conduct demonstrating that the County 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.”

Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010) (quoting Fisher v. Harden, 398 F.3d

837, 849 (6th Cir. 2005)). To that end, Plaintiffs point to one prior instance of excessive force at

the jail. (Doc. No. 78 at 10–11.) But as with the departmental Facebook page, there is not any

specific evidence regarding this asserted incident properly before the Court. Rather, in their

Response brief, Plaintiffs include two “inadmissible external hyperlinks that lack a foundation in

evidence,” see OMICS Grp., 374 F. Supp. 3d at 1002 n.2 (citing Fed. R. Evid. 901(a)), without

requesting that the Court take judicial notice of any specific information. (Doc. No. 78 at 10.)

Accordingly, the summary judgment record does not include evidence of any prior instances of

unconstitutional conduct.13

Even considering the description of this incident in Plaintiffs’ Response, moreover, it is

not sufficiently similar to Officer Fox’s asserted constitutional violation to support a finding of

“prior-instance” deliberate indifference. Plaintiffs assert that, in a highly publicized case, County

employees at the jail tased an inmate “at least four times, once for a period of more than fifty

13 The Court notes that Plaintiffs also cite to Sheriff Breedlove’s supposed testimony generally discussing

this incident on pages 14, 16, and 18 of his deposition transcript. (Doc. No. 78 at 10–11.) But these pages

are not included within the excerpts of Breedlove’s deposition transcript submitted by the parties. (See Doc.

Nos. 67-3, 71-4, 75-2 at 4–17, 78-2 at 4–10, 80-1.)

seconds, while tied to a chair.” (Doc. No. 78 at 10–11 (footnote omitted)). But “prior examples of

wrongdoing must violate the same constitutional rights and violate them in the same way.” Berry

v. Delaware Cnty. Sheriff’s Off., 796 F. App’x 857, 863 (6th Cir. 2019) (citing D’Ambrosio v.

Marino, 747 F.3d 378, 388 (6th Cir. 2014)); see also Connick, 563 U.S. at 63 (footnote omitted)

(“Because those incidents are not similar to the violation at issue here, they could not have put

Connick on notice that specific training was necessary to avoid this constitutional violation.”). And

a jailer’s use of excessive force on a restrained inmate—troubling as it is—is simply not the same

type of constitutional violation as an officer’s use of excessive force on a free citizen. See Coley

v. Lucas Cnty., Ohio, 799 F.3d 530, 537–38 (6th Cir. 2015) (explaining the different standards for

excessive force claims brought under the Fourth, Eighth, and Fourteenth Amendments on behalf

of free citizens, convicted prisoners, and pretrial detainees, respectively). For all of these reasons,

Plaintiffs fail to establish the County’s deliberate indifference based on pattern of similar

constitutional violations.

Plaintiffs also fail to demonstrate the County’s deliberate indifference based on a “single-

incident” theory. “‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at

61 (quoting Bryan Cnty., 520 U.S. at 410). “For liability to attach in the instance of a single

violation, the record must show ‘a complete failure to train the police force, 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.’” Harvey v. Campbell Cnty., Tenn., 453 F. App’x

557, 567 (6th Cir. 2011) (quoting Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir. 1982)).

The record reflects that Officer Fox received training in the use of deadly force.14 Plaintiffs

have not come forward with evidence that, without providing additional training to its officers, the

County “was on notice that . . . it was so highly predictable that sheriff’s deputies would misuse

deadly force as to amount to conscious disregard for citizens’ rights.” See Harvey, 453 F. App’x

at 567. Plaintiffs also do not provide any authority for the blanket proposition suggested by much

of their Response—that the constitution requires an officer to announce himself as law

enforcement immediately when he knocks on the door of a citizen’s residence for a welfare check.

Accordingly, no reasonable jury could find that the County was deliberately indifferent to any

inadequacy in the Sheriff Department’s training, Plaintiffs’ failure-to-train claim fails, and

Plaintiffs cannot impose liability on the County for Fox’s asserted constitutional violation.

C. State Law Claim

Finally, Plaintiffs assert a state law claim of intentional (or negligent, in the alternative)

infliction of emotional distress against all Defendants. “In Tennessee, ‘[t]he elements of an

intentional infliction of emotional distress claim are 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.’” Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 423 (6th

Cir. 2020) (quoting Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012)).

