Gray v. Shelby County Tennessee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

KESHA GRAY, )

)

Plaintiff, )

)

)

)

v. ) No. 2:20-cv-2947

)

SHELBY COUNTY, TENNESSEE, a )

Tennessee municipality, et )

al., )

)

Defendants. )

ORDER

In March 2020, the Shelby County Sheriff’s Department

received a call that a woman had been domestically abused. The

responding officers tackled, handcuffed, and arrested the

alleged victim, Kesha Gray, who was pregnant at the time. Gray

suffered a miscarriage soon after.

Now Gray brings claims under 42 U.S.C. § 1983. She sues

Officers Brett Barnett, Eugenia Sumner, Brett Simonsen, Bradley

Price, Brandon Foster, and Justin Lambert (collectively the

“Individual Defendants”) for violations of her Fourth Amendment

rights. (ECF No. 72.) Gray sues Shelby County for

unconstitutional practices and failure to train its employees.

(Id.) Before the Court are the Individual Defendants and Shelby

County’s Motions for Summary Judgment. (ECF Nos. 86, 87, 90,

92, 94, 96, 98.) For the following reasons, Barnett, Sumner,

and Simonsen’s Motions for Summary Judgment are GRANTED in part

and DENIED in part. Shelby County and Foster, Price, and

Lambert’s Motions for Summary Judgment are GRANTED.

I. Background

The following facts are undisputed.

On March 29, 2020, Shelby County Deputy Brett Barnett

responded to a call about a dispute between a man and a woman.

(ECF No. 110.) The complainant, Christopher Hodges, said that

he saw a black male put a black female in a chokehold and hit

her in the face. (Id.) Hodges said that, when he tried to stop

the altercation, the black male started moving towards him.

Hodges pulled a gun on the black male, left the scene, and called

the police.1 (Id.)

Barnett arrived to find Kesha Gray walking along the side

of the road. (ECF No. 72-1.) Gray told Barnett that she and

her fiancé were in a verbal argument. She showed Barnett that

she had no cuts, bruises, or other signs of physical altercation.

Barnett asked for Gray’s information. Gray refused. Barnett

1 One of the undisputed material facts states that Hodges

“brandished” the gun. Brandishing a gun and pulling a gun are

distinct actions. The Court assumes that Hodges pulled the gun

because “pulled” is used more often in the undisputed material

facts.

told Gray that she was required by law to give her information

as part of an ongoing domestic violence investigation. Gray

again refused to provide any information and said she was going

to walk home.

Barnett returned to his car and telephoned Officer Eugenia

Sumner, who was working as the Shift Field Commander. Barnett

told Sumner what Hodges had told him, including the fact that

Hodges had pulled a gun on Gray’s fiancé. (Id.) Barnett

confirmed that there were no signs of a physical altercation.

Sumner told Barnett that Gray did not have to provide any

information, and that he should get Hodges’ information. Sumner

asked Barnett to keep an eye on Gray while Sumner called Sergeant

Brett Simonsen, who worked with the General Investigation Bureau.

After Sumner had explained the situation to Simonsen, Simonsen

told Sumner that Gray was required to provide information as

part of an ongoing investigation, and to detain Gray if necessary

to get her information. Sumner called Barnett and told him to

detain Gray.

Barnett telephoned Deputy Bradley Price to ask for help

detaining Gray, saying, “I’m about to talk to this lady again .

. . and she’s gonna have an attitude, probably going to have to

fight her to get her information and Sarge says detain her and

that’s what I’m going to do.” (ECF No. 72-1.) Around this time,

Officer Justin Lambert, who had received the same disturbance

call as Barnett, came across Hodges and took his information.

Meanwhile, Barnett parked his car and approached Gray. He

asked Gray to stop walking and Gray refused. Barnett said, “do

I need to detain you? . . . I’m going to detain you if you do

not give me your ID.” (ECF No. 72-2.) He then lunged at Gray

with his handcuffs and wrapped his arms around her. Gray began

to struggle and asked Barnett why she was being arrested.

