HERRING v. SUTTON

R. ALLAN EDGAR, Chief United States District Judge

James Edward Herring ("Herring") and his wife, Brigitte Darlene Keith Herring ("Brigitte Herring"), bring this action alleging claims under 42 U.S.C. § 1983 and Tennessee common law. Defendant Carter Street Corporation ("Carter Street") simultaneously has filed a motion to dismiss [Court File No. 10] and a motion for summary judgment [Court File No. 12]. Also before the Court is the motion of Jerri Sutton ("Sutton") and the City of Chattanooga ("City") for judgment on the pleadings and/or for partial summary judgment [Court File No. 14].

For the reasons expressed below, Carter Street's motion to dismiss, [Court File No. 10] treated as a motion for summary judgment, will be GRANTED. The motion by Sutton and City for partial summary judgment [Court File No. 14] will be GRANTED in part. All federal claims will be DISMISSED and the state law claims will be REMANDED to the Circuit Court of Hamilton County, Tennessee. Because Carter Street's motion for summary judgment [Court File No. 12] relates only to state law claims, it will be DENIED as MOOT.

I. Standard of Review

A complaint may be dismissed if it fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). If matters outside the pleadings are presented to and not excluded by the Court, the 12(b)(6) motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. FED. R. CIV. R. 12(b); Fugarino v. Hartford Life and Acc. Ins. Co., 969 F.2d 178, 182 (6th Cir. 1992). Because such additional matters have been submitted to this Court and a reasonable opportunity to present all relevant material has been afforded, the following standard is applicable to defendant Carter Street' motion styled as a motion to dismiss as well as those motions before the Court styled as motions for summary judgment.

Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.

II. Facts

The following facts are suggested by the pleadings and documents before the Court if viewed in the light most favorable to the plaintiffs. These facts are recounted here solely for use in deciding the motions currently before the Court.

On November 11, 2002, Herring was arrested during a University of Tennessee at Chattanooga ("UTC") football game. The game was held at Finley Stadium which is managed by defendant Carter Street. Carter Street hires off-duty Chattanooga police officers to provide security during UTC football games. The officers wear their police uniforms while working as security guards and receive no additional training from Carter Street. On the date in question, defendant Sutton was one of the off-duty Chattanooga police officers working as a security guard.

During the game, Herring's sons and other children under his supervision played with a football on a grassy hill behind one end zone. At some point prior to half-time, Sutton was instructed over her radio, by either Kim Walker or Darryl Turner, to keep footballs used by the children playing on the hill off of the UTC playing field. At this time Sutton instructed the children that they could not play ball. Herring recounts that his son found him and said "Dad, the security lady won't let us play ball today" [Court File No. 26, J. Herring depo at p. 65]. Later, during half-time, when the children were again playing football on the hill, Sutton approached Herring and informed him that she had been instructed that the children were not allowed to play football that day [Court File No. 25, J. Herring depo at p 93]. James Herring responded "Well, I don't understand why. They've done it for years and it appears to me that you're just hassling these kids and scaring them to death" [Court File No. 26, J. Herring deposition at p. 94]. As the conversation became increasingly confrontational, another officer was called. Herring asserts that at some point Sutton said "if you don't tell these boys not to play ball, I'm going to arrest you" [Court File No. 26, J. Herring deposition at 99]. Herring was then placed under arrest.

The officers escorted James Herring up the hill. Herring asserts that once he was in handcuffs, Sutton yanked his arms and pushed him up the hill despite his request that she not yank on his arms because it was hurting him. James Herring further asserts that after leaving the hill area, Sutton "slammed" him against the wall and pushed her knee into his back. The plaintiff also submitts the testimony of a witness to the arrest which contradicts Herrring's deposition and describes Sutton as "not running him into . . . [the wall,] but just walking him up and bracing him up into the wall with her back" [Court File No. 26, M. Vischetti depo at 30]. Herring was then placed in a police car. During the ride to the jail, Herring began to complain of back pain and was offered the opportunity to go directly to the jail or to a hospital first. He elected to go to the hospital where he was examined, but he does not state that he received any treatment for his back. Herring does state that he received a tetanus shot because his arm was bleeding. Herring was then taken to the jail. The charges of disorderly conduct and inciting a riot were later dismissed by the district attorney.

