Cole v. Barnes

• Decision Date: 04 September 2015
• Docket Number: No. 1:13–cv–00052.,1:13–cv–00052.
• Parties: Patti M. COLE, Plaintiff, v. Samuel BARNES, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

128 F.Supp.3d 1002

Patti M. COLE, Plaintiff,

v.Samuel BARNES, et al., Defendants.

No. 1:13–cv–00052.

United States District Court, M.D. Tennessee, Columbia Division.

Signed Sept. 4, 2015.

Robert D. MacPherson, MacPherson & Youmans, P.C.,Lebanon, TN, for Plaintiff.

Jeffrey M. Beemer, Kelly M. Telfeyan, Dickinson Wright PLLC, Nashville, TN, for Defendants.

MEMORANDUM

WILLIAM J. HAYNES, JR.

, Senior District Judge.

Plaintiff, Patti Cole, filed this action under 42 U.S.C. § 1983

against Defendants Samuel Barnes, in his individual capacity, Enoch George, individually and in his official capacity, and Maury County.¹ Plaintiff alleges that her arrest for disorderly conduct lacked probable cause and was in retaliation for engaging in constitutionally protected speech, constituting a violation of her First and Fourth Amendment rights under the United States Constitution. Plaintiff also alleges that Maury County maintained a policy or custom that caused the alleged violation of Plaintiff's rights.

Before the Court is Defendants Barnes, George, and Maury County's ("Defendants") motion for summary judgment (Docket Entry No. 48), contending that: (1) Defendants Barnes and George are entitled to qualified immunity on Plaintiff's First and Fourth Amendment claims because the Sheriff's Department had probable cause, in the form of an arrest warrant, to arrest Plaintiff and her speech was not protected under the First Amendment; (2) Plaintiff's claims against Defendant George in his official capacity are redundant in light of Plaintiff's claims against Maury County; (3) Plaintiff has not produced any evidence of an unconstitutional policy, practice or custom of Maury County; and (4) Maury County cannot be held liable under § 1983

for any alleged conduct of the Maury County Board of Education. Plaintiff filed a response in opposition (Docket Entry No. 55), conceding that Maury County cannot be held liable for the conduct of the Maury County Board of Education, but contending that the arrest warrant is not sufficient to entitle Defendants Barnes and George to qualified immunity and that her speech is protected under the First Amendment. Plaintiff also contends that genuine issues of material fact as to whether Maury County maintained a policy or custom that caused the alleged violation of Plaintiff's rights, preclude summary judgment. Defendants filed a reply. (Docket Entry No. 60).

For the reasons stated herein, the Court concludes that Defendants Barnes and George are not entitled to qualified immunity on Plaintiff's First and Fourth Amendment claims and that Plaintiff's speech is protected under the First Amendment. Yet, the Court concludes that Plaintiff has not presented any evidence to establish that Defendant George, individually, was actively involved in the alleged violations of Plaintiff's Constitutional rights. The Court also concludes that Plaintiff has failed to create a genuine issue of material fact with respect to her claims against Maury County and Sheriff George in his official capacity. Accordingly, Defendant's motion for summary judgment (Docket Entry No. 48) should be granted in part and denied in part.

A. Review of the Record²

On March 7, 2013, following her daughter's arrest and the search of the residence located at 403 Adams Avenue, Plaintiff called the Maury County Sheriff's Department and spoke with Deputy Rob Wagonschutz. (Docket Entry No. 57, Plaintiff's Response to Defendants' Statement of Undisputed Material Facts at ¶ 1). Plaintiff inquired about getting the keys to her daughter's car and complained about the damage sustained to the residence at 403 Adams Avenue in connection with her daughter's arrest and the subsequent search. Id. at ¶¶ 1, 3.

After conducting a search of the evidence, Wagonschutz advised Plaintiff that the Sheriff's Department did have the keys to the vehicle and made arrangements for Plaintiff to retrieve her daughter's keys at the Sheriff's Department. Id. at ¶ 2.

According to Plaintiff, when Wagonschutz said he found the keys and she proceeded to ask about the damage to her house, the line went dead. Id. at ¶ 4. Plaintiff further contends that, after the line went dead, she called right back but was told that Wagonschutz was not there. Id. at ¶ 5.