Barnett told her she was being detained, not arrested, and that

she should not resist unless she wanted to be tackled.

Gray broke from Barnett’s hold and walked into the street.

She asked onlookers to film the encounter and repeatedly told

Barnett that he lacked a reason to arrest her. A few moments

later, Officers Price and Brandon Foster arrived on the scene.

Barnett, Price, and Foster surrounded Gray. Gray began to flail

and accuse the three white officer of racial profiling. The

officers tackled Gray to the ground. Gray told them she was

pregnant and asked them to stop. The officers put Gray in

handcuffs and into the backseat of a police car.

The officers went over what had happened while waiting for

Sumner to arrive. Barnett said that he knew it was going to

“get ugly,” but that Sumner had told him that he had the right

to detain Gray if she refused to provide information. Price

said, “my understanding is you have an aggravated assaulted

domestic. She’s refusing to give information. Sumner said

detain her, we detained her. She didn’t like it.” (ECF No. 72-

3.)

Sumner arrived and the officers contemplated charges.

Sumner first suggested charging Gray’s fiancé with aggravated

assault for pulling a gun on Hodges. Barnett corrected Sumner

and said Hodges had drawn the weapon, not Gray’s fiancé. Sumner

said to charge Gray’s fiancé with assault against Gray, and to

state in the record that Hodges was justified in drawing his

weapon because he feared for his life. Gray was charged with

two counts of assault, disorderly conduct, obstructing highway

or passageway, and resisting official detention. All charges

against Gray were dropped.

On December 7, 2021, Gray filed her Amended Complaint,

alleging malicious prosecution and false arrest against the

Individual Defendants. (ECF No. 72.) She also alleges excessive

force against Barnett, Foster, and Price. (Id.) Gray alleges

failure to train and unconstitutional practices against Shelby

County. (Id.) On January 31, 2022, the Individual Defendants

and Shelby County moved for summary judgment. (ECF Nos. 86, 87,

90, 92, 94, 96, 98.) Gray responded on March 14, 2022. (ECF

No. 109).

II. Standard of Review

Under Federal Rule of Civil Procedure 56, a court shall

grant a party’s motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The moving party can meet this burden by showing

the court that the nonmoving party, having had sufficient

opportunity for discovery, has no evidence to support an

essential element of her case. See Fed. R. Civ. P. 56(c)(1);

Viet v. Le, 951 F.3d 818, 823 (6th Cir. 2020) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

When confronted with a properly-supported motion for

summary judgment, the nonmoving party must set forth specific

facts showing that there is a genuine dispute for trial. See

Fed. R. Civ. P. 56(c). “A ‘genuine’ dispute exists when the

plaintiff presents ‘significant probative evidence’ ‘on which a

reasonable jury could return a verdict for her.’” EEOC v. Ford

Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quoting Chappell

v. City of Cleveland, 585 F.3d 901, 915 (6th Cir. 2009)). The

nonmoving party “must show that there is more than ‘some

metaphysical doubt as to the material facts.’” Goodman v. J.P.

Morgan Inv. Mgmt., Inc., 954 F.3d 852, 859 (6th Cir. 2020)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986)).

A party may not oppose a properly supported summary judgment

motion by mere reliance on the pleadings. Celotex Corp., 477

U.S. at 324. Instead, the nonmoving party must adduce concrete

evidence on which a reasonable juror could return a verdict in

her favor. See Fed. R. Civ. P. 56(c)(1). The Court does not

have the duty to search the record for such evidence. See Fed.

R. Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d

108, 111 (6th Cir. 1989).

Although summary judgment must be used carefully, it “is an

integral part of the Federal Rules as a whole, which are designed

to secure the just, speedy, and inexpensive determination of

every action[,] rather than a disfavored procedural shortcut.”

FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009)

(quotation marks and citations omitted).

