# FILED
March 18, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON WILLIAM F. CUZICK, ) ) Plaintiff/Appellant, ) Tipton Circuit No. 4837 ) VS. ) Appeal No . 02A01-9809-CV- 00244 ) SGT. CAVA

T BASS, COVIN GTON ) POLICE DEPARTMENT, et al, ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF TIP TON COUNTY AT COVINGTON, TENNESSEE THE HONORABLE JOE H. WALKER, JUDGE

WILLIAM F. C UZICK, pro se Poplarville, Miss issippi

EDWARD J. McK

ENNEY, JR HANOVER, WALSH, JALENAK & BLAIR, PLLC Memphis, Tennessee Attorney for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. William F. Cu zic k (“Cuzick” or Appellant”) appeals the judgment of the trial court1 In his complaint , Cuzick states that the poli ce were not i n hot pursuit of Cu zick,the car was parked

several hundr

ed feet away,the car was not going anywher

e, Cuzick had al ready been search ed, Sgt. Bass had obta ined C uzick ’s ke ys to car, and “therefor e Bass should have fo llowed pr oper procedure and obtained a search warrant before entering the car. Defenda nt’s act ion violates the Fifth and F ourteen th Am endm ents of the U nited State s Co nstit ution and the C ons titution of the State of T enn ess ee.” B ase d upo n Cu zick’s statem ents in the complai nt that the car was i mproperly searche d and seized, we will assume that Cuzick intended t

o allege that hi s Fourth Amendment rights wer e violat ed, rather

than his Fifth Amendment rights. There are no a llegations m ade in the com plaint which suppo rt a Fifth Am endm ent claim

. 2 grant ing the Motion to Dismiss of Sgt. Cavat Bass (“Sgt. Bass” or “Appellee”) an d Covington Police Department (“Covington PD” or “Appellee”).

I. Factual and Procedur al History

On October 6, 1997, in Covi ngton, Tennessee, Cuzick was stopped by a citi zen and held by that citizen at gun point until p olice arrived at the s cene. Cuzick was a rrested by Sgt. Bass of the Covington Police Department, and charged with burglary

and possession of bu rglary tools. At the scene, Sgt. Bass asked C uzick how he came into town. Cuzic k informed Sgt. Bass that he had driven his car. Sg t. Bass then asked for the car k eys and inquired where the car was parked. Cuzick responded that the keys w ere in his pocket

and his car was legally

parked on Washington Street, approximately tw o blocks from the scene.

Cuzick’s automobile was then searched and a number of old coins were r emoved from the car an d invento ried. Sgt. Bass orde red the ca r towed to a private lo t by H & H Towing and Automot ive. Sgt. Bass and the Covington PD allege that they had probable
cause to search Cuzick and hi s vehicle and also all ege that Cuzick consented to th e search. C uzick conten ds that he gave no such cons ent and inasmuch as his car w as legally parked two blocks aw

ay from the scene, the officers should have obtained a search warrant before executin g a search and seizur e of the car.
This action was commenced by Cuzick, pro se, in an attempt to obtain the return of his vehicle a nd certain items of property which Cuzick claimed to be in the car before the search and seizure of the vehicle, to wit:one (1) Citizen wristwatch, and one (1) one-carat diamond ring. Cuzick titled his complaint “Writ of Replevin” and sought the retu rn of such property
. In his complaint, Cuzi ck also alleged that Appel lees violated his Fifth 1 an d3

Fou rteen th Amendment righ ts by searching and seizing his car without f irst obtaining a search warra nt. Cuz ick’s c omplaint praye

d for the release of the vehicle at no cost to Cuzick, sanctions against Sgt. Bass and Covington PD for violating Cuzi ck’s constitutional rights, and the return of al l personal property s eized in the search of the v ehicle.

