Long v. City of Clarksville, Tennessee

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JONATHAN D. LONG, )

)

Plaintiff, )

)

v. ) Case No. 3:22-cv-00267

) Judge Aleta A. Trauger

CITY OF CLARKSVILLE, )

TENNESSEE and JOSHUA LAJOIE, )

)

Defendants. )

MEMORANDUM

Before the court is the Motion to Dismiss Amended Complaint (Doc. No. 37), filed by

defendants City of Clarksville, Tennessee (“City”) and Joshua LaJoie. For the reasons set forth

herein, the motion will be granted in part and denied in part. The claims against the City and those

asserted against LaJoie in his official capacity, which are redundant of the claims against the City,

will be dismissed with prejudice. The motion will be denied, insofar as it seeks dismissal of the

claims against LaJoie in his individual capacity.

I. FACTUAL ALLEGATIONS

Defendant Joshua LaJoie is a police officer employed by the Clarksville Police Department

(“CPD”), which is an agency operated and maintained by the City. (Doc. No. 33 ¶¶ 7–8.) LaJoie

is sued in both his individual capacity and his official capacity. (Id. ¶ 8.) Plaintiff Jonathan Long

is an adult resident of the City.

On January 11, 2021, Julie Long, plaintiff Jonathan Long’s then-wife, obtained an ex parte

Order of Protection (“OOP”) against Jonathan Long, as a result of which he was not allowed

visitation with his minor children. (Id. ¶¶ 9, 11.) Julie Long filed for divorce on January 25, 2021.

(Id. ¶ 10.) The plaintiff believed that his children were at risk of danger while in Julie Long’s sole

custody, due to her history of mental health issues and alcohol abuse. (Id. ¶ 12.)

On February 17, 2021, the plaintiff’s divorce attorney, Nathan Hunt, entered into a contract

with Covert Results, LLC (“Covert”), a licensed investigation agency, for the purpose of gathering

information relevant to the plaintiff’s pending divorce and child custody proceedings. (Id. ¶¶ 13,

15.) The contract, which is attached as an exhibit to the Amended Complaint, states that it is by

and between Covert and “Nathan Hunt on behalf of Jonathan Long” as the “client.” (Doc. No. 33-

1, at 1.) The contract was signed by a Covert representative and by Hunt for the “client.” (Id. at 6.)

The stated goals of the investigation were to “[c]onduct comprehensive search [and] gather

information for pending divorce suit.” (Id. at 1.) Hunt advised Covert on what the issues were and

what type of information was needed, but neither Hunt nor the plaintiff instructed Covert’s

investigators as to how to do their jobs (Doc. No. 33 ¶¶ 17, 18.) The plaintiff left the state to stay

with family in North Carolina while Covert conducted its investigation. (Id. ¶ 19.)

Bo Rice, the investigator designated by Covert to perform the investigation, installed two

surveillance video cameras in government utility rights of way—one across the street from Julie

Long’s house and one that was apparently trained on the home of Simone Ledbetter, a friend of

Julie Long’s. (Id. ¶¶ 24–25, 66, 87–88.) As part of his investigation, Rice also placed a vehicle

tracking device on a vehicle owned by Jonathan Long but driven by Julie Long. (Id. ¶ 98.) Any

information obtained by Covert in conducting its investigation and, specifically, related to the

placement of the video cameras was relevant to the pending divorce and child custody proceedings

and was communicated to the plaintiff only through his attorney. (Id. ¶ 21.) The plaintiff never

received information directly from Covert, and he did not receive “real-time” information or

“regular updates” about his wife’s activities from either Covert or his attorney. (Id. ¶¶ 21–23.)

On March 25, 2021, Nathan Hunt filed a “Motion to Remove Children from Order of

Protection and for Pendente Lite Visitation” in the plaintiff’s pending divorce case. (Id. ¶ 32; see

also Doc. No. 33-3.) This motion relied on information relayed directly to Hunt by Rice that was

obtained from his investigation, including specific dates and times between March 7 and March

23, 2021 when Julie Long had left the plaintiff’s and her minor children home alone for extended

periods of time. (Doc. No. 33 ¶¶ 33–34.) The plaintiff was not aware of “the specific dates and

times” until he received a copy of the motion from his attorney. (Id. ¶ 35.)

