Opinion

King v. Shoate

Court
District Court, W.D. Tennessee
Filed
Jun 26, 2023
Cited by
0 cases
Authority
More cited than 29.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

KELSEY JEAN KING, )

)

Plaintiff, )

)

)

v. ) No. 20-cv-1145-SHM-cgc

)

NATHANIEL SHOATE, SCOTT )

CORNELSON, and ROBERT )

POMEROY, )

)

Defendants. )

)

ORDER GRANTING DEFENDANT POMEROY’S MOTION FOR SUMMARY

JUDGMENT

Plaintiff Kelsey Jean King (“King”) alleges that Defendant

Robert Pomeroy (“Pomeroy”) has violated the First and Fourth

Amendments of the United States Constitution and Sections 39-16-

502 and 39-11-620 of the Tennessee Code. She alleges that Pomeroy

committed the torts of false imprisonment, defamation, property

damage, excessive force, and assault.

Before the Court are King’s Motion to Strike, ECF No. 75,

and Pomeroy’s Motion for Summary Judgment. (ECF No. 61.) The

Court requested additional briefing. (ECF No. 79.) Both parties

responded. (ECF Nos. 80, 82.) For the following reasons, the

Motion to Strike is DENIED, and the Motion for Summary Judgment

is GRANTED. King’s claims against Pomeroy are DISMISSED.

I. Background

On July 2, 2019, Defendant Officer Nathaniel Shoate

(“Shoate”) pulled over Reem Cooper (“Cooper”) for speeding. (ECF

No. 59-2 at ¶ 1.) King was a passenger in the car. (Id. at ¶ 2.)

Multiple officers assisted in the traffic stop, including

Defendants Pomeroy and Scott Cornelson (“Cornelson”). (Id. at ¶

3.) The officers asked Cooper for his license and registration.

When Cooper was not able to produce them, the officers asked him

to get out of the car. (ECF No. 59-3, Exhibit A, at 00:18.)

Cooper got out and spoke with the officers. (Id. at 00:30-13:00.)

The officers asked King to get out of the car so that they could

conduct a K-9 search of the car. (Id. at 13:25-14:20.) After

initially refusing to get out, King complied and began filming

the officers with her phone. (Id. at 13:25-15:52.) She asked the

officers for their names. (Id. at 15:52-16:25.)

The officers asked King and Cooper to step away from the

vehicles so the K-9 unit could search the car. (Id. at 21:05-

25.) While Shoate was standing next to one of the vehicles asking

Cooper for personal information needed to fill out the traffic

citation, King stood directly behind Shoate. (Id. at 29:56.) The

officers told King to step back, but she did not move. (Id. at

29:50-30:02.) After instructing King to step back several times,

the officers arrested her. (Id. at 30:12-25.) Shoate handcuffed

her. (Id.)

King was taken to another police car where an officer

removed her handcuffs and replaced them with a new pair.1 (Id.

at 33:05-40.) King was searched. (Id. at 36:10.) King was

eventually placed in a police car and driven to a police station,

(id. at 41:40-1:04:00), where officers filled out paperwork.

(Id. at 1:04:00-1:17:00.)

II. Jurisdiction

A. Federal Question Jurisdiction

District courts have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the

United States. 28 U.S.C. § 1331. King brings claims under 42

U.S.C. § 1983. (ECF No. 12.) The Court has original jurisdiction

over those claims.

B. Supplemental Jurisdiction

A district court can exercise supplemental jurisdiction

over claims that are so related to the claims forming the basis

of original jurisdiction that they form part of the same case or

controversy. 28 U.S.C. § 1367(a).

A federal court that has dismissed all federal claims should

not ordinarily reach state-law claims. Moon v. Harrison Piping

Supply, 465 F.3d 719, 728 (6th Cir. 2006). This Order, taken

with the Order addressing Shoate and Cornelson’s Motion for

1 The officer who changed King’s handcuffs is not a party to this

case.