III. Analysis

A. The Individual Defendants’ Motions

The Individual Defendants argue that they did not violate

Gray’s constitutional rights, and if they did, they are protected

by qualified immunity.

Qualified immunity shields government actors from civil

liability under 42 U.S.C. 1983 if “their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). In deciding whether qualified immunity

is appropriate, a court must determine (1) whether the actor’s

conduct violated a constitutional right, and (2) whether that

right was clearly established at the time of the incident.

Pearson v. Callahan, 555 U.S. 223, 232 (2009). “A clearly

established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing

violates that right.” Mullenix v. Luna, 577 U.S. 7, 11-12

(2015). A clearly established right can be established by

existing precedent, although a case directly on point is not

required. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Ultimately, the “sine qua non of the ‘clearly established’

inquiry is ‘fair warning.’” Baynes v. Cleland, 799 F.3d, 612-

13 (6th Cir. 2015) (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)).

Although “the defendant bears the burden of pleading a

qualified immunity defense, the ultimate burden of proof is on

the plaintiff to show that the defendant is not entitled to

qualified immunity.” Palma v. Johns, 27 F.4th 419, 427 (6th

Cir. 2022) (internal citations and quotations omitted). “When

more than one officer is involved, the court must consider each

officer's entitlement to qualified immunity separately.” Smith

v. City of Troy, 874 F.3d 938, 944 (6th Cir. 2017).

1. Unreasonable Seizure/ False Arrest2

The Fourth Amendment protects “[t]he right of the people to

be secure in their persons . . . against unreasonable searches

and seizures.” U.S. Const. amend. IV. “[T]he ultimate

touchstone of the Fourth Amendment is ‘reasonableness.’” Heien

v. North Carolina, 574 U.S. 54, 60 (2014) (quoting Riley v.

California, 573 U.S. 373, 381 (2014)).

“There are three kinds of permissible encounters between

the police and citizens: ‘(1) the consensual encounter, which

may be initiated without any objective level of suspicion; (2)

the investigative detention, which, if non-consensual must be

supported by a reasonable, articulable suspicion of criminal

activity; and (3) the arrest, valid only if supported by probable

cause.’” United States v. Beauchamp, 659 F.3d 560, 566 (6th

Cir. 2011) (quoting United States v. Smith, 594, F.3d 530, 535

(6th Cir. 2010)).

An encounter is consensual where a reasonable person would

feel free to disregard the police and go about her business.

California v. Hodari D., 499 U.S. 621, 628 (1991). Purely

consensual stops are not subject to the Fourth Amendment, but

once an encounter loses its consensual nature, it triggers Fourth

2 Gray alleges that Barnett lacked any reasonable, articulable

suspicion to stop her. Gray’s false arrest claim is included within

a broader, unreasonable seizure claim.

Amendment scrutiny. Beauchamp, 659 F.3d at 566 (citing Florida

v. Bostick, 501 U.S. 429, 434 (1991)).

Barnett

The first question is when the encounter between Barnett

and Gray lost its consensual nature. “An individual is seized

when an officer ‘by means of physical force or show of authority,

has in some way restrained [her] liberty.’” Beauchamp, 659 F.3d

at 566 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16) (1968))

(alteration added). “Whenever an officer restrains the freedom

of a person to walk away, he has seized that person.” Tennessee

v. Garner, 471 U.S. 1, 7 (1985). “If the officer acts by a show

of authority . . . the individual must actually submit to that

authority.” Beauchamp, 659 F.3d at 566 (citing Brendlin v.

California, 551 U.S. 249, 254 (2007)).

When Barnett first encountered Gray, he told her that she

was required to answer questions as part of an ongoing

investigation. He did not restrain Gray’s freedom. Gray refused

to answer any questions and kept walking. Barnett returned to

his car. Gray did not submit to Barnett’s authority. Barnett

did not seize Gray during their first encounter.

