### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Octo be r 8, 2 00 9 S es si on

MICH AEL J . CALDERONE v . GLENN CHRI SMAN, CHI EF OF POLI CE, INDI VIDUALLY, AND IN HI S OFFICI AL CAPACITY, THE MURFREESBO RO CIT Y POLI CE DEPARTMENT, THE CIT Y OF MURFREESBO RO, TRUMAN JO NES, SHE RIFF, INDI VIDUALLY, AND IN HI S OFFICI AL CAPACITY, RUTHERFORD COUNTY SHE RIFF DEPARTMENT, AND RUTHERFORD COUNTY, TENNES SEE

Appeal f rom the Circ uit Court for Rutherford Coun ty No. 50207 Larry B. Stanley, Jr., Judge

No. M2009- 00328-COA-R 3-CV - F iled Dece m ber 29, 2009

This appea l involves § 1983 claims ag ainst a county and its sheriff on the basis of injuries alleg edly sustained by the plaintiff while in the custody of the sheriff ’s depar tment. We conclude that the trial
court err ed in deny ing the sheriff ’s motion for summary judgme nt in his individual capa city beca use the plaintiff did not produce any evidenc e to rebut the sheriff ’s testimony that he had no involvement in or knowledg e of the events in question. We further conclude that the trial court err ed in deny ing the county ’s motion for summary judgme nt beca use there was no evidenc e of any causa l connec tion betwee n a county

policy or custom and the pla intiff’s alleg ed injuries.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Reve rsed

AN D Y D. B E N N E T T , J
., delivere d the opinion of the court, in which P A T R I C I A J

. C O T T R E L L , P.J
., M.S., and F R A N K G. C L E M E N T , J R ., J ., joined.

D. Randall Mantooth, Nashville, Tenne ssee, for the appellants, Truman L

. J ones, J r. and Rutherford County , Tenne ssee.

J ames D.R. Roberts, J r., J anet L

. L ay man, and Henr

y H. Carpente r, J r., Nashville, Tenne ssee, for the appellee , Michae l J . Calderone

.OP INION

F A C T U A L A N D P R O C E D U R A L B A C K G R O U N D

Michae l Calderone was a passeng er in a car pulled over by office rs of the Murfre esboro Police Depa

rtment on the evening of J une 7, 2003. Mr. Calderone admits that he and the driver had drunk “a bunch of beer ” befor e they wer e pulled over. The driver was detained for suspected driving under the influence

. After chec king Mr. Calderone ’s backg round information, the office rs detained him on an outstanding capia s war rant and place d him in the patrol car

. On the way to the county jail, the patr o l ca r co l l i d ed with a car parke d in an are a desig nated for traff ic. Acc ording to Mr. Calderone
, he sustained serious injuries as a result of this collision. Emerg ency medical personne l

wer e ca lled and took Mr. Calder one to the hospital for tre atment.

After rec eiving trea tment at the hospital, Mr. Calderone was tra nsported to the county

jail, wher e he went throug h booking and was place d in a holding cell with other detainee s. I t is undisputed that Mr. Calderone was still intox icated. He and another detainee g ot into an alterc ation in the holding ce l l
, and sever al office rs intervene d to separ ate the two men. A strug g le ensued involving Mr. Calderone and detention office rs. The office rs moved Mr. Calderone to another cell, 1 wher e he alleg es t h at s omeone behind him violently pushed his head into a protruding corne r, resulting in injuries t o h i s head. Mr. Calderone was then returne d to the hospital for medical
trea tment. He stay ed in the county jail for 75 day s.

On May 28, 2004, Mr. Calderone filed this l awsuit ag ainst Glenn Chrisman, the Murfre esboro chief of police, individually and in his officia l capa city ; t he Murfre esboro police depar tment; the city of Murfre esboro; Truman J ones, the sheriff
, individually and in his officia l
capa city ; the Rutherford County sheriff ’s depar tment; and Rutherford County

. I n count I of his complaint, Mr. Calderone alleg ed neg lige nce on the part of the office rs driving the police patrol car and the other

defe ndants vicar iously

. I n count I I , Mr. Calderone asser ted claims under

42 U.S.C. 2 § 1983 on g rounds that he “re ceive d persona l injurie s, was kept in custody for a period of time not substantiated by the char g es ag ainst him, was denied appropr iate medical trea tment for his injuries and was assaulted and abused by both other detainee s and employ ees of the Murfre esboro Police Department and Rutherford County Sheriff Depa rtment.” All of the defe ndants filed answe rs deny ing liability in Aug ust 2004. I n Marc h 2006, the city defe ndants filed an amende d answe r g iving more specific g rounds for the ir denial of liability

.