While Cuzick’s car w

as in the possession of H&H Towing and Automotive, a

finance company

having a lien on the auto mobile repossessed the automobile and removed it from H&H Towing’s premises. C uzick was releas ed from the Tipton County jail on July 11, 1998. At that time, all inventoried items belonging to Cuzi ck which were i n the possession of the City of Covington were r

eturned to Cuzick, to w it, the ol d coins and several tools. The Citizen wristwatch and the one-caratdiamond ring which C uzick claimed to be in the vehicle prior

to the search and seizur e, were not inventori ed by the Covington P D and were not returned to Cuzick with the other items.
On April 14, 1998, Cuzick filed a Motion for Judgment. Cuzick further filed Motion to Amend Complaint and Joinder of Defendants on May 28, 1998, in which he sought to join H&H Towing and Automotiv e, and sought damages in the amount of $150,000.00 actual damages and $10 0,000.00 punitive damages. On July 2, 1998, Appellees fil ed Motion to Dismiss or, In The Alter native, For Summary Ju d gment. App ellees attached a Memorandum in Support of This Motion, along with the transcript of portions of Cuzick’s deposition testimony, an Affidavit from Sg t. Bass, and a copy of

the invento ry sheet of Cuzick’s se ized prope rty.

On July 14, 1998, the court entered an order granting Appellee’s motion to dismiss, and adopting the legal analy sis set forth in the memorandum in s upport of the motion to dismiss. On August 7, 1998 Cuzick filed a notice of appeal and requested a finding of fact. The trial court made the follow ing pertinent findings of fact: Plainti ff now complains about the il legal search of his veh icle, towing his vehicle, and co nf iscation of personal property, which were intentional acts by defendants. The court finds that

the Covington Police

Department

is not a municip ality, nor is it an entity s epa ratel y incorporated by the4 City of Covington. It

is a municipal department, and not subject to suit. The claim against Sergeant Bass is a complaint against him in his officia l capacit y, w hich is considered to be a suit against the City of Covin gton. Th e acts of towing his v ehicle and subject ing his property to seizure during the time he is incarcerated are barred by T.C.A. 29-20-205. Further, plaintiff is not enti t led to damages for the return of seized property. . . . Plai ntiff’s claim for the return of his car and the items stored therein should be properly addressed to the finance company that reposses sed plaintiff’s car, and is given a notice of foreclosure proceeding due to failure to make payments. Further, it has been undi sputed that t hose items inventoried that bel onged to Plaint iffwill be retur

ned to Pl aintiff upon his release from jail.

II. Standard of Rev

iew

Both parties in this matt er have addressed the court’s ruling under the standar d of review for summary judgment. Upon a careful rev iew of the trial court’s order and findings of fact, we find that matters outsi de the pleadings were presented to and not excluded by the trial court. The memorandum of law in support of Ap pellee’s Motion to Dismiss or, In the Alternative, For Summary Judgment, which was a dopted by the court in dismis sing Cuzick’s complaint, containedmany arguments based upon matters outside the pleadings. F urthermore, in its findings of fact, the trial court noted tha t the acts allege dly taken b y Appellees were intentional acts, a fact which is s upported o nly in Cuzick’ s deposition testimo ny. Therefore, this case was treated as one for summary judgment and we shall use the standard of review applicable to summary judgments.

Su mmary judgment is to be rendered by a trial court only when it is shown tha t “there is no genuine issue as to any material fact and that the mov ing party is entitl ed to
a judgment as a matter of law,” Tenn. R. Civ. P. 56.03 (1984). In ruli ng on a motion for summary judgment, the trial court and the Court of Appeals must consider the matter in the
same manner as a motion for a directed ver dict made at theclose o f the plai ntiff’s p roof, i.e., all the evidence must be viewed in the light most favorable to the opponent. It is only when there is n o dispute d issue of material fact tha t a summa ry judgment sho uld be granted by the trial court and sustained by the Court of Appeal s. Graves v. Anch or Wi re5

Corp. of Tennessee , 692 S.W.2d 420 (Tenn. App. 1985); Bennett v. Mid-South Terminals Corp. , 660 S.W.2d 799 (Te nn. App. 1983).

When the party seeking summary ju dgmen t makes a properly suppor ted motion, the burden then shifts to the nonmoving party to set forth specific facts, not legal conclusions, byusing affidavits or the discovery materials list e d in Rule 56.03, establishing that there
are indeed disputed, material facts creating a genuine issue that needs to beresolved by the trier of fact and that a trial is therefore necessary. Byrd v. Hall , 847 S.W.2d 208, 215 (Tenn. 1993).