Meanwhile, however, on March 17, 2021, Simone Ledbetter found one of the video

cameras and took it to the CPD, where she spoke with Officer LaJoie and filed a report.1 (Doc.

No. 33 ¶¶ 24, 27–28.) LaJoie went to Ledbetter’s residence the next day to take photographs of the

location where the camera had been found. (Id. ¶ 29.) While there, he spoke with Ledbetter and

Julie Long, who was also there and from whom he learned about the OOP in place against Jonathan

Long. (Id. ¶¶ 29–30.) LaJoie “added Jonathan D. Long as a suspect.” (Id. ¶ 30.)

On March 29, 2021, Ledbetter emailed to LaJoie a copy of the motion Hunt had filed in

the Long divorce case, highlighting the section including the dates and times the Longs’ minor

children were left unattended. (Id. ¶ 36.)

LaJoie called the plaintiff on March 31, 2021. (Id. ¶ 37.)2 LaJoie told the plaintiff that he

was investigating a “possible violation” of the OOP and noted that the question of whether it had

been violated was a “gray area.” (Id. ¶ 38.) LaJoie asked the plaintiff how the dates in the motion

were obtained. (Id. ¶ 40.) Jonathan Long told LaJoie that his attorney had hired a private

1 The Amended Complaint does not explain this, but LaJoie’s Case Summary states that

Ledbetter told him she was going through a divorce and believed that her husband might have

“placed the camera in the yard to monitor her while he was out of state.” (Doc. No. 33-4, at 1.)

2 The plaintiff has manually filed an audio recording of this telephone call.

investigator to obtain information relevant to the divorce and specifically for the purpose of

obtaining additional child visitation for Jonathan Long. (Id. ¶ 42.) He told LaJoie that he was out

of state to avoid potential legal issues during the investigation and that the private investigator

gave information to his attorney, Hunt. (Id. ¶ 43–44.) He emailed LaJoie a copy of the Covert

contract. (Id. ¶ 59.)

The crux of the plaintiff’s allegations is that LaJoie “intentionally misrepresented the

information provided by Mr. Long in this telephone call in the case summary and incident report

created by Defendant LaJoie” “as part of his investigation.” (Id. ¶¶ 46, 99–100.) The allegedly

false representations in LaJoie’s Case Summary include statements that Jonathan Long told him

that (1) the private investigator provided the details supplied in the motion filed by Hunt to “his

attorney and himself” (id. ¶ 49); (2) Jonathan Long received “regular updates” regarding Julie

Long and her whereabouts (id. ¶ 51); and (3) he received “updates of the investigation through his

attorney” (id. ¶ 53). The plaintiff also alleges that the Case Summary falsely states that the private

investigator contract was “between” Covert, Hunt, and Jonathan Long. (Id. ¶¶ 55–57.) According

to the plaintiff, LaJoie knew that statement was false, because Jonathan Long told LaJoie that his

attorney had hired a private investigator and LaJoie was in possession of a copy of the contract

with Covert, which states that it is “with Nathan Hunt, Mr. Long’s attorney” and was signed by

Hunt, not Jonathan Long. (Id. ¶¶ 58–61.)

The plaintiff also complains that LaJoie “omitted from his reports” that he went to Simone

Ledbetter’s residence on March 17, 20201 and “omitted information regarding the conversation

he had with Julie Long.” (Id. ¶ 31.)

LaJoie went to Julie Long’s residence on April 1, 2021 and searched for another video

camera, which he found across the street from her house in a utility right of way. (Id. ¶¶ 63–64,

66.) LaJoie told Julie Long and Ledbetter, who was also present, that the video camera belonged

to a private investigator hired by Jonathan Long’s attorney and that “it was legit.” (Id. ¶¶ 68–71.)

