Florez-Ramirez

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

______________________________________________________________________________

DAMIAN FLOREZ-RAMIREZ,

Plaintiff,

v. Case No. 2:24-cv-02335-MSN-atc

JURY DEMAND

JACQUES JONES, et al.,

Defendants.

______________________________________________________________________________

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’

MOTION TO DISMISS, DIRECTING PLAINTIFF TO IDENTIFY UNKNOWN

“LIEUTENANT,” AND DISMISSING CLAIMS AGAINST ASHLYN CUNNINGHAM

______________________________________________________________________________

Before the Court is the Motion to Dismiss of Defendants Jacques Jones, Tracy Williams,

Carlus Cleaves, Kendall Davis, Tamiko Swain, and Shelby County, Tennessee, made under Federal

Rule of Civil Procedure 12(b)(6). (ECF No. 15, “Motion.”) Defendants move to dismiss Plaintiff

Damian Florez-Ramirez’s Complaint alleging civil rights violations by the above officers of the

Shelby County Sheriff’s Office (“SCSO”) in their individual capacities, civil rights violations by

Shelby County, and state-law claims of negligent hiring, retention, and training against Shelby

County. (ECF No. 1, “Pending Complaint.”) For the reasons stated below, Defendants’ Motion is

DENIED in part and GRANTED in part.

BACKGROUND

I. The Incident on May 20, 2023

This action arises from an incident that occurred on May 20, 2023, concerning Plaintiff, a

pre-trial detainee, and several corrections officers at the Shelby County Criminal Justice Center

(“Shelby County Jail”) in Memphis, Tennessee. (ECF No. 21 at PageID 128.) At approximately

1:30 p.m., Sergeant Kendall Davis conducted a security check on the fourth floor where Plaintiff

was housed. (ECF No. 15-1 at PageID 95.) After an altercation in which Plaintiff threw a plastic

chair at Sergeant Davis and attempted to strike him, officers handcuffed Plaintiff and escorted him

to the second-floor medical room. (Id. at PageID 96.) The officers sprayed Plaintiff with Freeze

+P (a kind of pepper spray), but Plaintiff had no visible injuries when he entered the exam room,

Room 213. (ECF No. 1 at PageID 5.) Footage from the security camera in the hall (“the camera”)

shows two members of the Detention Response Team (“DRT”), Reginald Wilkins and Odell

Underwood, enter Room 213 at 1:54 p.m. (Id. at PageID 1 & 5.) There was no camera in Room

213. (Id. at PageID 5.) Plaintiff alleges the officers threatened him several times, then exited the

room to see a higher-ranking officer in the next room to get the “say-so” to beat Plaintiff. (ECF

No. 15-1 at PageID 96.) Plaintiff later learned it was Sergeant Davis in the next room, Room 212,

being treated for a hand injury. (ECF No. 1 at PageID 6.)

While the officers were gone, Nurse Michaela Armstrong entered Room 213 and treated

Plaintiff, whose hands were still in cuffs. (Id. at PageID 5.) At this time, the camera captured

Wilkins and Underwood standing in the hallway speaking with other corrections officers, including

Sergeant Tamiko Swain and an unknown Lieutenant. (Id.) At 1:56 p.m., Nurse Armstrong cleared

Plaintiff to return to the fourth floor. (Id.) However, instead of escorting Plaintiff back, Wilkins

removed his wristwatch, handed it to Sergeant Swain, and went back into Room 213 with Plaintiff

alone. (Id. at PageID 6.) Plaintiff alleges Wilkins called him “bitch” and said he was about to

learn “what happens in here” to inmates who injure guards. (Id.)

During this time, Underwood continued talking with the other officers. (Id.) Plaintiff

alleges the conversation centered around Sergeant Davis’s hand injury and “how Florez-Ramirez

ought to be punished.” (Id. at PageID 6.) Wilkins came out and Plaintiff heard him say to someone

in Room 212, “We got this, Sarge.” (Id.) At 1:58 p.m., Wilkins and Underwood reentered Room

213. (Id. at PageID 7.) The camera shows the Lieutenant “direct[ing] everyone else to disperse,”

then standing in front of Room 213 with his “arms crossed, looking up and down the now-empty

hallway.” (Id.) According to the Pending Complaint, Wilkins and Underwood proceeded to knock

Plaintiff to the floor and “repeatedly kick[] [him] in the face and torso while shouting, ‘Get up,

bitch!’” (Id. at PageID 7.) Over the next few minutes, the officers struck Plaintiff “more than ten

times in the head with their fists, handcuffs (used as brass knuckles), and metal Freeze +P canisters.

The blows from the metal implements left permanent divots in the bony parts of [Plaintiff’s]

forehead and left and right orbitals.” (Id. at PageID 8.) Plaintiff alleges the attack was loud enough

for officers and medical staff in the hall and nearby rooms to hear. (Id.)

A few minutes later, the officers emerged from Plaintiff’s room and asked Nurse Ashlyn

Cunningham to “finish him up.” (Id.) When Nurse Cunningham entered the room, “chemical

agent hung so thickly in the air that she could not breathe and had to move Florez-Ramirez to

Room 212, now empty,” which she did at 2:04 p.m. (Id.) By this time, Plaintiff was covered in

blood and his face was swollen. (Id.) According to the Pending Complaint, Plaintiff told Nurse

Cunningham about the attack and asked her to take pictures to document his injuries, but she

refused. (Id.) At 2:12 p.m., Underwood and Wilkins took Plaintiff to an isolation cell in the

administrative-segregation (“ad-seg”) unit, where Plaintiff alleges that they beat him again in the

changing room. (Id. at PageID 9.) Several prison guards later told investigators that Plaintiff had

swelling, blood, and lacerations on his face and was “in and out” of consciousness. (Id.) At 2:19

p.m., the DRT officers dragged Plaintiff into an “ad-seg cage,” where he fully lost consciousness.

(Id. at PageID 10.) A nurse called for an ambulance and Plaintiff was rushed to Regional One,

where he was treated for a concussion, facial lacerations, and blunt-force trauma to the head. (Id.)