1. Against the County

The County argues that it is entitled to sovereign immunity from Plaintiffs’ state-law claim

under the Tennessee Government Tort Liability Act because it arises out of the same circumstances

as Plaintiffs’ civil rights claims under Section 1983. (Doc. No. 66 at 20–23.) Plaintiffs do not

14 The Court notes that, in arguing that this training was inadequate, Plaintiffs again cite to pages of Sheriff

Breedloves’s deposition transcript that are not within the record. (See Doc. No. 78 at 9–10 (citing Breedlove

Dep. at 53, 56.) To be clear, however, even taking these context-less quotes at face value, Plaintiffs have

not put forth any evidence that the County was deliberately indifferent to any inadequacy in training.

respond to this argument, and the Court concurs with the County. See Johnson v. City of Memphis,

617 F.3d 864, 872 (6th Cir. 2010) (quoting Tenn. Code Ann. § 29-20-205) (explaining that

sovereign immunity applies to claims based on injuries arising “out of . . . civil rights,” including

Section 1983 claims). For this reason, Plaintiffs’ claim of intentional (or negligent) infliction of

emotional distress against the County will be dismissed as a matter of law.

2. Against the Officers

The Officers first argue that they are immune from Plaintiffs’ alternatively pleaded claim

for negligent infliction of emotional distress. (Doc. No. 70 at 18 n.1.) Plaintiffs do not respond to

this argument, and the Court agrees with the Officers. See Adams v. Diamond, No. 3:18-cv-00976,

2019 WL 314569, at *4 (M.D. Tenn. Jan. 24, 2019) (citing Sallee v. Barrett, 171 S.W.3d 822

(Tenn. 2005)) (noting the Tennessee Supreme Court’s holding that a police officer is immune from

a claim for negligent infliction of emotional distress).

As the Officers recognize, however, they are not immune from Plaintiffs’ claim for

intentional infliction of emotional distress (“IIED”). They nonetheless argue that they are entitled

to summary judgment because Plaintiffs have not demonstrated the second and third elements of

this claim—outrageous conduct and serious mental injury.15 (Doc. No. 70 at 21.) In Response,

Plaintiffs contend that they “can show all three elements” (Doc. No. 75 at 14), but they have not

advanced even a cursory argument that they suffered serious mental injuries.

Plaintiffs’ only reference to a mental or emotional injury of any kind is in their Statement

of Fact section, where they quote Sherrie’s deposition testimony that she suffered “severe anxiety”

15 The Court does not consider the Officers’ argument, raised for the first time in their Reply, that Fox and

Austin did not act intentionally or recklessly. (See Doc. No. 80 at 5); Traveler’s Prop. Cas. Co. of Am. v.

Hillerich & Bradsby Co., 598 F.3d 257, 275 (6th Cir. 2010) (citing Scottsdale Ins. Co. v. Flowers, 513 F.3d

546, 552–54 (6th Cir. 2008)) (“Arguments raised only in reply, and not in the original pleadings, are not

properly raised before the district court . . . .”).

after the shooting incident. (Doc. No. 75 at 4.) And Plaintiffs contend that their IED claims should

be decided by a jury because they are similar to an IED claim that survived summary judgment

in Robinson v. City of Memphis, 340 F. Supp. 2d 864, 873-74 (E.D. Tenn. 2004). (Doc. No. 75 at

14—15.) Although Robinson also involved a police shooting, 340 F. Supp. 2d at 866, it is otherwise

readily distinguishable from this case. There, the plaintiff claimed that a “decedent suffered severe

mental and emotional pain and anguish” from being “hospitalized for six weeks, during which

time he was paralyzed, but also conscious and aware of his surroundings.” 340 F. Supp. 2d at 873.

Plaintiffs offer no evidence of anything approaching such mental injuries here. Accordingly, the

Officers are entitled to summary judgment on Plaintiffs’ MED claims. See Klein v. State Farm Fire

& Cas., 250 F. App’x 150, 154 (6th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986)) (‘[A] complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.”’)

IV. Conclusion

For these reasons, the County’s Motion for Summary Judgment (Doc. No. 65) will be

granted, and the Officers’ Motion for Summary Judgment (Doc. No. 69) will be granted in part

and denied in part. The only claim remaining for trial is Plaintiffs’ excessive force claim against

Officer Fox.

An appropriate Order is filed herewith.

Maoh (nso

WAVERLY. CRENSHAW, JR

CHIEF UNITED STATES DISTRICT JUDGE

29