Wynn v. Morgan, CIV. 3-93-cv-548.

• Citation: 861 F. Supp. 622
• Decision Date: 08 July 1994
• Docket Number: No. CIV. 3-93-cv-548.,CIV. 3-93-cv-548.
• Parties: Trina WYNN, Plaintiff, v. Charles V. MORGAN, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

861 F. Supp. 622

Trina WYNN, Plaintiff, v. Charles V. MORGAN, Defendant.

No. CIV. 3-93-cv-548.

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

July 8, 1994.

COPYRIGHT MATERIAL OMITTED

Gloria S. Moore, Moore & Clark, Knoxville, TN, for plaintiff.

J. Robert Walker and Ronald C. Leadbetter, Office of Gen. Counsel, University of Tennessee, Knoxville, TN, for defendant.

MEMORANDUM OPINION

PHILLIPS, United States Magistrate Judge.

This matter is before the undersigned pursuant to the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(c), by consent of the parties, and by order of reference from the Honorable Thomas G. Hull, United States District Judge Doc. 22.

This case was originally brought against the University of Tennessee, at Knoxville, and officer Charles V. Morgan, Badge No. 148, Unit 49, University of Tennessee Police Force, individually and as a police officer for the University of Tennessee at Knoxville, Tennessee Doc. 1. However, by order filed January 13, 1994, plaintiffs' claims against the University of Tennessee and Officer Charles V. Morgan, in his official capacity, were dismissed under Rule 12(b)(6), Federal Rules of Civil Procedure Doc. 14. Thus, the only remaining defendant is Charles V. Morgan in his individual capacity.

Defendant Morgan has now moved for summary judgment Doc. 16, supported by memorandum Doc. 16a, and plaintiff has responded in opposition Doc. 19. As the bases for his motion for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, defendant asserts that he has not deprived plaintiff of any right guaranteed by the Fourth, Fifth, Eighth, or Fourteenth Amendments to the United States Constitution, that plaintiff has failed to state a claim under 42 U.S.C. § 1981 upon which relief can be granted, and that defendant is entitled to qualified immunity Doc. 16.

In response, plaintiff asserts that her cause of action alleges violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. §§ 1981, 1983, and 1988, alleging deprivation of plaintiff's constitutional rights to be secure in her person, right to be free from malicious prosecution, right to be free from cruel and unusual punishment, and right to due process. She also asserts that this action is before the court on pendent jurisdiction of state claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, negligence, gross negligence, and negligent hiring, retention, supervision and training in violation of the laws of the state of Tennessee Doc. 19.

As correctly pointed out by plaintiff, defendant previously moved under Rule 12(b)(6) to dismiss this cause of against him individually, asserting that as an employee of the state of Tennessee, he is absolutely immune from suit under Tennessee Code Annotated § 9-8-307(h) (Supp.1993). The district court ruled that this section of Tennessee Code Annotated immunizes state officers and employees from liability for acts or omissions within the scope of their employment, except for willful, malicious, or criminal acts or omissions or acts or omissions done for personal gain. However, the court ruled, the claims asserted by plaintiff in this lawsuit appear to be predicated on deliberate misconduct and the court held that no federal claim and no state law claim based upon deliberate misconduct would be dismissed at that time Doc. 11. The district court subsequently dismissed plaintiff's cause of action as to the University of Tennessee and Officer Morgan in his official capacity Doc. 14, but did not alter or otherwise amend its ruling in regard to defendant in his individual capacity.

I. STATEMENT OF FACTS

In her complaint, plaintiff alleges that on or about September 20, 1992, she was the driver of an automobile traveling east in the far right lane on Cumberland Avenue in Knoxville, Tennessee, when a University of Tennessee police car traveling west abruptly entered into plaintiff's lane of travel, within approximately a 20-foot distance between her vehicle and the police vehicle. At the time the University of Police car entered plaintiff's lane, there were no flashing lights or sirens used and no indication that the University of Tennessee police car was in an emergency, and that after traveling approximately three additional blocks, plaintiff heard the sound of sirens coming from behind her vehicle and observed flashing blue lights in her rear view mirror. Plaintiff alleges that she pulled her vehicle over at the intersection of Cumberland and Estrabrook, two University of Tennessee police cars pulled over behind her, and Officer Charles V. Morgan approached her car and asked her to get out of her car. Officer Morgan asked plaintiff if she had been drinking, and she replied negatively.

