U.S. District Court Western District of Tennessee (Memphis) CIVIL DOCKET FOR CASE #: 2:13-cv-02117-JPM-dkv

Alerts not yet Supported for this Docket

Lakendus Cole et al v. City Of Memphis, Tennessee et al Date Filed: 02/25/2013

Assigned to: Judge Jon Phipps McCalla

Date Terminated: 08/27/2015

Referred to: Chief Magistrate Judge Diane K. Vescovo Jury Demand: Plaintiff

Case in other court: Sixth Circuit COA, 15-05999

Nature of Suit: 440 Civil Rights:

Sixth Circuit COA, 17-05310

Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff
Lakendus Cole individually and as representatives of all others similarly situated

represented by Bryan Meredith MEREDITH LAW FIRM, PLLC 1661 International Place Dr. Suite 400 Memphis, TN 38120 901-315-0232 Fax: 901-767-4441 Email: bryan@meredithlegal.com ATTORNEY TO BE NOTICED

Emmett Lee Whitwell THE SPENCE LAW FIRM, PLLC 80 Monroe Avenue Garden Suite One Memphis, TN 38103 901-312-9160 Email: lee.whitwell@shelbycountytn.gov ATTORNEY TO BE NOTICED

Robert L.J. Spence , Jr. THE SPENCE LAW FIRM Brinkley Plaza 80 Monroe Avenue Garden Suite One Memphis, TN 38103 901-312-9160 Fax: 901-521-9550 Email: rspence@spence-lawfirm.com ATTORNEY TO BE NOTICED

Plaintiff Leon Edmond individually and as representatives of all others similarly situated
V. Defendant City of Memphis

represented by Bryan Meredith (See above for address) ATTORNEY TO BE NOTICED
Emmett Lee Whitwell (See above for address) ATTORNEY TO BE NOTICED
Robert L.J. Spence , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by J. Michael Fletcher FLETCHER LAW FIRM 2400 Poplar Ave Ste 418 Memphis, TN 38112 901-452-3482 Fax: 901-452-3414 Email: michael@michaelfletcherlawoffice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbaralette G. Davis CITY OF MEMPHIS, CITY ATTORNEY'S OFFICE 125 North Main Street Room 336 Memphis, TN 38103 901-576-6614 Fax: 901-576-6524 Email: barbaralette.davis@memphistn.gov ATTORNEY TO BE NOTICED
Leo Maurice Bearman , Jr. BAKER DONELSON 165 Madison Avenue Suite 2000 Memphis, TN 38103 901-526-2000

Defendant
Robert Forbert individually and in their official capacities as City of Memphis Police Officers

Fax: 901-577-0717 Email: lbearman@bakerdonelson.com ATTORNEY TO BE NOTICED
Lori Hackleman Patterson BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PCMemphis 165 Madison Avenue Suite 2000 Memphis, TN 38103 901-577-8241 Fax: 901-577-0768 Email: lpatterson@bakerdonelson.com ATTORNEY TO BE NOTICED
Zachary B. Busey BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ 165 Madison Avenue Suite 2000 Memphis, TN 38103 901-577-8164 Email: zbusey@bakerdonelson.com ATTORNEY TO BE NOTICED
Zayid A. Saleem CITY OF MEMPHIS 125 N. Main St. Room 336 Memphis, TN 38103 901-576-6614 Fax: 901-576-6524 Email: zayid.saleem@memphistn.gov ATTORNEY TO BE NOTICED
represented by Deborah E. Godwin GODWIN MORRIS LAURENZI & BLOOMFIELD, P.C. Morgan Keegan Tower 50 N. Front St. Ste. 800 Memphis, TN 38103 901-528-1702 Fax: 901-528-0246

Defendant
Samuel Hearn individually and in their official capacities as City of Memphis Police Officers

Email: dgodwin@gmlblaw.com ATTORNEY TO BE NOTICED
John Michael Ryall GODWIN MORRIS LAURENZI & BLOOMFIELD, P.C. Morgan Keegan Tower 50 N. Front St. Ste. 800 Memphis, TN 38103 901-528-1702 Email: jmryall@gmlblaw.com ATTORNEY TO BE NOTICED
Leo Maurice Bearman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Lori Hackleman Patterson (See above for address) ATTORNEY TO BE NOTICED
Mary Elizabeth McKinney GODWIN MORRIS LAURENZI & BLOOMFIELD, P.C. Morgan Keegan Tower 50 N. Front St. Ste. 800 Memphis, TN 38103 901-528-1702 Fax: 901-528-0246 Email: bmckinney@gmlblaw.com ATTORNEY TO BE NOTICED
Zachary B. Busey (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah E. Godwin (See above for address) ATTORNEY TO BE NOTICED
John Michael Ryall (See above for address) ATTORNEY TO BE NOTICED

Defendant Christopher Bing individually and in their official capacities as City of Memphis Police Officers
Defendant John Faircloth individually and in their official

Leo Maurice Bearman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Lori Hackleman Patterson (See above for address) ATTORNEY TO BE NOTICED
Mary Elizabeth McKinney (See above for address) ATTORNEY TO BE NOTICED
Zachary B. Busey (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Elizabeth McKinney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah E. Godwin (See above for address) ATTORNEY TO BE NOTICED
John Michael Ryall (See above for address) ATTORNEY TO BE NOTICED
Leo Maurice Bearman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Lori Hackleman Patterson (See above for address) ATTORNEY TO BE NOTICED
Zachary B. Busey (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah E. Godwin (See above for address)

capacities as City of Memphis Police Officers
Defendant Cari Cooper individually and in their official capacities as City of Memphis Police Officers

ATTORNEY TO BE NOTICED
John Michael Ryall (See above for address) ATTORNEY TO BE NOTICED
Leo Maurice Bearman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Lori Hackleman Patterson (See above for address) ATTORNEY TO BE NOTICED
Mary Elizabeth McKinney (See above for address) ATTORNEY TO BE NOTICED
Zachary B. Busey (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah E. Godwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Ryall (See above for address) ATTORNEY TO BE NOTICED
Leo Maurice Bearman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Lori Hackleman Patterson (See above for address) ATTORNEY TO BE NOTICED
Mary Elizabeth McKinney (See above for address) ATTORNEY TO BE NOTICED
Zachary B. Busey (See above for address)

Defendant
Robert Skelton individually and in their official capacities as City of Memphis Police Officers

ATTORNEY TO BE NOTICED
represented by Deborah E. Godwin (See above for address) ATTORNEY TO BE NOTICED
John Michael Ryall (See above for address) ATTORNEY TO BE NOTICED
Leo Maurice Bearman , Jr. (See above for address) ATTORNEY TO BE NOTICED
Lori Hackleman Patterson (See above for address) ATTORNEY TO BE NOTICED
Mary Elizabeth McKinney (See above for address) ATTORNEY TO BE NOTICED
Zachary B. Busey (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/25/2013
02/25/2013 02/25/2013

# Docket Text
1 COMPLAINT for Damages and Injunctive Relief for the Deprivation of Constitutional Rights against All Defendants (Filing fee $ 350 receipt number 0651-1649335), filed by Leon Edmond, Lakendus Cole. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(Spence, Robert) (Entered: 02/25/2013)
2 Chief Judge Jon Phipps McCalla and Magistrate Judge Diane K. Vescovo added. (ac) (Entered: 02/25/2013)
3 Summons Issued as to City of Memphis. The filer has been notified electronically that the summons has been issued, and the new docket entry reflects this. Upon notification of the new docket entry, the filer is to print the issued summons in order to effect service. (Attachments: # 1 Summons for Christopher Bing, # 2 Summons for Cari Cooper, # 3 Summons for Samuel Hearn, # 4 Summons for robert Forbert, # 5 Summons for John Faircloth, # 6 Summons for Robert Skelton)(ac) (Entered: 02/25/2013)

03/29/2013 04/02/2013 04/04/2013 04/10/2013 04/11/2013 05/03/2013
05/08/2013 05/09/2013 05/16/2013 05/28/2013 05/28/2013 05/31/2013

4 SUMMONS Returned Executed by Leon Edmond, Lakendus Cole as to City Of Memphis, Tennessee;. (Spence, Robert) (Entered: 03/29/2013)
5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by John Faircloth, Robert Forbert. (Attachments: # 1 Memorandum In Support of Motion to Dismiss)(McKinney, Mary) (Entered: 04/02/2013)
6 ANSWER to 1 Complaint, by Cari Cooper.(Godwin, Deborah) (Entered: 04/04/2013)
7 RESPONSE in Opposition re 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 04/10/2013)
8 ANSWER to 1 Complaint, by City Of Memphis, Tennessee;.(Fletcher, J.) (Entered: 04/11/2013)
9 SETTING LETTER: Scheduling Conference set for 6/20/2013 09:30 AM in Courtroom 5 - Memphis before Magistrate Judge Diane K. Vescovo. Please email the proposed joint scheduling order to ECF_Judge_Vescovo@tnwd.uscourts.gov by Friday, 6/14/2013. Reminder: FRCP 26(f) requires a 26(f) report to be filed with the court at least seven days before the scheduling conference. If the proposed order is approved and filed and the 26(f) report has been docketed, the conference will be canceled. NOTE: Revised Scheduling Order (Rev. 3/12) form and scheduling conference instructions on Judge Vescovo's page at www.tnwd.uscourts.gov.(crk) (Entered: 05/03/2013)
10 NOTICE by Lakendus Cole, Leon Edmond of Service of Plaintiffs' First Set of Interrogatories and Request for Production of Documents Propounded to City of Memphis (Spence, Robert) (Entered: 05/08/2013)
11 NOTICE by Lakendus Cole, Leon Edmond of Service of Second Request for Production of Documents to Defendant City of Memphis (Spence, Robert) (Entered: 05/09/2013)
12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Christopher Bing. (Attachments: # 1 Memorandum)(McKinney, Mary) (Entered: 05/16/2013)
13 RESPONSE in Opposition re 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM of Christopher Bing filed by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 05/28/2013)
14 NOTICE of Appearance by John Michael Ryall on behalf of Christopher Bing, Cari Cooper, John Faircloth, Robert Forbert, Samuel Hearn, Robert Skelton (Ryall, John Michael) (Entered: 05/28/2013)
15 SUMMONS Returned Executed by Leon Edmond, Lakendus Cole as to Christopher Bing. (Spence, Robert) (Entered: 05/31/2013)

05/31/2013 05/31/2013 05/31/2013 05/31/2013 05/31/2013 05/31/2013 06/04/2013 06/06/2013 06/14/2013 06/14/2013 06/17/2013 06/17/2013 06/18/2013 06/25/2013
07/10/2013

16 SUMMONS Returned Executed by Leon Edmond, Lakendus Cole as to Cari Cooper. (Spence, Robert) (Entered: 05/31/2013)
17 SUMMONS Returned Executed by Leon Edmond, Lakendus Cole as to John Faircloth. (Spence, Robert) (Entered: 05/31/2013)
18 SUMMONS Returned Executed by Leon Edmond, Lakendus Cole as to Samuel Hearn. (Spence, Robert) (Entered: 05/31/2013)
19 SUMMONS Returned Executed by Leon Edmond, Lakendus Cole as to Robert Skelton. (Spence, Robert) (Entered: 05/31/2013)
20 SUMMONS Returned Executed by Leon Edmond, Lakendus Cole as to Robert Forbert. (Spence, Robert) (Entered: 05/31/2013)
21 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Samuel Hearn. (Attachments: # 1 Memorandum In Support of Motion To Dismiss)(McKinney, Mary) (Entered: 05/31/2013)
22 ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jon Phipps McCalla on 06/04/2013. (McCalla, Jon) (Entered: 06/04/2013)
23 ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jon Phipps McCalla on 06/06/2013. (McCalla, Jon) (Entered: 06/06/2013)
24 REPORT of Rule 26(f) Planning Meeting. (Spence, Robert) (Entered: 06/14/2013)
25 ANSWER to 1 Complaint, by Robert Skelton.(Godwin, Deborah) (Entered: 06/14/2013)
26 SCHEDULING ORDER: Entry of this order cancels the conference set 6/20/2013. Signed by Magistrate Judge Diane K. Vescovo on 6/17/2013. (Vescovo, Diane) (Entered: 06/17/2013)
Set Deadlines/Hearings: Amended Pleadings due by 8/27/2013. Discovery due by 3/2/2014. Joinder of Parties due by 8/27/2013. Dispositive Motions due by 8/30/2014 per #26. (jml) (Entered: 06/28/2013)
27 ANSWER to 1 Complaint, by Christopher Bing, John Faircloth, Robert Forbert, Samuel Hearn.(Godwin, Deborah) (Entered: 06/18/2013)
28 SETTING LETTER: Jury Trial set for 1/20/2015 09:30 AM in Courtroom 1 - Memphis before Chief Judge Jon Phipps McCalla. Pretrial Conference set for 1/12/2015 09:00 AM in Courtroom 1 - Memphis before Chief Judge Jon Phipps McCalla. Proposed Pretrial Order due by 1/5/2015. (jpw) (Entered: 06/25/2013)
29 ORDER granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jon Phipps McCalla on

08/27/2013 08/28/2013 11/27/2013 11/27/2013 11/27/2013 11/27/2013 11/27/2013 12/10/2013 12/10/2013
12/13/2013 12/18/2013
01/07/2014 01/09/2014

07/10/2013. (McCalla, Jon) (Entered: 07/10/2013)
30 MOTION to Compel and to Enlarge Scheduling Order Deadline and Memorandum in Support (proposed order submitted) by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 08/27/2013)
31 ORDER granting 30 Motion to Compel and to Enlarge Scheduling Order Deadline. Signed by Judge Jon Phipps McCalla on 08/28/2013. (McCalla, Jon) (Entered: 08/28/2013)
32 ANSWER to Interrogatories from City of Memphis by Lakendus Cole, Leon Edmond.(Spence, Robert) (Entered: 11/27/2013)
33 RESPONSE to Discovery Request from City of Memphis by Lakendus Cole, Leon Edmond.(Spence, Robert) (Entered: 11/27/2013)
34 RESPONSE to Discovery Request from City of Memphis by Lakendus Cole, Leon Edmond.(Spence, Robert) (Entered: 11/27/2013)
35 AFFIDAVIT of Justin Hipner by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 11/27/2013)
36 MOTION to Certify Class (proposed order submitted) by Lakendus Cole, Leon Edmond. (Attachments: # 1 Memorandum, # 2 Exhibit 1)(Spence, Robert) (Entered: 11/27/2013)
37 MOTION for Extension of Time to File Response/Reply as to 36 MOTION to Certify Class (proposed order submitted) by City Of Memphis, Tennessee;. (Fletcher, J.) (Entered: 12/10/2013)
38 ORDER granting 37 Motion for Extension of Time to File Response/Reply as to 36 MOTION to Certify Class. Responses due by 12/20/2013. Signed by Judge Jon Phipps McCalla on 12/10/2013. (McCalla, Jon) (Entered: 12/10/2013)
39 SETTING LETTER: Telephonic Hearing re: 36 Plaintiff's Motion for Class Certification set for 1/9/2014 09:30 AM before Judge Jon Phipps McCalla. (jpw) (Entered: 12/13/2013)
40 RESPONSE in Opposition re 36 MOTION to Certify Class (proposed order submitted) filed by City Of Memphis, Tennessee;. (Attachments: # 1 Affidavit Affidavit of Dep. Chief Arley Knight, # 2 Exhibit WATN-TV article)(Fletcher, J.) (Entered: 12/18/2013)
41 AFFIDAVIT of Isaac Singleton by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit A)(Spence, Robert) (Entered: 01/07/2014)
42 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Hearing re: 36 Plaintiff's Motion for Class Certification held on 1/9/2014. Motion heard and taken under advisement. Order to be entered. (for Plaintiff: Robert Spence, Jr., Brian Meredith) (for Defense: J. Michael Fletcher, Mary Elizabeth McKinney) (Court Reporter: Brenda Parker)

01/14/2014 01/31/2014 02/03/2014 02/07/2014 02/11/2014 02/11/2014 02/12/2014 02/14/2014
02/14/2014
02/17/2014 02/18/2014

(jpw) (Entered: 01/09/2014)
43 NOTICE of Appearance by Bryan Meredith on behalf of Lakendus Cole, Leon Edmond (Meredith, Bryan) (Entered: 01/14/2014)
44 MOTION for Extension of Time to Complete Discovery proposed order submitted by All Defendants. (Fletcher, J.) (Entered: 01/31/2014)
45 ORDER REFERRING MOTION: 44 MOTION for Modification of Scheduling Order Extending Time for Written Discovery. Signed by Judge Jon Phipps McCalla on 02/03/2014. (McCalla, Jon) (Entered: 02/03/2014)
46 RESPONSE in Opposition re 44 MOTION for Extension of Time to Complete Discovery proposed order submitted filed by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 02/07/2014)
47 NOTICE to Take Deposition of Lakendus Cole by Christopher Bing, Cari Cooper, John Faircloth, Robert Forbert, Samuel Hearn, Robert Skelton.(McKinney, Mary) (Entered: 02/11/2014)
48 NOTICE to Take Deposition of Leon Edmond by Christopher Bing, Cari Cooper, John Faircloth, Robert Forbert, Samuel Hearn, Robert Skelton.(McKinney, Mary) (Entered: 02/11/2014)
49 SETTING LETTER: Telephone Discovery Conference set for 2/14/2014 01:45 PM before Magistrate Judge Diane K. Vescovo. The call-in number is 877-336-1828; the access code is 1623522, and the security code is 2117.(crk) (Entered: 02/12/2014)
50 ORDER granting in part and denying in part 44 Motion of Defendants for Modification of Scheduling Order to Extend TIme to Complete Written Discovery and Order Extending Time to Complete Fact Depositions. Signed by Magistrate Judge Diane K. Vescovo on 2/14/2014. (Vescovo, Diane) (Entered: 02/14/2014)
52 Minute Entry for proceedings held before Magistrate Judge Diane K. Vescovo: Telephonic Discovery Hearing held on 2/14/2014. The Court addressed the Defendants Motion for Extension of Time to Complete Discovery (DE#44). The Court heard from the parties regarding the proposed dates. Discovery Deposition deadline set 3/31/2014. The Court to enter Order. Motion is withdrawn by the Defendant. (Plaintiffs Counsel: Bryan Meredith & Robert Spence. Defendants Counsel: Michael Fletcher & Mary McKinney.) (Tape #FTR) (cas) (Entered: 02/18/2014)
51 NOTICE by Lakendus Cole, Leon Edmond to Take the Deposition of FRCP Rule 30(b)(6) Corporate Representative Of Defendant City of Memphis (Spence, Robert) (Entered: 02/17/2014)
53 NOTICE to Take Deposition of Lakendus Cole by Christopher Bing, Cari Cooper, John Faircloth, Robert Forbert, Samuel Hearn, Robert Skelton.(McKinney, Mary) (Entered: 02/18/2014)

03/06/2014 03/13/2014 03/13/2014 03/17/2014 03/26/2014 03/26/2014 03/26/2014
03/27/2014 04/09/2014

54 NOTICE to Take Deposition of Leon Edmond by All Defendants.(McKinney, Mary) (Entered: 03/06/2014)
55 NOTICE by Lakendus Cole, Leon Edmond to Take Audiovisual Depositions of Indiviual Defendants and Certain Other Police Officers of the City of Memphis (Spence, Robert) (Entered: 03/13/2014)
56 MOTION to Compel Defendant City of Memphis by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Spence, Robert) (Entered: 03/13/2014)
57 ORDER REFERRING MOTION: 56 MOTION to Compel Defendant City of Memphis filed by Leon Edmond, Lakendus Cole. Signed by Judge Jon Phipps McCalla on 03/17/2014. (McCalla, Jon) (Entered: 03/17/2014)
58 RESPONSE in Opposition re 56 MOTION to Compel Defendant City of Memphis proposed order submitted filed by City Of Memphis, Tennessee. (Attachments: # 1 Affidavit Affidavit of Ruth Murray)(Fletcher, J.) (Entered: 03/26/2014)
59 DEPOSITION of Arley Knight, The FRCP Rule 30(b)(6) Corporate Representative of Defendant City of Memphis taken on February 21, 2014 by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Spence, Robert) (Entered: 03/26/2014)
60 MOTION to Strike THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAINT AND DEEM THESE PARAGRAPHS ADMITTED FOR ALL PURPOSES IN THESE PROCEEDINGS AND MEMORANDUM IN SUPPORT THEREOF (proposed order submitted) by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 03/26/2014)
61 NOTICE of Hearing on Motion 56 MOTION to Compel Defendant City of Memphis: Motion Hearing set for 4/10/2014 01:00 PM in Courtroom 5 Memphis before Magistrate Judge Diane K. Vescovo. (Vescovo, Diane) (Entered: 03/27/2014)
62 RESPONSE in Opposition re 60 MOTION to Strike THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAINT AND DEEM THESE PARAGRAPHS ADMITTED ,proposed order submitted, filed by City Of Memphis, Tennessee. (Attachments: # 1 Exhibit Excerpts of Deposition of Lakendus Cole, # 2 Exhibit Excerpts of Deposition of Leon Edmond, # 3 Exhibit AGI Realty Service Group, Inc. v Red Robin International, Inc.)(Fletcher, J.)

04/09/2014 04/10/2014
04/11/2014 04/11/2014
04/14/2014 04/15/2014
04/18/2014 04/30/2014 05/01/2014

(Entered: 04/09/2014)
63 Notice of Correction to 62 Response in Opposition to Motion,, . (Fletcher, J.) (Entered: 04/09/2014)
64 Minute Entry for proceedings held before Magistrate Judge Diane K. Vescovo: Hearing on Plaintiff's Motion to Compel (DE#56) held on 4/10/2014. Counsel for the parties present. The Court heard from the parties on the status of the issues raised in the Motion. The Court then heard argument on the remaining issues. Defendant is to produce record of arrest by 4/25/2014. The Court will award no fees at this time. Plaintiff is to draft Order, circulate to counsel and submit to the Court for final approval and entry. (Plaintiffs Counsel: Robert Spence, Jr. & Bryan Meredith. Defense Counsel: Michael Fletcher, Zayid Saleem and Elizabeth McKinney.) (Court Reporter: Saprena Curry) (cas) (Entered: 04/10/2014)
65 NOTICE by Lakendus Cole, Leon Edmond to Take the Deposition of Salman Saeed, M.D. (Spence, Robert) (Entered: 04/11/2014)
66 MOTION for Leave to File REPLY TO THE CITYS RESPONSE TO PLAINTIFFS MOTION TO STRIKE THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAINT AND DEEM THESE PARAGRAPHS ADMITTED FOR ALL PURPOSES IN THESE PROCEEDINGS AND MEMORANDUM IN SUPPORT THEREOF (proposed order submitted) by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 04/11/2014)
67 ORDER granting 66 Motion for Leave to File Reply. Signed by Judge Jon Phipps McCalla on 04/14/2014. (McCalla, Jon) (Entered: 04/14/2014)
68 REPLY to Response to Motion re 62 Response in Opposition to Motion,, to Strike THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAIN T AND DEEM THESE PARAGRAPHS ADMITTED filed by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit A)(Spence, Robert) (Entered: 04/15/2014)
69 ORDER granting in part and denying in part 56 Plaintiffs' Motion to Compel. Signed by Magistrate Judge Diane K. Vescovo on 4/18/2014. (Vescovo, Diane) (Entered: 04/18/2014)
70 MOTION to Extend Deadline of Scheduling Order (proposed order submitted) by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 04/30/2014)
71 ORDER granting 70 Motion for Extension of Scheduling Order Deadlines.

05/12/2014 05/15/2014 05/27/2014 05/29/2014
06/03/2014 06/04/2014 06/04/2014

Signed by Judge Jon Phipps McCalla on 05/01/2014. (McCalla, Jon) (Entered: 05/01/2014)
72 NOTICE by City of Memphis re 69 Order on Motion to Compel Notice of Production of Documents In Compliance with Order of Court (69) (Attachments: # 1 Affidavit of Ruth Murray, # 2 Affidavit of James Perry)(Fletcher, J.) (Entered: 05/12/2014)
73 MOTION to Compel DEFENDANT CITY OF MEMPHIS TO FILE AN AFFIDAVIT CONFIRMING THAT IT HAS PRODUCED ALL ELECTRONICALLY STORED INFORMATION RESPONSIVE TO PLAINTIFFS DISCOVERY (proposed Order submitted) by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Spence, Robert) (Entered: 05/15/2014)
74 STIPULATION and Agreed Protective Order Governing Production of ATF Report of Investigation by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 05/27/2014)
75 RESPONSE in Opposition re 73 MOTION to Compel DEFENDANT CITY OF MEMPHIS TO FILE AN AFFIDAVIT CONFIRMING THAT IT HAS PRODUCED ALL ELECTRONICALLY STORED INFORMATION RESPONSIVE TO PLAINTIFFS DISCOVERY (proposed Order submitted) filed by City of Memphis. (Attachments: # 1 Exhibit Ex. A May 13-15 emails, # 2 Exhibit Ex. B City Attorney OPN010.01, # 3 Exhibit Report of Searches of Electronically Stored Information)(Fletcher, J.) (Entered: 05/29/2014)
76 ORDER REFERRING MOTION: 73 MOTION to Compel DEFENDANT CITY OF MEMPHIS TO FILE AN AFFIDAVIT CONFIRMING THAT IT HAS PRODUCED ALL ELECTRONICALLY STORED INFORMATION RESPONSIVE TO PLAINTIFFS DISCOVERY (proposed Order submitted) filed by Leon Edmond, Lakendus Cole. Signed by Judge Jon Phipps McCalla on 06/03/2014. (McCalla, Jon) (Entered: 06/03/2014)
77 NOTICE of Hearing on Motion 73 MOTION to Compel DEFENDANT CITY OF MEMPHIS TO FILE AN AFFIDAVIT CONFIRMING THAT IT HAS PRODUCED ALL ELECTRONICALLY STORED INFORMATION RESPONSIVE TO PLAINTIFFS DISCOVERY: Motion Hearing set for 6/12/2014 09:30 AM in Courtroom 5 - Memphis before Magistrate Judge Diane K. Vescovo. (crk) (Entered: 06/04/2014)
78 ORDER REFERRING MOTION: 60 MOTION to Strike THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAINT AND DEEM THESE PARAGRAPHS ADMITTED filed by Leon Edmond, Lakendus Cole. Signed by Judge Jon Phipps McCalla on 06/04/2014. (McCalla, Jon) (Entered:

06/05/2014
06/12/2014
06/16/2014 06/17/2014 06/17/2014

06/04/2014)
79 NOTICE of Hearing on Motion 60 MOTION to Strike THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAINT AND DEEM THESE PARAGRAPHS ADMITTED, in addition to 73 MOTION to Compel DEFENDANT CITY OF MEMPHIS TO FILE AN AFFIDAVIT CONFIRMING THAT IT HAS PRODUCED ALL ELECTRONICALLY STORED INFORMATION RESPONSIVE TO PLAINTIFFS DISCOVERY: Hearing on both motions set for 6/12/2014 09:30 AM in Courtroom 5 Memphis before Magistrate Judge Diane K. Vescovo. (crk) (Entered: 06/05/2014)
80 Minute Entry for proceedings held before Magistrate Judge Diane K. Vescovo: Motion Hearing held on 6/12/2014 re 60 MOTION to Strike THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAINT AND DEEM THESE PARAGRAPHS ADMITTED filed by Leon Edmond, Lakendus Cole and 73 MOTION to Compel DEFENDANT CITY OF MEMPHIS TO FILE AN AFFIDAVIT CONFIRMING THAT IT HAS PRODUCED ALL ELECTRONICALLY STORED INFORMATION RESPONSIVE TO PLAINTIFFS DISCOVERY filed by Leon Edmond, Lakendus Cole. Counsel for the parties present. The Court gave an opening statement to the parties. The Court heard agrument from the parties and will enter the Order on the Motions. (Plaintiffs Counsel: Robert Spence & Bryan Meredith. Defendants Counsel: Michael Fletcher & Zayid Saleem.)(Court Reporter: Mark Dodson.) (cas) (Entered: 06/12/2014)
81 ORDER granting in part and denying in part 73 Plaintiffs' Motion to Compel Defendant City of Memphis to File an Affidavit Confirming that it has Produced All Electronically Stored Information Responsive to Plaintiffs' Discovery. Signed by Magistrate Judge Diane K. Vescovo on 6/16/2014. (Vescovo, Diane) (Entered: 06/16/2014)
82 NOTICE to Take Deposition of Gabriel Lawson by Lakendus Cole, Leon Edmond.(Spence, Robert) (Entered: 06/17/2014)
83 AMENDED ORDER REFERRING MOTION: 60 MOTION to Strike THE AFFIDAVIT OF DEPUTY CHIEF ARLEY KNIGHT, TO SUPPLEMENT THE MOTION FOR CLASS CERTIFICATION AND TO GRANT THE MOTION, AND TO STRIKE THE CITYS ANSWERS TO PARAGRAPHS 24, 25 AND 26 OF THE COMPLAINT AND DEEM THESE PARAGRAPHS ADMITTED filed by Leon Edmond, Lakendus Cole. Signed by Judge Jon Phipps McCalla on 06/17/2014. (McCalla, Jon)

06/18/2014 06/30/2014 07/07/2014
07/14/2014 09/29/2014 10/16/2014 10/17/2014 10/23/2014 10/27/2014

(Entered: 06/17/2014)
84 ORDER granting in part and denying in part 60 Motion to Strike and Report and Recommendation on Plaintiff's Motion to Grant Motion for Class Certification as Sanction. Signed by Magistrate Judge Diane K. Vescovo on 6/18/2014. (Vescovo, Diane) (Entered: 06/18/2014)
85 MEMORANDUM in Support re 36 MOTION to Certify Class (proposed order submitted) Supplemental Memorandum filed by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit A)(Spence, Robert) (Entered: 06/30/2014)
86 RESPONSE in Opposition re 36 MOTION to Certify Class (proposed order submitted) and Supplemental Memornadum in Support of Motion to Certify Class filed by City of Memphis. (Attachments: # 1 Affidavit Affidavit of Ken Johnson, P.E., # 2 Exhibit Ex. 1 excerpts from deposition of L. Cole, # 3 Exhibit Ex. 2 excerpts from deposition of M. Williams, # 4 Exhibit Ex. 3 excerpts from deposition of L. Edmond, # 5 Exhibit Ex. 4 excerpts of deposition of C. Cooper, # 6 Exhibit Ex. 5 excerpts from deposition of R. Skelton, # 7 Exhibit Ex. 6 excerpts from deposition of J. Casad, # 8 Exhibit Ex. 7 excerpts from deposition of C. Bing)(Fletcher, J.) (Entered: 07/07/2014)
87 REPLY to Response to Motion re 86 Response in Opposition to Motion,, Supplemental Reply Memorandum in Support of Motion for Class Certification filed by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Spence, Robert) (Entered: 07/14/2014)
88 ORDER granting in part and denying in part 36 Motion to Certify Class. Signed by Judge Jon Phipps McCalla on 09/29/2014. (McCalla, Jon) (Entered: 09/29/2014)
89 MOTION for Extension of Time to File Dispositive Motions (Proposed Order Submitted) by Christopher Bing, Cari Cooper, John Faircloth, Robert Forbert, Samuel Hearn, Robert Skelton. (McKinney, Mary) (Entered: 10/16/2014)
90 ORDER GRANTING 89 Motion for Extension of Time to File. Signed by Judge Jon Phipps McCalla on 10/17/14. (Jon P. McCalla) (Entered: 10/17/2014)
91 NOTICE of Voluntary Dismissal by Lakendus Cole, Leon Edmond (Spence, Robert) (Entered: 10/23/2014)
92 MOTION for Summary Judgment proposed order submitted by City of Memphis. (Attachments: # 1 Exhibit Statement of Undisputed Facts, # 2 Memorandum Memorandum in Support of Motion for Summary Judgment, # 3 Exhibit Memphis City Council Resolution, # 4 Exhibit Memphis City Code Citations, # 5 Affidavit Affidavit of Paul Morris,

10/27/2014 10/27/2014 11/24/2014 11/24/2014 11/24/2014 11/24/2014 11/25/2014

# 6 Affidavit Affidavit of James Howell, # 7 Affidavit Affidavit of Cindy Wilson, # 8 Exhibit Excerpts from Depostion of Skelton, # 9 Affidavit Affidavit of Michael Williams, # 10 Exhibit Referenced MPD Rules, # 11 Affidavit Affidavit of Mark Winters, # 12 Exhibit MPD Policies and Procedures Chap I, sec. 2)(Fletcher, J.) (Entered: 10/27/2014)
93 ORDER DISMISSING WITH PREJUDICE Plaintiffs' Claims Against Robert Forbert, Samuel Hearn, Christopher Bing, John Faircloth, Cari Cooper, and Robert Skelton, in Their Individual Capacities re 91 Notice of Voluntary Dismissal filed by Leon Edmond, Lakendus Cole. Signed by Judge Jon Phipps McCalla on 10/27/2014. (McCalla, Jon) (Entered: 10/27/2014)
94 MOTION for Summary Judgment by Lakendus Cole, Leon Edmond. (Attachments: # 1 Memorandum, # 2 Exhibit Statement of Facts, # 3 Exhibit Exhibit A to Statement of Facts)(Spence, Robert) (Entered: 10/27/2014)
95 RESPONSE in Opposition re 94 MOTION for Summary Judgment filed by City of Memphis. (Attachments: # 1 Exhibit Response of Defendant City of Memphis to Plaintiffs' Statement of Undisputed Material Facts, # 2 Exhibit Deposition of Justin Hipner)(Fletcher, J.) (Entered: 11/24/2014)
96 MOTION to Strike 92 MOTION for Summary Judgment proposed order submitted Plaintiffs' Motion to Strike Affidavits of Paul Morris, Major James Howell, Cindy Wilson, Lt. Colonel Michael Williams, Jr., and Ken Johnson (proposed order submitted) by All Plaintiffs. (Attachments: # 1 Memorandum in Support)(Spence, Robert) (Entered: 11/24/2014)
97 RESPONSE in Opposition re 92 MOTION for Summary Judgment proposed order submitted Plaintiffs' Response in Opposition to City of Memphis' Motion for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Spence, Robert) (Entered: 11/24/2014)
98 ATTACHMENT Plaintiffs' Response to Defendant City of Memphis' Statement of Undisputed Facts to 92 MOTION for Summary Judgment proposed order submitted, 97 Response in Opposition to Motion, by Lakendus Cole, Leon Edmond.. (Spence, Robert) (Entered: 11/24/2014)
99 ORDER REFERRING FOR DETERMINATION 96 MOTION to Strike 92 MOTION for Summary Judgment proposed order submitted Plaintiffs' Motion to Strike Affidavits of Paul Morris, Major James Howell, Cindy Wilson, Lt. Colonel Michael Williams, Jr., and Ken Johnson (proposed orde filed by Leon Edmond, Lakendus Cole. Signed by Judge Jon Phipps McCalla on 11/25/2014. (McCalla, Jon) (Entered:

12/03/2014
12/08/2014 12/11/2014 12/18/2014
12/19/2014 12/19/2014 12/23/2014

11/25/2014)
100 RESPONSE in Opposition re 96 MOTION to Strike 92 MOTION for Summary Judgment proposed order submitted Plaintiffs' Motion to Strike Affidavits of Paul Morris, Major James Howell, Cindy Wilson, Lt. Colonel Michael Williams, Jr., and Ken Johnson (proposed orde filed by City of Memphis. (Attachments: # 1 Exhibit Ex. A Initial Disclosures by Defendant Officers, # 2 Exhibit Ex. B Rule 26(a) Initial Disclosures of City, # 3 Exhibit Ex. C City of Memphis Answer to Interrogatory No. 1, # 4 Exhibit Ex. D Excerpt From Cole Deposition)(Fletcher, J.) (Entered: 12/03/2014)
101 REPLY to Response to Motion re 97 Response in Opposition to Motion, filed by City of Memphis. (Attachments: # 1 Exhibit Response to Plaintiffs' Response to Statement of Undisputed Material Facts, # 2 Exhibit Excerpt from Deposition of Samuel Hearn)(Fletcher, J.) (Entered: 12/08/2014)
102 NOTICE of Hearing on Motion 96 Plaintiffs' Motion to Strike Affidavits of Paul Morris, Major James Howell, Cindy Wilson, Lt. Colonel Michael Williams, Jr., and Ken Johnson: Motion Hearing set for 12/18/2014 02:00 PM in Courtroom 5 - Memphis before Chief Magistrate Judge Diane K. Vescovo. (crk) (Entered: 12/11/2014)
103 Minute Entry for proceedings held before Chief Magistrate Judge Diane K. Vescovo: Hearing held on 12/18/2014 re 96 Plaintiff's MOTION to Strike Affidavits of Paul Morris, Major James Howell, Cindy Wilson, Lt. Colonel Michael Williams, Jr., and Ken Johnson. Counsel for the parties present. After hearing from the parties on the issues raised in the Motion the Court made the following ruling: The Motion is DENIED as to the Affidavits of Cindy Wilson, Maj. James Howell, Lt. Col. Michael Williams, Jr. The Motion is GRANTED as to Paul Morris and DEFERRED as to Ken Johnson. The Court will enter an Order. (Plaintiffs Counsel: Robert Spence. Defendants Counsel: J. Michael Fletcher. (Court Reporter : Lynn Dudley.) (cas) (Entered: 12/18/2014)
104 NOTICE of Appearance by Emmett Lee Whitwell on behalf of All Plaintiffs (Whitwell, Emmett) (Entered: 12/19/2014)
105 ORDER granting in part and denying in part 96 Motion to Strike. Signed by Chief Magistrate Judge Diane K. Vescovo on 12/19/2014. (Vescovo, Diane) (Entered: 12/19/2014)
106 RESPONSE to Motion re 92 MOTION for Summary Judgment proposed order submitted SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS FRCP RULE 56 OBJECTION TO THE AFFIDAVITS OF JAMES HOWELL AND KEN JOHNSON filed by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 12/23/2014)

12/29/2014
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107 RESPONSE in Opposition re 92 MOTION for Summary Judgment proposed order submitted to Plaintiffs' Objection to Affidavits of James Howell and Ken Johnson 106 filed by City of Memphis. (Fletcher, J.) (Entered: 12/29/2014)
108 NOTICE of Appearance by Zayid A. Saleem on behalf of City of Memphis (Saleem, Zayid) (Entered: 01/05/2015)
109 MOTION in Limine Plaintiffs' Motion in Limine No. 1 to Exclude Sympathy Arguments by the Defendants (proposed order submitted) by All Plaintiffs. (Spence, Robert) (Entered: 01/06/2015)
110 MOTION in Limine Plaintiffs' Motion in Limine No. 2 to Exclude Robert Spence as a Trial Witness (proposed order submitted) by All Plaintiffs. (Spence, Robert) (Entered: 01/06/2015)
111 MOTION in Limine Plaintiffs' Motion in Limine No. 3 to Exclude Criminal History of Witness Darnell Tennial (proposed order submitted) by All Plaintiffs. (Attachments: # 1 Exhibit A - Tennial Deposition)(Spence, Robert) (Entered: 01/06/2015)
112 RESPONSE in Opposition re 110 MOTION in Limine Plaintiffs' Motion in Limine No. 2 to Exclude Robert Spence as a Trial Witness (proposed order submitted) filed by City of Memphis. (Fletcher, J.) (Entered: 01/10/2015)
113 NOTICE by Lakendus Cole, Leon Edmond Plaintiffs' Notice of Video Deposition of Eric R. Shapiro (Spence, Robert) (Entered: 01/10/2015)
114 MOTION in Limine To Exclude Certain "May Call" Witnesses by City of Memphis. (Fletcher, J.) (Entered: 01/11/2015)
115 NOTICE by Lakendus Cole, Leon Edmond re 113 Notice (Other) Plaintiffs' Amended Notice of Videotape Deposition of Eric R. Shapiro (Spence, Robert) (Entered: 01/12/2015)
116 Notice of Eligibility for Participation in Cameras in the Courtroom Pilot Project. Signed by Judge Jon Phipps McCalla on 1/12/2015. (McCalla, Jon) (Entered: 01/12/2015)
117 NOTICE by Lakendus Cole, Leon Edmond re 116 Order Plaintiffs' Notice of Non-Consent to Participate in Cameras in the Courtroom Project (Spence, Robert) (Entered: 01/13/2015)
118 NOTICE by City of Memphis Cross-Designation of Portions of Deposition of Arley Knight (Fletcher, J.) (Entered: 01/14/2015)
119 DEPOSITION of Arley Knight taken on 2/21/2014 by Lakendus Cole, Leon Edmond. (Attachments: # 1 Exhibit A, Part I, # 2 Exhibit A, Part II)(Spence, Robert) (Entered: 01/16/2015)
120 ORDER to Produce Documents. Signed by Judge Jon Phipps McCalla on 1/16/2015. (McCalla, Jon) (Main Document 120 replaced on 1/21/2015)

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(mlk). (Entered: 01/16/2015)
121 ORDER granting in part and denying in part 92 Defendant City of Memphis' Motion for Summary Judgment. Signed by Judge Jon Phipps McCalla on 1/18/2015. (McCalla, Jon) (Entered: 01/18/2015)
122 DEPOSITION of Lakendus Cole taken on 03/05/2014 by City of Memphis.(Fletcher, J.) (Entered: 01/19/2015)
123 DEPOSITION of Darnell Tennial taken on 03/05/2014 by City of Memphis.(Fletcher, J.) (Entered: 01/19/2015)
124 DEPOSITION of Leon Edmond taken on 03/24/2014 by City of Memphis.(Fletcher, J.) (Entered: 01/19/2015)
125 Minute Entry for Civil Jury Trial (Day 1) held before Judge Jon Phipps McCallaJury Trial held on 1/20/2015. Preliminary Matters and Motions in Limine addressed. Voir Dire oath given to panel. Voir Dire by the Court and counsel. Empanelment oath given. The Court provides Preliminary Jury Instructions. Opening Statments made. Plfts. begins proof by calling Justin Hibner, Exhibit 1 & 2. Court adjourned for the day to return tomorrow at 9:00 A.M. ATTYS: Plft. Robert Spence, Jr., Bryan Meredith - J. Michael Fletcher, Zayid Saleem (Court Reporter Lynn Dudley) (mlk) (Entered: 01/21/2015)
126 Minute Entry for Continuation of Civil Jury Trial (Day 2) held before Judge Jon Phipps McCalla on 1/21/2015. Plft resumes proof by calling: Isaac Singleton, Ex 3-5; Maimillian Hurst; Jarrell Williams; Eric Lee; Director Arley Knignt, Ex. 6-7; Brian Falatko, Mitchell Williams, LaKendus Cole, Ex 8-12. Jurors dismissed for the day to return on 1/22/15 at 9:00 A.M. The Court takes up the matter of Motion in Limine to to Exclude the evidence of Mr. Spence from Testifying; Granted. ATTYS: Plft. Robert Spence, Jr., Bryan Meredith -- Deft. J. Michael Fletcher, Zayid Saleem. (Court Reporter Karla Seely.) (mlk) (Entered: 01/21/2015)
127 Minute Entry for Continuation of Civil Jury Trial (Day 3) held before Judge Jon Phipps McCalla on 1/22/2015. Outside of the Jury, the Court and Parties address a possible concern with Juror No. 2. The Parties agree the concern is not an issue. Jury enters court and Plft resumes proof by calling: Darnell Tennial; Tangala Jarrett; Derric Seamore; Leon Edmond, Exs. 13-15. Plft rests. Deft Motion for Directed Verdict as to Leon Edmond. The Court takes the matter under advisement. Deft begins proof by calling Chris Bing; Robert Skelton; Cynthia Wilson; Cari Cooper; Evertina Halfacre; John Cased, John Faircloth; Randall Tatum; James Howell. Deft rests. Plft rebuttal proof: Leon Edmond. Jury dismissed for day to return tomorrow at 9:00 A.M. Jury charge Conference held by the Court. ATTYS: Plft Robert Spence, Jr., Bryan Meredith -- Michael Fletcher, Zayid Saleem (Court Reporter Valerie Gilliman, Alpha.) (mlk) (Entered: 01/22/2015) (Entered: 01/22/2015)