The plaintiff complains that LaJoie falsely stated in his report that he “noticed” a camera when he

actually “intentionally and actively searched” for the camera. (Id. ¶ 65.) He also complains that

LaJoie omitted from his reports the involvement of the individual on whose property the second

camera was located, the handling of the camera by various people, and the fact that the “integrity

and chain of command of the camera” was “breached.” (Id. ¶¶ 84, 85–86.)

On April 2, 2021, LaJoie spoke with Bo Rice, who confirmed that both cameras were his

and that he had placed them in the locations where they were found. (Id. ¶ 88.) Rice told LaJoie

that he did not update Jonathan Long directly but that he updated Long’s attorney. (Id. ¶ 89.) In

his Case Summary and associated April 2, 2021 Incident Report, LaJoie falsely stated that Rice

told him that he updated Jonathan Long “on the findings of the investigation.” (Id. ¶ 94–95; Doc.

No. 33-4, at 2; No. 33-5, at 4.)

Based on LaJoie’s investigative materials, a Montgomery County Grand Jury returned an

indictment charging Jonathan Long with aggravated stalking, a felony, in violation of Tenn. Code

Ann. § 39-17-315; electronic tracking of a motor vehicle, a misdemeanor, in violation of Tenn.

Code Ann. § 39-13-606; and violating an order of protection, a misdemeanor, in violation of Tenn.

Code Ann. § 39-13-113. (Doc. No. 33 ¶ 101.) According to the plaintiff, the Grand Jury’s probable

cause finding was based in part on the Case Summary and April 2, 2021 Incident Report created

by LaJoie during his investigation and which contained “false statements [and] omissions.” (Id. ¶

102.)

LaJoie arrested Jonathan Long on April 16, 2021 based on the “falsely secured” indictment.

(Id. ¶ 104.) LaJoie took the plaintiff into custody for booking, and Jonathan Long spent six to eight

hours in the Montgomery County Jail before bonding out. (Id. ¶¶ 105. 111.)

The OOP was dismissed by agreed order on June 21, 2021. (Id. ¶ 112.) The criminal

charges against Jonathan Long were dismissed by motion of the State on December 16, 2021. (Id.

¶ 117.)

II. PROCEDURAL HISTORY

The plaintiff filed his original Complaint on April 14, 2022, in response to which the

defendants filed a Motion to Dismiss. The plaintiff thereafter sought and was granted leave to

amend his pleading to address deficiencies identified in the first Motion to Dismiss. The Amended

Complaint, filed on July 11, 2022, states claims based on the above-referenced factual allegations

against LaJoie in both his individual capacity and official capacity under 42 U.S.C. § 1983 (Counts

I and II); against LaJoie, in his individual capacity, under state law for false arrest/false

imprisonment, malicious prosecution, and intentional infliction of emotional distress (Counts III,

IV, and V); and against the City, under § 1983, for inadequate training, supervision, or discipline

of the officers of the CPD (Count III).

The defendants thereafter filed their Motion to Dismiss Amended Complaint and

supporting Memorandum, invoking Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc.

Nos. 37, 40.) The plaintiff filed his Response in opposition to the defendants’ motion (Doc. No.

42), and the defendants have filed a Reply (Doc. No. 45).

III. STANDARD OF REVIEW

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court

will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as

true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). “Federal

Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing

that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The court must determine only whether “the

claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately

prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974)).

The complaint’s allegations, however, “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. To establish the “facial plausibility” required to

“unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare

recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556.

According to the Supreme Court, “plausibility” occupies that wide space between “possibility”

and “probability.” Iqbal, 556 U.S. at 678. If a reasonable court can draw the necessary inference

from the factual material stated in the complaint, the plausibility standard has been satisfied.

Generally, if “matters outside the pleadings are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).

At the same time, however, it has long been the rule that a court may consider, not only the

complaint and exhibits attached to it, but also exhibits attached to a defendant’s motion to dismiss,

“so long as they are referred to in the Complaint and are central to the claims contained therein.”

Brent v. Wayne Cty. Dep’t of Human Servs., 901 F.3d 656, 694 (6th Cir. 2018) (citation omitted).

A court may also consider public records without converting a Rule 12(b)(6) motion into a Rule

56 motion. Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) (citation omitted).