The parties eng ag ed in discovery
, and on November 20, 200 8
, Sheriff J ones, the sheriff ’s depar tment, a nd the county filed a motion for summary judgme nt suppor ted in pa rt by an aff

idavit by Sheriff J ones. The trial court enter ed an order on J anuar y 9, 2009, in which it found that Sheriff J ones in his o fficial capa city and the sheriff ’s depar tment wer e “super fluous defe ndants” and

O n e o f t h e o f

f i c e r s f i l e d a s s a u l t c h a r g e s a g a i n s t M r

. C a l d e r o n e

. 1

C o u n t I d o e s n o t m a k e a l l e g a t i o n s w i t h r e s p e c t t o t h e s h e r i f f o r t h e c o u n t y a n d i s n o t i n v o l v e d i n t h i s a p p e a l

. 2

-2-dismi s s ed t he claims ag ainst them. The court conclude d that summary judgme nt would be

“pre mature and improper” as t o Sheriff J ones individually and the county beca

use t here rema ined
g enuine issues of materia l fac ts in dispute. There fore
, the court overr uled the motion for summary judgme nt with respec t to the county and the she riff in his individual capa city

.

Sheriff J ones filed a notice of appea l as of rig ht under the collater al rule doctrine. See Fann

v. Brailey
, 841 S.W .2d 833, 835 (Tenn. Ct. App. 19 92). Rutherford County soug ht and rec eived permission from the trial court to seek an interlocutory appea l. This court g rante d t h e co unty ’s application for an interlocutory appea l and order ed that the sheriff ’s and cou n t y ’s ap peals be consolidated. On appea l, She ri ff J o n es an d Rutherford County arg ue that the trial court err ed in deny ing their motion for summary judgme nt. They further reque st that this court direc t the entry of final judgme nt pursuant to Tenn. R. Civ. P. 54.02 with respe ct to the plaintiff’s claims ag ainst them.

S T A N D A R D O F R E V I E W

I n revie wing a summary judgme nt, this cour t m u s t make a fre sh deter mination that the require ments of Tenn. R

. C i v

. P

. 5 6 have been satisified. Hunter v. Brown
, 955 S.W .2d 49, 50 (Tenn. 1997). The party s ee k i n g s u mmary judgme nt bear s the burden of demonstrating that no g enuine disputes of materia l fac t exis t and that the party is entitled to judgme nt as a matter of law. Godfrey v. Ruiz
, 90 S.W .3d 692, 695 (Tenn. 2002). We must take the strong est leg itimate vie w of the evidenc e in favor of the nonmoving party , allow all rea sonable infere nces in favor of that party , and discard all counter

vailing evidenc e. Id. ; Byrd v. Hall
, 847 S.W .2d 208, 210-11 (Tenn. 1993). I f t here is a dis pute as to any materia l fac t or i f t here is any doubt as t o the ex istence of a material fac t, s u mmary judgme nt cannot be g rante d. Byrd
, 847 S.W .2d at 211; EVCO Corp. v. Ross
, 528 S.W .2d 20, 25 (Tenn. 1975). To shift the burden of produc tion to the nonmoving party who bear s the burden of proof at trial, a moving party must neg ate an element of the opposing party ’s claim or “show that the monmoving party cannot pr ove an e ssential element of the claim at trial.” Hannan v. Alltel Publ’g Co. , 270 S.W .3d 1, 9 (Tenn. 2008)

.

AN A L Y S I S

We will ex amine the liability of t he sheriff and the county separ ately as t he cla ims ag ainst them prese nt somewhat diffe rent issues.

Sheriff Jones

Mr. Calderone ’s complai n t does not alleg e and there is no evidenc e of any direc t involvement by Sheriff J ones in the alleg ed acts o f m i s co nduct by the sheriff ’s depar tment. His § 1983 action
ag ainst Sheriff Jones is based on supervisory liability

.