When plaintiff inquired of Officer Morgan why he had stopped her, he replied that she drove on the yellow line. Officer Morgan asked to give plaintiff a field sobriety test, to which she agreed, and Officer Morgan had plaintiff to say the alphabet, stand on one leg at a time, and count one through nine. Officer Morgan then told plaintiff to count one through 30, and once again asked plaintiff to say her alphabet. Officer Morgan asked plaintiff to walk a straight line counting one through nine, he had her walk a straight line counting one through nine and shined a penlight in her eyes, moving it backward and forward.

Plaintiff asserts that after she took the field sobriety test, defendant told her everything was okay but that he wanted her to take breathalyzer test, to which she consented. Plaintiff turned around and walked to the end of her vehicle, defendant asked her to approach him and turn around, she turned around and defendant patted her down and hand cuffed her from the back. Plaintiff asked defendant why she was being placed under arrest, and he replied for DUI. Plaintiff replied that she had agreed to take the breathalyzer test or a blood test, but defendant then replied that she had refused to take the breathalyzer test, grabbed her, and forced her into the police cruiser. She asserts that defendant arrested her without cause or justification, harassed her by forcing her to endure pseudo-sobriety tests and refused to give her a breathalyzer or blood test after she consented to such to determine whether she was driving under the influence of drugs or intoxicants.

Plaintiff was placed under arrest by defendant and taken to the Knox County jail where she remained in police custody until bail was posted. Plaintiff was charged with resisting arrest and driving under the influence. She also asserts that after she had taken the field sobriety tests, defendant told her everything was okay but that he wanted to give her the breathalyzer test and that plaintiff agreed to take the test. However, she asserts, rather than being given a breathalyzer test or a blood test, defendant frisked her, placed her in handcuffs, and placed her under arrest Docs. 1, 19.

In support of his motion for summary judgment, defendant has filed his affidavit which sets forth that he is a police officer employed by the University of Tennessee, acting under the authority granted the University of Tennessee police officers pursuant to the laws of the state of Tennessee. He relates that on September 20, 1992, he placed plaintiff under arrest for driving under the influence based upon his perception and belief that she had been driving recklessly and under the influence of drugs. In addition, he charged plaintiff with resisting arrest based upon his perception and belief that she unlawfully attempted to avoid arrest.

He asserts that the specific behavior leading him to those conclusions was: (1) At approximately 12:30 a.m. on September 20, 1992, he was on duty patrolling the U-T campus in a U-T police cruiser. (2) He was traveling in the left east-bound lane of Cumberland Avenue adjacent to the U-T campus when he noticed plaintiff's vehicle crossing over into his lane from the east-bound right lane. (3) He swerved into the west-bound lane to avoid a collision with plaintiff's vehicle since her vehicle crossed all of the way into the left lane of traffic, swerved back into the right lane of traffic, and continued traveling east-bound. (4) He pulled into the right lane behind plaintiff, activated his emergency lights, and briefly hit his siren in an attempt to pull her vehicle over. (5) When plaintiff's vehicle finally stopped, he notified police headquarters that he had effected a traffic stop, called out the license plate number, and turned his spotlight on the rear of plaintiff's vehicle. (6) He then got out of his automobile and began approaching plaintiff's vehicle, but when he got approximately halfway to plaintiff's car, she accelerated and left the scene. (7) Believing that plaintiff was deliberately fleeing, defendant ran back to his vehicle, notified the station that he was in pursuit, activated his siren, and began to pursue plaintiff's car. (8) He pursued plaintiff's car until another U-T patrol car pulled into the east-bound lane partially blocking it, and plaintiff's vehicle then made a right-hand turn onto Estrabrook Drive and stopped. (9) After stopping, plaintiff got out of her car and began yelling at him, but at his request, she agreed to take field sobriety tests after initially refusing to do so. (10) He then administered the three standardized field sobriety tests to plaintiff in the manner instructed at the Tennessee Law Enforcement Training Academy at Donelson, Tennessee. (11) These tests are walk and turn, the one-leg stand, and the horizontal gaze nystagmus. (12) Based upon defendant's observations of plaintiff's driving behavior and his judgment that she failed all three sobriety tests, he concluded that plaintiff had been driving while under the influence of an intoxicant or other stimulant in violation of...