IV. DISCUSSION

A. The Claims Against the City

The defendants argue that the Amended Complaint fails to allege facts sufficient to state a

claim under § 1983 against the City.

The Amended Complaint purports to state a claim against the City based on “municipal

and supervisory liability.” (Doc. No. 33, at 17.) In support of such a claim, it first states that the

plaintiff needs to take discovery of the City’s policy and procedure manuals to “determine

inadequate policies and instructions provided to officers which can rise to the level of deliberate

indifference”; to determine whether the City has “a deficient internal affairs/disciplinary procedure

which would be the cause of Defendant LaJoie not being afraid to lie under oath”; to examine

LaJoie’s disciplinary file to determine whether the City has ignored prior complaints or poor

evaluations of LaJoie; and to find out whether some “supervisor” aided LaJoie or “approved the

false information.” (Doc. No. 33 ¶ 153(a)–(d).) The Amended Complaint also asserts that the City

“lacked safeguards to prevent officers from going to the grand jury to indict citizens who have not

committed a crime.” (Id. ¶ 154.) Acknowledging the absence of actual evidence that the City has

adopted inadequate policies or procedures, the Amended Complaint states, “pursuant to Fed. R.

Civ. P. 11(b)(3), it is believed that” the allegations regarding inadequate policies and procedures

“will likely have evidentiary support after a reasonable opportunity for further investigation or

discovery.” (Doc. No. 33 ¶ 153.)

The Amended Complaint also asserts in a wholly conclusory fashion that the City “failed

to provide adequate training, supervision and discipline” “in regards to false arrest, false

imprisonment, and malicious prosecution”; that the City was “aware of training issues with

Defendant LaJoie”; and that it was “deliberately indifferent to the known consequences of its

failure to adequately train, supervise and discipline” CPD police officers “in regards to false arrest,

false imprisonment, and malicious prosecution.” (Id. ¶¶ 156–58.)

For a municipality to be liable under § 1983, a plaintiff must show that, “through its

deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Alman v.

Reed, 703 F.3d 887, 903 (6th Cir. 2013) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397,

404 (1997)). A plaintiff may do this by showing that the municipality had a “policy or custom”

that caused the violation of his rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

There are four methods of showing the municipality had such a 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.” Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019)

(quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)).

This standard must also be applied in conjunction with the pleading standard outlined

above. Under Twombly, a complaint must be dismissed for failure to state a claim upon which

relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on

its face.” Twombly, 550 U.S. at 570. That is, “a plaintiff’s obligation [under Rule 8] to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action” is not enough to avoid dismissal. Id. at 555 (citations

omitted). Even though a complaint need not contain “detailed” factual allegations, its “[f]actual

allegations must be enough to raise a right to relief above the speculative level on the assumption

that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted).

Here, the plaintiff effectively admits in the Amended Complaint that he has no evidence of

the existence of unconstitutional or inadequate municipal policies or procedures. Instead, the

plaintiff believes that discovery will reveal the existence of such unconstitutional or inadequate

policies. “The mere fact that someone believes something to be true,” however, “does not create a

plausible inference that it is true.” In re Darvocet Prods. Liab. Litig., 756 F.3d 917, 931 (6th Cir.

2014) (citing Twombly, 550 U.S. at 551). In addition, as the Sixth Circuit has recognized, under

Twombly and Iqbal, “[t]he plaintiff may not use the discovery process to obtain these facts [to

support his claims] after filing suit.” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d

1046, 1051 (6th Cir. 2011). Instead, if the complaint does not satisfy Rule 8 from the outset, the

plaintiff “is not entitled to discovery, cabined or otherwise.” Iqbal, 556 U.S. at 686.

Similarly, while the Amended Complaint asserts that the City was “aware of training issues

with Defendant LaJoie” and was “deliberately indifferent to the known consequences of its failure

to adequately train” (Doc. No. 33 ¶¶ 157, 158), the pleading does not contain actual facts to support

these conclusory assertions. The “inadequacy of police training may serve as the basis for § 1983

liability only where the failure to train amounts to deliberate indifference to the rights of persons

with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1988). To

show such deliberate indifference, the plaintiff generally must allege “prior instances of

unconstitutional conduct” showing that the City “ignored a history of abuse and was clearly on

notice that the training in this particular area was deficient and likely to cause injury.” Plinton v.