III. Analysis

This case is before the Court based on subject matter jurisdiction pursuant to 28 U.S.C. § 1331. The complaint asserts the claim of "excessive force in violation of the Fourth and Eighth Amendment[s] of the United States Constitution, under 42 U.S.C. [§] 1983" [Court File No. 1] in addition to several Tennessee common law claims. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. A section 1983 claimant must show "1) the deprivation of a right secured by the Constitution or the Laws of the United States and 2) the deprivation was caused by a person acting under color of state law." Simescu v. Emmet County Department of Social Services, 942 F.2d 372, 374 (6th Cir. 1991) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978).

A. Officer Jerri Sutton in her individual capacity

Defendant Sutton notes that the complaint is silent regarding whether she is sued in her official or individual capacity. The Sixth Circuit Court of Appeals has explained that the "course of proceedings test" will be used to determine the nature of the liability that the plaintiff seeks to impose. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001). The test "considers such factors as the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of any defenses raised . . . [as well as] whether subsequent pleadings put the defendant on notice of the capacity in which he or she is sued." Id. at n. 1. In this case, the complaint does not make any reference to the capacity in which Sutton is sued. Sutton's answer asserted the defense of qualified immunity, however, she has argued in her motion for summary judgment that she is named only in her official capacity. The plaintiff's response fails to address this argument. Because the only references to the capacity in which Sutton has been sued are those made by Sutton herself, the Court deems any claims against Sutton in her individual capacity to be abandoned.

B. The City of Chattanooga and Officer Jerri Sutton in her official capacity

When a suit is brought against a police officer in her official capacity, it is actually a suit against the government entity. See Hafer v. Melo, 502 U.S. 21, 25 (1991). "Because the real party in interest in an official capacity suit is the governmental entity and not the named official, `the entity's `policy or custom' must have played a part in the violation of federal law.'" Id.

In addition to suing Sutton in her official capacity, the plaintiff also named the City of Chattanooga as a defendant. Because a municipality cannot be found liable under the theory of respondeat superior, the plaintiff must allege the existence of a policy or custom of the municipality which deprived the plaintiff of his civil rights. Monell v. Ne w York City Dept. of Social Services, 436 U.S. 658, 691 (1978).

To survive a motion for summary judgment, the plaintiff must provide more than a scintilla of evidence to suggest the existence of a policy or custom related to the claim that the defendants are liable based on the use of excessive force in violation of the Fourth and Eighth Amendments. See Anderson, 477 U.S. at 252; McLean, 224 F.3d at 800. Only one document is submitted which suggests that any policy or custom exists in the Chattanooga police department which might constitute a constitutional violation. The document is the affidavit of a local attorney stating that he has observed a "custom" among Chattanooga police officers of "adding additional charges against defendants that they are mad at . . ." [Court File No. 27]. This affidavit is wholly unrelated to the § 1983 claim for the use of "excessive force in violation of the Fourth and Eighth Amendments" that appears in the complaint. The plaintiffs have therefore failed to produce even a scintilla of evidence that any policy or custom existed which condoned the alleged use of excessive force against James Herring or involved a failure to train officers regarding the use of force. The plaintiffs claims against Sutton and the City under 42 U.S.C. § 1983 must therefore be dismissed.

C. Carter Street Corporation

The plaintiffs also assert a claim based on use of excessive force under the Fourth and Eighth Amendments against defendant Carter Street. To determine whether a private party's actions constitute state action under § 1983, the Court must apply "1) public function test, 2) the state compulsion test, and 3) the symbiotic relationship or nexus test." Chapman v. Higbee Co., ___ F.3d ___, 2003 WL 328837, at *5 (6th Cir. February 11, 2003). When applied in the present case, the Court concludes that there are no allegations in the complaint and that there is no probative evidence in the record that Carter Street was operating under color of state law.

