Opinion
No. 2:18-cv-02185-TLP-atc
2024-02-06
Jason CUNNINGHAM, individually and as adult natural son and sole wrongful death beneficiary and next of kin, affiant and administrator ad litem, and personal representative for Nancy Jane Lewellyn, Deceased and Estate of Nancy Jane Lewellyn, Plaintiff, v. SHELBY COUNTY, TENNESSEE, Sheriff Bill Oldham; Robert Paschal, individually and in his official capacity as a Shelby County Sheriff's Deputy; and Marvin Wiggins, individually and in his official capacity as a Shelby County Sheriff's Deputy, Defendants.
Daniel Alan Seward, Law Office of Daniel Seward, Memphis, TN, for Plaintiff. Emmett Lee Whitwell, Katherine L. Frazier, Shelby County Attorney's Office, Memphis, TN, for Defendant Shelby County. Emmett Lee Whitwell, Shelby County Attorney's Office, Memphis, TN, for Defendants Robert Paschal, Marvin Wiggins.
Daniel Alan Seward, Law Office of Daniel Seward, Memphis, TN, for Plaintiff.
Emmett Lee Whitwell, Katherine L. Frazier, Shelby County Attorney's Office, Memphis, TN, for Defendant Shelby County.
Emmett Lee Whitwell, Shelby County Attorney's Office, Memphis, TN, for Defendants Robert Paschal, Marvin Wiggins.
ORDER GRANTING DEFENDANT SHELBY COUNTY'S MOTION FOR SUMMARY JUDGMENT
THOMAS L. PARKER, UNITED STATES DISTRICT JUDGE.
This tragic case began in March 2017 when Plaintiff's mother, Nancy Lewellyn, was shot to death in her driveway by law enforcement officers. Plaintiff sued Shelby County, Sheriff Bill Oldham and Sheriff's Deputies Robert Paschal and Marvin Wiggins ("the Officers") under 42 U.S.C. § 1983 alleging the Officers used excessive force and violated her Fourth Amendment rights. (ECF No. 1. at PageID 16-18.) Plaintiff further alleged that Defendant Shelby County : 1) failed to train its officers and implement policies to handle mentally ill individuals, 2) maintained an unconstitutional excessive force policy, and 3) employed a custom of behavior that caused Ms. Lewellyn's death. (Id. at PageID 17-18.)
Sheriff Oldham was dismissed from this lawsuit in November 2018. (ECF No. 48.)
Through the Shelby County Sheriff's Office ("SCSO").
The Court dismissed this claim in August 2022. (ECF No. 138.)
Earlier, the Court denied the Officers' summary judgment motion, based on a qualified immunity defense. (ECF No. 112.) But the Sixth Circuit reversed, holding that the Officers did not violate a clearly established law and were entitled to qualified immunity. Cunningham v. Shelby Cnty., Tennessee, 994 F.3d 761 (6th Cir.), cert. denied sub nom. Cunningham v. Paschal, ___ U.S. ___, 142 S. Ct. 711, 211 L.Ed.2d 400 (2021). This Court then granted summary judgment to the Officers. (ECF No. 119.)
Shelby County, the remaining Defendant, now moves for summary judgment under Federal Rule of Civil Procedure 56(a). (ECF No. 158.) Plaintiff responded in opposition (ECF No. 181) and Defendant replied (ECF No. 187). For the reasons below, the Court GRANTS Defendant's Motion.
BACKGROUND
This unfortunate incident has been recounted several times, and so the Court will be brief. Around noon on March 17, 2017, Nancy Lewellyn made a 911 call in which she told the dispatcher that "she was depressed and suicidal, that she had a gun, and that she would kill anyone who came to her residence." (ECF No. 181-2 at PageID 2250.) Three officers—Jayroe, Paschal, and Wiggins—responded, each in separate vehicles. (Id. at PageID 2251.) Their cars all had cameras that recorded the incident. (Id.)