In appeals from grants o f summary judgment, the Court of Appeals must decide whether the court below cor rectly applied Rule 56.03 and in so doing, the Court must make
an entirely fresh determ inat ion because only questi ons of law are presented; no presum pt ion of correctness accompanies the t rial court’s decisi on. Hill v. Chattanooga , 533 S.W.2d 311(Tenn. App. 1975).
III. Replevin Action
Cuzick filed a replev

in action torecover his vehicle and property which he alleged to be missing

from his veh icle. In hi s complaint Cuzick cl aime d that his rights under the United States Constitution and the Tennessee Constitution w ere violated.

While Cuzick’s vehicle was impound ed, the ve hicle was re possesse d by a finance company

which held a lien on the vehicle. Any claim forthe return of the vehicle s hould be properly addressed to the finance company that repossesse d it. As to the personal property Cuzick seeks to recover from the officers, Cuzick has not presented any signific ant probative evidence in support of his complaint to defeat a motion for summary

judgment. C uzick cla ims that a Citizen watch and a diamond ring were in the vehicle prior to the search of the vehicle. These itemswere not inventori ed by Sgt. Bass and have not been recov ered by Cuzick.6

In his affidavit, Sgt. Bass states that the property which was seized in the process of arresting Cuzick was inventoried. In fact , Cuzick himself admitted in his depositi on testimony

that he has no personal knowledge that Sgt. Bass or anyone with the Coving

ton Police Department took his personal property. Cuzick admitted in his deposition testimony tha t the wrec king yard also had ac cess to his car after it w as towed. Furthermore, as Cuzick has notrecovered the vehicle from the finance company, he is w ithoutknowledge that the claimed property w as ever removed from the v ehicle at all. It i s possible, albeit unlikely, that the miss ing property items r emain with the vehicl e.

Sum ma ry

judgment was proper as to Cuzick’s replevin action for the return of his vehicle and personal property items.

IV. State Law Claims

Cuzick’s complaint alleges a v iolation of his rights un der the Tennessee Constitution, specifically, the equ al protection clause. How ever, it appears from the allegations

in Cuzick’s complaint that his claim would more appropriately fall under Article 1, Section 7 of the Tennessee Constitution.

Sec. 7, Un r easonable searches and seizur es - General warrants.- That the people shall be secu r e in their persons, houses, papers, and posse ssio ns, from unreasonable searches and seizures; andthat general warrants, whereby an offic er may be commanded to search suspected places, without evidence of

the fact committed, or to seiz e any person or person s n ot named, whose offences are not particularly described and supported by evidence, are dang erous to liberty and ought not be granted. To the extent that Cuzick seeks the return of his pro perty as recourse for a viol ation ofthis constitutional right, summary judg ment is p roper for the reasons stated in the replevin discussion above. Cuzick also seeks damages for a violation of thi s constitutional right. This court knows of no authority for the recovery of damages for a violation of Artic l e 1, Section 7 of the Tennessee Constitu ti on. Accordingly, thi s Court need not address the constitutionality

of the search and seizure of Cuzick’s vehicle and the belongings ther ein.7

To the extent

that Cuz ick’s complaint can be cons trued to allege other stat e law cla ims, they too must fail. This suit against Sgt. Bass did not name Sgt. Bass in hi s individual capacity. Therefore, the suit against Sgt. Bas

s is treated as an “offici al capaci ty” suit. A suit against a s

tate official in his official capacity is a suit agai nst the state. Cox v. Sta te 399 S.W.2 d 776, 778. Similarly, a suit brought against a police official may be actionable against the city or county for which the pol ice official acts. Timberlake v. Benton , 786 F. Supp. 676, 683 (M.D. Tenn. 1992) . See, e.g ., Monell v. Department of Social Services 436 U.S. 658, 690, 98 S.Ct. 2018, 203 6 (1978) (suit brou ght nomin ally against official of city’s department of social services is acti onable suit against city itself); Brandon
v. Holt , 469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78 (1985) ( suit brought against “ Director of Police, City of Memphis ” is suit against ci

ty itself); Leach v. Shel by County Sher iff , 891 F.2d 1241, 1242 n.1 (6th Cir. 1989), cert denied 495 U.S. 932 (199 0) (suit against county sheriff essentially suit against county itself). Therefore, the complaint against Sgt. Bass is treated as a complaint agains t the City of Coving

ton.

