Boddy v. City of Memphis

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

BRANDON BODDY, )

)

Plaintiff, )

)

v. ) No. 2:19-cv-02190

)

CITY OF MEMPHIS, TENNESSEE; )

OFFICER D. KINSLER, in his )

official and individual )

capacity; and OFFICER W. )

CARTER, in his official and )

individual capacity, )

)

Defendants. )

)

)

ORDER

This case arises from the arrest of Plaintiff Brandon Boddy

by City of Memphis police officers. Before the Court is

Defendant City of Memphis, Tennessee’s (the “City”) Motion for

Judgment on the Pleadings, filed on October 28, 2019. (ECF No.

32.) Boddy responded on February 5, 2020. (ECF No. 33.) On

February 11, 2020, the City replied by filing a motion to strike

Boddy’s untimely response. (ECF No. 34.) On March 3, 2020, the

Court denied the City’s motion to strike. (ECF No. 36.)

For the foregoing reasons, the City’s Motion for Judgment

on the Pleadings is GRANTED.

I. Background

In September 2018, Boddy was at his Memphis residence with

his live-in girlfriend, Felicia Henderson; Henderson’s minor

sister, J.M.; and J.M.’s mother, Michelle Wilson. (ECF No. 1

¶¶ 9-10.) There was an argument among Wilson, Henderson, and

J.M. about where J.M. should reside. (See id. ¶¶ 11-17.) Boddy

was asleep at the beginning, but woke up and tried to deescalate

the argument. (See id. ¶¶ 11, 14.) J.M. decided she would live

with Henderson, and Wilson agreed. (See id. ¶¶ 16-17.) J.M.

and Henderson left Boddy’s residence together. (Id. ¶ 18.)

Wilson left after a brief discussion with Boddy. (Id. ¶¶ 18-

21.)

About two hours later, Officers DeKevious Kinsler and Walter

Carter (“the Officers”) arrived at Boddy’s residence and asked

about the whereabouts of J.M., explaining that they had a report

of a minor child being held at the residence. (Id. ¶¶ 22-24.)

About the same time, Wilson arrived. (Id. ¶ 30.) After

explaining that J.M. was not in the house, but away with

Henderson, Boddy called Henderson and asked her to bring J.M.

back to the residence. (See id. ¶¶ 23-38.) Henderson spoke

with the Officers on Boddy’s cellular telephone and informed

them that she would bring J.M. back to the house. (Id. ¶¶ 37-

38.)

While waiting for Henderson and J.M., Boddy and Wilson “had

words.” (Id. ¶ 42.) As Boddy walked with the Officers to the

end of his yard, the Officers told Boddy that “he needed to go

in the house” to “keep things cool” between Boddy and Wilson.

(See id. ¶¶ 39-44.) Boddy explained that “he was cool” and that

he was waiting for Henderson. (Id. ¶ 43.) One of the Officers

responded, “Okay” but the other continued to tell Boddy to go

into the house. (Id. ¶¶ 43-44.) Boddy told the demanding

Officer that Boddy was in his own yard and that he could make

Wilson leave because Boddy had not called the Officers to his

residence. (Id. ¶¶ 44.) The demanding Officer responded, “once

I am called, your home is my jurisdiction and this is my yard.”

(Id. ¶ 45.) The Officer then attempted to grab Boddy. (Id.

¶ 46.) Boddy stepped back and turned sideways with his hands up

while holding his cellular telephone. (Id.) Both Officers then

forcefully “rushed [Boddy] to the ground.” (Id.) Boddy

immediately felt pain in his right arm and yelled out, “you broke

my arm!” (Id. ¶ 47.) One of the Officers responded, “Stop

resisting.” (Id. ¶ 48.) Boddy explained to the Officers that

he could not move his right arm. (Id. ¶ 49.) The Officers

forced Boddy’s arm behind his back, placed him in handcuffs,

forcefully picked him up from the ground by his injured arm, and

placed him in the squad car. (Id. ¶ 50.)