On March 12, 2013, Plaintiff displayed a disassembled toilet on the front yard of 403 Adams Avenue. Id. at ¶ 6. Written on the disassembled toilet was "FUCK you Rob Wagonschutz" and "Rob Wagonshutz [sic] Special place in HELL for U and Ur boys!" Id.; see also Docket Entry No. 49–3, Photograph or Toilet.

Plaintiff testified that she decided to write the message because she was angry about the damage that had been done to her home during the arrest of her daughter and the subsequent search of the residence and because she was upset about how she had been treated when she contacted the Sheriff's Department to inquire about the damage to her home and about getting her daughter's car keys. (Docket Entry No. 57, Plaintiff's Response to Defendants' Statement of Undisputed Material Facts at ¶¶ 7–8).

Plaintiff testified that, when she wrote "FUCK you Rob Wagonschutz," she was intending to convey that she was very dissatisfied with what Wagonschutz and the Drug Task Force had done to her home and to her as a citizen of Maury County. Id. at ¶ 9. Plaintiff also testified that, when she wrote "Special place in HELL for U and Ur Boys," she meant there is a special place in hell for individuals that break into someone's home, leave a mess, and do not answer for what they have done. Id. at ¶ 10.

Plaintiff further testified that she directed the message specifically to Wagonschutz because of his role in the arrest of Plaintiff's daughter and for his alleged refusal to answer Plaintiff's questions regarding damage to her home. Id. at ¶ 11. Plaintiff testified that she placed the toilet in her front yard because she wanted her message to be seen and she specifically wanted Wagonschutz to see the message. Id. at ¶¶ 12–13.

After seeing the toilet, Wagonschutz called his supervisor, Bill Doelle. Id. at ¶ 15. Wagonschutz felt threatened by the message on the toilet because it was located so close to his home and it was directed at him. Id. at ¶ 16. Wagonschutz did not know if he should expect further vandalism or retribution for arresting Plaintiff's daughter and he did not know if the threat was directed toward him and his family or toward the Drug Task Force. Id.

After contacting his supervisor, Wagonschutz reported the incident to the Sheriff's Department. Id. at ¶ 17. In response, the Maury County Sheriff's Department dispatched Sgt. Barnes to Wagonschutz's residence. Id. When Barnes arrived, he spoke to Wagonschutz, who explained that Plaintiff was upset about the arrest of her daughter and the search of the residence. Id. at ¶¶ 18–19. During this discussion, Wagonschutz called Assistant District Attorney Brent Cooper, who advised Wagonschutz and Barnes that, based on his reading of the disorderly conduct statute, this incident would qualify as disorderly conduct. Id. at ¶¶ 20, 22. Shortly thereafter, Sheriff George arrived at Wagonschutz's residence. Id. at ¶ 23.

Barnes then drove to Mount Pleasant Middle School to speak with Plaintiff. Id. at ¶ 25. Prior to doing so, Barnes read the disorderly conduct statute to determine the elements of disorderly conduct. Id. at ¶ 24. Plaintiff admitted to Barnes that she placed the toilet in the front yard and stated that she would remove it from her property. Id. at ¶ 26. Barnes advised Plaintiff that she should not remove the toilet because he needed to take photographs and he may need to retrieve the toilet as evidence. Id. at ¶ 27. Barnes and Plaintiff then returned to 403 Adams Avenue. Id. at ¶¶ 2829. Although Plaintiff proceeded as if she were going to remove the toilet, Barnes instructed her not to remove the toilet and Plaintiff complied. Id. at ¶ 29.

Barnes then obtained an arrest warrant from Magistrate Terry Brewer, who found that there was probable cause to believe that Plaintiff committed the offense of disorderly conduct. Id. at ¶¶ 30–32. Plaintiff was arrested and booked into the Maury County Jail at 11:40 a.m. on March 13, 2013. Id. at ¶ 33. Plaintiff was released later that afternoon. Id. at ¶ 34.

On March 26, 0213, Maury County General Sessions Judge Bobby Sands granted Plaintiff's motion to dismiss the case on "constitutional grounds." Id. at ¶ 35.

B. Conclusions of Law

"The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Advisory Committee Notes on Rule 56

, Federal Civil Judicial Procedure and Rules (West Ed.1989). Moreover, "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

, the United States Supreme Court explained the nature of a motion for summary judgment:

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.

As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the

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