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01/29/2015 01/29/2015 01/29/2015

128 Minute Entry for Continuation of Civil Jury Trial (Day 4) held before Judge Jon Phipps McCalla on 01/23/2015. The jury appeared for the day and were excused until Monday, January 26, 2015 at 8:30 AM at which time the trial will resume with closing arguments. Jury Charge Conference held outside the presence of the jury - parties discussed jury charge and verdict form. (Plaintiff's Counsel: Bryan Meredith and Robert L. J. Spence, Jr.) (Defense Counsel: J. Michael Fletcher, Zayid A. Saleem, Joseph Fletcher) (Court Reporter: Nicole Warren) (smm) (Entered: 01/23/2015)
129 JURY VERDICT FORM. Signed by Judge Jon Phipps McCalla on 1/23/2015. (McCalla, Jon) (Entered: 01/23/2015)
130 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Jury Trial (DAY 5) held on 01/26/2015. Closing arguments given by counsel. Jury charges. Jury deliberated. Jury to report at 8:30 AM, tomorrow, 01/27/2015 to continue their deliberations. (for Plaintiff: Robert L. J. Spence, Jr., Bryan Meredith) (for Defense: J. Michael Fletcher, Zayid A. Saleem) (Court Reporter: Nicole Warren) (smm) (Entered: 01/26/2015)
131 JURY INSTRUCTIONS. Signed by Judge Jon Phipps McCalla on 1/26/2015. (McCalla, Jon) (Entered: 01/26/2015)
132 JURY VERDICT FORM. Signed by Judge Jon Phipps McCalla on 1/26/2015. (McCalla, Jon) (Entered: 01/26/2015)
133 PRETRIAL ORDER. Signed by Judge Jon Phipps McCalla on 1/27/2015, nunc pro tunc 1/20/2015. (McCalla, Jon) (Entered: 01/27/2015)
134 Supplemental Jury Instruction No. 1 (daf). (McCalla, Jon) (Entered: 01/27/2015)
138 Minute Entry for Jury Trial (Day 6)held before Judge Jon Phipps McCalla completed on 1/27/2015. Jury begins deliberations. Questions 1. from jury. Parties return to Court to answer questions. Question 2 from jury; verdict reached. Verdict read in open court, jurors polled, thanked for service and dismissed. ATTYS: PLFT Robert Spence, Bryan Meredith -- DEFT J. Michael Fletcher, Zayid Saleem (Court Reporter Lynn Dudley) (mlk) (Entered: 01/30/2015)
135 NOTICE by Lakendus Cole, Leon Edmond Plaintiffs' Notice of Filing Closing Argument PowerPoint Presentation (Spence, Robert) (Entered: 01/29/2015)
136 ATTACHMENT Plaintiffs' Closing Argument PowerPoint Presentation (Part 1 of 2) to 135 Notice (Other) by Lakendus Cole, Leon Edmond.. (Spence, Robert) (Entered: 01/29/2015)
137 ATTACHMENT Plaintiffs' Closing Argument PowerPoint Presentation (Part 2 of 2) to 135 Notice (Other), 136 Attachment by Lakendus Cole, Leon Edmond.. (Spence, Robert) (Entered: 01/29/2015)

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139 ORDER DIRECTING CLERK'S OFFICE TO PAY FOR LUNCHES. Signed by Judge Jon Phipps McCalla on 1/30/15. (Jon P. McCalla) (Entered: 01/30/2015)
140 Jury Notes. (mlk) (Entered: 01/30/2015)
141 JURY VERDICT. (mlk) (Entered: 01/30/2015)
143 Witness/Exhibit List. (mlk) (Entered: 01/30/2015)
145 Minute Entry for Status Conference held before Judge Jon Phipps McCalla on 2/4/2015. Hearing on Injuntive Relief is set for 2/24/15 at 9:30 AM. Briefs on additional remedies are due 2/17/15; and respones are due 2/20/15. Motion to Decerify Class are due 2/13/15; and responses are due 2/20/15. Motion for Directed Verdict and/or Motion to Reconsider Hearing set for 2/24/2015 09:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. ATTYS: Plft. Robert Spence, Jr., Bryan Meredith -- Deft. J. Michael Fletcher, Zayid Saleem. (Court Reporter Kristi Farley.) (mlk) (Entered: 02/04/2015)
146 SETTING LETTER: Evidentiary Hearing set for 2/24/2015 09:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. (mlk) (Entered: 02/04/2015)
147 SCHEDULING ORDER. Signed by Judge Jon Phipps McCalla on 2/6/2015. (McCalla, Jon) (Entered: 02/06/2015)
148 MOTION to Decertify Class or, in the Alternative, Modify Definition of Class re 88 Order on Motion to Certify Class by City of Memphis. (Attachments: # 1 Memorandum Memorandum in Support of Motion to Decertify Class)(Fletcher, J.) (Entered: 02/13/2015)
149 NOTICE by City of Memphis of City's proposed modifications to Court's Jury Verdict Form (Attachments: # 1 Exhibit City's proposed modifications to Court's Jury Verdict Form)(Fletcher, J.) (Entered: 02/13/2015)
150 NOTICE by City of Memphis of Filing Brief on Declaratory and Injunctive Relief (Attachments: # 1 Exhibit Brief of the City of Memphis on Declaratory and Injunctive Relief)(Fletcher, J.) (Entered: 02/17/2015)
151 MOTION Post-Trial Memorandum in Support of Plaintiffs' Request for Declaratory, Injunctive, and Equitable Relief by All Plaintiffs. (Spence, Robert) (Entered: 02/17/2015)
152 RESPONSE in Opposition re 151 MOTION Post-Trial Memorandum in Support of Plaintiffs' Request for Declaratory, Injunctive, and Equitable Relief filed by City of Memphis. (Fletcher, J.) (Entered: 02/20/2015)
153 RESPONSE to Motion re 151 MOTION Post-Trial Memorandum in Support of Plaintiffs' Request for Declaratory, Injunctive, and Equitable

02/20/2015 02/23/2015

Relief Plaintiffs' Response to Brief of the City of Memphis on Declaratory and Injunctive Relief filed by All Plaintiffs. (Spence, Robert) (Entered: 02/20/2015)
154 RESPONSE to Motion re 148 MOTION to Decertify Class or, in the Alternative, Modify Definition of Class re 88 Order on Motion to Certify Class Plaintiff's Response to Motion to Decertify filed by All Plaintiffs. (Spence, Robert) (Entered: 02/20/2015)
155 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 21, 2015 before Judge Jon P. McCalla. Court Reporter Karla Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

02/23/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 3/2/2015. Redaction Request due 3/16/2015. Release of Transcript Restriction set for 5/26/2015. (jae) (Entered: 02/24/2015)
156 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 21, 2015 before Judge Jon P. McCalla. Court Reporter Karla Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

02/24/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 3/2/2015. Redaction Request due 3/16/2015. Release of Transcript Restriction set for 5/26/2015. (jae) (Entered: 02/24/2015)
157 Minute Entry for Injuctive Relief Hearing held before Judge Jon Phipps

05/18/2015

McCalla on 2/24/2015. Plft will not put on proof as to signs of Beale Street because Deft. consent to having them removed. Deft. calls Paul Morris. The Parties argue possible relief. The Court takes the matter under advisement. ATTYS. PRESENT: Plft. Robert Spence, Jr., Bryan Meredith -- J. Michael Fletcher, Zayid Saleem. (Court Reporter Brenda Parker.) (McCalla, Jon) (Entered: 02/24/2015)
158 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

05/28/2015 05/28/2015 06/03/2015 06/16/2015
06/16/2015

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #155 and #156: Release date 5/26/2015. (cas) (Entered: 05/18/2015)
159 ORDER denying 94 Motion for Summary Judgment. Signed by Judge Jon Phipps McCalla on 5/28/2015. (McCalla, Jon) (Entered: 05/28/2015)
160 ORDER denying 148 Motion of the City of Memphis to Decertify or Modify Class. Signed by Judge Jon Phipps McCalla on 5/28/2015. (McCalla, Jon) (Entered: 05/28/2015)
161 ORDER GRANTING DECLARATORY AND INJUNCTIVE RELIEF re: 151 Motion. Signed by Judge Jon Phipps McCalla on 6/3/2015. (McCalla, Jon) (Entered: 06/03/2015)
162 MOTION for Attorney Fees Motion for Payment of Attorneys Fees, Reimbursement of Expenses, Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest (proposed order submitted) by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Robert Spence, # 3 Affidavit of Jeff Rosenblum, # 4 Affidavit of Bryan Meredith, # 5 Affidavit of William Ryan, # 6 Affidavit of James King, # 7 Affidavit of Ricky Wilkins)(Spence, Robert) (Entered: 06/16/2015)
163 NOTICE by Lakendus Cole, Leon Edmond re 162 MOTION for Attorney Fees Motion for Payment of Attorneys Fees, Reimbursement of Expenses,

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06/24/2015 06/25/2015

Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest (proposed order submitted) Plaintiffs Notice of In Camera Filing of Bill for Attorneys Fees and Costs (Spence, Robert) (Entered: 06/16/2015)
164 MOTION for Bill of Costs Bill of Costs by All Plaintiffs. (Attachments: # 1 Supplement Additional Witness Page, # 2 Supplement Itemized Bill of Costs)(Spence, Robert) (Entered: 06/16/2015)
165 DEFICIENCY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 164 MOTION for Bill of Costs Bill of Costs filed by Leon Edmond, Lakendus Cole has been filed. However, the following deficiency has been found: the wrong CM/ECF event was used to docket this pleading. The pleading was docketed as a "motion" in error. The pleading is not a motion. When resubmitting the pleading select "Other Documents" then select "Bill of Cost". For statistical purposes, this "motion" will be terminated. Please refer to the ECF User Manual and ECF Policies and Procedures. The filer has one business day to correct the deficiency. (agj) (Entered: 06/17/2015)
166 BILL OF COSTS Bill of Costs by Lakendus Cole, Leon Edmond. (Attachments: # 1 Supplement Extra pages of Bill of Costs, # 2 Exhibit Itemized Statement of Costs)(Spence, Robert) (Entered: 06/17/2015)
167 NOTICE STAYING DETERMINATION OF COSTS by the Clerk of Court, Thomas M. Gould: re 164 MOTION for Bill of Costs Bill of Costs, 166 Bill of Costs (Gruber, Mary) (Entered: 06/23/2015)
168 NOTICE by Lakendus Cole, Leon Edmond Plaintiffs' Notice of Filing of Proofs of Service of Subpoenas (Attachments: # 1 Exhibit Jarrett Subpoena Return, # 2 Exhibit Falatko Subpoena Return, # 3 Exhibit Lee Subpoena Return, # 4 Exhibit Knight Subpoena Return, # 5 Exhibit Williams Subpoena Return)(Spence, Robert) (Entered: 06/23/2015)
169 MOTION re 162 MOTION for Attorney Fees Motion for Payment of Attorneys Fees, Reimbursement of Expenses, Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest (proposed order submitted) Motion for Waiver of Objection and to Deem Granted Plaintiffs Motion for Payment of Attorneys Fees, Reimbursement of Expenses, Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest (proposed order submitted) by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A - Caselaw)(Spence, Robert) (Entered: 06/24/2015)
170 MOTION for Extension of Time to File Response/Reply as to 161 Order on Motion for Miscellaneous Relief proposed order submitted by City of Memphis. (Attachments: # 1 Affidavit of J. Michael Fletcher)(Fletcher, J.) (Entered: 06/24/2015)
171 ORDER granting 170 Motion for Extension of Time to File Response/Reply [**TEXT-ONLY ORDER NO IMAGE

06/26/2015
07/02/2015 07/03/2015 07/06/2015 07/10/2015
07/10/2015
07/29/2015 07/29/2015 07/29/2015 07/29/2015

ASSOCIATED**]. Signed by Judge Jon Phipps McCalla on 6/24/2015. (McCalla, Jon) (Entered: 06/25/2015)
172 RESPONSE in Opposition re 162 MOTION for Attorney Fees Motion for Payment of Attorneys Fees, Reimbursement of Expenses, Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest (proposed order submitted), 164 MOTION for Bill of Costs Bill of Costs filed by City of Memphis. (Attachments: # 1 Affidavit Declaration of J. Michael Fletcher, # 2 Affidavit Declaration of Robert D. Meyers)(Fletcher, J.) (Entered: 06/26/2015)
173 NOTICE of Appearance by Barbaralette G. Davis on behalf of City of Memphis (Davis, Barbaralette) (Entered: 07/02/2015)
174 NOTICE OF APPEAL as to 161 Order on Motion for Miscellaneous Relief, 121 Order on Motion for Summary Judgment, 132 Order by City of Memphis. Filing fee $ 505, receipt number 0651-2147831. Appeal Record due by 7/17/2015. (Fletcher, J.) (Entered: 07/03/2015)
175 USCA Case Number 15-5725 for 174 Notice of Appeal, filed by City of Memphis. (jae) (Entered: 07/07/2015)
176 MOTION For Exercise of Continuing Jurisdiction over the equitable relief granted in the Order on Declaratory and Injunctive Relief and Plaintiffs Motion for Payment of Attorneys Fees, Reimbursement of Expenses, Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Memorandum)(Spence, Robert) (Entered: 07/10/2015)
177 Amended MOTION For Exercise of Continuing Jurisdiction over the equitable relief granted in the Order on Declaratory and Injunctive Relief (D.E. 161) and Plaintiffs Motion for Payment of Attorneys Fees, Reimbursement of Expenses, Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest (D.E. 162) (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Memorandum)(Spence, Robert) (Entered: 07/10/2015)
178 TRANSCRIPT REQUEST by Lakendus Cole, Leon Edmond for proceedings held on 1/20/2015 before Judge Jon P McCalla, re 174 Notice of Appeal, (Spence, Robert) (Entered: 07/29/2015)
179 TRANSCRIPT REQUEST by Lakendus Cole, Leon Edmond for proceedings held on 1/20/2015 (continued) before Judge Jon P McCalla, re 174 Notice of Appeal, (Spence, Robert) (Entered: 07/29/2015)
180 TRANSCRIPT REQUEST by Lakendus Cole, Leon Edmond for proceedings held on 1/21/2015 before Judge Jon P McCalla, re 174 Notice of Appeal, (Spence, Robert) (Entered: 07/29/2015)
181 TRANSCRIPT REQUEST by Lakendus Cole, Leon Edmond for

07/29/2015 07/30/2015 07/31/2015
08/06/2015 08/07/2015 08/13/2015
08/27/2015
08/27/2015 09/10/2015

proceedings held on 1/22/2015 before Judge Jon P McCalla, re 174 Notice of Appeal, (Spence, Robert) (Entered: 07/29/2015)
182 TRANSCRIPT REQUEST by Lakendus Cole, Leon Edmond for proceedings held on 1/23/2015 before Judge Jon P McCalla, re 174 Notice of Appeal, (Spence, Robert) (Entered: 07/29/2015)
183 MOTION Plaintiffs' Motion to Correct and Supplement Record (proposed order submitted) by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A-Supplemental Disclosures)(Spence, Robert) (Entered: 07/30/2015)
184 ORDER terminating 176 Motion ; granting 177 Amended Motion for Exercise of Continuing Jurisdiction Over Equitable Relief and Plaintiffs Motion for Payment of Attorneys Fees, Reimbursement of Expenses, Entry of a Judgment for Lakendus Cole, and Post-Judgment Interest. Signed by Judge Jon Phipps McCalla on 7/31/2015. (McCalla, Jon) (Entered: 07/31/2015)
185 NOTICE by Lakendus Cole of Submission of Potential Monitors Pursuant to Order Granting Declaratory and Injunctive Relief (Spence, Robert) (Entered: 08/06/2015)
186 NOTICE by City of Memphis re 161 Order on Motion for Miscellaneous Relief (Fletcher, J.) (Entered: 08/07/2015)
187 RESPONSE in Opposition re 183 MOTION Plaintiffs' Motion to Correct and Supplement Record (proposed order submitted) filed by City of Memphis. (Attachments: # 1 Exhibit Ex. A Whitwell email consultation, # 2 Exhibit Ex. B Electronic Notice of Filing, # 3 Exhibit Ex. C Whitwell email with proposed order, # 4 Exhibit Ex. D City of Memphis Rule 26(a)(1)(A) Initial Disclosures, # 5 Exhibit Ex. E Plaintiffs Rule 26(a)(1)(A) Initial Disclosures)(Fletcher, J.) Sealed attachments 4 and 5 on 8/19/2015, as filer failed to redact (cbs). (Entered: 08/13/2015)
188 ORDER granting Monetary Damages, Prejudgment Interest, Postjudgment Interest, and Attorneys' Fees 162 ; terminating 169 Motion For Waiver Of Objection And To Deem Granted Plaintiffs Motion For Payment Of Attorneys Fees, Reimbursement Of Expenses, Entry Of A Judgment For Lakendus Cole, And Postjudgment Interest. Signed by Judge Jon Phipps McCalla on 8/27/2015. (McCalla, Jon) (Entered: 08/27/2015)
189 JUDGMENT in favor of Lakendus Cole against City of Memphis.. Signed by Judge Jon Phipps McCalla on 8/27/2015. (McCalla, Jon) (Entered: 08/27/2015)
190 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of January 20, 2015, excerpt trial proceedings before Judge Jon P. McCalla, re 174 Notice of Appeal, Court Reporter Lynn Dudley, Telephone number 901.525.1023.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

09/10/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/15/2015. Redaction Request due 10/1/2015. Release of Transcript Restriction set for 12/9/2015. (Dudley, Lynn) (Entered: 09/10/2015)
191 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of January 27, 2015, excerpt of trial proceedings before Judge Jon P. McCalla, re 174 Notice of Appeal, Court Reporter Lynn Dudley, Telephone number 901.525.1023.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

09/11/2015 09/11/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/15/2015. Redaction Request due 10/1/2015. Release of Transcript Restriction set for 12/9/2015. (Dudley, Lynn) (Entered: 09/10/2015)
192 AMENDED NOTICE OF APPEAL as to 188 Order on Motion for Attorney Fees, Order on Motion for Miscellaneous Relief,, 161 Order on Motion for Miscellaneous Relief, 189 Judgment, 121 Order on Motion for Summary Judgment, 132 Order by City of Memphis. (Fletcher, J.) (Entered: 09/11/2015)
193 First MOTION to Stay re 188 Order on Motion for Attorney Fees, Order on Motion for Miscellaneous Relief,, 189 Judgment by City of Memphis. (Attachments: # 1 Memorandum Memorandum of City of Memphis in Support of Motion for Partial Stay of Judgment, # 2 Affidavit Declaration of Shirley Ford, Comptroller of the City of Memphis)(Fletcher, J.)

09/15/2015 09/23/2015
09/28/2015 10/08/2015

(Entered: 09/11/2015)
194 USCA Case Number 15-5999 for 174 Notice of Appeal, filed by City of Memphis. (jrs) (Entered: 09/15/2015)
195 RESPONSE in Opposition re 193 First MOTION to Stay re 188 Order on Motion for Attorney Fees, Order on Motion for Miscellaneous Relief,, 189 Judgment (proposed order submitted) filed by Lakendus Cole, Leon Edmond. (Spence, Robert) (Entered: 09/23/2015)
Appeals Filing fee $ 505 paid, receipt number 0651-2196250. (Fletcher, J.) (Entered: 09/28/2015)
196 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

10/08/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
197 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due

10/08/2015

10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
198 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

10/08/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
199 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valarie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

10/08/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
200 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7)

calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

10/08/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
201 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

10/08/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
202 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the

10/08/2015

clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
203 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

10/08/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
204 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge Jon Phipps McCalla. Court Reporter Valerie Gilliam, Telephone number (901) 523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

10/12/2015 10/28/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 10/13/2015. Redaction Request due 10/29/2015. Release of Transcript Restriction set for 1/6/2016. (jrs) (Entered: 10/08/2015)
205 NOTICE by Lakendus Cole, Leon Edmond re 204 Transcript,,,, Notice of Intent to Request Redaction (Spence, Robert) (Entered: 10/12/2015)
206 Transcript Redaction Request re 204 Transcript,,,, by attorney Robert L.J. Spence, Jr. (Attachments: # 1 Exhibit Redacted Transcript)(Spence, Robert) (Entered: 10/28/2015)

10/28/2015 11/30/2015

207 ORDER granting in part and denying in part 193 Motion to Stay. Signed by Judge Jon Phipps McCalla on 10/28/2015. (McCalla, Jon) (Entered: 10/28/2015)
208 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

12/04/2015

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #190 and #191: Release date 12/9/2015. (cas) (Entered: 11/30/2015)
209 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Excerpt of Proceedings held on January 21, 2015 before Judge Jon P. McCalla. Court Reporter Karla Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

12/04/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 12/9/2015. Redaction Request due 12/28/2015. Release of Transcript Restriction set for 3/3/2016. (jae) (Entered: 12/04/2015)
210 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Excerpt of Proceedings held on January 21, 2015 before Judge Jon P. McCalla. Court Reporter Karla Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

12/07/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 12/9/2015. Redaction Request due 12/28/2015. Release of Transcript Restriction set for 3/3/2016. (jae) (Entered: 12/04/2015)
211 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Testimony of Lakendus Cole) before Judge Jon P. McCalla. Court Reporter Karla Seeley, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

12/08/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 12/14/2015. Redaction Request due 12/28/2015. Release of Transcript Restriction set for 3/7/2016. (jae) (Entered: 12/07/2015)
212 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of excerpt of trial testimony of Brian Falatko before Judge Jon P. McCalla. Court Reporter Karla Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of

witnesses that were called for the party and for that party's own statements.

12/11/2015 12/28/2015

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 12/14/2015. Redaction Request due 12/29/2015. Release of Transcript Restriction set for 3/7/2016. (jae) (Entered: 12/08/2015)
213 SEALED TRANSCRIPT of Proceedings held on 1/23/2015 before Judge McCalla.. (Warren, Nicole) (Entered: 12/11/2015)
214 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

01/20/2016

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Documents 196 , 197 , 198 , 199 , 200 , 201 , 202 , 203 and 204 : Release Date: 01/06/2016. (smm) (Entered: 12/28/2015)
215 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 21, 2015 before Judge JON P. MCCALLA. Court Reporter Karla L. Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the

01/20/2016

clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (jrs) (Entered: 01/20/2016)
216 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 21, 2015 before Judge JON P. MCCALLA. Court Reporter Karla L. Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

01/20/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (jrs) (Entered: 01/20/2016)
217 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge JON P. MCCALLA. Court Reporter Valerie Hall Gilliam, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

01/20/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (jrs) (Entered: 01/20/2016)
218 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge JON P. MCCALLA. Court Reporter Valerie Hall Gilliam, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been

filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

01/20/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (jrs) (Entered: 01/20/2016)
219 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge JON P. MCCALLA. Court Reporter Valerie Hall Gilliam, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

01/20/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (jrs) (Entered: 01/20/2016)
220 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Deposition Proceedings held on March 25, 2014 Court Reporter Dana May Webb, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes

01/20/2016

may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (jrs) (Entered: 01/20/2016)
221 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of January 20, 2015, Tuesday a.m. excerpt of proceedings before Judge Jon P. McCalla, re 174 Notice of Appeal, Court Reporter Lynn Dudley, Telephone number (901)525-1023.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

01/20/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (Dudley, Lynn) (Entered: 01/20/2016)
222 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of January 20, 2015, Tuesday excerpt of proceedings before Judge Jon P. McCalla, re 174 Notice of Appeal, Court Reporter Lynn Dudley, Telephone number (901)525-1023.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

01/27/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 1/25/2016. Redaction Request due 2/10/2016. Release of Transcript Restriction set for 4/19/2016. (Dudley, Lynn) (Entered: 01/20/2016)
223 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 22, 2015 before Judge JON PHIPPS MCCALLA. Court

Reporter Valerie Hall Gilliam, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

02/05/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 2/1/2016. Redaction Request due 2/17/2016. Release of Transcript Restriction set for 4/26/2016. (jrs) (Entered: 01/27/2016)
224 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 21, 2015 before Judge JON P. MCCALLA. Court Reporter Karla L. Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

02/09/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 2/10/2016. Redaction Request due 2/26/2016. Release of Transcript Restriction set for 5/5/2016. (jrs) (Entered: 02/05/2016)
225 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 21, 2015 (Mitchell Jerome Williams Excerpt) before Judge Jon P. McCalla. Court Reporter Karla Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of

witnesses that were called for the party and for that party's own statements.

02/22/2016

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 2/16/2016. Redaction Request due 3/1/2016. Release of Transcript Restriction set for 5/9/2016. (jae) (Entered: 02/09/2016)
226 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

02/29/2016

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Documents 209 and 210 : Release Date: 03/03/2016. (smm) (Entered: 02/22/2016)
227 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on

04/11/2016

this issue. Documents 211 and 212 : Release Date: 03/07/2016. (smm) (Entered: 02/29/2016)
228 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

04/18/2016

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Documents 215 , 216 , 217 , 218 , 219 , 220 , 221 and 222 : Release Date: 04/19/2016.(smm) (Entered: 04/11/2016)
229 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

04/25/2016

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #223: Release date 4/26/2016. (cas) (Entered: 04/18/2016)
230 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

05/02/2016

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #224: Release date 5/5/2016. (cas) (Entered: 04/25/2016)
231 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

10/17/2016 11/07/2016

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document 225 : Release Date 05/09/2016. (smm) (Entered: 05/02/2016)
232 ORDER of USCA as to 174 Notice of Appeal, filed by City of Memphis. OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication.(jrs) (Entered: 10/17/2016)
233 RULING LETTER SENT granting motion to withdraw as counsel 44 filed by Mr. Emmett Lee Whitwell; terminating Attorney Emmett Lee Whitwell

01/12/2017 01/25/2017 01/25/2017
01/26/2017 01/26/2017 01/27/2017 01/27/2017 01/27/2017 02/03/2017
02/07/2017
02/08/2017
02/08/2017

for Appellees Leon Edmond and Lakendus Cole - counsel is no longer with firm. (jae) (Entered: 11/07/2016)
234 MANDATE of USCA as to 174 Notice of Appeal, filed by City of Memphis. MANDATE ISSUED with no costs taxed. (jrs) (Entered: 01/12/2017)
235 MOTION to Lift Partial Stay of Judgment (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Memorandum)(Spence, Robert) (Entered: 01/25/2017)
236 MOTION for Attorney Fees Supplemental Award of Attorneys' Fees, Reimbursement of Expenses, and Post-Judgment Interest (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Memorandum, # 2 Exhibit Itemized Time Records, # 3 Affidavit Affidavit of Robert L. J. Spence, Jr., # 4 Affidavit Affidavit of Bryan M. Meredith, # 5 Affidavit Affidavit of James E. King)(Spence, Robert) (Entered: 01/25/2017)
237 NOTICE of Appearance by Leo Maurice Bearman, Jr on behalf of All Defendants (Bearman, Leo) (Entered: 01/26/2017)
238 NOTICE of Appearance by Leo Maurice Bearman, Jr on behalf of All Defendants (Bearman, Leo) (Entered: 01/26/2017)
239 NOTICE of Appearance by Leo Maurice Bearman, Jr on behalf of All Defendants (Bearman, Leo) (Entered: 01/27/2017)
240 NOTICE of Appearance by Lori Hackleman Patterson on behalf of All Defendants (Patterson, Lori) (Entered: 01/27/2017)
241 NOTICE of Appearance by Zachary B. Busey on behalf of All Defendants (Busey, Zachary) (Entered: 01/27/2017)
242 RESPONSE in Opposition re 235 MOTION to Lift Partial Stay of Judgment (proposed order submitted) (opposition proposed order submitted) filed by City of Memphis. (Bearman, Leo) (Entered: 02/03/2017)
243 RESPONSE in Opposition re 236 MOTION for Attorney Fees Supplemental Award of Attorneys' Fees, Reimbursement of Expenses, and Post-Judgment Interest (proposed order submitted) (Proposed Order Submitted) filed by City of Memphis. (Bearman, Leo) (Entered: 02/07/2017)
244 MOTION for Leave to File to File Reply to Defendant City of Memphis' Response to Motion to Lift Partial Stay of Judgment (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Memorandum, # 2 Exhibit A)(Spence, Robert) (Entered: 02/08/2017)
245 ORDER granting 244 Motion for Leave to File. Signed by Judge Jon Phipps McCalla on 2/8/2017. (McCalla, Jon) (Entered: 02/08/2017)

02/08/2017 02/10/2017 02/14/2017 02/14/2017 02/28/2017
03/10/2017 03/13/2017
03/15/2017
03/16/2017 03/17/2017 03/17/2017 03/21/2017

246 REPLY to Response to Motion re 242 Response in Opposition to Motion to Lift Partial Stay of Judgment filed by Lakendus Cole. (Spence, Robert) (Entered: 02/08/2017)
247 Consent MOTION for Leave to File Sur-Reply (proposed order submitted) by City of Memphis. (Attachments: # 1 Exhibit 1 - Proposed Sur-Reply)(Bearman, Leo) (Entered: 02/10/2017)
248 ORDER granting 247 Motion for Leave to File. Signed by Judge Jon Phipps McCalla on 2/14/2017. (McCalla, Jon) (Entered: 02/14/2017)
249 RESPONSE in Opposition re 235 MOTION to Lift Partial Stay of Judgment (proposed order submitted) Sur-Reply in Further Opposition filed by City of Memphis. (Bearman, Leo) (Entered: 02/14/2017)
250 ORDER granting 235 MOTION TO LIFT PARTIAL STAY OF JUDGMENT & CONCERNING MOTION FOR SUPPLEMENTAL AWARD OF ATTORNEYS FEES REIMBURSEMENT OF EXPENSES, AND POST-JUDGMENT INTEREST. Signed by Judge Jon Phipps McCalla on 2/28/2017. (McCalla, Jon) (Entered: 02/28/2017)
251 NOTICE OF APPEAL as to 250 Order on Motion for Miscellaneous Relief by City of Memphis. Filing fee $ 505, receipt number 06512506651. (Bearman, Leo) (Entered: 03/10/2017)
252 RESPONSE to Motion re 236 MOTION for Attorney Fees Supplemental Award of Attorneys' Fees, Reimbursement of Expenses, and Post-Judgment Interest (proposed order submitted) filed by City of Memphis. (Attachments: # 1 Exhibit 1 - WDTN Order on Same Issues)(Bearman, Leo) (Entered: 03/13/2017)
253 MOTION for Leave to File Reply to Defendant City of Memphis Limited Response Motion for Supplemental Award of Attorneys Fee, Reimbursement of Expenses, and Post-Judgment Interest (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Proposed Reply)(Spence, Robert) (Entered: 03/15/2017)
254 USCA Case Number 17-5310 for 251 Notice of Appeal filed by City of Memphis. Civil Case Docketed. Notice filed by Appellant City of Memphis. (jrs) (Entered: 03/16/2017)
255 ORDER granting 253 Motion for Leave to File. Signed by Judge Jon Phipps McCalla on 3/17/2017. (McCalla, Jon) (Entered: 03/17/2017)
256 REPLY to Response to Motion re 252 Response to Motion, for Attorneys' Fees filed by All Plaintiffs. (Spence, Robert) (Entered: 03/17/2017)
257 MOTION for Leave to File Sur-Reply by City of Memphis. (Attachments: # 1 Exhibit 1 -Proposed Sur-Reply)(Bearman, Leo) (Entered: 03/21/2017)

03/22/2017 04/03/2017
04/03/2017 04/07/2017 04/17/2017
05/30/2017

258 ORDER granting 257 Motion for Leave to File. Signed by Judge Jon Phipps McCalla on 3/22/2017. (McCalla, Jon) (Entered: 03/22/2017)
259 RESPONSE in Opposition re 236 MOTION for Attorney Fees Supplemental Award of Attorneys' Fees, Reimbursement of Expenses, and Post-Judgment Interest (proposed order submitted) Sur-Reply in Further Opposition filed by City of Memphis. (Bearman, Leo) (Entered: 04/03/2017)
260 ORDER granting 236 Motion for Attorney Fees. Signed by Judge Jon Phipps McCalla on 4/3/2017. (McCalla, Jon) (Entered: 04/03/2017)
261 U.S. Supreme Court notice filed regarding a petition for a writ of certiorari filed by Appellant City of Memphis in 15-5725, 15-5999. Supreme Court Case No:16-1204, 04/04/2017. (jrs) (Entered: 04/10/2017)
262 RESPONSE in Opposition re 236 MOTION for Attorney Fees Supplemental Award of Attorneys' Fees, Reimbursement of Expenses, and Post-Judgment Interest (proposed order submitted) and Incorporated Memorandum filed by City of Memphis. (Bearman, Leo) (Entered: 04/17/2017)
263 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on January 21, 2017 before Judge JON P. McCALLA. Court Reporter Karla L. Seely, Telephone number 901-523-8974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

06/07/2017 06/13/2017

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 6/5/2017. Redaction Request due 6/20/2017. Release of Transcript Restriction set for 8/28/2017. (jrs) (Entered: 05/30/2017)
264 U.S. Supreme Court letter filed denying the petition for a writ of certiorari 58 filed by City of Memphis. Supreme Court Case No: 16-1204, 06/05/2017..[15-5725, 15-5999]. (jrs) (Entered: 06/07/2017)
265 ORDER of USCA as to 251 Notice of Appeal filed by City of Memphis. ORDER filed GRANTING motion to dismiss case - voluntarily 10 filed by appellant's counsel, Mr. Leo Maurice Bearman, Jr., pursuant to FRAP 42(b). (jrs) (Entered: 06/13/2017)

06/21/2017
06/21/2017 07/05/2017 07/11/2017
07/13/2017 07/13/2017 07/14/2017 07/31/2017 08/04/2017 08/04/2017

266 MOTION for Attorney Fees for Supplemental Award of Attorneys Fee Following Denial of Defendants Petition for Writ of Certiorari (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Memorandum, # 2 Exhibit Itemized Time Records, # 3 Affidavit of Robert L. J. Spence, Jr., # 4 Affidavit of Bryan M. Meredith, # 5 Affidavit of Ricky Wilkins)(Spence, Robert) (Entered: 06/21/2017)
267 BILL OF COSTS by Lakendus Cole. (Attachments: # 1 Itemization of Expenses, # 2 Documentation of Expenses)(Spence, Robert) (Entered: 06/21/2017)
268 RESPONSE in Opposition re 266 MOTION for Attorney Fees for Supplemental Award of Attorneys Fee Following Denial of Defendants Petition for Writ of Certiorari (proposed order submitted) filed by All Defendants. (Bearman, Leo) (Entered: 07/05/2017)
269 MOTION for Leave to File Reply to Defendant City of Memphis Substantive Opposition to Plaintiffs Motion for Supplemental Award of Attorneys Fee Following Denial of Defendants Petition for Writ of Certiorari by the United States Supreme Court (proposed order submitted) by Lakendus Cole. (Attachments: # 1 Proposed Reply)(Spence, Robert) (Entered: 07/11/2017)
270 ORDER granting 269 Motion for Leave to File. Signed by Judge Jon Phipps McCalla on 7/13/2017. (McCalla, Jon) (Entered: 07/13/2017)
271 REPLY to Response to Motion re 268 Response in Opposition to Motion for Supplemental Award of Attorneys Fee Following Denial of Defendants Petition for Writ of Certiorari by the United States Supreme Court filed by Lakendus Cole. (Spence, Robert) (Entered: 07/13/2017)
272 NOTICE OF TAXATION OF COSTS HEARING before the Clerk of Court, Thomas M. Gould, on Friday, August 11, 2017 at 10:00 AM: re 267 Bill of Costs (Gruber, Mary) (Entered: 07/14/2017)
273 ORDER TAXING COSTS by the Clerk of Court, Thomas M. Gould, against the Defendants and in favor of the Plaintiffs in the amount of $10,452.13. Order signed on 7/31/2017. (Gruber, Mary) (Entered: 07/31/2017)
274 ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUPPLEMENTAL AWARD OF ATTORNEYS FEES, REIMBURSEMENT OF EXPENSES, AND POST-JUDGMENT INTEREST. Signed by Judge Jon Phipps McCalla on 8/4/2017. (McCalla, Jon) (Entered: 08/04/2017)
275 JUDGMENT ON POST-TRIAL ATTORNEYS FEES AND POSTJUDGMENT INTEREST. Signed by Judge Jon Phipps McCalla on 8/4/2017. (McCalla, Jon) (Entered: 08/04/2017)

08/21/2017 276 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

10/12/2018

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document 263 : Release Date: 08/28/2017. (smm) (Entered: 08/21/2017)
277 NOTICE of retrieval of exhibits. (jae) (Entered: 10/12/2018)

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 Case 2:13-cv-02117-JPM-dkv Document 1-1 Filed 02/25/13 Page 1 of 1 PageID 30

Case 2:13-cv-02117-JPM-dkv Document 1 Filed 02/25/13 Page 1 of 29 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN SECTION

LAKENDUS COLE and LEON EDMOND, INDIVIDUALLY AND AS REPRESENTATIVES OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs,

vs.