The City of Covington and the Covington PD ar e governmental ent ities which are entitled to immunity un der Tennessee’s Governm ental Tort Liability Act (hereinafter GTLA). The GTLA provides in pertinent part: §29-20-201 General rule of immunity from suit - Exception.

- (a). Except as may be otherwise provide

d in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activ ities of such governmental entities wherein such gov ernmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprie tary. Section 29-20-205 involves a general removal of immunity for injury caused by negligent acts or omissions of employees w ith s ome except ions. Immunity is restored for injury arising in various way

s including civi l rights claims. C laims involving allegedly intentional acts fall within the pur

view of the act and are bar red.

In his deposition testimony, Cuzick stated that the actio ns taken by Sgt. Bass in searching and seizing his v ehicle and the property th erein were intentional acts. As the City of Covington and the

Covington PD are g enerally immune from suit for the intentional acts2 As explained i n our discussi on of Cuzick’ s state l aw claims, the suit agai nst Sgt. Bass i s in his “ offici al capac ity” and, as su ch, is a su it against the City of Cov ington.

3 Because the realparty i n interest in an offi cial capaci

ty sui t is t he governmental ent ity and not the named offici al, t he entit y’s “po licy

or custom” must have play ed a part i n the viol ation of federal law. Hafer v. Melo , 502 U.S. 21, 24,112 S.Ct. 358, 361 (1991) (citing Kentucky v. Graham , 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985)). 8 of their employees pursuant t o the GTLA, summary judgment was proper as to Cuzick’s state law claims.
V. Federal Civil Rig hts Claims

Cuzick seeks to recover ag ainst the City of Covington2 and the CovingtonPD under the provisions of 42 U.S.C. §1983 for the allegedly wrongful search and seizure of his vehicle and belongings. To prov e a claim under 42 U.S.C. §1983,Cuzick must establis h: 1) That he was deprived of a r ight secured by the C

onstitution or

the laws of theUnited States, and 2) that he was subjected to or caused to be subj ected to this depr ivation by a person acting under color of State law. Flagg Bros., Inc. v. Brooks , 436 U.S. 149, 158, 98 S.Ct. 1729, 1734 (1978). W hile municipalities are “persons” subject to suit under §1983, it is only under limi ted circumstance that a munici pality may be sued succ essfully under §1983.

We will first address the propriety of Cuzi ck’s §1983 claims agains t the Covington PD. Covington PD, in c ontrast to t h e city itself, is not an entity suable under the Civil RightsAct. Williams v. Baxter , 536 F. Supp. 13, 16 (E.D. Tenn. 1981). See also Damron
v. Pfannes , 785 F. Supp. 644, 646 (E.D.Mich.1992) ( a municipal police department i s not
a legal entity separate from its parent city); Timberlake v. Benton , 786 F. Supp. 676(M.D. Tenn. 1992) (drug task force w as not a “person” for purposes of §1983); Pie rre v . Sch lemmer , 932 F. Supp. 278 (M.D. Florida 1996) (police department not legal e ntit y subject to suit un der §198 3). Ther efore su mmary jud gment wa s p roper as to all §1983 claims against Covington PD.
With respect to Cuzick’s §1983 claims against the City of Covington, Cuzick must show that the execution of the ci ty’s policy o r custom i nflicte d the inju ry. 3 Monell v. New9

York City Department of Social Services , 436 U.S. 658, 694, 98 S.Ct. 2018, 2037 ( 1978).A local government may not be sued under §1983 for an injury i nflicted solely by its employeesor agents. Inst ead it i s when e

xecuti on of a governme nt’s polic y or custo m, whether made by its lawmakers or by those whose edi cts o r acts may fairly be said to represent official policy , inflictsthe injury that the go vernment as an entity is responsible under §1983. Monell , 436 U.S. at 69 4, 98 S.C t. at 2037. This is so because th e “ . . . Congress did not intend municipalities to be held liable unless action pursuant to an official municipal policy of some nature caused the constitution al tort.” Monell , 436 U.S. at 691, 98 S.Ct. at

2036. Before acustom can be the basis for a ci vil rights v

iolation, the custom must be “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Monell , 436 U.S. at 690, 98 S.Ct. 2035.