Emergency medical services arrived at Boddy’s residence,

examined Boddy, who was still in handcuffs, and could find no

injury. (Id. ¶ 55.) Boddy was returned to the squad car, and

the paramedics left the residence without transporting Boddy to

a medical facility. (Id.)

The Officers later took Boddy to Regional One Health. (Id.

¶¶ 56-57.) After having been examined by the emergency room

physician, Boddy was told that he had sustained a radius colles

fracture to his wrist. (Id. ¶ 59.) Boddy was placed in an arm

cast and was taken into custody, where he remained until 2:00

a.m. the next morning. (Id. ¶ 60.) Boddy was then released on

a $100.00 bond and given a court date without a time to appear.

(Id. ¶ 61.) Later that afternoon, Boddy asked about his court

date and time and was told that all charges against him had been

dropped. (Id. ¶ 63.)

On March 25, 2019, Boddy filed the current action alleging

various constitutional violations and state law claims arising

from his arrest. (Id.) He brings 42 U.S.C. § 1983 claims

against the Officers in their individual and official capacities

for retaliation, false arrest, failure to intervene, and

excessive force, in violation of the First, Fourth, and

Fourteenth Amendments. (Id. ¶¶ 68-117.) Boddy brings § 1983

claims against the City for failure to supervise and train, and

for having a custom or policy authorizing constitutional

violations. (See id. ¶¶ 118-130.) He makes cursory references

to Fifth and Eighth Amendment violations, (see id. ¶ 67), and to

state law claims of negligence, false arrest, false imprisonment,

and emotional distress, (see id. ¶¶ 77, 86, 103, 117, 120, 130,

133), against both the City and the Officers. Boddy seeks

compensatory and punitive damages, and attorneys’ fees pursuant

to 42 U.S.C. § 1988. (Id. ¶¶ 131-35.)

On October 28, 2019, the City filed its Motion for Judgment

on the Pleadings. (ECF No. 32.) Boddy responded on February 2,

2020. (ECF No. 33.) On February 11, 2020, the City filed a

motion to strike Boddy’s response and a motion to stay pending

the Court’s ruling on the Motion for Judgment on the Pleadings.

(ECF No. 34.) On March 3, 2020, the Court denied the motion to

strike and granted the motion to stay. (ECF No. 36.) The

Officers have not addressed these motions.

II. Jurisdiction

The Court has federal question jurisdiction. Under 28

U.S.C. § 1331, district courts have original jurisdiction “of

all civil actions arising under the Constitution, laws, or

treaties of the United States.” Boddy asserts a right to relief

against the City and the Officers under § 1983. That claim

arises under the laws of the United States.

The Court has supplemental jurisdiction over Boddy’s

Tennessee-law claims. See 28 U.S.C. § 1367(a). Those claims

derive from a “common nucleus of operative fact” with Boddy’s

federal claims against the City and the Officers. United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); Soehnlen v.

Fleet Owners Ins. Fund, 844 F.3d 576, 588 (6th Cir. 2016).

III. Standard of Review

Federal Rule of Civil Procedure 12(c) provides that “[a]fter

the pleadings are closed -- but early enough not to delay trial

-- a party may move for judgment on the pleadings.” A Rule 12(c)

motion “is granted when no material issue of fact exists and the

party making the motion is entitled to judgment as a matter of

law.” Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d

1233, 1235 (6th Cir. 1991). The standard of review for a judgment

on the pleadings is the same as the standard for a motion to

dismiss under Rule 12(b)(6). Fritz v. Charter Twp. of Comstock,

592 F.3d 718, 722 (6th Cir. 2010).

Rule 12(b)(6) allows dismissal of a complaint that “fail[s]

to state a claim upon which relief can be granted.” A Rule

12(b)(6) motion permits the “defendant to test whether, as a

matter of law, the plaintiff is entitled to legal relief even if

everything alleged in the complaint is true.” Mayer v. Mylod,

988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v. Dickson

Cnty., 814 F.2d 277, 279 (6th Cir. 1987)). A motion to dismiss

is designed to test whether the plaintiff has pled a cognizable

claim and allows the court to dismiss meritless cases that would

waste judicial resources and result in unnecessary discovery.

See Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436

(6th Cir. 1988).

When evaluating a motion to dismiss for failure to state a

claim, the Court must determine whether the complaint alleges

“sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). If a court decides, in light of its

judicial experience and common sense, that the claim is not

plausible, the case may be dismissed at the pleading stage.

Iqbal, 556 U.S. at 679. The “[f]actual allegations must be

enough to raise a right to relief above [a] speculative level.”

Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d

545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

A claim is plausible on its face if “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 (citing Twombly, 550 U.S. at

556). A complaint need not contain detailed factual allegations.

However, a plaintiff’s “[t]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do

not suffice.” Id.

IV. Analysis

The City argues that Boddy fails to establish § 1983

municipal liability. (ECF No. 32 at 5-13.) The City argues

that Boddy fails to state a claim under the Tennessee

Governmental Tort Liability Act (“GTLA”), T.C.A. §§ 29-20-101,

et seq., (id. at 14-15), and that the City cannot be liable for

punitive damages on any claim, (id. at 15).

A. Section 1983 Municipal Liability

Section 1983 provides a cause of action to those who suffer

the deprivation of a federal right by someone acting under color

of state law. Bright v. Gallia Cty., 753 F.3d 639, 660 (6th

Cir. 2014). Section 1983 does not impose vicarious liability on

municipalities for their employees’ actions. Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978). When a § 1983 plaintiff

seeks to impose liability on a municipality, in addition to

adequately pleading the violation of a constitutional right,1

the plaintiff must plead that a municipal policy or custom caused

the plaintiff’s injury. See Monell, 436 U.S. at 694; Bible

Believers v. Wayne Cty., 805 F.3d 228, 260 (6th Cir. 2015) (en

banc). To establish a municipal policy or custom, a plaintiff

must show: “(1) the existence of an illegal policy or legislative

1 Because Boddy has insufficiently pled Monell liability against the

City, the Court need not decide at this stage whether the Complaint

adequately alleges constitutional violations by the Officers.

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 in federal rights

violations.” Stewart v. City of Memphis, No. 2:16-cv-02574-SHM,

2019 WL 332812, at *12 (W.D. Tenn. Jan. 25, 2019), aff’d sub

nom. Stewart v. City of Memphis, 788 F. App’x 341 (6th Cir. 2019)

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

Boddy relies on the third and fourth grounds: failure to train

and custom of tolerance. (ECF No. 1 ¶¶ 120-125.)

To succeed on a failure to train claim, a plaintiff must

show: “(1) the training or supervision was inadequate for the

tasks performed; (2) the inadequacy was the result of the

municipality’s deliberate indifference; and (3) the inadequacy

was closely related to or actually caused the injury.” Brown v.

Chapman, 814 F.3d 447, 463 (6th Cir. 2016) (quoting Plinton v.

Cty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008)).

To succeed on a custom of tolerance claim, a plaintiff must

show: (1) a clear and persistent pattern of misconduct; (2)

notice or constructive notice on the part of the municipality;

(3) the defendant’s tacit approval of the misconduct, such that

deliberate indifference in its failure to act can be said to

amount to an official policy of inaction; and (4) that the

defendant’s custom was the moving force or direct causal link to

the violations. Stanfield v. City of Lima, 727 F. App’x 841,

851 (6th Cir. 2018) (quoting Thomas v. City of Chattanooga, 398

F.3d 426, 429 (6th Cir. 2005)); see also Wright v. City of

Euclid, 962 F.3d 852, 881 (6th Cir. 2020).

