Slowik v. Lambert

529 F.Supp.3d 756

Ryan SLOWIK, et al., Plaintiffs,

v.Keith LAMBERT and Shelli Lambert, Defendants.

3:19-CV-00501-DCLC

United States District Court, E.D. Tennessee, Knoxville Division.

Filed March 29, 2021

Christopher C. Field, William Scott Hickerson, Gregory Brown, Lowe, Yeager and Brown, Knoxville, TN, for Plaintiffs.

David S. Wigler, Knox County Law Director's Office, Gary M. Prince, O'Neil, Parker & Williamson, Matthew J. Evans, Kay Griffin, PLLC, Knoxville, TN, Nina Musinovic Eiler, Kay, Griffin, Enkema & Colbert, PLLC, Nashville, TN, for Defendants.

MEMORANDUM OPINION AND ORDER

Clifton L. Corker, United States District Judge

This matter is before the Court on Defendants’ separately filed partial motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [Docs. 15, 17]. Plaintiffs filed responses in opposition [Docs. 21, 22], Defendants replied [Docs. 23, 24] and Plaintiffs filed sur replies [Docs. 32, 33]. The motions are now ripe for resolution.

I. BACKGROUND

On Wednesday, July 24, 2019 at approximately 5:45 p.m., Defendant Keith Lambert ("Defendant" or "Mr. Lambert"), Assistant Chief of Police with the University of Tennessee Police Department ("UTPD"), while on call, drove his unmarked police vehicle into the driveway of the Slowiks’ ("Plaintiffs") home and parked, blocking Plaintiffs’ vehicles [Doc. 10, ¶¶ 14, 16, 18]. He left his vehicle and entered Plaintiffs’ attached garage [Doc. 10, ¶ 19]. As Mr. Lambert stood in Plaintiffs’ garage, Mrs. Slowik and her daughter exited the door from their home into the garage, unaware that Mr. Lambert was there [Doc. 10, ¶ 20]. Mrs. Slowik described Mr. Lambert as "disheveled and with gun in hand." [Doc. 10, ¶ 24]. According to the Amended Complaint, Mr. Lambert yelled at Mrs. Slowik and her daughter, using expletives, and repeatedly screamed that he was a "cop" and ordered them out of his house [Doc. 10, ¶ 26]. Mrs. Slowik and her daughter believed that Keith Lambert "was going to kill them." [Doc. 10, ¶ 27]. Mr. Slowik entered the garage from the house as Mr. Lambert continued to "threaten the family with his gun." [Doc. 10, ¶ 31]. Mr. Lambert repeated that he was an officer and that this was his house [Doc. 10, ¶ 33]. Mr. Slowik informed Mr. Lambert that it was the Slowiks’ house and that they lived there [Doc. 10, ¶ 37]. The Amended Complaint alleges that when Mr. Slowik "stepped in front of his wife and daughter, to shield them from [Mr.] Lambert's gun," Mr. Lambert moved "toward [Mr.] Slowik with his gun in a more aggressive posture." [Doc. 10, ¶ 39]. At this point, the Slowiks’ daughter "began screaming and collapsed to the floor ...." [Doc. 10, ¶ 40].

When the Slowiks’ daughter collapsed, Mr. Lambert appeared to realize where he was and asked Mr. Slowik to "step outside." [Doc. 10, ¶¶ 41, 42]. Mr. Slowik refused and told Mr. Lambert to leave [Doc. 10, ¶¶ 42, 43]. Mr. Lambert "returned to his unmarked UT police cruiser with his gun in his hand, [and] again stated that he was a ‘cop.’ " [Doc. 10, ¶ 44]. Mr. Lambert pulled out of Plaintiffs’ driveway, drove to the house next door, and went inside [Doc. 10, ¶ 47]. The Slowiks called 911 and met Sheriff's deputies at a nearby location to report the incident [Doc. 10, ¶¶ 48, 49].

Plaintiffs allege that while they were waiting elsewhere to make their report, Mr. Lambert called his wife, Mrs. Shelli Lambert ("Defendant" or "Mrs. Lambert"), who is a "Captain in the records office of the Sheriff's department." [Doc. 10, ¶ 49]. They allege she drove in "an unmarked Sheriff's cruiser," picked up Mr. Lambert, and "drove ... away from the scene before law enforcement arrived." [Doc. 10, ¶ 52]. Neither Mr. nor Mrs. Lambert reported the incident to authorities on July 24, 2019 [Doc. 10, ¶ 54].

Plaintiffs allege that the following morning Mr. Lambert stayed at home while Mrs. Lambert went to work at the Sheriff's Department [Doc. 10, ¶ 55]. Plaintiffs allege that Mrs. Lambert used her position in the Sheriff's records department "to see if [Mr.] Lambert had been reported." [Doc. 10, ¶ 56]. Plaintiffs allege that Mr. Lambert reported the incident only after Mrs. Lambert confirmed from police records that "there was an open investigation [of him] with the [Serious Crimes Unit]." [Doc. 10, ¶ 57].