Caselaw ha s established that the liability of super visory personne l unde r 42 U.S.C. § 1983 cannot be based solely u p o n re spondeat superior or the right to control one’s employ ees. Hays v. Jefferson County
, 668 F.2d 869, 872 (6 Cir. 1982) (citing Monell v. Dept. of Soc. Servs.
, 436 U.S. t h

-3-658, 694 n.58 (1978), and Rizzo v. Goode
, 423 U.S. 362, 370-71 (1976))

. Rather, a plaintiff “must

alleg e and demonstrate that the officia l at least implicitl y authorized, approve d or knowing ly acquie sced in the unconstitutional conduct of the employ ee.” Luckett v. Turner
, 18 F. Supp. 2d 835, 838 (W.D. Tenn. 1998) (citing Hays
, 6 6 8 F. 2 d at 8 74). I n this case , Sheriff J ones submitt ed an aff idavit expressly deny ing any knowledge o f t h e events in question as well as any training that might have led to the alleg ed improprieties. The aff idavit states, in part, as f

ollows:

I have never acquie sced in, condoned, or encour ag ed any employ ee of the Rutherford County Adult Detention Center to keep Mr. Calderone in custody for a period of time
not substantiated by the char g es ag ains t h i m , to deny him appropr iate medical
trea tment for his injuries, to allow o t h er d et ainee s to assault or abuse him, or to assault or abuse him while he was detained at the Rutherford County Adult Detention Center on or

around June 7, 2003;

I n his deposition testimony
, Mr. Calderone acknow ledg ed that he had no knowl edge of any involvement in or knowledg e by Sheriff Jones with respec t to the releva nt events:

Q. Any way , do y ou have any knowledg e that would sug g est that Sheriff J ones was persona lly awa re of any thing i n co n nection with how t he guar ds trea ted
y ou that night?

A. At the time, no, I

don’t think he had a

ny thing to do with it.

. . .
Q. As far as y o u claim that the medical staff did not provide y ou with
appropr iate medical trea tment, are y o u aw ar e of any thing to indicate that [S heriff J ones] was awa

re of that at the time it was g oing on?

A. No.

Q. Okay

.

A. Or he might not have been told. He wasn’t a war e of it.

. . .
Q. Are y ou awa

re, though, whether the sheriff indeed had any knowledg e of
y ou being kept in the jail longe r than y ou claim y ou should have be en kept ther e?

A. That ther e, I

don’t know.

On appea l, M r. C alderone arg ues that there is evidenc e in conflict with Sheriff J ones’s aff idavit beca

use J oanne Patricia L eCroy
, an office r with the Rutherford County S h er i ff ’s Depa rtment, testified in her deposition that she took out a war rant ag ainst Mr. Calderone that night

-4-for injuries he alleg edly inflicted upon her

. Acc ording to Mr. C alder one’s r easoning , this warra nt “plac ed or should have place d Sheriff J ones on notice of the fac ts surrounding the incident,” there by requiring him to investi g ate the pr opriety of his office rs’ a ctions. Even if Sheriff Jones learne d of the incident involving Mr. Calderone and his office rs shortly afte r the events occur red, we know of

no basis upon which thi s knowledg e woul d subject hi m to § 1983 liability since such fac ts do not ref lect any prior knowledg e of or

acquie scenc e in the ac tions of the office rs.

The disputed fac ts relied upon by Mr. Calderone are not materia l to the § 1983 claim ag ainst Sheriff J o n es

. The sheriff neg ated an essential element of Mr. Calderone ’s claim, namely the sheriff ’s knowledg e of or acquie scenc e in the incident s i n q u es t i on, so the burden of production shifted to Mr. Calderone
, who failed to produce any counter vailing evidenc e. The undisputed fac ts provide no basis for supervisory liability
, and the trial court err ed in failing to g rant Sheriff J ones’s motion for sum m ary judgme nt. Be cause of this conclusion, we need not addre ss Sheriff J ones’s
arg ument that he wa s also entitled to summary judgme nt on the basis of qualified immunity

. County

A county can be liable under § 1983 if the plaintiff has been deprive d of a constitutional rig ht and the county is responsible for that violation. Doe v. Claiborne County
, 103 F.3d 495, 505-06 (6 t h Cir. 1996). The county ’s responsibility cannot be based up o n a t h eo ry of responde at superior. Monell
, 436 U.S. at 691. Rather, the plaintiff must prove that “a municipal policy or policy of inaction was the moving forc e behind the v i o l at ion.” Mem phis, Tenn. Area Local, Am. Postal W orkers Union v. City of Mem phis
, 361 F.3d 898, 902 (6 Cir. 2004) (citing Ci t y o f Canton v. t h Harri s , 489 U.S. 378, 379 (1989))

. Thus, a county can be subject to § 1983 liability “whe n execution of a g overnme nt’s policy or custom . . . inflicts the injury .” Monell , 436 U.S. at 694.

