Morrow v. Metro. Gov't of Nashville
| Decision Date | 31 August 2020 |
| Docket Number | NO. 3:19-cv-00351,3:19-cv-00351 |
| Parties | NICHOLAS MORROW, Plaintiff, v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Pending before the Court are Defendant Ryan Storm and Marcus Darden's Motion to Dismiss Second Amended Complaint (Doc. No. 41), Defendant Brittany McElwee, Edin Plancic, and Nicholas Carroll's Motion to Dismiss Second Amended Complaint (Doc. No. 54), Defendant Officer Merriweather's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 58), Defendant Vanderbilt University Medical Center's Rule 12(c) Motion for Judgment on the Pleadings (Doc. No. 70), and Defendant Vanderbilt University Medical Center's Motion to Exclude Plaintiff's Notice of Filing Interrogatory Response and Related Documents (Doc. No. 85).
For the reasons set forth below, Defendant Ryan Storm and Marcus Darden's Motion to Dismiss Second Amended Complaint (Doc. No. 41), Defendant Brittany McElwee, Edin Plancic, and Nicholas Carroll's Motion to Dismiss Second Amended Complaint (Doc. No. 54), Defendant Officer Merriweather's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 58), and Defendant Vanderbilt University Medical Center's Rule 12(c) Motion for Judgment on the Pleadings (Doc. No. 70) are DENIED.
In its Motion to Exclude Plaintiff's Notice of Filing Interrogatory Response and Related Documents (Doc. No. 85), Defendant Vanderbilt University Medical Center sought to exclude documents filed by Plaintiff on the issue of whether Plaintiff complied with Tennessee Code Annotated Section 29-26-121. In its Reply brief (Doc. No. 88), Defendant acknowledged that the issue should be deferred until summary judgment. Accordingly, the Motion to Exclude (Doc. No. 85) is DENIED, as moot.
In the Second Amended Complaint (Doc. No. 39), Plaintiff Nicholas Morrow brings claims against the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro"), Tommy Widener, Andrew Kooshian, Nicholas Kulp, Marcus Darden, Ryan Storm, Brittany McElwee, Edin Plancic, Nicholas Carroll, Jedidayah Merriweather, and Vanderbilt University Medical Center ("VUMC"), arising out of events that occurred on April 29, 2018. Plaintiff alleges that, on that date at 4:00 p.m., he posted on his Facebook account that "change was coming to Nashville." (Id. ¶ 6). According to Plaintiff, he was planning to announce his candidacy as a write-in candidate for governor at that time, and the message was a "teaser." (Id. ¶ 7). Previous posts on his account accused Metro, "most notably its police department," of being corrupt. (Id. ¶ 8). Plaintiff alleges two of his "enemies" called the Metro Police Department, and "[d]ue either to actual malice or confusion," the callers referenced Plaintiff's Facebook posts; advised that he was an Iraq war veteran with severe PTSD; and "that he might be planning to commit mass-murder against the students of a local community college that Sunday afternoon at 4:00." (Id. ¶ 9). The callers also allegedly advised that Plaintiff was "delusional" because hebelieved the Metro Nashville government is corrupt and had posted anti-police comments. (Id. ¶ 11).
Plaintiff alleges Metro police began a citywide manhunt for him in response to the "dubious allegations about possible crime on a Sunday afternoon, and in response to the Plaintiff's statements about the government's lack of integrity." (Id. ¶ 12). According to Plaintiff, he was sitting at home alone waiting to announce his candidacy for governor on Facebook at 4:00 p.m. (Id. ¶ 13). Plaintiff alleges that, eventually, numerous armed men from the Nashville Police Department "surrounded and besieged" his house. (Id. ¶ 15). A total of 20 officers were allegedly present, and "the leaders of the campaign to trespass" against Plaintiff's home were Captain Tommy Widener, Sergeant Andrew Kooshian, and Sergeant Nicholas Kulp. (Id. ¶¶ 16-17). Plaintiff alleges the police approached his front door and banged on his windows, but he declined to answer. (Id. ¶ 18). According to Plaintiff, the "siege" continued for five to six hours. (Id. ¶ 19).