After speaking with Sumner, Barnett again approached Gray.

This time, Barnett lunged at Gray with his handcuffs and wrapped

his arms around her. Barnett told Gray that she was being

detained. Barnett’s actions constituted a seizure.

The next question is whether Barnett’s actions constituted

an arrest or an investigative detention. When police actions go

“beyond checking out the suspicious circumstances that led to

the original stop, the detention becomes an arrest.” United

States v. Obasa, 15 F. 3d 60, 607 (6th Cir. 1994). To determine

whether a detention has become an arrest, courts consider the

manner in which an investigatory stop is conducted and the degree

of force used. Smoak v. Hall, 460 F.3d 768, 781 (6th Cir. 2006).

An officer may draw his handcuffs during an investigative stop

only if warranted by the circumstances. Dorsey v. Barber, 517

F.3d 389, 399 (6th Cir. 2008).

Barnett did not believe that Gray had committed or was

involved in a crime, but that Gray was the victim of domestic

abuse. Knowing that, Barnett lunged at Gray with handcuffs and

wrapped his arms around her. A reasonable jury could conclude

Barnett’s use of force and handcuffs constituted an arrest. See

Smoak 460 F.3d at 781 (if handcuffs and use of force are not

justified by circumstances, investigative stop transforms into

arrest).

Barnett must have had probable cause to arrest Gray. “For

probable cause to exist for an arrest, the ‘facts and

circumstances within the officer’s knowledge [must be]

sufficient to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that the

suspect has committed, is committing or is about to commit an

offense.’” Weser v. Goodson, 965 F.3d 507, 513-14 (6th Cir.

2020) (quoting Thacker v. City of Columbus, 328 F.3d 244, 255

(6th Cir. 2003)) (alteration in original). A probable cause

determination is made “at the moment of the arrest.” Sykes v.

Anderson, 6225 F.3d 294, 306 (6th Cir. 2010). A showing of

probable cause is a complete defense to a claim of false arrest.

Tlapanco v. Elges, 969 F.3d 638, 651 (6th Cir. 2020) (citing

Halasah v. City of Kirtland, 574 F. App’x 624, 629 (6th Cir.

2014)).

Barnett says that he had probable cause to arrest Gray based

on Hodges’ complaint. According to Hodges’ complaint, Gray was

the victim of domestic abuse. Hodges never suggested that Gray

had committed or was committing an offense. Hodges’ complaint

did not give Barnett probable cause to arrest Gray.

Barnett argues that two Tennessee laws required Gray to

participate in the investigation and that, because she refused,

Barnett had the authority to arrest her. Barnett says that

T.C.A. § 36-3-619(e) mandated his actions. A plain reading of

the text suggests otherwise. The statute reads, “[w]hen a law

enforcement officer investigates an allegation that domestic

violence occurred, the officer shall make a complete report and

file the report with the officer’s supervisor.” Id. Nothing in

the text requires the alleged domestic violence victim to provide

information to an officer or authorizes an officer to arrest the

alleged victim. Barnett cites no case law or legislative history

to support his interpretation. T.C.A. § 36-3-619(e) did not

authorize Gray’s arrest.

Barnett claims that he could detain Gray because she was a

material witness under T.C.A. § 40-11-110.3 Under § 40-11-110,

a court can require a witness with material testimony who has

refused to respond to a criminal proceeding to give bail. Id.

An affidavit must identify the materiality of the testimony. Id.

If the witness fails to give bail, the court may commit the

person to custody. Id. Gray was not a material witness to any

criminal proceeding. A court did not require Gray to give bail.

Section 40-11-110 is inapplicable here.

Barnett claims that Gray, by resisting his attempts to

detain her, violated Tennessee law, which gave Barnett probable

cause to arrest her. That reasoning “puts the cart before the

horse.” Wright v. City of Euclid, 962 F.3d 852, 874 (6th Cir.