In the context of § 1983 municipal liability, district

courts in the Sixth Circuit have interpreted pleading standards

strictly. Spainhoward v. White Cty., 421 F. Supp. 3d 524, 544

(M.D. Tenn. 2019); Epperson v. City of Humboldt, 140 F. Supp. 3d

676, 685 (W.D. Tenn. 2015) (citations omitted). Boilerplate

allegations of municipal liability or a policy or custom are

generally insufficient. Minick v. Metro. Gov’t of Nashville,

No. 3:12-cv-0524, 2014 WL 3817116, at *2 n.3 (M.D. Tenn. Aug. 4,

2014) (collecting cases).

Boddy inadequately pleads municipal liability for First and

Fourth Amendment violations because his pleadings are conclusory

and insufficiently factual. (See ECF No. 1 ¶¶ 76(E), 120-130.)

Boddy pleads that the City is liable for the Officers’ conduct

because the City sanctioned the following customs, practices,

and policies:

(A) Using unreasonable and excessive force to carry out

detentions and/or arrests;

(B) Arbitrarily using arrests when they are not necessary

or permitted by law;

(C) Ignoring the serious need for training and supervision

of its officers regarding its policies and procedures

when conducting detentions and/or arrests;

(D) Failing to adequately supervise and/or observe its

officers;

(E) Failing to adequately train officers regarding the

availability of alternative means other than the use

of arrests, force, or excessive force without probable

cause;

(F) Failing to discharge officers who have shown a pattern

or practice of falsely arresting citizens;

(G) Failing to discharge officers who have shown a pattern

or practice of using excessive force; and

(H) Adopting a practice whereby officers who are unfit for

peace officer duties, as shown by prior actions in the

line of duty, are allowed to retain their positions.

(ECF No. 1 ¶ 123.) Boddy does not plead any facts that would

plausibly establish those customs, practices, and policies. That

is insufficient. See Brent v. Wayne Cty. Dep’t of Human Servs.,

901 F.3d 656, 698 (6th Cir. 2018), cert. denied, 139 S. Ct. 1551

(2019) (affirming dismissal of a Monell claim because the

complaint “failed to allege ‘a single fact that suggests,

plausible or otherwise,’ that the [police officers’] purported

[constitutional violations] were ‘the result of a custom, policy,

or practice of [the city]’”) (citation omitted)); Bickerstaff v.

Lucarelli, 830 F.3d 388, 402 (6th Cir. 2016) (similar).

Boddy does not plead prior instances that show the City was

on notice that its training and supervision were deficient. He

conclusorily pleads that the City “knew that [the Officers] were

likely to engage in other acts of wrongful conduct, yet [the

City] continuously failed to discipline, supervise, or train

[the Officers].” (ECF No. 1 ¶ 128.) That is insufficient.

Burgess, 735 F.3d at 478 (citing Miller v. Sanilac Cnty., 606

F.3d 240, 255 (6th Cir. 2010) (a failure-to-train claim requires

a showing of “‘prior instances of unconstitutional conduct

demonstrating that the [municipality] ha[d] ignored a history of

abuse and was clearly on notice that the training in this

particular area was deficient and likely to cause injury.’”));

Okolo v. Metro. Gov’t of Nashville, 892 F. Supp. 2d 931, 944

(M.D. Tenn. 2012) (dismissing claims against municipality

because the defendant ”pleads no facts and cites no prior

instances of unconstitutional conduct to support his conclusory

allegation that [the municipality] was aware of a history of

illegal arrests, much less that they ignored them”).

Boddy pleads that, “[w]ith respect to [the Officers], the

need for additional or different training was necessary

considering the circumstances of this incident.” (ECF No. 1

¶ 128.) Boddy assumes that his injury gives rise to the

inference that the City failed in training and disciplining the

officers. “To infer the existence of a city policy from the

isolated misconduct of low-level officers, and then hold the

city liable based on that policy, would amount to the very strict

respondeat superior liability rejected by the Supreme Court in

Monell and its progeny.” Epperson, 140 F. Supp. 3d at 686.