During that time, the police allegedly contacted Mobile Crisis Services, a division of the Tennessee Department of Mental Health, and falsely stated Plaintiff was psychotic and delusional based on the Facebook posts, and requested a psychological order to arrest him. (Id. ¶ 20). Plaintiff alleges Mobile Crisis Services then called him and asked if he was planning to hurt himself or others. (Id. ¶¶ 21-22). When Plaintiff explained that he was not, the call ended, but the police concluded Plaintiff's failure to continue to speak with Mobile Crisis meant they were at an impasse. (Id. ¶¶ 22, 26). According to Plaintiff, no one had accused him of contemplating suicide, or of being a danger to himself; no one else was present in the house; and at no point, did the police obtain a warrant for him or the house. (Id. ¶¶ 23-25).
During the five or six hours the police were at his house, Plaintiff alleges, multiple officers, including Defendants Darden, Storm, McElwee, Plancic, Carroll, and Merriweather, invaded his fenced-in back yard. (Id. ¶ 29). All were wielding assault rifles, except for Defendant Darden, who was wielding a tazer. (Id. ¶ 30). At some point, Defendant Storm allegedly walked up to the house and turned off the air conditioner in an effort to coerce Plaintiff to come outside. (Id. ¶ 28).
Plaintiff alleges he eventually allowed his dog to go outside to relieve itself. (Id. ¶ 31). When she encountered the dog, according to Plaintiff, Defendant McElwee began "engaging in hand-to-hand combat against the dog," and the dog cried out in pain. (Id. ¶¶ 32-34). Plaintiff then stepped outside onto his back porch, saw officers injuring his dog, and signaled for the dog to come to him. (Id. ¶¶ 35-37). When the police approached him to make a warrantless arrest, Plaintiff allegedly told them he had done nothing wrong, and turned to go back in the house. (Id. ¶¶ 38-39). At that point, Defendant Darden allegedly struck Plaintiff in the back with the tazer, and Plaintiff collapsed to the ground. (Id. ¶ 40). As Plaintiff attempted to get up off the ground, multiple officers pounced on his back, and one officer, believed to be Defendant Storm, kick his left elbow, breaking his arm. (Id. ¶ 41). The police arrested Plaintiff and detained him inside a squad car for interrogation. (Id. ¶ 42).
At that point, Plaintiff alleges, a psychologist from Mobile Crisis Services attempted to interview him, but he said he was not interested in having a discussion because of the conduct of the police. (Id. ¶ 43). According to Plaintiff, the police took him to Vanderbilt Psychiatric Hospital for incarceration, where he was confined by VUMC employees for five days without the approval of a judge. (Id. ¶¶ 44-46). Plaintiff alleges the "sham trial" that occurred after five days, authorizing continued imprisonment, was void ab initio. (Id. ¶¶ 47-48).
The Complaint asserts five claims arising out of these allegations: (1) Unreasonable Seizure in Violation of the Fourth Amendment: Warrantless Entry, Excessive Force, and False Arrest, under 42 U.S.C. § 1983, against Defendants Metro, Widner, Kooshian, and Kulp (Count 1); (2) Retaliation for Protected Speech in Violation of the First Amendment, under 42 U.S.C. § 1983, against Defendants Metro, Widener, Kooshian, and Kulp (Count 2); (3) Trespass, under Tennessee Common Law, against Defendants Darden, Storm, McElwee, Plancic, Carroll, and Merriweather (Count 3); (4) Negligence Per Se, under Tennessee Code Annotated Section 33-6-414, against VUMC (Count 4); and (5) False Imprisonment, under Tennessee Common Law, against VUMC (Count 5). (Id. ¶¶ 56-74).
In considering a motion to dismiss, a court must determine whether the plaintiff has sufficiently alleged "a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Well-pleaded factual allegations are accepted as true and are construed in the light most favorable to the nonmoving party. 129 U.S. at 1950; Mills v. Barnard, 869 F.3d 473, 479 (6th Cir. 2017).
"After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The standard for evaluating a motion for judgment on the pleadings is the same as that applicable to a motion to dismiss under Rule 12(b)(6) for failure to state a claim. Hayward v. Cleveland Clinic Found., 759 F.3d 601, 608 (6thCir. 2014). "In reviewing a motion for judgment on the pleadings, we construe the complaint in the light most favorable to the plaintiff, accept all the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle [him to] relief." Id. (internal quotation marks and citations omitted). "The factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead 'sufficient factual matter' to render the legal claim plausible, i.e., more than merely possible." Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)).
Through their Motions, Defendants Darden, Storm, McElwee, Plancic, Carroll, and...
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