2020). Probable cause must have existed “at the moment of the

arrest.” Sykes, 625 F.3d at 306. The arrest began when Barnett

lunged at Gray with Barnett’s handcuffs. Barnett has not

identified any probable cause at the moment of arrest. Because

3 In his Motion for Summary Judgment, Barnett cites T.C.A. § 4-11-

110, not § 40-11-110. Section 4-11-110 addresses appropriations.

Id. The Court assumes that Barnett means to refer to § 40-11-110.

Barnett lacked probable cause, he falsely arrested Gray in

violation of her Fourth Amendment rights.

Even if Barnett’s actions were an investigative stop, Gray

was subject to an unreasonable seizure. The constitutionality

of an investigative stop depends on a two-part analysis.

Beauchamp, 659 F.3d at 569. The stop must have a proper basis,

“which is judged by examining whether the law enforcement

officials were aware of specific and articulable facts which

gave rise to a reasonable suspicion” of criminal activity.

United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993). If

the stop was proper, a court considers the degree of intrusion,

judged on the reasonableness of the officials’ conduct given the

circumstances. Beauchamp, 659 F.3d at 569 (internal citations

and quotations omitted).

Barnett’s stop was without proper basis. He lacked a

reasonable, articulable suspicion that Gray had been, was, or

was about to be engaged in criminal activity. See United States

v. Place, 462 U.S. 696, 702 (1983). Even treated as an

investigative stop, Barnett’s seizure was unlawful.

Barnett is still entitled to qualified immunity unless his

actions violated a constitutional right clearly established at

the time of the incident. Pearson, 555 U.S. at 232. Whether

construed as a false arrest or an unreasonable seizure, Barnett’s

conduct violated clearly established law. An arrest without

probable cause is a violation of a clearly established right.

See Tlapanco, 969 F.3d at 654. The standard for investigative

detentions has been clearly established since 1968. Feathers v

Aey, 319 F.3d 843, 850-51 (6th Cir. 2003). Barnett’s actions

violated each of these clearly established constitutional

standards. Barnett is not entitled to qualified immunity on the

false arrest claim or the unreasonable seizure claim. His Motion

for Summary Judgment on the false arrest and unreasonable seizure

claims is DENIED.

Sumner and Simonsen

After Barnett’s initial conversation with Gray, he returned

to his car and telephoned Sumner. Barnett explained the

situation to Sumner: Hodges observed a domestic violence

incident, Hodges pulled a gun on Gray’s fiancé, Gray had no

visible physical signs of injury and claimed she was in a verbal

argument with her fiancé, and Gray did not want to provide any

information or make a report. Sumner told Barnett that Gray did

not have to provide any information, and that she would call him

back. After speaking with Simonsen, Sumner told Barnett to

detain Gray and get her information.

Sumner argues that she misunderstood Barnett to say that

Gray’s fiancé pulled the gun on Hodges, not the other way around,

and that she relayed this incorrect information to Simonsen.

Simonsen told Sumner to get Gray’s information and detain her,

if necessary. Gray argues that Sumner did know Hodges had pulled

the weapon, not Gray’s fiancé, and that Sumner told Simonsen

that.

Under either scenario, Sumner and Simonsen understood that

Gray was the alleged victim of domestic abuse. They lacked a

reasonable, articulable suspicion that Gray had been, was, or

was about to be engaged in criminal activity. By ordering

Barnett to detain Gray, Sumner and Simonsen violated Gray’s

constitutional right to be free from unreasonable search and

seizure. See id.

Both Sumner and Simonsen assert qualified immunity as an

affirmative defense. The standard for investigative detentions

has been clearly established since 1968. Feathers, 319 F.3d at

850-51. Sumner and Simonsen violated clearly established law by

ordering Barnett to detain Gray, and they are not shielded by

qualified immunity. Their Motions for Summary Judgment on the

unreasonable seizure and false arrest claims are DENIED.