Cty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008). Alternatively, he may show “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.” Id. (quoting

Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)).

In this case, the plaintiff has alleged no facts showing deliberate indifference to the known

or obvious deficiencies in training. Instead, the Amended Complaint, insofar as it is directed to the

City, contains nothing more than the “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements” and “legal conclusion[s] couched as a factual

allegation[s]” that the Supreme Court has held “do not suffice” to state a claim for which relief

may be granted. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

The § 1983 claims against the City are not supported by actual facts and will be dismissed

for failure to state a claim for which relief may be granted.3 The official-capacity claims against

LaJoie, which the plaintiff concedes are redundant of the claims against the City, will likewise be

dismissed. Because the plaintiff confirms in his Response to the Motion to Dismiss that the state

law claims are asserted against LaJoie in his individual capacity only, the dismissal of the § 1983

claims against the City will result in the dismissal of all claims against the City.

B. The Section 1983 Claims Against LaJoie

1. Absolute Immunity

Defendant LaJoie4 argues, first, that he has absolute immunity from liability for any claims

arising from his grand jury testimony or preparatory activities leading up to that testimony, under

3 The plaintiff’s invocation of Rule 11 is unavailing. For one thing, the case to which the

plaintiff cites, Brown v. Cassens Transp. Co., 546 F.3d 347 (6th Cir. 2008), does not make any

reference to Twombly, and it predates Iqbal. In addition, the plaintiffs in Brown argued that the

district court should have afforded them discovery to “flesh out the details” of their fraud

allegations before dismissing their RICO claims under Rule 9. The court took note of that argument

but did not reach the question of whether Rule 11(b)(3) “may relax Rule 9(b)’s particularity

requirement,” because it found that the plaintiffs adequately pleaded a pattern of racketeering

activity for purposes of their RICO claim, even without consideration of the dismissed allegations.

Brown, 546 F.3d at 349 n.4. The plaintiff here has not asserted any fraud claims, and Rule 8, rather

than Rule 9, is at issue.

4 Having determined that the claims against the City must be dismissed, the court will refer

to LaJoie, in the singular, as the “defendant” for the remainder of this opinion.

Rehberg v. Paulk, 566 U.S. 356 (2012). He is correct as to Rehberg’s holding. See id. at 369 (“[A]

grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony.

. . . [T]his rule may not be circumvented by claiming that a grand jury witness conspired to present

false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim

concerning the initiation or maintenance of a prosecution.”). The plaintiff here, however, does not

bring a claim based on LaJoie’s grand jury testimony or preparation for his grand jury testimony.

The plaintiff, in fact, disclaims any knowledge as to whether LaJoie even testified before the grand

jury. (See Doc. No. 42, at 2–3.) The court, therefore, rejects the defendants’ assertion that LaJoie

is entitled to absolute immunity from liability under § 1983 under Rehberg.

2. Section 1983 Claims

A false arrest claim requires, among other elements, that “the arresting officer lacked

probable cause to arrest the plaintiff.” Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir.

2005). A federal malicious prosecution claim similarly requires, among other elements, that the

defendant officer “helped start a prosecution against [the plaintiff] without probable cause.” Howse

v. Hodous, 953 F.3d 402, 408 (6th Cir. 2020), cert. denied, 209 L. Ed. 2d 252 (Mar. 8, 2021). The

“decisive Fourth Amendment question” for both of Long’s § 1983 claims against LaJoie is whether

LaJoie had probable cause to believe that Long had committed the crimes charged in the indictment

and for which he was arrested and detained. Weser v. Goodson, 965 F.3d 507, 513 (6th Cir. 2020).

