# Carter v. Kulp

> District Court, M.D. Tennessee · March 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10437105

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** March 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10437105

## How later opinions describe it (automated extraction)

- finding that “official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CALVIN CARTER, )
)
Plaintiff, )
)
v. ) NO. 3:20-cv-01115
)
NICHOLAS W. KULP, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Calvin Carter, a pretrial detainee in the custody of the Davidson County Sheriff’s Office in
Nashville, Tennessee, has filed a pro se civil rights Complaint under 42 U.S.C. § 1983 (Doc. No.
1), and has paid the filing fee. (See Doc. No. 3). The Complaint is before the Court for initial
review under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A.
I. Section 1983 and PLRA Standards
Plaintiff seeks to vindicate alleged violations of his federal constitutional rights under 42
U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under color
of state law, deprives an individual of any right, privilege or immunity secured by the Constitution
or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a
Section 1983 claim, Plaintiff must allege two elements: (1) a deprivation of rights secured by the
Constitution or laws of the United States, and (2) that the deprivation was caused by a person
acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir. 2014).
Pursuant to Section 1915A, the Court must screen any prisoner complaint in order to
identify cognizable claims, and must dismiss the complaint, or any portion thereof, if it is facially
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A. Review of whether
the Complaint states a claim upon which relief may be granted asks whether it contains “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face,” such that it
would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Applying this standard, the Court must view the complaint in the light most
favorable to Plaintiff and must take all well-pleaded factual allegations as true. Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d
461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be liberally
construed and “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, pro se litigants are not exempt from the requirements of the Federal Rules of Civil

Procedure, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the Court “create a claim
which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608,
613 (6th Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975)).
II. Review of the Complaint
A. Allegations and Claims
Plaintiff brings this action against Detective Nicholas W. Kulp of the Metropolitan
Nashville Police Department (MNPD) for his role in Plaintiff’s 2015 arrest and subsequent
detention. He sues Detective Kulp in his official capacity only. (See Doc. No. 1 at 2).
Plaintiff alleges that he was wrongfully accused of murder after he shot and killed one of
two intruders who entered his apartment and attacked him on April 4, 2015. (Id. at 5). When police
arrived at the scene, Plaintiff was arrested and searched by Officer Ronan, who then transported
Plaintiff to MNPD’s North Precinct where he was interrogated by Detective Kulp and Detective

Andrew Davis. (Id. at 5, 7). Plaintiff was under the influence of drugs and alcohol during this
interrogation, but was able to tell the detectives his side of the story, as follows: “I was defending
myself, and my home against intruders, and two of the assailants [were] pulling their[ ] guns out
on me inside my apartment. So, I shot one of the intruders for fear of my life[,] [w]hile the invader
was making another attempt to assault me.” (Id. at 7). Plaintiff alleges that Detective Kulp did not
believe his story, which “didn’t match the witnesses (sic) account.” (Id.) Plaintiff alleges that there
were no additional witnesses to the shooting. (Id.)
Detective Davis then ordered another officer to transport Plaintiff to the Criminal Justice
Center, where he was booked on a first-degree murder charge. (Id.) The second intruder, Jermaine
Simmons, gave a false statement to a different MNPD detective, but never testified against Plaintiff

in court. (Id. at 7–8). Plaintiff alleges that Detective Kulp used “deception” and “trickery” to make
a false arrest and to proceed with the murder charge against Plaintiff, despite lacking probable
cause “[d]ue[ ] to the witnesses (sic) misleading statements did not add up to the crime scene
evidence.” (Id. at 8). He claims that Assistant District Attorney General Deborah Housel should
not be able to prosecute him because of his statutory right to self-defense, and that the proceedings
against him violate various provisions of the federal and state constitutions.1 (Id.) Plaintiff

1 The Court takes judicial notice of Plaintiff’s prior filing in this district, against Housel and Judge Monte
Watkins, in which Plaintiff unsuccessfully sought relief after Judge Watkins allegedly denied his fifth court-
appointed attorney’s speedy trial motion on grounds that Plaintiff had fired too many prior attorneys to be
entitled to speedy trial relief. Carter v. Watkins, et al., No. 3:19-cv-00965, Doc. No. 3 (M.D. Tenn. Jan. 7,
2020) (Trauger, J.).
concludes his statement of allegations with the following: “I been incarcerated for 5 years, and 8
months. I been discriminated against in the justice system. I been denied effective representation
by the court. My trial is marked by racial bias or prosecutorial misconduct etc.” (Id.)
As relief, Plaintiff seeks an award of six million dollars “for false imprison[ment], pain and

suffering,” “oppressive pre-trial incarceration,” and “illegal confinement.” (Id. at 6).
B. Analysis
The Complaint alleges both false arrest and false imprisonment. “False arrest and false
imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388
(2007). False imprisonment is detention without legal process; it therefore ends, and the statute of
limitations for a false imprisonment claim under Section 1983 begins to run, “once the victim
becomes held pursuant to such process—when, for example, he is bound over by a magistrate or
arraigned on charges.” Id. at 389. A one-year statute of limitations applies to actions brought in
this Court under Section 1983. Tenn. Code Ann. § 28-3-104(a)(1) (establishing one-year statute of
limitations for actions for false imprisonment and for actions brought under the federal civil rights