Boddy does not support his custom of tolerance claim by

pleading prior instances of similar misconduct or the City’s

failure to investigate it. He conclusorily pleads that, “[i]n

the present case, the City’s formal and informal actions reflect

a policy, practice, custom and procedure authorizing and allowing

constitutional rights violations.” (ECF No. 1 at ¶ 122.) That

is insufficient. See Burgess, 735 F.3d at 478 (“a custom-of-

tolerance claim requires a showing that there was a pattern of

inadequately investigating similar claims”).

To the extent Boddy pleads a Fifth Amendment violation

against the City, (see ECF No. 1 ¶ 67), that argument is “null[],”

because the Fifth Amendment’s Due Process Clause applies only to

actions of the federal government. Scott v. Clay Cty., Tenn.,

205 F.3d 867, 873 n.8 (6th Cir. 2000).

To the extent Boddy pleads an Eighth Amendment violation

against the City, he fails because “the Eighth Amendment’s ban

on cruel and unusual punishment applies to excessive-force claims

brought by convicted criminals serving their sentences.” Aldini

v. Johnson, 609 F.3d 858, 864 (6th Cir. 2010) (citing Whitley v.

Albers, 475 U.S. 312, 318–322 (1986)); see Brooks v. Sevier Cty.,

279 F. Supp. 2d 954, 962 (E.D. Tenn. 2003).

The City’s Motion for Judgment on the Pleadings on Boddy’s

§ 1983 claims is GRANTED.

B. GTLA Municipal Liability

“State law claims against governmental entities and their

employees are governed [exclusively] by the GTLA.” Epperson,

140 F. Supp. 3d at 689 (citing Tenn. Code Ann. § 29-20-101).

The GTLA waives common law sovereign immunity and permits

litigants to sue municipalities for injuries sounding in

negligence. Partee v. City of Memphis, 449 F. App’x 444, 447

(6th Cir. 2011) (citing Tenn. Code Ann. § 29–20–205).

The GTLA contains exceptions retaining immunity. One is

the “intentional tort exception,” which bars claims for injuries

arising out of “[f]alse imprisonment pursuant to a mittimus from

a court, false arrest, malicious prosecution, intentional

trespass, abuse of process, libel, slander, deceit, interference

with contract rights, infliction of mental anguish, invasion of

right of privacy, or civil rights.” Tenn. Code Ann. § 29-20-

205(2); Limbaugh v. Coffee Medical Ctr., 59 S.W.3d 73, 81 (Tenn.

2001). The reference to “civil rights” has been interpreted to

include claims arising under § 1983. Partee, 449 F. App’x 444,

448 (citing Johnson v. City of Memphis, 617 F.3d 864, 872 (6th

Cir. 2010)). Another exception is the “discretionary function

exception,” which bars claims for injuries arising out of “[t]he

exercise or performance or the failure to exercise or perform a

discretionary function, whether or not the discretion is abused.”

Tenn. Code Ann. § 29-20-205(1); Giggers v. Memphis Hous. Auth.,

363 S.W.3d 500, 507 (Tenn. 2012).

Boddy’s negligence, false imprisonment, false arrest, and

emotional distress claims against the City fall under the GTLA’s

immunity-retention exceptions. To the extent his negligence

claim arises from the facts underlying his § 1983 claims,2 it is

barred by the civil rights category of the intentional tort

exception. See Johnson, 617 F.3d at 872 (“Plaintiff’s claim

regarding the dispatcher’s negligence arises out of the same

circumstances giving rise to her civil rights claim under § 1983.

It therefore falls within the exception listed in § 29–20–205[2],

and the City retains its immunity.”); Tinkle v. Dyer Cty.,

Tennessee, No. 18-01124-STA-EGB, 2018 WL 6840155, at *2 (W.D.