Docket No. 2:13-cv-2117

CITY OF MEMPHIS, and ROBERT FORBERT, SAMUEL HEARN, CHRISTOPHER BING, JOHN FAIRCLOTH, CARI COOPER and ROBERT SKELTON INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS CITY OF MEMPHIS POLICE OFFICERS,

Defendants. ______________________________________________________________________

CLASS ACTION COMPLAINT FOR DAMAGES, COMPLAINT FOR DAMAGES FOR DEPRIVATION OF CONSTITUTIONAL RIGHTS AND INJUNCTIVE RELIEF
______________________________________________________________________

COME NOW Plaintiffs Lakendus Cole and Leon Edmond, individually and as

class representatives by and through counsel, and file this Class Action Complaint

Against the City of Memphis and Complaint against the City of Memphis and individually

named defendants (hereinafter referred to as the “Complaint”) and state as follows:

I. INTRODUCTION This action is brought by Plaintiff Lakendus Cole, a police officer employed with the City of Memphis Police Department Organized Crime Unit, and Plaintiff Leon
1

Case 2:13-cv-02117-JPM-dkv Document 1 Filed 02/25/13 Page 2 of 29 PageID 2
Edmond, a Special Agent employed with the Bureau of Alcohol, Tobacco, Firearms and Explosives, against the City of Memphis for the creation and implementation of an unlawful policy, custom, procedure or practice on Beale Street in Memphis, Tennessee which violates the Fourth and Fourteenth Amendments to the Constitutions of the United States of America and the State of Tennessee.
The Plaintiffs, individually and on behalf of individuals similarly situated, assert a class action claim against the City of Memphis for the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (hereinafter referred to as the “MPD”) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers (referred to in this Introduction as the “Beale Street Police Sweep”). The Beale Street Police Sweep routinely occurs in the early morning hours on Saturdays and Sundays and during certain scheduled entertainment events on weekdays.
The City of Memphis is acutely aware by virtue of the repeated abuse of persons which routinely occurs during Beale Street Police Sweeps that the policy and manner of execution of this unconstitutional policy incites violence amongst its employee police officers and creates an environment where they become aggressive, agitated, frenetic, and confrontational with persons lawfully standing on a sidewalk or upon Beale Street.
As a result of the Beale Street Police Sweeps, Memphis police officers deprive persons of their constitutional rights, commit vicious and violent assaults, use excessive force, unlawfully detain and arrest, and fabricate criminal charges all in an effort to conceal their unlawful conduct and in furtherance of the City’s unconstitutional policy.
2

Case 2:13-cv-02117-JPM-dkv Document 1 Filed 02/25/13 Page 3 of 29 PageID 3
The Plaintiffs request that the Court after a hearing issue a preliminary and permanent injunction enjoining the City of Memphis from continuing this unlawful and unconstitutional policy.
The Plaintiffs also assert claims in their individual capacity pursuant to 42 U.S.C. §1983 against the City of Memphis for (1) its policy, procedure, custom or practice of committing assaults, excessive force, unlawful detentions and/or arrests, and fabricating false criminal charges against law abiding persons on Beale Street; (2) its knowledge and acquiescence in the Individual Defendants use of excessive force, unlawful detention and/or arrest, and fabrication of false criminal charges against law abiding persons on Beale Street; and (3) the City of Memphis’ deliberate indifference to the harm caused to persons resulting from the unlawful and unconstitutional policy.
II. PARTIES 1. Class Representative, Plaintiff Lakendus Cole (hereinafter referred to as “Plaintiff Cole”), is an adult resident of Memphis, Shelby County, Tennessee and, at all times relevant hereto, was a police officer employed with the City of Memphis Police Department. Plaintiff Cole is a representative of a class of Plaintiffs consisting of citizens assaulted, subjected to excessive force, unlawfully detained, and/or unlawfully arrested, and falsely charged with a crime on Beale Street between the intersections of Second Street and Fourth Street in Memphis, Tennessee (hereinafter referred to as the “Beale Street Entertainment District”). 2. Class Representative, Leon Edmond (hereinafter referred to as “Plaintiff Edmond”), is an adult resident of St. Louis, Missouri and, at all times relevant hereto,
3

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was a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives assigned to the Kansas City Field Division, St. Louis Field Office. Plaintiff Edmond is a representative of a class of Plaintiffs consisting of citizens assaulted, subjected to excessive force, unlawfully detained, and/or unlawfully arrested, and falsely charged with a crime in the Beale Street Entertainment District
3. Defendant City of Memphis is a municipal entity located in Shelby County, Tennessee, recognized by the State of Tennessee as a properly organized and legal municipal entity and can be served with process through its city attorney, Herman Morris at his office located at 125 North Main, Suite 336, Memphis, Tennessee 38103.
4. At all times relevant hereto, Defendant Robert Forbert was an employee and officer of the City of Memphis. Defendant Forbert can be found at 201 Poplar Avenue, Memphis, Tennessee 38103 for service of process. Defendant Forbert is being sued in both his official capacity as an officer of the Memphis Police Department and in his individual capacity for actions or inactions taken by him individually.
5. At all times relevant hereto, Defendant Samuel Hearn was an employee and officer of the City of Memphis. Defendant Hearn can be found at 201 Poplar Avenue, Memphis, Tennessee 38103 for service of process. Defendant Hearn is being sued in both his official capacity as an officer of the Memphis Police Department and in his individual capacity for actions or inactions taken by him individually.
6. At all times relevant hereto, Defendant Christopher Bing was an employee and officer of the City of Memphis. Defendant Bing can be found at 201 Poplar Avenue, Memphis, Tennessee 38103 for service of process. Defendant Bing is being
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sued in both his official capacity as an officer of the Memphis Police Department and in his individual capacity for actions or inactions taken by him individually.
7. At all times relevant hereto, Defendant John Faircloth was an employee and officer of the City of Memphis. Defendant Faircloth can be found at 201 Poplar Avenue, Memphis, Tennessee 38103 for service of process. Defendant Faircloth is being sued in both his official capacity as an officer of the Memphis Police Department and in his individual capacity for actions or inactions taken by him individually.
8. At all times relevant hereto, Defendant Robert Skelton was an employee and officer of the City of Memphis. Defendant Skelton can be found at 201 Poplar Avenue, Memphis, Tennessee 38103 for service of process. Defendant Skelton is being sued in both his official capacity as an officer of the Memphis Police Department and in his individual capacity for actions or inactions taken by him individually.
9. At all times relevant hereto, Defendant Cari Cooper was an employee and officer of the City of Memphis. Defendant Cari Cooper can be found at 201 Poplar Avenue, Memphis, Tennessee 38103 for service of process. Defendant Cari Cooper is being sued in both her official capacity as an officer of the Memphis Police Department and in his individual capacity for actions or inactions taken by her individually.
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III. JURISDICTION AND VENUE 10. The acts and omissions described in the body of this Complaint all occurred in Memphis, Shelby County, Tennessee and venue is appropriate in this judicial district. 11. The jurisdiction of this lawsuit is proper in the United States District Court for the Western District of Tennessee, Western Section. Jurisdiction lies with this Court pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
IV. CLASS ACTION 12. Pursuant to Rule 23(a) and 23(b)(1), (2), and (3) of the Federal Rules of Civil Procedure, Class Representatives Lakendus Cole and Leon Edmond bring this class action on their own behalf and on behalf of other similarly situated individuals who were and will be deprived of constitutional rights, assaulted, unlawfully detained, unlawfully arrested, and/or arrested without probable cause in the Beale Street Entertainment District. 13. The exact number of members in the Class identified in the preceding paragraph is not presently known, but upon information and belief, the Class includes hundreds of individuals, and is therefore so numerous that joinder of individual members in this action is impracticable. 14. There are common questions of law and fact in the action that relate to and affect the rights of each member of the Class. The relief sought is common to the entire Class, as set forth below in this Complaint.
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15. The claims of the Class Representatives are typical of the Class they represent, in that the Class Representative claims that the City of Memphis violated the rights held by the Class members under the Fourth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §1983 and state law. There is no conflict between the Class Representative and any other members of the Class with respect to this action.
16. The Class Representatives are the representative parties for the Class, are able to fairly and adequately protect the interests of the Class, and will so represent the Class.
17. The attorneys for the Class Representatives are experienced and capable in complex litigation in the fields of municipal law, constitutional law and class actions.
18. The City of Memphis has acted on grounds generally applicable to the Class, thereby making final injunctive relief or corresponding injunctive relief appropriate with respect to the Class as a whole.
19. This action is properly maintained as a class action in that the prosecution of separate actions by individual Class members would create a risk of adjudications with respect to individual members of the Class that would establish incompatible standards of conduct for the City of Memphis.
20. The questions of law or fact common to the class members predominate over any questions affecting only individual members.
21. A class action is superior to other available methods for fairly and efficiently adjudicating the controversy in the class action claim.
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V. FACTS PERTAINING TO THE REPRESENTATIVE PLAINTIFFS A. The Beale Street Sweep
22. The United States Supreme Court has held that citizens of the United State of America have a right, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution to remain in a public place with no apparent purpose.
23. The Sixth Circuit Court of Appeals has held that citizens of the United States of America have the freedom, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, to travel locally through public spaces and roadways.
24. At all times relevant hereto, the City of Memphis engaged in a policy, procedure, custom, or practice in which MPD police officers ordered all persons lawfully standing on the sidewalks and street in the Beale Street Entertainment District to immediately leave the Beale Street Entertainment District (hereinafter referred to as the “Beale Street Sweep”).
25. The City of Memphis conducts the Beale Street Sweep irrespective of whether circumstances exist which threaten the safety of the public or MPD police officers.
26. The Beale Street Sweep routinely occurs in the early morning hours on Saturdays and Sundays and during certain scheduled entertainment events on weekdays.
27. The City of Memphis has knowledge that the policy and manner in which the Beale Street Sweep is executed incites violence and creates an environment where
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Memphis police officers involved in this unlawful conduct become highly aggressive, agitated, frenetic, and confrontational towards individuals lawfully standing and walking on Beale Street.
28. At all times relevant hereto, the Beale Street Sweep is routinely executed by MPD police officers assaulting, using excessive force, detaining, arresting and/or fabricating false creating criminal charges against persons who are engaged in lawful and constitutionally protected conduct on the street and sidewalks of the Beale Street Entertainment District.
29. As a direct and proximate cause of the execution of the Beale Street Sweep, the Plaintiffs and individuals similarly situated to the Plaintiff have sustained and will continue to sustain the deprivation of their constitutional rights and economic, physical, mental and/or emotional injuries.
B. Plaintiff Cole, a Police Officer with the City of Memphis Police Department Organized Crime Unit 30. In the early morning on August 26, 2012, Plaintiff Cole, while off-duty and
dressed in civilian clothing, was outside of Club 152 on Beale Street in Memphis, Tennessee eating pizza purchased from a vendor next door to Club 152.
31. At all times relevant hereto, Plaintiff Cole was not intoxicated and had not consumed an alcoholic beverage.
32. Pursuant to the Beale Street Sweep, prior to Plaintiff exiting Club 152, MPD police officers including the Individual Defendants ordered all individuals to immediately leave the sidewalks and street in the Beale Street Entertainment District.
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33. While Plaintiff Cole was lawfully eating pizza in the Beale Street Entertainment District, MPD police officers including the Individual Defendants approached him and shouted “didn’t we tell you to get off of the street?”
34. At no time prior to the statement referenced in paragraph 32 did the MPD Police Officers order Plaintiff Cole to leave Beale Street.
35. The Individual Defendants suddenly grabbed Plaintiff Cole and without reasonable cause to do so began to assault and viciously attack him.
36. The Individual Defendants slammed Plaintiff Cole’s body into the police vehicle twice with such force that the impact dented the body of the police vehicle.
37. The Individual Defendants handcuffed Plaintiff Cole and placed him under arrest in the back of the police vehicle.
38. The Individual Defendants transported Plaintiff Cole to the Shelby County Jail.
39. The Individual Defendants prepared or caused to be prepared an Affidavit of Complaint which included fabricated and false information against Plaintiff Cole.
40. As a direct result of the false affidavits of complaints Plaintiff Cole was charged with Vandalism over $500 (T.C.A. § 39-14-408), Disorderly Conduct (T.C.A. § 39-17-305), and Resisting Stop, Arrest (T.C.A. § 39-16-602).
41. All criminal charges referenced in paragraph 39 were dismissed. 42. At no relevant time did Plaintiff Cole commit the crime of Vandalism. 43. At no relevant time did Plaintiff Cole commit the crime of Disorderly Conduct.
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44. At no relevant time did Plaintiff Cole commit the crime of Resisting Stop, Arrest.
45. As a result of his unlawful detention and arrest, Plaintiff Cole suffered a deprivation of his constitutional rights under the Fourth and Fourteenth Amendments and economic, physical, mental and/or emotional injuries.
C. Plaintiff Edmond, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives 46. In the early morning of May 5, 2012, Plaintiff Edmond, while off-duty and
dressed in civilian clothing and visiting Memphis was walking in the Beale Street Entertainment District enjoying the sights and music.
47. At all times relevant hereto, Plaintiff Edmond was not intoxicated. 48. Pursuant to the Beale Street Sweep, the MPD police officers stationed in the Beale Street Entertainment District, including but not limited to the Individual Defendants, ordered all individuals to immediately leave the sidewalks and street of the Beale Street Entertainment District. 49. Plaintiff Edmond attempted to enter Club 152 on Beale Street. 50. Plaintiff Edmond did not enter Club 152 on Beale Street. 51. Plaintiff Edmond and other family members were approached by Defendant Cooper who ordered Plaintiff Edmond and his family member to stop walking and demanded that they speak to her regarding their attempt to enter Club 152. 52. Defendant Cooper actions were consistent with and similar to the actions of a private security guard for Club 152.
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53. Plaintiff Edmond, Defendant Cooper, and Defendant Skelton engaged in a conversation and the officers asserted that Plaintiff Edmond was acting unprofessionally when he tried to enter Club 152 and placed Plaintiff Edmond in handcuffs and under arrest in a MPD police vehicle.
54. Defendant Cooper and Defendant Skelton placed Plaintiff Edmond under arrest for public intoxication.
55. Prior to and after being arrested, Plaintiff Edmond advised Defendant Cooper and Defendant Skelton that he was a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives assigned to the Kansas City Field Division, St. Louis Field Office.
56. MPD police officers contacted Plaintiff Edmond’s supervisor and advised that him that Plaintiff Edmond had been arrested because he was intoxicated and belligerent.
57. Plaintiff Edmond’s supervisor contacted ATF Special Agent Marcus Watson, Resident Agent in Charge of the Memphis Field Office who subsequently arrived on Beale Street.
58. After ATF Special Agent Marcus Watson arrived on the scene Plaintiff Edmond was released from police custody and allowed to depart Beale Street.
59. At no time relevant hereto did Plaintiff Edmond commit any crime. 60. As a result of his unlawful detention and arrest, Plaintiff Edmond suffered a deprivation of his constitutional rights under the Fourth and Fourteenth Amendment and economic, mental and/or emotional injuries.
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VI. CLASS ACTION CLAIM AGAINST THE CITY OF MEMPHIS FOR VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS DURING THE BEALE STREET SWEEP
61. The Plaintiffs repeat, re-allege, and incorporate herein each of the preceding paragraphs as if fully set forth herein.
62. On May 5, 2012, Plaintiff Edmond and other persons were subjected to the Beale Street Sweep.
63. On August 26, 2012, Plaintiff Cole and other persons were subjected to the Beale Street Sweep.
64. Upon information and belief, numerous other individuals in the Beale Street Entertainment District have been and will continue to be routinely subjected to the Beale Street Sweep in the early morning hours on Saturdays and Sundays and during certain scheduled entertainment events on weekdays.
65. At the time of the Beale Street Sweeps referenced herein, the MPD police officers were not conducting the Beale Street Sweep in response to circumstances threatening public safety or the safety of MPD police officers.
66. The Beale Street Sweep deprives persons on the sidewalks and street in the Beale Street Entertainment District of their constitutional rights to remain in a public place with no apparent purpose and to travel locally through public spaces and roadways.
67. The manner in which the Beale Street Sweep is conducted by the City of Memphis is unconstitutional.
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68. Defendant City of Memphis implicitly or explicitly adopted and implemented the Beale Street Sweep.
69. The City of Memphis knows or should know, and knew or should have known, that the MPD police officers including but not limited to the Individual Defendants routinely engage in the Beale Street Sweep which caused damages to the Plaintiffs and to other individuals similarly situated, and have caused and will continue to cause damages to persons similarly situated to the Plaintiffs.
70. The City of Memphis has not taken any actions to stop the MPD police officers including but not limited to the Individual Defendants from engaging in the Beale Street Sweep.
71. The City of Memphis knew, or should have known, that in the absence of official action to stop MPD police officers including but not limited to the Individual Defendants from engaging in the Beale Street Sweep, MPD police officers were likely to engage in unlawful conduct including but not limited to the assault, use of excessive force, unlawful detention, unlawful arrest, and/or creation of false charges against the Plaintiffs and of other individuals similarly situated.
72. The failure of the City of Memphis to adequately implement and enforce polices procedures, train and/or supervise MPD police officers including but not limited to the Individual Defendants amounts to deliberate indifference to the rights of the Plaintiffs, and of individuals similarly situated to the Plaintiffs, to be free from excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to the Constitution of the United States.
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73. As a result of the aforementioned policies, procedures, customs, or practices, and deliberate indifference to the Plaintiffs’ rights and the rights of individuals similarly situated to the Plaintiffs, the Plaintiffs and individuals similarly suffered personal injuries and a deprivation of constitutional rights and are entitled to relief under 42 U.S.C. §1983.
VII. REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS TO RESTRAIN THE BEALE STREET SWEEP
74. The Plaintiffs repeat, re-allege, and incorporate herein each of the preceding paragraphs as if fully set forth herein.
75. The Plaintiffs seek a preliminary injunction restraining and prohibiting Defendants from conducting the Beale Street Sweep.
76. In the absence of the issuance of a preliminary injunction, the Defendants will cause immediate and irreparable harm to the Plaintiffs and individuals similarly situated to the Plaintiffs including, but not limited to, the deprivation of constitutional rights, physical, mental and emotional harm caused by the Defendants’ execution of the Beale Street Sweep and assault, use of excessive force, unlawful detention, unlawful arrest, and/or creating false criminal charges against individuals engage in lawful conduct.
77. There is no harm to the public interest if an injunction issues, and, in fact, the issuance of an injunction under the circumstances and facts of this case protects the public interest.
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78. The harm to citizens engaged in lawful conduct in the Beale Street Entertainment District from the actions of the Defendants outweighs any harm to the Defendants, thus injunctive relief is appropriate.
79. The Plaintiffs requests that a permanent injunction be issued after a trial on the merits enjoining and restraining the Defendants from executing the Beale Street Sweep.
VIII. PLAINTIFFS’ INDIVIDUAL CLAIMS AGAINST THE CITY FOR VIOLATION OF THEIR RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS
A. The Use of Excessive Force and Unlawful Arrest in the Beale Street Entertainment District 80. The Plaintiffs repeat, re-allege, and incorporate herein each of the
preceding paragraphs as if fully set forth herein. 81. Defendant City of Memphis implicitly or explicitly adopted and
implemented policies, procedures, customs, or practices authorizing MPD police officers, including but not limited to the Individual Defendants, in the performance of their official police duties in and around the Beale Street Entertainment District to assault, use excessive force, unlawfully detain, unlawful arrest and/or falsely create criminal charges against individuals, who are engaged in lawful conduct.
82. The City of Memphis knew, or should have known, that MPD police officers, including but not limited to the Individual Defendants, in the performance of their official police duties in and around the Beale Street Entertainment District were routinely assaulting, using excessive force, unlawfully detaining, unlawful arresting
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and/or falsely charging persons with crimes, who are engaged in lawful conduct in and around the Beale Street Entertainment District prior to and at the time of the unlawful detention and/or arrests of the Plaintiffs.
83. The City of Memphis did not, and does not, take any actions to stop MPD police officers, including but not limited to the Individual Defendants, in the performance of their official police duties in and around the Beale Street Entertainment District from assaulting, using excessive force, unlawfully detaining, unlawful arresting and/or falsely creating criminal charges against individuals, who are engaged in lawful conduct.
84. The City of Memphis knew or should have known that, in the absence of a reasonable procedure, policy, training, supervision or discipline to deter MPD police officers, including but not limited to the Individual Defendants, in the performance of their official police duties in and around the Beale Street Entertainment District from assaulting, using excessive force, unlawfully detaining, unlawful arresting and/or falsely creating criminal charges against individuals, who are engaged in lawful conduct, citizens including the Plaintiffs would be subjected to unlawful conduct by MPD police officers in the performance of their official police duties in and around the Beale Street Entertainment District.
85. The failure of the City of Memphis to adequately implement policies and procedures, train, supervise, or discipline MPD police officers, including but not limited to the Individual Defendants, amounts to deliberate indifference to the rights of the Plaintiffs, to be free from police assaults, excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to the Constitution of the United States.
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86. As a result of the aforementioned policies, procedures, customs, or practices, and deliberate indifference to the Plaintiffs’ rights, the Plaintiffs suffered a deprivation of their constitutional rights and personal injuries and are entitled to relief under 42 U.S.C. §1983.
B. The City’s Failure to Train, Supervise, and Discipline the Individual Defendants 87. The Plaintiffs repeat, re-allege, and incorporate herein each of the
preceding paragraphs as if fully set forth herein. 88. The Plaintiffs’ actions set forth herein did not constitute a crime and the
Individual Defendants did not have probable cause to use force against them or to arrest or detain them.
89. The force used by the Individual Defendants to arrest Plaintiff Cole was clearly excessive and was performed in a manner that caused harm to his person when Plaintiff Cole had committed no unlawful act and had acted in no way threatening to the life or safety of the Individual Defendants.
90. The arrest of Plaintiff Edmond was clearly unlawful and without probable cause.
91. The Individual Defendants routinely assault, use excessive force during arrests and unlawfully detain and unlawfully arrest, and create false criminal charges against innocent persons without probable cause.
92. Defendant City of Memphis failed to adequately supervise, investigate, and reprimand the Individual Defendants.
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93. Upon information and belief, the Individual Defendants have been the subject of numerous complaints submitted to the City of Memphis/Memphis Police Department Internal Affairs Bureau by citizens and/or visitors to the City of Memphis who complained of the Individual Defendants’ assaults, use of excessive force during an arrest, unlawful detention and arrest, and/or creation of false charges against innocent individuals without probable cause.
94. Upon information and belief, the Individual Defendants have rarely, if ever, been investigated or disciplined for their assaults, use of excessive force during an arrest, unlawful detention and arrest, and/or creation of false charges against innocent individuals without probable cause.
95. The City of Memphis’ policies, procedures, and customs pertaining to the investigation and discipline of assaults, use of excessive force during an arrest, unlawful detention and arrest, and/or creation of false charges against innocent individuals without probable cause by police officers are inadequate to protect civilians from police misuse of force.
96. Defendant City of Memphis had actual and constructive notice that the Individual Defendants routinely assaulted, used of excessive force during an arrest, unlawful detained and arrested, and/or created false charges against innocent individuals without probable cause, that complaints against the Individual Defendants by citizens and/or visitors to the City of Memphis were not being properly investigated and addressed by the City of Memphis, that alternatives existed to remedy the referenced unlawful conduct of the Individual Defendants.
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97. Defendant City of Memphis had actual and constructive notice that unless adequate hiring, training, supervision and investigation and discipline of complaints against the Individual Defendants occurred, the Individual Defendants would continue to undermine the constitutional rights of individuals including but not limited to the Plaintiffs.
98. Defendant City of Memphis deliberately chose not to pursue the alternatives to prevent and/or acquiesced in a long-standing policy or custom of inaction in regards to the Individual Defendants’ assaults, use of excessive force during an arrest and/or unlawful detention, arrest of innocent individuals without probable cause, and creation of sale charges.
99. The City of Memphis tolerated and acquiesced in the custom of excessive force and unlawful arrest routinely being used by the Individual Defendants and permitted a situation to exist where they were likely to injure members of the public engaged in lawful conduct.
100. If the City of Memphis had proper supervision, investigative and police disciplining procedures in place, its police officers including the Individual Defendants would not have pursued a settled practice of assaulting, using excessive force, unlawfully detaining and arresting, and fabricating criminal charges against individuals engaged in lawful conduct, and the Individual Defendants would not have assaulted and used excessive force against Plaintiff Cole, unlawfully detained and/or arrested Plaintiff Cole and Plaintiff Edmond, or created false criminal charges against Plaintiff Cole.
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C. General Allegations Germane to the City’s Constitutional Violations 101. The above described actions of the City and the Individual Defendants, in
their official capacity, were taken under color of state law and in violation of the rights secured to the Plaintiffs by the Fourth and Fourteenth Amendments of the Constitution of the United States. These rights include, but are not limited to, the right to be free from the excessive use of force, the right to be free from deprivations of liberty, and the right to be free from summary punishment that occur without due process of law.
102. At all relevant times, the Plaintiffs had a right to be free from excessive use of force, the right to be free from deprivations of liberty, the right to be free from summary punishment that occur without due process of law and the right to a fair trial. Each of these rights were clear and well-established at the time of the incidents and facts alleged herein.
103. At all relevant times herein, the City failed to exercise its ability and duty to intervene for the purpose of preventing the acts complained of herein.
104. The City of Memphis is responsible for the hiring, training, discipline and control of all personnel of the Memphis Police Department.
105. The City of Memphis establishes the Memphis Police Department’s policy with respect to the manner in which persons are arrested, the use of force in arrest, and performance of official police duties by on-duty and off-duty police officers within the City of Memphis.
106. All police officers referenced in this Complaint are employees of the City of Memphis.
107. The City of Memphis is liable because: 21

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(i) The Plaintiffs’ rights were violated pursuant to the unconstitutional policies, procedures, customs, or practices, and deliberate indifference referenced herein, whether express or implicit;
(ii) the City of Memphis had actual or constructive knowledge of the same or similar conduct by the Memphis Police Department’s employees including the Individual Defendants, and acted with deliberate indifference regarding same;
(iii) the City of Memphis’ failed to act to prevent such misconduct and deprivation of rights which permitted the same to become the policy, procedure, practice and/or custom of the Memphis Police Department.
108. The failure of the Defendant City of Memphis to adequately train, discipline and/or supervise Memphis Police Department personnel, including but not limited to the Individual Defendants, is derived from inadequate and constitutionally deficient hiring procedures, training procedures, and procedures involving the investigation of complaints against and discipline of Memphis police officers, and said failure amounts to a deliberate indifference to the rights of persons with whom Memphis police officers come into contact.
109. The misconduct and deprivation of the Plaintiffs’ rights by the City of Memphis and Memphis Police Department personnel as described herein was reasonably foreseeable to the Defendant City of Memphis.
110. The remedies available under Tennessee law for redressing the deprivation of the Plaintiffs’ constitutional rights are inadequate.
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111. The conduct of the Defendants was willful, malicious, oppressive and/or reckless, and was of such a nature that punitive damages should be imposed in an amount commensurate with the wrongful acts alleged herein.
112. The Individual Defendants, acted under color of law and in their official capacity, to deprive the Plaintiffs of their right to be free from the excessive use of force, the right to be free from deprivations of liberty, the right to be free from summary punishment that occur without due process of law and the right to a fair trial
113. As a direct and proximate result of the policies, procedures, customs, and actions of the Defendants, the Plaintiffs suffered deprivations of their constitutional rights, physical and mental pain and suffering, both past and future; and medical and psychological expenses, both past and future.
VIII. CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 AGAINST THE INDIVIDUAL DEFENDANTS, INDIVIDUALLY
114. The Plaintiffs repeat, re-allege, and incorporate herein each of the preceding paragraphs as if fully set forth herein.
115. The Individual Defendants individually and under color of law acted willfully, maliciously, unreasonably, recklessly and with deliberate indifference to, and with intentional and wanton disregard of the constitutional and federally protected civil rights of the Plaintiffs.
116. The aforesaid conduct of the Individual Defendants was motivated by evil motive or intent and involved willful, reckless and callous indifference to the federally protected rights of the Plaintiffs.
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117. A reasonable official in the Individual Defendants’ position would have understood that the aforesaid conduct violated the clearly established constitutional rights of the Plaintiffs.
118. By virtue of the foregoing, the Individual Defendants are liable to the Plaintiffs, pursuant to 42 U.S.C.A. § 1983. The Individual Defendants, acting individually and under color of state law, engaged in a course of conduct which caused pain, suffering, and injuries to the Plaintiffs, and violated their rights as guaranteed by the Fourth and Fourteenth Amendments of the Constitution of the United States. These include, but are not limited to, the right to be free from the excessive use of force, the right to be free from deprivations of liberty and the right to be free from summary punishment that occurs without due process of law and the right to a fair trial.
119. As a direct and proximate result of the actions of Individual Defendants, the Plaintiffs suffered deprivation of their constitutional rights, physical and mental pain and suffering, both past and future; and medical and psychological expenses, both past and future.
IX. CLAIM AGAINST THE CITY OF MEMPHIS PURSUANT TO THE TENNESSEE GOVERNMENTAL TORT LIABILITY ACT
120. The Plaintiffs repeat, re-allege, and incorporate herein each of the preceding paragraphs as if fully set forth herein.
121. Defendant, City of Memphis, by or through its agents, servants and employees, is guilty of negligent acts or omissions where immunity has been removed under Tenn. Code Ann. §29-20-205.
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122. The agents, servants, and/or employees of the City of Memphis were negligent in permitting the false imprisonment of the Plaintiff Cole on August 26, 2012 without probable cause to support the arrest and said negligence was committed within the scope of the employment of the agents, servants, and/or employees of the City of Memphis.
123. The agents, servants, and/or employees of the City of Memphis were negligent in permitting the false imprisonment of the Plaintiff Edmond on May 4, 2012 without probable cause to support the detention and said negligence was committed within the scope of the employment of the agents, servants, and/or employees of the City of Memphis.
124. The false imprisonment of the Plaintiffs was not pursuant to a mittimus from a court.
125. The City of Memphis had actual and constructive notice that its agents, servants, and/or employees falsely imprisoned the Plaintiffs without probable cause.
126. The City of Memphis had a duty to supervise and prevent its agents, servants, and/or employees from falsely imprisoning civilians and citizens, including the Plaintiffs, without probable cause and breached its duty by the acts complained of herein.
127. As a direct and proximate cause of the City of Memphis’ breach of duties, the Plaintiffs sustained great humiliation, mental anguish, mental and emotional distress, extreme embarrassment, damage to their personal reputation and standing in the community, for which damages are sought.
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X. CIVIL ASSAULT AND BATTERY 128. The Plaintiffs repeat, re-allege, and incorporate herein each of the preceding paragraphs as if fully set forth herein. 129. The Individual Defendants’ conduct as set forth herein was intentional and constitutes civil assault and battery for which they are liable to Plaintiff Cole. 130. The Individual Defendants’ conduct was in reckless disregard for the safety and well being of the Plaintiff Cole who was not engaged in criminal activity at the time of his assault and arrest. 131. Further, to the extent that the Individual Defendants were acting within the course and scope of their employment when they assaulted and battered Plaintiff Cole and may claim that they were acting within their discretion, the Plaintiffs aver that the Individual Defendants greatly or substantially exceeded their authority and caused Plaintiff Cole great physical, emotional and mental harm. 132. The Individual Defendants’ conduct is the proximate cause of the Plaintiff Cole’s injuries, including physical injuries, great humiliation, mental anguish, mental and emotional distress, extreme embarrassment, fear of loss of employment, damage to his personal and business reputation and standing the community, for which damages are sought.
XI. FALSE ARREST AND FALSE IMPRISONMENT 133. The Plaintiffs repeat, re-allege, and incorporate herein each of the preceding paragraphs as if fully set forth herein.
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134. The Individual Defendants, acting individually and in concert, knowingly, intentionally and recklessly arrested and imprisoned the Plaintiffs against their will, falsely and without just cause and/or probable cause.
135. The Individual Defendants’ conduct was in reckless disregard for the safety and well being of the Plaintiffs who were not engaged in criminal activity at the time of their arrest.
136. Further, to the extent that the Individual Defendants were acting within the course and scope of their employment when they falsely arrested and imprisoned the Plaintiffs and may claim that they were acting within their discretion, the Plaintiffs aver that the Individual Defendants greatly or substantially exceeded their authority and caused the Plaintiffs’ harm.
137. The Individual Defendants’ conduct is the proximate cause of the Plaintiffs’ injuries, including physical injuries, great humiliation, mental anguish, mental and emotional distress, extreme embarrassment, fear of loss of employment, damage to their reputation and standing in the community and attorney’s fees and expenses related to criminal proceeding, for which damages are sought.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs demand that a jury be empanelled to try the issues raised herein which are properly triable before a jury of their peers and prays for a judgment against the Defendants referenced above for the following:
(i) Certification of the case as a class action maintainable under the Federal Rules of Civil Procedure Rule 23(a), (b)(1), (b)(2), and (b)(3), designation of the Plaintiffs as representatives of the class and their counsel of record 27

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as class counsel, and require the City of Memphis to bear the cost of class notice. (ii) Issue a Preliminary Injunction and a Permanent Injunction restraining and prohibiting Defendant City of Memphis from executing the Beale Street Sweep policy. (iii) Compensatory damages awarded to Plaintiff Lakendus Cole for both the federal and state court claims and personal injuries in the amount of $2,500,000.00 or an amount the jury may determine just and proper under the circumstances and/or which may be permitted by law. (iv) Compensatory damages awarded to Plaintiff Leon Edmond for both the federal and state court claims in the amount of $250,000.00 or an amount the jury may determine just and proper under the circumstances and/or which may be permitted by law. (v) Compensatory damages to the class members for both the federal and state court claims against the Defendant City of Memphis in an amount to be determined at trial. (ii) Punitive damages against the Defendants; (iii) Attorney’s fees and costs; (iv) Pre and post judgment interest; (v) Discretionary costs; and (vi) All such further relief, both general and specific, to which Plaintiffs or the class members may be entitled or to which they may show themselves entitled.
28

Case 2:13-cv-02117-JPM-dkv Document 1 Filed 02/25/13 Page 29 of 29 PageID 29
Respectfully submitted, SPENCEWALK, PLLC s/ Robert L. J. Spence, Jr. Robert L. J. Spence, Jr. (BPR# 12256) Bryan M. Meredith (BPR# 26876) One Commerce Square, Suite 2200 Memphis, Tennessee 38103 (901) 312-9160 (ofc.) (901) 521-9550 (fax.) Attorneys for Plaintiffs
29

 
 Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

2014 WL 8508560 Only the Westlaw citation is currently available.
United States District Court, W.D. Tennessee, Western Division.
Lakendus COLE and Leon Edmond, individually and as representatives of all others similarly situated, Plaintiffs, v.
CITY OF MEMPHIS, TENNESSEE, and Robert Forbert, Samuel Hearn, Christopher Bing, John
Faircloth, Cari Cooper, and Robert Skelton, individually and in their official capacities as City
of Memphis Police Officers, Defendants.
No. 2:13–cv–02117–JPM–dkv. |
Signed Sept. 29, 2014.
Attorneys and Law Firms
Bryan Meredith, Robert L.J. Spence, Jr., Spencewalk, PLLC, Emmett Lee Whitwell, The Spence Law Firm, PLLC, Memphis, TN, for Plaintiffs.
J. Michael Fletcher, Michael Fletcher Law Office, Zayid A. Saleem, City Attorney’s Office, Deborah E. Godwin, John Michael Ryall, Mary Elizabeth McKinney, Godwin Morris Laurenzi & Bloomfield, P.C., Memphis, TN, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
JON P. McCALLA, District Judge.
*1 Before the Court is Plaintiffs’ Motion for Class Certification, filed November 27, 2013. (ECF No. 36.) Defendant City of Memphis (“the City”) filed a Response on December 18, 2013. (ECF No. 40.) For the reasons set
1

for below, the Motion is GRANTED in part and DENIED in part.
I. BACKGROUND
A. Factual Allegations Plaintiff Lakendus Cole was a police officer employed with the City of Memphis Police Department Organized Crime Unit, and Plaintiff Leon Edmond is a Special Agent employed with the Bureau of Alcohol, Tobacco, Firearms and Explosives. (Compl. at 1–2, ECF No. 1 .)
Plaintiffs assert a class action claim against Defendant City of Memphis for
the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (“MPD”) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers (“Beale Street Police Sweep”).
(Id. at 2.) According to Plaintiffs, “[t]he Beale Street Police Sweep routinely occurs in the early morning hours on Saturdays and Sundays and during certain scheduled entertainment events on weekdays.” (Id.) Plaintiffs assert that the Beale Street Police Sweep “incites violence amongst its employee police officers and creates an environment where they become aggressive, agitated, frenetic, and confrontational with persons lawfully standing on a sidewalk or upon Beale Street.” (Id.)
Under 42 U.S.C. § 1983, Plaintiffs Cole and Edmond also assert claims individually against the City of Memphis. “Plaintiff Cole, while off-duty and dressed in civilian clothing, was outside of Club 152 on Beale Street....” (Id. ¶ 30.) “Plaintiff Cole was not intoxicated and had not consumed an alcoholic beverage.” (Id. ¶ 31.) “Pursuant to

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

the Beale Street Sweep, prior to Plaintiff exiting Club 152, MPD police officers including the Individual Defendants ordered all individuals to immediately leave the sidewalks and street in the Beale Street Entertainment District.” (Id. ¶ 32.) “The Individual Defendants suddenly grabbed Plaintiff Cole and[,] without reasonable cause to do so [,] began to assault and viciously attack him.” (Id. ¶ 35.) “The Individual Defendants slammed Plaintiff Cole’s body into the police vehicle twice with such force that the impact dented the body of the police vehicle.” (Id. ¶ 36.) The Individual Defendants handcuffed Plaintiff Cole, placed him in the back of the police vehicle, and transported Plaintiff Cole to the Shelby County Jail. (Id. ¶¶ 37–38.) All criminal charges were later dismissed. (Id. ¶ 41.)
“Plaintiff Edmond, while off-duty and dressed in civilian clothing and visiting Memphis[,] was walking in the Beale Street Entertainment District enjoying the sights and music.” (Id. ¶ 46.) “Plaintiff Edmond was not intoxicated.” (Id. ¶ 47.) As Plaintiff Edmond attempted to enter Club 152 on Beale Street, “Plaintiff Edmond and other family members were approached by Defendant Cooper who ordered Plaintiff Edmond and his family member [sic] to stop walking and demanded that they speak to her regarding their attempt to enter Club 152.” (Id. ¶ 51.) “Defendant Cooper and Defendant Skelton placed Plaintiff Edmond under arrest for public intoxication.” (Id. ¶ 54.) After advising Defendant Cooper and Defendant Skelton that Plaintiff Edmond was a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), MPD police officers contacted Plaintiff Edmond’s supervisor, who contacted another ATF special agent Marcus Watson in charge of the Memphis Field Office. (Id. ¶¶ 55–57.) Watson arrived on the scene, Plaintiff Edmond was released from police custody. (Id. ¶ 58.)
*2 Defendant City of Memphis claims that the practice of “advis[ing] patrons standing on Beale Street at 2:30am to make their way into a club or make preparations to leave Beale Street” and, after 3:00 a.m., “uniformly ordering patrons off of Beale Street, with the option of entering a club” has been “abandoned by order of MPD command staff.” (Def. City’s Resp. to Pl.’s Mot. ¶¶ 1–2, ECF No. 40.) City of Memphis also contends and that “[a]t no time subsequent to June 21, 2012 did the MPD engage in this practice.” (Id. ¶ 2.) Instead, City of Memphis asserts that Cole’s and Edmond’s interactions with police as described in their Complaint were MPD responses to reports of illegal conduct. (Id. ¶¶ 3–6.)
2

City of Memphis contends that on August 26, 2012, MPD officers responded to a disorderly conduct call near 152 Beale Street, where “Officers instructed Plaintiff Cole to go inside the club [Club 152] or leave the street. Plaintiff Cole refused to comply and acted disrespectfully towards the officers.” (Id. ¶¶ 3–4 (alteration in original).)
Defendant City of Memphis asserts that on May 5, 2012, “MPD officers responded to a disturbance call at the entrance to 152 Beale.” (Id. ¶ 5.) “At that time officers came upon a visibly intoxicated Plaintiff Edmonds in an altercation with the doorman and bouncers at 152 Beale. MPD officers removed Plaintiff from the area and discovered that he was presently armed with a GLOCK Model 27 .40 caliber pistol.” (Id. ¶ 6.)
B. Procedural History On February 25, 2013, Lakendus Cole and Leon Edmond (collectively, “Plaintiffs” or “Named Plaintiffs”) filed a Class Action Complaint for damages and a Complaint for deprivation of constitutional rights and injunctive relief. (Compl. ECF No. 1.) On April 4, 2013, Defendant Cari Cooper filed an Answer. (ECF No. 6.) On April 11, 2013, Defendant City of Memphis filed an Answer. (ECF No. 8.) On June 14, 2013, Defendant Robert Skelton filed an Answer. (ECF No. 25.) On June 18, 2013, Defendants Christopher Bing, John Faircloth, Robert Forbert, and Samuel Hearn filed an Answer. (ECF No. 27.)
On April 2, 2013, Defendants Robert Forbert and John Faircloth filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 5.) On April 10, 2013, Plaintiffs filed a Response in opposition to the Motion to Dismiss. (ECF No. 7.) On June 4, 2013, the Court entered an Order granting in part and denying in part the Motion to Dismiss. (ECF No. 22.) The Court found that Plaintiffs have stated a claim pursuant to Rule 8(a) but dismissed Plaintiffs’ substantive due-process claim under the Fourteenth Amendment as to Defendants Robert Forbert and John Faircloth. (ECF No. 22.)
On May 16, 2013, Defendant Christopher Bing filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 12.) On May 28, 2013, Plaintiffs filed a Response in opposition to the Motion to Dismiss. (ECF No. 13.) On June 6, 2013, the Court entered an Order granting in part the Motion to Dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

denying in part the Motion as to all other claims against Bing. (ECF No. 23.)
*3 On May 31, 2013, Defendant Samuel Hearn filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 21.) No Response was filed within the required time. On July 10, 2013, the Court entered an Order granting in part the Motion to Dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but denying in part the Motion as to all other claims against Hearn. (ECF No. 29.)
On November 27, 2013, Plaintiffs filed the instant Motion to Certify Class. (ECF No. 36.) Based on the Court’s grant for extension of time, Defendant City of Memphis filed a Response on December 18, 2013. (ECF No. 40.) On January 9, 2014, the Court held a hearing on the instant Motion. (ECF No. 42.)
On March 13, 2014, Plaintiffs filed a Motion to Compel Defendant City of Memphis to produce “records from the arrest/detention of individuals on Beale Street from February 2012 to February 2013,” in response to the Plaintiffs’ First Set of Interrogatories and First Request for Production of Documents. (ECF No. 56 at 2.) On March 17, 2014, the Motion was referred to the Magistrate Judge for determination. (ECF No. 57.) On March 26, 2014, Defendant City of Memphis filed its Response. (ECF No. 58.) On April 10, 2014, the Magistrate held a hearing on the Motion to Compel, ordered Defendant City of Memphis to produce the record of arrest, and declined to award attorneys’ fees at that time. (ECF No. 64.) On April 18, 2014, the Magistrate entered an Order granting in part and denying in part the Motion to Compel. (ECF No. 69.) The Order denied “Plaintiffs’ request that the City produce the Use of Force Reports (a.k.a. ‘Response to Resistance forms’) and the files of the Inspectional Services Bureau at issue without redaction,” but granted the requested production with redaction. (Id. at 1.) The Order also granted “Plaintiffs’ request that the City produce documentation pertaining to the arrest of individuals on Beale Street.” (Id. at 2.)
On March 26, 2014, Plaintiffs filed a Motion requesting the following relief: to strike the Affidavit of Deputy Chief Arley Knight; to allow the Beale Street Overview dated October 2, 2012 to supplement the instant Motion; and to strike the City’s Answer to paragraphs 24, 25, and 26 of the Complaint. (ECF No. 60.) On April 9, 2014, Defendant City of Memphis filed its Response. (ECF Nos. 62, 63.) On April 11, 2014, Plaintiffs filed a Motion for Leave to Reply (ECF No. 66), which the Court granted on
3

April 14, 2014 (ECF No. 67). On April 15, 2014, Plaintiffs filed their Reply. (ECF No. 68.)
On May 15, 2014, Plaintiffs filed a Motion to Compel Defendant City of Memphis “to file an Affidavit confirming that it produced all electronically stored information that it possesses responsive to the Plaintiffs’ First and Second Request for Production of Documents propounded in this case.” (ECF No. 73 at 1.) On May 29, 2014, Defendant City of Memphis filed a Response. (ECF No. 75.)
*4 On June 3, 2014, the Court entered an Order referring Plaintiffs’ Motion to Compel (ECF No. 73) to the Magistrate for determination. (ECF No. 76.) On June 4, 2014, the Court entered another Order referring Plaintiffs’ Motion to Strike (ECF No. 60) for report and recommendation. (ECF No. 78.)
On June 12, 2014, the Magistrate held a hearing on the two Motions. (ECF No. 80.) On June 16, 2014, the Magistrate entered an Order granting in part and denying in part Plaintiffs’ Motion to Compel (ECF No. 73). (ECF No. 81.) The Motion was denied “[t]o the extent the plaintiffs’ motion requests the City to provide an affidavit stating that it has produced all electronically stored information responsive to the plaintiffs’ discovery requests.” (Id. at 2.) Plaintiffs’ oral motion to require the City to conduct another search for electronically-stored information was granted with the proviso that the search be conducted by a third-party vendor, limited to May 2011 to May 2013. (Id. at 2–3 .)
On June 17, 2014, the Court entered an Amended Order, withdrawing the Referral for Report and Recommendation (ECF No. 78) and instead referring the Motion to Strike (ECF No. 60) for determination. (ECF No. 83.) On June 18, 2014, the Magistrate entered an Order granting in part and denying part the Motion to Strike (ECF No. 60). (ECF No. 84.) In that Order, the Magistrate (1) denied Plaintiffs’ Motion to Strike the Affidavit of Deputy Chief Arley Knight; (2) granted Plaintiffs’ Motion to Supplement their Motion for Class Certification; (3) denied Plaintiffs’ Motion to Strike the City’s Answers to paragraphs 24, 25, and 26 of the Complaint; and (4) submitted a report and recommendation1 that Plaintiffs’ Motion to grant the Plaintiffs’ Motion for Class Certification as a sanction be denied. (Id.) As granted by the Magistrate’s Order, Plaintiffs filed a Supplemental Memorandum of Law in support of its Motion for Class Certification on June 30, 2014 (ECF No. 85); Defendant City of Memphis filed its

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

Response to the Supplemental Memorandum on July 7, 2014 (ECF No. 86); and Plaintiffs filed their Reply on July 14, 2014 (ECF No. 87).
II. STANDARD OF REVIEW “A district court has broad discretion to decide whether to certify a class.” In re Whirlpool Corp. Front–Loading Washer Products Liab. Litig., 722 F.3d 838, 850 (6th Cir.2013) (citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.1996)), cert. denied, 134 S.Ct. 1277 (2014). The United States Court of Appeals for the Sixth Circuit has recognized that the “class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” In re Whirlpool, 722 F.3d at 850 (quoting Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011)) (internal quotation marks omitted).
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 131 S.Ct. at 2551.
A. Requirements of Rule 23(a) and Rule 23(b) *5 Plaintiffs seeking class certification must meet two requirements under Federal Rule of Civil Procedure 23. First, regarding the perquisites for class certification, Rule 23(a) requires:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and
4

adequately protect the interests of the class.