At the time, Ms. Lewellyn was living at the home of her adult son, Jason Cunningham, at 10016 Woodland Pine Cove West in Lakeland, Tennessee. (ECF No. 181-1 at PageID 2237.)
I. Summary of Incident
Upon the Officers' arrival, Ms. Lewellyn walked outside the front door into the driveway, carrying an object that looked like a gun in her right hand. (Id. at PageID 2254.) The Officers believed Ms. Lewellyn was holding a gun. (ECF No. 83-6 at PageID 368, ECF No. 83-7 at PageID
378.) In fact, Ms. Lewellyn was holding a BB gun. (ECF No. 61-6, ECF No. 181-2 at PageID 2254-55.) The video from Officer Jayroe's cruiser showed Ms. Lewellyn raise the gun, though the Parties dispute if Ms. Lewellyn pointed the gun at the officers. (ECF No. 92-1 at PageID 464, ECF No. 181-2 at PageID 2255.)
Officer Paschal fired the first shots toward Ms. Lewellyn. (ECF No. 181-2 at PageID 2258.) Ms. Lewellyn continued to walk toward the car parked in the driveway, with her right arm extended. (Id. at PageID 2259.) After reaching the vehicle, Ms. Lewellyn leaned on the hood and then turned toward the house. (ECF No. 181-2 at PageID 2260.) Each officer testified that they did not see Ms. Lewellyn place the gun on the hood of the car. (ECF No. 83-5 at PageID 350, ECF No. 83-6 at PageID 362, ECF No. 83-7 at PageID 378.) Officers Paschal and Wiggins continued to shoot at Ms. Lewellyn. (See ECF No. 61-3.)
Ms. Lewellyn took a few steps and collapsed. (Id.) The entire incident, from the moment Ms. Lewellyn stepped outside the home, lasted about eleven seconds. Cunningham 994 F.3d at 764 ("[a] total of eleven seconds had elapsed since she exited her house"). In total, the two Officers fired ten shots, striking Ms. Lewellyn eight times. (ECF No. 181-2 at PageID 2261.) While Ms. Lewellyn lay on the ground, one of the officers approached her and demanded that she show her hands, while another yelled at her to drop the gun. (Id. at PageID 2262.) The Officers then rendered medical aid while awaiting emergency medical personnel. (Id. at PageID 2262-63.) But Ms. Lewellyn died from her injuries. (Id.)
Officer Jayroe never fired his weapon during the incident. (ECF No. 181-1 at PageID 2241.)
II. Defendant's Deadly Force Policy and Investigation
Newt Schaeffer, Assistant Deputy Chief of the Shelby County Sheriff's Office ("SCSO"), provided a declaration, explaining the SCSO's policies and procedures for using deadly force. (ECF No. 158-3.) The SCSO's deadly force policy states that an officer may use deadly force when there is a reasonable belief that such force is necessary to prevent imminent death or serious bodily harm to the officer or another individual(s). (ECF No. 175 at PageID 2167.) But officers may use only the degree of reasonable force necessary to perform these duties. (Id.) And all officers must comply with these policies, or they will face discipline and investigation. (Id. at PageID 894.)
After a deadly shooting, the policy instructs the on-duty supervisor to assume control of the scene and notify the shift commander. (Id. at 2169.) Under the policy, an officer that fired their weapon is separated, and the weapon is holstered or otherwise secured. (Id.) All potential civilian witnesses and other officers are also identified and separated from one another. (Id.) It is the on-duty supervisor's responsibility to "identify and separate all potential civilian witnesses and other commissioned officers or civilians involved or present." (Id.)
After an officer uses deadly force, the SCSO investigates the shooting through its internal affairs department, the Bureau of Professional Standards and Integrity ("BPSI"). (ECF No. 158-3 at PageID 895.) After investigating, BPSI turns its findings into the SCSO, and it determines whether punishment is appropriate. (Id.) Along with BPSI's investigation, a second, independent investigation occurs through
the Tennessee Bureau of Investigation ("TBI"). (Id. at PageID 895-96.) Neither BPSI nor SCSO personnel have authority over TBI's investigation. (Id.) After TBI concludes its investigation, it turns its findings over to the District Attorney's office. (Id. at PageID 896.) The District Attorney then makes an independent determination and has its own authority to bring charges. (Id.)
