Long v. City of Coopertown

• Decision Date: 05 July 2011
• Docket Number: Case No. 3:09–cv–00900.
• Citation: 801 F.Supp.2d 674
• Parties: Jack LONG, Jr., Plaintiff, v. CITY OF COOPERTOWN, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

801 F.Supp.2d 674

Jack LONG, Jr., Plaintiff,

v.CITY OF COOPERTOWN, et al., Defendants.

Case No. 3:09–cv–00900.

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

July 5, 2011.

Debra A. Wall, Clarksville, TN, for Plaintiff.

Nicholas A. Lastra, Robert M. Burns, Howell & Fisher, Nashville, TN, for Defendants.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court are Motions for Summary Judgment filed by defendants City of Coopertown (Docket No. 77), Sam Childs (Docket No. 78), Adam Bennett (Docket No. 79), William Zimmerlee ¹ (Docket No. 80), and Leslie Foreright (Docket No. 81), to which the plaintiff has filed a consolidated response (Docket No. 93), and in support of which the defendants have filed a consolidated reply (Docket No. 101). Also pending is the defendants' Motion to Strike (Docket No. 102). For the reasons discussed below, the defendants' Motions for Summary Judgment will be granted, and their Motion to Strike will be denied as moot.

FACTS ²

Coopertown (the “Town”) is a small town located in Robertson County, Tennessee.³ The Town is governed by a mayor and a Board of Aldermen (the “Board”), which writes ordinances and otherwise represents the interests of constituents from the Town's several wards. The plaintiff, Jack Long, Jr., became involved in Coopertown politics shortly after the Town's incorporation in 1996; he served as an alderman from 1998 to 2004 and also as vice mayor from 2002 to 2004. This lawsuit stems from Long's purported appointment to the Board in late 2008.

In October 2008, Alderman Larry Muhlstadt, who was going through a divorce, decided that he would resign his seat at the Board's regularly scheduled October 28, 2008 meeting. Sometime in the middle of that month, Muhlstadt called Long and asked if Long would serve as his replacement. Long replied that he would think about it. The next day, Long called Coopertown Mayor Danny Crosby, who said that Long would have no problem getting nominated and approved by the Board. Crosby already knew of Muhlstadt's plan to resign, and he had contacted Gary Jaeckel, a consultant with Municipal Technical Advisory Service (“MTAS”),⁴ and John Holt, the city attorney, to ensure that appointing a replacement at the October 28 meeting would be procedurally proper. Shortly thereafter, Long himself called Jaeckel and Holt to confirm the procedure. The next week, Long called Muhlstadt and said that he would accept the nomination.

The publicly available agenda for the October 28 meeting listed a number of items but did not mention Muhlstadt's planned resignation.⁵ Three of the Town's four aldermen—Muhlstadt, Robert Dale Anderson, and Donnie Gill—were present at the meeting, while the fourth—Margaret Ruth—was absent. Mayor Crosby and various members of the public were also in attendance. At the end of the meeting, Muhlstadt announced his resignation, and, at Muhlstadt's recommendation, Gill moved to nominate Long as Muhlstadt's replacement. Crosby, Anderson, and Gill unanimously voted in favor of appointing Long. The official records of the meeting, however, did not reflect Muhlstadt's resignation or the subsequent vote. ( See Docket No. 78, Ex. 18 at 2–13.)

On November 4, 2008, Crosby lost the Coopertown mayoral election to defendant Sam Childs.⁶ On the same date, Linda Lee was elected as alderman, replacing Gill.⁷ Childs claims that, in the weeks after the election, he was focused on a number of issues, including ensuring that Crosby did not sabotage the Town's finances and property. On November 18, Anderson and Long visited Childs at City Hall, informed him of the actions at the October 28 meeting, and requested that he swear Long in as an alderman. Childs replied that he did not have time to verify that Long had been properly appointed to the Board, and he told Long to see Robertson County Circuit Judge Burton Glover to receive the oath of office. Later that day, Long went instead to Coopertown City Judge Earl Porter, who swore him in.

Childs soon discovered that Long had not been sworn in by Glover. Childs called Porter and found that, before administering the oath, Porter had not requested any proof that Long was validly appointed as alderman. Childs then conducted “[his] own investigation” into the October 28 appointment by reviewing the meeting's agenda, an audio recording of the meeting, and the official records of the meeting. Childs concluded that Long's appointment had violated Tennessee's Open Meetings Act, Tenn.Code Ann. § 8–44–101 et seq. , because the public had received no notice regarding Muhlstadt's planned resignation. (Docket No. 78, Ex. 15 ¶ 16.)