Fed.R.Civ.P. 23(a)(1)-(4) (emphases added). The four

requirements under Rule 23(a)—i.e., “numerosity,

commonality,

typicality,

and

adequate

representation—serve to limit class claims to those that

are fairly encompassed within the claims of the named

plaintiffs because class representatives must share the

same interests and injury as the class members.” In re

Whirlpool, 722 F.3d at 850 (quoting Dukes, 131 S.Ct. at

2550). “[P]laintiffs carry the burden to prove that the class

certification prerequisites are met....” Id. at 851 (citing In

re Am. Med. Sys., Inc., 75 F.3d at 1079).

Second, plaintiffs must satisfy at least one of the requirements under Rule 23(b). Id. at 850. In the instant case, Plaintiffs seek class certification under Rule 23(b)(2) and Rule 23(b)(3). (ECF No. 36–1 at 12.) Rule 23(b) requires, in relevant part:
A class action may be maintained if Rule 23(a) is satisfied and if:
....
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Fed.R.Civ.P. 23(b)(2)-(3).

B. Consideration of the Merits at the Class Certification Stage “Class certification is appropriate if the court finds, after conducting a ‘rigorous analysis,’ that the requirements of Rule 23 have been met.” In re Whirlpool, 722 F.3d at 851 (citing Dukes, 131 S.Ct. at 2551; Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir.2012); Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir.2006)). A “rigorous analysis” means that

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

the class determination should be predicated on evidence presented by the parties concerning the maintainability of the class action. On occasion it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and rigorous analysis may involve some overlap between the proof necessary for class certification and the proof required to establish the merits of the plaintiffs’ underlying claims.
*6 Id. (internal quotation marks and citations omitted). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1194–95 (2013)).
III. ANALYSIS Plaintiffs seek to certify the following putative class:
All persons who have been unlawfully removed from Beale Street and/or adjacent sidewalks by City of Memphis police officers pursuant to the custom, policy and practice known as the Beale Street Sweep.
(ECF No. 36 at 1.)

addressing the requirements of Rule 23(a)....” City of Fairview Heights v. Orbitz, Inc., 05–CV–840–DRH, 2008 WL 895650, at *2 (S.D.Ill. Mar. 31, 2008). First, “the class must be sufficiently defined so that the class is identifiable.” Id. (citing Alliance to the End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977)); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 184 F.R.D. 583, 586 (N.D.Ohio 1998), aff’d, 308 F.3d 523 (6th Cir.2002); see Young, 693 F.3d 532, 537–38 (6th Cir.2012) (“Before a court may certify a class pursuant to Rule 23, the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.”) (internal quotation marks omitted). Second, the named plaintiffs must fall within the proposed class and have standing both at the time the complaint is filed and at the time the class is certified. Farm Labor, 184 F.R.D. at 586 (“[I]t should be established that plaintiffs are members of an identifiable class and that they have standing to bring this action.”); see Brunet v. City of Columbus, 1 F.3d 390, 399–400 (6th Cir.1993) (“In class actions, standing must exist both at the time the complaint is filed and at the time the class was certified.”) (citing Sosna v. Iowa, 419 U.S. 393, 403 (1975)); Brent v. Midland Funding, LLC, 3:11 CV 1332, 2011 WL 3862363, at *10 (N.D.Ohio Sept. 1, 2011) (“[C]lass certification implicitly requires ... that the named representative falls within the proposed class.”) (citing In re A.H. Robins Co., Inc., 880 F.2d 709, 728 (4th Cir.1989)); City of Fairview Heights, 2008 WL 895650 at *2 (“[T]he named representative must fall within the proposed class.”); Faralli v. Hair Today, Gone Tomorrow, 1:06 CV 504, 2007 WL 120664, at *4 (N.D.Ohio Jan. 10, 2007); Bentley v.. Honeywell Int’l, Inc., 223 F.R.D. 471, 477 (S.D.Ohio 2004).
1. Identifiable class “[T]he class description [must be] sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.” 7A Wright, Miller & Kane, Federal Practice and Procedure § 1760 (3d ed.2005) (emphases added); accord Young, 693 F.3d at 537–38.

A. Implied Prerequisites to the Rule 23(a) Inquiry “[The] courts have implied two [ ] prerequisites to class certification that must be satisfied prior to even
5

*7 Although unique to each case, important elements that form the contour of a putative class are: (1)

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

identification of a particular group that was harmed during a particular time frame, in a particular location, in a particular way; and (2) an order defining the class such that its membership may be ascertained in some objective manner.... A class definition is therefore too general where it requires the Court to determine whether an individual’s constitutional rights have been violated in order to ascertain membership in the class itself.
Schilling v. Kenton Cnty., Ky., No. CIV.A. 10–143–DLB, 2011 WL 293759, at *5 (E.D.Ky. Jan. 27, 2011) (citations omitted). Further, “[a] proposed class may be deemed overly broad if it would include members who have not suffered harm at the hands of the defendant and are not at risk to suffer such harm.” Faralli v. Hair Today, Gone Tomorrow, 1:06 CV 504, 2007 WL 120664, at *6 (N.D.Ohio Jan. 10, 2007) (quoting Chaz Concrete Co. v.Codell, 2006 WL 2453302, at *6 (E.D.Ky. Aug. 23, 2006)). “The relevant question, however, is not whether the Court can compile a complete list of class members from the information in the record, but rather whether the class definition is precise enough to allow the Court to determine whether a particular person falls within its scope.” Allen v. Int’l Truck & Engine Corp., 3:07–cv–361, 2011 WL 2975543, at *5 (S .D. Ohio July 21, 2011). “[T]he proposed class definition must be sufficiently definite to ascertain class membership and must not depend on a merits-based adjudication to determine inclusion.” Schilling, 2011 WL 293759 at *7.
The Court finds Plaintiffs’ class definition sufficiently definite to determine whether an individual is a class member. First, Plaintiffs limit the class in terms of time. Because the definition limits the class to “individuals unlawfully removed pursuant to the Beale Street Sweep,” (id.), the class excludes individuals removed from Beale Street at other times or by methods other than the Beale Street Sweep. Plaintiffs explain that the Beale Street Sweep “occurs in the early morning hours on Saturdays and Sundays and during certain scheduled entertainment events on weekdays.” (Compl. ¶ 26, ECF No. 1.) Thus, individuals removed from the Beale Street Entertainment District at times other than those specified fall outside the scope of the defined class.
6

Second, the particular way in which putative class members are harmed during the Beale Street Sweep is made sufficiently clear by the complaint and supporting evidence. See Schilling, 2011 WL 293759, at *5. In support of Plaintiff’s Complaint and Motion for class certification, Plaintiffs submitted an affidavit by Jason Hipner who had firsthand knowledge of the Beale Street Sweep. (See Aff. Hipner ¶¶ 2–5, ECF No. 35.) Therein, Hipner describes in detail the methods employed by the police in the Beale Street Sweep. Hipner explains, “[t]he Beale Street Sweep was a regular and routine occurrence and would, like clockwork, begin at or around 2:30 a.m. or 3:00 a.m. each morning without regard to the on-going activities on Beale Street.” (Id. ¶ 6.) Hipner further attests that the MPD officers would line up “shoulder to shoulder, in a straight line perpendicular to Beale Street,” and “would march east down Beale Street toward Fourth Street ordering and physically removing citizens from Beale Street and its adjacent sidewalks.” (Id. ¶ 8–9.)
*8 Plaintiffs’ Complaint also sheds light on the methods used in the Beale Street Sweep in describing the details of Plaintiffs’ removal. Plaintiffs allege that on August 30, 2012, “MPD police officers ... ordered all individuals to immediately leave the sidewalks and street in the Beale Street Entertainment District.” (Compl. ¶ 32, ECF No. 1.) Plaintiffs further allege that MPD officers shouted at Cole, “ ‘[D]idn’t we tell you to get off the street?’ “ (Id. ¶ 33.) Similarly, Plaintiffs allege that on May 5, 2012, MPD officers “ordered all individuals to immediately leave the sidewalks and street of the Beale Street Entertainment District.” (Id. ¶ 48.) These alleged facts indicate a general clearing of the area rather than specific actions directed at Plaintiffs.
Third, the Beale Street Sweep is limited in location to Beale Street Entertainment District. (Id. ¶ 32.)
Finally, the Court finds that class members will have suffered or will be at risk of injury due to the Beale Street Sweep. See Faralli, 2007 WL 120664, at *6. As defined, an individual member must have been “removed” from Beale Street due to the sweep, and not for some other reason. Should Plaintiffs succeed on the merits in proving the Beale Street Sweep to be unconstitutional, the Court is satisfied that all members will have suffered an injury, even if slight.
The specificity with which Plaintiffs define the Beale Street Sweep ensures that the Court will not have to delve deeply into the merits of each individual’s case to determine whether an individual is a member of the class.

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

An individual who was removed from the small section of Beale Street in the early morning hours on a Saturday, Sunday, or after certain scheduled entertainment events as a result of street clearing by the police will be a member of the class. Accordingly, the Court finds that Plaintiffs have defined the class with sufficient precision.
2. Plaintiffs’ Class Membership and Standing “A named plaintiff in a class action must show that the threat of injury in a case such as this is ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ “ Sosna v. Iowa, 419 U.S. 393, 402–03 (1975) (citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974); Golden v. Zwickler, 394 U.S. 103, 109–110 (1969)). Standing requires a showing by Plaintiffs of: 1) injury in fact; 2) causal connection between the injury and the complained of conduct; and 3) that success on the merits will likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
Defendant City of Memphis argues that the Named Plaintiffs, Cole and Edmond, lack standing to certify the class because they themselves do not meet the criteria for class membership. (ECF No. 40 at 8.) The City asserts that Plaintiffs’ removal from Beale Street resulted from disturbance calls rather than from a general sweep of the Beale Street Entertainment District. (Id. at 10.) The City further asserts that Plaintiffs have provided no evidence that “the ‘Beale Street Sweep’ is in effect or was in effect at the time of their alleged injuries.” (Id.)
*9 Defendants’ arguments conflate the merits of Plaintiffs’ claims with the requirements for establishing class certification. See Amgen, 133 S.Ct. at 1194–95 (“Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”). Whether the Beale Street Sweep continues today as a custom and was in effect at the time of Plaintiffs’ removal from the Beale Street Entertainment District are questions properly reserved for the trier of fact. Both Plaintiffs allege sufficient facts that their individual removals were due to the Beale Street Sweep rather than disturbance calls. Plaintiffs allege that after ordering everyone off the streets and sidewalks, officers shouted at Cole, “[D]idn’t we tell you to get off the street?” (Compl. ¶¶ 32–33, ECF No. 1.) Plaintiffs further allege that officers ordered individuals to immediately
7

leave the street and sidewalks before Edmond’s removal. (Id. ¶ 48.) Furthermore, it is undisputed that Plaintiff Edmond was removed from the Beale Street Entertainment District in the early morning hours on a Sunday and Plaintiff Cole in the early morning hours on a Saturday. (Compl. ¶¶ 30, 46, ECF No. 1; ECF No. 40 ¶¶ 3, 5.) This is around the time a Beale Street Sweep would be expected to have occurred. (See Compl. at 2, ECF No. 1; aff. Hipner ¶ 6, ECF No. 35.) These facts are sufficient to place Plaintiffs within the scope of the defined class.
Additionally, Plaintiffs allege direct injury suffered as a result of their removal, including deprivation of constitutional rights, and economic, physical, mental and emotional distress. (Id .) While the Court does not reach the merits of these allegations, the Court finds they are sufficient to show injury in fact and a causal connection between the MPD officers’ actions and Plaintiffs’ injuries.
Moreover, should Plaintiffs prevail in showing that the Beale Street Sweep is unconstitutional and continues in practice, declaratory and injunctive action would redress Plaintiffs’ injuries. Declaratory relief would establish a legal basis for Plaintiffs’ claims for damages. Injunctive relief would prevent Plaintiffs from suffering the same or similar injuries at a future time in the Beale Street Entertainment District. Accordingly, the Court finds that Plaintiffs’ Cole and Edmond have standing as members of the defined class to bring suit against Defendants.
For the foregoing reasons, Plaintiffs have satisfied the inherent requirements of defining an identifiable class and establishing standing as class members.
B. Rule 23(a) Analysis
1. Numerosity Under Rule 23(a)(1), Plaintiffs must demonstrate that the putative class is “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “While no strict numerical test exists, substantial numbers of affected [individuals] are sufficient to satisfy this requirement. Nonetheless, impracticability of joinder must be positively shown, and cannot be speculative.” Young, 693 F.3d at 541 (citations omitted) (internal quotation marks omitted). “The numerosity requirement requires

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

examination of the specific facts of each case and imposes no absolute limitations.” In re Am. Med. Sys., 75 F.3d at 1079 (alteration omitted) (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980)) (internal quotation marks omitted). A “rigorous analysis” requires that “the class determination should be predicated on evidence presented.” In re Whirlpool, 722 F.3d at 851 (citing In re Am. Med. Sys., 75 F.3d at 1079); see Dukes, 131 S.Ct. at 2551.
*10 In their Complaint, Plaintiffs allege that the exact number of the class is not presently known but believes that the class includes “hundreds of individuals.” (Compl. ¶ 13, ECF No. 1). In the instant Motion, Plaintiffs assert that “[t]he proposed class in this case definitely exceeds forty members and based on the affidavit of Jason Hipner includes thousands of citizens.” (ECF No. 36–1 at 8–9 (footnote omitted).) Plaintiffs also contend that the class “includes as yet unidentifiable citizens/pedestrians at risk of being illegally assaulted by the Beale Street Sweep.” (Id. at 9.) Neither Plaintiffs’ Supplemental Memorandum (ECF No. 85) nor their Supplemental Reply (ECF No. 87) adds further argument or evidence as to the numerosity prerequisite under Rule 23(a)(1).
In its Response, the City first argues that “Mr. Hipner’s affidavit alleges that from September 2007 through December 2011, Mr. Hipner would regularly observe the streets during early mornings on weekends and observed the ‘Beale Street Sweep’ in action on a regular basis.” (ECF No. 40 at 8–9.) The City, therefore, contends that, “Mr. Hipner does not claim to have witnessed the ‘Beale Street Sweep’ occur during the time relevant to this lawsuit, prior to 3:00 AM on May 5, 2012 through August 26, 2012.” (Id.) Second, the City argues that Hipner’s statements are “so vague as to be effectively useless in the determination of this motion,” and his statements are “mere conjecture.” (Id. at 9) Defendant City of Memphis contends that Plaintiffs offer no support to satisfy the numerosity requirement. (Id.)
The Court agrees with Plaintiffs that Hipner’s statements provide a sufficient evidentiary basis to satisfy the numerosity requirement. Hipner personally observed the Beale Street Sweep from an unobstructed vantage point over a period of several years. (Aff. Hipner ¶¶ 3–5, ECF No. 35.) Hipner affirms that “[o]n multiple occasions, the Beale Street Sweep forced hundreds, if not thousands, of citizens off Beale Street and its adjacent sidewalks.” (Id. ¶ 10.) Contrary to Defendants’ assertions, Hipner’s statements are not vague. Hipner described how and when the Beale Street Sweep was conducted.
8

The Beale Street Sweep was conducted with the use of walking police officers, police officers on horseback, and police officers operating Segway-like scooters (“Police Line”). Beginning at the intersection of Beale Street and Second Street, the Memphis Police Department would start the Police Line by lining up, essentially shoulder to shoulder, in a straight line perpendicular to Beale Street. The Police Line would march east down Beale Street toward Fourth Street ordering and physically removing citizens from Beale Street and its adjacent sidewalks.
(Id. ¶¶ 8–9.) The Court finds that this evidence meets the minimum requirements of the numerosity inquiry under Rule 23(a)(1).
Defendants’ argument that Hipner did not witness the Beale Street Sweep that affected Plaintiffs is inapposite in this case, where Plaintiffs seek to certify a class of persons injured at various times over an extended period. Instead, the test is whether Plaintiffs have shown that joinder is impracticable. Fed.R.Civ.P. 23(a)(1); Young, 693 F.3d at 541. Here, Hipner’s statements are evidence that potentially hundreds or thousands of individuals, most of whom are strangers, have been injured by Defendants’ alleged unconstitutional acts over a period of several years. (See Aff. Hipner ¶ 10, ECF No. 35.) Accordingly, Plaintiffs have carried their burden of establishing the numerosity prerequisite of Rule 23(a).
2. Commonality *11 Under Rule 23(a)(2), Plaintiffs must demonstrate that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). To satisfy Rule 23(a)(2), a plaintiff’s “claims must depend upon a common contention ... of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Davis v. Cintas Corp., 717 F.3d 476, 487 (6th Cir.2013) (emphasis added) (quoting Dukes, 131 S.Ct. at 2551).

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

“The crucial inquiry ... is ‘the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” ’ Id. (quoting Dukes, 131 S.Ct. at 2551). “In other words, Plaintiffs must have a common question that will connect many individual promotional decisions to their claim for class relief.” Id. (quoting Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir.2011)) (internal quotation marks omitted).
Plaintiffs assert common questions of law and fact, alleging that Defendant City of Memphis violated rights under the Fourth and Fourteenth Amendments, 42 U.S.C. § 1983, and state law. (Compl. ¶¶ 14–15, ECF No. 1.) Plaintiffs contend that:
The named plaintiffs were illegally assaulted and forcibly removed from Beale Street pursuant to the Beale Street Sweep policy and bring this action on behalf of themselves and the thousands of others [sic] citizens, who like them, have been and/or are at risk of being assaulted without reasonable suspicion on the basis of the Beale Street Sweep policy.
(ECF No. 36–1 at 7.) Plaintiffs argue that class members have suffered the same injury and that the resolution of the following core factual issues will resolve all class members’ claims against the City: (1) whether Defendant City of Memphis has a policy or custom of removing law-abiding citizens without reasonable suspicion; (2) whether Memphis has a policy or custom of removing law-abiding citizens absent exigent circumstances; and (3) whether this policy is constitutional. (Id. at 10.)
The City argues that Plaintiffs have failed to show that the injuries of the class are the result of a common question of law or that their injuries are typical of the class they wish to represent. (ECF No. 40 at 9.) For example, Defendant City of Memphis asserts that Plaintiffs “were hardly ‘suspicionless citizens,’ as each of the altercations that took place between the Plaintiffs and MPD officers was the result of disturbance calls received from private citizens and employees of Beale Street clubs.” (Id. at 10.)
The Court agrees with Plaintiffs as to the existence of common questions of law and fact. As discussed by
9

Plaintiffs, the common legal question is whether there is “a causal link between the Beale Street Sweep policy and the harm caused to the class members.” The Court also agrees with Plaintiffs that resolution of core factual issues will resolve class members’ claims against the City. Accordingly, the prerequisite that “there are questions of law or fact common to the class” is met. Fed.R.Civ.P. 23(a)(2).
3. Typicality *12 Under Rule 23(a)(3), Plaintiffs must demonstrate that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3); accord Young, 693 F.3d at 542.
Typicality is met if the class members’ claims are “fairly encompassed by the named plaintiffs’ claims.” This requirement insures that the representatives’ interests are aligned with the interests of the represented class members so that, by pursuing their own interests, the class representatives also advocate the interests of the class members.
In re Whirlpool, 722 F.3d at 852–53 (citations omitted) (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir.1998) (en banc)); accord Beattie v. CenturyTel, Inc., 511 F .3d 554, 561 (6th Cir.2007) (“A claim is typical if ‘it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” ’ (quoting In re Am. Med. Sys., 75 F.3d at 1082)).
[T]he typicality requirement is not satisfied when a plaintiff can prove his own claim but not necessarily have proved anybody’s [sic] else’s claim. Lastly, for the district court to conclude that the typicality requirement is satisfied, a representative’s claim need not always involve the same facts or law, provided there is a common element of fact or law.

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

Beattie, 511 F.3d at 561 (emphasis added) (internal quotation marks and citations omitted).
Plaintiffs allege that class representatives are typical of the class. (Compl. ¶ 15, ECF No. 1.) Plaintiffs also argue that they satisfy the typicality requirement because all members of the putative class will benefit from a positive resolution in this action. (ECF No. 36–1 at 11.) “In this case, the plaintiffs[’] request for injunctive and declaratory relief benefits the entire class and the claims of the named plaintiffs are typical of the proposed class.” (Id.)
The City asserts the same arguments against typicality as against commonality. As discussed, the thrust of the City’s arguments is that Plaintiffs are not typical representatives of the putative class because their injuries were the “result of disturbance calls received from private citizens and employees of Beale Street clubs,” rather than a result of the alleged Beale Street Sweep. (ECF No. 40 at 10.)
The Court finds that Plaintiffs are typical of the putative class. Regarding Plaintiff Cole, the arrest report indicates, in part, the following:
On 08/26/2012 at 03:56 hours, Officer C. Bing (11757) responded to a Disorderly Conduct [call] at 152 Beale. Officer Bing approached two males standing on the sidewall in front of Club 152 at approximately 0330. Beale Street was in the process of being cleared due to fights on the street. The street clearing started at 0310 hours. Officer Bing Instructed suspect Darnell Tennial and suspect Lakendus Cole to go inside the club or leave the street. Both suspect Darnell Tennial and suspect Lakendus Cole refused to move and were very snide and disrespectful to officers.
*13 (MPD Record of Arrest, ECF No. 40–1 at PageID 309 (emphasis added) .) Although the altercation that took place between Plaintiff Cole and MPD officers may have been the result of a disturbance call, the arrest report also
10

suggests that Plaintiff Cole was instructed to go inside the club as a result of “street clearing” that began at 3:10 a.m., consistent with Plaintiffs’ allegations. (Id.)
As to Plaintiff Edmond, the MPD Incident Report indicates that “Officers on Beale Street responded to a disturbance [call] at the VIP Door of 152 Beale,” but is silent as to whether this was the result of a sweep or clearing of Beale Street. (MPD Incident Report, ECF No. 40–1 at PageID 308.) The deposition of Plaintiff Edmond, however, indicates:
At a certain time, an announcement was made by the Memphis PD Department to either clear the streets or go into an establishment. So at that—at that point, it was decided by the family that we would enter Club 152 because we were right next to Club 152.
(Dep. Edmond at 22:3–9, ECF No. 86–4 at PageID 657 (emphasis added).) Like Plaintiff Cole’s arrest, Plaintiff Edmond’s deposition indicates that Plaintiff Edmond was instructed to go inside the club as a result of “street clearing,” consistent with Plaintiffs’ allegations.
Plaintiffs assert a class action claim against Defendant City of Memphis for the policy, procedure, custom, or practice of “order[ing] all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers....” (Compl. at 2, ECF No. 1.) Accordingly, Plaintiffs seek to certify the class of “[a]ll persons who have been unlawfully removed from Beale Street and/or adjacent sidewalks by City of Memphis police officers pursuant to the custom, policy and practice known as the Beale Street Sweep.” (ECF No. 36 at 1.) The Court finds that, given the record before the Court, Plaintiffs’ claims appear to be typical of the class they seek to certify.
Accordingly, the prerequisite of typicality under Rule 23(a)(4) is met.

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

4. Adequate representation “One of the prerequisites for class certification under Fed.R.Civ.P. 23 is that the ‘representative parties’ can sue on behalf of the class only if they ‘fairly and adequately protect the interests of the class.” ’ Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 618 (6th Cir.2013) (quoting Fed.R.Civ.P. 23(a)(4)). The Sixth Circuit provides a two-part inquiry for determining adequacy of representation: “1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” Young, 693 F.3d at 543 (quoting In re Am. Med. Sys., Inc., 75 F.3d at 1083) (internal quotation marks omitted). Courts also must “review[ ] the adequacy of class representation to determine whether class counsel are qualified, experienced and generally able to conduct the litigation.” Id. (quoting Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir.2000) (internal quotation marks omitted).
*14 “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. A class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Young, 693 F.3d at 543 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997)) (internal quotation marks omitted). “A party may not serve as class representative when, ‘[i]n significant respects, the interests of those within the single class are not aligned.’ “ Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 429 (6th Cir.2012) (alteration in original) (citations omitted) (quoting Amchem Prods., 521 U.S. at 625–26). “[T]he linchpin of the adequacy requirement is the alignment of interests and incentives between the representative plaintiffs and the rest of the class.” In re Dry Max Pampers Litig., 724 F.3d 713, 721 (6th Cir.2013) (quoting Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir.2012)) (internal quotation marks omitted). “[E]ven after certification, so long as a district court retains jurisdiction over the case, the court must still inquire into the adequacy of representation and withdraw class certification if adequate representation is not furnished.” Binta B., 710 F.3d at 618 (citing Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1214 (6th Cir.1997)).
Plaintiffs argue that the class representatives are able to fairly and adequately protect the interests of the class. (Compl. ¶¶ 16–17, ECF No. 1.) Plaintiffs assert that they are adequate representatives because the claims of the named Plaintiffs are “so interrelated that the interests of
11

the class members will be fairly and adequately protected in their absence.” (ECF No. 36–1 at 11.)
The City, however, contends that “Plaintiffs cannot be argued to ‘fairly represent’ the class as they do not fall into the definition of their own class and therefore cannot be said to fairly represent members of that class.” (ECF No. 40 at 10.)
The Court agrees with Plaintiffs. First, as discussed supra Parts III.B.2 and III.B.3, the Named Plaintiffs have common interests with unnamed members of the class, as they share common questions of law and fact. Second, as the claims of the Named Plaintiffs are typical of the putative class, it is likely that Named Plaintiffs will vigorously prosecute the interests of the class.
Plaintiffs further argue that their attorneys possess adequate qualifications based on their experience “in the fields of municipal law, constitutional law and class actions.” (Compl. ¶ 17, ECF No. 1.)
Plaintiffs have provided only limited evidence demonstrating that counsel is qualified to represent the interests of the class. Defendants, however, do not dispute the qualifications of Plaintiffs’ counsel. See Young, 693 F.3d at 543 (finding no abuse of discretion in finding class counsel qualified where district judge simply noted that, to date, counsel had appeared qualified during the course of the litigation at issue). Instead, Defendants oppose Named Plaintiffs as class representatives solely on the grounds that “they do not fall into the definition of their own class.” (ECF No. 40 at 10.) Because Defendants do not oppose the qualifications of Plaintiffs’ counsel, the Court finds Plaintiffs’ counsel to be qualified to represent the class.
*15 Accordingly, the Court finds that Plaintiffs are adequate representatives of the putative class under Rule 23(a)(4).
5. Prerequisites of Rule 23(a) Having analyzed the prerequisites of Rule 23(a), the Court finds that Plaintiffs meet the requirements of Rule 23(a).

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

C. Rule 23(b) Analysis Even if Plaintiffs satisfy the Rule 23(a) analysis for certifying a class, Plaintiffs must also meet the requirements of Rule 23(b) to maintain a class action. See In re Whirlpool, 722 F.3d at 850. The Court finds that Plaintiffs satisfy the requirements for Rule 23(b)(2), but not for Rule 23(b)(3).
1. Rule 23(b)(2): Seeking an injunction Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). “The key to the [Rule 23] (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 131 S.Ct. 2541, 2557 (citation and internal quotation marks omitted). “When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.” Id. at 2558.
In Dukes, the Supreme Court cautioned against certifying a class under Rule 23(b)(2), where a substantial number of class members lack standing for injunctive relief. 131 S.Ct. 2541, 2560 (2011). Notwithstanding the Supreme Court’s admonitions regarding standing, 23(b)(2) classes may be given a broad scope relative to other categories of classes under 23(b). Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir.1974) (“The nature of the primary relief sought in [23(b)(2) class actions], injunctive or declaratory relief, does not require that the class be as narrowly confined as under either (b)(1) or (b)(3).”) “What matters to class certification ... [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 131 S.Ct. at 2551 (internal quotation marks omitted) (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 48 N.Y.U. L.Rev. 97, 132 (2009)). A class may be certified under 23(b)(2) where “the common claim is susceptible to a single proof and subject to a single injunctive remedy.” Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.1976). Further,
12

where individual class members each have claims for money damages, certifying a 23(b)(2) class is appropriate if the request for monetary damages is kept separate from the class action claims for declaratory relief. Gooch, 672 F.3d at 427–428.
*16 Plaintiffs assert that because “Plaintiffs seek to certify the class to end Defendants’ unconstitutional policy and practice of suspicionless assaults and the clearing of Beale Street by Memphis police officers,” this challenge affects the putative class as a whole and therefore meets the Rule 23(b)(2) requirements. (ECF No. 36–1 at 12.)
Defendant City of Memphis argues that “Plaintiffs, however, fail[ ] to provide any evidence that the ‘Beale Street Sweep’ is in effect or was in effect at the time of their alleged injuries.” (ECF No. 40 at 10.) Defendant City further contends that Plaintiffs do not make any claim that members of the putative class will be left vulnerable to irreparable harm absent an injunction. (Id.)
The Court agrees with Plaintiffs. The class, as defined, pertains only to those individuals removed pursuant to the Beale Street Sweep. A single declaration that the Beale Street Sweep is unconstitutional and continues in practice today would provide a common answer to the claims of all class members. See Dukes, 131 S.Ct. at 2551; Senter, 532 F.2d at 525. Defendants’ arguments that Plaintiffs have failed to show that the Beale Street Sweep was in effect at the time of their removal again misconstrues the requirements of class certification with the merits of the case. In fact, Plaintiffs have provided evidence of the Beale Street Sweep based on their personal accounts of MPD police officers’ activities and statements on the nights of their removal. See supra Part III.A.2. There is no need to pursue further the merits of the case for the purpose of certifying the class. See Amgen, 133 S.Ct. at 1194–95.
Defendants’ contention that Plaintiffs have failed to make claims as to the irreparable harm suffered by the class is similarly off-target. Although not explicit in the definition of the class, Plaintiffs’ complaint raises the issue of future irreparable harm. The complaint was brought “on behalf of other similarly situated individuals who were and will be deprived of constitutional rights, assaulted, unlawfully detained, unlawfully arrested, and/or arrested without probable cause in the Beale Street Entertainment District.” (Compl. ¶ 12, ECF No. 1 (emphasis added).) As a general proposition, without injunctive relief, individuals frequenting the Beale Street Entertainment District will continue to be susceptible to injury caused by

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

the potentially unconstitutional actions of MPD police officers. Furthermore, declaratory relief that the Beale Street Sweep is unconstitutional will provide a common legal basis for all class members to pursue their individual claims for damages against Defendants. See Gooch, 672 F.3d at 427–428 (upholding certification under 23(b)(2) because “declaratory relief is a separable and distinct type of relief [from monetary damages] that will resolve an issue common to all class members”).
The conclusion that injunctive relief will “generate common answers” for the class is supported by the certification of similar classes in other district courts in the Sixth Circuit. In Crippen v. Kheder, 741 F.2d 102, 104 (6th Cir.1984), the Court of Appeals did not disturb a class defined as “any and all persons who are treated by the state as presumptively ineligible for medicaid solely because their SSI has been terminated, regardless of whether such persons receive the due process notice and opportunity for hearing.” The present case is akin to Crippen, where the harm to the class is ongoing even if some or most class members suffered harm in the past. More important than the temporal aspects of the class members’ claims is the ability of the “ ‘classwide proceeding to generate common answers.’ “ See Gooch, 672 F.3d at 427–28 (quoting Dukes, 131 S.Ct. at 2551.) Here, there is little question that a declaration that the Beale Street Sweep is unconstitutional and continues to be a custom performed by the MPD would answer a common question of all class members in their individual claims.
*17 Accordingly, the Court finds that Plaintiffs have satisfied the requirements of certification under 23(b)(2).
2. Rule 23(b)(3): questions of law or fact common to class members that predominate over any questions affecting only individual members Rule 23(b)(3) requires that “the court find[ ] that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
Plaintiffs argue that “the questions of law or fact common to the class members predominate over any questions affecting only individual members and that a class action
13

is superior to other available methods of fairly and efficiently adjudicating the controversy.” (ECF No. 36–1 at 12.) Plaintiffs contend that the Beale Street Sweep is common to all class members and therefore “predominate[s] over any questions of fact pertaining to any individual class member.” (ECF No. 36–1 at 12.)
Defendant City of Memphis argues that Plaintiffs have “offer[ed] no reasoning for this conclusion beyond merely restating the language of FRCP 23(b)(3).” (ECF No. 40 at 10.)
The Court agrees with Defendants. “To meet the predominance requirement, a plaintiff must establish that issues subject to generalized proof and applicable to the class as a whole predominate over those issues that are subject to only individualized proof.” Young, 693 F.3d at 544 (quoting Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347, 352–53 (6th Cir.2011)). Although Plaintiffs assert that the questions of law predominate over any questions of fact as to individual class members, Plaintiffs have failed to establish that these issues are subject to generalized proof. Accordingly, the predominance requirement is not met.
Regarding the superiority requirement:
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. In considering whether the superiority requirement of Rule 23(b)(3) is satisfied, courts consider the difficulties likely to be encountered in the management of a class action. Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device.
Id. at 545 (citations and internal quotation marks omitted).

Cole v. City of Memphis, Tenn., Not Reported in F.Supp.3d (2014)

Likewise, Plaintiffs have failed to establish the superiority of the class action mechanism to obtain relief over individual suits for damages. Accordingly, the superiority requirement is not met.
3. Prerequisites of Rule 23(b) In light of the foregoing, the Court concludes that Plaintiffs meet the requirements of Rule 23(b)(2), but not of 23(b)(3). Accordingly, Plaintiffs have met their burden to certify and maintain a class action.

IV. CONCLUSION *18 For the reasons stated above, Plaintiffs’ Motion for Class Certification (ECF No. 36) as to certification under 23(b)(2) is GRANTED, and as to certification under 23(b)(3) is DENIED.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 8508560

Footnotes

1

The time for filing objections to the report and recommendation has passed. Fed.R.Civ.P. 72(b)(2) (“Within 14 days

after being served with a copy of the recommended disposition, a party may serve and file specific written

objections to the proposed findings and recommendations.”).

14

 
 Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)

97 F.Supp.3d 947 United States District Court,
W.D. Tennessee, Western Division.
Lakendus COLE and Leon Edmond, individually and as representatives of all others similarly situated, Plaintiffs, v. CITY OF MEMPHIS, Tennessee, and Robert
Forbert, Samuel Hearn, Christopher Bing, John Faircloth, Cari Cooper, and Robert Skelton,
individually and in their official capacities as City of Memphis Police Officers, Defendants.
No. 2:13–cv–02117–JPM–dkv. |
Signed Jan. 18, 2015.
Synopsis Background: Citizens brought action against city and city police officers, asserting both individual and putative class action claims for violations of their Fourth and Fourteenth Amendment rights resulting from city’s alleged practice of removing individuals from street during early morning hours. After class was certified, 2014 WL 8508560, city moved for summary judgment.

such violations occurred after they were arrested;
genuine issue of material fact existed as to whether city police officers detained citizens without probable cause; and
genuine issue of material fact existed as to whether force used by city police officers in arresting citizens was reasonable.
Motion granted in part and denied in part.
Procedural Posture(s): Motion for Summary Judgment.
Attorneys and Law Firms
*951 Bryan Meredith, Robert L.J. Spence, Jr., Spencewalk, PLLC, Emmett Lee Whitwell, The Spence Law Firm, PLLC, Memphis, TN, for Plaintiffs.
J. Michael Fletcher, Michael Fletcher Law Office, Zayid A. Saleem, City Attorney’s Office, Deborah E. Godwin, John Michael Ryall, Mary Elizabeth McKinney, Godwin Morris Laurenzi & Bloomfield, P.C., Memphis, TN, for Defendants.

Holdings: The District Court, Jon P. McCalla, J., held that:
genuine issue of material fact existed as to whether city had policy of removing individuals from street;
city’s responsibility for custom under § 1983 would be established if custom’s factual existence was established;
city’s alleged practice implicated citizens’ fundamental right to travel locally through public spaces and roadways;
city’s alleged practice, if proven, was not narrowly tailored to city’s interest of public safety;
citizens’ § 1983 claims that city violated their due process rights were preempted by Fourth Amendment to extent
1

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF MEMPHIS’ MOTION FOR SUMMARY JUDGMENT
JON P. McCALLA, District Judge.
Before the Court is Defendant City of Memphis’ Motion for Summary Judgment, filed October 27, 2014. (ECF No. 92.) Plaintiffs Cole and Edmond filed a Response on November 24, 2014. (ECF No. 97.) Defendant City of Memphis filed a Reply on December 8, 2014. (ECF No. 101.) For the reasons set for below, the Motion is GRANTED in part and DENIED in part.