The complaint in this case does not specific ally alleg e a county policy or custom as a cause of Mr. Calderone ’s injuries. I n his aff idavit, Sheriff J ones tes t i fi ed t h at the county g ave its employ ees a

ppropriate training with reg ard to the pr otection and c are of deta inees:

The Rutherford County Adult Detention Center trains its employ ees to use the least
amount of forc e nece ssary to maintain control of detainee s at the Rutherford County Adult Detention Center, to protec t detainee s from assaults by other detainee s, to see that injured employ ees rec eive appropr iate medical trea tment in a timely manner , and
to avoid keeping detainee s in custody any longe r than require d by court order

. To my knowledg e, there was no custom, pattern, policy
, or prac tice on or around J une 7, 2003, that would have resulted in Mr. Calderone being kept in custo d y at the Rutherford County Adult Detention Center for a period of time not substantiated by the char g es ag ainst him, be ing denied appropr iate medical trea tment for his alleg ed injur ie s, being assaulted and abused by other detainee s, or being assaulted and abused by employ ees of

the Rutherfor d County

Sheriff’ s Depa

rtment.

-5-When asked in interrog atories about any applicable county custom or policy
, Mr. Calderone stated

onl y t h at h e was denied appropr iate medical car e and was held in custody for too long. I n his
response to the county ’s statement of materia l fac ts, Mr. Calderone stated that he had “no knowledg e

as to the exis tence or non-existence of any custom, pattern, policy
, or prac tice in place on or around J une 7, 2003.” H e fur

ther a sserted tha

t “the fa cts would strong ly indicate that a

custom or pattern of abuse was prese nt on that date.” On appea l, Mr. Calderone emphasizes that, despite signific ant injuries from the car acc ident, he was place d in a holding cell with other detainee s. He arg ues that he “suff ere d a second set of injuries [after the car acc ident] as a result of Rutherf ord County ’s delibera te indiffer ence to his previously injured condition, as well as the intentional and violent acts of its office rs.”

A county ’s “deliber ate indiffer ence ” to the rig hts of persons with whom its employ ees come into contact can, in cer

tain circ umstances, constitute a “custom” for purposes of § 1983 liability

. City of Canton
, 489 U.S. at 388. Under § 1983, a custom must be “so pe rmane nt and well settled

as to constitute a ‘custom or usag e’ wi t h t h e fo rc e of law.” Monell
, 436 U.S. at 691. Municipal liability attache s only when “a deliberate choice to follo w a course of action is made from among various alterna

tives” by city or county policy mak er s

. C i t

y of Canton
, 489 U.S. at 389 (quoting Pembaur v. City of Cincinnati
, 475 U.S. 469, 483-84 (1986))

. Thus, inadequa te tr ai n i n g m u st amount to a county policy

. Id. This could occur when “the need for more or differ ent training is so obvious, and the inadequa cy so likely to result in the violation of const i t u t i o n al rig hts, that the policy maker s

. . . can rea sonably be said to have been delibera tely indiffer ent to the need.” Id. at 390. I n this case , there is no evidenc e of any previous problems with assaults or inadequa te medical

car e involving county detainee s and no evidenc e of i n ad eq uate training to which county officia ls

wer e deliber ately

indiffer ent.

Although Mr . Calderone arg ues that g enuine issues of mater ial fac t remain, we find none. The county , throug h Sheriff J ones’s aff idavit, shifted the burden to Mr. Calderone to produce some evidenc e of a rele vant county policy or custom, and Mr. Calderone produce d no fac ts indicating that the county had any policy or custom that cause d the alleg ed injuries. The trial court err ed in deny ing Rutherford County ’s motion for summary judgme nt.

We decline the appellants’ reque st to direc t the trial court to enter a final judgme nt pursuant to Rule 54.02 but will leave that issue for de termination by the trial cour

t.

C O N C L U S I O N

We reve rse the trial court’s denial of sum mary judgme nt to Sheriff Jones in his individual
capa city and to Rutherford County

. Costs of appea l are assessed ag ainst Mr. Calderone
, for which execution may

issue if nec essar

y

.

___________________________________

ANDY D . BEN

NETT, JUDGE

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