Because Childs is not a lawyer, however, he “wanted to obtain a legal opinion from an attorney well versed in municipal law as to whether [Long's] election was valid.” ( Id. ¶ 17.) In his affidavit, Childs states that he did not contact MTAS advisor Jaeckel because Jaeckel is not a lawyer and because he knew that Jaeckel had already approved the appointment procedure.⁸ Childs also refused to discuss the matter with City Attorney Holt, because Childs, as well as Ruth and Lee, “felt that Holt had become too close to Crosby and Long” and that “Holt abdicated his responsibilities to the Town as a neutral legal advisor.” ( Id. ¶ 18.) This feeling was based on the fact that Holt (1) “wrote an ordinance that allowed Crosby to become a charity so that the Town could pay to have Crosby's personal equipment repaired” and (2) “failed to advise Crosby that he was violating ... employees' First Amendment rights when Crosby fired them because they testified against him during the ouster proceeding.” ( Id.)

Accordingly, Childs set out to hire a new city attorney. He eventually selected Robert Wheeler, who had been recommended by an assistant district attorney as an expert in municipal law. Childs told Wheeler that he would nominate him at an upcoming Board meeting on December 1, 2008, and Wheeler said that he would accept the position if elected by the Board. Childs claims that, at this time, he did not discuss the Long matter with Wheeler.

Before the December 1 meeting, Long learned that Childs would refuse to recognize him as an alderman during the meeting. At his deposition, Long testified that he learned this during a phone call from Crosby, who had heard it from a Coopertown citizen, Shannon Crutcher, who in turn had heard it from Judge Porter. In Childs' affidavit, however, Childs claims that he personally called Long before the meeting. In any event, Childs states that he “saw no other choice but to not recognize Long as an Alderman until [he] could confirm that the election complied with the law.” ( Id. ¶ 21.) Because Childs was expecting a contentious and possibly disorderly meeting, he asked Coopertown Police Chief William Zimmerlee to have officers present at the meeting.

Long showed up to the December 1 meeting expecting that he would not be allowed in the building. Upon gaining entrance, he chose to sit at the aldermen's table. Before long, Childs asked Long to leave the table and sit in the audience, because Childs did not believe that Long had been properly appointed as an alderman. Long refused, and, after some argument, Childs asked police officer Leslie Foreright to remove Long from the table.

In his affidavit, Foreright states that he believed that Long's refusal to leave the table was disruptive and disorderly. Foreright stood behind Long and asked him politely to leave; Long refused. At his deposition, Long testified that he knew that this refusal would have consequences, but that he “believed in the cause that [he] was representing.” (Docket No. 93, Ex. 2 at 92.) At that point, Foreright placed his left hand on Long's right arm, holding it above the elbow, and pulled the arm back slightly.⁹ In his affidavit, Foreright states that he hoped that this “minimal touch would be enough to get [Long] to voluntarily leave the table.” (Docket No. 78, Ex. 8 ¶ 7.) Foreright held Long's arm in this manner for a period of time, which Long estimated as five or six minutes.¹⁰

Long testified that the initial contact by Foreright did not cause any pain. (Docket No. 92, Ex. 3 at 95.) Long did not cry out in pain, and he never indicated to Foreright that Foreright's actions were harming him. Indeed, Long testified that he is “a big boy,” and that it “takes a lot, you know, of pain to hurt [him].” ( Id. at 97.) Although Foreright never twisted Long's arm behind his back, Long testified that Foreright's actions “stretch[ed]” his shoulder, causing him pain. ( Id.) Long quantified this pain as being a “6 or 7” on a scale of 10. ( Id. at 98.)

A videotape of the December 1 meeting documented most of Foreright's contact with Long. ( See Docket No. 82.) In the video, Long does not appear to be in any pain during the incident; instead, he continues, unfazed, arguing with Childs. Although Foreright does appear to grasp Long's right arm, he does not pull the arm backward to any great degree. Almost immediately, Long turns his torso slightly to the right, which undoubtedly minimized any stretching of his shoulder. Long never appears to be in a physically uncomfortable position. The video cuts out before Foreright releases Long; in all, it shows just under five minutes of the contact between the two men.¹¹

During the several minutes that Foreright was touching Long, there was a heated argument among the mayor, the aldermen, and the audience. Eventually, Childs relented and allowed Long to remain at the aldermen's table, at which point Foreright released Long's arm. Afterward, Long did not feel any pain in his shoulder, and he did not suffer any bruising or other damage to his arm. Long did not seek medical attention following the meeting.

At the December 1 meeting, the Board confirmed Wheeler as the new city attorney. The next day, Childs asked Wheeler to investigate the issue of whether Long was properly appointed to the Board. On December 5, 2008, Wheeler...