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
I. BACKGROUND
A. Factual Allegations Plaintiff Lakendus Cole is a police officer employed with the City of Memphis Police Department Organized Crime Unit, and Plaintiff Leon Edmond is a Special Agent employed with the Bureau of Alcohol, Tobacco, Firearms and Explosives. (Compl. at 1–2, ECF No. 1.)
Plaintiffs assert a class action claim against Defendant City of Memphis (“the City”) for
the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (“MPD”) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers (“the Beale Street [ ] Sweep”).
(Id. at 2.) According to Plaintiffs, “[t]he Beale Street [ ] Sweep routinely occurs in the early morning hours on Saturdays and Sundays and during certain scheduled entertainment events on weekdays.” (Id.) Plaintiffs assert that the Beale Street Sweep “incites violence amongst its employee police officers and creates an environment where they become aggressive, agitated, frenetic, and confrontational with persons lawfully standing on a sidewalk or upon Beale Street.” (Id.)
Under 42 U.S.C. § 1983, Plaintiffs Cole and Edmond also assert claims individually against the City of Memphis. “Plaintiff Cole, while off-duty and dressed in civilian clothing, was outside of Club 152 on Beale Street....” (Id. ¶ 30.) “Plaintiff Cole was not intoxicated and had not consumed an alcoholic beverage.” (Id. ¶ 31.) “Pursuant *952 to the Beale Street Sweep, prior to Plaintiff exiting Club 152, MPD police officers including the Individual Defendants ordered all individuals to immediately leave the sidewalks and street in the Beale Street Entertainment District.” (Id. ¶ 32.) “The Individual Defendants suddenly grabbed Plaintiff Cole and[,] without reasonable cause to do so[,] began to assault and viciously attack him.” (Id. ¶ 35.) “The Individual Defendants slammed Plaintiff Cole’s
2

body into the police vehicle twice with such force that the impact dented the body of the police vehicle.” (Id. ¶ 36.) The Individual Defendants handcuffed Plaintiff Cole, placed him in the back of the police vehicle, and transported Plaintiff Cole to the Shelby County Jail. (Id. ¶¶ 37–38.) All criminal charges were later dismissed. (Id. ¶ 41.)
“Plaintiff Edmond, while off-duty and dressed in civilian clothing and visiting Memphis[,] was walking in the Beale Street Entertainment District enjoying the sights and music.” (Id. ¶ 46.) “Plaintiff Edmond was not intoxicated.” (Id. ¶ 47.) As Plaintiff Edmond attempted to enter Club 152 on Beale Street, “Plaintiff Edmond and other family members were approached by Defendant Cooper who ordered Plaintiff Edmond and his family member [sic] to stop walking and demanded that they speak to her regarding their attempt to enter Club 152.” (Id. ¶ 51.) “Defendant Cooper and Defendant Skelton placed Plaintiff Edmond under arrest for public intoxication.” (Id. ¶ 54.) After advising Defendant Cooper and Defendant Skelton that Plaintiff Edmond was a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), MPD police officers contacted Plaintiff Edmond’s supervisor, who contacted another ATF special agent Marcus Watson in charge of the Memphis Field Office. (Id. ¶¶ 55–57.) Watson arrived on the scene, Plaintiff Edmond was released from police custody. (Id. ¶ 58.)
Defendant City of Memphis claims that the practice of “advis[ing] patrons standing on Beale Street at 2:30am to make their way into a club or make preparations to leave Beale Street” and, after 3:00 a.m., “uniformly ordering patrons off of Beale Street, with the option of entering a club” has been “abandoned by order of MPD command staff.” (Def. City’s Resp. to Pl.’s Mot. ¶¶ 1–2, ECF No. 40.) City of Memphis also contends and that “[a]t no time subsequent to June 21, 2012 did the MPD engage in this practice.” (Id. ¶ 2.) Instead, City of Memphis asserts that Cole’s and Edmond’s interactions with police as described in their Complaint were MPD responses to reports of illegal conduct. (Id. ¶¶ 3–6.)
The City of Memphis contends that on August 26, 2012, MPD officers responded to a disorderly conduct call near 152 Beale Street, where “Officers instructed Plaintiff Cole to go inside the club [Club 152] or leave the street. Plaintiff Cole refused to comply and acted disrespectfully towards the officers.” (Id. ¶ ¶ 3–4 (alteration in original).)
Defendant City of Memphis asserts that on May 5, 2012,

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
“MPD officers responded to a disturbance call at the entrance to 152 Beale.” (Id. ¶ 5.) “At that time officers came upon a visibly intoxicated Plaintiff Edmonds in an altercation with the doorman and bouncers at 152 Beale. MPD officers removed Plaintiff from the area and discovered that he was presently armed with a GLOCK Model 27.40 caliber pistol.” (Id. ¶ 6.)
B. Procedural History On February 25, 2013, Lakendus Cole and Leon Edmond (collectively, “Plaintiffs” or “Named Plaintiffs”) filed a Class Action Complaint for damages and a Complaint for deprivation of constitutional rights and injunctive relief. (Compl. ECF *953 No. 1.) On April 4, 2013, Defendant Cari Cooper filed an Answer. (ECF No. 6.) On April 11, 2013, Defendant City of Memphis filed an Answer. (ECF No. 8.) On June 14, 2013, Defendant Robert Skelton filed an Answer. (ECF No. 25.) On June 18, 2013, Defendants Christopher Bing, John Faircloth, Robert Forbert, and Samuel Hearn filed an Answer. (ECF No. 27.)
On April 2, 2013, Defendants Robert Forbert and John Faircloth filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 5.) On April 10, 2013, Plaintiffs filed a Response in opposition to the Motion to Dismiss. (ECF No. 7.) On June 4, 2013, the Court entered an Order granting in part and denying in part the Motion to Dismiss. (ECF No. 22.) The Court found that Plaintiffs have stated a claim pursuant to Rule 8(a) of the Federal Rules of Civil Procedure but dismissed Plaintiffs’ substantive due-process claim under the Fourteenth Amendment as to Defendants Robert Forbert and John Faircloth. (ECF No. 22.)
On May 16, 2013, Defendant Christopher Bing filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 12.) On May 28, 2013, Plaintiffs filed a Response in opposition to the Motion to Dismiss. (ECF No. 13.) On June 6, 2013, the Court entered an Order granting in part the Motion to Dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but denying in part the Motion as to all other claims against Bing. (ECF No. 23.)
On May 31, 2013, Defendant Samuel Hearn filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 21.) No Response was filed within the required time. On July 10, 2013, the Court entered an Order granting in part
3

the Motion to Dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but denying in part the Motion as to all other claims against Hearn. (ECF No. 29.)
On November 27, 2013, Plaintiffs filed the Motion to Certify Class. (ECF No. 36.) Defendant City of Memphis filed a Response on December 18, 2013. (ECF No. 40.) On January 9, 2014, the Court held a hearing on the Motion. (ECF No. 42.) Plaintiffs filed a Supplemental Memorandum of Law in support of its Motion for Class Certification on June 30, 2014. (ECF No. 85.) Defendant filed its Response to the Supplemental Memorandum on July 7, 2014 (ECF No. 86), and Plaintiffs filed their Reply on July 14, 2014 (ECF No. 87). On September 29, 2014, the Court granted in part and denied in part Plaintiffs’ Motion to Certify Class. (ECF No. 88.) In the Court’s Order, the Court certified Plaintiffs’ proposed class under Rule 23(b)(2) for the purposes of injunctive and declaratory relief, and denied certification under Rule 23(b)(3). (ECF No. 88 at 41.)
On October 23, 2014, Plaintiffs filed a Notice of Dismissal with Prejudice of Plaintiffs’ Claims Against the Individual Officers upon Stipulation of the Parties. (ECF No. 91.) The Court dismissed Plaintiffs’ claims against all individual officers with prejudice in an order entered October 27, 2014. (ECF No. 93.)
On October 27, 2014, the Defendant City of Memphis filed the instant Motion for Summary Judgment. (ECF No. 92.) Plaintiffs filed a Response in Opposition on November 24, 2014. (ECF No. 97.) Defendant filed a Reply on December 8, 2014. (ECF No. 101.)
II. STANDARD OF REVIEW “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see *954 also Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir.2012). “A fact is ‘material’ for purposes of summary judgment 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)). “A dispute over material facts is ‘genuine’ ‘if the evidence is such that a reasonable jury could return a

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
verdict for the nonmoving party.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper.” Chapman, 670 F.3d at 680 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 469 (6th Cir.2012).
“The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact.” Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir.2012) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). “Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact.” Id. at 448–49 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Fed.R.Civ.P. 56(e)).
“To show that a fact is, or is not, genuinely disputed, both parties are required to either ‘cite[ ] to particular parts of materials in the record’ or ‘show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.’ ” Bruederle, 687 F.3d at 776 (alterations in original) (quoting Fed.R.Civ.P. 56(c)(1)); see also Mosholder, 679 F.3d at 448 (“To support its motion, the moving party may show ‘that there is an absence of evidence to support the nonmoving party’s case.’ ” (quoting Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548)).
“The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3); see also Emerson v. Novartis Pharm. Corp., 446 Fed.Appx. 733, 736 (6th Cir.2011) (“ ‘[J]udges are not like pigs, hunting for truffles’ that might be buried in the record.” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991))); Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir.2007) (“A district court is not required to ‘search the entire record to establish that it is bereft of a genuine issue of material fact.’ ” (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.1989))).
“In considering a motion for summary judgment, [a court] must draw all reasonable inferences in favor of the nonmoving party.” Phelps v. State Farm Mut. Auto. Ins.
4

Co., 736 F.3d 697, 703–04 (6th Cir.2012) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). “The central issue is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Id. (quoting Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505). “[A] mere ‘scintilla’ of evidence in support of the non-moving party’s position is insufficient to defeat summary judgment; rather, the non-moving party must present evidence upon which a reasonable jury could find in her favor.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir.2012) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
*955 III. ANALYSIS Defendant City of Memphis seeks summary judgment on the grounds that Plaintiffs have failed to establish a case for 1) municipal liability generally; 2) violation of Plaintiffs’ First Amendment rights; 3) violation of Plaintiffs’ Fourth Amendment rights; 4)violation of Plaintiffs’ due process rights under the Fourteenth Amendment; 5) municipal liability for failure to train; 6) municipal liability for failure to investigate and discipline; 7) municipal liability pursuant to the Tennessee Government Tort Liability Act (TGTLA); and 8) punitive damages. (See ECF Nos. 92–2, 101.) Plaintiffs concede that the record and relevant case law do not support claims for “failure to train, investigate or discipline, a claim under the Governmental Tort Liability Act, and a claim for punitive damages.” (ECF No. 97 at 2 n. 1.) Accordingly, the Court GRANTS Defendants’ Motion as to those claims. Plaintiffs also state that they “do not assert that their rights under the First Amendment were violated.” (Id.) As no claim for First Amendment violations appears in the Complaint (ECF No. 1), the Court finds that Plaintiffs have not asserted a First Amendment claim in this case. The Court will address the remaining disputed claims in turn.
A. Municipal Liability Generally Unlike state government entities, “[l]ocal governing bodies ... can be sued directly under § 1983 for monetary, declaratory, or injunctive relief” for conduct that infringes the constitutional rights of individuals. Monell v. Dep’t of

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
Soc. Servs. of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipalities are not subject to respondeat superior liability in cases where liability “does not arise out of the municipality’s own wrongful conduct.” Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 131 S.Ct. 447, 453, 178 L.Ed.2d 460 (2010); Monell, 436 U.S. at 691, 98 S.Ct. 2018 (“In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”). Accordingly, to succeed on a claim against the City of Memphis, Plaintiffs “must prove two basic elements: (1) that a constitutional violation occurred; and (2) that the [City] is responsible for that violation.” See Graham ex rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d 377, 382 (6th Cir.2004) (internal quotation marks omitted).
1. Constitutional Violations
The merits of Plaintiffs’ claims for constitutional violations are discussed infra Parts III.B–C. The Court finds a genuine issue of material fact exists as to whether the Beale Street Sweep is facially unconstitutional under the Due Process Clause of the Fourteenth Amendment, and whether the Beale Street Sweep is unconstitutional under the Fourth Amendment as applied to Plaintiffs Cole and Edmond.
2. City of Memphis’ Responsibility for Constitutional Violations Suffered by Plaintiffs
Municipal liability exists in circumstances where an “official municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. “A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy must ‘identify the policy, connect the policy to the [municipality] itself and show that the particular injury was incurred because of the execution of that policy.’ ” Graham, 358 F.3d at 383 (quoting Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993)).
a) Existence of Policy or Custom
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A plaintiff bringing a claim under § 1983 against a municipality must prove *956 the existence of an official policy responsible for the constitutional deprivation, or alternatively prove that the constitutional deprivations were caused by “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. A custom sufficient to establish municipal liability under § 1983 exists where “practices of [local] officials [are] so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal citations and quotation marks omitted); Doe v. Claiborne Cnty., Tenn. By & Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 507 (6th Cir.1996). Plaintiffs have identified the Beale Street Sweep as a municipal custom that resulted in the violation of Plaintiffs’ Fourth and Fourteenth Amendment rights.
Defendant City of Memphis argues that municipal liability fails in the instant case because it has provided evidence that no policy or custom, referred to as the Beale Street Sweep, existed at the time the named Plaintiffs Cole and Edmond allegedly suffered their injuries. (See ECF No. 92–2 at 7.) Although Defendant City of Memphis concedes that an official Beale Street Sweep practice existed prior to June 14, 2012, it asserts that the practice was terminated prior to the time Plaintiffs Cole and Edmonds’ claims arose. (Id. at 9–10.)
Plaintiffs contend that they have submitted ample evidence of the Beale Street Sweep custom that existed after June 14, 2012. (See generally ECF No. 97 at 2–8.) According to Plaintiffs, they have submitted evidence of the City of Memphis’ unconstitutional policy in the form of its answer to an interrogatory, in which the City of Memphis stated in relevant part:
Prior to June 21, 2012,1 it was common practice at 2:30 a.m. to start advising patrons standing on Beale Street to make their way into a club or make preparations to leave Beale Street. After 3:00 a.m., and when necessary, MPD officers would on occasion follow a practice of uniformly ordering patrons off of Beale Street, with the option of entering a club.

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
(Id. at 18 (citing ECF No. 32; Int. No. 9).) Regarding evidence of a custom that persisted after June 14, 2012, Plaintiffs assert that “the Affidavit of Justin Hipner, the Plaintiffs’ testimony, and the City’s Interrogatory Answers clearly establish that the Beale Street Sweep is a permanent and well-settled practice which, on each occasion it was used, deprived hundreds, if not thousands, of individuals of their constitutional rights.” (ECF No. 97 at 18.)
The City of Memphis concedes that a “common practice” to remove individuals from the Beale Street area in the early morning hours existed prior to June 14, 2012 in its Reply Brief (ECF No. 101 at 3), in Deputy Chief Arley Knight’s deposition (ECF 40–1 at 2), and in its answer to interrogatory no. 9 in Plaintiffs’ First Set of Interrogatories (ECF No. 32 at 6–7). The City of Memphis contends, however, that the practice “happened only on occasion and when circumstances impacting public safety dictated.” (ECF No. 101 at 3.) Accordingly, the Court finds that Plaintiffs have provided sufficient evidence to raise a genuine issue of material fact as to the existence of a custom sufficient under municipal liability requirements prior to June 14, 2012.
*957 With regards to the existence of a custom on or after June 14, 2012, the Court also finds that Plaintiffs have provided sufficient evidence to establish a genuine issue of material fact. Plaintiffs Cole and Edmond have provided deposition testimony that a sweep and clearing occurred on the nights that they were arrested. (ECF No. 97–1 at PageID 1021; ECF No. 97–3 at PageID 1064–67.) Although Defendant has provided deposition testimony from Deputy Chief Knight that the Beale Street Sweep practice was terminated on June 14, 2012 in rebuttal of Plaintiffs’ allegations, this statement alone does not support a finding that no reasonable jury could find for Plaintiffs on the issue of whether the Beale Street Sweep persisted after June 14, 2012.
b) Causation of a constitutional tort
Plaintiffs must also show that the municipal policy or custom is the “moving force behind the plaintiff’s deprivation of federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 400, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (internal quotation marks omitted). “Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an
6

employee to do so, resolving these issues of fault and causation is straightforward.” Id. at 404, 117 S.Ct. 1382. “[P]roof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably.” Id. at 405, 117 S.Ct. 1382.
Defendant City of Memphis argues that it did not “maintain[ ] a policy or custom that was the moving force behind Plaintiffs’ alleged constitutional deprivations....” (ECF No. 92–2 at 6.) Regarding Plaintiff Edmond’s claim specifically, Defendant City of Memphis asserts that “[t]he alleged ‘clearing’ was not the moving force of his detention,” because “Edmond[ ] was detained after the Club 152 manager sought the assistance of the police.” (Id. at 7 n. 2.)
Plaintiffs argue that “the Beale Street Sweep—by its very nature—deprives the individuals on Beale Street of their fundamental right to travel locally in public spaces” pursuant to the Due Process Clause of the Fourteenth Amendment. (ECF No. 97 at 19.) Plaintiffs further assert that the Beale Street Sweep directly resulted in violations of Plaintiffs Cole and Edmond’s Fourth Amendment rights by the police. (See id. at 1920.) Plaintiffs rely on deposition testimony by Officer Skelton, which Plaintiffs assert describes the use of physical force to clear the street. (Id. (citing Ex. F. Excerpts of Dep. of Skelton at 34–44, ECF No. 97–6).) Because Plaintiffs have asserted claims based on due process and Fourth Amendment violations, the Court addresses the issue of causation for each.
(1) Fourteenth Amendment due process violations
With regards to Fourteenth Amendment violations, the Court agrees with Plaintiffs. As a threshold matter, Plaintiffs have stated a valid substantive due process claim for relief against the City of Memphis. Should all factual determinations regarding the constitutionality of the Beale Street Sweep be resolved in favor of Plaintiffs, at a minimum, the individuals cleared from the area at the time of the street suffered a direct violation of their due process right to travel and remain on public roadways as a result of the practice. See infra Part III.B. Accordingly, in light of the disputed facts in the record, the Court finds that a genuine issue of material fact remains as to the issue of causation regarding alleged Fourteenth

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
Amendment violations.
*958 (2) Fourth Amendment violations
With respect to Plaintiffs’ claims against the City of Memphis for Fourth Amendment violations, Defendant argues that “Plaintiffs’ assert no basis upon which to attach municipal liability.” (ECF No. 101 at 9.) According to Defendant City of Memphis, municipal liability does not exist based on Fourth Amendment violations because Plaintiffs do not assert that the Beale Street Sweep “constitutes a per se violation of the Fourth Amendment.” (Id.)
Defendant misapprehends the test for municipal liability to attach to a claim. Once a custom is established, the inquiry properly focuses on causation. See Monell, 436 U.S. at 691, 98 S.Ct. 2018; Graham, 358 F.3d at 383. The standard for causation, as set forth by the Supreme Court, is the existence of “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Defendant submits no authority that the policy or custom must be per se unconstitutional for liability to attach.
Plaintiffs’ failure to challenge the Beale Street Sweep as per se unconstitutional under the Fourth Amendment is inapposite to the causation inquiry specifically and the responsibility inquiry generally. Ostensibly, Defendant’s argument relies on the concept that an as-applied challenge necessarily requires a showing of “deliberate indifference.” The test in the Sixth Circuit for applying a “deliberate indifference” standard, however, is whether a plaintiff challenges the municipality’s inaction versus an affirmative policy or custom. See infra Part III.A.2.c. That Plaintiffs bring an as-applied challenge under the Fourth Amendment, rather than a facial challenge, does not affect the outcome.
In the present case, Plaintiffs have submitted sufficient evidence that the Fourth Amendment violations allegedly suffered by Plaintiffs directly resulted from the Beale Street Sweep. Both Plaintiffs state that they heard a command related to clearing of the street prior to being detained. (ECF No. 97–1 at PageID 1021; ECF No. 97–3 at PageID 1064–67.) Defendant has provided rebuttal evidence that Plaintiff Edmond was detained “after an argument with an employee of Club 152.” (ECF No. 92–1
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¶ 1.) Based on the evidence provided by the parties, the Court finds that a genuine issue of material fact exists as to whether the Beale Street Sweep was the cause of Fourth Amendment violations allegedly suffered by Plaintiffs.
c) Deliberate indifference
Defendant also argues that even if an unconstitutional custom or policy did exist at the time of Plaintiffs Cole and Edmonds’ arrests, the City of Memphis is not responsible for any constitutional violation because Plaintiffs have not shown that the City acted with deliberate indifference in establishing the custom or policy. (ECF No. 92–2 at 7.) According to Defendant, “Plaintiffs offer no evidence of any pattern of behavior of unlawful acts with deliberate indifference to the rights of persons on Beale.” (ECF No. 92–2 at 7.)
Plaintiffs argue that the “deliberate indifference” standard is satisfied in this case because Plaintiffs have asserted that “the Beale Street Sweep is a facially unconstitutional municipal policy [and custom] that caused, and was the moving force behind, the violations of the rights of the Plaintiffs and class members.” (ECF No. 97 at 17, 20.) According to Plaintiffs, “a facially unconstitutional practice ... is by its very nature deliberate indifference to the constitutional rights of those affected.” (Id. at 20 (citing Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir.La.2003)).)
*959 The Court agrees with Plaintiffs that, assuming the Beale Street Sweep custom as alleged is factually established, the existence of the custom also establishes the City’s responsibility for the custom. The relevant Supreme Court and Sixth Circuit precedent applies the “deliberate indifference” standard in cases where a plaintiff asserts a § 1983 claim against a municipality for failure to act to protect an individual’s constitutional right. See, e.g., Canton, 489 U.S. at 388, 109 S.Ct. 1197 (“We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”); Collins v. City of Harker Heights, Tex., 503 U.S. 115, 124, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (“[The term deliberate indifference] was used in the Canton case for the quite different purpose of identifying the threshold for holding a city responsible for the

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
constitutional torts committed by its inadequately trained agents.”); Regets v. City of Plymouth, 568 Fed.Appx. 380, 394 (6th Cir.2014) (“To succeed on a failure to train or supervise claim, the plaintiff must prove [that] ... ‘the inadequacy was the result of the municipality’s deliberate indifference’ ....”) (quoting Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.2006)); Key v. Shelby Cnty., 551 Fed.Appx. 262, 267 (6th Cir.2014) (“Under the ‘inaction theory,’ a plaintiff must show the existence of ... the county’s tacit approval of the unlawful behavior amounting to deliberate indifference and an official policy of inaction....”); Claiborne County, 103 F.3d at 508 (“The evidence must show that the need to act is so obvious that the [municipality’s] conscious decision not to act can be said to amount to a policy of deliberate indifference to [the plaintiff’s] constitutional rights.”) (internal quotation marks omitted).
Contrary to Defendant’s position, the “deliberate indifference” standard is inapplicable to the present case. Plaintiffs do not assert a claim against the City of Memphis for its “inaction.” Rather, Plaintiffs assert that an unconstitutional custom exists to affirmatively remove individuals from the Beale Street area in violation of their constitutional rights. (See Compl. at 2, ECF No. 1.) Because the alleged custom is an affirmative one, if Plaintiffs are able to factually establish the existence of the custom, Defendant City of Memphis’ responsibility for the custom would be established. See Alexander v. Beale St. Blues Co., 108 F.Supp.2d 934, 949 (W.D.Tenn.1999) (declining to require allegations of deliberate indifference in complaint where plaintiff alleged affirmative policies caused violations of plaintiff’s constitutional rights).
Plaintiffs cite to case law from other circuits to support the proposition that a facially unconstitutional custom or policy inherently satisfies the deliberate indifference standard. (ECF No. 97 at 20 (citing Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir.La.2003); Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir.2011)).) Sixth Circuit precedent does not go so far as to establish a bright line rule that a facially unconstitutional custom is exempt from the “deliberate indifference” standard. The line drawn in Sixth Circuit case law is whether a plaintiff claims a constitutional violation based on a municipality’s inaction. Accordingly, the Court declines to dismiss Plaintiffs’ claims for failing to provide evidence of deliberate indifference.
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B. Substantive Due Process under the Fourteenth Amendment Plaintiffs argue that the Beale Street Sweep is an unconstitutional restriction on an individual’s fundamental right to intrastate *960 travel. (ECF No. 97 at 8–11.) The Court first considers whether such a right is fundamental to the concept of ordered liberty contemplated by the Due Process Clause of the Fourteenth Amendment. Next, the Court considers whether the Beale Street Sweep comports with Plaintiffs’ rights to due process under the Fourteenth Amendment. Third, the Court turns to whether Plaintiffs’ Fourth Amendment claims preempt their claims brought pursuant to the Due Process Clause of the Fourteenth Amendment.
1. Fundamental right to travel
The Supreme Court has not directly addressed the issue of whether intrastate travel is a fundamental right within the context of substantive due process. Johnson v. City of Cincinnati, 310 F.3d 484, 496 (6th Cir.2002); Wardwell v. Bd. of Ed. of City Sch. Dist. of City of Cincinnati, 529 F.2d 625, 627 (6th Cir.1976). Sixth Circuit case law regarding the issue of intrastate travel rights differs depending on the circumstances in which the rights are asserted. In Wardwell, the Court of Appeals for the Sixth Circuit “f[ound] no support for [the] theory that the right to intrastate travel has been afforded federal constitutional protection.” 529 F.2d at 627. Consequently, the Court of Appeals applied a rational basis test in upholding a school board’s rule that “any employee hired by the [school district] ... must either reside within the [school district], or agree, as a condition of employment, to establish residency within the district within ninety days of employment.” Id. at 626, 628.
The Court of Appeals addressed the issue again in Johnson, 310 F.3d 484. The Johnson court held that “the Constitution protects a right to travel locally through public spaces and roadways,” as a fundamental right. Id. at 498. In support of the holding, the Court of Appeals found that similar to interstate travel, “the right to travel locally through public spaces and roadways enjoys a unique and protected place in our national heritage.” Id. at 597–98. The Court of Appeals distinguished the Johnson case from Wardwell. The Court of Appeals found that the holding in Wardwell was limited to “employee residency

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
requirements” and that the suggestion that “the rational basis test should govern all potential intrastate travel claims ... would be dicta and would not bind this court.” Johnson, 310 F.3d at 494. The Sixth Circuit Court of Appeals declined to follow Third Circuit case law which applied intermediate scrutiny to an anti-cruising ordinance. Id. at 502 (citing Lutz v. City of York, Pa., 899 F.2d 255, 270 (3d Cir.1990)). The Court of Appeals explained that strict scrutiny was the correct standard because “instead of regulating the manner in which affected individuals access [the area] ... the [o]rdinance [at issue] impose[d] a more severe restriction, broadly prohibiting individuals to access the entire neighborhood.” Id.
Taken broadly, the Johnson and Wardwell holdings are in direct conflict. Therefore, in order to reach a congruous interpretation of the two holdings, the Court must construe the holdings narrowly. Accordingly, the Court finds that the holding in Wardwell is limited to the context of “employee residency requirements.” Further, the holding in Johnson “is limited to the right to travel locally through public spaces and roadways.” 310 F.3d at 494.
In the instant case, Plaintiffs’ assert the argument that during the Beale Street Sweep the MPD “deprives the individuals on Beale Street of their fundamental right to travel locally in public spaces.” (ECF No. 97 at 8–9, 19.) Although the Beale Street Sweep does not go so far as to prohibit access to the entire Beale Street area, it goes beyond merely restricting the manner in which people access *961 the area. As alleged, the Beale Street Sweep broadly denies individuals in the area access to the public roadways. (See Compl. at 2 (“[The] police officers of the Memphis Police Department ... order all persons to immediately leave the sidewalks and street....”) This prohibition is more analogous to a general restriction of access to a public area than to an ordinance that prohibits “driving repeatedly through a loop of certain major public roads.” Johnson, 310 F.3d at 502. Accordingly, the Court finds that a street sweep and clearing implicates the fundamental right defined in Johnson. Consequently, the Court applies strict scrutiny to the constitutionality of the Beale Street Sweep.
2. Strict scrutiny analysis
“Government actions that burden the exercise of those fundamental rights or liberty interests are subject to strict
9

scrutiny, and will be upheld only when they are narrowly tailored to a compelling governmental interest.” Does v. Munoz, 507 F.3d 961, 964 (6th Cir.2007) (internal quotation marks omitted). Because the Court finds the right to intrastate travel is a fundamental right protected by the Constitution, the Court evaluates the Beale Street Sweep custom under a strict scrutiny standard. See supra Part III.B.1. To satisfy strict scrutiny, the burden of proof shifts to the government to show a narrowly tailored compelling government interest. Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005).
Defendant City of Memphis argues that the Beale Street Sweep survives strict scrutiny because “public safety, the wellbeing of persons and property on Beale, is a compelling state interest.” (ECF No. 101 at 8.) Defendant asserts that “[t]emporarily clearing the two block stretch of Beale under circumstances which prudent policing dictates is narrowly tailored to serve the interest of public safety.” (Id.) According to Defendant, “[i]t would be irresponsible [for the] police to allow conditions on the street [to] overwhelm traditional police response.” (Id.)
Plaintiffs argue that the Beale Street Sweep is not narrowly tailored and no compelling interest justifies its existence. (See ECF No. 97 at 11–12.) According to Plaintiffs, a temporary curfew in response to an emergency would be justified as a compelling state interest. (Id. at 12 (citing Moorhead v. Farrelly, 727 F.Supp. 193 (D.Vi.1989); United States v. Chalk, 441 F.2d 1277 (4th Cir.1971); In re: Juan C., 28 Cal.App.4th 1093, 33 Cal.Rptr.2d 919 (Cal.App.1994); Smith v. Avino, 91 F.3d 105, 109 (11th Cir.1996)).) Plaintiffs assert that rather than carrying out the Beale Street Sweep in response to an emergency, the Beale Street Sweep “facilitate[s] a 3:00 a.m. work shift end for police officers.” (Id.) Plaintiffs further assert that Defendant “cites no authority—and the Plaintiffs are aware of none—for the proposition that routine law enforcement and the arbitrary work hours of police officers constitute a compelling interest sufficient to warrant the exclusion of persons engaged in lawful conduct from a public street.” (Id.) Additionally, Plaintiffs contend that “[e]vidence of typical, reoccurring crime plainly is inadequate to constitute a compelling interest warranting a permanent policy of routinely clearing Beale Street of adults engaged in lawful conduct.” (Id. (citing Ruff v. Marshall, 438 F.Supp. 303, 306 (M.D.Ga.1977)).)
Regarding the existence of a compelling state interest, the Court agrees with Defendant that “public safety,”

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
“preserving the wellbeing of persons and property on Beale,” and not “allow[ing] conditions on the street [to] overwhelm traditional police response” are compelling interests to the City of Memphis. (See *962 ECF No. 101 at 8.) In Johnson, the Court of Appeals for the Sixth Circuit found that the City of Cincinnati had a compelling interest “to enhance the quality of life in drug-plagued neighborhoods and to protect the health, safety, and welfare of citizens in those areas.” 310 F.3d at 502. Defendant’s interest in maintaining order in the Beale Street area is much the same.
The Court of Appeals, however, struck down the ordinance in Johnson on the grounds that it was not narrowly tailored to achieve the City’s stated interest. Id. at 504. In determining whether the city ordinance was narrowly tailored, the Court of Appeals looked to whether the ordinance “implicate[d] an individual’s interest in localized travel,” and whether it was “the least restrictive means to accomplish the City’s goal.” Id. at 503. The Johnson court found that the ordinance “infringe[d] on the right to localized travel through the public spaces and roadways,” and held that “[b]y excluding innocent individuals, the Ordinance ... unquestionably violated the constitutional rights of affected individuals, [and] failed to serve the purposes of the Act.” Id. at 503–04. Moreover, the Court of Appeals affirmed the District Court’s holding, which listed several alternatives to the ordinance, including “authoriz[ing] more funds and more police officers to patrol neighborhoods[, and] ... organiz[ing] neighborhood watches ...” Johnson v. City of Cincinnati, 119 F.Supp.2d 735, 744 (S.D.Ohio 2000) aff’d, 310 F.3d 484 (6th Cir.2002).
Like the city ordinance in Johnson, the Beale Street Sweep indiscriminately restricts an individual’s travel through local spaces and roadways. Furthermore, the Beale Street Sweep imposes this restriction without regard to whether the individual barred from access to Beale Street is engaged in “wholly innocent conduct,” or even whether the individual is likely to engage in illegal activity. See Johnson, 310 F.3d at 503. Some of the same alternative means available in Johnson were also available to the City of Memphis in the instant case. Consequently, less restrictive alternatives that do not directly infringe on an innocent person’s right to localized travel exist in order to preserve the wellbeing and security of persons and property on Beale Street. Accordingly, the Court finds that the Beale Street Sweep as alleged was not narrowly tailored and fails a strict scrutiny analysis.
The Court, however, stops short of declaring the Beale
10

Street Sweep unconstitutional as a matter of law. Plaintiffs describe the Beale Street Sweep as “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (hereinafter referred to as the “MPD”) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers.” (Compl. at 2, ECF No. 1.) Plaintiffs further characterize the sweep as routine law enforcement executed primarily for the purpose of facilitating the end of police officers’ work shift. (ECF No. 97 at 12.) In contrast, Defendant City of Memphis characterizes the sweep as an occasional practice executed only when “circumstances impacting public safety dictated.” (ECF No. 101 at 3.) Defendant also indicates the purpose of the Beale Street Sweep was “to control rowdy crowds.” (Id. (internal quotation marks omitted).) Accordingly, several genuine issues of material fact remain.
3. Preemption
The Supreme Court has held that “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth *963 Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Id. The Supreme Court, however, has further explained:
[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
termination of freedom of movement through means intentionally applied.
Lewis, 523 U.S. at 843–44, 118 S.Ct. 1708 (internal quotation marks omitted). Consequently, where a § 1983 claim does not fall within the textual scope of a Constitutional Amendment, it is then appropriate to evaluate the claim under the broader protections of due process. Johnson, 310 F.3d at 493.
In the instant case, the named Plaintiffs were arrested by police officers and detained for a period of time. (See Compl. ¶ 35–38, 51–58.) As a result, the named Plaintiffs’ claims against the City of Memphis for constitutional violations that followed Plaintiffs’ seizure fall within the scope of the Fourth Amendment. To the extent the named Plaintiffs seek individual relief for violations of due process under the Fourteenth Amendment, the named Plaintiffs’ claims only apply to injuries suffered prior to each one’s seizure. The named Plaintiffs’ due process claims are therefore only partially preempted.
C. Fourth Amendment Violations Plaintiffs assert claims of Fourth Amendment violations by the City of Memphis for unreasonable seizure due to excessive force. To succeed on a claim for a Fourth Amendment violation based on unreasonable seizure, Plaintiffs must show 1) seizure of the person occurred; and 2) the seizure was unreasonable. See Brower v. Cnty. of Inyo, 489 U.S. 593, 595, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).
1. Seizure under the Fourth Amendment
“[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
11

1870, 64 L.Ed.2d 497 (1980). Although it is clear that both named Plaintiffs were ultimately seized, given that they were arrested during the encounter at issue, the timing of when the encounter ripened into a seizure is an issue of fact properly determined by the jury.
2. Reasonableness
“[T]he Fourth Amendment governs all intrusions by agents of the public upon personal security....” Terry, 392 U.S. at 19 n. 15, 88 S.Ct. 1868. The reasonableness analysis centers on “the scope of the particular intrusion, in light of all the exigencies of the case.” Id. Generally, “[d]etermining whether the force used to effect a particular seizure is ‘reasonable’ *964 under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal quotation marks omitted).
Defendant City of Memphis argues that the interests of public safety justify use of force in carrying out the Beale Street Sweep. (See ECF No. 92–2 at 11.) According to Defendant:
[D]ecisions made to protect public safety on Beale Street in directing persons to enter a club or leave the street and sidewalks at 2:30 or 3:00am on some Saturday or Sunday nights is a narrow and reasonable intrusion into the alleged constitutionally protected interests when balanced against the governmental interest in protecting the safety of persons and property on Beale.
(Id. at 11–12.) Plaintiffs assert two grounds on which unreasonable seizure may be found: 1) unconstitutional arrest; and 2) excessive physical force applied during arrest and detention. (See ECF No. 97 at 15.)

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
a) Unconstitutional arrest
Arrests made with probable cause do not violate the Fourth Amendment’s prohibition of unreasonable seizure. Graham, 490 U.S. at 396, 109 S.Ct. 1865. Furthermore, “[i]t is a well-settled principle of constitutional jurisprudence that an arrest without probable cause constitutes an unreasonable seizure in violation of the Fourth Amendment.” Ingram v. City of Columbus, 185 F.3d 579, 592–93 (6th Cir.1999) (citing Donovan v. Thames, 105 F.3d 291, 298 n. 7 (6th Cir.1997)).
In the instant case, Plaintiffs have raised a genuine issue of material fact as to whether Plaintiff Cole and Plaintiff Edmond were detained without probable cause. Plaintiffs assert that Cole was arrested while “eating a slice of pizza on Beale Street” with his cousin. (ECF No. 97 at 15.) Likewise, Edmond states that he “was engaged in lawful conduct and no probable cause existed” when he was detained by Memphis police officers. (Id. at 16.) According to Plaintiffs, Edmond was merely “enjoying the entertainment on Beale Street” with his family. (Id.) Both Cole and Edmond assert that prior to being detained, they heard police make the announcement that persons in the area must either leave the streets or enter into an establishment. (ECF No. 97–1 at PageID 1021; ECF No. 97–3 at PageID 1064–67.) Defendant asserts that Edmond was detained only “after engaging in an argument with a bouncer at Club 152.” (ECF No. 92–1 ¶ 17.) Accordingly, the Court finds that a genuine issue of material fact exists as to Fourth Amendment violations by the police on grounds of arrest without probable cause.
b) Excessive physical force
Use of excessive physical force in the arrest of an individual may also amount to unreasonable seizure in certain circumstances. See generally Graham, 490 U.S. at 396–97, 109 S.Ct. 1865. Factors to be considered in determining whether the force applied in the seizure was unreasonable include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. Additionally, “[t]he “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. “[T]he ‘reasonableness’ inquiry in an excessive force case
12

is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the *965 facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865. Consequently, neither evil intent nor good faith of the arresting officer bear on the reasonableness determination. Id. “[T]he question [is] whether the totality of the circumstances justifie [s] a particular sort of search or seizure.” Tennessee v. Garner, 471 U.S. 1, 8–9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
Plaintiffs assert that Cole was subjected to excessive force during his arrest on Beale Street. According to Cole, after being arrested for remaining Beale Street after the police announced to clear the streets, “MPD officers slammed Mr. Cole on the hood of a police squad car so hard that it dented the car’s hood.” (ECF No. 97 at 15–16.) Given that Cole was ostensibly participating in a lawful activity—eating a slice of pizza—the Court finds that a reasonable jury could find that the police officers’ conduct in arresting Cole was unreasonable and violated his Fourth Amendment rights. Accordingly, the Court finds a genuine issue of material fact exists as to whether Cole’s Fourth Amendment rights were violated by police on grounds of excessive physical force.
IV. CONCLUSION For the reasons stated above, Defendant City of Memphis’ Motion for Summary Judgment (ECF No. 92) is GRANTED as to the following claims: 1) municipal liability for failure to train; 2) municipal liability for failure to investigate and discipline; 3) municipal liability pursuant to the Tennessee Government Tort Liability Act; and 4) punitive damages. With regards to First Amendment violations, the Court finds that Plaintiffs have not asserted a First Amendment claim in this case. Defendant’s Motion for Summary Judgment is DENIED as to all other claims.
IT IS SO ORDERED.
All Citations
97 F.Supp.3d 947

Cole v. City of Memphis, 97 F.Supp.3d 947 (2015)
Footnotes

1

The date stated in City of Memphis’ interrogatory answer, differs from the date asserted in Defendant’s Motion and

Reply. Without making a factual determination, the Court will assume the date the official practice was allegedly

terminated is June 14, 2012 for the limited purposes of this Order.

13

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

)

LAKENDUS COLE and LEON EDMOND, )

individually and as

)

representatives of all others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF MEMPHIS; and

)

ROBERT FORBERT, SAMUEL HEARN, )

CHRISTOPHER BING, JOHN

)

FAIRCLOTH, CARI COOPER, and

)

ROBERT SKELTON, individually )

and in their official

)

capacities as City of Memphis )

police officers,

)

)

Defendants.

)

13-cv-02117-JPM-dkv

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS ROBERT FORBERT AND JOHN FAIRCLOTH’S MOTION TO DISMISS

Before the Court is the Motion to Dismiss of Defendants Robert Forbert and John Faircloth, filed April 2, 2013. (ECF No. 5.) Plaintiffs Lakendus Cole and Leon Edmond responded in opposition on April 10, 2013. (ECF No. 7.)
For the following reasons, Defendants Robert Forbert and John Faircloth’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART. I. BACKGROUND
In their Complaint (ECF No. 1), Plaintiffs assert the following causes of action against City of Memphis police

officers Robert Forbert, Samuel Hearn, Christopher Bing, John Faircloth, Robert Skelton, and Cari Cooper (collectively, the “Individual Defendants”) (id. ¶¶ 4-9): federal-law claims for the use of excessive force and unlawful arrest in violation of 42 U.S.C. § 1983 (“§ 1983”) based on violations of Plaintiffs’ Fourth and Fourteenth Amendment rights (id. ¶¶ 114-19); statelaw claims for civil assault and battery (id. ¶¶ 128-32); and state-law claims for false arrest and imprisonment (id. ¶¶ 13337).
The following facts are those alleged in Plaintiff’s Complaint.
The City of Memphis engages in a policy or practice of ordering “all persons lawfully standing on the sidewalks and street in the Beale Street Entertainment District” to immediately leave, irrespective of “whether circumstances exist which threaten the safety of the public or [City of Memphis] police officers” (the “Beale Street Sweep”). (Id. ¶¶ 24-25.) The Beale Street Sweep routinely occurs in the early morning hours and frequently results in City of Memphis police officers “assaulting, using excessive force, detaining, arresting and/or fabricating false [] criminal charges against persons who are engaged in lawful and constitutionally protected conduct.” (Id. ¶¶ 26-28.)
2

Plaintiff Lakendus Cole (“Cole”), an off-duty City of Memphis police officer, was standing outside Club 152 on Beale Street in Memphis in the early morning of August 26, 2012. (Id. ¶ 30.) Cole was engaging in lawful behavior, and had not consumed any alcohol. (Id. ¶¶ 31, 33.) City of Memphis police officers, including the Individual Defendants, ordered the people on the street to “immediately leave the sidewalks and street in the Beale Street Entertainment District” pursuant to the Beale Street Sweep. (Id. ¶¶ 32-33.) The Individual Defendants are alleged to have committed the following acts: grabbing Cole and assaulting him (id. ¶ 35); slamming Cole’s body into the police car twice, denting the body of the police car (id. ¶ 36); handcuffing and arresting Cole (id. ¶ 37); transporting Cole to the Shelby County Jail (id. ¶ 38); and preparing, or assisting in the preparation of, an affidavit that included false information against Cole resulting in Cole being charged with vandalism, disorderly conduct, and resisting arrest (id. ¶¶ 39-40). The charges against Cole were ultimately dismissed. (Id. ¶ 41.)
Plaintiff Leon Edmond (“Edmond”), an off-duty special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”), was walking in the Beale Street Entertainment District in the early morning of May 5, 2012. (Id. ¶¶ 2, 46.) Edmond was not intoxicated. (Id. ¶ 47.) City of Memphis police
3

officers, including the Individual Defendants, ordered Edmond and others to “immediately leave the sidewalks and street of the Beale Street Entertainment District” pursuant to the Beale Street Sweep. (Id. ¶ 48.) Defendant Cooper stopped Edmond after he unsuccessfully tried to enter Club 152. (Id. ¶¶ 4951.) Defendants Cooper and Skelton handcuffed Edmond and placed him under arrest for public intoxication. (Id. ¶¶ 53-54.) Edmond was released from police custody after a local ATF agent arrived on the scene. (Id. ¶ 57.) II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), a defendant may move to dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” Pursuant to Rule 8(a), a complaint need only contain a “‘short and plain statement of the claims showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a motion to dismiss for failure to state a claim, however, the “[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level and to state a claim to relief that is plausible on its face.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012)
4

(first alteration in original) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). “A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
On a motion to dismiss, the court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (quoting Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)) (internal quotation marks omitted). A court may not dismiss a complaint for failure to state a claim “based on disbelief of a complaint’s factual allegations.” Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). The court, however, “need not accept as true legal conclusions or unwarranted factual inferences, and [c]onclusory allegations or legal conclusions masquerading as factual allegations will not suffice.” In re Travel Agent, 583 F.3d at 903 (alteration in original) (citation omitted) (internal quotation marks omitted).
5

III. ANALYSIS Defendants Robert Forthbert and John Faircloth
(“Defendants”) argue that Plaintiffs have failed to state a claim against them pursuant to Rule 8(a) because the Plaintiffs’ blanket allegations fail to give Defendants adequate notice of their alleged misconduct. (ECF No. 5-1 at 4-5.) Alternatively, Defendants argue that even if Plaintiffs’ allegations are sufficient under Rule 8(a), the Complaint fails to state a substantive due-process claim pursuant to the Fourteenth Amendment. (Id. at 5-6.) Defendants’ arguments are addressed in turn. A. Failure to State a Claim Against Defendants Under Rule 8(a)
Defendants argue that the allegations in the Complaint against the Individual Defendants are so generalized as to not provide them adequate notice of the conduct of which they are accused. (Id. at 5.) In support of their argument, Defendants assert that the Complaint does not mention them by name in the federal and state-law claims; that the Complaint fails to distinguish between the Individual Defendants; and that the Complaint fails to tie them to specific alleged actions. (Id. at 4-5.) Defendants state that blanket assertions against the Individual Defendants do not satisfy Rule 8(a)’s pleading requirement if the allegations do not distinguish between defendants nor give notice of the specific allegations against
6

each defendant. (Id. at 4 (citing Bondex Int’l, Inc. v. Hartford Accident & Indem. Co., 667 F.3d 669, 681 (6th Cir. 2011) and Muhammad v. Weis, No. 08-3616, 2009 WL 637112, at *2 (E.D. Pa. Mar. 11, 2009)).)
Plaintiffs assert that each of the Individual Defendants engaged in the actions stated in the allegations. (ECF No. 7 at 2.) Accordingly, Defendants have notice of the conduct of which they are accused. (Id. at 2-3.) Plaintiffs argue that the cases Defendants cite are distinguishable from the instant case. (Id. at 3.)
Viewing the Complaint in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have stated a claim against Defendants that is plausible on its face. Plaintiffs’ Complaint contains specific federal and state-law claims against the Individual Defendants. (See, e.g., ECF No. 1 ¶¶ 80-86, 12832, 133-37 (asserting specific claims of misconduct against the Individual Defendants).)
Additionally, the instant case is distinguishable from Bondex. In Bondex, the United States Court of Appeals for the Sixth Circuit held that “the pleadings’ generic references to the misconduct of ‘all Defendants’” did not encompass a theory of liability against a specific defendant that was not pled in the complaint. 667 F.3d at 681; see Am. Compl., Bondex Int’l, Inc. v. Hartford Accident & Indem. Co., Case No. 03-1322 (N.D.
7

Ohio Sept. 30, 2005), ECF No. 213. In the instant case, Plaintiffs’ pleadings do not contain only general allegations of misconduct against all Defendants but instead contain specific federal and state-law claims plead against all of the Individual Defendants. Accordingly, Plaintiffs’ claims against Defendants are plausible as Defendants have fair notice that each of the allegations against the Individual Defendants pertains to them.
Finally, this Court declines to follow Muhammad, a case from the United States District Court for the Eastern District of Pennsylvania, holding that allegations against over one hundred defendants do not satisfy Rule 8(a) where the plaintiff did not “describe how each individual actor within the group contributed to the alleged harm.” 2009 WL 637112, at *2; see Am. Compl., Muhammad v. Weis, No. 08-3616 (E.D. Pa. Sept. 18, 2008), ECF No. 4. Instead, this Court follows Hale v. Enerco Grp., Inc., which distinguished between small and large groups of defendants and found that “allegations that multiple Defendants have engaged in the same conduct” were “plausible and raise a reasonable expectation that discovery will reveal evidence to support their claims.” No. 1:10 CV 00867-DAP, 2011 WL 49545, at *4 (N.D. Ohio Jan. 5, 2011); see also Freedom Banc Mortg. Servs., Inc. v. O’Harra, No. 2:11-cv-01073, 2012 WL 3862209, at *4 (S.D. Ohio Sept. 5, 2012) (holding that blanket allegations against multiple defendants were sufficient under
8

Rule 8(a) because it was plausible that multiple defendants engaged in, or assisted in, the alleged misconduct). Accordingly, Plaintiffs have satisfied Rule 8(a) by including a “short and plain statement of the claims” that are “plausible on [their] face.” Keys, 684 F.3d at 608. B. Failure to State a Claim Under the Fourteenth Amendment
Defendants argue that Plaintiffs have failed to state a substantive due-process claim under the Fourteenth Amendment because Plaintiffs’ claims “are nothing more than excessive force and unreasonable seizure claims,” which courts analyze exclusively under the Fourth Amendment. (ECF No. 5-1 at 5-6.)
Plaintiffs assert that their § 1983 claim arises from a violation of their substantive due-process right under the Fourteenth Amendment “to remain in a public place with no apparent purpose and to travel locally through public spaces and roadways.” (ECF No. 7 at 4 (internal quotation marks omitted)); see City of Chicago v. Morales, 527 U.S. 41, 53-54 (1999).
“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior,” a § 1983 claim based on that behavior must be analyzed under that Amendment and not under the substantive due process clause of the Fourteenth Amendment. Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); see Handy-Clay v. City of
9

Memphis, Tenn., 695 F.3d 531, 547-48 (6th Cir. 2012). Claims arising out of an “arrest or investigatory stop of a free citizen” invoke the “protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures.’” Graham, 490 U.S. at 394 (alterations in original); see Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009).
Viewing the Complaint in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have not stated a § 1983 claim against Defendants based on the Fourteenth Amendment. In the instant case, Plaintiffs allege that they were placed under arrest by the Individual Defendants which led to the purported § 1983 violations. Accordingly, their claims against Defendants arise from the “arrest or investigatory stop of a free citizen” and are properly analyzed under the Fourth Amendment, not the Fourteenth Amendment. Graham, 490 U.S. at 394; accord Brooks, 577 F.3d at 706; Lanman v. Hinson, 529 F.3d 673, 680 (6th Cir. 2008).
Therefore, Plaintiffs’ substantive due-process claim arising under the Fourteenth Amendment is DISMISSED as to Defendants Robert Forbert and John Faircloth. IV. CONCLUSION
For the foregoing reasons, Defendants Robert Forbert and John Faircloth’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
10

SO ORDERED this 4th day of June, 2013. s/ Jon P. McCalla JON P. McCALLA CHIEF U.S. DISTRICT JUDGE
11

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LAKENDUS COLE and LEON EDMOND, )

individually and as

)

representatives of all others )

similarly situated,

)

)

Plaintiffs,

)

v.