Officers Paschal and Wiggins were placed on administrative leave on March 17, 2017, pending the SCSO and TBI's investigations. (ECF No. 175 at PageID 2100-03.) They were both exonerated on February 2, 2018, and reinstated to active duty. (Id.) The District Attorney concluded here that it would seek no criminal charges against either Officer. (ECF No. 175 at PageID 2128.)
LEGAL STANDARD
In a motion for summary judgment, the moving party must first show that there is no genuine issue of material fact. Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Courts grant summary judgment "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." Fed. R. Civ. P. 56(c). The Court must view the evidence —and justifiable inferences from the facts—in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A fact is "material" if "proof of that fact would establish or refute an essential element of the cause of action or defense." Bruederle v. Louisville Metro Gov't, 687 F.3d 771, 776 (6th Cir. 2012) (citing Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)). And courts construe all reasonable inferences in favor of the nonmoving party when it considers a motion for summary judgment. Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). If video footage of an incident exists, the Court will not credit assertions that contradict the footage, but it will "view the facts in the light depicted by the videotape." Cunningham v. Shelby Cnty., Tennessee, 994 F.3d 761, 763 (6th Cir. 2021) (citing Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
If the moving party shows there is no genuine issue of material fact, "the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact." Id. at 448-49; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Likewise, if the nonmoving party "fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof," then the moving party is entitled to "judgment as a matter of law and summary judgment is proper." Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. United Auto Workers Loc. 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc)). But if the Court finds there is a genuine dispute over material facts, then it must deny summary judgment, and the case should proceed to trial. City of Memphis v. Horn Lake Creek Basin Interceptor Sewer District, 2023 WL 3931510, at *7 (W.D. Tenn. Mar. 30, 2023). Now the Court will turn to its analysis of Defendant's motion.
ANALYSIS
Before analyzing Plaintiff's three claims, the Court emphasizes that this is
not a lawsuit against the Officers, and that Defendant cannot be held liable solely for the Officer's misconduct under respondeat superior because local governments are responsible only for "their own illegal acts." Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Instead, to be liable under § 1983, Defendant's conduct must be "the moving force behind the injury alleged." Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013) (quotations and citations omitted, emphasis added). Defendant becomes this "moving force" by relying on, or ratifying, unconstitutional municipal policies, or by undertaking a custom of action, or inaction, that causes constitutional violations—better understood as a Monell claim. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
In Monell, the Supreme Court explained that a municipality may be liable for an officer's actions when a plaintiff first establishes that an officer violated her constitutional rights, and second, that the violation resulted from either: 1) the existence of an illegal official policy or legislative enactment; 2) an official with final decision making authority ratifying illegal actions; 3) the existence of a policy of inadequate training or supervision; or 4) a custom of tolerance of federal rights violations. Stewart v. City of Memphis, Tennessee, 788 F. App'x 341, 344 (6th Cir. 2019) (relying on Monell, 436 U.S. at 692, 98 S.Ct. 2018). In other words, a municipality's issuance or adoption of a policy, or its unwritten custom, must be the reason the officer violated a plaintiff's constitutional rights. D'Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (quoting Monell, 436 U.S. at 692, 98 S.Ct. 2018).
And so Defendant is liable only if 1) the Officers violated Ms. Lewellyn's constitutional rights and 2) that they violated these rights through an unconstitutional municipality policy, the ratification of an illegal act, or through Defendant's own custom. Powers v. Hamilton County Public Defender Com'n, 501 F.3d 592, 607 (6th Cir. 2007) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). But, as already emphasized, Defendant is not automatically liable even if this Court holds that the Officers violated Ms. Lewellyn's constitutional rights— because Monell does not allow for a municipality's liability under a respondeat superior theory. See Clark v. City of Memphis, 2019 WL 13414476, at *3 (W.D. Tenn. Dec. 10, 2019). In other words, a police officer's bad act, alone, cannot impose liability upon Defendant: Plaintiff must provide evidence of Defendant's own wrongdoing. See id.