Tenn. Dec. 31, 2018) (“[A] plaintiff cannot circumvent a

defendant’s immunity by couching its civil rights claim as one

of negligence.”) (citing Campbell v. Anderson Cty., 695 F. Supp.

2d 764, 778 (E.D. Tenn. 2010)).

To the extent Boddy’s negligence claim arises from the

City’s alleged failure to train, supervise, and discipline its

police department, it is barred by the discretionary function

exception. Savage v. City of Memphis, 620 F. App’x 425, 429

2 There is an analytical difference between a negligence claim based

on an officer’s conduct in arresting an individual and one based on

the City’s independent negligent acts in hiring, supervising, or

disciplining an officer. Partee, 449 F. App’x at 449.

(6th Cir. 2015) (“[T]he sorts of determinations the [Memphis

Police Department] must make in how it trains and supervises its

employees, staffs its departments, and investigates the alleged

wrongdoing of its employees place the Plaintiffs’ direct-

negligence claims squarely within the discretionary function

exception.”) (internal quotation marks omitted and alterations

in original).

Boddy’s false imprisonment claim against the City is barred

by the civil rights category of the intentional tort exception.

Carpenter v. Doe, No. 10-2425-STA, 2010 WL 4922640, at *11 (W.D.

Tenn. Nov. 29, 2010); Hale v. Randolph, No. 1:02-cv-334, 2004 WL

1854179, at *17 (E.D. Tenn. Jan. 30, 2004) (“Because [plaintiff]

asserts his false imprisonment . . . claim[] against the City in

the context of a civil rights case, his alleged injuries arise

out of ‘civil rights’ and the City is entitled to immunity from

suit on these claims pursuant to the ‘civil rights’ exception in

Tenn. Code Ann. § 29-20-205(2).”).

Boddy’s false arrest claim against the City is barred by

the false arrest category of the intentional tort exception.

Jones v. Yancy, No. 07-2263, 2010 WL 625392, at *4 (W.D. Tenn.

Feb. 17, 2010).

Boddy’s intentional infliction of emotional distress claim

against the City is barred by the infliction of mental anguish

category of the intentional tort exception. Dillingham v.

Millsaps, 809 F. Supp. 2d 820, 853 (E.D. Tenn. 2011); Stapp v.

Wall, No. 3:08-cv-0101, 2008 WL 11510613, at *7 (M.D. Tenn. Oct.

6, 2008) (“[T]he reference to ‘infliction of mental anguish’ in

the []GTLA applies . . . to intentional infliction of emotional

distress [claims].”) (citing Sallee v. Barrett, 171 S.W.3d 822

(Tenn. 2005)).

Boddy’s negligent infliction of emotion distress claim is

barred because it arises from the same circumstances that give

rise to his civil rights claims. Grove v. Metro. Gov’t of

Nashville & Davidson Cty., No. 3:18-cv-01270, 2019 WL 2269884,

at *7 (M.D. Tenn. May 28, 2019) (“The circumstance[] giving rise

to [plaintiff’s negligent infliction of emotional distress claim

is] the same alleged wrongful act (i.e., [the officer’s] use of

excessive force) that gives rise to Plaintiff’s Section 1983

claim. Therefore, [the municipality] retains its immunity

because of the []GTLA’s preservation of municipal immunity for

injuries arising from civil rights.”) (collecting cases).

The City’s Motion for Judgment on the Pleadings on Boddy’s

GTLA claims is GRANTED.3

3 Because the Court dismisses all claims against the City, it need not

address the City’s punitive damages arguments.

V. Conclusion

For the foregoing reasons, the City’s Motion for Judgment

on the Pleadings is GRANTED. All claims against the City are

DISMISSED.

So ordered this 28th day of July, 2020.

/s/ Samuel H. Mays, Jr.

Samuel H. Mays, Jr.

UNITED STATES DISTRICT JUDGE