However, even if Carter Street were acting under the color of state law, the plaintiff's § 1983 claims against Carter Street must be dismissed because a corporate defendant cannot be held vicariously liable under § 1983 solely on the doctrine of respondeat superior. See Polk Co. v. Dodson, 454 U.S. 312, 325 (1981); Monell, 436 U.S. at 691 (1978); Street v. Corrections Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996); see also Harvey v. Harvey, 949 F.2d 1127, 1129 (11th Cir. 1992); Rojas v. Alexander's Dept. Store, Inc., 924 F.2d 406, 408-409 (2nd. Cir. 1990); Lux by Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir. 1989); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982). Carter Street could be held directly liable if Sutton used excessive force against Herring in accordance with an official corporate policy. See Rojas, 924 F.2d at 408-409; Starcher v. Corr. Med. Sys., Inc., No. 97-4298, 2001 WL 345810 (6th Cir. March 26, 2001). The plaintiffs do not suggest in the complaint and there is no proof offered in the record that Sutton was acting pursuant to an official policy or custom of Carter Street when she allegedly violated Herring's constitutional right through the use of excessive force. The plaintiffs claims against Carter Street under 42 U.S.C. § 1983 must therefore be dismissed.

D. Supplemental Jurisdiction

The only remaining claims in this suit are state common law claims. The Court must next determine whether it will exercise supplemental jurisdiction over these claims. Federal district courts may decline to exercise subject matter jurisdiction over a state law claim if the district court has dismissed all claims over which it has federal jurisdiction. See 28 U.S.C. § 1367(c). Section 1367(c) is a codification of the common law doctrine which provided for federal district court discretion as to whether to exercise supplemental jurisdiction, formerly known as pendent jurisdiction, as expressed in United Mine Workers v. Gibbs, 383 U.S. 715 (1966), and its progeny. See Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996). The exercise of supplemental jurisdiction over state law claims depends on the weighing and balancing of judicial economy, convenience, fairness, comity, and the undesirability of federal courts needlessly deciding state law issues. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); Musson, 89 F.3d at 1254.

The general rule is that when all federal claims are dismissed before trial and the Court lacks federal question jurisdiction under 28 U.S.C. § 1331, the supplemental state claims should either be dismissed or remanded to state court if the case was removed. United Mine Workers, 383 U.S. at 726; Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 233 (6th Cir. 1997); Musson, 89 F.3d 1254. After weighing and balancing the factors of judicial economy, convenience, fairness, comity, and the undesirability of federal courts to needlessly decide what are purely matters of Tennessee law, the Court DECLINES to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). The plaintiffs' remaining state claims will be REMANDED to the Circuit Court of Hamilton County, Tennessee. To the extent that the motions before the Court address the merits of the plaintiff's state law claims, the motions are DENIED.

IV. Conclusion

For the reasons stated above, Carter Street's motion to dismiss, [Court File No. 10] treated as a motion for summary judgment, will be GRANTED. The motion by Sutton and City for partial summary judgment [Court File No. 14] will be GRANTED in part. All federal claims will be DISMISSED and the state law claims will be REMANDED to the Circuit Court of Hamilton County, Tennessee. Because Carter Street's motion for summary judgment [Court File No. 12] relates only to state law claims, it will be DENIED as MOOT.

JUDGMENT

For the reasons stated in the accompanying memorandum opinion, Carter Street's motion to dismiss, [Court File No. 10] treated as a motion for summary judgment, is GRANTED. The motion by Sutton and City for partial summary judgment [Court File No. 14] is GRANTED in part. All federal claims are DISMISSED and the state law claims are REMANDED to the Circuit Court of Hamilton County, Tennessee. Because Carter Street's motion for summary judgment [Court File No. 12] relates only to state law claims, it is DENIED as MOOT.

SO ORDERED.