In opposition to summary judgment here (ECF No. 181), Plaintiff advances three arguments: 1) Defendant promulgated an unconstitutional policy, 2) Defendant ratified an illegal decision by reinstating the Officers, and 3) Defendant's two customs violated Ms. Lewellyn's constitutional rights. But most of Plaintiff's briefing focuses on the Officers' purported violation of Ms. Lewellyn's constitutional rights, and not Defendant's own misconduct. That said, the Court will address these three arguments in turn.
I. Unconstitutional Policy
Under Monell, a Plaintiff can challenge a municipality's policy on its face. Monell, 436 U.S. at 692, 98 S.Ct. 2018. Though Plaintiff does not challenge a specific policy, the Complaint claims that Defendant's policies were the "driving force" between Ms. Lewellyn's constitutional rights violation. (ECF No. 1 at PageID 15.) The Court will presume that Plaintiff challenges Defendant's deadly force policy, as this policy is summarized in Plaintiff's opposition response and attached as a separate
exhibit. (ECF No. 181-1 at PageID 2234-36.)
A municipal policy may be unconstitutional in two ways: 1) facially unconstitutional as written or articulated, or 2) facially constitutional, but in practice results in constitutional violations with explicit or implicit ratification by city policymakers. Young, 846 F. App'x 314, 330 (6th Cir. 2021) (quoting Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006)). Besides the Complaint's statement, that these policies caused Ms. Lewellyn's constitutional violation, Plaintiff provides no evidence or citations for support. In fact, Plaintiff does not reference any specific part of the deadly force policy or advance any argument that the policy is, on its face, unconstitutional. (See ECF No. 181.) Though Plaintiff advances a ratification argument (that this Court will address), as for the unconstitutionality of the policy itself, the record lacks support that the deadly force policy is, in any way, unconstitutional as written.
Given this lack of evidence, no reasonable jury could determine that this policy was the "moving force" behind Ms. Lewellyn's alleged Fourth Amendment violation. See e.g., Mosier v. Evans, 2023 WL 2074320, at *10 (W.D. Tenn. Feb. 17, 2023), appeal dismissed, 2023 WL 4105377 (6th Cir. Mar. 23, 2023). Plaintiff's unconstitutional policy claim thus fails as a matter of law.
II. Custom of Constitutional Violations
Even if a municipality has not enacted an unconstitutional policy, a party can challenge its "custom" of illegal practices. See Monell, 436 U.S. at 692, 98 S.Ct. 2018. Plaintiff here alleges that Defendant has two such customs: the first is Defendant's purported tolerance of police officers shooting individuals suffering from mental distress, and the second is Defendant's failure to separate officers after a deadly shooting, in violation of the deadly force policy.
To survive summary judgment under this theory, a plaintiff must first show "the existence of a clear and persistent pattern of [illegal activity]." Young, 846 F. App'x at 331 (6th Cir. 2021) (quoting Doe v. Claiborne County, 103 F.3d 495, 508 (6th Cir. 1996). After this hurdle, a plaintiff must then show 1) the municipality had notice, or constructive notice about the illegal activity; 2) the municipality approved the unconstitutional conduct, or it deliberately failed to act; and 3) that this custom was the 'moving force' in the constitutional deprivation. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (quoting Doe, 103 F.3d at 508). Failing to prove even one of these elements dooms the claim. See id. Because Plaintiff has failed to prove the first element, a clear pattern of illegal activity, the remaining elements are irrelevant, though the Court will briefly address them). The Court will now analyze the two customs.
