Dillingham v. Millsaps, 3:07–CV–214.

809 F.Supp.2d 820

Rodney Newman DILLINGHAM and William Michael Mills, Plaintiffs,

v.Brian MILLSAPS, individually and in his official capacity as a sergeant for Monroe County Sheriff's Department; Keith McLemore, individually and in his official capacity as a deputy Sheriff for the Monroe County Sheriff's Department; William Bivens, individually and in his capacity as Sheriff of Monroe County, Tennessee; and Monroe County, Tennessee, Defendants.

No. 3:07–CV–214.

United States District Court, E.D. Tennessee.

Aug. 10, 2011.

Keith L. Edmiston, Gribble Carpenter & Associates, PLLC, Maryville, TN, for Plaintiffs.

Arthur F. Knight, III, Taylor, Fleishman & Knight, Charles C. Burks, Jr., Justice, Noel & Burks, Knoxville, TN, for Defendants.

MEMORANDUM AND ORDER

THOMAS W. PHILLIPS, District Judge.

This matter is before the Court on the Motion for Summary Judgment [Doc. 67] filed by Sheriff William Bivens ¹ (“Sheriff Bivens”) and Monroe County (collectively, “Defendants”). On June 1, 2007, plaintiffs Rodney Dillingham (“Dillingham”) and William Mills (“Mills”) (collectively, “Plaintiffs”) filed this civil rights action under 42 U.S.C. § 1983. Plaintiffs allege that Defendants violated several of their constitutional rights, including the Fourth Amendment of the United States Constitution. In particular, Plaintiffs allege that Deputy Sheriff Brian Millsaps ² (“Deputy Millsaps”) and Deputy Sheriff Keith McLemore (“Deputy McLemore”) used “excessive force” in violation of the Fourth Amendment. Plaintiffs also claim that Sheriff Bivens should be held supervisorily liable for this conduct, and that Monroe County should be held liable for having a “custom” or “policy” authorizing the use of “excessive force.”

Plaintiffs have also brought Section 1983 claims based upon Fifth and Sixth Amendment violations, but those claims are not presently before the Court. ³ Instead, the Court will be reviewing Plaintiffs' “excessive force” clams against Sheriff Bivens in his individual capacity and Monroe County. Because Sheriff Bivens was not present during the alleged incident, he may only be liable under a theory of “supervisory” liability. To reach this question, however, the Court must first address Plaintiffs' underlying “excessive force” claims against Deputy Millsaps and Deputy McLemore. Obviously, Sheriff Bivens can only be liable if the underlying conduct was unconstitutional. Consequently, even though Deputy Millsaps and Deputy McLemore did not join in the Motion for Summary Judgment [Doc. 67], the Court must still address Plaintiffs' “excessive force” claims against them in their individual capacities. After the Court reviews Plaintiffs' “excessive force” claims against Deputy Millsaps, Deputy McLemore, and Sheriff Bivens (all in their individual capacities), the Court will then determine whether Monroe County—acting through the Monroe County Sheriff's Department—had a “custom” or “policy” encouraging the use of “excessive force.” Finally, the Court will address Plaintiffs' state law claims against Monroe County and Sheriff Bivens in his individual capacity.

Based upon the following, the Motion for Summary Judgment [Doc. 67] is GRANTED, whereby the Court makes the following rulings:

• There is a genuine issue of material fact regarding Dillingham's Section 1983 claim based upon a Fourth Amendment violation against Deputy Millsaps and Deputy McLemore in their individual capacities. Specifically, there is a genuine issue of material fact regarding whether Deputy Millsaps and Deputy McLemore used “excessive force” in violation of the Fourth Amendment.

• Mills's Section 1983 claim based upon a Fourth Amendment violation against Deputy Millsaps in his individual capacity is DISMISSED WITH PREJUDICE.

• Mills's Section 1983 claim based upon an Eighth Amendment violation against the Defendants is DISMISSED WITH PREJUDICE.

• Dillingham's Section 1983 claim based upon an Eighth Amendment violation against the Defendants is DISMISSED WITH PREJUDICE.

• Dillingham's Section 1983 claim based upon a Fourteenth Amendment violation against Deputy Millsaps and Deputy McLemore in their individual capacities is DISMISSED WITH PREJUDICE.

• Mills's Section 1983 claim based upon a Fourteenth Amendment violation against Deputy Millsaps in his individual capacity is DISMISSED WITH PREJUDICE.

• Mills's Section 1983 claims based upon a Fourteenth Amendment violation against Monroe County and Sheriff Bivens in his individual capacity are DISMISSED WITH PREJUDICE.

• Dillingham's Section 1983 claim based upon a Fourth Amendment violation against Sheriff Bivens in his individual capacity is DISMISSED WITH PREJUDICE.

• Dillingham's Section 1983 claim based upon a Fourth Amendment violation against Monroe County is DISMISSED WITH PREJUDICE.

• Plaintiffs' state law claims against Monroe County are DISMISSED WITH PREJUDICE.