As a general rule, a grand jury indictment establishes probable cause. See Barnes v. Wright,

449 F.3d 709, 716 (6th Cir. 2006) (“[I]t has long been settled that the finding of an indictment, fair

upon its face, by a properly constituted grand jury, conclusively determines the existence of

probable cause.” (internal quotation marks and citation omitted)). There are, of course, exceptions

to this general rule. Notably, the Sixth Circuit has recognized that a plaintiff may “overcome the

presumption of probable cause created by [the] indictment,” where he shows that

1) a law-enforcement officer, in the course of setting a prosecution in motion, either

knowingly or recklessly makes false statements (such as in affidavits or

investigative reports) or falsifies or fabricates evidence; (2) the false statements and

evidence, together with any concomitant misleading omissions, are material to the

ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and

omissions do not consist solely of grand-jury testimony or preparation for that

testimony . . . .

King v. Harwood, 852 F.3d 568, 587 (6th Cir. 2017).

In this case, for purposes of his motion to dismiss the § 1983 claims on this basis, LaJoie

does not contest that the Amended Complaint adequately alleges that LaJoie set in motion the

prosecution of Jonathan Long. As set forth above, it is clear that the allegedly false statements—

which are contained in LaJoie’s Case Summary and Incident Report—do not consist solely of his

grand jury testimony or preparation for such testimony. The defendant argues here that the

plaintiff’s claims should nonetheless be dismissed, because the allegedly false statements either

were not false or were not material to the grand jury’s findings and, likewise, that the alleged

omissions emphasized in the Amended Complaint were not material to the charges against the

plaintiff. (Doc. No. 40, at 9–19.) Although the defendant’s Motion to Dismiss enumerates and

discusses each of the allegedly false statements highlighted in the Amended Complaint in order to

refute or attempt to refute whether they were actually false5 or material, the Motion to Dismiss

does not actually touch upon the elements of the charged offenses, for purposes of showing

5 Some of the allegedly false statements were clearly neither false nor material, such as

LaJoie’s representation that the contract with Covert was between Covert and Hunt and Jonathan

Long. In fact, as set forth above, it is clear from the face of the contract that Hunt, the lawyer,

signed the contract “on behalf of” Jonathan Long. In other words, the contract indicates that Hunt

entered it as Long’s agent, for purposes of binding Long. See Corp. Flight Mgmt., Inc. v. Tal

Aviation, S.A., No. M2018-01492-COA-R3-CV, 2019 WL 4052493, at *4 (Tenn. Ct. App. Aug.

28, 2019) (“Agency is a relationship between a principal and an agent in which the principal gives

the agent authority to act on the principal’s behalf, subject to the principal’s control, and the agent

consents to do so.” (citing Savage v. Cty. of Memphis, 464 S.W.3d 326, 332 (Tenn. Ct. App. 2015)

(internal quotation marks omitted)).

whether the allegedly false statements were material to those charges.6 That omission significantly

undermines LaJoie’s argument that the alleged misrepresentations and omissions were not

material. See, e.g., Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (noting that whether an

officer has probable cause to make an arrest depends on the elements of the charge as defined by

state law).7

Notably, “stalking” is defined as a “willful course of conduct involving repeated or

continuing harassment of another individual that would cause a reasonable person to feel

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

victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” Tenn. Code

Ann. § 39-17-315(a)(4) (emphasis added). Although a “course of conduct” includes “acts in which

the defendant directly, indirectly, or through third parties, by any action, method, device, or

means, . . . monitors, observes, [or] surveils . . . a person,” id. § 39-17-315(a)(1) (emphasis added),

the term “harassment” is expressly defined to exclude from its scope “constitutionally protected

activity or conduct that serves a legitimate purpose.” Id. § 39-17-315(a)(3). In other words, that a

defendant is engaged in constitutionally protected conduct or conduct that serves a legitimate

purpose is not merely an affirmative defense; such conduct falls instead outside the scope of the

6 Although under Tennessee law “each count of a multiple-count indictment is a separate

indictment,” State v. Welch, 586 S.W.3d 399, 402 (Tenn. Crim. App. 2019) (citation and internal

quotation marks omitted), neither party distinguishes among the charges in the indictment for

purposes of their probable cause arguments.