A. Shooting of Mentally Ill Individuals
The first alleged custom is Defendant's tolerance of officers shooting individuals in mental distress. (ECF No. 181-1 at PageID 2231-33.) Plaintiff relies on two events: the shooting here of Ms. Lewellyn and the 2018 shooting of Edmond Studdard, to show that Defendant has a custom of police unnecessarily shooting individuals that are suffering from mental episodes. In the Edmond Studdard shooting, SCSO officers responded to a hit-and-run call where they observed Mr. Studdard walking away from the scene, holding a knife. Studdard v. Shelby Cnty., Tennessee, 934 F.3d 478, 480 (6th Cir. 2019). The officers followed him and then approached, instructing him to drop the knife. Id. Mr.
Studdard then held the knife to his neck and made a "swaying motion." Id. at 481. Two of the officers shot and killed Mr. Studdard. Id. In a 2019 lawsuit, this District Court denied the officers' qualified immunity defense and the Sixth Circuit affirmed. Id.
While this case and the death of Mr. Studdard are tragedies, they are factually distinguishable incidents. Ms. Lewellyn held and allegedly pointed a gun, while Mr. Studdard only threatened himself with a knife; Mr. Studdard did not call 911 after his car accident, but Ms. Lewellyn called officers to her home, and she threatened deadly violence. For Monell purposes, a custom must have similar characteristics that allow a jury to discover a "clear and persistent pattern." See Stewart, 788 F. App'x at 347. Plaintiff has not shown such a pattern here. While the Court, like the Sixth Circuit in Thomas, may question the constitutionality and legality of the shootings, this Court finds that these two incidents do not show a custom.
Even if these cases were factually similar, it is still undetermined if the officers violated Ms. Lewellyn and Mr. Studdard's constitutional rights—as stated above, the Sixth Circuit reversed this District Court on the qualified immunity issue, but it did not address whether the officers violated Ms. Lewellyn's constitutional rights. Cunningham v. Shelby Cnty., Tennessee, 994 F.3d 761, 767 (6th Cir. 2021). And Mr. Studdard's case settled, without admission of liability. (ECF No. 181-2 at PageID 2266.) But, even if the Court holds that a question of material fact exists about a constitutional violation, Plaintiff's claim still fails because, under a custom theory, he must show a pattern of illegal activity.
And the Sixth Circuit has made clear that one instance of police misconduct is not enough for a custom violation under Monell. See, e.g., Stewart v. City of Memphis, Tennessee, 788 F. App'x 341, 347 (6th Cir. 2019) (holding that one decision in an officer-involved shooting cannot constitute a pattern). A similar case is Thomas v. City of Chattanooga, 398 F. 3d 426 (6th Cir. 2005). In Thomas, the plaintiff sued a municipality after police officers shot a suspect 13 times. While that court recognized that the shooting itself may have been unjustified, it emphasized that one potential claim of excessive force cannot demonstrate a clear pattern or custom of unconstitutional activity. Id. at 432-33. The Sixth Circuit warned of "the danger" in "attempting to infer a municipal-wide policy based solely on one instance of potential misconduct." Id. Doing so would "result in the collapsing of the municipal liability standard." Id. (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018).
Instead, to show a custom of activity, there must be several instances of similar conduct. See Leach v. Sheriff of Shelby County, 891 F.2d 1241 (6th Cir. 1989) (finding municipality was deliberately indifferent to prisoners' medical needs where 14 paraplegics received "deplorable" treatment). But listing two events is not enough to establish a custom. See e.g., Wallace v. Coffee Cnty., Tennessee, 852 F. App'x 871, 876 (6th Cir. 2021) ("six incidents... is not sufficient to suggest a widespread, permanent custom"); Jones v. Muskegon Cnty, 625 F.3d 935, 946 (6th Cir. 2010) ("a jury could not reasonably infer from these five incidents alone that the County had a widespread, permanent and well-settled custom of ignoring inmate requests"); and McGee v. Madison Cnty., Tennessee, 2017 WL 6804233, at *9 (W.D. Tenn. Oct. 31, 2017) (holding that four instances was not enough to establish a policy or custom).