During their investigation of the incident, the Knox County Sheriff's Department took no action to obtain a toxicology report to determine if Mr. Lambert had been using drugs [Doc. 10, ¶¶ 60, 62]. The District Attorney declined to indict him on any criminal charges [Doc. 10, ¶ 63]. Plaintiffs then filed this lawsuit in federal court.

Defendants filed separate partial motions to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) [Docs. 15, 17]. In his partial motion to dismiss [Doc. 15], Keith Lambert challenges and moves to dismiss the following claims: violation and conspiracy to violate 42 U.S.C. § 1983 (Counts I and III), four of the alleged negligence per se claims (Count V), invasion of privacy (Count IX), spoliation (Count XIII), and civil conspiracy (Count XIV). In her separate partial motion to dismiss [Doc. 17], Shelli Lambert challenges all claims against her: violation and conspiracy to violate 42 U.S.C. § 1983 (Counts II and III), negligence per se (Count VI), negligent infliction of emotional distress (Count X), spoliation (Count XIII), and civil conspiracy (Count XIV).

II. STANDARD OF REVIEW

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) requires the Court to construe the allegations in the complaint in the light most favorable to the plaintiff and accept all the complaint's factual allegations as true. Meador v. Cabinet for Human Res. , 902 F.2d 474, 475 (6th Cir. 1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller v. Currie , 50 F.3d 373, 377 (6th Cir. 1995). However, a court need not "accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The plaintiff must allege facts that, if accepted as true, are sufficient "to raise a right to relief above the speculative level," Twombly , 550 U.S. at 555, 127 S.Ct. 1955, and to "state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 ; see also Iqbal , 556 U.S. at 678-79, 129 S.Ct. 1937.

The "plausibility standard ... occupies the wide space between ‘possibility’ and ‘probability.’ " Keys v. Humana, Inc. , 684 F.3d 605, 610 (6th Cir. 2012) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). "If a reasonable court can draw the necessary inference from the factual material stated in the complaint, the plausibility standard has been satisfied." Id. Alleged facts create a plausible claim when they give rise to a "reasonably founded hope that the discovery process will reveal relevant evidence to support their claims." Lindsay v. Yates , 498 F.3d 434, 440, n. 6 (6th Cir. 2007) (citation omitted).

III. ANALYSIS

A. Defendants’ motion to strike allegations made "upon information and belief."

Defendants begin by alleging that the Amended Complaint is "replete with allegations made based upon Plaintiff's belief. These allegations are insufficient and may be disregarded by the Court." [Doc. 16, pg. 3; Doc. 18, pg. 3]. It is not uncommon for pleadings to contain allegations based "upon information and belief." They are proper where a plaintiff "lack[s] personal knowledge of a fact," but has "sufficient data to justify interposing an allegation on the subject." Starkey v. JPMorgan Chase Bank, NA , 573 F. App'x 444, 447-48 (6th Cir. 2014). For example, it is proper where the matter is "exclusively within knowledge and control of the opposing party," U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc. , 501 F.3d 493, 512 (6th Cir. 2007) (citation omitted) but is not "if the matter is within the personal knowledge of the pleader." Starkey , 573 F. App'x at 447-48 ; Amondson v. Merryfield , 2019 WL 7563529, at *5 (E.D. Tenn. May 22, 2019). The Court has reviewed the factual allegations in the Amended Complaint. There are very few allegations made "upon information and belief" and those concern matters that lie exclusively within the knowledge of Defendants and are based on logical inferences given the factual circumstances. The Court declines to disregard Plaintiffs’ factual allegations.

B. Mr. Keith Lambert's motion to dismiss Plaintiffs’ Section 1983 claim.

Mr. Lambert moves the Court to dismiss Plaintiffs’ Section 1983 claim under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that he was deprived of a right, privilege, or immunity secured by the Constitution or law of the United States by a person acting under color of law. Flagg Brothers, Inc. v. Brooks , 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). "[A] defendant in a § 1983 suit ... acts under color of state law while acting in his official capacity or while exercising his responsibility pursuant to state law." Hardin v. Straub , 954 F.2d 1193, 1198 (6th Cir. 1992) (quoting West v. Atkins , 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ).

Plaintiffs have alleged several constitutional claims against Mr. Lambert in their Section 1983 count. They claim that Mr. Lambert denied them their right to access the courts, violated their rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution, was deliberately indifferent to their rights, used excessive force, and was grossly negligent.

In his motion, Mr. Lambert claims he was not acting under color of law when the incident occurred but had "mistakenly entered the wrong driveway."¹ [Doc. 16, pg. 10]. He claims, "there is no credible evidence" that he...