statutes); Chase v. White, No. 3:16-cv-01576, 2016 WL 7210155, at *5, 7–8 (M.D. Tenn. Dec. 13,
2016) (applying § 28-3-104(a) to false arrest and imprisonment claims under § 1983). Any claim
to damages based on Plaintiff’s arrest and imprisonment in 2015, prior to the institution of legal
process against him, is therefore time-barred. See id.
After legal process is instituted, “unlawful detention forms part of the damages for the
‘entirely distinct’ tort of malicious prosecution, which remedies detention accompanied, not by
absence of legal process, but by wrongful institution of legal process.” Wallace, 549 U.S. at 390.
The Complaint in this case suggests that the decision to charge Plaintiff with first-degree murder
was made by Detective Kulp based on unreliable witness statements, without probable cause.
These allegations may be liberally construed as asserting a claim of unconstitutional, malicious
prosecution. See Chase, 2016 WL 7210155, at *8 (“[A]ctions giving rise to a malicious
prosecution claim under state and federal law are . . . distinct from those relating to . . . false arrest
and false imprisonment,” in that malicious prosecution actions are “grounded in the decision to

prosecute.”). To state a colorable malicious prosecution claim under Section 1983, Plaintiff must
allege that: “(1) the defendant “made, influenced, or participated in the decision to prosecute”; (2)
the government lacked probable cause; (3) the proceeding caused the plaintiff to suffer a
deprivation of liberty; and (4) the prosecution ended in the plaintiff's favor.” Lester v. Roberts,
986 F.3d 599, 606 (6th Cir. 2021) (quoting Jones v. Clark Cnty., 959 F.3d 748, 756 (6th Cir.
2020)). Because “a malicious-prosecution claim is not available before the favorable termination
of criminal proceedings, . . . the limitations period for such a claim [does not] begin until the
favorable termination of [those] proceedings.” King v. Harwood, 852 F.3d 568, 579 (6th Cir.
2017).
While the Court has the power, in a civil case that is dependent upon the outcome of a

pending or anticipated criminal trial, “to stay the civil action until the criminal case or the
likelihood of a criminal case is ended,” Wallace, 549 U.S. at 393–94,2 the Complaint in this case
suffers from an additional defect that requires it to be dismissed rather than stayed. Namely, the
Complaint asserts claims of constitutional deprivations and substantial damages against a
municipal employee in his official capacity, but it does not allege that any unconstitutional actions
of that employee were taken pursuant to a municipal policy or custom.
Plaintiff’s official-capacity suit against Detective Kulp is tantamount to a suit against
Kulp’s municipal employer, the City of Nashville. See, e.g., Monell v. Dep’t of Soc. Servs. of City

2 If the criminal case ends in conviction, the stayed civil suit is then subject to dismissal if it would impugn
that conviction, under the rule of Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
of New York, 436 U.S. 658, 690 n.55 (1978) (finding that “official-capacity suits generally
represent only another way of pleading an action against an entity of which an officer is an agent”).
“To successfully plead an official capacity claim against a municipal employee or entity, a plaintiff
must: 1) identify a . . . policy or custom; 2) connect that policy or custom to the municipality; and

3) show that execution of that policy or custom caused the particular injury.” Jarvis v. Marcum,
77 F. App’x 308, 310 (6th Cir. 2003) (citing, e.g., Garner v. Memphis Police Dep’t, 8 F.3d 358,
364 (6th Cir. 1993)).
Liberally construed, the Complaint alleges that Plaintiff’s injury was caused by Kulp’s
decision to pursue charges against him based on the conflict between his story about the shooting
at his apartment and that of another witness, despite the fact that the witness’s “misleading
statements did not add up to the crime scene evidence.” (Doc. No. 1 at 7–8). The Complaint fails
to identify any municipal policy or custom that motivated Kulp’s decision. Because
“[m]unicipalities are not . . . liable for every misdeed of their employees and agents,” but only
those misdeeds fairly attributable to the municipal government, Garner, 8 F.3d at 363, and Plaintiff

does not identify any municipal policy or custom executed by Kulp that caused a violation of his
constitutional rights, dismissal of the Complaint against Kulp is proper. Jarvis, 77 F. App’x at 310;
see also Brookens v. United States, 981 F. Supp. 2d 55, 64 (D.D.C. 2013) (“A complaint that does
not sufficiently allege harm caused by a municipality’s policy or custom fails to allege a necessary
element of liability under § 1983, and that claim must be dismissed.”) (citation and internal
quotation marks omitted).
Ii. Conclusion
For these reasons, this action is DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915A(b)(1), for failure to state a claim on which relief may be granted. The dismissal is
without prejudice to Plaintiffs ability to file an action for malicious prosecution at the proper time.
The Court CERTIFIES that any appeal from the dismissal of this action would not be
taken in good faith. 28 U.S.C. § 1915(a)(3).
This is the final order in this action. The Clerk SHALL enter judgment. Fed. R. Civ. P.
58(b)(1).
IT IS SO ORDERED.

WAVERLY D. Cs JR.
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10437105. Public record. Not legal advice.