Summary Judgment, dismisses all federal claims. Trial courts

have some discretion to decide pendent state-law claims after

all federal claims have been dismissed.2 Aschinger v. Columbus

Showcase Co., 934 F.2d 1402, 1412 (6th Cir. 1991). In deciding

whether to resolve a pendent state-law claim on the merits, a

trial court “must balance the interests in avoiding needless

state law decisions . . . against the ‘commonsense’ policies of

judicial economy. . . .” Id.

The balance of interests favors exercising supplemental

jurisdiction over King’s state-law claims against Pomeroy. The

state-law claims arise from the same set of facts as the federal

claims. The state-law claims involve well-established areas of

Tennessee tort law. Addressing the state-law claims promotes

judicial economy without requiring the Court to resolve difficult

questions of Tennessee law.

III. Standard of Review

Summary judgment is warranted if there is no genuine issue

of material fact, and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). The movant has the

burden of establishing that there are no genuine issues of

2 Pendent jurisdiction and ancillary jurisdiction were codified under

the term supplemental jurisdiction in 28 U.S.C. § 1367. The Court

uses the term pendent jurisdiction here to be consistent with the

cited cases. The term is meant to be used interchangeably with

supplemental jurisdiction.

material fact, which may be accomplished by demonstrating that

the nonmoving party lacks evidence to support an essential

element of her case. Peeples v. City of Detroit, 891 F.3d 622,

630 (6th Cir. 2018). There is a dispute about a material fact if

the evidence is such that a reasonable jury could return a

verdict for the nonmovant. EEOC v. Ford Motor Co., 782 F.3d 753,

760 (6th Cir. 2015) (en banc). Inferences must be drawn in the

light most favorable to the nonmovant. Bledsoe v. Tennessee

Valley Authority Board of Directors, 42 F.4th 568, 578 (6th Cir.

2022). When video of the events pertinent to the case exists,

the reviewing court need not credit a party’s assertions that

are blatantly contradicted by the video. Cunningham v. Shelby

County, Tenn., 994 F.3d 761, 763 (6th Cir. 2021) (citing Scott

v. Harris, 550 U.S. 372, 380-81 (2007)).

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.’” F.D.I.C. v. Jeff Miller Stables, 573 F.3d

289, 294 (6th Cir. 2009) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 327 (1986)).

IV. Analysis

A. Motion to Strike

King asks the Court to strike Pomeroy’s Motion for Summary

Judgment on the ground that Pomeroy did not notify King when he

filed the Motion, depriving her of the opportunity to respond.

(ECF No. 75.) King does not cite a procedural basis for her

Motion. Even assuming striking the Motion would be the proper

remedy, King’s justification fails.

King consented to receive Notices of Electronic Filing and

provided an e-mail address. (ECF No. 48.) There is a presumption

of delivery and receipt for all e-mails sent using the Court’s

CM/ECF system. E.g., Am. Boat Co. v. Unknown Sunken Barge, 567

F.3d 348, 350 (8th Cir. 2009). Mere denials of receipt do not

rebut the presumption. Holland v. Red River Trucking, LLC, No.

10-cv-218, 2011 WL 13318616, at *3 (E.D. Ky. Jan. 12, 2011).

King merely denies receipt. She does not rebut the presumption.

King’s claim is further weakened because Pomeroy’s Motion for

Summary Judgment was filed on the same day that Defendants Shoate

and Cornelson filed their Motion for Summary Judgment, to which

King responded. (ECF Nos. 59, 61, 65.)

Assuming striking the Motion would be the proper remedy,

King has not rebutted the presumption of receipt. The Court finds

no basis to “strike” Pomeroy’s Motion.

King asks for additional time to respond to Pomeroy’s

Motion. (ECF No. 75 at 2.) The Motion was filed on December 7,

2022. (ECF No. 61.) King had 28 days to respond. L.R. 56.1(b).

When a party seeks an extension of time after the deadline to

respond has passed, the court may grant an extension only if the

failure to act is the result of excusable neglect. Fed. R. Civ.

P. 6(b)(1)(B). King’s claim that she did not receive Pomeroy’s

Motion is unsupported and discredited by her response to Shoate

and Cornelson. Her failure to timely respond was not the result

of excusable neglect. Her Motion to Strike is DENIED.