Over the next few weeks, Plaintiff filed several inmate grievances, which were all rejected.

(Id. at PageID 11.) He was sanctioned to sixty days detention by the Disciplinary Board and was

not permitted to talk about the DRT assault on him during the disciplinary proceedings. (Id.)

SCSO detectives later conducted an investigation on the incident and submitted a report to the

Shelby County District Attorney’s (“DA’s”) office, which charged Wilkins and Underwood with

felony official oppression, felony official misconduct, and criminal assault. (Id. at PageID 12.) At

the time the Pending Complaint was filed, criminal proceedings were ongoing. (Id.)

II. Plaintiff’s Initial Pro Se Complaint

Plaintiff initially filed a pro se lawsuit on September 15, 2023, alleging civil rights

violations under 42 U.S.C. § 1983 against Reginald Wilkins, Odell Underwood, Kendall Davis,

and Melanie Moore (an officer who was present at the fourth-floor security check on May 20,

2023). (Florez-Ramirez v. Wilkins et al., Case No. 2:23-cv-02587, ECF No. 1, “Pro Se Complaint.”)

U.S. District Court Judge Mays granted Plaintiff leave to proceed in forma pauperis. (Id. at ECF

No. 4.) Because Plaintiff did not state whether he was suing the officers in their individual or

official capacity, the Court presumed the latter and added Shelby County, Tennessee, as a defendant.

(Id. at ECF No. 6, “August 6 Order.”) However, because Plaintiff did not state a claim for relief

against Wilkins, Underwood, Davis, or Moore in their official capacities, and did not allege a

deprivation of a constitutional right due to a policy or custom of Shelby County, the Court

dismissed the suit. (Id. at PageID 26.) All claims were dismissed without prejudice, with leave to

amend the Pro Se Complaint within twenty-one days of the order. (Id. at PageID 27.)

Unfortunately, Defendant did not receive a copy of the August 6 Order until it was forwarded to

him approximately forty-eight days later because he had not filed a change of address after his

release from the Shelby County Jail. (Id. at ECF No. 9 at PageID 45.)

On September 25, 2024, Plaintiff filed a motion asking the Court permission to amend his

Pro Se Complaint and informing the Court that he had now acquired counsel. (Id. at ECF No. 8,

“September 25 Motion.”) On October 9, the Court granted the motion and directed the clerk to

mail a copy to Plaintiff’s Counsel, ordering Counsel to make an appearance within twenty-one

days and “address the relation of this case to Case No. 24-2355 [sic].” (Id. at ECF No. 9, “October

9 Order.”) Counsel made an appearance on October 30, 2024. (Id. at ECF Nos. 10, 11 & 13.) One

day later, Plaintiff, through Counsel, asked the Court to dismiss the suit, which the Court permitted

(Id. at ECF Nos. 15, 16.) The Court did not say whether the suit was dismissed with or without

prejudice, thus, under Federal Rule of Civil Procedure 41(a)(2), the dismissal is considered to be

without prejudice.

III. The Pending Complaint

After Plaintiff filed his initial complaint, but before the Court dismissed it, Plaintiff asked

new counsel, Apperson Crump (“Counsel”), to represent him in a civil rights action, but did not

mention that he had already filed a pro se complaint. (ECF No. 21 at PageID 129.) Counsel

obtained information from the DA’s files regarding the incident on May 20, 2023, and filed a

complaint on May 20, 2024. (ECF No. 1.) Counsel did not learn about Plaintiff’s Pro Se

Complaint until after Judge Mays’ August 6 Order and after Plaintiff’s September 25 Motion.

(ECF No. 21 at PageID 136.) By the time Counsel received a copy of Judge Mays’ October 9

Order and made an appearance, Defendants for the Pending Complaint had already filed their

Motion to Dismiss. (Id.) Counsel acknowledged that the Pending Complaint appears to “arise out

of the same transaction or occurrence” as the Pro Se Complaint, but “names additional defendants

and additional theories of liability.” (Case No. 2:23-cv-02587, ECF No. 12 at PageID 51.) As

previously noted, the Court granted Plaintiff’s motion to dismiss regarding the Pro Se Complaint

and pursuant to Federal Rule of Civil Procedure 41, leaving the Pending Complaint as the sole

cause of action relating to the May 20, 2023, incident.

The Pending Complaint alleges civil rights violations under 42 U.S.C. § 1983 as well as

Tennessee’s Governmental Tort Liability Act (“GTLA”), bringing the following counts:

 Federal Causes of Action

 Count 1: § 1983 Failure to Intervene – against “the Lieutenant” (individual capacity)

 Count 2: § 1983 Failure to Intervene – against Sergeant Davis (individual capacity)

 Count 3: § 1983 Failure to Intervene – against Sergeant Swain (individual capacity)

 Count 4: § 1983 Failure to Intervene – against Nurse Cunningham (individual capacity)

 Count 5: § 1983 Custom of Tolerance – against Shelby County (Monell claim)

 Count 6: § 1983 Failure to Train – against Shelby County (Monell claim)

 State Causes of Action

 Count 7: GTLA Negligent Hiring & Retention – against Shelby County

 Count 8: GTLA Negligent Training – against Shelby County

(ECF No. 1 at PageID 18–26.) On October 11, 2024, Defendants moved to dismiss all claims on

the basis of duplicative litigation, qualified immunity, and the civil rights exceptions to the GTLA.

(ECF No. 15). On November 27, 2024, Plaintiff filed a Response in Opposition to Defendant’s

Motion to Dismiss (ECF No. 24, “Response”), to which Defendant replied on December 27, 2024

(ECF No. 25, “Reply”).

STANDARD OF REVIEW

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

Federal Rules of Civil Procedure, the court accepts the plaintiff’s “plausible factual allegations as

true and draw[s] all reasonable inferences” in the plaintiff’s favor. Marchek v. United Servs. Auto.

Ass’n, 118 F.4th 830, 833 (6th Cir. 2024); Cook v. Ohio Nat’l Life Ins. Co., 961 F.3d 850, 855 (6th

Cir. 2020). The sufficiency of factual allegations turns on whether the pleading “state[s] 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)). 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.” Id. (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. (citing Twombly,

550 U.S. at 556). In other words, “a plaintiff must allege facts that, when taken as true, state a

claim to relief that is plausible on its face and that rises above the speculative level.” Bray v. Bon

Secours Mercy Health, Inc., 97 F.4th 403, 410 (6th Cir. 2024) (cleaned up). 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.

“A district court is not permitted to consider matters beyond the complaint” when

considering a motion to dismiss under Rule 12(b)(6). Mediacom Se. L.L.C. v. BellSouth Telcoms.,

Inc., 672 F.3d 396, 399 (6th Cir. 2012). If a court considers material outside of the pleadings, the

motion to dismiss must be converted into a motion for summary judgment under Federal Rule of

Civil Procedure 56, “and all parties must be given a reasonable opportunity to present all material

pertinent to the motion.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir.

2011). A court may, however, consider exhibits attached to the petition as well as exhibits attached

to the motion to dismiss “so long as they are referred to in the [c]omplaint and are central to the

claims contained therein,” without converting the motion to one for summary judgment. Bassett

v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008).

DISCUSSION

Defendants ask the Court to dismiss Plaintiff’s Pending Complaint because it constitutes

“duplicative” litigation, Defendants are entitled to qualified immunity, and the state-law claims are

barred by the civil rights exception to the GTLA. (ECF No. 15 at PageID 100, 104, & 111.)

Plaintiff argues the federal-law claims should proceed because the Pending Complaint is

significantly different from the original Pro Se Complaint, and because Plaintiff makes plausible

§ 1983 claims against Defendants. (ECF No. 21 at PageID 141 & 146.) However, Plaintiff

concedes that the state-law claims must be dismissed under the GTLA. (Id. at PageID 128.)

I. Duplicative Litigation and Claim Preclusion Doctrines

According to Defendants, the Pending Complaint constitutes duplicative litigation because

it arises out of the same incident and names some of the same Defendants as the Pro Se Complaint.

(ECF No. 15-1 at PageID 97 & 101.) Therefore, Defendants argue, its claims must be dismissed

under the Prison Litigation Reform Act of 1995 (“PLRA”) and claim preclusion doctrines. Under

the PLRA, district courts must screen civil cases filed by “prisoners” and dismiss claims that are

“frivolous, malicious, or fail[] to state a claim upon which relief may be granted.” 28 U.S.C. §

1915A. This reflects the goal of the PLRA to prevent meritless prisoner claims from flooding the

courts and to “reduce the intervention of federal courts into the management of the nation’s prison

systems.” Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999). When an inmate files a second

suit regarding the same incident, the Court must dismiss the second action as “malicious.” See,

e.g., Swann v. Dist. Att’y of Kingsport, No. 1:22-CV-25, 2022 WL 370232, at *2 (E.D. Tenn. Feb.

7, 2022). Claims are “malicious” when they “merely repeat[] pending or previously litigated

claims.” Brown v. Tribble, No. 1:22-CV-419, 2022 WL 3643734, at *3 (W.D. Mich. Aug. 24, 2022)

(collecting cases). In other words, district courts dismiss complaints where the “claims, parties,

and available relief do not significantly differ from an earlier-filed action.” Id. at *4. Courts also

consider whether the second action “evidence[s] an intent to vex defendants or abuse the judicial

process by relitigating claims decided in prior cases.” Rankin v. Brian Lavan & Assocs., P.C., No.

23-1949, 2024 WL 4675282, at *2 (6th Cir. July 3, 2024) (quoting Washington v. Reno, No. 95-

5062, 1995 WL 376742, at *1 (6th Cir. June 22, 1995)).

Here, Plaintiff filed a pro se complaint on September 15, 2023, and then a second complaint,

through counsel, on May 20, 2024. Both actions clearly arise from the same incident on May 20,

2023, which occurred between Plaintiff and corrections officers at the Shelby County Jail. Both

allege civil rights violations under § 1983 and therefore have the same possible relief. However,

the complaints differ significantly in their claims and parties.

For instance, the Pro Se Complaint focuses on Wilkins’ and Underwood’s actions inside

the medical exam room. Plaintiff also describes his altercation with Sergeant Davis before being

escorted to the medical clinic and the nursing staff’s failure to treat him after the alleged beating.

(Case No. 2:23-cv-02587, ECF No. 1 at PageID 2–3; ECF No. 1-1 at PageID 4.)1 Judge Mays

liberally construed Plaintiff’s claims as “(1) excessive use of force, (2) failure to protect, and (3)

deprivation of medical care.” (Case No. 2:23-cv-02587, ECF No. 6 at PageID 21.); see also Martin

v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (“The pleadings of pro se petitioners are held to less

stringent standards than those prepared by attorneys, and are liberally construed . . . .”) These

claims were dismissed because Plaintiff failed to state whether he was suing the officers in their

official or individual capacity; therefore, the Court presumed Plaintiff was suing them in their

official capacity, added Shelby County as a party, and treated the claims as Monell claims. (Case

No. 2:23-cv-02587, ECF No. 6 at PageID 25–26.) Since Plaintiff did not plead sufficient facts to

establish a Monell claim, the Court dismissed the Pro Se Complaint without prejudice. (Id.)2

1 In his hand-written complaint, Plaintiff alleges, “I was refused Medical Attention i never

seen a Nurse, I Kept screaming for help from the Nurses to take pictures. Every Nurse walk away

and had No dealings with my situation.” (Case No. 2:23-cv-02587, ECF No. 1-1 at PageID 4.)

2 As Defendants point out, Plaintiff had leave to amend within twenty-one days. (ECF

No. 15 at PageID 96–97.) However, Plaintiff failed to update his address with the Court and did

not receive Judge Mays’ order for forty-eight days, at which point Plaintiff—unbeknownst to his

In contrast, the Pending Complaint focuses on Defendants’ actions outside of the medical

exam room. Plaintiff alleges Sergeant Davis, Sergeant Swain, and “the Lieutenant” were all near

Room 213 during the alleged beating but did nothing to intervene, despite outranking Wilkins and

Underwood. (Case No. 2:24-cv-02335, ECF No. 21 at PageID 132–33.) The Pending Complaint

includes facts unknown to the Defendant at the time he made his Pro Se Complaint. (Id. at PageID

131.) Furthermore, this second action alleges twenty-three instances of excessive force used by

SCSO correctional officers against inmates between 2018 and 2023, and alleges that Shelby

County adopted a “Duty to Intervene” policy in June 2020, but did not train jail staff in how to

implement the policy and did not enforce it. (ECF No. 1 at PageID 12–18.) As Plaintiff argues,

these claims go “well beyond” those of the Pro Se Complaint. (ECF No. 21 at PageID 141.)

Additionally, the Pro Se Complaint lists four officers as defendants: Wilkins, Underwood,

Davis, and Moore. (Case No. 2:23-cv-02587, ECF No. 1 at PageID 2.) Judge Mays construed

Plaintiff’s Pro Se Complaint as suing the officers in their official capacity, thereby adding Shelby

County as a defendant. (Id., ECF No. 6 at PageID 25.) The Pro Se Complaint makes factual

allegations about Sergeant Davis’ conduct during the fourth-floor altercation as well as Wilkins’

and Underwood’s conduct in the medical clinic and the ad-seg unit. The Pro Se Complaint makes

no specific allegations against Officer Moore, beyond mentioning that she was present during the

fourth-floor security check. (Id., ECF No. 1 at PageID 2.)

In contrast, the Pending Complaint brings claims against three officers (Kendall Davis,

Tamiko Swain, and “the Lieutenant,” likely one of three lieutenants present at the Shelby County

attorneys—asked for leave to amend. (ECF No. 21 at PageID 136.) By the time Plaintiff’s attor-

neys learned about the Pro Se Complaint, the Defendants for the Pending Complaint had already

filed a Motion to Dismiss. (Id.) Therefore, Plaintiff opted to continue with the Pending Complaint

and asked the Court to dismiss the Pro Se Complaint pursuant to Federal Rule of Civil Procedure

41, which the Court granted. (Id. at PageID 137.)

Jail on May 20, 2023—Jacques Jones, Tracy Williams, and Carlus Cleaves), one nurse (Ashlyn

Cunningham), and Shelby County. The Pending Complaint does not list Wilkins, Underwood, or

Moore as defendants, and it specifically sues Davis in his individual rather than official capacity.3

Therefore, the Pending Complaint and Pro Se Complaint share only one Defendant in common:

the County, which Plaintiff did not name in the original complaint and was added later as a matter

of procedure.4

Considering the significant differences between the two complaints, the Court finds it

unlikely that Plaintiff filed the second complaint with the intent to “vex defendants or abuse the

judicial process.” Rankin, No. 23-1949, 2024 WL 4675282, at *2. Moreover, the Pending

Complaint does more than “merely repeat[] pending or previously litigated claims.” Brown, No.

1:22-CV-419, 2022 WL 3643734, at *3. Therefore, the Court finds it is not duplicative or

malicious under the PLRA.

Lastly, Defendants argue even if Plaintiff’s Pending Complaint is not malicious, it is still

precluded by the doctrines of duplicative litigation and claim-splitting. (ECF No. 15-1 at PageID

3 Because “[a] suit against an individual in his official capacity is the equivalent of a suit

against the governmental entity,” a suit against a state actor in his or her individual capacity does

not duplicate official-capacity claims. Baar v. Jefferson Cnty. Bd. of Educ., 476 F. App’x 621,

635 (6th Cir. 2012) (quoting Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)).

4 Defendant argues res judicata bars suit against Defendants Jones, Williams, Cleaves,

and Swain, even though they were not named in Plaintiff’s Pro Se Complaint, because as

employees they are “in privity” with the County. (ECF No. 15-1 at PageID 104.) However, even

if Plaintiff’s first suit had received a final judgment, res judicata would only bar suit against these

Defendants in their official capacity. See McCoy v. Michigan, 369 F. App’x 646, 650 (6th Cir.

2010) (holding, where plaintiff had previously sued the employer county, res judicata only barred

a second suit against employee officers in their official capacity, not in their individual capacity).

Furthermore, the privity theory also fails because individual Defendants do not satisfy the

conditions of privity for the purposes of res judicata. (ECF No. 21 at PageID 146.) As Plaintiff

points out, they are not “successors in interest to the County,” they did not “control the litigation,”

and “nothing suggests the County adequately represented their interests in the prior action.” (Id.

(citing Mitchell v. Chapman, 343 F.3d 811, 823 (6th Cir. 2003).)

102–03.) Both doctrines stem from the U.S. Supreme Court’s instruction that “[a]s between

federal district courts . . . the general principle is to avoid duplicative litigation.” Waad v. Farmers

Ins. Exch., 762 F. App’x 256, 260 (6th Cir. 2019) (citing Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800, 817 (1976)). District courts have the authority to “stay or dismiss

a suit that is duplicative of another federal court suit.” Id. (citing Curtis v. Citibank, N.A., 226

F.3d 133, 138 (2d Cir. 2000)). Courts may also dismiss a second action for claim-splitting even if

the first action has yet to receive a final judgment. Id. (quoting Katz v. Gerardi, 655 F.3d 1212,

1218 (10th Cir. 2011) (“[T]he test for claim splitting is not whether there is finality of judgment,

but whether the first suit, assuming it were final, would preclude the second suit.”)).

Here, Plaintiff’s second claim would be precluded if the Pro Se Complaint had been

litigated. However, since the Court has already dismissed it without prejudice, the issue of claim

preclusion is now moot.5

Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to Defendants’

claims that the Pending Complaint is malicious, duplicative, or barred by claim-splitting.6

II. Qualified Immunity

Defendants also claim individual Defendants are entitled to qualified immunity as to the §

5 Although the Pro Se Complaint was still pending at the time of Defendants’ Motion,

Judge Mays dismissed the action without prejudice shortly thereafter. (Case No. 2:23-cv-02587,

ECF No. 16 & 17.) Defendants point out that Plaintiff had the option to amend his original

complaint. (Id., ECF No. 15-1 at PageID 96.) However, by the time Plaintiff received notice of

the Court’s leave to amend in the August 6 and October 9 Orders, circumstances had changed: (1)

Plaintiff had already filed the second complaint with significantly different claims and parties, (2)

the statute of limitations (one year under Tennessee law) barred Plaintiff from adding defendants

to his original complaint, and (3) none of the defendants named in the first suit had responded to

the original complaint. Therefore, the Court finds it equitable to allow the Pending Complaint to

proceed as the sole remaining action, even though it was filed second.

6 Since Defendants’ Motion does not challenge the Monell claims against Shelby County

under any other theory, all federal claims against the County survive.

1983 failure to intervene claims because Plaintiff has failed to show Defendants knew of the

alleged excessive force or had the opportunity to intervene. (ECF No. 15-1 at PageID 104).

To bring a claim under 42 U.S.C. § 1983, plaintiffs must show a government official acting

under the color of state law deprived them of a constitutional right. Peatross v. City of Memphis,

818 F.3d 233, 240 (6th Cir. 2016). The U.S. Constitution protects those in state custody from the

use of excessive force. Leary v. Livingston Cnty., 528 F.3d 438, 443 (6th Cir. 2008). Pre-trial

detainees may bring excessive force claims under the Fourteenth Amendment Due Process Clause,

which courts analyze using an objective deliberate indifference standard. Kingsley v. Hendrickson,

576 U.S. 389, 400 (2015).7 In other words, plaintiffs must show that the officer’s use of force was

objectively unreasonable. Id. at 397. Factors to consider are “the relationship between the need

for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort

made by the officer to temper or to limit the amount of force; the severity of the security problem

at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively

resisting.” Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

Pre-trial detainees may also sue officers who fail to intervene in the use of excessive force.

Chaney-Snell v. Young, 98 F.4th 699, 721 (6th Cir. 2024). To assert a failure to intervene claim,

the plaintiff must allege “(1) the officer observed or had reason to know that excessive force would

be or was being used, and (2) the officer had both the opportunity and the means to prevent the

7 Traditionally, all prisoners brought excessive force claims under the Eighth

Amendment’s prohibition against cruel and unusual punishment. Brawner v. Scott Cnty.,

Tennessee, 14 F.4th 585, 591 (6th Cir. 2021). Courts analyzed these claims using a two-prong

deliberate indifference standard where plaintiffs had to show the officer’s use of force was both

subjectively and objectively unreasonable. Id. However, in Kingsley, the U.S. Supreme Court held

that the Eighth Amendment is inapplicable to pre-trial detainees who, due to the presumption of

innocence, cannot be punished. 576 U.S. at 400. Therefore, excessive force claims by pre-trial

detainees are more appropriately brought under the Fourteenth Amendment Due Process Clause

using an objective deliberate indifference standard. Id. at 396–97.

harm from occurring.” Groth v. City of Birmingham, 761 F. Supp. 3d 1031, 1053–54 (E.D. Mich.

2025) (quoting Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)). Courts also consider

whether the officer was deliberately indifferent to the plaintiff’s health and safety. Westmoreland

v. Butler Cnty., Ky., 29 F.4th 721, 726 (6th Cir. 2022).8 However, “officers cannot be held liable

under this theory if they do not have ‘a realistic opportunity to intervene and prevent harm.’” Wells

v. City of Dearborn Heights, 538 F. App’x 631, 640 (6th Cir. 2013) (quoting Ontha v. Rutherford

Cnty., Tenn., 222 F. App’x 498, 507 (6th Cir. 2007). Furthermore, an officer’s “mere presence

during [an] altercation without a showing of direct responsibility cannot subject them to liability.”

Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013) (citing Binay v. Bettendorf, 601 F.3d 640,

650 (6th Cir. 2010)).

Qualified immunity shields government officials performing discretionary functions from

civil liability unless their conduct violates “clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The purpose of qualified immunity is to “hold public officials accountable when they exercise

power irresponsibly” while also shielding officials from “harassment, distraction, and liability

when they perform their duties reasonably.” Peatross, 818 F.3d at 240 (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). To determine whether a government official is entitled to

qualified immunity, a court may conduct a two-step inquiry: first, viewing the facts in the light

most favorable to the plaintiff, have the plaintiff’s allegations shown the officer’s conduct violated

a constitutional right? Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010). Second, was

8 See also Brawner, 14 F.4th at 596–97 (citing Farmer v. Brennan, 511 U.S. 825, 836

(1994)) (holding that deliberate indifference in this context goes beyond “mere negligence” and is

more like acting recklessly “in the face of an unjustifiably high risk of harm that is either known

or so obvious that it should be known”)

the right clearly established at the time of the alleged violation? Id. Courts may analyze either

prong of the analysis first. Pearson, 555 U.S. at 236. The plaintiff has the burden of showing

“that a clearly established right has been violated and that the official’s conduct caused that

violation.” Essex v. Cnty. of Livingston, 518 F. App’x 351, 357 (6th Cir. 2013).

At the pleading stage, dismissal on qualified immunity grounds is generally disfavored.

Hart v. Hillsdale Cnty., 973 F.3d 627, 635 (6th Cir. 2020). The Sixth Circuit has consistently held

that “[i]t is preferable to resolve the ‘threshold question’ of a government officer’s entitlement to

qualified immunity at ‘summary judgment[,] . . . not dismissal under Rule 12.’” Id. (quoting

Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015)). This is because “development of the

factual record is frequently necessary to decide whether the official’s actions violated clearly

established law.” Id. (quoting Singleton v. Kentucky, 843 F.3d 238, 242 (6th Cir. 2016)); see also

Kulpa for Est. of Kulpa v. Cantea, 708 F. App’x 846, 854 (6th Cir. 2017) (“We have repeatedly

denied qualified immunity when officers observe the use of excessive force yet fail to intercede.”

(citations omitted) (collecting cases)).

Prior to addressing the qualified immunity inquiry, the Court will first consider whether

Plaintiff has pleaded sufficient facts to show that excessive force was used and Defendants failed

to intervene. Plaintiff alleges Officers Wilkins and Underwood entered the medical exam room

several times, made verbal threats, and struck him “more than ten times in the head with their fists,

handcuffs (used as brass knuckles), and metal Freeze +P canisters”—all while Plaintiff had his

hands cuffed behind his back and was not resisting the officers. (ECF No. 1 at PageID 6–8.) These

allegations are more than sufficient to establish a plausible claim of excessive force. The question,

then, is whether individual Defendants failed to intervene—specifically, did they (1) know about

the excessive force and (2) have the opportunity and means to prevent it. Groth, 761 F. Supp. 3d

at 1053–54. The Court will address these questions in the context of the qualified immunity

inquiry for each individual Defendant.

Under the first prong of the qualified immunity inquiry, the Court asks whether the alleged

facts show Sergeant Davis violated Plaintiff’s right against excessive force by failing to intervene.

Specifically, the Court asks whether Davis (1) knew about the excessive force, (2) had the

opportunity and means to prevent it, but (3) did not take action to prevent it. Groth, 761 F. Supp.

3d at 1053–54; Essex, 518 Fed.Appx. at 357.

Plaintiff alleges that, after the altercation on the fourth floor, Davis was being treated for a

hand injury in Room 212, the medical exam room next to the one Plaintiff occupied at the time of

the alleged beating. (ECF No. 1 at PageID 6–7.) According to Plaintiff, Davis’s injury was the

reason Wilkins and Underwood wanted to teach Plaintiff a “lesson.” (Id.) Footage from the

security camera displays Wilkins entering Room 213 for the second time at 1:56 p.m., when he

allegedly called Plaintiff “bitch” and said he was about to learn “what happens in here” to inmates

who injure guards. (Id. at PageID 6.) In his Pro Se Complaint, Plaintiff did not know who was in

the next room, but he alleged Wilkins and Underwood left the room to “get the say so” from a

higher-ranking officer. (ECF No. 15-1 at PageID 96.) Plaintiff also heard Wilkins state, “We got

this, Sarge,” before entering Room 213 for a third time at 1:58 p.m. (ECF No. 1 at PageID 6–7.)

According to the Pending Complaint, Wilkins and Underwood repeatedly hit and kicked Plaintiff,

who was still hand-cuffed behind his back, all “well within earshot of the Lieutenant in the hallway

and the other staff in Room 212.” (Id. at PageID 7.) These facts support a plausible claim that

Davis knew about Wilkins’s and Underwood’s use of excessive force, both before it happened and

while it was happening.

Defendants argue that even if Davis knew about the excessive force, he did not have a

“realistic opportunity” to intervene because “the assault was brief” and “Sergeant Davis was

preoccupied with his own injury during that time.” (ECF No. 15-1 at PageID 109.) However, this

argument has little merit because Davis was warned of Wilkins’ and Underwoods’ plans (“We got

this, Sarge”) and, as their superior officer, had the opportunity to order them to stand down. (ECF

No. 21 at PageID 151.) This holds true even if he was receiving treatment for a minor injury.

Therefore, since Plaintiff has alleged sufficient facts to show Davis knew about the excessive force,

had the opportunity to prevent it, but did not take action to prevent it, the Court finds the first prong

of the qualified immunity inquiry is met.

The second prong of the qualified immunity inquiry—whether the constitutional right was

“clearly established” at the time of the alleged violation—is also met. The Sixth Circuit has clearly

established that those in state custody, whether pre-trial detainees or convicted inmates, have a

constitutional right against excessive force, and that officers are liable for failure to intervene. See,

e.g., Chaney-Snell, 98 F.4th at 721 (6th Cir. 2024) (citing Bruner v. Dunaway, 684 F.2d 422, 425–

426 (1982)) (“[A]n officer who fails to intervene to prevent another officer’s excessive force can

face liability for that force under § 1983.”); McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir.

1990) (“[A] corrections officer who observes an unlawful beating may, nevertheless, be held liable

under § 1983 without actively participating in the unlawful beating.”)

Defendants argue that Davis could not have reasonably known that by “failing to cease

receiving medical treatment for his own injuries, he would be violating Plaintiff’s constitutional

rights.” (ECF No. 15-1 at PageID 108–110.) Defendants cite Sixth Circuit case law where courts

did not hold officers liable for failing to intervene when they were preoccupied with other duties.

(Id. at PageID 108 (citing Chaney-Snell, 98 F.4th at 723; Wright v. City of Euclid, 962 F.3d 852,

972 (6th Cir. 2020).) However, these cases granted immunity to officers who were actively

detaining the plaintiff or another individual, not receiving medical treatment. (Id.) As Plaintiff

argues, just because Davis was receiving medical treatment did not give him a “pass” to ignore

what was occurring in the next room. (ECF No. 21 at PageID 150.) As long as his injury was not

severe, and his treatment not overwhelming, he still had the ability to order Wilkins and

Underwood to stand down. (Id. at PageID 151.) Therefore, “no reasonable officer in his position

would have believed that he could let the beating occur because he was, in the technical sense,

‘receiving medical care.’” (Id.) The Court agrees with Plaintiff’s assessment. Therefore, the

second prong of the qualified immunity inquiry is met

Thus, in viewing the allegations in the light most favorable to Plaintiff, the Court finds that

Plaintiff has alleged sufficient facts to show a plausible claim for failure to intervene against

Sergeant Davis, and that Sergeant Davis is not entitled to qualified immunity at this time.

Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to claims against

Defendant Sergeant Davis.

With respect to Sergeant Swain, the Court will apply the same qualified immunity inquiry.

Under the first prong of the analysis, the Court will ask whether the alleged facts show Sergeant

Swain violated Plaintiff’s right against excessive force by failing to intervene. Specifically, the

Court will consider whether Swain (1) knew about the excessive force, (2) had the opportunity and

means to prevent it, but (3) did not take action to prevent it. Groth, 761 F. Supp. 3d at 1053–54;

Essex, 518 Fed.Appx. at 357.

Plaintiff alleges that the camera footage captured Swain in front of Room 213 while

Plaintiff was being treated by Nurse Armstrong. (ECF No. 1 at PageID 5.) During this time,

Wilkins and Underwood stood in the hallway talking with Swain and other officers. (Id.) Plaintiff

alleges the conversation centered around Sergeant Davis’s hand injury and “how Florez-Ramirez

ought to be punished.” (Id. at PageID 6.) According to the Pending Complaint, at 1:56 p.m.,

“Wilkins removed his wristwatch, handed it to Sergeant Swain, and went back into Room 213.”

(Id. at PageID 6.) Plaintiff alleges that “Sergeant Swain knew Wilkins took off his wristwatch in

anticipation of physically attacking Florez-Ramirez” and “did nothing to stop the attack from

happening.” (Id.) Defendant argues this “lone factual allegation” is not enough to establish Swain

knew about the excessive force. (ECF No. 15-1 at PageID 107.) Furthermore, Defendant points

out, camera footage shows officers dispersing after Wilkins and Underwood reentered Room 213,

indicating Swain “would not have been anywhere near Plaintiff’s medical room at the time of the

assault.” (Id.) However, Plaintiff’s allegations that Swain heard Wilkins’ and Underwoods’

grievances, and that Wilkins gave her the wristwatch “in anticipation of physically attacking

Florez-Ramirez” are sufficient to show a plausible claim that Swain knew or should have known

that Wilkins and Underwood were about to use excessive force.

Defendants argue that Swain did not have a realistic opportunity to intervene since she left

the scene during the alleged beating. (ECF No. 15-1 at PageID 107.) However, like Sergeant

Davis, Sergeant Swain outranked Wilkins and Underwood and had both the opportunity and

authority to order them to stand down before they went back into Room 213. Therefore, since

Plaintiff has alleged sufficient facts to show Swain knew or should have known about the excessive

force, had the opportunity to prevent it, but did not take action to prevent it, the Court finds the

first prong of the qualified immunity inquiry is met. The second prong is also met for the reasons

discussed above.

Thus, viewing the allegations in the light most favorable to Plaintiff, the Court finds that

Plaintiff has alleged sufficient facts to show a plausible claim for failure to intervene against

Sergeant Swain, and that Sergeant Swain is not entitled to qualified immunity at this time.

Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to claims against

Defendant Sergeant Swain.

Next, the Court will address the qualified immunity inquiry as applied to the Lieutenant.

Under the first prong of the inquiry, the Court asks whether the alleged facts show the Lieutenant

violated Plaintiff’s right against excessive force by failing to intervene. Specifically, the Court

asks whether the Lieutenant (1) knew about the excessive force, (2) had the opportunity and means

to prevent it, but (3) did not take action to prevent it. Groth, 761 F. Supp. 3d at 1053–54; Essex,

518 F. App’x at 357.

According to Plaintiff, camera footage also reveals a lieutenant in the hallway with Wilkins

and Underwood while Nurse Armstrong treated Plaintiff. (ECF No. 1 at PageID 5.) The

Lieutenant was “distinguishable because his SCSCO uniform included a necktie.” (Id.) Plaintiff

alleges Underwood and the other officers were talking about Sergeant Davis’s hand injury and

“how Florez-Ramirez ought to be punished.” (Id. at PageID 6.) According to the Pending

Complaint, after Wilkins and Underwood returned to Room 213, the Lieutenant “directed everyone

else to disperse” and “remained standing directly outside Room 213—arms crossed, looking up

and down the now-empty hallway,” as if to stand watch. (Id. at PageID 7.) Plaintiff argues the

Lieutenant facilitated the “assault and battery” in this way, or “[a]t the very least . . . would have

heard everything happening inside the Room 213.” (Id.) These allegations sufficiently

demonstrate the Lieutenant knew about the excessive force, had the opportunity to prevent it, yet

did not take action to prevent it. Therefore, the first prong of the qualified immunity inquiry is

met. The second prong is also met for the aforementioned reasons. Therefore, the Lieutenant

would not be entitled to qualified immunity if he were properly identified and named.9

9 Plaintiff claims the Lieutenant is likely one of three lieutenants present at the Shelby

Defendants do not dispute the presence of a lieutenant in the hallway but argue that Plaintiff

has not made specific allegations against Defendants Jones, Williams, and Cleaves. (ECF No. 15-

1 at PageID 106.) As Defendant points out, § 1983 claims must “specifically link the officer’s

involvement” to the constitutional violation. (Id. at PageID 105 (citing Przybysz v. City of Toledo,

746 F. App’x 480, 483 (6th Cir. 2018).) Thus, a plaintiff must show each defendant was

“personally involved in the wrongful conduct” and “attribute specific factual allegations to

particular defendants.” (Id. at PageID 105–06 (first quoting Barkes v. First Corr. Med., Inc., 766

F.3d 307, 316 (3d Cir. 2014); and then quoting Alghusain v. Nemeth, 2021 U.S. Dist. LEXIS

168540, at *13 (N.D. Ohio Sep. 7, 2021).) Defendant argues that because Plaintiff “lumps” the

three lieutenants together, he has failed to state a claim against each of them and they are entitled

to qualified immunity. (Id. at PageID 106.)

On the contrary, Plaintiff argues the Pending Complaint “alleges specific, individual

actions against each of the three corrections officers at once.” (ECF No. 21 at PageID 147).

Plaintiff cites to Federal Rule of Civil Procedure 8(d), which allows parties to plead inconsistent

claims that district courts have construed “to cover inconsistent factual allegations” as well. (Id.

(citing Truck and Auto Extras, LLC, No. 5:19-CV-280-REW, 2020 WL 3578348, at *5 (E.D. Ky.

Jul. 1, 2020).) Plaintiff argues that since the lieutenant in the camera footage violated Plaintiff’s

constitutional rights, and “that individual might plausibly have been one of several persons,” Rule

8(d) allows him to make inconsistent factual allegations against all three lieutenants until he can

County Jail on May 20, 2023—Jacques Jones, Tracy Williams, or Carlus Cleaves. (ECF No. 21

at PageID 133.) Plaintiff obtained this information from the SCSO’s internal investigation into the

incident as part of the Shelby County DA’s policy of sharing pertinent criminal case information

with crime victims and civil attorneys representing them. (Id. at PageID 129, n.4.) According to

the Pending Complaint, Plaintiff “does not anticipate substantively proceeding against all three

SCSO lieutenants” but names them “to preserve [his] claims until [he can] establish the

Lieutenant’s identity.” (ECF No. 1 at PageID 2, n. 2.)

“rule out those mistakenly named.” (Id.) Defendants disagree, arguing Rule 8(d) allows pleading

claims and factual allegations in the alternative but not defendants in the alternative. (ECF No. 25

at PageID 156.) Defendant argues the proper way to preserve a claim against an unknown party

is to sue “John Doe” and later change the name. (Id. (citing Colson v. City of Alcoa, 458 F. Supp.

3d 887, 918 (E.D. Tenn. 2020).) However, as Plaintiff elucidates, the Sixth Circuit does not allow

parties to change “John Doe” for a different name after the statute of limitations has passed,

because this is considered a change of parties rather than a mistake of identity. (ECF No. 21 at

PageID 147–48 (citing Moore v. Tennessee, 267 F. App’x 450, 455 (6th Cir. 2008).)

Both parties are correct. Defendants are right that Plaintiff must make specific allegations

against Defendants in order for his claims against them to proceed. Przybysz, 746 Fed. App’x. at

483. However, Plaintiff is right that, the statute of limitations having run, the Federal Rules of

Civil Procedure do not allow him to preserve his claims against the Lieutenant by using a “John

Doe” placeholder. Moore, 267 F. App’x at 455. Instead, Plaintiff relies on the U.S. Supreme

Court’s decision in Twombly that, at the pleading stage, he need only “state a claim to relief that is

plausible on its face.” 550 U.S. at 570. This pleading standard enables plaintiffs who might not

otherwise have access to evidence under a defendant’s control to “raise a reasonable expectation

that discovery will reveal evidence” supporting their claims. Id. at 556.

Here, Plaintiff has raised a “reasonable expectation” that jail records may reveal which

Defendant was the Lieutenant in the hallway during the alleged beating on May 20, 2023.

Although more than a year has passed since Plaintiff filed the Pending Complaint, discovery has

been stayed while the Court considers whether Defendants are entitled to qualified immunity.

Having found they are not entitled to qualified immunity at this time, the Court finds it appropriate

to allow Plaintiff to proceed with his claims against Defendants Jones, Williams, and Cleaves and

establish the Lieutenant’s identity during discovery. If, at the end of discovery, Plaintiff has not

discerned which Defendant is the Lieutenant, the Court will dismiss claims against all three. If

Plaintiff discovers a different officer was the Lieutenant, the Court will dismiss claims against all

three, and Plaintiff will be barred from adding the new defendant since he or she did not receive

process within the time prescribed by local rules of civil procedure.10

Thus, taking both parties’ arguments into consideration and viewing the allegations in the

light most favorable to Plaintiff, the Court finds Plaintiff has alleged sufficient facts to show a

plausible claim for failure to intervene against Defendants Jones, Williams, and Cleaves.

Therefore, they are not entitled to qualified immunity at this time.

Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to claims against

Defendants Jones, Williams, and Cleaves. The Court DIRECTS Plaintiff to identify which

Defendant is the unknown “Lieutenant” as soon as possible in the discovery phase, and then to file

a Rule 21 motion asking the Court to dismiss claims against Defendants who are not “the

Lieutenant.”

Lastly, the Pending Complaint also asserts a failure to intervene claim against Nurse

Cunningham. However, in the Response, Plaintiff states, “[f]or reasons beyond the scope of this

Response, Florez-Ramirez elects not to proceed against Nurse Cunningham at this time.” (ECF

No. 21 at PageID 131, n.6.)

Accordingly, Plaintiff’s claims against Ashlyn Cunningham in the Pending Complaint

10 In this case, sixty days from filing of the Pending Complaint and service order. Local

Rule 4.1(c); see also Fed. R. Civ. P. 15(c)(C) (allowing plaintiffs to change a party only if that

party, within the time limit for service of process, “(i) received such notice of the action that it will

not be prejudiced in defending on the merits; and (ii) knew or should have known that the action

would have been brought against it, but for a mistake concerning the proper party’s identity.”)

(ECF No. 1) are DISMISSED WITHOUT PREJUDICE.11

III. GTLA Claims

Defendants argue that Plaintiff’s state-law claims cannot continue because GTLA does not

remove governmental immunity for injuries arising from allegations of civil rights violations or

governmental entities exercising discretionary functions. (ECF No. 15-1 at PageID 111 (citing

Tenn. Code Ann. § 29-20-205).) Plaintiff concedes this point and chooses to “proceed solely under

Section 1983.” (ECF No. 21 at PageID 128.)

Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is GRANTED as to claims

under Tennessee’s Governmental Tort Liability Act against Shelby County, Tennessee.

CONCLUSION

For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as

to the federal claims because the Pending Complaint is not malicious, duplicative, or barred by

claim-splitting, and individual Defendants are not entitled to qualified immunity at this time.

Defendants’ Motion is GRANTED as to the state-law claims which are precluded by the GTLA.

Furthermore, the Court DIRECTS Plaintiff to identify which Defendant is the unknown

“Lieutenant” as soon as possible in the discovery phase, and then to file a Rule 41 motion asking

the Court to dismiss claims against Defendants who are not “the Lieutenant.”

Finally, the Court DISMISSES WITHOUT PREJUDICE all claims in the Pending

Complaint against Ashlyn Cunningham, RN.

IT IS SO ORDERED, this 31st day of March, 2026.

s/ Mark S. Norris

MARK S. NORRIS

UNITED STATES DISTRICT JUDGE

11 Since Ashlyn Cunningham has not responded to the Pending Complaint and was not

represented in this Motion, there is no need to grant or deny the motion as to this claim.