7 The defendants reference the stalking statute in their Reply, and they also argue for the

first time in their Reply that the Amended Complaint fails to state a claim for false arrest, because

the plaintiff does not allege that he was arrested without appropriate process. (See Doc. No. 45, at

2 (citing Cross v. Metro. Gov’t, No. 3-12-1109, 2014 U.S. Dist. LEXIS 175356, *14 (M.D. Tenn.

2014)).) Arguments raised for the first time in a reply brief are generally deemed waived, as the

opposing party has no real opportunity to contest them. Accord Palazzo v. Harvey, 380 F. Supp.

3d 723, 730 (M.D. Tenn. 2019) (Crenshaw, C.J.) (citing Scottsdale Ins. Co. v. Flowers, 513 F.3d

546, 553 (6th Cir. 2008)).

definition of stalking. See Purifoy v. Mafa, 556 S.W.3d 170, 191 (Tenn. Ct. App. 2017)

(recognizing that “the statutory definition of harassment ‘does not include constitutionally

protected activity or conduct that serves a legitimate purpose’” (citing Tenn. Code Ann. § 39-17-

315(a)(3)).

Thus, although surveillance by a third party private investigator could still be attributed to

the defendant who hired the investigator, such surveillance is not illegal if it is for a legitimate

purpose—such as the preparation of a motion in a child custody proceeding showing that one’s

spouse is leaving the couple’s minor children unattended for substantial periods of time. Although

LaJoie included in his Case Summary Jonathan Long’s statement to him that his attorney had hired

a private investigator “as part of an effort for Mr. Long to have the protection order . . . amended

to allow unsupervised visits [with] his daughters” (Doc. No. 33-4, at 1), he did not reference the

information included in the motion filed by Hunt, even though he was in possession of a copy of

the motion. Moreover, LaJoie stated in his investigatory materials that the plaintiff was speaking

directly with the private investigator and receiving regular updates from the private investigator

regarding his wife’s activities. At this juncture, the court finds that the plaintiff’s allegations are

sufficient to support an inference that LaJoie’s misrepresentations regarding the plaintiff’s direct

contacts with the investigator and the degree to which he received updates about the investigation

were material to the grand jury’s finding that the surveillance was not—or at least not entirely—

conducted for a legitimate purpose and, therefore, that there was probable cause for the aggravated

stalking charge and alleged violation of the OOP.

In sum, the court finds that the plaintiff has adequately alleged facts to rebut the inference

of probable cause created by the indictment and to support his § 1983 claims: that LaJoie

knowingly or recklessly made false statements regarding Jonathan Long’s direct contacts with the

private investigator; that the false statements combined with the omission of the evidence that the

investigation was for a legitimate purpose were material to the ultimate prosecution of the plaintiff;

and that the false statements did not consist solely of grand-jury testimony or preparation for that

testimony. King, 852 F.3d at 587.

3. Qualified Immunity

That conclusion does not entirely resolve LaJoie’s motion, as he also argues in the

alternative that he is entitled to qualified immunity, because the Amended Complaint fails to plead

facts demonstrating that he violated Long’s clearly established constitutional or statutory rights.

(Doc. No. 40, at 19.)

A defendant’s entitlement to qualified immunity is a “threshold question to be resolved at

the earliest possible point.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015) (citation

omitted). That point is “usually summary judgment and not dismissal under Rule 12,” id., but it is

nonetheless well established that the defense of qualified immunity can properly be asserted in a

Rule 12 motion. See, e.g., Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016)

(“Although a motion pursuant to Rule 12(b)(6) invites an inquiry into the legal sufficiency of the

complaint, not an analysis of potential defenses to the claims set forth therein, dismissal

nevertheless is appropriate when the defendant is entitled to a meritorious affirmative defense such

as qualified immunity.”).

“The qualified-immunity doctrine shields government officials performing discretionary

functions from civil liability unless their conduct violates clearly established rights.” Quigley v.

Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir. 2013) (citation omitted). In considering a qualified

immunity defense at the motion to dismiss stage, the Sixth Circuit applies a “two-tiered inquiry.”

Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015) (quoting Martin v. City of Broadview

Heights, 712 F.3d 951, 957 (6th Cir. 2013)). “The first step is to determine [whether] the facts

alleged make out a violation of a constitutional right.” Id. If the plaintiff has shown a violation of

a constitutional right, then “[t]he second [step] is to ask if the right at issue was ‘clearly established’

when the event occurred such that a reasonable officer would have known that his conduct violated

it.” Id. “Both inquiries must be resolved in [the plaintiff’s] favor for the claim to proceed.” Id. at

429. Under “longstanding principle,” “‘clearly established law’ should not be defined ‘at a high

level of generality.’” White v. Pauly, 580 U.S. 73 (2017) ) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011)). Rather, “the clearly established law must be ‘particularized’ to the facts of the

case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). At the same time, the Sixth

Circuit has warned that granting a Rule 12(b)(6) motion to dismiss on the basis of qualified

immunity may be inappropriate when the “clearly established” inquiry turns on “case-specific

details that must be fleshed out in discovery.” Crawford v. Tilley, 15 F.4th 752, 765 (6th Cir. 2021).

As set forth above, the court has found that the plaintiff has adequately alleged facts

showing that he was indicted, arrested, and prosecuted without probable cause. Moreover, it was

clearly established at the time that an arrest that was not supported by probable cause violates the

Fourth Amendment. See Wright v. City of Euclid, 962 F.3d 852, 875 (6th Cir. 2020) (“[T]he right

to be free from arrest without probable cause is a quintessential example[] of [a] clearly established

constitutional right.” (internal quotation marks and citations omitted)); Stahl v. Coshocton Cty.,

754 F. App’x 335 (6th Cir. 2018) (“It is a well-settled principle of constitutional jurisprudence that

an arrest without probable cause constitutes an unreasonable seizure in violation of the Fourth

Amendment.”). Likewise, the Sixth Circuit has repeatedly held that individuals have a clearly

established Fourth Amendment right to be free from malicious prosecution by a defendant who

has ‘made, influenced, or participated in the decision to prosecute the plaintiff’ by, for example,

‘knowingly or recklessly’ making false statements that are material to the prosecution either in

reports or in affidavits filed to secure warrants.” King, 852 F.3d at 582–83(6th Cir. 2017); see also

Gregory v. City of Louisville, 444 F.3d 725, 758 (6th Cir. 2006) (finding it clearly established that

“[p]olice officers cannot, in good faith, rely on a judicial determination of probable cause when

that determination was premised on an officer’s own material misrepresentations to the court”).

The plaintiff alleges that LaJoie knowingly made false statements in his Case Summary

and Incident Report and that these false statements were material to the grand jury’s finding of

probable cause and, thus, to the plaintiff’s prosecution. LaJoie argues in only the most cursory

fashion that he is entitled to summary judgment. (See Doc. No. 40, at 19 (“Officer LaJoie

respectfully requests dismissal of the claims against him based on qualified immunity, considering

that the Amended Complaint fails to plead facts demonstrating that he violated any clearly

established Constitutional or statutory right of the Plaintiff.”); Doc. No. 45, at 6 (“Further,

considering that the Amended Complaint fails to adequately plead any Constitutional violation,

Officer LaJoie reiterates that he has qualified immunity.”).) The court finds at this stage in the

proceedings that there is a material factual dispute as to whether LaJoie knowingly made false

statements in his investigative materials that were material to the prosecution of Jonathan Long.

Based on the facts as alleged in the Amended Complaint, LaJoie is not entitled, at this stage, to

qualified immunity.

4. State Law Claims

The defendants’ Motion to Dismiss does not address the state law claims against LaJoie.

Because the court will deny the motion, insofar as it is directed to the federal claims over which

the court has original jurisdiction, the court will continue to exercise jurisdiction over the

supplemental state law claims.

19

V. CONCLUSION

For the reasons set forth herein, the court will grant in part and deny in part the defendants’

Motion to Dismiss the Amended Complaint. All claims against the City of Clarksville and the

official-capacity claims against LaJoie will be dismissed, but the motion will be denied, insofar as

it seeks dismissal of the claims against Officer LaJoie in his individual capacity.

An appropriate Order is filed herewith.

ALETA A. TRAUGER

United States District Judge