Finally, even if Plaintiff could establish a custom (or pattern) of unconstitutional activity, he must also show that Defendant knew these violations occurred
and that it failed to act. See Young v. Campbell Cnty., Kentucky, 846 F. App'x 314, 331 (6th Cir. 2021). The record lacks evidence that Defendant was on notice about any pattern of unconstitutional activity. In fact, Newt Schaffer, Assistant Deputy Chief of the SCSO and a custodian of its written policies, declared that the SCSO does not have a widespread practice of using unlawful force, its leadership does not know of such practice and, if it did, they would respond to correct it. (ECF No. 158-3 at PageID 897.) Plaintiff did not refute or challenge Mr. Schaffer's attestations in any way, or present evidence from other city officials, policymakers, or officers contesting his declaration.
Plaintiff points to no evidence that Defendant knew, or authorized, officers to shoot mentally ill individuals prematurely. This case resembles Jenkins v. City of Chattanooga, in which police shot a man suffering a from psychotic episode. 2023 WL 8261380, at *1 (E.D. Tenn. Nov. 29, 2023). There, the plaintiff claimed that the city had a custom of tolerating deviations from its deadly force policy and failing to follow the de-escalation policies for delusional individuals. Id. But the record did not contain facts of a persistent pattern of deviation from the deadly force policy, or that the city was on notice of such a pattern. Id. at *8. For that reason, no genuine issue of material fact existed. Id.
And in Burgess v. Fischer, the Sixth Circuit similarly affirmed dismissal of a Monell claim against a board of commissioners, explaining that the board did not order the plaintiff's arrest, nor was it on notice of the officers' use of excessive force. 735 F.3d 462, 478 (6th Cir. 2013). The court emphasized that the commissioner's after-the-fact approval of the officers' conduct could not serve as the "moving force" behind the plaintiff's injury. Id. at 479. Here, nothing in the record suggests that Defendant knew the Officers engaged in unconstitutional conduct and that it then approved such action. For all these reasons, Plaintiff's first custom claim fails as a matter of law.
B. Failure to Separate Officers
Plaintiff next argues that SCSO officers have a custom of not separating after a shooting. He claims that Officer Paschal and Officer Wiggins were not separated from each other after the shooting. (ECF No. 181-1 at PageID 2247-48.) Instead, they gathered in a truck with other officers and SCSO personnel. (Id.) And, according to Plaintiff, this also happened after Mr. Studdard's shooting. (Id. at PageID 2248-49.) Defendant's deadly force policy instructs that an officer who fired his weapon is to be "separated" from other officers and civilian witnesses. (ECF No. 175 at PageID 2169.)
Though the policy does not specify how long they should be separated. (ECF No. 175 at PageID 2169.)
In his briefing, Plaintiff provides only these two examples of the officers failing to separate: without more, this is not enough. See Monell Bailey v. Hamilton Cnty. Gov't, 2020 WL 5859403, at *3 (E.D. Tenn. Oct. 1, 2020) (holding that two occurrences cannot establish a pattern of illegal activity). But, even if the Court found that these two instances created a pattern, Plaintiff has not shown how this could be the "moving force" behind the deprivation of Ms. Lewellyn's constitutional rights.
Plaintiff claims that the Officers, in not separating, were able to discuss "their planned defense of the improper use of deadly force against people such as Nancy Lewellyn and Edmond Studdard, proximately
causing the death and constitutional violations to Nancy Lewellyn and Edmond Studdard." (ECF No. 181-1 at PageID 2234.) But Plaintiff does not explain how discussions that occurred after a shooting could also be the proximate causation of that shooting. Even assuming the Officers improperly discussed the shooting with each other, a contention for which Plaintiff offers no evidence, any defense that the Officers relied on after the shooting is separate from what caused the shooting in the first place.