)

)

CITY OF MEMPHIS, TENNESSEE,

)

)

Defendant.

)

)

No. 2:13-cv-02117-JPM-dkv

ORDER DENYING IN PART AND GRANTING IN PART MOTION OF THE CITY OF MEMPHIS TO DECERTIFY OR MODIFY CLASS

Before the Court is the Motion of the City of Memphis to Decertify or Modify Class, filed February 13, 2015. (ECF No. 148.) Plaintiffs filed a Response on February 20, 2015. (ECF No. 154.) For the reasons set forth below, the Motion is DENIED in part and GRANTED in part. I. BACKGROUND
A detailed factual and procedural summary of the case is included in the Court’s Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification. Cole v. City of Memphis, Tenn., No. 2:13-cv-02117-JPM-dkv, 2014 WL 8508560 (W.D. Tenn. Sept. 29, 2014); (ECF No. 88). Subsequent to issuance of the Court’s Order, which granted certification of

Plaintiffs’ putative class under Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court held a jury trial on the merits of Plaintiffs’ case. (See ECF Nos. 125-28.) The merits of the case included determinations of the individual plaintiffs’ claims for money damages and factual determinations regarding the declaratory and injunctive relief sought on behalf of the class as a whole. (See Verdict, ECF No. 141.)
At the end of trial, the jury found that the City of Memphis had “through its police officers, carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street prior to [and on or after] June 14, 2012.” (Verdict ¶¶ 1-2, ECF No. 141.) The jury found that this practice “occurs without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.” (Id. ¶ 4.) The jury further found that the above-described practice was “the cause of persons being prevented from standing and/or walking on the sidewalk or street of Beale Street.” (Id. ¶ 3.) The jury also found that “since at least 2007, thousands of persons were cleared off of Beale Street pursuant to” that practice. (Id. ¶ 5.)
With regard to Plaintiff Cole’s individual claim for damages, the jury found that Cole had been removed from Beale
2

Street in the manner described above; that “conditions throughout the Beale Street area did NOT pose an existing, imminent or immediate threat to public safety at the time the police officers initiated” the sweep on the night Cole was removed and arrested; that Cole was arrested without probable cause in violation of the Fourth Amendment; that the Memphis Police Department used excessive force during Cole’s arrest in violation of the Fourth Amendment; and that the cause of Cole’s damages was the above-described practice. (Id. ¶¶ 7-16.) The jury awarded Cole $35,000 in damages. (Id. ¶ 17.)
With regard to Plaintiff Edmond’s individual claim for damages, the jury found that Edmond had not been removed from Beale Street pursuant to the custom described above and Edmond’s arrest was not unlawful.1 (Id. ¶¶ 18, 21.) Accordingly, the jury did not award any damages to Edmond. (Id. ¶ 30.)
Post-trial, Defendant filed the instant Motion of the City of Memphis to Decertify or Modify Class on February 13, 2015. (ECF No. 148.) Plaintiffs responded in opposition to Defendant’s Motion on February 20, 2015. (ECF No. 154.) In the Motion to Decertify or Modify Class, Defendant raises the narrow issue of whether Plaintiffs’ class should be decertified on the 1 Although the jury was not required to answer question 19 on the Jury Verdict Form, the jury found that “the conditions throughout the Beale Street area did NOT pose an existing, imminent or immediate threat to public safety at the time the police officers initiated the custom and/or well-established practice described in Question 1 on May 5, 2012.” (Verdict ¶ 19.)
3

basis that “class membership is unascertainable without a full adjudication on the merits of each potential member’s claim.” (ECF No. 148-1 at 1.) II. STANDARD OF REVIEW
“A district court has broad discretion to decide whether to certify [or decertify] a class.” See In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013) (citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)), cert. denied, 134 S. Ct. 1277 (2014). The United States Court of Appeals for the Sixth Circuit has recognized that the “class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” In re Whirlpool, 722 F.3d at 850 (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011)) (internal quotation marks omitted).
“An order that grants or denies class certification may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). A class action may be maintained under Rule 23(b)(2) only if Plaintiffs have made a sufficient showing that
the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole . . . . “The key to the [Rule 23](b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted — the notion
4

that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 131 S. Ct. 2541, 2557 (citation and internal quotation marks omitted). “When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.” Id. at 2558.
Furthermore, “[t]he nature of the primary relief sought in [23(b)(2) class actions], injunctive or declaratory relief, does not require that the class be as narrowly confined as under either (b)(1) or (b) (3).” Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974). “What matters to class certification . . . [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 131 S.Ct. at 2551 (internal quotation marks omitted) (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 48 N.Y.U. L. Rev. 97, 132 (2009)). A class may be certified under 23(b)(2) where “the common claim is susceptible to a single proof and subject to a single injunctive remedy.” Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). Further, where individual class members each have claims for money damages, certifying a 23(b)(2) class is
5

appropriate if the request for monetary damages is kept separate from the class action claims for declaratory relief. Gooch, 672 F.3d at 427-428. III. ANALYSIS
Defendant argues that Plaintiffs’ class as defined is not “‘administratively feasible for the court to determine whether a particular person is a member of the class.’” (ECF No. 148-1 at 4 (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 53738 (6th Cir 2012)).) Defendant asserts that a common claim susceptible to a single proof and subject to a single injunctive remedy does not exist in the instant case as evidenced by the fact that one of the class’s representative plaintiffs, Leon Edmonds, “was unable to prove himself a member of the class . . . .” (Id.) Defendant contends that “[t]he class ‘must not require a merits based adjudication to determine inclusion.’” (Id. at 5 (citing Schilling v Kenton Cnty., Ky., No. CIV.A. 10-143-DLB, 2011 WL 293759, at *7 (E.D. Ky. Jan. 27, 2011)).)
Defendant also argues that with regard to “§ 1983 cases, a class definition is too general where it requires the Court to determine whether an individual’s constitutional rights have been violated in order to ascertain membership in the class itself.” (Id.) Defendant avers that “to define a class as all citizens who have had their constitutional rights
6

violated essentially makes every person on earth a potential class member until a judgment is reached on the merits of that person’s individual claim.” (Id.) Finally, Defendant voices its concern that “[a] prospective class member who simply claims to have been ordered off the street on a given night will require an extensive merits-based adjudication to determine inclusion.” (Id.)
Plaintiffs first argue that Defendant’s Motion to Decertify or Modify Class should be denied out of hand because “it seeks only to reargue issues that were thoroughly briefed by the parties, and considered by the Court, at the time of the certification of the class, and no change in circumstances or applicable law has occurred.” (ECF No. 154 at 1-2.)
Plaintiffs next argue that “certification of a class pursuant to FRCP Rule 23(b)(2) for injunctive and declaratory relief does not require class members to be ascertainable or a merit-based inquir[y] into individual class members[’] entitlement to relief.” (Id. at 2-3.) Plaintiffs assert that although “[t]he Sixth Circuit has not specifically addressed whether ascertainability is an essential requirement in a Rule 23(b)(2) class, []other Circuits have ruled that it is not.” (ECF No. 154 at 4.) Plaintiffs cite to favorable rulings from the First, Third, Fifth, Tenth Circuits and the District Court for the Northern District of New York. (Id. at 4-6 (citing
7

Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972); Shelton v. Bledsoe, 775 F.3d 554, 560–62 (3d Cir. 2015); In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004); Shook v. El Paso County, 386 F.3d 963 (10th Cir. 2004); Anderson v. Coughlin, 119 F.R.D. 1 (N.D.N.Y. 1988)).) In further support of the argument that the ascertainability of class members does not factor into certification, Plaintiffs point to the Supreme Court’s analysis in Dukes as a model for certifying a Rule 23(b)(2) class. Plaintiffs assert that the Supreme Court’s analysis “lacks any inquiry into ‘ascertainability’ of class members.” (ECF No. 154 at 3.) Plaintiffs also contend that the case law cited by Defendant is inapposite in this case. (See id. at 7-9.)
Finally, Plaintiffs argue that “the primary merit-based inquiry relevant to the class — whether thousands of individuals were cleared off of Beale Street in the absence of existing, imminent or immediate threats to public safety — is objective and capable of being determined by the jury by inquiries common to all class member[s] . . . .” (Id. at 3.) This question, according to Plaintiffs, was resolved by the jury’s findings. (Id.)
With regard to whether the circumstances warrant the Court’s consideration of Defendant’s request to decertify the class, the Court is satisfied that the jury’s finding that
8

Plaintiff Edmond did not suffer an injury as a result of an
unconstitutional custom is a sufficient basis for the Court’s
consideration of Defendant’s Motion.
With regard to whether certification of a 23(b)(2) class
for injunctive and declaratory relief requires a showing that
class members are ascertainable, the Court agrees with
Plaintiffs. As noted previously, Rule 23(b)(2) classes are not
subject to the same restrictions as other class types because
damages are determined on an individual basis separate from the
class’ claims. See Weathers, 499 F.2d at 1200. The Court of
Appeals’ analysis in Yaffe is instructive on why the
ascertainability inquiry is not applicable in the context of
class actions for civil rights violations under Rule 23(b)(2):
In holding that a class should not be certified because its members had not been sufficiently identified, for example, the court applied standards applicable to a subdivision (b) (3) class rather than to a subdivision (b) (2) class. Although notice to and therefore precise definition of the members of the suggested class are important to certification of a subdivision (b) (3) class, notice to the members of a (b) (2) class is not required and the actual membership of the class need not therefore be precisely delimited. In fact, the conduct complained of is the benchmark for determining whether a subdivision (b) (2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often incapable of specific enumeration.
454 F.2d at 1366 (emphasis added) (internal quotation marks
omitted). Accordingly, the Court finds that Plaintiffs are not
required to show that the class members are ascertainable in
9

order to maintain their class under Rule 23(b)(2). In adopting the First Circuit’s approach in Yaffe, the
Court looks to the specific conduct of Defendant and whether “the common claim is susceptible to a single proof and subject to a single injunctive remedy.” See Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). In the Court’s Order granting class certification under Rule 23(b)(2), the Court anticipated that questions common to the class would be resolved by adjudication of the instant case. (See ECF No. 88 at 36-38.) The jury’s verdict and the factual findings therein confirm the Court’s expectation of the resolution of common questions. In this case, the jury found that “the City of Memphis, through its police officers, carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street [before and after] June 14, 2012.” (Verdict ¶¶ 1-2.) Additionally, the jury found that this practice “occurs without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.” (Id. ¶ 4.) These findings answer in the affirmative the common question that all class members would otherwise have to prove at trial — whether the MPD routinely conducted an unconstitutional practice of clearing Beale Street.
Additionally, the jury’s finding that the Beale Street 10

Sweep continued past June 12, 2012 indicates that the Beale Street Sweep custom may continue to exist today. Consequently, the relief sought — an injunction against the further execution of the Beale Street Sweep — provides a single remedy to protect all class members from future harm. Furthermore, the jury found that “since at least 2007, thousands of persons were cleared off of Beale Street pursuant to” the Beale Street Sweep. (Verdict ¶ 5.) This finding supports the establishment of a class action due to the far-reaching effect that the Beale Street Sweep has had on a substantial number of individuals.
Finally, even if ascertainability of class members is required for Rule 23(b)(2) classes, Plaintiffs’ class is objectively defined with narrow limitations. See Young, 693 F.3d at 538-39 (holding that “[f]or a [Rule 23(b)(3)] class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused by particular wrongful actions taken by the defendants will be sufficiently objective criterion for proper inclusion in a class definition. Similarly, a reference to fixed, geographic boundaries will generally be sufficiently objective for proper inclusion in a class definition.”) Plaintiff’s class is limited to the geographic area of the Beale Street Entertainment
11

District. It is limited to individuals who suffered injury by police in the early morning hours at approximately 3 a.m. The class is also limited by the manner in which class members were removed from Beale Street — by order of the MPD to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety. Defendant’s characterization that the class as defined would “essentially make[] every person on earth a potential class member until a judgment is reached on the merits” is inaccurate. (See ECF No. 148-1 at 5.) Instead, it is Defendant’s position that overreaches. Taking Defendant’s position to its logical conclusion would result in the disqualification of most, if not all, class actions seeking injunctive or declaratory relief for civil rights violations.
For these reasons, the Court finds that decertification is inappropriate in the instant case.
The Court must also consider whether to modify Plaintiffs’ class definition. The Court previously certified Plaintiffs’ class, defined as “[a]ll persons who have been unlawfully removed from Beale Street and/or adjacent sidewalks by City of Memphis police officers pursuant to the custom, policy and practice known as the Beale Street Sweep.” (ECF No. 88.) Latent in this class definition is the definition of the term
12

“the Beale Street Sweep.” Plaintiffs previously defined the Beale Street Sweep as “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (“MPD”) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers.” (Id. at 2.)
The Court finds that Plaintiffs’ previous definition of the Beale Street Sweep requires modification in order to be more consistent with the strict scrutiny standard that is applied to cases regarding violations of an individual’s fundamental rights, such as the fundamental right to intrastate travel. (See ECF No. 121 at 24-31.) Specifically, the class must be limited to those individuals who are injured as a result of government action that was not “narrowly tailored to a compelling government interest.” See Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007). For the purposes of Plaintiffs’ class, the issue is whether the custom employed by the Memphis Police Department was the least restrictive means to achieve public safety. (See ECF No. 121 at 29-30.) The following definition accurately delineates the boundary between the unconstitutional Beale Street Sweep custom and the constitutionally authorized use of force by the Memphis Police Department to ensure public safety. Accordingly, the Court
13

defines “the Beale Street Sweep” as “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration of whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.” IV. CONCLUSION
For the preceding reasons, the Motion of the City of Memphis to Decertify or Modify Class is DENIED as to Defendant’s request for decertification and GRANTED as to Defendant’s general request for modification. The Court’s definition of “the Beale Street Sweep” shall hereinafter be incorporated in the definition of Plaintiffs’ class.
IT IS SO ORDERED, this 28th day of May, 2015. /s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE
14

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LAKENDUS COLE and LEON EDMOND, )

individually and as

)

representatives of all others )

similarly situated,

)

)

Plaintiffs,

)

v.

)

)

CITY OF MEMPHIS, TENNESSEE,

)

)

Defendant.

)

)

No. 2:13-cv-02117-JPM-dkv

ORDER GRANTING DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, on behalf of the Class, have requested declaratory and injunctive relief in the instant case. For the reasons that follow, the Court finds that declaratory and injunctive relief will clarify and settle important legal relations in the Memphis Beale Street Entertainment District and afford relief from uncertainty and controversy regarding policing policies in connection with Beale Street. Based on the extensive record developed and the evidence submitted in the jury trial in the case, the Court also determines that the City of Memphis’ practice of ordering all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public

safety is unconstitutional. While the City of Memphis asserts that it has now abandoned the unconstitutional practice, evidence to the contrary, including the jury’s factual findings, has been received by the Court. Accordingly, the Court finds that the weight of the evidence compels issuance of narrowly tailored injunctive and other equitable relief in order to remedy the City’s constitutional violations. I. BACKGROUND
A. Factual Background Plaintiff Lakendus Cole is a police officer employed with the City of Memphis Police Department Organized Crime Unit, and Plaintiff Leon Edmond is a Special Agent employed with the Bureau of Alcohol, Tobacco, Firearms and Explosives. (Compl. at 1-2, ECF No. 1.) Plaintiffs assert a class action claim against Defendant City of Memphis (“the City”) for the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (“MPD”) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers (“the Beale Street [] Sweep”). (Id. at 2.) According to Plaintiffs, “[t]he Beale Street [] Sweep routinely occurs in the early morning hours on Saturdays and Sundays and during certain scheduled entertainment events on weekdays.” (Id.) Plaintiffs assert that the Beale Street Sweep
2

“incites violence amongst its employee police officers and creates an environment where they become aggressive, agitated, frenetic, and confrontational with persons lawfully standing on a sidewalk or upon Beale Street.” (Id.)
Under 42 U.S.C. § 1983, Plaintiffs Cole and Edmond also assert individual claims against the City of Memphis. With regard to Plaintiff Cole, Plaintiffs assert the following: “Plaintiff Cole, while off-duty and dressed in civilian clothing, was outside of Club 152 on Beale Street. . . .” (Id. ¶ 30.) “Plaintiff Cole was not intoxicated and had not consumed an alcoholic beverage.” (Id. ¶ 31.) “Pursuant to the Beale Street Sweep, prior to Plaintiff exiting Club 152, MPD police officers including the Individual Defendants ordered all individuals to immediately leave the sidewalks and street in the Beale Street Entertainment District.” (Id. ¶ 32.) “The Individual Defendants suddenly grabbed Plaintiff Cole and[,] without reasonable cause to do so[,] began to assault and viciously attack him.” (Id. ¶ 35.) “The Individual Defendants slammed Plaintiff Cole’s body into the police vehicle twice with such force that the impact dented the body of the police vehicle.” (Id. ¶ 36.) The Individual Defendants handcuffed Plaintiff Cole, placed him in the back of the police vehicle, and transported Plaintiff Cole to the Shelby County Jail. (Id. ¶¶ 37-38.) All criminal charges were later dismissed. (Id.
3

¶ 41.) With regard to Plaintiff Edmond, Plaintiffs allege:
“Plaintiff Edmond, while off-duty and dressed in civilian clothing and visiting Memphis[,] was walking in the Beale Street Entertainment District enjoying the sights and music.” (Id. ¶ 46.) “Plaintiff Edmond was not intoxicated.” (Id. ¶ 47.) As Plaintiff Edmond attempted to enter Club 152 on Beale Street, “Plaintiff Edmond and other family members were approached by Defendant Cooper who ordered Plaintiff Edmond and his family member [sic] to stop walking and demanded that they speak to her regarding their attempt to enter Club 152.” (Id. ¶ 51.) “Defendant Cooper and Defendant Skelton placed Plaintiff Edmond under arrest for public intoxication.” (Id. ¶ 54.) After advising Defendant Cooper and Defendant Skelton that Plaintiff Edmond was a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), MPD police officers contacted Plaintiff Edmond’s supervisor, who contacted another ATF special agent Marcus Watson in charge of the Memphis Field Office. (Id. ¶¶ 55-57.) After Watson arrived on the scene, Plaintiff Edmond was released from police custody. (Id. ¶ 58.)
Defendant City of Memphis claims that the practice of “advis[ing] patrons standing on Beale Street at 2:30am to make their way into a club or make preparations to leave Beale Street” and, after 3:00 a.m., “uniformly ordering patrons off of
4

Beale Street, with the option of entering a club” has been “abandoned by order of MPD command staff.” (Def. City’s Resp. to Pl.’s Mot. ¶¶ 1-2, ECF No. 40.) The City contends that the practice was terminated on June 14, 2012. (ECF No. 40-1 at 2.) The City further asserts that Plaintiffs’ interactions with police as described in their Complaint were in response to reports of Plaintiffs’ illegal conduct. (ECF No. 40 ¶¶ 3–6.)
The City alleges that on August 26, 2012, MPD officers responded to a disorderly conduct call near 152 Beale Street, where “Officers instructed Plaintiff Cole to go inside the club [Club 152] or leave the street. Plaintiff Cole refused to comply and acted disrespectfully towards the officers.” (Id. ¶¶ 3-4 (alteration in original).)
The City asserts that on May 5, 2012, “MPD officers responded to a disturbance call at the entrance to 152 Beale.” (Id. ¶ 5.) “At that time officers came upon a visibly intoxicated Plaintiff Edmonds in an altercation with the doorman and bouncers at 152 Beale. MPD officers removed Plaintiff from the area and discovered that he was presently armed with a GLOCK Model 27 .40 caliber pistol.” (Id. ¶ 6.)
B. The Trial This case was tried by a jury beginning on January 20, 2015. (ECF No. 125.) The jury returned their verdict on January 27, 2015. (ECF No. 138.) In the verdict, the jury made
5

four findings relevant to class relief: (1) that the City of Memphis had “through its police officers, carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street prior to [and on or after] June 14, 2012” (Verdict ¶¶ 1-2, ECF No. 141); (2) that this well-established practice “occurs without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety” (id. ¶ 4); (3) that the well-established practice was “the cause of persons being prevented from standing and/or walking on the sidewalk or street of Beale Street” (id. ¶ 3); and (4) that “since at least 2007, thousands of persons were cleared off of Beale Street pursuant to” that practice. (Id. ¶ 5.)
With regard to Plaintiff Cole’s individual claim for damages, the jury made five findings: (1) that Cole had been removed from Beale Street in the manner described above; (2) that “conditions throughout the Beale Street area did NOT pose an existing, imminent or immediate threat to public safety at the time the police officers initiated” the sweep on the night Cole was removed and arrested; (3) that Cole was arrested without probable cause in violation of the Fourth Amendment; (4) that the Memphis Police Department used excessive force during Cole’s arrest in violation of the Fourth Amendment; and
6

(5) that the well-established practice caused the violations of Cole’s Fourth Amendment rights and damages to Cole. (Id. ¶¶ 716.) The jury awarded Cole $35,000 in damages. (Id. ¶ 17.)
With regard to Plaintiff Edmond’s individual claim for damages, the jury found that Edmond had not been removed from Beale Street pursuant to the well-established practice described above and Edmond’s arrest was not unlawful.1 (Id. ¶¶ 18, 21.) Accordingly, the jury did not award any damages to Edmond. (Id. ¶ 30.)
C. Procedural History On February 25, 2013, Lakendus Cole and Leon Edmond (collectively, “Plaintiffs”) filed a Class Action Complaint asserting deprivation of constitutional rights and seeking injunctive relief and monetary damages. (Compl. ECF No. 1.) On April 4, 2013, Defendant Cari Cooper filed an Answer. (ECF No. 6.) On April 11, 2013, Defendant City of Memphis filed an Answer. (ECF No. 8.) On June 14, 2013, Defendant Robert Skelton filed an Answer. (ECF No. 25.) On June 18, 2013, Defendants Christopher Bing, John Faircloth, Robert Forbert, and Samuel Hearn filed an Answer. (ECF No. 27.) On April 2, 2013, Defendants Robert Forbert and John 1 Although the jury was not required to answer question 19 on the Jury Verdict Form, the jury found that “the conditions throughout the Beale Street area did NOT pose an existing, imminent or immediate threat to public safety at the time the police officers initiated the custom and/or well-established practice described in Question 1 on May 5, 2012.” (Verdict ¶ 19.)
7

Faircloth filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 5.) On April 10, 2013, Plaintiffs filed a Response in opposition to the Motion to Dismiss. (ECF No. 7.) On June 4, 2013, the Court entered an Order granting in part and denying in part the Motion to Dismiss. (ECF No. 22.) The Court found that Plaintiffs have stated a claim pursuant to Rule 8(a) of the Federal Rules of Civil Procedure but dismissed Plaintiffs’ substantive due-process claim under the Fourteenth Amendment as to Defendants Robert Forbert and John Faircloth. (ECF No. 22.)
On May 16, 2013, Defendant Christopher Bing filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 12.) On May 28, 2013, Plaintiffs filed a Response in opposition to the Motion to Dismiss. (ECF No. 13.) On June 6, 2013, the Court entered an Order granting in part the Motion to Dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but denying in part the Motion as to all other claims against Bing. (ECF No. 23.)
On May 31, 2013, Defendant Samuel Hearn filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 21.) No Response was filed within the required time. On July 10, 2013, the Court entered an Order granting in part the Motion to Dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but denying in part the Motion as to
8

all other claims against Hearn. (ECF No. 29.) On November 27, 2013, Plaintiffs filed the Motion to
Certify Class. (ECF No. 36.) Defendant City of Memphis filed a Response on December 18, 2013. (ECF No. 40.) On January 9, 2014, the Court held a hearing on the Motion. (ECF No. 42.) Plaintiffs filed a Supplemental Memorandum of Law in support of its Motion for Class Certification on June 30, 2014. (ECF No. 85.) Defendant filed its Response to the Supplemental Memorandum on July 7, 2014 (ECF No. 86), and Plaintiffs filed their Reply on July 14, 2014 (ECF No. 87). On September 29, 2014, the Court granted in part and denied in part Plaintiffs’ Motion to Certify Class (“Order Certifying Class”). (ECF No. 88.) In the Court’s Order, the Court certified Plaintiffs’ proposed class under Rule 23(b)(2) of the Federal Rules of Civil Procedure for the purposes of injunctive and declaratory relief, and denied certification under Rule 23(b)(3). (ECF No. 88 at 41.)
On October 23, 2014, Plaintiffs filed a Notice of Dismissal with Prejudice of Plaintiffs’ Claims Against the Individual Officers upon Stipulation of the Parties. (ECF No. 91.) The Court dismissed Plaintiffs’ claims against all individual officers with prejudice in an order entered October 27, 2014. (ECF No. 93.)
On October 27, 2014, the Defendant City of Memphis filed a 9

Motion for Summary Judgment. (ECF No. 92.) Plaintiffs filed a Response in Opposition on November 24, 2014. (ECF No. 97.) Defendant filed a Reply on December 8, 2014. (ECF No. 101.) The Court entered an Order granting in part and denying in part the Motion for Summary Judgment (“Summary Judgment Order”) on January 18, 2015. (ECF No. 121.)
On October 27, 2014, Plaintiffs filed a Motion for Partial Summary Judgment. (ECF No. 94.) Defendant filed a Response in Opposition on November 24, 2014. (ECF No. 95.) The Court denied Plaintiffs’ Motion for Partial Summary Judgment on May 28, 2015. (ECF No. 159.)
A jury trial was held from January 20, 2015 to January 27, 2015. (ECF Nos. 125-28, 138.) The jury reached a verdict on January 27, 2015. (ECF Nos. 138, 141.) The jury found in favor of Plaintiff Cole and against Plaintiff Edmond. (ECF No. 141.)
On February 13, 2015, Defendant filed a Motion to Decertify or Modify Class. (ECF No. 148.) Plaintiffs filed a Response in Opposition to Defendant’s Motion on February 20, 2015. (ECF No. 154.)
The Court issued a Scheduling Order setting a deadline of February 17, 2015 for additional briefing on remedies. (ECF No. 147.) On February 17, 2015, the parties submitted briefs regarding declaratory, injunctive and other equitable relief. (ECF Nos. 150-51.) The parties filed response briefs on
10

February 20, 2015. (ECF Nos. 152-53.) The Court held a postverdict hearing on injunctive relief on February 24, 2015. (ECF No. 157.) The Court entered an Order denying in part and granting in part the Motion to Decertify or Modify Class on May 28, 2015. (ECF No. 160.) II. STANDARD OF REVIEW
A. Municipal Liability Unlike state government entities, “[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief” for conduct that infringes the constitutional rights of individuals. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). Municipalities are not subject to respondeat superior liability in cases where liability “does not arise out of the municipality’s own wrongful conduct.” Los Angeles Cnty., Cal. v. Humphries, 131 S. Ct. 447, 453 (2010); Monell, 436 U.S. at 691 (“In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”). Consequently, to succeed on a claim against the City of Memphis, Plaintiffs “must prove two basic elements: (1) that a constitutional violation occurred; and (2) that the [City] is responsible for that violation.” See Graham ex rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d
11

377, 382 (6th Cir. 2004) (internal quotation marks omitted). B. Declaratory Judgment
Under the Declaratory Judgment Act, 28 U.S.C. § 2201, “[i]n
a case of actual controversy within its jurisdiction, . . . any
court of the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of
any interested party seeking such declaration . . . .” The
statute has repeatedly “been understood to confer on federal
courts unique and substantial discretion in deciding whether to
declare the rights of litigants.” Wilton v. Seven Falls Co.,
515 U.S. 277, 286 (1995).
The Supreme Court, however, has cautioned that “the federal
courts . . . do not render advisory opinions. For adjudication
of constitutional issues[,] ‘concrete legal issues, presented in
actual cases, not abstractions’ are requisite.” United Pub.
Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947)
(quoting United States v. Appalachian Elec. Power Co., 311 U.S.
377, 423 (1940)). To that end, the Supreme Court has directed
that federal courts
must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especially in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differences of opinion or conflicts of interest must be ‘ripe for determination’ as controversies over legal rights. The disagreement must not be nebulous or
12

contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.
Pub. Serv. Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237,
243-44 (1952). “[T]he question in each case is whether the
facts alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” Preiser v. Newkirk, 422
U.S. 395, 402 (1975) (internal emphasis and quotation marks
omitted).
The two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. It follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed.
Grand Trunk W.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326
(6th Cir. 1984) (internal quotation marks omitted).
Consequently, the Court considers the following factors in
determining whether to issue declaratory judgment in a case:
(1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata;” (4) whether the use of a declaratory action
13

would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which is better or more effective.
Id. at 326. “[T]he Grand Trunk factors and their cousins in
other circuits direct the district court to consider three
things: efficiency, fairness, and federalism.” W. World Ins.
Co. v. Hoey, 773 F.3d 755, 759 (6th Cir. 2014). The Grand Trunk
factors have not been given a set weight and the importance of
each factor varies depending on the facts particular to each
case. Id. C. Permanent Injunction and Equitable Relief
“The decision to grant or deny permanent injunctive relief
is an act of equitable discretion by the district court . . . .”
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Generally, a plaintiff requesting a permanent injunction must
show:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
Id. In § 1983 actions, “[a] party is entitled to a permanent
injunction if it can establish that it suffered a constitutional
violation and will suffer continuing irreparable injury for
which there is no adequate remedy at law.” Saieg v. City of
14

Dearborn, 641 F.3d 727, 733 (6th Cir. 2011) (internal quotation marks omitted). III. ANALYSIS
A. Municipal Liability Before determining whether declaratory, injunctive, and other equitable relief is appropriate in the instant case, the Court must first determine whether Plaintiffs have satisfied the requirements for establishing the availability of municipal liability. See Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 31 (2010) (concluding that “the ‘policy or custom’ requirement [] applies when plaintiffs seek prospective relief, such as an injunction or a declaratory judgment”). “A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy must ‘identify the policy, connect the policy to the [municipality] itself and show that the particular injury was incurred because of the execution of that policy.’” Graham, 358 F.3d at 383 (quoting Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
1. Unconstitutional Custom A plaintiff bringing a claim under § 1983 against a municipality must prove the existence of an official policy responsible for the constitutional deprivation, or alternatively prove that the constitutional deprivations were caused by a “governmental ‘custom’ even though such a custom has not
15

received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 691. A custom sufficient to establish municipal liability under § 1983 exists where “practices of [local] officials [are] so permanent and well settled as to constitute a custom or usage with the force of law.” Id. (internal citations and quotation marks omitted); Doe v. Claiborne Cnty., Tenn. By & Through Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 507 (6th Cir. 1996). Plaintiffs have identified the Beale Street Sweep as a municipal custom that resulted in the violation of Plaintiffs’ Fourth and Fourteenth Amendment rights.
In the Summary Judgment Order, the Court found that the Beale Street Sweep, as alleged, implicates the constitutionally protected fundamental right “‘to travel locally through public spaces and roadways.’” Cole v. City of Memphis, --- F. Supp. 3d ---, No. 2:13-cv-02117-JPM-dkv, 2015 WL 1567824, at *10-11 (W.D. Tenn. Jan. 18, 2015) (quoting Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002)). The Court also found that “the Beale Street Sweep as alleged was not narrowly tailored and fails a strict scrutiny analysis.” Id. at *12. The Court, however, declined to find that municipal liability existed as a matter of law in the instant case due to the existence of several disputed factual issues. See id. The Court explained that due to the divergent descriptions of the
16

circumstances giving rise to the Beale Street Sweep by the parties, “several genuine issues of material fact remain[ed]” that made granting summary judgment in favor of Plaintiffs on the issue of municipal liability inappropriate. Id.
The factual issues that existed at the time of the Summary Judgment Order are now resolved by the evidence presented at trial and the jury’s factual findings. The jury, in its verdict, found that “the City of Memphis, through its police officers, carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street [before and after] June 14, 2012.” (Verdict ¶¶ 1-2.) The jury found that the well-established practice “occurs without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety[.]” (Id. ¶ 4.) With regard to Plaintiff Cole, the jury found that the well-established practice “prevented Plaintiff Cole from standing and/or walking on the sidewalk or street of Beale Street on August 26, 2012.” (Id. ¶¶ 7-8.)
Based on these facts, the Court finds that the Beale Street Sweep, defined by the Court as “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether
17

conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety,” existed as early as 2007 and continued past June 14, 2012. (See ECF No. 160 at 14.) The Court also finds that the Beale Street Sweep is “so permanent and well settled as to constitute a custom or usage with the force of law.” See Monell, 436 U.S. at 691; Claiborne County, 103 F.3d at 507. The Court finds that sufficient evidence exists that the Beale Street Sweep is a continuing practice of the City and that class members continue to be at risk of the deprivation of their constitutional rights.
Plaintiffs have also made a sufficient showing that the Beale Street Sweep “broadly denies individuals in the area access to the public roadways.” Cole, 2015 WL 1567824, at *11. The Court finds that because the custom is conducted “without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety,” the custom is not “‘the least restrictive means to accomplish the City’s goal.’” Id. (quoting Johnson, 310 F.3d at 503). Consequently, the Beale Street Sweep is in practice not narrowly tailored to achieve a compelling government interest. See Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007). Accordingly, the Court finds that the Beale Street Sweep is an unconstitutional custom that satisfies the requirements for establishing municipal liability under § 1983.
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2. Moving Force Plaintiffs must also show that the municipal policy or custom is the “moving force behind the plaintiff’s deprivation of federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 400 (1997) (internal quotation marks omitted). “Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward.” Id. at 404. “[P]roof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably.” Id. at 405. In the Summary Judgment Order, the Court found that with regard to due process violations, “[s]hould all factual determinations regarding the constitutionality of the Beale Street Sweep be resolved in favor of Plaintiffs, at a minimum, the individuals cleared from the area at the time of the street suffered a direct violation of their due process right to travel and remain on public roadways as a result of the practice.” Cole, 2015 WL 1567824, at *7. Similar to the factual issues regarding the existence of an unconstitutional custom, the factual issues regarding causation have been resolved in favor of the Class and Plaintiff Cole. The jury found that the custom was in fact “the cause of persons being prevented from standing
19

and/or walking on the sidewalk or street of Beale Street,” and had caused “thousands of persons” to be cleared off of Beale Street “since at least 2007.” (Verdict ¶¶ 3, 5.) With regard to Plaintiff Cole, the jury found that the well-established practice “prevented Plaintiff Cole from standing and/or walking on the sidewalk or street of Beale Street on August 26, 2012” and “was the cause of Plaintiff Cole’s unlawful arrest” and “excessive force being used during the arrest of Plaintiff Cole in violation of the Fourth Amendment on August 26, 2012.” (See id. ¶¶ 7-8, 11, 14.)
Accordingly, the Court finds that Plaintiffs have established “a direct causal link between a municipal policy or custom” — the Beale Street Sweep — and the deprivation of Fourteenth Amendment rights of the class members and the Fourth Amendment rights of Plaintiff Cole as described in the jury’s verdict. The Court also finds that Plaintiffs have established the availability of municipal liability with regard to Plaintiff Cole and the Class as a whole.
B. Declaratory Judgment Plaintiffs seek declaratory judgment that “since at least 2007, the City of Memphis violated the constitutional rights of thousands of persons who were subjected to the Beale Street Sweep . . . .” (ECF No. 151 at 5.) The Court’s analysis centers chiefly on the Grand Trunk factors.
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With regard to the first two Grand Trunk factors, the Court’s Order Certifying Class and the Court’s Summary Judgment Order are instructive. In the Order Certifying Class, the Court explained that “[a] single declaration that the Beale Street Sweep is unconstitutional and continues in practice today would provide a common answer to the claims of all class members.” Cole v. City of Memphis, Tenn., No. 2:13-cv-02117-JPM-dkv, 2014 WL 8508560, at *16 (W.D. Tenn. Sept. 29, 2014) (ECF No. 88 at 36 (citing Dukes, 131 S.Ct. at 2551; Senter, 532 F.2d at 525). Absent certification of a class under Rule 23(b)(2) and issuance of declaratory relief, each individual class member would have to repetitively prove identical claims for the availability of municipal liability and the general constitutionality of the Beale Street Sweep.
In the Summary Judgment Order, the Court discussed the analysis for municipal liability step-by-step, but stopped short of finding municipal liability as a matter of law due to disputed issues of material fact. Cole, 2015 WL 1567824, at *4– 9. The Court explained that in order for the City of Memphis to be liable for constitutional violations under § 1983 in the instant case, Plaintiffs must show the existence of a governmental custom such that “practices of local officials are so permanent and well settled as to constitute a custom or usage with the force of law.” Id. at *5. Plaintiffs also have the
21

burden to show that the custom “is the ‘moving force behind the plaintiff’s deprivation of federal rights.’” Id. at *7 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 400 (1997)). Additionally, Plaintiffs must prove that the custom, in this case the Beale Street Sweep, is unconstitutional. See id. at *4–5. Although each class member must still prove his or her own individual damages, issuance of declaratory relief determines the outcome of the preceding elements and settles the controversy of the availability of municipal liability for all class members.
Moreover, without declaratory relief, a significant risk of conflicting judgments regarding the availability of municipal liability would exist. Consequently, judgment declaring the existence of a well-settled custom carried out by the City of Memphis that causes the deprivation of the class members’ constitutional rights is essential to “clarifying the legal relations in issue” in the instant case. See Grand Trunk, 746 F.2d at 326. Furthermore, declaratory relief in the instant case is not moot as a result of the jury’s findings. Rather, the issue of municipal liability is now resolved in favor of the class members based on the Court’s findings supra Part III.A.
For these reasons, the first two Grand Trunk factors support the grant of declaratory relief. The remaining Grand Trunk factors are discussed in detail as follows.
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1. The Race for Res Judicata “The third [Grand Trunk] factor is meant to preclude jurisdiction for ‘declaratory plaintiffs who file their suits mere days or weeks before the coercive suits filed by a ‘natural plaintiff’ and who seem to have done so for the purpose of acquiring a favorable forum.’” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 558 (6th Cir. 2008) (quoting AmSouth Bank v. Dale, 386 F.3d 763, 788 (6th Cir. 2004)). “The question is whether the declaratory plaintiff has filed in an attempt to get her choice of forum by filing first.” Id. (internal alteration and quotation marks omitted). A plaintiff’s mere selection of the federal forum is “a choice given by Congress” and, without more, does not indicate procedural fencing. Id. In the instant case, the City has not offered any evidence of procedural fencing. In the typical race for res judicata, the federal or declaratory plaintiffs are defendants or potential defendants in a state action. See id. Here, Plaintiffs would have been plaintiffs against the City regardless of the forum. Plaintiffs’ choice to bring suit in federal court pursuant to 28 U.S.C. § 1331 is their statutory right granted by Congress. Accordingly, the third factor does not weigh against declaratory relief.
2. Encroachment on State Jurisdiction “Where complex factual issues are present and the action
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parallels a state court action arising from the same facts and
where alternative remedies are available, declaratory judgment
is inappropriate.” Am. Home Assur. Co. v. Evans, 791 F.2d 61,
64 (6th Cir. 1986). Considerations of federalism, however,
are not controlling when no state prosecution is pending and the only question is whether declaratory relief is appropriate. In such case, the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.
Perez v. Ledesma, 401 U.S. 82, 103-04 (1971).
The City has produced no indication of the existence of a
state action in the instant case. Rather, the instant cause of
action was brought under federal law for violations of the
United States Constitution. (ECF No. 1.) The federal courts,
as “the primary guardians of constitutional rights,” provide an
appropriate forum for deciding violations of the Constitution by
local governments. See Perez, 401 U.S. at 103-04; see also
Kendrick v. Bland, 740 F.2d 432, 437 (6th Cir. 1984). Thus, the
concern for increased friction between federal and state courts
is minimal. Accordingly, the Court finds that the fourth Grand
Trunk factor does not weigh against declaratory relief. 3. Alternative Remedy
A district court should “deny declaratory relief if an
alternative remedy is better or more effective.” Scottsdale
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Insurance, 513 F.3d 546, 562 (6th Cir. 2008) (quoting Grand Trunk, 746 F.2d at 326).
Similar to the fourth Grand Trunk factor, the federal forum is well-suited to declare the constitutionality of the Beale Street Sweep and establish the existence of municipal liability. This is not a case where a state court judgment or indemnity action would provide a “better or more effective” remedy for the City’s constitutional violations. See Scottsdale Insurance, 513 F.3d 546, 562 (6th Cir. 2008) (noting declaratory judgment in state court and filing of an indemnity action as possible alternative remedies). Accordingly, the fifth Grand Trunk factor weighs in favor of declaratory relief.
4. Balance of the Factors Having considered each of the Grand Trunk factors, the Court finds that they weigh in favor of declaratory relief in the instant class action. Accordingly, the Court declares: Since at least 2007, the City of Memphis violated the constitutional rights of thousands of persons who were subjected to “the Beale Street Sweep” as defined in this Order. C. Permanent Injunction Plaintiffs have established that individual class members have suffered constitutional violations as a result of the Beale Street Sweep. See supra Part III.A.1. Consequently, the remaining issue facing the Court with regard to issuance of a
25

permanent injunction is whether class members “will suffer continuing irreparable injury for which there is no adequate remedy at law.” See Saieg, 641 F.3d at 733.
“Courts have [] held that a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir.1984)) (finding plaintiff demonstrated irreparable harm because defendant’s conduct violated plaintiff’s Fourth and Fourteenth Amendment rights).
Plaintiffs argue that a permanent injunction is necessary in the instant case because they were deprived of a fundamental constitutional right. (ECF No. 151 at 13.) Plaintiffs assert that the jury’s findings that the Beale Street Sweep was executed “without consideration of whether conditions throughout the Beale Street area pose an existing, imminent, or immediate threat to public safety” is conclusive of the existence of irreparable injuries suffered by Plaintiff Cole and the other class members. (See id. at 13-14.) Plaintiffs further assert that the jury’s finding that the Beale Street Sweep has been
26

ongoing since at least 2007 shows that harm caused by the City’s unconstitutional conduct is continuing. (Id. at 14.)
The City argues that “[t]he public interest would be disserved by the issuance of an injunction as sought by the Plaintiff” because “an injunction restricting law enforcement from clearing streets and areas of the City would pose risk to the law abiding public.” (ECF No. 150-1 at 9.) In arguing against an injunction, the City poses the questions:
What existing, eminent [sic] or immediate threat to public safety would law enforcement have to prove before restricting access to or travel upon Beale or any other city street? At what point would law enforcement be able to limit citizens to travel within areas in which there is a fire or barricade situation[?] (Id.) The City also argues that because “Mr. Cole was adequately compensated for harm to his constitutional rights,” there is an adequate remedy at law for class members who have been injured by the Beale Street Sweep. (Id.) The Court agrees to a large extent with Plaintiffs. The City’s arguments ignore the permanent harm caused to Cole’s career by the unconstitutional sweep that occurred on August 26, 2012 and Cole’s resulting unlawful arrest. Although Cole was awarded monetary damages, he will never have the opportunity to serve in his position of choice due to the arrest record. Similar to Overstreet, Plaintiffs in the instant case have shown the City’s conduct violates the class members’ Fourteenth
27