B. Motion for Summary Judgment

1. Federal claims

Pomeroy argues that King’s claims fail on the merits and

that he is protected by qualified immunity. Because the claims

fail on the merits, the Court need not address Pomeroy’s

arguments on qualified immunity.

a. Fourth Amendment Claims

King alleges that her Fourth-Amendment rights were violated

when officers tackled her to the ground, attempted to search her

car without her consent, handcuffed her too tightly, and arrested

her without cause. (ECF No. 12.) The Court has reviewed body-

camera footage from the time of the initial traffic stop to the

time King was placed in the police car and driven to the police

station. King was not tackled at any point in the video. (See

ECF No. 63, Exhibit A.) She has retracted her claim that she was

tackled. (ECF No. 82 at 4.)

When evaluating potential officer misconduct, each

defendant’s liability must be evaluated individually based on

the defendant’s own actions. Binay v. Bettendorf, 601 F.3d 640,

650 (6th Cir. 2010) (collecting cases). Even if the other alleged

Fourth Amendment violations occurred, Pomeroy did not commit

them. He did not open King’s car door, shine a flashlight into

her car, take her phone or other possessions, handcuff her, or

arrest her. (See ECF No. 63, Exhibit A.) Pomeroy’s Motion for

Summary Judgment on King’s Fourth Amendment claims against him

is GRANTED.

b. First Amendment Retaliation

To prevail on a First Amendment retaliation claim, a

plaintiff must show that 1) she engaged in a protected activity,

2) an adverse action was taken against her that would deter a

person of ordinary firmness from continuing to engage in that

conduct, and 3) the adverse action was motivated by the protected

conduct. Sensabaugh v. Halliburton, 937 F.3d 621, 627-28 (6th

Cir. 2019).

King cannot satisfy the third element. Every circuit that

has considered the question has found a First Amendment right to

film the police. Irizarry v. Yehia, 38 F.4th 1282, 1290-92 (10th

Cir. 2022) (discussing Fordyce v. City of Seattle, 55 F.3d 436

(9th Cir. 1995); Smith v. City of Cumming, 212 F.3d 1332 (11th

Cir. 2000); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Am.

C. L. Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012);

Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Fields

v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017)). Neither

the Supreme Court nor the Sixth Circuit has ruled on the issue.

Even if King’s activity were protected and the requisite

adverse action had been taken against her, King’s claim would

fail because she cannot satisfy the third element. The officers

never told King to stop filming them. One officer encouraged her

to keep filming. (ECF No. 59-3 at 6:01-27.) All of the officers

were wearing active body cameras. There was to be a record of

their conduct whether or not King filmed them. King was arrested

only after officers instructed her not to stand behind Shoate

while he was writing Cooper’s traffic citation. The evidence

establishes that the officer’s action was not motivated by King’s

protected conduct. Pomeroy’s Motion for Summary Judgment on

King’s First Amendment retaliation claim against him is GRANTED.

2. State-law claims

a. Filing a False Arrest Report

King brings a claim under § 39-16-502 of the Tennessee Code

for filing a false arrest report. (ECF No. 12 at 5.) Section 39-

16-502 is a criminal statute. It does not create a private right

of action. Tenn. Code Ann. § 39-16-502. Tennessee law requires

that private rights of action be expressly provided for in the

relevant statute. Tenn. Code Ann. § 1-3-119. Pomeroy’s Motion

for Summary Judgment on King’s § 39-16-502 claim is GRANTED.

b. False Imprisonment

To establish a tort claim of false imprisonment, a plaintiff

must show that she was detained or restrained against her will

and that the detention or restraint was unlawful. See Newsom v.

Thalhimer Bros., Inc., 901 S.W.2d 365, 367 (Tenn. Ct. App. 1994).

Tennessee courts have said the unlawfulness inquiry turns on

“just cause” or “probable cause.” See Brown v. Christian Bros.

Univ., 428 S.W.3d 38, 54 (Tenn. Ct. App. 2013). King cannot show

that her arrest was unlawful because the officers had probable

cause to arrest her.

Tennessee law makes it illegal to fail to comply with any

lawful order or direction of a police officer. Tenn. Code Ann.