To satisfy the Monell requirements, a plaintiff must: 1) identify the policy; 2) connect the policy to the city

itself; and 3) show that the particular injury was incurred because of the execution of that policy. Coogan v. City of Wixom , 820 F.2d 170, 176 (6th Cir. 1987). In the present case, Cuzic k did not al lege that his injury was inflicted by the policy or custom of the City of Covington. In Cuzick’s deposition testimony, Cuzick admitted that he has no knowledge of the city’s policy or customs. Cuzick ad mitted that he had no personal knowledge of the City

’s policy regard ing searching vehi cles or seizing property or towi ng vehicles. Proof of wrongful conduct by a single officer is not sufficient to establish liability under Monell , unless proof of the incident incl udes proof that it was caused byan existing pol icymaker . Otherwise the exi stence of the municipal policy and its origins must be separately proved. City of Oklahoma v. Tuttle , 471 U.S. 808, 824, 105 S.Ct. 2427 , 2437 (1985); Bills v. Aseltine , 958 F.2d 697, 708 (6th Cir. 1992).
Although not raised in his orig inal complaint, Cuzick alleges, in his respons e to Defendant’s motion to dismiss, that his inj uries were sustained d ue to inadequate training of Sgt. Bass. A municipality can be l iable under §1983 for constitutional violations resulting from its failure to

train municipal employees. City of Canton v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 1204 (1989). How ever, inadequacy of pol ice trainingmay serve a s the10

basis for §1983 l iability only where the failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact. Canton , 489 U.S. at 388, 109 S.Ct. at 1204. “Only where a municipality’s failure to train its employees in a relevant aspect evidences a ‘deliberat e indifference’ tot he rights of its inhabitant s can such a shortcoming b e prope rly thought of as a city ‘policy or custom’ that is actionable under §1983.” Id

.

The issue in a

case like this is whether the training program of the City of Cov ington is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said torepresent “city policy.” Canton 489 U.S. at 389, 109S.Ct. at 1205. As the Supreme Court stated in Canton :

In resolvi ng the issu e of a cit y’s liabilit y, the focus must be on the adequacy of the trai ning program in relation to the tasks the particular officers must perform. That a pa rticula r off icer maybe unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortc oming s may have result ed from factors other than a faulty tr aining program. [It] maybe, for examp le, t hat an otherwise sound prog ram has occasionally been negligently admi ni stere d. Neither will it suffice to prove th at an inju ry o r accident could have been avoided if an officer had better or more trai ning, sufficient to equip him to avoid the

particular

injury-causing conduct. Such a cl ai m could be made about almost any enco unter resulting in injury, yet not co ndemn the adequacy of the pr ogram to enable officers to respond properly to the usual and recurring si tuations with which they must deal. And plainly, ade q uatel y trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal b asis for holding the city li able. Canton , 489 U.S. at 391, 109 S.Ct. at 1205

.
Cuzick admitted in his deposition testimony that he is aware of no evi dence that the training program required by the City of Coving

ton for its officers is inadequate to the tasks that officers must perform or that the Ci ty was aware of

the need for additional or different training. Cuzick has

neither alleged in his complaint nor presented any evidence in response to the motion for summary judgment that the City of Covington had a custom or policy of allowing

its officers illegall

y to search vehicl es, tow vehicles or seize property

or that the City of Coving ton was indifferent to such actions. Cuzick admits he has no knowledge of any such custom or polic y or any complain t which was ign ored by the city.11

As Cuzick failed to present any evidence that a policy or custo m of the City of Covington resulted in a violati on of his constitutional rig hts, summary judgment w as proper

as to all §1983 claims against the Ci ty of Covington.

VI. Conclusion

The judgment of the trial court is hereby affirmed. Costs of thi s appeal are taxed to Cuzick, fo r which execu tion may is sue if ne cessary.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.