Amendment rights. See supra Part III.A. Additionally, the jury found that the Beale Street Sweep caused violations of Plaintiff Cole’s Fourth Amendment rights. (Verdict ¶¶ 11, 14.)
The City’s arguments also ignore the possibility of future, recurring harm due to unconstitutional sweeps that may occur absent a permanent injunction. In the Court’s previous Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification, the Court found that “[a]s a general proposition, without injunctive relief, individuals frequenting the Beale Street Entertainment District will continue to be susceptible to injury caused by the potentially unconstitutional actions of MPD police officers.” Cole, 2014 WL 8508560, at *16 (W.D. Tenn. Sept. 29, 2014). Because the jury has made specific factual findings that 1) the City “carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street on or after June 14, 2012”; and 2) the custom was carried out “without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety,” the Court finds that a substantial likelihood of recurrence of the unconstitutional practice exists. Consequently, the Court finds that the City’s unconstitutional conduct is continuing.
Moreover, because there is an ongoing risk of the 28

deprivation of class members’ fundamental rights, Plaintiffs have shown that legal remedies by themselves are inadequate to resolve the City’s constitutional violations. For these reasons, the Court finds that without issuance of a permanent injunction, the class members “will suffer continuing irreparable injury for which there is no adequate remedy at law.” See Saieg, 641 F.3d at 733.
To the extent that the balance of equities and public interest are in question, the Court finds that the risk of continuing constitutional violations substantially mitigates any burden suffered by the City in complying with a permanent injunction to end unconstitutional conduct. Additionally, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979); Planned Parenthood Association v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987)).
Accordingly, Plaintiffs have satisfied their burden to show that a permanent injunction is appropriate in the instant case. The City of Memphis and its agents and employees, are hereby permanently enjoined from engaging in “the Beale Street Sweep” as defined in this Order. The Court notes that the ordered injunction does not prevent the MPD from conducting normal
29

police work or clearing Beale Street under appropriate circumstances where an imminent threat exists to public safety throughout the Beale Street area.
With regard to the City’s question of what specific circumstances would constitute an existing, imminent, or immediate threat sufficient to justify a clearing of Beale Street, the City may look to existing Sixth Circuit case law and the case law of other Circuits to guide its training and conduct.
D. Additional Equitable Relief Plaintiffs have proposed further equitable relief in addition to a permanent injunction prohibiting the City from engaging in the Beale Street Sweep. “Section 1983 by its terms confers authority to grant equitable relief as well as damages, but its words allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding.” Rizzo v. Goode, 423 U.S. 362, 378 (1976) (internal quotation marks omitted). Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.
30

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971) (internal quotation marks omitted).
“It is fundamental that the federal forum, as the ultimate guardian of constitutional rights, possesses the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct.” Kendrick v. Bland, 740 F.2d 432, 437 (6th Cir. 1984). “Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937). In § 1983 cases, equitable remedies are “to be determined by the nature and scope of the constitutional violation.” See Milliken v. Bradley, 433 U.S. 267, 280 (1977). Consequently, the scope of equitable relief granted by the Court must be “tailored to cure the condition that offends the Constitution.” Id. at 282 (internal quotation marks omitted); see also Kendrick, 740 F.2d at 437 (“[T]he federal equity court in fashioning a remedy must afford relief which is no broader than necessary to remedy the constitutional violation.” (internal quotation marks omitted)).
The Court has ruled that the City’s conduct violates the Fourth and Fourteenth Amendment and that a permanent injunction
31

prohibiting the Beale Street Sweep is appropriate in this case.
See supra Parts III.A-C. The question that remains is what
additional equitable relief, if any, is necessary to “cure” the
City’s constitutional violations. See Milliken, 433 U.S. at
282.
In addition to declaratory relief and “a permanent
injunction prohibiting the City, and its agents and employees,
from engaging in the Beale Street Sweep,” Plaintiffs request the
following equitable relief:
3) Enter a permanent injunction prohibiting the City, and its agents and employees, from placing, or allowing to be placed signage on Beale Street declaring that the street will be cleared at 3:00 a.m.;
4) Order the City to remove any and all signage on Beale Street declaring that the street will be cleared at 3:00 a.m.;
5) Order the City to distribute an Informational Bulletin ordering officers to cease conducting the Beale Street Sweep;
6) Order the City to train its officers that the Beale Street Sweep is unconstitutional and shall not be carried out;
7) Order the City to train its officers as to why the Beale Street Sweep is unconstitutional and an unlawful use of police power;
8) Order the City to train its officers as to what constitutes an imminent threat to public safety so that the officers may clear the street when necessary in a constitutionally permissible way;
9) Order the City to train its officers as to the ordinances and other laws that apply to Beale Street;
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10) Appoint a monitor, special master, or other agent of the Court to monitor the training of the officers as ordered by the Court and report to the Court regarding the City’s compliance;
11) Appoint a monitor, special master, or other agent of the Court to monitor the arrests on Beale Street by reviewing records of arrests on Beale Street which occurred between the hours of 1:00 a.m. and 6:00 a.m. and determine whether the arrests occur as a result of the Beale Street Sweep and report to the Court regarding the results of the monitoring. The City shall provide the referenced records to the Monitor at 9:00 a.m. on Monday following each weekend;
12) Appoint a monitor, special master, or other agent of the Court to review all arrest records on Beale Street from 2007 to the present to determine which arrests occurred as a result of the Beale Street Sweep and report to the Court regarding the results of the review;
13) Schedule regular hearings to allow the courtappointed monitor, special master, or other agent of the Court to appear and testify regarding his or her findings in carrying out the duties assigned by the Court;
14) Any and all additional relief the Court believes is appropriate to end the City’s widespread unconstitutional practice.
(ECF No. 151 at 6-7.)
Plaintiffs argue that the preceding equitable relief is
necessary in the instant case because Officer Arley Knight
testified during trial that his recommendation to end the Beale
Street Sweep was not carried out by the MPD. (Id. at 17.)
Plaintiffs also point to testimony by multiple police officers
that “they and all other officers on Beale Street were
33

instructed by supervisors to enforce the signage on Beale Street, and/or that the City had enacted an Ordinance closing Beale Street to the public at 3:00 a.m. and police officers were required to enforce it.” (Id.)
Plaintiffs also argue that appointment of a monitor, special master, or other agent of the Court is necessary “to ensure Defendants’ full compliance with a judgment of this Court.” (Id. at 20.) Plaintiffs assert that appointment of a third party monitor is appropriate in the instant case “[d]ue to the difficult and complex nature of rooting out an entrenched, invidious, and department-wide unconstitutional practice [] coupled with the City’s history of failure to voluntarily end the Beale Street Sweep . . . .” (Id. at 19.) Plaintiffs aver that “[m]onitoring a defendant’s remedial conduct through a court-appointed monitor, special master or other intermediary is common in cases requiring broad systemic reform to address widespread and longstanding unconstitutional policies or practices.” (Id. (citing United States v. Yonkers Bd. Of Educ., 29 F.3d 40, 44 (2d Cir. 1994)).)
The City argues that the remedies proposed by Plaintiffs go beyond what is necessary to cure the City’s unconstitutional conduct. (See ECF No. 152 at 3.) The City asserts that it has already removed the signage that indicated a regular police sweep at approximately 3:00 a.m. (Id.) The City further
34

asserts that the Court is ill-suited to oversee training of the City’s police officers. (Id.) The City avers that “[s]uch wide ranging and vague equitable relief seems to be for the purpose of procedural fencing as we proceed through the remedies stage of this litigation.” (Id.) Finally, the City argues that any equitable relief granted by the Court should be “the least intrusive remedy that will still be effective.” (Id. at 4 (quoting Kendrick, 740 F.2d at 437 (6th Cir. 1984)).)
The Court agrees with Plaintiffs that some equitable relief beyond a permanent injunction prohibiting the City from carrying out the Beale Street Sweep is warranted given the facts of the present case. The condition that offends the Constitution in this case is the City’s continued use of the Beale Street Sweep under circumstances where there is no imminent threat to public safety. One of the causes of the condition has been a lack of understanding and training on the part of MPD officers and their superiors. During trial, Plaintiffs produced evidence that the officers in charge of the Beale Street Entertainment District ordered clearings of Beale Street even after the announced discontinuance of the sweep. (See ECF No. 156 at 4-6.) Furthermore, multiple officers assigned to the Beale Street Entertainment District believed that the MPD was enforcing the law as written on various signs throughout the area even though those signs were not posted by the MPD. (See ECF No. 156 at 5-
35

6.)
Of particular concern to the Court is the City’s continued
refusal to end the practice. Plaintiffs proffered evidence that
the City determined to continue the Beale Street Sweep despite a
recommendation from the highest ranking officer in the
Entertainment District Unit, Arley Knight, to terminate the
practice. The jury found that the Beale Street Sweep continued
even after a command staff order officially terminated the
practice on June 14, 2012. (See ECF No. 40-1 at 2.)
Also of concern is the City’s failure to acknowledge the
substantial harm the City’s unconstitutional practice has had on
the personal lives of the individual class members. Even after
the jury found conclusively that the City violated the
constitutionally protected rights of Plaintiff Cole, the City
appears to persist in its belief that its conduct was justified
and the results thereof insignificant:
Plaintiffs’ counsel further speculates that there will be “life-long consequences” to those who left the street at the direction of police officers, although the argument only addresses those “arrested for fabricated charges such as Disorderly Conduct, Criminal Trespass and Obstructing a Highway.” Neither plaintiff proved any of the consequences suggested in Plaintiffs’ Brief. Only Officer Cole was found to have been harmed by the ‘sweep’ and he continues his career with the Memphis Police Department.
(ECF No. 152 at 2.) Significantly, during trial, Plaintiff
Cole testified that he could no longer serve in his desired
36

position due to his unlawful arrest. Contrary to the City’s assertion that “[w]hile the jury determined that Officer Cole was arrested for disorderly conduct and resisting arrest without probable cause, there was no proof of any persons falsely charged pursuant to the sweep,” the jury in fact found that the City’s unconstitutional sweep of the Beale Street Entertainment District caused the unlawful (or false) arrest of Cole. (Verdict ¶¶ 7-12.) The jury also awarded significant damages in compensation for the City’s conduct and resulting injury to Cole. (Id. ¶¶ 7-17.) Moreover, the jury found that thousands of individuals have been unconstitutionally removed from Beale Street since 2007. (Id. ¶ 5.) Based on Cole’s testimony and the jury’s findings, it is evident to the Court that, for the purposes of determining equitable relief, at least one class member and potentially a substantial number of class members have suffered long term consequences due to unlawful arrests as a direct result of the Beale Street Sweep.
The City also states, “The City maintains that the clearing is a tactic utilized after the commanding officers on the scene make a prudent and reasonable decision based upon circumstances about which they are aware.” (ECF No. 150-1 at 4.) The City’s assertion is contradicted by the
37

jury’s finding that the clearing of Beale Street “occurs without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.” (Verdict ¶ 4.) The City’s postverdict arguments reinforce the conclusion that the City has yet to accept and institutionalize the constitutional balance required by the Fourth and Fourteenth Amendments of the United States Constitution in policing the Beale Street Entertainment District. The City need only adhere to the constitutional requirements that it already follows in policing other parts of the City of Memphis. It is the institutional resistance to these broadly understood principles, however, that necessitates limited remedial steps, which if promptly implemented, should protect the constitutional rights of individuals throughout the Beale Street Entertainment District.
The Court finds that absent additional equitable relief, there is a reasonable likelihood that the constitutional violations will not be abated. Accordingly, the Court finds that additional training of and dissemination of information among MPD officers regarding the constitutional rights of individuals on Beale Street is the appropriate cure to prevent further violations of the Fourth and Fourteenth Amendments.
The Court, however, agrees with the City that one of 38

Plaintiffs’ proposed remedies exceeds what is necessary to ensure compliance with the Constitution. Accordingly, the Court declines to adopt the following proposed remedy:
12) Appoint a monitor, special master, or other agent of the Court to review all arrest records on Beale Street from 2007 to the present to determine which arrests occur[r]ed as a result of the Beale Street Sweep and report to the Court regarding the results of the review[.] This remedy would place undue expense on the City and unnecessarily deplete funds better applied to the protection of the public. IV. CONCLUSION For the reasons discussed, the Court ORDERS the following relief in the instant case:
1) The Court DECLARES that, since at least 2007, the City of Memphis violated the constitutional rights of thousands of persons who were subjected to “the Beale Street Sweep,” that is, “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.”
39

2) The City of Memphis and its agents and employees, are PERMANENTLY ENJOINED from engaging in “the Beale Street Sweep” defined as “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.”2
3) The City of Memphis and its agents and employees, are PERMANENTLY ENJOINED from placing, or allowing to be placed signage on Beale Street declaring that the street will be cleared at 3:00 a.m.
4) The City of Memphis is ORDERED to remove any and all signage on Beale Street declaring that the street will be cleared at 3:00 a.m.
5) The City of Memphis is ORDERED to distribute an Informational Bulletin to officers explaining that “the Beale Street Sweep,” defined as “the policy, procedure, 2 The permanent injunction does not prevent the MPD from clearing Beale Street when there is an imminent threat to public safety throughout the Beale Street area.
40

custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety,” is unconstitutional.
6) The City of Memphis shall train its officers that the Beale Street Sweep defined as “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety,” is unconstitutional and shall not be carried out.
7) The City of Memphis shall train its officers as to a) why the Beale Street Sweep is unconstitutional and an unlawful use of police power; b) what constitutes an imminent threat to public safety so that the officers may clear the street when necessary in a constitutionally permissible way; and c) the ordinances and other laws that apply to Beale Street.
41

8) The Court DETERMINES that appointment of a limited neutral monitor is appropriate in the instant case. The monitor shall observe and report on the progress of the training of MPD officers, which may be carried out internally by the MPD. The monitor shall summarize the progress and status of the training of MPD officers in a quarterly report to the Court. The monitor shall perform this task for a period of one year following his or her appointment.
9) The monitor shall also review the records of arrests for the Beale Street Entertainment District that occur between the hours of 1:00 a.m. and 6:00 a.m. and determine whether those arrests occur as a result of “the Beale Street Sweep” defined as “the policy, procedure, custom, or practice by which police officers of the Memphis Police Department order all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety.” The City shall provide the referenced records to the monitor by 3:00 p.m. on the Monday following each weekend. The monitor shall include the results and findings in a
42

quarterly report to the Court. The monitor shall perform this task for a period of one year following appointment of the monitor.
10) The Court will hold quarterly hearings to be attended by Plaintiffs’ counsel, a representative of the City of Memphis, counsel for the City of Memphis, and the monitor. The monitor shall provide a written quarterly report to the Court seven (7) days prior to the quarterly hearing and orally present his or her findings regarding the City of Memphis’ compliance with the Court’s Order. The hearings will occur for a period of one year following appointment of the monitor.
11) It is not contemplated that the position of monitor will be a full time position. The City of Memphis shall be liable, however, for reasonable compensation and expenses incurred by the monitor upon approval of the Court. The monitor shall submit invoices for costs to the Court on the first day of each month subsequent to the monitor’s appointment.
12) The parties may jointly nominate an individual for the position of monitor and present that nomination to the
43

Court in a hearing to be set by future setting letter. Alternatively, the parties may nominate separate individuals for the position of monitor. In the latter case, the Court may appoint one of the parties’ nominees or another satisfactory individual to the position of monitor.
It is further ORDERED that Plaintiffs file additional briefing regarding monetary relief, including the jury’s award of damages, pre and post-judgment interest, and attorney’s fees and costs within fourteen (14) days of entry of this order. Defendant shall have seven (7) days from the filing of Plaintiffs’ brief on monetary relief to file a response brief.
IT IS SO ORDERED, this 3rd day of June, 2015. /s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE
44

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LAKENDUS COLE and LEON EDMOND, individually and as

) )

representatives of all others )

similarly situated,

)

)

Plaintiffs,

)

)

v.

) )

)

CITY OF MEMPHIS, TENNESSEE,

)

)

Defendant.

)

No. 2:13-cv-02117-JPM-dkv

ORDER GRANTING MONETARY DAMAGES, PREJUDGMENT INTEREST, POSTJUDGMENT INTEREST, AND ATTORNEYS’ FEES

On June 3, 2015, the Court entered its order granting
declaratory and injunctive relief. (ECF No. 161.) In the
order, the Court required that
Plaintiffs file additional briefing regarding monetary relief, including the jury’s award of damages, pre and post-judgment interest, and attorney’s fees and costs within fourteen (14) days of entry of this order. Defendant shall have seven (7) days from the filing of Plaintiffs’ brief on monetary relief to file a response brief.
(Id. at 44.) On June 16, 2015, Plaintiffs filed a motion for
payment of attorneys’ fees, reimbursement of expenses, entry of
judgment for Lakendus Cole, and post-judgment interest. (ECF
No. 162.) Defendant filed a response to Plaintiffs’ motion on
June 26, 2015. (ECF No. 172.)

For the reasons that follow, Plaintiff Lakendus Cole is
AWARDED damages and prejudgment and postjudgment interest. The
Court also GRANTS the motion as to the award of attorneys’ fees.
I. BACKGROUND
A. Factual Background
Plaintiff Lakendus Cole is a police officer employed with
the City of Memphis Police Department Organized Crime Unit, and
Plaintiff Leon Edmond is a Special Agent employed with the
Bureau of Alcohol, Tobacco, Firearms and Explosives. (Compl. at
1-2, ECF No. 1.)
Plaintiffs assert a class action claim against Defendant
City of Memphis (“the City”) for
the policy, procedure, custom, or practice by which police officers of the Memphis Police Department (hereinafter referred to as the “MPD”) order all persons to immediately leave the sidewalks and street on Beale Street when there are no circumstances present which threaten the safety of the public or MPD police officers (referred to in this Introduction as the “Beale Street [] Sweep”).
(Id. at 2.) Plaintiffs Cole and Edmond also assert individual
claims against the City of Memphis pursuant to 42 U.S.C. § 1983.
(Compl. ¶¶ 114-19.)
B. The Trial and the Court’s Ruling
This case was tried by a jury beginning on January 20,
2015. (ECF No. 125.) The jury returned their verdict on
January 27, 2015. (ECF No. 138.) In the verdict, the jury made 2

four findings relevant to class relief: (1) that the City of Memphis had “through its police officers, carried out a custom and/or well-established practice mainly on weekends at or about 3:00 a.m. of preventing persons from standing and/or walking on the sidewalk or street of Beale Street prior to [and on or after] June 14, 2012” (Verdict ¶¶ 1-2, ECF No. 141); (2) that this well-established practice “occurs without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety” (id. ¶ 4); (3) that the well-established practice was “the cause of persons being prevented from standing and/or walking on the sidewalk or street of Beale Street” (id. ¶ 3); and (4) that “since at least 2007, thousands of persons were cleared off of Beale Street pursuant to” this practice. (Id. ¶ 5.)
With regard to Plaintiff Cole’s individual claim for damages, the jury made five findings: (1) that Cole had been removed from Beale Street in the manner described above; (2) that “conditions throughout the Beale Street area did NOT pose an existing, imminent or immediate threat to public safety at the time the police officers initiated” the sweep on the night Cole was removed and arrested; (3) that Cole was arrested without probable cause in violation of the Fourth Amendment; (4) that the Memphis Police Department used excessive force
3

during Cole’s arrest in violation of the Fourth Amendment; and (5) that the well-established practice caused the violations of Cole’s Fourth Amendment rights and damages to Cole. (Id. ¶¶ 716.) The jury awarded Cole $35,000 in damages. (Id. ¶ 17.)
With regard to Plaintiff Edmond’s individual claim for damages, the jury found that Edmond had not been removed from Beale Street pursuant to the well-established practice described above and Edmond’s arrest was not unlawful.1 (Id. ¶¶ 18, 21.) Accordingly, the jury did not award any damages to Edmond. (Id. ¶ 30.)
Subsequent to entry of the jury’s verdict and after considering the jury’s factual findings, the Court ruled that “the City of Memphis’ practice of ordering all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an existing, imminent or immediate threat to public safety is unconstitutional.” (ECF No. 161 at 1-2.)
C. Procedural History On February 25, 2013, Lakendus Cole and Leon Edmond
1 Although the jury was not required to answer question 19 on the Jury Verdict Form, the jury found that “the conditions throughout the Beale Street area did NOT pose an existing, imminent or immediate threat to public safety at the time the police officers initiated the custom and/or well-established practice described in Question 1 on May 5, 2012.” (Verdict ¶ 19.)
4

(collectively, “Plaintiffs”) filed a class action complaint asserting deprivation of constitutional rights and seeking injunctive relief and monetary damages. (Compl., ECF No. 1.) On April 4, 2013, Defendant Cari Cooper filed an answer to Plaintiffs’ complaint. (ECF No. 6.) On April 11, 2013, Defendant City of Memphis filed an answer. (ECF No. 8.) On June 14, 2013, Defendant Robert Skelton filed an answer. (ECF No. 25.) On June 18, 2013, Defendants Christopher Bing, John Faircloth, Robert Forbert, and Samuel Hearn filed an answer. (ECF No. 27.)
On April 2, 2013, Defendants Robert Forbert and John Faircloth filed a motion to dismiss for failure to state a claim. (ECF No. 5.) On April 10, 2013, Plaintiffs filed a response in opposition to the motion to dismiss. (ECF No. 7.) On June 4, 2013, the Court entered an order granting in part and denying in part the motion to dismiss. (ECF No. 22.) The Court found that Plaintiffs have stated a claim pursuant to Rule 8(a) of the Federal Rules of Civil Procedure but dismissed Plaintiffs’ substantive due-process claim under the Fourteenth Amendment as to Defendants Robert Forbert and John Faircloth. (ECF No. 22.)
On May 16, 2013, Defendant Christopher Bing filed a motion to dismiss for failure to state a claim. (ECF No. 12.) On
5

May 28, 2013, Plaintiffs filed a response in opposition to the motion to dismiss. (ECF No. 13.) On June 6, 2013, the Court entered an order granting in part the motion to dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but denying in part the motion as to all other claims against Bing. (ECF No. 23.)
On May 31, 2013, Defendant Samuel Hearn filed a motion to dismiss for failure to state a claim. (ECF No. 21.) No response was filed within the required time. On July 10, 2013, the Court entered an order granting in part the motion to dismiss as to Plaintiffs’ substantive due-process claim under the Fourteenth Amendment but denying in part the motion as to all other claims against Hearn. (ECF No. 29.)
On November 27, 2013, Plaintiffs filed a motion to certify class. (ECF No. 36.) Defendant City of Memphis filed a response on December 18, 2013. (ECF No. 40.) On January 9, 2014, the Court held a hearing on the motion. (ECF No. 42.) Plaintiffs filed a supplemental memorandum of law in support of its motion for class certification on June 30, 2014. (ECF No. 85.) Defendant City of Memphis filed its response to the supplemental memorandum on July 7, 2014 (ECF No. 86), and Plaintiffs filed their reply on July 14, 2014 (ECF No. 87). On September 29, 2014, the Court granted in part and denied in part
6

Plaintiffs’ motion to certify class (“Order Certifying Class”). (ECF No. 88.) In the Court’s Order, the Court certified Plaintiffs’ proposed class under Rule 23(b)(2) of the Federal Rules of Civil Procedure for the purposes of injunctive and declaratory relief, and denied certification under Rule 23(b)(3). (ECF No. 88 at 41.)
On October 23, 2014, Plaintiffs filed a notice of dismissal with prejudice of Plaintiffs’ claims against the individual officers upon stipulation of the parties. (ECF No. 91.) The Court dismissed Plaintiffs’ claims against all individual officers with prejudice in an order entered October 27, 2014. (ECF No. 93.)
On October 27, 2014, the Defendant City of Memphis filed a motion for summary judgment. (ECF No. 92.) Plaintiffs filed a response in opposition on November 24, 2014. (ECF No. 97.) Defendant filed a reply on December 8, 2014. (ECF No. 101.) The Court entered an order granting in part and denying in part the motion for summary judgment (“Summary Judgment Order”) on January 18, 2015. (ECF No. 121.)
On October 27, 2014, Plaintiffs filed a motion for partial summary judgment. (ECF No. 94.) Defendant filed a response in opposition on November 24, 2014. (ECF No. 95.) The Court denied Plaintiffs’ motion for partial summary judgment on May
7

28, 2015. (ECF No. 159.) A jury trial was held from January 20, 2015 to January 27,
2015. (ECF Nos. 125-28, 138.) The jury reached a verdict on January 27, 2015. (ECF Nos. 138, 141.) The jury found in favor of Plaintiff Cole and against Plaintiff Edmond. (ECF No. 141.)
On February 13, 2015, Defendant filed a motion to decertify or modify class. (ECF No. 148.) Plaintiffs filed a response in opposition to Defendant’s motion on February 20, 2015. (ECF No. 154.)
The Court issued a Scheduling Order setting a deadline of February 17, 2015 for additional briefing on remedies. (ECF No. 147.) On February 17, 2015, the parties submitted briefs regarding declaratory, injunctive and other equitable relief. (ECF Nos. 150-51.) The parties filed response briefs on February 20, 2015. (ECF Nos. 152-53.) The Court held a postverdict hearing on injunctive relief on February 24, 2015. (ECF No. 157.) The Court entered an Order denying in part and granting in part the motion to decertify or modify class on May 28, 2015. (ECF No. 160.)
On June 3, 2015, the Court entered an order granting declaratory and injunctive relief. (ECF No. 161.) On June 16, 2015, Plaintiffs filed a motion for payment of attorneys’ fees, reimbursement of expenses, entry of a judgment for Lakendus Cole
8

and postjudgment interest. (ECF No. 162.) Plaintiffs filed a bill of costs on June 17, 2015. (ECF No. 166.) The Clerk of Court stayed a determination of costs on June 23, 2015. (ECF No. 167.)
On June 24, 2015, Plaintiffs filed a motion for waiver of objection and to deem granted Plaintiffs’ motion for payment of attorneys’ fees, reimbursement of expenses, entry of a judgment for Lakendus Cole, and postjudgment interest. (ECF No. 169.) On June 24, 2015, Defendant filed a motion for extension of current dates (ECF No. 170), which the Court granted on June 25, 2015 (ECF No. 171). Defendant filed a response to Plaintiffs’ motion for payment of attorneys’ fees, reimbursement of expenses, entry of a judgment for Lakendus Cole and postjudgment interest on June 26, 2015. (ECF No. 172.)
On July 3, 2015, Defendant filed a notice of appeal of three of the Court’s orders in the instant case (ECF Nos. 121, 132, 161). (ECF No. 174.) On July 10, 2015, Plaintiffs filed a motion (ECF No. 176) and amended motion for exercise of continuing jurisdiction over equitable relief and a motion for payment of attorneys’ fees, reimbursement of expenses, entry of a judgment for Lakendus Cole, and post-judgment interest (ECF No. 177). On July 30, 2015, Plaintiffs filed a motion to correct and supplement the record. (ECF No. 183.) The Court
9

granted Plaintiffs’ amended motion for exercise of continuing jurisdiction over equitable relief and Plaintiffs’ motion for payment of attorneys’ fees, reimbursement of expenses, entry of a judgment for Lakendus Cole, and postjudgment interest on July 31, 2015. (ECF No. 184.) II. ANALYSIS
A. Jury Award of Damages Pursuant to § 1983 Section 1983 “creates a species of tort liability in favor of persons who are deprived of rights, privileges, or immunities secured to them by the Constitution.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06 (1986) (internal quotation marks omitted). “Accordingly, when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts.” Id. at 306. “[T]he rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question . . . .” Carey v. Piphus, 435 U.S. 247, 259 (1978). The Court previously ruled that “the City of Memphis’ practice of ordering all persons to immediately leave the sidewalks and street on Beale Street without consideration to whether conditions throughout the Beale Street area pose an
10

existing, imminent or immediate threat to public safety is unconstitutional.” (ECF No. 161 at 1-2.) The jury awarded Plaintiff Cole compensatory damages in the amount of $35,000.00 after finding that the City’s sweep of Beale Street caused damages to Plaintiff Cole. (See Verdict ¶¶ 1-17.) Specifically, the jury found: 1) the Beale Street Sweep “prevented Plaintiff Cole from standing and/or walking on the sidewalk or street of Beale Street on August 26, 2012” (id. ¶ 7); 2) ”the conditions throughout the Beale Street area [at that time] did NOT pose an existing, imminent or immediate threat to public safety” (id. ¶ 8); 3) Defendant “unlawfully arrested Plaintiff Cole without probable cause in violation of the Fourth Amendment on August 26, 2012” (id. ¶ 10); 4) the Beale Street Sweep “was the cause of Plaintiff Cole’s unlawful arrest on August 26, 2012” (id. ¶ 11); 5) Defendant “used excessive force during the arrest of Plaintiff Cole in violation of the Fourth Amendment on August 26, 2012” (id. ¶ 13); 6) the Beale Street Sweep “was the cause of excessive force being used during the arrest of Plaintiff Cole in violation of the Fourth Amendment on August 26, 2012” (id. ¶ 14); and 7) the Beale Street Sweep “caused damages to Plaintiff Cole” in the amount of $35,000.00 (id. ¶¶ 16-17).
Defendant does not oppose “entry of the judgment awarding 11

Lakendus Cole $35,000.00 based upon the jury verdict.” (ECF No. 172 at 1.)
For these reasons, the Court finds that the jury’s award of $35,000.00 to Plaintiff Cole is sufficiently tailored to his due process and Fourth Amendment rights.
The jury found that Plaintiff Leon Edmond did not suffer any damages as a result of Defendant’s conduct. (See ECF No. 141 ¶¶ 18-30.) Accordingly, Plaintiff Edmond is not entitled to an award for damages.
B. Prejudgment and Postjudgment Interest In Plaintiffs’ Complaint, Plaintiffs seek prejudgment and postjudgment interest. (Compl. at 28, ECF No. 1.) Pursuant to 28 U.S.C. § 1961(a), postjudgment “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.” Under Sixth Circuit precedent, “in an action based on federal question jurisdiction, the award of prejudgment interest is committed to the sound discretion of the trial court.” Young v. Langley, 840 F.2d 19, 1988 WL 12805, at *1 (6th Cir. 1988); see also Lentz v. City of Cleveland, 333 F. App’x 42, 51 (6th Cir. 2009). “Prejudgment interest is appropriate if needed to make a plaintiff whole.” Lentz, 333 F. App’x at 51 (citing Anderson v. Whittaker Corp., 894 F.2d 804, 809 (6th Cir. 1990)).
12

“The award serves to compensate for the loss of use of money due as damages from the time the claim accrues until judgment is entered, thereby achieving full compensation for the injury those damages are intended to redress.” Young, 1988 WL 12805, at *1 (internal quotation marks omitted). Moreover, a request for prejudgment interest made in the initial complaint will be considered timely. Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1401 (6th Cir. 1990).
In a federal question cause of action, the decision to calculate prejudgment interest pursuant to state law or federal common law is left to the discretion of the district court. See Ford v. Uniroyal Pension Plan, 154 F.3d 613, 619 (6th Cir. 1998); E.E.O.C. v. Wooster Brush Co. Emps. Relief Ass’n, 727 F.2d 566, 579 (6th Cir. 1984) (“All of the foregoing suggest to us that the matter of prejudgment interest remains essentially one for the discretion of the trial judge.”).
Based on the unambiguous language of § 1961(a), the Court finds that Plaintiff Cole is entitled to postjudgment interest on his damages award. With regard to prejudgment interest, Defendant does not raise an argument in opposition to the assessment of prejudgment interest. (See ECF No. 172.) Accordingly, the Court finds that prejudgment interest is appropriate in the instant case.
13

Causes of action under § 1983 begin to accrue “when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Eidson v. State of Tennessee Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007). In the instant case, Plaintiff Cole suffered his initial injury as a result of Defendant’s unconstitutional conduct on August 26, 2012. (See Verdict ¶¶ 7-16.) Accordingly, prejudgment interest in the instant case is calculated from August 26, 2012 until the date of entry of judgment—August 27, 2015. Calculating the interest pursuant to federal law, the Court finds that Lakendus Cole is entitled to prejudgment interest on his award for consequential damages in the amount of $411.48.
C. Attorneys’ Fees Pursuant to 42 U.S.C. § 1988(b), “In any action or proceeding to enforce a provision of [section 1983] of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .” Defendant does not dispute that Cole is the prevailing party or that he is entitled to attorneys’ fees under § 1988. Defendant contends that 1) ”the rates of Mr. Spence and Mr. Meredith should be reduced to more accurately reflect the market rate and prior case law on fee shifting;” 2) time spent on
14

overlapping research and failed motions should not be
compensated; and 3) ”there is no basis for an enhancement of the
lodestar fee.” (ECF No. 172 at 2, 3, 7.)
1. Rates
With regard to determining reasonable attorneys’ fees, the
Sixth Circuit has explained,
When making a determination of a reasonable attorney fee, a district court begins by determining “the fee applicant’s ‘lodestar,’ which is the proven number of hours reasonably expended on the case by an attorney, multiplied by his court-ascertained reasonable hourly rate.” Adcock–Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir.2000). We have explained that “[a] district court has broad discretion to determine what constitutes a reasonable hourly rate for an attorney.” Wayne v. Vill. of Sebring, 36 F.3d 517, 533 (6th Cir.1994). “A trial court, in calculating the ‘reasonable hourly rate’ component of the lodestar computation, should initially assess the ‘prevailing market rate in the relevant community.’” Adcock–Ladd, 227 F.3d at 350 (quoting Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The prevailing market rate is “that rate which lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Id. A district court is permitted to “rely on a party’s submissions, awards in analogous cases, state bar association guidelines, and its own knowledge and experience in handling similar fee requests.” Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed.Appx. 496, 499 (6th Cir.2011); see Dowling v. Litton Loan Servicing LP, 320 Fed.Appx. 442, 447 (6th Cir.2009) (affirming a district court’s calculation of a reasonable hourly rate based on the court’s “knowledge of local billing practices” and counsel’s customary billing rates).
Waldo v. Consumers Energy Co., 726 F.3d 802, 821-22 (6th Cir.
2013). 15

Defendant concedes that the rate sought for Mr. Whitwell, $170.00 per hour, is a reasonable rate. (ECF No. 172 at 2.) Defendant argues that the rates sought by Plaintiffs for Mr. Spence and Mr. Meredith, $350.00 per hour and $250.00 per hour respectively, exceed the relevant market rate for their services. (Id.) In support of this argument, Defendant submits affidavits from J. Michael Fletcher and Robert D. Meyers, both of whom have worked as “special counsel” for the City of Memphis. (ECF Nos. 172-1, 172-2.) Mr. Fletcher states in his affidavit that he is “compensated at the rate of $150.00 per hour” for his work as special counsel. (ECF No. 172-1 ¶ 6.) Mr. Meyers states that he is compensated for his work as special counsel at a rate of $211.00 per hour. (ECF No. 172-2 ¶ 10.) Mr. Meyers further states that “the appropriate range for partner fees is between the rate of $230.00 and $275.00 per hour.” (Id. ¶ 11.)
Plaintiffs argue that the rates sought for Mr. Spence and Mr. Meredith are reasonable “based on the complexity of the issues and the procedural history of this case.” (ECF No. 162-1 at 10.) Plaintiffs submit multiple affidavits in support of the requested rates. (ECF Nos. 162-2 to 162-6.) Additionally, Plaintiffs cite to multiple federal cases in the State of Tennessee where the district court awarded hourly rates that
16

exceed the rates sought in the instant case. (ECF No. 162-1 at 11 (citing Doe v. Bd. of Educ. of Memphis City Sch., 2007 U.S. Dist. LEXIS 103207 (W.D. Tenn. Jan. 9, 2007); Crawford v. Metro Nashville, 2010 U.S. Dist. LEXIS 146232 (M.D. Tenn. March 9, 2010); Villegas v. Metro. Gov’t of Davidson Cnty., 2012 U.S. Dist. LEXIS 135110 (M.D. Tenn. Sept. 20, 2012)).)
The Court agrees with Plaintiffs that the requested rates for Mr. Spence and Mr. Meredith are reasonable for five reasons. First, the Court notes that Mr. Spence (29 years) and Mr. Meredith (7 years), have significant legal experience and expertise in constitutional law. (See ECF No. 162-1 at 11; ECF No. 162-2 ¶¶ 6, 8; ECF No. 162-4 ¶ 6.) Second, the instant case was of at least moderate complexity. The case included class certification, two motions for summary judgment, multiple motions in limine, a six-day jury trial, multiple post-verdict motions, and declaratory and injunctive relief in a complex area of the law—constitutional due process, the Fourth Amendment, and municipal liability based on an unconstitutional custom.
Third, the Court finds persuasive Plaintiffs’ citation to cases of similar complexity where the district court awarded the same or higher attorneys’ fees pursuant to § 1988. The complexity of the instant case, because of the class certification issue, may actually exceed the complexity of those
17

cases due to the lack of an asserted class action. Fourth, the affidavits submitted by Plaintiffs are also
persuasive. Jeffrey S. Rosenblum, an attorney in the State of Tennessee since 1989 with extensive experience litigating § 1983 cases, attested that the rates sought by Plaintiffs were reasonable. (ECF No. 162-3 ¶¶ 2, 8.) William B. Ryan, an attorney in Tennessee with experience in § 1983 cases, stated that “the fee requested by Plaintiffs’ counsel is reasonable under the standards set by 42 U.S.C. § 1988 and the case precedent construing § 1988.” (ECF No. 162-5 ¶ 12.) Mr. Ryan further stated that in his opinion, “many lawyers would have declined to undertake the representation of the Plaintiffs in this case because of the legal issues that exist in a case such as this.” (Id.) James E. King, a Tennessee attorney who has litigated against the Spence Firm and is familiar with § 1983 cases, stated that it is his opinion “that the Spence Firm has earned all of the attorneys’ fees and costs it is seeking . . . .” (ECF No. 162-6 ¶¶ 2, 4-5, 7.)
These affidavits are particularly persuasive because, unlike the affidavits submitted by Defendant, these affidavits come from individuals unrelated to the parties in the instant case.
Finally, the Court’s “knowledge of local billing practices” 18

confirms that the requested rates are reasonable. 2. Overlapping Time and Failed Motions
In Defendant’s response in opposition to the instant motion, Defendant points out that “[t]he records reflect 17.8 attorney hours related to an unsuccessful motion seeking [to] strike the affidavit of Arley Knight and for sanctions against the City.” (ECF No. 172 at 3.) Defendant “note[s] extensive and perhaps overlapping research on legal issues by Mr. Spence and Mr. Meredith, such as class certification.” (Id.) Defendant also “question[s] the propriety of including 46.4 hours related to the preparation of the Motion for Fees.” (Id.)
Notwithstanding Defendant’s assertions, the Court finds that Plaintiffs have submitted sufficient evidence to establish reasonableness of the hours logged. Both Mr. Rosenblum and Mr. King attested to the reasonableness of the hours charged. (ECF No. 162-3 ¶ 8; ECF No. 162-6 ¶ 8.) The Court has also reviewed the submitted time sheets and finds that the time logged by Plaintiffs’ counsel is reasonable.
3. Enhancement “[T]he lodestar method yields a fee that is presumptively sufficient to achieve this objective.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). This “presumption is a strong one.” Id. (internal quotation marks omitted). In
19

addition to the lodestar amount, “enhancements may be awarded in rare and exceptional circumstances.” Id. (internal quotation marks omitted). The Supreme Court has listed examples of when an enhancement is appropriate: 1) ”[w]hen a plaintiff’s attorney achieves results that are more favorable than would have been predicted based on the governing law and the available evidence,” and those results are attributable to the superior attorney performance; 2) ”where the method used in determining the hourly rate employed in the lodestar calculation does not adequately measure the attorney’s true market value;” and 3) ”the attorney’s performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted.” Id. at 554-555. “[T]he novelty and complexity of a case generally may not be used as a ground for an enhancement because these factors presumably [are] fully reflected in the number of billable hours recorded by counsel.” Id. at 553. The fee applicant has burden of proving the necessity of an enhancement, which requires production of specific evidence. Id.
Plaintiffs argue that “[t]his case merits an enhancement of the lodestar because a substantial amount of the attorney time spent litigating this case was exclusively dedicated to provide nonpecuniary benefit to the public by protecting and preserving the fundamental constitutional rights of the multitude of
20

persons who visit Beale Street.” (ECF No. 162-1 at 17.) Plaintiffs assert that courts have granted enhancements where a plaintiff’s victory benefits those other than the plaintiff. (Id. at 19 (citing Bass v. Dellagicoma, 2013 U.S. Dist. LEXIS 93044 (D.N.J. June 28, 2013)).) Plaintiffs further assert that courts consider whether counsel’s performance “produce[s] an especially beneficial result for the class.” (Id. at 20 (citing Van Horn v. Nationwide, 436 F. App’x 496 (6th Cir. 2011)).) Plaintiffs’ aver that “[o]btaining permanent injunctive relief provides immeasurable benefit for the class members and prospective visitors to Beale Street.” (Id. at 17.) Plaintiffs contend that the value of this benefit to the class supports enhancement of the lodestar calculation by a multiplier of 1.5. (See id. at 20-21.)
Defendant argues that enhancement is inappropriate in the instant case because the result was expected under existing law. (ECF No. 172 at 6.) Defendant avers that “[t]here was no shortage of ‘available evidence’” in the instant case. (Id.) Defendant further asserts that there is no specific proof that enhancement is required to adequately measure Plaintiffs’ counsels’ market value, the costs in the instant case were not extraordinary, and there was no exceptional delay. (Id.)
The Court agrees with Defendant that this case does not 21

fall within the examples of the rare cases articulated by the Supreme Court in Perdue. The result in this case cannot be said to be unexpected based on the superior performance of Plaintiffs’ counsel. This is especially true in the instant case in light of the fact that one of the plaintiffs did not prevail on the merits. The market values of Plaintiffs’ attorneys are the values calculated by the lodestar method and supported by the affidavits submitted by Plaintiffs. There is no evidence to support higher values than the requested rates. Additionally, Plaintiffs do not argue and the Court does not find that there was exceptional delay in the instant case.
With regard to Plaintiffs’ argument that enhancement is justified based on the benefit conferred to class members, the Court finds the benefit rendered to the class is an appropriate factor to consider. See Van Horn, 436 F. App’x at 500. The instant case resulted in a finding that the Beale Street Sweep was conducted in violation of the due process clause of the Fourteenth Amendment. (ECF No. 161 at 19-20.) This result is not insignificant to the other class members’ interests. Additionally, Plaintiffs’ argument regarding the benefit to the general public is well-taken. In light of the injunctive relief prohibiting the Beale Street Sweep and requiring additional training of police officers to be more aware of an individual’s
22

constitutional rights, the results achieved by Plaintiffs’ counsel go beyond the interests of the parties in the instant case. For these reasons, the Court finds it appropriate to award Plaintiffs’ counsel a 15% enhancement (1.15 multiplier). V. CONCLUSION
For the foregoing reasons, Defendant City of Memphis is ORDERED to pay Lakendus Cole $35,000.00 in damages as awarded by the jury in this case; Defendant City of Memphis is further ORDERED to pay Lakendus Cole $411.48 in prejudgment interest on the damages award; Lakendus Cole’s request for postjudgment interest on the damages award is GRANTED. The Court further GRANTS Plaintiffs’ motion as to the request for attorneys’ fees. The Court awards Spence Law Firm, PLLC $389,563.50 as attorneys’ fees based on 1,468.35 hours of labor. The Court further awards Spence Law Firm, PLLC an enhancement of the award of attorneys’ fees in the amount of $58,434.53, for a total attorneys’ fees award of $447,998.03.
Additionally, in light of the Court’s findings in the instant order and the Court’s order granting Defendant an extension of time to file a response (ECF No. 171), Plaintiffs’ motion for waiver of objection and to deem granted Plaintiffs’ motion for payment of attorneys’ fees, reimbursement of expenses, entry of a judgment for Lakendus Cole, and
23

postjudgment interest (ECF No. 169) is TERMINATED as moot. IT IS SO ORDERED, this 27th day of August, 2015. /s/ Jon P. McCalla JON P. McCALLA U.S. DISTRICT COURT JUDGE
24

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

)

LAKENDUS COLE AND LEON

)

EDMUND, individually and as

)

representatives of all others similarly situated, )

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF MEMPHIS,

)

and ROBERT FORBERT, SAMUEL HEARN, )

CHRISTOPHER BING, JOHN FAIRCLOTH, )

CARI COOPER and ROBERT SKELTON, )

IN THEIR OFFICIAL CAPACITIES

)

AS CITY OF MEMPHIS

)

POLICE OFFICERS,

)

)

)

Defendants.