§ 55-8-104. King was told multiple times to step back so that

Shoate could complete the paperwork related to the traffic stop.

(ECF No. 59-3, Exhibit A at 29:46-52; 30:02-05.) King remained

close to the officers, prompting the arrest. (Id. at 30:15.) The

officers had probable cause to arrest King. Her detention was

lawful. The Motion for Summary Judgment on King’s false

imprisonment claim against Pomeroy is GRANTED.

c. Defamation

To establish a defamation claim under Tennessee law, a

plaintiff must show that a party published a statement, with

knowledge that the statement was false and defaming to the other

or with reckless disregard for the truth of the statement or

with negligence in failing to ascertain the truth of the

statement. Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct.

App. 2005). King has not alleged that any of the officers

published a false statement about her. Pomeroy’s Motion for

Summary Judgment on King’s defamation claim is GRANTED.

d. Property Damage

Pomeroy challenges King’s property damage claim. As Pomeroy

correctly notes, King’s property-damage claim is limited to

Officer Shoate. (ECF No. 12 at 5.) It does not apply to Pomeroy.

His Motion for Summary Judgment on that claim is GRANTED.

e. Excessive Force

King brings an excessive force claim under § 39-11-620 of

the Tennessee Code. (ECF No. 12 at 6.) Section 39-11-620 is a

criminal statute. It does not contain a private right of action.

Tenn. Code Ann. § 39-11-620. Tennessee law requires that private

rights of action be expressly provided for in the relevant

statute. Tenn. Code Ann. § 1-3-119. The Court construes King’s

excessive force claim as a civil rights claim under 42 U.S.C. §

1983. For the reasons discussed above, a § 1983 excessive force

claim fails. King was never tackled, and Pomeroy did not handcuff

her.

King argues that Pomeroy can be held responsible although

another officer handcuffed her because Pomeroy referred to Cooper

as a “crack dealer” and told the officer in charge of the K-9

search that King probably had drugs. (ECF No. 82 at 4.) For an

officer to be held liable for inflicting excessive force, the

plaintiff must prove the officer actively participated in the

use of excessive force, supervised the officer who used excessive

force, or owed the victim a duty of protection against the use

of excessive force. Alexander v. Carter for Byrd, 733 F. App’x

256, 261-62 (6th Cir. 2018.) King’s claim based on Pomeroy’s

statements does not establish any of the grounds for liability

stated in Alexander. King was not a victim of excessive force.

Pomeroy’s Motion for Summary Judgment on King’s excessive force

claim is GRANTED.

f. Assault

Under Tennessee law, a defendant cannot be liable for

assault unless he commits an intentional act creating a

reasonable apprehension of imminent physical harm on the part of

the plaintiff. Johnson v. Tyson Foods, Inc., 607 F. Supp. 3d

790, 809 (W.D. Tenn. 2022). Pomeroy never touched King or acted

to create a reasonable apprehension of physical harm. King claims

that Pomeroy’s statements before her arrest created a reasonable

apprehension of imminent physical harm. (ECF No. 82 at 5.)

Pomeroy said “I’d back up” after Shoate warned King to step back.

(ECF No. 61, Exhibit A, at 30:00-30:12.) When Shoate arrested

King, Pomeroy said, “I tried to tell you.” (Id.) A reasonable

jury could not find that either or both of those statements would

create a reasonable apprehension of imminent physical harm.

King also argues that statements Pomeroy made to the officer

in charge of the K-9 search led to her arrest. (ECF No. 82 at

5.) Pomeroy referred to Cooper as a “crack dealer” and told the

officer in charge of the K-9 search that King probably had drugs.

(ECF No. 61, Exhibit A-2, at 7:00-7:26.) The video does not show

any action during King’s arrest that constitutes assault. Even

if Pomeroy’s statements caused King’s arrest, there would be no

basis for liability. Pomeroy’s Motion for Summary Judgment on

King’s assault claim is GRANTED.

V. Conclusion

For the foregoing reasons, King’s Motion to Strike is

DENIED. Pomeroy’s Motion for Summary Judgment is GRANTED, and

the claims against him are DISMISSED.

So ordered this 26th day of June, 2023.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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