Price, Foster, and Lambert

Price and Foster arrived to see Barnett attempting to arrest

Gray, who was in the middle of the street and resisting. Price

and Foster did not know that Gray was an alleged victim of

domestic violence. Gray flailed at Price and Foster as they

drew near. The facts and circumstances available to Price and

Foster were sufficient to warrant a reasonable officer to believe

that Gray had committed, or was about to commit, an offense.

Price and Foster had probable cause to arrest Gray. Their

Motions for Summary Judgment on the unreasonable seizure and

false arrest claims are GRANTED.

While Price, Foster, and Barnett arrested Gray, Lambert

took a statement from Hodges. By the time Lambert arrived on

the scene, Gray had been handcuffed. Lambert helped the officers

put Gray in the back of his vehicle. Gray had already been

seized and arrested by the time Lambert arrived. Lambert’s

Motion for Summary Judgment on the unreasonable seizure and false

arrest claims is GRANTED.

2. Malicious Prosecution

Gray claims malicious prosecution against the Individual

Defendants. To succeed on a malicious prosecution claim under

§ 1983, a plaintiff must prove that: (1) the defendant made,

influenced, or participated in the decision to prosecute the

plaintiff; (2) there was no probable cause for the criminal

prosecution; (3) because of the legal proceedings, the plaintiff

suffered a deprivation of liberty apart from the initial arrest;

and (4) the criminal proceeding was resolved in the plaintiff’s

favor. Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015)

(citing Sykes, 625 F.3d at 308). There is no dispute that Gray

suffered a deprivation of liberty apart from the initial arrest

and that the criminal proceeding was resolved in her favor.

The probable cause analysis for a malicious prosecution

claim is distinct from the analysis of a false arrest or

unreasonable seizure claim. The question is whether there was

probable cause to initiate the criminal proceeding against Gray,

not to arrest her. Sykes, 625 F.3d at 310-11. Gray was charged

with two counts of assault, in violation of T.C.A. § 39-13-101,

disorderly conduct, in violation of T.C.A. § 39-17-305,

obstructing a highway or passageway, in violation of T.C.A. §

39-17-307, and resisting official detention, in violation of

T.C.A. §39-16-602.

Once Barnett had attempted to handcuff Gray, she began to

struggle and walked into the middle of the street. Price and

Foster arrived on the scene soon after. Gray began flailing at

the officers as they tried once more to handcuff her. These

facts are sufficient to “lead an ordinary person to believe

[Gray] was guilty of the crime charged.” Webb, 789 F.3d at 660

(internal citation omitted)(alteration added). That does not

contradict the fact that there was no probable cause at the time

of the arrest. For a false arrest claim, probable cause is

determined at the time of arrest. Barnett’s initial arrest was

unlawful because there was no probable cause. Gray’s subsequent

acts gave the officers probable cause to initiate a criminal

proceeding against her.4

Probable cause defeats a malicious prosecution claim. See

Marcilis v. Township of Redford, 693 F.3d 589, 604 (6th Cir.

2012). The Individual Defendants’ Motions for Summary Judgment

on the malicious prosecution claim are GRANTED.

3. Excessive Force

“The Fourth Amendment’s prohibition against unreasonable

seizures protects citizens from excessive use of force by law

enforcement officers.” Godawa v. Byrd, 798 F.3d 457, 463 (6th

Cir. 2015). To determine whether an officer used excessive

force, a court asks whether the officer’s actions were

“objectively reasonable” in light of the facts and circumstances

confronting him. Palma, 27 F.4th at 428 (citing Graham v.

Connor, 490 U.S. 386, 396 (1989)). Courts look at the totality

of the circumstances surrounding the officer’s use of force, and

only to the facts knowable to the officer. Id. (internal

citations omitted). The use of force should not be viewed with

the 20/20 vision of hindsight, as police officers are “often

forced to make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of force

4 This interpretation is reinforced by Tennessee law. Under T.C.A. §

39-16-602(b), that an arrest or search was unlawful does not

generally provide a defense to a charge of obstruction of law

enforcement.

that is necessary in a particular situation.” Graham, 490 U.S.

at 396-97.