• Plaintiffs' state law claims against Sheriff Bivens in his individual capacity are DISMISSED WITH PREJUDICE.

I. BACKGROUND

On May 11, 2007, Plaintiffs and others were camping at a lake near their home on Miller Road in Monroe County, Tennessee. Around 11:00 p.m., after they had been drinking alcohol for a while, Plaintiffs decided to leave and pick up Dillingham's wife. Two other individuals, Joe Holloway (“Holloway”) and an unknown person (“John Doe”), decided to leave with Plaintiffs. Leaving the campsite, the men proceeded down Miller Road with John Doe driving, Mills in the front passenger seat, and Dillingham and Holloway in the back seat. At some point, the vehicle veered off the right side of the road, went down an embankment, and flipped over. Plaintiffs were rendered unconscious.

Mills awoke first and found himself in the car along with Dillingham and Holloway. John Doe, the driver of the car, was nowhere to be found. Realizing that his leg was broken, Mills woke Dillingham to help him out of the car. Mills also attempted to wake Holloway, but Holloway had sustained a serious head injury, and would remain unconscious for several days following the accident.

Dillingham suffered only cuts and bruises, and was able to help Mills out of the car. Once out, Mills attempted to stand, but instead fell down the embankment and blacked out again. Around this same time, a passing motorist stopped by. At this point, Dillingham asked the motorist to call for help. Following this interaction, Dillingham fell back down the embankment himself. Shortly thereafter, deputies from the Monroe County Sheriff's Department (“Sheriff Department”) and emergency medical personnel arrived.

A. Mills's Allegations

Mills claims that he was lying on the ground, unconscious, when he was awakened by something striking his right leg. [Mills Dep., Doc. 69–2, at 7, 26:11–15, Sep. 27, 2010]. Upon opening his eyes, Mills claims that he saw Deputy Millsaps move his right leg back into a standing position. [ Id. at 10, 37:20–21]. Mills screamed and asked Deputy Millsaps why he “kicked” him. [ Id. at 7, 26:14–20]. Defendants, however, state that Deputy Millsaps only nudged Mills's leg. [Defendants' Memorandum in Support of their Motion for Summary Judgment, Doc. 69, at 7].

Deputy Millsaps then asked Mills about the car accident, specifically, how many people were in the car. [Mills Dep., Doc. 69–2, at 7, 26:14–20]. Mills told the deputy that his leg was broken ⁴, at which point, according to Mills, Deputy Millsaps simply walked away.⁵ [ Id. at 8, 32:1–4]. After Deputy Millsaps walked away, emergency medical services (“EMS”) began tending to Mills. [ Id. at 10, 39:3–15]. They strapped Mills to a backboard, carried him up the embankment, and placed him on the road behind an ambulance. [ Id.]. This is when Mills claims that he heard Dillingham screaming in pain. [ Id. at 9, 34:21–36:17]. According to Mills, it sounded as though Dillingham was being attacked. [ Id.]. However, Mills admits that he could not see what was happening. [ Id.]. Because he could only hear Dillingham, Mills does not know if Dillingham was fighting with emergency personnel or law enforcement. [ Id.]. During his deposition testimony, Mills was asked if he heard anyone tell Dillingham to stop fighting. [ Id. at 9, 36:20–23]. Mills states that he could not remember because he “wasn't really focusing on any of that.” [ Id.].

At some point after Mills overhead the incident involving Dillingham, he was loaded onto a stretcher behind the ambulance and approached by Deputy McLemore. [ Id. at 9, 33:17–34:4]. This was the first time that Mills encountered Deputy McLemore. [ Id.]. Deputy McLemore never touched Mills, and only asked questions about the car accident. [ Id.]. This was Mills's only contact with Deputy McLemore. [ Id.]. As such, Mills makes no allegations with respect to Deputy McLemore. [ Id.].

After his encounter with Deputy McLemore, Mills was taken by ambulance to the University of Tennessee Medical Center. [ Id. at 13, 51:2–52:16]. Once there, Mills was diagnosed with a fractured right femur and underwent surgery the following day. [ Id.]. Mills spent approximately one week in the hospital before being released. [ Id.].

B. Dillingham's Allegations

While the record is not clear, it appears that during the initial encounter between Mills and Deputy Millsaps, emergency personnel were tending to Dillingham. According to his deposition testimony, when Deputies Millsaps and McLemore approached Dillingham, he was still down the embankment, but EMS were in the process of securing him on a backboard. [Dillingham Dep., Doc. 69–1, at 34, 136:17–138:7, Dec. 16, 2010]. Dillingham claims that the deputies began interrogating him about the car accident, specifically asking about the driver of the vehicle. [ Id.]. When he replied that he did not know who was driving, the deputies allegedly told everyone around to “look at the stars.” [ Id.]. This, Dillingham states, is when the deputies began to beat and “taser” him.⁶ [ Id.].

Dillingham claims that he was immobilized on the backboard as the...