CALVIN LYNDELL DIBRELL v. THE CITY OF KNOXVILLE, TENNESSEE; OFFICER JOEY WHITEHEAD, OFFICER THOMAS TURNER, OFFICER RICHARD WHITE, OFFICER JOHN PICKENS, OFFICER FRED KIMBER, OFFICER CHRISTOPHER JONES, OFFICER BRIAN BALDWIN, and OFFICER HORACE LANE, Individually and in their official capacities
No. 20-5528
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 8, 2021
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 21a0008p.06
SUTTON, BUSH, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: Terrell L. Tooten, Cordova, Tennessee, for Appellant. Ronald E. Mills, CITY OF KNOXVILLE, Knoxville, Tennessee, for Appellee City of Knoxville. E. Jerome Melson, GENTRY, TIPTON & MCLEMORE, P.C., Knoxville, Tennessee, for Appellees Whitehead, Turner, White, Pickens, Kimber, Jones, Baldwin, and Lane, in their individual capacities.
OPINION
MURPHY, Circuit Judge. The Supreme Court has repeatedly said that courts should look to the common law to establish the rules for constitutional claims under
Police officers with the City of Knoxville detained Calvin Dibrell and found drugs in his possession. The state convicted him of drug-trafficking offenses. An appellate court reversed, finding that the officers violated the Fourth Amendment by detaining Dibrell without reasonable suspicion before uncovering the drugs. Dibrell brought two Fourth Amendment claims against the officers under
I
This case comes on the heels of Tennessee‘s prosecution of Dibrell. See State v. Dibrell, 2018 WL 1474226, at *1 (Tenn. Crim. App. Mar. 26, 2018). On the afternoon of February 17, 2014, Officer Joey Whitehead with the Knoxville Police Department took his police cruiser to a car wash. Id. While there, an unknown person flagged Whitehead down and claimed that a man named Calvin Dibrell was selling drugs out of his Chrysler 300 at a nearby Walgreens. Id. Whitehead relayed this tip to three colleagues: Officers Thomas Turner, Richard White, and John Pickens. Id.
Relying on the alert, the officers searched the Chrysler. Id. at *2. They found three pill bottles inside. Id. The first contained 9 hydrocodone pills; the second, 40 oxycodone pills; and the third, 42 alprazolam pills. Id. The officers suspected that Dibrell had been illegally selling these drugs because the drugs did not match the labels on their respective bottles. Id. They searched Dibrell and found a bag with 30 more oxycodone pills and around $800. Id. They arrested him. Id. at *3. He was released on bond the next day.
Fifteen months later, in April 2015, a grand jury indicted Dibrell on twelve drug-trafficking counts under Tennessee law. Id. at *1. He moved to suppress the drugs and money uncovered by the officers, arguing that they lacked reasonable suspicion to detain him while waiting for the police dog to arrive. Id. at *9. The state trial court denied Dibrell‘s motion, reasoning that the officers had not detained Dibrell before the dog sniff. Id. at *5-6. In June 2016, a jury convicted Dibrell. Id. at *4. The trial court sentenced him to 12 years’ imprisonment. Id. at *1, *4.
In March 2018, an appellate court vacated Dibrell‘s convictions. Id. at *15. The court found that the officers had seized Dibrell before the dog sniff and that the anonymous tip did not give them reasonable suspicion to do so. Id. at *9-14. It held that the trial court should have suppressed the drugs under the Fourth Amendment and dismissed the charges. Id. at *14. Dibrell was released the next month.
In September 2018, Dibrell sued the City of Knoxville, the officers involved in his arrest (Whitehead, Turner, White, and Pickens), and four other officers (Fred Kimber, Christopher
On appeal, Dibrell challenges only the dismissal of his
II
A. Claims Against the Officers
Section 1983 “makes ‘liable’ ‘[e]very person’ who ‘under color of state law ‘subjects, or causes to be subjected,’ another person ‘to the deprivation of any rights, privileges, or immunities secured by the Constitution[.]‘” Id. (quoting
Once we identify the right, we must then consider the statutory “elements of, and rules associated with, an action seeking damages for its violation” under
How does this two-step approach play out here? Dibrell‘s complaint makes our “threshold inquiry” difficult because it alleges that the officers violated his constitutional rights in the abstract without citing any specific right. Manuel, 137 S. Ct. at 920. Many of his allegations—such as the claim that he was arrested without probable cause—might suggest that he intends to invoke the Fourth Amendment. See id. at 917-20. But others—such as the claim that the officers lied at his trial—might suggest that he intends to rely on the Due Process Clause. See McDonough v. Smith, 139 S. Ct. 2149, 2155 & n.2 (2019). And still others—such as the claim that the officers detained him because he is African American—might suggest that he intends to rely on the Equal Protection Clause. See Whren v. United States, 517 U.S. 806, 813 (1996).