As Defendant correctly notes, the Officers' alleged failure to separate occurred after the shooting, and thus it cannot be the shooting's proximate cause. See Thornton v. City of Columbus, 2017 WL 2573252, at *8 (S.D. Ohio June 14, 2017), aff'd, 727 F. App'x 829 (6th Cir. 2018) ("a thing that happens after an event cannot logically be said to have caused the event that preceded it"). Finally, remember this is not a claim against the Officers, but the municipality, Shelby County, Tennessee. Even if the Officers violated the deadly force policy by not separating, Plaintiff has not shown a custom of doing this nor has he shown how Defendant knew this conduct occurred, then approved it, much less that this failure to separate was the "moving force" behind Ms. Lewellyn's constitutional violation. As noted above, a municipality can only be liable under Monell if it caused the constitutional violation. Thornton, 727 F. App'x at 838 (citing City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). And Plaintiff provides no evidence to support his claim that Defendant is liable for any constitutional violations here.
III. Ratification of an Unconstitutional Decision
For the first time in these proceedings, Plaintiff raises a ratification argument, alleging that Defendant is liable for the "official ratification of the constitutional violation of Nancy Lewellyn's constitutional rights." (ECF No. 181-1 at PageID 2231.) Plaintiff alleges that, when Sheriff Oldham exonerated the Officers based on the BPSI and TBI investigations, Defendant ratified an unconstitutional shooting. Defendant replied that Plaintiff never asserted this argument in any earlier briefing and that the Court should disregard this claim. (ECF No.187 at PageID 2284-85.) While the Court finds Defendant's argument persuasive, in the interest of thoroughness, it will address this claim.
What Plaintiff alleges is better known as the "single-act theory." See Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion). This means that, in some cases, courts will hold a municipality liable for a single decision and the decision then becomes an official policy. See Flagg v. City of Detroit, 715 F.3d 165, 174-75 (6th Cir. 2013). Flagg explains how "a single decision can constitute a policy, if that decision is made by an official who possesses final authority to establish municipal policy with respect to the action ordered." Id. (quoting Pembaur, 475 U.S. at 480-81, 106 S.Ct. 1292). But a plaintiff must show that the official ratifying the decision can create municipal policy and that their decision is "final and unreviewable." Id. (quoting Miller v. Calhoun Cnty., 408 F.3d 803, 814 (6th Cir. 2005)).
Plaintiff here argues that when Sheriff Oldham reinstated the Officers after the BPSI and TBI investigations, he ratified the Officers' unconstitutional shooting. (ECF No. 181-1 at PageID 2249.) But beyond his blanket allegation, Plaintiff offers no proof that any state or local laws vest Sheriff Oldham, or any other member of the SCSO, with authority to make county policy, or that such policies would be final, and unconstrained by superior officials. See Adair v. Charter County of
Wayne, 452 F.3d 482, 493 (6th Cir. 2006) (quoting Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir. 2001)).
Whether an individual is a final. policymaker "is a question of state or local law, and a showing of policymaking authority typically requires specific evidence that the official's decisions were not subject to review or that the official could set policy related to broad goals." Tlapanco v. Elges, 969 F.3d 638, 658 (6th Cir. 2020) (emphasis added). And the Sixth Circuit has explicitly found that approval of a "single discretionary decision by a subordinate" is insufficient. Young v. Campbell Cnty., Kentucky, 846 F. App'x 314, 331 (6th Cir. 2021) (citing Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir. 1993)). Also, this Court already dismissed Sheriff Oldham from the proceedings (ECF No. 48) and Plaintiff names no other official.
Because Plaintiff argues this theory for the first time in response to the motion for summary judgment, he has waived this claim. But even if he had not waived this claim, the Court finds that, for the reasons listed above, and the lack of evidence about the Sheriff's authority, the ratification claim fails as a matter of law.
CONCLUSION
Based on all the above, the Court GRANTS Defendant's Motion for Summary Judgment.
SO ORDERED, this 6th day of February, 2024.