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