Courts begin with three non-exhaustive factors when

considering the totality of the circumstances: (1) the severity

of the crime; (2) whether the suspect posed an immediate threat

to the safety of the officers or others; and (3) whether the

suspect was actively resisting arrest. Palma, 27 F.4th at 428-

29 (internal citations and quotations omitted). A court must

segment the incident into its constituent parts and consider the

officers’ entitlement to qualified immunity at each step. Smith,

874 F.3d at 944.

There are two separate incidents: when Barnett tried to

subdue Gray by himself, and when Barnett, Price, and Foster

subdued Gray together.

The First Incident

Barnett lunged at Gray with handcuffs and wrapped his arms

around her. At this point, Barnett believed Gray was the victim

of a violent crime, not a suspect. Gray posed no threat to

Barnett’s safety or the safety of others; she was walking home

along a sidewalk. These facts suggest that Barnett’s use of

force was excessive and violated clearly established

constitutional principles. See Smith, 874 F.3d at 945 (forceable

handcuffing of plaintiff who committed no crime and posed no

threat is excessive and violates clearly established law).

Barnett is not entitled to qualified immunity.

The Second Incident

Gray broke away from Barnett’s hold and walked into the

street. She asked onlookers in their cars to film the incident.

Price and Foster arrived thereafter. The three officers

encircled Gray, and she flailed her arms as they came closer.

The officers tackled Gray in the street and put her in handcuffs.

Gray told the officers she was pregnant. The officers put Gray

in the backseat of a police car.

In the second incident, Gray was actively resisting arrest.

She posed a safety risk to those around her by walking into the

street and flailing at the officers. The officers did not use

excessive force in violation of clearly established

constitutional principles. They are entitled to qualified

immunity.

Barnett’s Motion for Summary Judgment on the excessive force

claim is GRANTED in part and DENIED in part. He is entitled to

qualified immunity on the second incident, but not the first.

Price and Foster’s Motions for Summary Judgment on the excessive

force claim are GRANTED.

B. Shelby County’s Motion for Summary Judgment

Shelby County seeks summary judgment on Gray’s Monell claims

and her claim for punitive damages.

1. Monell Liability

Section 1983 allows plaintiffs to bring claims against

municipalities and other local governments. Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690 (1978). A municipality may not

be held liable under § 1983 on a respondeat superior theory.

D’Ambrosio v. Marino, 747 F.3d 378, 388-89 (6th Cir. 2014). The

plaintiff must show the municipality was the “moving force”

behind the alleged injury. Bd. of Cnty. Comm’rs v. Brown, 520

U.S. 397, 404 (1997). A plaintiff can do this by showing the

municipality had a policy or custom that caused the violation of

her rights. Jackson v. City of Cleveland, 925 F.3d 793, 828

(6th Cir. 2019) (citing Monell, 436 U.S. at 694).

To show that a municipality had such a policy or custom, a

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.” Burgess v. Fischer, 735 F.3d 462,

478 (6th Cir. 2013)(internal citation omitted). Gray argues

that Shelby County had a policy of inadequate training and

supervising, and a custom of tolerance of federal rights

violations. Shelby County seeks summary judgment on both claims.

Failure to Train or Supervise5

For Shelby County to be liable for its failure to train its

employees, Gray must establish that: (1) Shelby County’s training

program was inadequate for the tasks that its officers perform;

(2) the inadequacy was the result of Shelby County’s deliberate

indifference; and (3) the inadequacy was closely related to or

actually caused the injury. Ciminillo v. Streicher, 434 F.3d

461, 469 (6th Cir. 2006)(citing Russo v. City of Cincinnati, 953

F.2d 1036, 1046 (6th Cir. 1992)).