Admittedly, Dibrell‘s complaint did not need to expressly plead legal theories; it needed to plead factual allegations that impliedly established at least one viable theory. Johnson v. City of Shelby, 574 U.S. 10, 11-12 (2014) (per curiam); Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 817 (6th Cir. 2020). Once the officers sought summary judgment, however, Dibrell was required “to come forward with every legal theory” on which he relied. Nat‘l Credit Union Admin. v. Mich. Nat‘l Bank of Detroit, 771 F.2d 154, 161 (6th Cir. 1985); see 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1219, at 281 (3d ed. 2004). And Dibrell did not dispute the officers’ view that his opaque complaint alleged only two “claims” under the Fourth Amendment—one for “false arrest” and “false imprisonment” and the other for “malicious prosecution.” The district court accepted this reading. We do so as well and conclude that Dibrell has forfeited any other claims.
At the outset, though, we clarify that the Fourth Amendment does not adopt separate bans on “false arrests,” “false imprisonments,” and “malicious prosecutions.” It establishes a singular ban on “unreasonable” “seizures.”
Dibrell‘s false-arrest-and-imprisonment claim and his malicious-prosecution claim are thus specific versions of a general unreasonable-seizure claim alleging the same constitutional theory: that the officers seized (and continued to seize) Dibrell without probable cause (or even reasonable suspicion for the initial temporary stop). Manuel, 137 S. Ct. at 918; compare Tlapanco v. Elges, 969 F.3d 638, 654 n.3 (6th Cir. 2020), with id. at 658-60 (Thapar, J., concurring). Yet
1. False Arrest and Imprisonment under the Fourth Amendment
The state appellate court found that the officers violated the Fourth Amendment when they initially detained Dibrell without reasonable suspicion. We need not consider the merits, however, because the district court correctly held that the statute of limitations barred Dibrell‘s claim asserting a false arrest and imprisonment for his initial detention and arrest.
The parties agree on two points about this statute-of-limitations question. They agree that
The parties part ways only over the date on which Dibrell‘s claim “accrued” and started the one-year clock. Although the statute of limitations turns on state law, the question of when a
In this
But the Court has not ended with the standard rule in this
Dibrell‘s claim is untimely under these rules. His detention ended on February 18, 2014, when he was released on bond, so the limitations period likely started then. Underhill, supra, at 202; see Fox v. DeSoto, 489 F.3d 227, 233-35 (6th Cir. 2007). Dibrell makes no claim that the bond requirements imposed as a condition of his release qualified as a continuing “detention” for statute-of-limitations purposes, so we need not consider that theory. Cf. Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th Cir. 2004). And regardless, his bond hearing likely triggered Wallace‘s alternative accrual rule tied to the issuance of legal process. See Reed v. Edwards, 487 F. App‘x 904, 906 (5th Cir. 2012) (per curiam); White v. Hiers, 652 F. App‘x 784, 786 (11th Cir. 2016) (per curiam); cf. Bradley v. Sheriff‘s Dep‘t St. Landry Par., 958 F.3d 387, 391-92 (5th Cir. 2020). At the latest, this “legal process” issued when he was indicted in April 2015. See King, 852 F.3d at 579; Lucas v. Holland, 2017 WL 4764472, at *2 (6th Cir. Sept. 26, 2017) (order). Whether measured from the date of his bond hearing or the date of his indictment, the one-year statute of limitations had long run when Dibrell sued in September 2018.
Indeed, Dibrell‘s claim is identical to the claim that Wallace found untimely. The plaintiff in that case, Andre Wallace, had been convicted, and an appellate court had vacated his conviction. 549 U.S. at 386-87. He brought a
Dibrell responds that his claim did not accrue until his ultimate release in April 2018. That is so, he asserts, because the “Defendants” falsely testified at a bond-revocation hearing that he illegally possessed a firearm, which caused him to be remanded to pretrial custody at an unidentified date. Yet this allegation raises a different Fourth Amendment “claim” attacking a second detention (this time, a post-legal-process detention) purportedly based on false testimony. And the Supreme Court noted in Manuel that it has yet to identify the proper accrual date for a claim challenging “post-legal-process pretrial detention.” 137 S. Ct. at 921-22.
Like the Court in Manuel, we need not identify the proper accrual date for this separate claim. The claim fails because Dibrell‘s brief cites no evidence in support. It does not even tell us which officer gave the testimony about his firearms possession; it says only that the “Defendants” did so (on an unknown date and with no details). While allegations may suffice to withstand a motion to dismiss, they do nothing to withstand summary judgment. Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009). In scattered parts of the record, we independently came across Dibrell‘s statements in an affidavit or an interrogatory response suggesting that Officer “Kimber” or “Kimble” gave this testimony. But “‘[j]udges are not like pigs, hunting for truffles’ that might be buried in the record,” so our happenstance discovery of an iota of evidence does nothing to salvage his claim. Emerson v. Novartis Pharms. Corp., 446 F. App‘x 733, 736 (6th Cir. 2011) (citation omitted). Not only that, a claim under
In short, Dibrell‘s claim challenging his initial detention and arrest in February 2014 is untimely, and his claim challenging false testimony at a later hearing fails for a lack of evidence.
2. Malicious Prosecution under the Fourth Amendment
That leaves Dibrell‘s malicious-prosecution claim under the Fourth Amendment. The officers did not challenge this claim on statute-of-limitations grounds. Cf. King, 852 F.3d at 578-79. The district court instead held that it failed on the merits. To prove that a prosecution (or the detention accompanying it) was an “unreasonable” “seizure,” a plaintiff must show, among other things, that the state lacked probable cause for the prosecution (or detention). See Tlapanco, 969 F.3d at 654. Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (citation omitted). A grand jury‘s indictment also creates a presumption that probable cause existed, one that the plaintiff can overcome only by showing that the defendant fabricated evidence or recklessly made false statements outside the grand jury. See King, 852 F.3d at 586-88.
The state in this case established probable cause, and Dibrell has not rebutted the presumption of probable cause that arose from the grand jury‘s indictment. Dibrell was charged with twelve drug-trafficking counts of possession with intent to deliver or sell hydrocodone, oxycodone, and alprazolam within 1,000 feet of a school and child-care agency.
Dibrell instead claims that the state lacked probable cause to find that he possessed the drugs with the intent to “deliver” or “sell” them. He is mistaken. The officers had received an anonymous tip that Dibrell was selling drugs. They then found the three types of drugs in bottles with nonmatching prescription-drug labels. See Dibrell, 2018 WL 1474226, at *2. (The officers identified the drug in each bottle using a pill-identifier website.) One of the labels also suggested
To be sure, the state appellate court held that the Fourth Amendment‘s exclusionary rule required suppression of the drugs and money that created the probable cause for Dibrell‘s prosecution. Dibrell, 2018 WL 1474226, at *14. But Dibrell does not argue on appeal that the exclusionary rule should extend to this civil context. Cf. Black v. Wigington, 811 F.3d 1259, 1267-68 (11th Cir. 2016). Rather, Dibrell argues that the drugs that he possessed were lawfully prescribed to him for his personal use because of injuries he suffered in the military. This defense does not overcome the probable cause that existed from all the facts, including the fact that the prescription drugs were in bottles with unmatching labels. The jury, for example, rejected the defense when finding Dibrell guilty beyond a reasonable doubt. See Dibrell, 2018 WL 1474226, at *4. And probable cause does not require the same level of proof that the government needed to meet at Dibrell‘s trial. See Adams v. Williams, 407 U.S. 143, 149 (1972).
Dibrell next points to his testimony from his criminal trial. He impliedly suggested that the officers had lied about finding the drugs in bottles with nonmatching labels (or in a plastic bag). Dibrell, 2018 WL 1474226, at *4. But he presented no evidence to support this theory, as he was required to do at this stage. See Chappell, 585 F.3d at 906. His arguments thus fall short.
B. Claim Against the City of Knoxville
Section 1983 does not permit a plaintiff to hold a municipality like the City of Knoxville automatically liable for the unconstitutional actions of its employees under a vicarious-liability theory. See Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 691 (1978). But the statute does permit a municipality to be held liable if the plaintiff establishes that the municipality‘s “policy”
This axiomatic rule dooms Dibrell‘s Monell claim. As best we can tell, he does not rely on the Fourth Amendment to support it. Rather, he cites news articles (his only evidence) to suggest that the city had a custom of racial profiling. But Dibrell identifies no evidence that the officers targeted him because of his race. And he forfeited any equal-protection claim by failing to raise it in response to the officers’ summary-judgment motion. Without evidence of an equal-protection violation in his case, he cannot establish that Knoxville‘s alleged custom harmed him. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).
Dibrell argues that he could not develop evidence of the city‘s purported racial-profiling custom because the district court stayed discovery soon after the officers filed their summary-judgment motion. Yet he did not respond to the officers’ motion to stay discovery, so the district court could hardly be said to have abused its discretion in granting it. See Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). And, as the district court explained, it did not reject the Monell claim because of Dibrell‘s failure to establish a city custom (for which Dibrell allegedly needed discovery). It rejected the claim because of Dibrell‘s failure to establish a specific constitutional violation in his case. The search for evidence of the city‘s broader custom thus would have been “futile.” Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1214 (10th Cir. 2006).
We affirm.