)

No. 2:13-cv-02117-JPM-dkv JURY TRIAL DEMANDED

ORDER GRANTING MOTION TO LIFT PARTIAL STAY OF JUDGMENT &
CONCERNING MOTION FOR SUPPLEMENTAL AWARD OF ATTORNEYS’ FEES REIMBURSEMENT OF EXPENSES, AND POST-JUDGMENT INTEREST
Before the Court are Motions to Lift Partial Stay of Judgment (ECF No. 235) and for Supplemental Award of Attorneys’ Fees Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236) filed by Plaintiff Lakendus Cole, individually and on behalf of the class, on January 25, 2017. Defendants City of Memphis and City of Memphis Police Officers Robert Forbert, Samuel Hearn, Christopher Bing, John Faircloth, Cari Cooper, and Robert Skelton in their official capacities (collectively, “Defendant City of Memphis” or “Defendant”) filed responses in opposition on February 3, 2017 (ECF No. 242) and February 7, 2017 (ECF No. 243). With leave, Plaintiff filed a reply to Defendant City of Memphis’s response on the issue of

the Court lifting the partial stay on February 8, 2017. (ECF No. 246.) Defendants filed a surreply with leave in opposition on February 14, 2017. (ECF No. 249.) For the reasons stated below, the Court GRANTS Plaintiff’s Motion to Lift Partial Stay of Judgment (ECF No. 235) and ORDERS Defendant to file its response to Plaintiff’s Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236) no later than fourteen (14) days from the date of entry of this Order.
I. BACKGROUND
On August 27, 2015, this Court entered a Judgment awarding Plaintiff $35,000.00 in damages as awarded by the jury and $411.48 in prejudgment interest. (ECF No. 188 at PageID 2401.) The Court also granted Plaintiff’s request for post-judgment interest and attorney fees in the amount of $447,998.03 for work conducted by Spence Law Firm, PLLC. (Id.)
On October 28, 2015, the Court stayed the “judgment against [Defendant City of Memphis] for monetary damages without the posting of a supersedeas bond.” (ECF No. 207 at PageID 2824.) The Court, however, did not stay “the injunctive relief in paragraphs 7(b) and 8 of the Order Granting Declaratory and Injunctive Relief, filed on June 3, 2015 (ECF No. 161), on the basis that each of the four (4) factors required to be considered by a trial court in determining whether to grant a stay weigh against the issuance of a stay of the injunctive relief.” (Id.) Thereafter, Defendant appealed to the Sixth Circuit. (ECF No. 174.) The appeal concluded, affirming the Court’s judgment on October 17, 2016 (ECF No. 232), and a mandate issued on January 12, 2017 (ECF No. 234).
On January 25, 2017, Plaintiff filed two motions: (1) Motion to Lift Partial Stay of Judgment (ECF No. 235) and (2) a Motion for Supplemental Award of Attorneys’ Fees
2

Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). Plaintiff requests the Court lift the partial stay now that the Sixth Circuit’s mandate has issued. (ECF No. 235.) Plaintiff also requests that as the prevailing party on appeal he and the class he represents receive reasonable attorneys’ fees, an enhancement of those fees by 1.15 (i.e. 15%), reimbursement of fees and expenses, and post-judgment interest that includes attorneys’ fees and expenses from the date of Judgment entered on August 27, 2015. (ECF No. 236-1 at PageIDs 3379-80.)
Defendant responded in opposition to the proposition that the Court lift the partial stay on February 3, 2017. (ECF No. 242.) Defendant argues that the “Court has the power to continue the partial stay” and “should exercise this power and continue the partial stay through final disposition of the City’s certiorari petition.” (Id. at PageIDs 3415-16 (citing Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 87 S. Ct. 1, 3 (1966) (Harlan, J., in chambers) for proposition that Federal Rule of Civil Procedure 62 “continues in force through the certiorari stage;” and citing the All Writs Act. 28 U.S.C. § 1651(a) as giving this Court statutory power to continue the stay.) Defendant contends that continuing the stay will not prejudice Plaintiff because post-judgment interest will continue to accrue through the disposition of the certiorari petition, and ultimately “maintain the status quo.” (Id. at PageIDs 3416, 3417.) Its petition is also not made “with an improper purpose,” Defendant asserts, because “[t]here presently exists a substantial split among the Circuits as to whether and to what extent there is a constitutional right to intra-state travel.” (Id. at PageIDs 3416-17.)
On February 7, 2017, Defendant filed a response in opposition to Plaintiff’s Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). (ECF No. 243.)
3

In his reply to Defendant’s response on the issue of the Court lifting the partial stay, filed
on February 8, 2017, Plaintiff argues that the Court cannot stay the execution of the Sixth
Circuit’s judgment, and that such a request must be sought from either the Sixth Circuit itself or
the United States Supreme Court pursuant to 28 U.S.C. § 2101(f). (ECF No. 246.)
Defendant contends in its sur-reply, filed on February 14, 2017, that it does not seek for
“this Court to stay execution of an appellate court judgment” and that Supreme Court rules
suggest this Court has jurisdiction to stay the case pending certiorari review. (ECF No 249 at
PageIDs 3448-49 (citing S. Ct. R. 23.3).)
II. DISCUSSION
A. Motion to Lift Partial Stay of Judgment (ECF No. 235)
Whether the district court’s jurisdiction is restored upon the Court of Appeals mandate
such that the district court may stay the execution of judgment pending an application to the
Supreme Court for certiorari, is a question that lacks binding precedent in the Sixth Circuit. The
question has been answered, however, by many district courts across the nation. The general
consensus is that district courts are not permitted on either legal or prudential grounds to issue a
stay following a Court of Appeals mandate pending an application to the Supreme Court for certiorari.1
1 Kozman v. Trans World Airlines Inc., 145 F. Supp. 140, 141 (S.D.N.Y. 1956); United States v. Lentz, 352 F. Supp. 2d 718, 726 (E.D. Va. 2005); Hovater v. Equifax Servs., Inc., 669 F. Supp. 392, 393 (N.D. Ala. 1987); Filardo v. Foley Bros., 191 Misc. 671, 78 N.Y.S.2d 689 (1948); In Re Stumes, 681 F.2d 524 (8th Cir. 1982); Mister v. Illinois Central Gulf Railroad Co., 680 F.Supp. 297 (S.D. Ill. 1988) (also rejecting applicability of Fed.R.Civ.P. 62); Deretich v. City of St. Francis, 650 F.Supp. 645 (D. Minn. 1986); Studiengesellschaft Kohle, mbH v. Novamont Corp., 578 F.Supp. 78 (S.D.N.Y. 1983); Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers AFL-CIO v. Local Lodge 504, No. CIV. A. 87-5689, 1989 WL 49516, at *1 (E.D. Pa. May 8, 1989); William A. Graham Co. v. Haughey, 794 F. Supp. 2d 566, 568–69 (E.D. Pa. 2011); Ventas, Inc. v. HCP, Inc., No. 3:07-CV-238-H, 2011 WL 3678819, at *2 (W.D. Ky. Aug. 22, 2011); Kentucky Commercial Mobile Radio Serv. Emergency Telecommunications Bd. v. Tracfone Wireless, Inc., 953 F. Supp. 2d 780, 781 (W.D. Ky. 2013); Hi-Lex Controls, Inc. v. Blue Cross & Blue Shield of Michigan, No. 11-12557, 2014 WL 3928451, at *4 (E.D. Mich. Aug.
4

Courts hold that there is no federal law or rule that would provide district courts legal grounds to issue such a stay. Contrary to Defendant’s argument that this Court may continue its Federal Rule of Civil Procedure 62 stay “through the certiorari stage” (ECF No. 242 at PageIDs 3415-16), courts find that “[t]he power of a district court to grant a stay of judgment pending appeal [under Federal Rule of Civil Procedure 62(d)] terminates when the Court of Appeals issues its mandate.” Gander v. FMC Corp., 733 F.Supp. 1346, 1347 (E.D. Mo.1990); accord Kentucky Commercial Mobile Radio Serv. Emergency Telecommunications Bd. v. Tracfone Wireless, Inc., 953 F. Supp. 2d 780, 781 (W.D. Ky. 2013); Hi-Lex Controls, Inc. v. Blue Cross & Blue Shield of Michigan, No. 11-12557, 2014 WL 3928451, at *3 (E.D. Mich. Aug. 12, 2014).
It is one thing for a district court to grant a stay of its own judgment under Rule 62(d) pending the resolution of an appeal to the Court of Appeals. . . . It is quite another thing for [a district] court to grant a motion to stay under the present circumstances. The district court judgment has been superseded by the judgment of the Court of Appeals, even though the latter affirms the district court judgment in all respects. The defendants will be asking the Supreme Court to overturn the judgment of the Court of Appeals, not that of the district court. William A. Graham Co. v. Haughey, 794 F. Supp. 2d 566, 568–69 (E.D. Pa. 2011). The Court agrees that its stay expired when the Sixth Circuit issued its mandate; to find otherwise would permit district courts to stay Court of Appeals decisions whether or not they affirmed or reversed the district court on the district court’s whim that the Supreme Court may grant the party’s petition.
Courts find that authority to issue a stay following a Court of Appeal mandate is rooted in 28 U.S.C. § 2101(f), which only vests authority to grant such a stay with the Court of Appeals or a Justice of the Supreme Court. See Hi-Lex Controls, 2014 WL 3928451, at *3; see also Sup.
12, 2014); United States v. Shaw, 115 F. Supp. 532, 532–33 (D.D.C. 1953) (“Any stay of proceedings must be sought in the Court issuing the mandate rather than the Court receiving it.”).
5

Ct. R. 23.2 (“A party to a judgment sought to be reviewed may present to a Justice an application to stay the enforcement of that judgment. See 28 U. S. C. § 2101(f).”). “[I]t is simply not an appropriate function for [a district] court to pass on the likelihood that the ruling of a higher court will be accepted for review by the Supreme Court; rather, that function is properly performed by the court of appeals or the Supreme Court, as contemplated by § 2101(f).” United States v. Lentz, 352 F. Supp. 2d 718, 726 (E.D. Va. 2005) (internal quotation marks omitted). The Court agrees with our sister courts that the language of § 2101(f) excludes the district courts from issuing a stay of a mandate by the Court of Appeals pending an application to the Supreme Court for certiorari. If Defendant desires a further stay of execution in this matter, it is the Sixth Circuit or the Supreme Court which must issue the order, not this court.
The Court is also unpersuaded by Defendant’s argument that this Court has authority to stay execution of the judgment under the All Writs Act 28 U.S.C. § 1651 or under the Supreme Court’s Rules. The All Writs Act 28 U.S.C. § 1651(a) provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Unlike a stay pending appeal under 28 U. S. C. § 2101(f), 28 U.S.C. § 1651 provides federal courts the authority to grant an injunction pending appeal. Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641, 642, 184 L. Ed. 2d 448 (2012). “An injunction pending appeal barring the enforcement of an Act of Congress would be an extraordinary remedy. . . .” Wisconsin Right to Life, Inc. v. Fed. Election Comm'n, 542 U.S. 1305 (2004) (Rehnquist, J., in chambers); see Respect Maine PAC v. McKee, 131 S.Ct. 445 (2010) (Mem.) (noting that the standard for injunctive relief pending appeal is more demanding than the standard for a stay of a judgment).. Defendant has not persuaded the Court why the “extraordinary remedy” of enjoining the
6

execution of its judgment pending an application to the Supreme Court for certiorari is meritorious in this case.
Defendant has also failed to persuade the Court that the Supreme Court’s Rules afford the Court authority to stay execution of its judgment at this juncture. Supreme Court Rule 23 provides that “an application to stay the enforcement of [a] judgment” pursuant to 28 U. S. C. § 2101(f) may be reviewed by a Justice. Sup. Ct. R. 23.2. That application must, “[e]xcept for most extraordinary circumstances,” set out how relief was “requested and first sought in the appropriate court or courts below or from a judge or judges thereof. [The application must also] identify the judgment sought to be reviewed. . . .” Sup. Ct. R. 23.3. The Court finds the Supreme Court Rules do not contradict the Court’s interpretation above that 28 U.S.C. § 2101(f) does not afford this Court authority to stay execution of its judgment after the Sixth Circuit’s mandate while an application for certiorari is pending.
In sum, it would be improper under Federal Rule of Civil Procedure 62, 28 U.S.C. § 2101(f), and 28 U.S.C. § 1651 for the Court to stay or enjoin its execution of judgment in this case at this stage. Because this Court lacks authority to stay the execution of its judgment at this juncture, it GRANTS Plaintiff’s Motion to Lift Partial Stay of Judgment (ECF No. 235).
B. Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236)
Having granted Plaintiff’s Motion to Lift Partial Stay of Judgment (ECF No. 235), the Court now turns to Plaintiff’s Motion for Supplemental Award of Attorney’s Fee, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). On February 7, 2017, Defendant responded to Plaintiff’s motion, requesting “that this Court reserve briefing and ruling
7

on Plaintiffs’ Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (“Fee Application”) until the partial stay is lifted.” (ECF No. 243.)
The Court now orders the parties to fully brief the issues presented in Plaintiff’s Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). Defendant must file its reply no later than fourteen (14) days from the date of entry of this Order. Any further replies or responses will require leave of court in accordance with local and federal rules. IT IS SO ORDERED, this 28th day of February, 2017.
/s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE
8

 
 Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 1 of 15 PageID 3949

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

)

LAKENDUS COLE and LEON EDMUND, )

individually and as representatives of all

)

others similarly situated,

)

)

Plaintiffs,

)

)

)

v.

)

)

CITY OF MEMPHIS, ROBERT

)

FORBERT, SAMUEL HEARN,

)

CHRISTOPHER BING, JOHN

)

FAIRCLOTH, CARI COOPER and

)

ROBERT SKELTON, in their official

)

capacities as City of Memphis

)

police officers,

)

)

Defendants.

)

)

No. 13-cv-2117-JPM-dkv

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUPPLEMENTAL AWARD OF ATTORNEYS’ FEES, REIMBURSEMENT OF
EXPENSES, AND POST-JUDGMENT INTEREST

Before the Court is Plaintiff Lakendus Cole individually and on behalf of the class (collectively, “Plaintiffs”)’s Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest, filed January 25, 2017. (ECF No. 236.) Also before the Court is Plaintiffs’ Motion for Supplemental Award of Attorneys’ Fees Following Denial of Defendant’s Petition for Writ of Certiorari, filed June 21, 2017. (ECF No. 266.) As to these motions, Defendant City of Memphis opposes neither Plaintiffs “proffered rates and hours worked” nor Plaintiffs’ expenses and interest; Defendant only opposes Plaintiffs’ request for enhanced attorneys’ fees. (ECF Nos. 262 & 268.)

1

Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 2 of 15 PageID 3950
I. BACKGROUND On August 27, 2015, a Judgment awarding Plaintiff $35,000.00 in damages as
awarded by the jury and $411.48 in prejudgment interest was entered. (ECF No. 188 at PageID 2401.) The Court also granted Plaintiff’s motion for attorney fees in the amount of $447,998.031 for work conducted by Spence Law Firm, PLLC. (Id.)
On October 28, 2015, the Court stayed the “judgment against [Defendant City of Memphis] for monetary damages without the posting of a supersedeas bond.” (ECF No. 207 at PageID 2824.) The Court, however, did not stay “the injunctive relief in paragraphs 7(b) and 8 of the Order Granting Declaratory and Injunctive Relief, filed on June 3, 2015 (ECF No. 161), on the basis that each of the four (4) factors required to be considered by a trial court in determining whether to grant a stay weigh against the issuance of a stay of the injunctive relief.” (Id.) Defendant appealed to the Sixth Circuit. (ECF No. 174.) The Court of Appeals affirmed the Court’s judgment on October 17, 2016 (ECF No. 232), and a mandate issued on January 12, 2017 (ECF No. 234).
On January 25, 2017, Plaintiff filed two motions: (1) a Motion to Lift Partial Stay of Judgment (ECF No. 235) and (2) a Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). On February 3, 2017, Defendant responded in opposition to lifting the partial stay. (ECF No. 242.) On February 7, 2017, Defendant filed a response in opposition to Plaintiff’s Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236), and requested to reserve its briefing on these issues until the partial stay is lifted. (ECF No. 243.) Plaintiff filed a reply to Defendant’s response on the issue of
1 This award included an enhancement of $58,434,53. (ECF No. 188 at PageID 2401.)
2

Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 3 of 15 PageID 3951
the Court lifting the partial stay on February 8, 2017. (ECF No. 246.) Defendant filed in its sur-reply on February 14, 2017. (ECF No. 249.)
On February 28, 2017, the Court entered an Order Granting Motion to Lift Partial Stay of Judgment and Concerning Motion for Supplemental Award of Attorneys’ Fees Reimbursement of Expenses, and Post-Judgment Interest. (ECF No. 250.) The Court held that it lacked authority to stay the mandate of the Court of Appeals, and thus granted Plaintiff’s motion to lift the partial stay. (Id. at PageID 3456.) The Court also ordered Defendant to file its response to Plaintiff’s Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). (Id. at PageID 3457.) On March 10, 2017, Defendant filed a Notice of Appeal of the Court’s Order. (ECF No. 251.)
On March 13, 2017, Defendant filed a Limited Response and Incorporated Memorandum to Plaintiff’s Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest. (ECF No. 252.) Defendant argued that its Notice of Appeal of the Court’s February 28, 2017 Order divested the Court’s jurisdiction to the Sixth Circuit, effectively staying Plaintiffs’ motion. (Id. at PageID 3460.) With leave of Court, Plaintiffs filed a reply. (ECF Nos. 253, 255, 256.) Defendants, with leave of Court, filed a sur-reply. (ECF Nos. 257-59.) On April 3, 2017, the Court entered an Order Granting Plaintiffs’ Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest. (ECF No. 260.) The Court again ordered that Defendant file a substantive response to Plaintiffs’ motion. (Id. at PageID 3509.) Defendant filed its response on April 17, 2017. (ECF No. 262.) Defendant argues that it does not oppose the Plaintiffs “proffered rates and hours worked” nor Plaintiffs’ expenses and
3

Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 4 of 15 PageID 3952
interest; Defendant only opposes Plaintiffs’ request for enhanced attorneys’ fees. (Id. at PageID 3517.)
On June 7, 2017, the Supreme Court denied Defendant’s petition for writ of certiorari. (ECF No. 264.) On June 13, 2017, the Sixth Court granted Defendant’s motion to dismiss its appeal of the Court’s February 2017 Order. (ECF No. 265.)
On June 21, 2017, Plaintiffs filed a Motion for Supplemental Award of Attorneys’ Fees Following Denial of Defendant’s Petition for Writ of Certiorari. (ECF No. 266.) Plaintiffs filed a Bill of Costs the same day. (ECF No. 267.) Defendant filed a response to Plaintiffs’ request for attorneys’ fees, only opposing the enhancement of fees. (ECF No. 268.) With leave of Court, Plaintiffs filed a reply on July 13, 2017. (ECF Nos. 269-71.)
On July 31, 2017, the Clerk of the Court entered an Order Taxing Costs, in which the Clerk of the Court stated that the parties had come to an agreement on expenses. (ECF No. 273.) II. LEGAL STANDARD
Pursuant to 42 U.S.C. § 1988(b), “In any action or proceeding to enforce a provision of [section 1983] of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .”
Courts generally use a “lodestar” method to determine a reasonable attorneys’ fees award. Old Reliable Wholesale, Inc. v. Cornell Corp., No. 5:06 CV 2389, 2010 WL 446199, at*5 (N.D. Ohio February 2, 2010). The lodestar method requires the court to calculate fees by multiplying the “hours reasonably expended” by “a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Before the court determines the lodestar amount, the party seeking fees bears the initial burden of establishing the hours expended by providing
4

Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 5 of 15 PageID 3953
detailed time records that document the tasks completed and the amount of time spent. See Granzenier v. Middleton, 173 F.3d 568, 577 (6th Cir. 1999); Anderson v. Wilson, 357 F. Supp. 2d 991, 999 (E.D. Ky. 2005) (holding that the plaintiffs provided sufficiently detailed billing records were counsel disclosed “itemized statements describing the subject matter, the attorney, the time allotment, and the charge for all work done on Plaintiffs’ case”).
Once a court determines the hours and rates, it can calculate the lodestar amount, and then it may make adjustments on the final award based on twelve factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; (12) and awards in similar cases. Paschal v. Flagstar Bank, FSB, 297 F.3d 431, 435 (6th Cir. 2002) (quoting Blanchard v. Bergeron, 489 U.S. 87, 91 n.5 (1989)). The Supreme Court has stated that the district court should exclude hours that were “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 424. Wayne v. Vill. of Sebring, 36 F.3d 517, 532 (6th Cir. 1994). The Court is required to adjust attorney fee rates to the local market rates for attorneys. Hadix v. Johnson, 65 F. 3d 532, 536 (6th Cir.1995). Ultimately, however, the calculation of attorneys’ fees is left to the discretion of the district court, and, in reaching its conclusion, the court need not articulate its findings as to each factor. Nature Conservancy, Inc. v. Sims, 680 F.3d 672, 678 (6th Cir. 2012) ( “This Circuit does not require that the district court apply the Paschal factors; rather, the touchstone for reasonableness is simply determining whether a fee ‘is one that is adequate to attract competent counsel, but not produce windfalls to attorneys.’” (citations omitted) (quoting
5

Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 6 of 15 PageID 3954
Paschal, 297 F.3d at 434); see Healthcall of Detroit, Inc. v. State Farm Mut. Auto. Ins. Co., 632 F.Supp.2d 676, 680 (E.D. Mich. 2009); Naji v. Lincoln, 2014 WL 6669278 (E.D. Mich. 2014) (The Court “has broad discretion to determine what constitutes a reasonable hourly rate for an attorney.”).
“[M]ultipliers, or fee enhancements to the Lodestar calculation, are permissible in some cases of “‘exceptional success.’” Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir. 2005) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (“[E]nhancements may be awarded in ‘rare’ and ‘exceptional’ circumstances.”). The party seeking to enhance attorney fees “bears the burden of showing that such an adjustment is necessary to the determination of a reasonable fee.” Gonter v. Hunt Valve Co., 510 F.3d 610, 621 (6th Cir. 2007) (internal quotations and citations omitted). In fact, “a fee applicant seeking an enhancement must produce ‘specific evidence’ that supports the award.” Perdue, 559 U.S. at 553. The Sixth Circuit Court of Appeals considers the same twelve factors (supra pg. 5) as it does in adjusting a lodestar award to determine the appropriateness of a fee enhancement in cases of exceptional success. Barnes v. City of Cincinnati, 401 F.3d at 745-46 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)) (affirming a 75% enhancement because the district court found that counsel could not be obtained without applying this multiplier); see also Guam Soc'y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 697 (9th Cir. 1996) (noting that a 100% fee enhancement was appropriate in part because of the “likelihood that no other attorney . . . would have accepted the case”). In the majority of cases, the lodestar amount already reflects these factors within the Court’s calculation of a reasonable hourly rate and hours billed. See Gonter, 510 F.3d at 621; Blum, 465 U.S. at 898. Accordingly, “an
6

Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 7 of 15 PageID 3955
enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation. . . .” Perdue, 559 U.S. at 553. Nor should “the novelty and complexity of a case generally . . . be used as a ground for an enhancement because these factors presumably [are] fully reflected in the number of billable hours recorded by counsel.” Id. (internal quotation marks and citations omitted). “[T]he quality of an attorney’s performance generally should [also] not be used to adjust the lodestar [b]ecause considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate.” Id. (internal quotation marks and citations omitted).
Despite the “strong presumption” that the lodestar figure is reasonable, the presumption may be overcome in the rare circumstances where the lodestar figure does not adequately take into account a factor that may be considered to determine fees. Id. at 554. The Supreme Court has set out three examples of such factors: (1) “the method used in determining the hourly rate employed in the lodestar calculation does not adequately measure the attorney’s true market value;” (2) “the attorney’s performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted;” or (3) “an attorney’s performance involves exceptional delay in the payment of fees.” Id. at 554-55.
The Supreme Court’s list has not been considered exhaustive. See, e.g., Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F. App'x 496, 500 (6th Cir. 2011) (finding district court did not abuse its discretion under Perdue when it focused on the value of the benefit rendered to the class, whether the services were undertaken on a contingent basis, and the complexity of the litigation when calculating the lodestar).
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III. ANALYSIS
Plaintiffs request supplemental attorneys’ fees, reimbursement of expenses, and post-
judgment interest accrued on appeal to the Sixth Circuit and on petition to the Supreme Court.
(ECF Nos. 236 & 266.) The Court addresses each request in turn.
1. Attorneys’ Fees
Plaintiffs request reasonable attorneys’ fees and “that this Court award a 15%
enhancement (1.15 multiplier) to any award of attorneys’ fees based on the Court’s prior
finding that this action conferred a benefit to the class members and general public.” (ECF
No. 236-1 at PageID 3370; ECF No. 266-1 at PageID 3843.) The Court first addresses the
reasonableness of Plaintiffs’ fees, and then addresses whether enhancement of those fees is justified.2
a. Rates With regard to determining a reasonable attorney’s fee, the Sixth Circuit has
explained,
When making a determination of a reasonable attorney fee, a district court begins by determining “the fee applicant's ‘lodestar,’ which is the proven number of hours reasonably expended on the case by an attorney, multiplied by his court-ascertained reasonable hourly rate.” Adcock–Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). We have explained that “[a] district court has broad discretion to determine what constitutes a reasonable hourly rate for an attorney.” Wayne v. Vill. of Sebring, 36 F.3d 517, 533 (6th Cir. 1994). “A trial court, in calculating the ‘reasonable hourly rate’ component of the lodestar computation, should initially assess the ‘prevailing market rate in the relevant community.’” Adcock–Ladd, 227 F.3d at 350 (quoting Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L.Ed.2d 891 (1984)). The
2 Plaintiffs’ counsel additionally requests “reimbursement for $925.83 in travel expenses incurred for Plaintiffs’ counsel to participate in oral argument in the Sixth Circuit.” (ECF No. 236-1 at PageID 3371.) Plaintiffs, however, failed to attach evidentiary support for these expenses to their motion. Nevertheless, it appears the expenses have been reimbursed through an agreement between the parties. (See ECF No. 273.) For these reasons, the Court DENIES as moot the request for reimbursement of these expenses.
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prevailing market rate is “that rate which lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Id. A district court is permitted to “rely on a party's submissions, awards in analogous cases, state bar association guidelines, and its own knowledge and experience in handling similar fee requests.” Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed. App’x. 496, 499 (6th Cir. 2011); see Dowling v. Litton Loan Servicing LP, 320 Fed. App’x. 442, 447 (6th Cir. 2009) (affirming a district court's calculation of a reasonable hourly rate based on the court's “knowledge of local billing practices” and counsel's customary billing rates). Waldo v. Consumers Energy Co., 726 F.3d 802, 821-22 (6th Cir. 2013).
Plaintiff submits records reflecting rates for Robert L. J. Spence, Jr. at $350.00 per hour; rates for Bryan M. Meredith at $250.00 an hour; and rates for E. Lee Whitwell at $170.00 an hour. (See ECF No. 236-2.) Defendant “does not state a position on” these rates. (ECF No. 262 at PageID 3517.) The Court previously found these rates reasonable. (See ECF No. 188.) For the same five reasons espoused it is previous Order, the Court finds these rates reasonable. First, the Court notes that Mr. Spence (29 years) and Mr. Meredith (7 years), have significant legal experience and expertise in constitutional law. (See ECF No. 162-1 at 11; ECF No. 162-2 ¶¶ 6, 8; ECF No. 162-4 ¶ 6; 236-3 ¶ 6; 236-4 ¶ 6.) Second, the instant case was of at least moderate complexity. The case included class certification, two motions for summary judgment, multiple motions in limine, a six-day jury trial, multiple post-verdict motions, declaratory and injunctive relief, appeal to the Sixth Circuit Court of Appeals, and petition for writ of certiorari to the Supreme Court of the United States in a complex area of the law—constitutional due process, the Fourth Amendment, and municipal liability based on an unconstitutional custom.
Third, the Court finds persuasive Plaintiffs’ citation to cases of similar complexity where the district court awarded the same or higher attorneys’ fees pursuant to § 1988. The
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complexity of the instant case, because of the class certification issue, may actually exceed the complexity of those cases.
Fourth, the affidavits submitted by Plaintiffs are also persuasive. James E. King, a Tennessee attorney who has litigated against the Spence Firm and is familiar with § 1983 cases, stated that it is his opinion “the hourly rate of each attorney, as well as the number of hours performed by those attorneys, was reasonable.” (ECF No. 236-5 ¶¶ 2, 4, 5, 7.)
Finally, the Court’s “knowledge of local billing practices” confirms that the requested rates are reasonable. The Court, therefore, GRANTS Plaintiffs’ attorneys’ fees at the aforementioned rates and for the reported time period.
b. Enhancement
Plaintiffs “request that this Court award a 15% enhancement (1.15 multiplier) to any award of attorneys’ fees based on the Court’s prior finding that this action conferred a benefit to the class members and general public.” (ECF No. 236-1 at PageID 3370; ECF No. 266-1 at PageID 3843.)
Plaintiffs further contend that
an enhancement [i]s supported by Barnes v. City of Cincinnati, No. 1:00 CV 780, 2006 WL 418651, at *4 (S.D. Ohio Feb. 21, 2006) . . . [because] ‘it makes little sense to offer civil rights attorneys enhanced incentives for favorably resolving novel or complex issues at the trial court level, only to reduce or eliminate the enhancements once attorneys are called on to defend (and thus preserve) those favorable outcomes on appeal.’” Id. (ECF No. 271 at PageID 3945.)
The reasoning by the district court in Barnes rested on Congressional policies underlying fee-shifting on appeal. The district court reasoned that “statutes like 42 U.S.C.
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§ 1988 rest on the premise that rewarding attorneys with market-rate lodestars—and, by extension, enhancing those lodestars in ‘exceptional cases’ presenting particularly novel or complex issues—is necessary to achieve a ‘socially desirable’ level of civil rights victories.” Barnes v. City of Cincinnati, No. 1:00 CV 780, 2006 WL 418651, at *4 (S.D. Ohio Feb. 21, 2006). Consequently, the district court concluded that “enhance[ment] incentives for favorably resolving novel or complex issues at” trial should also apply to their appeal. Id.
The Barnes decision resonates in the instant case, because the Court previously granted a 1.15 multiplier enhancement on Plaintiffs’ attorneys’ fees at trial. In its previous Order, the Court found “the benefit rendered to the class is an appropriate factor to consider” when determining whether enhancement is justified. (ECF No. 188 at PageID 2400 (citing Van Horn v. Nationwide, 436 F. App’x 496 (6th Cir. 2011).) The Court further concluded that its “finding that the Beale Street Sweep was conducted in violation of the due process clause of the Fourteenth Amendment” in addition to “the injunctive relief prohibiting the Beale Street Sweep and requiring additional training of police officers to be more aware of an individual’s constitutional rights” constituted a significant benefit to class members and the general public. (Id. at PageIDs 2400-01.) Accordingly, “[f]or these reasons, the Court [found] it appropriate to award Plaintiffs’ counsel a 15% enhancement (1.15 multiplier).” (Id. at PageID 2401.)
In the instant case, the reasoning to enhance damages at trial remains applicable as to an appeal. The benefits conferred on to the class members and general public remained effective only as a result of Plaintiffs’ counsel’s efforts on appeal. Accordingly, for these reasons, the Court finds it appropriate to award Plaintiffs’ counsel a 15% enhancement (1.15
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multiplier) of fees accrued on appeal to the Sixth Circuit Court of Appeals and on petition for a writ of certiorari to the Supreme Court of the United States.
According to the Court’s calculations, Plaintiffs’ post-trial attorneys’ fees award is $176,150.00 ($119,415.00 + $56,735.00), and Plaintiffs’ post-trial enhanced attorneys’ fees award is $26,422.50 ($176,150.00 x 0.15).
2. Post-Judgment Interest
“Plaintiffs also seek post-judgment interest on the judgment entered in this case running from the date of judgment and computed pursuant to 28 U.S.C. § 1961,” including post-judgment interest on attorneys’ fees. (ECF No. 236-1 at PageID 3379.)
Pursuant to 28 U.S.C. § 1961, the Court calculates post-judgment interest on “any money judgment” in the case. The Sixth Circuit Court of Appeals has held that “money judgments” include damages, pre-judgment interest, attorneys’ fees, and costs, but has yet to determine if such judgments include enhanced damages or fees. See, e.g., Caffey v. Unum Life Ins. Co., 302 F.3d 576 (6th Cir. 2002) (affirming post-judgment interest on entire amount of judgment in ERISA case, including award of pre-judgment interest); Associated Gen. Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482, 494-95 (6th Cir. 2001). There being no binding appellate authority, and in light of the broad language of § 1961, it appears that the statute is applicable to both enhanced damages and fees. Accordingly, the Court will calculate the post-judgment interest for the attorneys’ fees, pre-judgment interest, and damages.
In its August 27, 2015 Order, the Court granted post-judgment interest on the damages award. (ECF No. 188 at PageID 2391.) In determining when post-judgment interest accrues
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on an attorney fee award, the Sixth Circuit requires “the interest to run on a[] fee award from
the time of entry of the judgment which unconditionally entitles the prevailing party to
reasonable attorney fees.” Drabik, 250 F.3d at 495. Therefore, this Court calculates the post-
judgment interest on attorneys’ fees addressed in its August 27, 2015 Order from that date
(ECF No. 188), “which unconditionally entitles [Plaintiffs] to reasonable attorney fees”
associated with trial. Drabik, 250 F.3d at 495. See Harper v. BP Expl. & Oil, Inc., 3 F. App'x
204, 210 (6th Cir. 2001) (finding no abuse of discretion where district court declined to award
post-judgment interest prior to the date on which it entered its order awarding attorneys' fees).
The Court, however, calculates post-judgment interest on attorneys’ fee accruing after its
August 27, 2015 Order, associated with Defendant’s appeal and writ of certiorari, from the
date of this Order, “which unconditionally entitles [Plaintiffs] to reasonable attorney fees”
associated with post-trial proceedings. Drabik, 250 F.3d at 495.
The total post-judgment interest will be the summation of the interest on the attorneys’
fees and the interest on the previous money judgments. According to the Court’s calculation, the post-judgment interests on the money judgments are as follows: 3
• Post-Judgment Interest Award on Damages and Pre-Judgment Interest: ((($35,000.00 + $411.48) x 1.22) ÷ 365) x 708 = $838.00
3 The Court determined the post-judgment interest of the money judgments in this case by first multiplying the accumulative money judgment amount of damages and pre-judgment interest times the Federal Reserves Interest Rate for 1-year Treasury Constant Maturities, as of August 1, 2017 (1.22%). This Annual Interest Amount was then divided by 365 days to determine the Daily Interest Amount. Finally, the Daily Interest Amount was multiplied by the Accumulated Days since the Judgment and Equitable Relief, entered August 27, 2015 (ECF No. 189). This date, and not the date of the Court lifting the Partial Stay (ECF No. 235), is used because granting a stay without a supersedeas bond does not postpone or stay one’s entitlement to postjudgment interest. See Cayuga Indian Nation of New York v. Pataki, 188 F. Supp. 2d 223, 253 (N.D. N.Y. 2002). The same calculation was done with Attorneys’ Fees relating to trial, using the Attorneys’ Fees award and the Accumulated Days since the Court’s August 27, 2015 Order granting attorneys’ fees (ECF No. 188). The Court then added the accumulative money judgment post-judgment interest to the Attorneys’ Fees Award post-judgment interest to determine the total post-judgment interest. The Court conducted the same calculation for Attorneys’ Fees relating to appeal to the Sixth Circuit and petition to the Supreme Court from the date of this Order, which granted fees relating to these post-trial proceedings.
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• Post-Judgment Interest Award on Trial-Related Attorneys’ Fees: ((($389,563.50 x 1.15) x 1.22%) ÷ 365) x 708 = $10,601.72
• Post-Judgment Interest Award on Post-Trial Attorneys’ Fees: ((($176,150.00 + $26,422.50) x 1.22%) ÷ 365) x 04 = 0
The Court, therefore, finds the total post-judgment interest is $11,439.72.
IV. CONCLUSION
For the reasons stated above, the Court finds GRANTS in part and DENIES in part Plaintiffs’ Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest. The Court specifically DENIES as moot Plaintiffs’ request for reimbursement of expenses; GRANTS Plaintiffs’ request for supplemental award of attorneys’ fees; GRANTS Plaintiffs’ request to enhance those supplemental attorneys’ fees; and GRANT Plaintiffs’ request for a calculation of post-judgment interest. The calculations and totals of the relief sought are as follows:
• Post-trial Attorneys’ Fees Award: $119,415.00 + $56,735.00 = $176,150.00 • Post-trial Enhanced Attorneys’ Fees Award: $176,150.00 x 0.15 =
$26,422.50 • Post-Judgment Interest Award on Damages and Pre-Judgment Interest:
((($35,000.00 + $411.48) x 1.22%) ÷ 365) x 708 = $838.00 • Post-Judgment Interest Award on Trial-Related Attorneys’ Fees:
((($389,563.50 x 1.15) x 1.22%) ÷ 365) x 708 = $10,601.72 • Post-Judgment Interest Award on Post-Trial Attorneys’ Fees:
((($176,150.00 + $26,422.50) x 1.22%) ÷ 365) x 0 = 0
4 The number of days since the Court granted Plaintiffs Attorneys’ Fees relating to appeal to the Sixth Circuit and petition to the Supreme Court is zero (0), because Plaintiffs’ were not awarded these fees until this Order, “which unconditionally entitles the prevailing party to reasonable attorney fees.” Drabik, 250 F.3d at 495. Accordingly, Plaintiffs are entitled to zero (0) days of post-judgment interest on their Attorneys’ Fees relating to appeal to the Sixth Circuit and petition to the Supreme Court.
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Case 2:13-cv-02117-JPM-dkv Document 274 Filed 08/04/17 Page 15 of 15 PageID 3963 IT IS SO ORDERED, this 4th day of August, 2017. /s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE
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