All Individual Defendants have been certified by the

Tennessee Peace Officers Standards and Training (“POST”)

Commission, and each has received hundreds of hours of formal

training, including training about Fourth Amendment law. Gray

has not explained why the training was inadequate and offers no

alternative course of training. Although Barnett, Sumner, and

Simonsen’s statements show a misunderstanding of the Fourth

Amendment and Tennessee law, Shelby County is not liable for the

occasional mistakes of its officers. See Graham v. Cnty. of

Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004).

5 The “‘failure to supervise’ theory of municipal liability is a rare

one. Most agree that it exists and some allege they have seen it,

but few actual specimens have been proved. It appears to relate to

two more common theories of municipal liability: an inadequate-

training theory . . . or an ‘acquiesce[nce]’ theory[.]” Mize v.

Tedford, 375 F. App’x 497, 500 (6th Cir. 2010). Gray’s argument for

failure-to-supervise liability is essentially the same as her

argument for failure-to-train liability. The Court evaluates the

failure-to-supervise claim as part of the failure-to-train claim.

Even if Gray could prove inadequate training, she would

also have to show deliberate indifference. To establish

deliberate indifference, “the risk of a constitutional violation

arising as a result of the inadequacies in the municipal policy

must be ‘plainly obvious.’” Gregory v. City of Louisville, 444

F.3d 725, 752 (6th Cir. 2006) (quoting Brown, 520 U.S. at 412).

A plaintiff can show deliberate indifference through (1) “prior

instances of unconstitutional conduct demonstrating that the

[County] had notice that the training was deficient and likely

to cause injury but ignored it” or (2) “evidence of a single

violation of federal rights, accompanied by a showing that the

[County] had failed to train its employees to handle recurring

situations presenting an obvious potential for such a violation.”

Campbell v. City of Springboro, 700 F.3d 779, 794 (6th Cir. 2012)

(citing Plinton v. Cnty. of Summit, 540 F.3d 459, 464 (6th Cir.

2008))(alteration added).

Gray has not shown prior instances of unconstitutional

conduct. She has provided no evidence of any additional training

that would be necessary. See Griffith v. Franklin Cnty., 975

F.3d 554, 584 (6th Cir. 2020) (no deliberate indifference for

single incident because plaintiff did not show that additional

training would be necessary). She has not shown that the

training was so deficient and so likely to cause injury that the

failure to train presented an obvious potential for violations.

See Bonner-Turner v. City of Ecorse, 627 F. App’x 400, 414 (6th

Cir. 2015). Gray has not shown deliberate indifference or that

the officers’ training was inadequate. Shelby County’s Motion

for Summary Judgment on the failure-to-train claim is GRANTED.

Custom or Policy

In her Amended Complaint, Gray claims that Shelby County

had unconstitutional policies and practices. Shelby County seeks

summary judgment on Gray’s claim. Gray does not address the

unconstitutional policies and practices claim in her response to

Shelby County’s Motion for Summary Judgment. Summary judgment

is appropriate when a “motion for summary judgment is properly

made and supported and the nonmoving party fails to respond with

a showing sufficient to establish an essential element of its

case.” Wimbush v. Wyeth, 619 F.3d 632, 636 (6th Cir. 2010).

Shelby County’s Motion for Summary Judgment on the

unconstitutional policies and practices claim is GRANTED.

2. Damages

Shelby County seeks dismissal of Gray’s claim for punitive

damages. A plaintiff cannot recover punitive damages from

municipalities under § 1983. Newport v. Fact Concerts, Inc.,

453 U.S. 247, 260 (1981). Shelby County’s Motion for Summary

Judgment on punitive damages is GRANTED.

IV. Conclusion

For the foregoing reasons, Barnett, Sumner, and Simonsen’s

Motions for Summary Judgment are GRANTED in part and DENIED in

part. Shelby County and Foster, Price, and Lambert’s Motions for

Summary Judgment are GRANTED.

SO ORDERED this 31st day of May, 2022.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE