Copeland v. Zaitz

1

FRANKLIN DEE COPELAND, JR., Plaintiff, v. PARKER ZAITZ, individually and as Deputy Sheriff for the Sevier County Sheriff's Department; DEPUTY JOHN DOES A - E, Individually and as Deputy Sheriffs for the Sevier County Sheriff's Department; SEVIER COUNTY SHERIFF'S DEPARTMENT; and SEVIER COUNTY, TENNESSEE, Defendants.

No. 3:21-CV-43-TAV-DCP

United States District Court, E.D. Tennessee

June 1, 2023

MEMORANDUM OPINION

THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE

Before the Court is defendants'^[1] motion for summary judgment [Doc 24]. Defendants move the Court to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 56 on several grounds. Plaintiff has not responded, and the time for doing so has long passed. See E.D. Tenn. L.R 7.1(a). For the reasons explained below, defendants' motion [Doc. 24] will be GRANTED, and this case will be DISMISSED.

I. Background

On February 8, 2021, plaintiff brought this action against defendants Deputy Sheriff Parker Zaitz (“Deputy Zaitz”); the Sevier County Sheriff's Department (“the Sheriff's Department”); Sevier County, Tennessee (“Sevier County”); and Deputy John Does A through E, asserting causes of actions under federal and state law related to the use of force during his arrest [Doc. 1]. On February 8, 2020 Deputy Zaitz, working for the Sevier County Sheriff's Department, responded to a 911 dispatch call relating to a potential armed robbery involving the display of a gun [Doc. 24-3, ¶¶ 2-3]. He was instructed to look for a male and female who had left a cabin in an orange or red Jeep with aftermarket lights [Id. at ¶ 3]. Deputy Zaitz located a vehicle that matched this description with plaintiff in the passenger seat and a female in the driver's seat, and he conducted a felony traffic stop on the vehicle [Id. at ¶¶ 5-6]. Deputy Sheriff Abigail Starritt (“Deputy Starritt”) arrived at the scene shortly after Deputy Zaitz's arrival [Id. at ¶ 5].

Due to the report that a firearm was involved, Deputy Zaitz and Deputy Starritt had their firearms drawn and pointed toward the vehicle as Deputy Zaitz issued commands to plaintiff and the female [Id. at ¶ 7; Doc. 24-4, ¶ 7]. Both occupants were instructed to exit the vehicle, and plaintiff was instructed to lift his shirt and turn around so that Deputy Zaitz could look for a gun [Doc. 24-3, ¶ 8]. Deputy Zaitz did not see a firearm on plaintiff during his visual inspection [Id.]. Although defendant appeared intoxicated and was slow in following instructions, plaintiff complied with Deputy Zaitz's commands, and Deputy Zaitz did not use any hands-on force [Id. at ¶ 9].

Plaintiff and the female were then questioned by Deputy Zaitz and Deputy Starritt about the events of the evening [Id. at ¶ 10]. They denied that any attempted robbery had occurred or that any firearm had been used [Id.]. Plaintiff also denied having a firearm on him or in the vehicle [Id.]. After speaking with plaintiff and the female, Deputy Tim Marlow, Deputy Chad Ogle, and Deputy Chris Keifer arrived at the scene of the traffic stop [Id. at ¶ 11].

After these deputies arrived, Deputy Zaitz and Deputy Starritt went to the cabin to question the people who had reported the incident [Id.]. Upon arrival at the cabin, Deputy Zaitz and Deputy Starritt found two occupants who were questioned about the event [Id. at ¶ 12]. Both of them denied that any armed robbery had occurred [Id.]. However, they stated that plaintiff and the female had been at the cabin earlier, plaintiff was drunk, and plaintiff had pulled out a small gun [Id.]. They reported that plaintiff had taken out the gun and was waving it around after they had asked him to put it away [Id.]. Concerned for their safety, they left the cabin and called 911 [Id.].

Based on this information, Deputy Starritt radioed the officers who were still at the scene of the traffic stop and advised them that plaintiff should have a small handgun like a Derringer located in his pants [Id. at ¶ 13; Doc. 24-4, ¶ 12]. Thereafter, Deputy Zaitz and Deputy Starritt left the cabin and returned to the scene of the traffic stop [Doc. 24-3, ¶ 14]. Upon arrival, plaintiff had already been taken into custody with handcuffs and was on the ground at the wheel of the Jeep [Id.].

While Deputy Zaitz was not present at the scene over the course of plaintiff's arrest, he was given information from officers who were at the scene of plaintiff's arrest [Id. at ¶ 15]. Based on that information, Deputy Zaitz understands that when officers were patting plaintiff down in an attempt to determine whether he had a gun in his pants, plaintiff began resisting their efforts to control his hands and to get him handcuffed [Id.]. The officers had to use some hands-on force to remove the gun from him and get him in handcuffs [Id.]. However, neither Deputy Zaitz nor Deputy Starritt was present when the officers used force to handcuff plaintiff [Id.]. In fact, Deputy Zaitz reports that he did not utilize any force on plaintiff after arriving back at the scene of the traffic stop [Id. at ¶ 16].

Sergeant Wayne Patterson (“Sergeant Patterson”) had arrived on the scene while Deputy Zaitz and Deputy Starritt were at the cabin [Id. at ¶ 17]. Sergeant Patterson called for EMS to check on plaintiff because he was groaning and not responding to them appropriately [Id.]. After EMS arrived, other deputies adjusted plaintiff's handcuffs to improve his circulation, and at the request of the EMS providers, plaintiff's handcuffs were moved to the front [Id.]. The EMS providers evaluated plaintiff and determined that, although his blood sugar was somewhat low, he was not in immediate danger and could be taken to jail [Id.]. Plaintiff was transported to jail without any further issues or problems [Id. at ¶ 18]. He later pleaded guilty to some of the offenses he was charged with based on the events that had transpired [Doc. 24-1].

During Deputy Zaitz's interactions with plaintiff, the only force he used in relation to the traffic stop was having his service gun drawn and pointed in plaintiff's direction at the beginning of the traffic stop due to concerns relating to the armed robbery report and the involvement of a firearm [Doc. 24-3, ¶ 19]. Deputy Zaitz did not discharge his firearm, and he did not use any hands-on force with plaintiff or any non-lethal weapon against plaintiff [Id.]. He also did not witness the use of force that was necessary for the other deputies to place plaintiff in handcuffs, and he did not witness any force against plaintiff by any deputy when he returned to the scene of the traffic stop [Id.]. Deputy Starritt corroborates Deputy Zaitz's recollection of events, including the amount of force that was used against plaintiff [Doc. 24-4, ¶ 14]. Both deputies were also wearing body cameras that captured footage of the deputies' interactions with plaintiff [Doc. 24-3, ¶ 4; Doc. 244, ¶¶ 4, 14; Doc. 26].^[2]

Based on the events that transpired on February 8, 2020, plaintiff asserts the following federal claims: (1) “violation of civil rights 42 U.S.C. § 1983 defendants' deputies excessive force” and (2) “violation of civil rights 42 U.S.C. § 1983 defendants sheriff's department and county” [Doc. 1, ¶¶ 32-41]. In addition, plaintiff asserts five state law claims against defendants [Id. at ¶¶ 42-65].

Defendants filed the instant motion for summary judgment as to all of plaintiff's claims [Doc. 24]. As to plaintiff's § 1983 claim against the Sheriff's Department, the Sheriff's Department argues that it is entitled to summary judgment because it is not a suable entity [Id. at 2]. As to plaintiff's § 1983 claim against Deputy Zaitz in his official capacity, Deputy Zaitz argues that this claim is merely another way of suing Sevier County, and thus, any claim against him in his official capacity is redundant [Doc. 25, p. 2]. As to plaintiff's § 1983 claim against Deputy Zaitz in his individual capacity, Deputy Zaitz argues that he is entitled to qualified immunity under both the first and second prongs of the qualified immunity test because he did not violate plaintiff's Fourth Amendment rights, and even if he did, a reasonable officer in his position could have believed that he was not violating plaintiff's Fourth Amendment rights in his interactions with plaintiff [Doc. 24, p. 2]. As to plaintiff's § 1983 claim against Sevier County, Sevier County argues that it is entitled to summary judgment because none of its policies or practices were a moving force in the alleged use of excessive force against plaintiff [Id.]. Defendants maintain that if the Court finds that they are entitled to summary judgment on all of plaintiff's federal claims, then the Court may decline to exercise supplemental jurisdiction over plaintiff's state law claims [Doc. 25, p. 4].

Plaintiff did not respond to defendants' motion for summary judgment, and the time for doing so has long passed. See E.D. Tenn. L.R. 7.1(a). Under this Court's local rules, “[f]ailure to respond to a motion may be deemed a waiver of any opposition to the relief sought.” E.D. Tenn. L.R. 7.2. The Court notes that in addition to failing to timely respond, plaintiff also failed to respond to the Court's show cause order entered on April 27, 2023, giving plaintiff 10 days to show cause why defendants' motion should not be granted as unopposed [Doc. 27]. The Court further notes that following entry of the Court's show cause order, the parties entered a joint status report signed by both parties, wherein plaintiff agreed that he has not responded to defendants' pending motion for summary judgment [Doc. 28].

However the Sixth Circuit has held that “a district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded.” Carver v. Bunch, 946 F.2d...