MEMORANDUM
Pending before the court is the motion for summary judgment filed by the defendant Sinclair Television of Nashville, Inc. (Docket No. 155), to which the plaintiffs have responded (Docket No. 166), and the defendant Sinclair Television of Nashville, Inc. has replied (Docket No. 178). Also pending is the motion for summary judgment filed by the defendant Metropolitan Government of Nashville and Davidson County (Docket No. 167), to which the plaintiffs have responded 1 (Docket No. 181), and the defendant Metropolitan Government of Nashville and Davidson County has replied (Docket No. 182). For the reasons discussed herein, the motion for summary judgment filed by the defendant Sinclair Television of Nashville, Inc. will be granted, and the motion for summary judgment filed by the defendant Metropolitan Government of Nashville and Davidson County will be granted in part and denied in part.
As a housekeeping matter, also still pending is the plaintiffs’ motion to amend the complaints in this matter (Docket No. 139), to which certain of the defendants have responded (Docket Nos. 140, 145, & 146), and the plaintiffs have replied (Docket No. 148). In an order dated April 30, 2009, however, the court addressed the objections raised in the responses, striking aspects of the plaintiffs’ proposed second amended complaint in Case No. 3:08-0380. (Docket No. 159.) Thus, the plaintiffs’ motion to amend will be granted, except with respect to those matters stricken in accordance with the court’s April 30, 2009 Order.
BACKGROUND
In late October 2006, the U.S. Marshals Service, in conjunction with local law enforcement officials across the country, including those employed by the Metropolitan Government of Nashville and Davidson County (“Metro”), conducted “Operation Falcon III,” a “fugitive round-up” that resulted in the arrest of more than ten thousand individuals. 2
I. Mrs. Milligan’s Arrest
The process by which the capias for the arrest of Ms. Milligan/Staps led to the arrest of the plaintiff Mrs. Milligan, though largely undisputed, necessitates some review. On May 26, 2006, the Davidson County Grand Jury returned an indictment against “Paula Milligan, a.k.a. Paula Rebecca Staps,” and a capias was issued for that individual, described as a 5'3" 24-year-old white female with brown hair and blue eyes, a North Carolina driver’s license, and an address in Goldsboro, North Carolina. The plaintiff Mrs. Milligan, in contrast, is a 5'6" 42-year-old white female with blond hair and brown eyes, a Tennessee driver’s license, and an address in Antioch, Tennessee.
The capias for the arrest of Ms. Milligan/Staps was routed to Nicholas Pride, a data entry clerk in the Warrants Division of the Metro Police Department, who was responsible for entering the information on the capias into the police department’s database of outstanding warrants and capiases. As a general matter, in performing this task, Mr. Pride was permitted to use a “Master Name Index” of individuals with prior contacts with the Metro Police Department to obtain specific identifying information about an individual named in a warrant or capias, rather than manually entering all of the identifying information from the warrant or capias into the database. In the process of entering the capias for Ms. Milligan/Staps, Mr. Pride searched the Master Name Index, where he discovered an entry for the plaintiff Mrs. Milligan, stemming from a traffic ticket that Mrs. Milligan had received years previously. However, Mr. Pride apparently failed to cross-reference identifying information between the capias and the Master Name Index, such as a date of birth and driver’s license number, which would have made apparent that Ms. Milligan/Staps and the plaintiff Mrs. Milligan were two different individuals. Instead, Mr. Pride linked the capias issued for Ms. Milligan/Staps with the entry in the Master Name Index for the plaintiff Mrs. Milligan, such that the plaintiff Mrs. Milligan’s date of birth and Tennessee driver’s license number became associated with the capias issued for Ms. Milligan/Staps.
As the U.S. Marshals Service and Metro police prepared for Operation Falcon III, Deputy U.S. Marshal Kevin Koback and Metro Police Sargent Anthony Bourk communicated regarding the list of outstanding warrants and capiases that would be served during the operation. That list was
Officer Doug Anderson of the Metro Police Department, who was a specially deputized U.S. Marshal for the purpose of Operation Falcon III, served as the team leader for Mrs. Milligan’s arrest, and, on the morning of her arrest, had in his possession the arrest file for Mrs. Milligan that had been prepared by the T.B.I.
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That arrest file did not contain a copy of the capias for the arrest of Ms. Milligan/Staps. However, prior to arresting Mrs. Milligan and consistent with Metro Police Department policy, Officer Anderson radioed the Warrants Division of the Metro Police Department to verify whether the capias was still active and had a brief conversation with Rita White, a warrants clerk. During this conversation, which was recorded, Officer Anderson provided Ms. White with Mrs. Milligan’s name and date of birth. Ms. White responded almost immediately to the effect that the capias remained outstanding. However, it is undisputed that, given the short period of time in which that conversation took place, Ms. White could not possibly have located the capias and read it prior to providing verification to Officer Anderson. (Docket No. 180 ¶ 19.) Further, had she physically looked at the capias, as she was required, she likely would have realized that the date of birth provided by Officer Anderson did not
After this communication between Officer Anderson and Ms. White, a number of law enforcement officers, including Officers Wesley Terry and Craig Reese of the Metro Police Department, who had been deputized as U.S. Marshals for the purpose of Operation Falcon III, arrived at Mrs. Milligan’s home. The precise details regarding Mrs. Milligan’s arrest and subsequent detention were recounted in a previous ruling by this court (Docket No. 84) and need not be revisited in detail here. Suffice it to say that Mrs. Milligan and her husband both protested her arrest, asserting that the officers had the wrong person, but the officers nonetheless arrested Mrs. Milligan without making any further attempts to confirm that they were arresting the right person. 8 After her arrest, Mrs. Milligan was taken to LP Field, where she was transferred into the custody of other law enforcement officials until her husband was able to post bond, approximately six or seven hours after her arrest.
On November 1, 2006, the criminal charges against Mrs. Milligan were dismissed by the Criminal Court for Davidson County, Tennessee, upon finding that Mrs. Milligan was not the individual identified in the capias and that she had been falsely arrested, charged, booked, and jailed. An order confirming that dismissal was issued on November 6, 2006.
II. The News Report Regarding Mrs. Milligan’s Arrest
Daniel Shelton, a Deputy U.S. Marshal and Public Affairs Officer, served as the media coordinator for Operation Falcon III. Before the operation commenced, Deputy Marshal Shelton contacted local media outlets, including WZTV-Fox 17, a station operated by Sinclair Television of Nashville, Inc. (“Fox 17/Sinclair”), and offered those outlets the opportunity to “ride-along” and report on the operation, contingent upon those outlets embargoing their reports until the operation’s conclusion. Fox 17/Sinclair agreed to that condition and accepted the opportunity to ride along with law enforcement officers on the operation.
On October 24, 2006, the day of Mrs. Milligan’s arrest, Fox 17/Sinclair reporter John Dunn, videographer Robert Brown, and Deputy Marshal Shelton followed the team that conducted Mrs. Milligan’s arrest in a separate vehicle and observed as the team conducted a number of arrests as part of Operation Falcon III, including the arrest of Mrs. Milligan. As Mrs. Milligan was being arrested, Mr. Dunn and Mr. Brown observed and filmed the events from the street in front of the Milligans’ home. Mrs. Milligan testified that she was aware that the arrest was being filmed, although she was unaware of who was filming the incident. Over the course of the ten days following the arrest, neither Mrs. Milligan nor her counsel contacted Fox 17/Sinclair or any other news media outlet to inform them that her arrest was made in error.
On November 2, 2006, the day after the charges against Mrs. Milligan were dismissed, the news embargo was lifted, and Fox 17/Sinclair broadcast a report about Operation Falcon III. That report included, among other things, interviews with police officers and video footage of two
On November 3, 2006, after the report was broadcast, Mrs. Milligan’s counsel informed Fox 17/Sinclair that Mrs. Milligan’s arrest had been improper and demanded that Fox 17/Sinclair cease publishing arrest information about Mrs. Milligan. After being so notified, Fox 17/Sinclair did not broadcast any further news reports regarding Mrs. Milligan’s arrest. Fox 17/Sinclair also took steps to remove content regarding Mrs. Milligan from its public website, although the original report remained on the website until November 13 or 14, 2006.
III. Procedural History
This case originally began as two separate causes of action filed by the Milligans, which since have been consolidated by this court.
On October 23, 2007, Mrs. Milligan and Mr. Milligan filed an action in this court, Case No. 3:07-cv-1053, naming as defendants the United States, the U.S. Marshals Service, Metro, Officers Terry and Reese, four unknown U.S. Marshals (two of whom have since been identified as Deputy Marshals Kobaek and Shelton), Fox 17/Sin-clair, and a number of unknown agents, employees, and servants of the U.S. Marshals Service, Metro, and Fox 17/Sinclair. The plaintiffs asserted (1) a claim against the federal and municipal defendants for violating Mrs. Milligan’s constitutional rights by virtue of her false arrest; (2) a claim against the federal and municipal defendants for violating both Mrs. Milligan’s and Mr. Milligan’s constitutional rights by virtue of the search of their home; (3) a Monell pattern and practice claim against the U.S. Marshals Service and Metro alleging unconstitutional polices, practices, or customs on the part of those entities; (4) a claim of false light invasion of privacy against all of the defendants; and (5) a claim of libel against all of the defendants. (Docket No. 1.) On April 1, 2008, the plaintiffs filed their First Amended Complaint, in which they alleged essentially the same causes of action. (Docket No. 76.)
On January 18, 2008, the United States, the U.S. Marshals Service, Deputy Marshals Kobaek and Shelton, Officers Terry and Reese, and the two unknown U.S. Marshals moved to dismiss all of the claims against them on the grounds of qualified immunity and sovereign immunity. (Docket No. 44.) The court treated that motion to dismiss as one for summary judgment and, on May 2, 2008,
Officers Terry and Reese moved to dismiss the complaint that was removed from state court (Case No. 3:08-cv-0380 Docket No. 4), and, on May 29, 2008, the court granted that motion, dismissing the claims against the United States on the grounds that the plaintiffs had not exhausted then-administrative remedies under the FTCA (Case No. 3:08-cv-0380 Docket No. 16). The court nevertheless exercised supplemental jurisdiction over the remaining claims in Case No. 3:08-cv~0380 in light of the pendency of the related case, Case No. 3:07-cv-1053. (Id.) Thereafter, on August 11, 2008, the parties agreed to consolidate the two cases, with the earlier-filed case serving as the lead case. (Docket No. 101; Case No. 3:08-cv-0380 Docket No. 19.)
Since the cases were consolidated, the plaintiffs have filed a second amended complaint in Case No. 3:07-cv-1053 (Docket No. 122) and an amended complaint in Case No. 3:08-0380 (Docket No. 119), neither of which made any substantive changes to the original claims alleged by the plaintiffs. The plaintiffs then moved for leave to file a third amended complaint in Case No. 3:07-cv-1053 and a second amended complaint in Case No. 3:08-0380 to add a claim under the FTCA. (Docket Nos. 139, 139-1, & 139-2.) In an order dated April 30, 2009, the court addressed the federal defendants’ argument that the inclusion of the FTCA claim in both complaints was redundant and dismissed the plaintiffs’ FTCA claim and Officers Terry and Reese from the complaint in Case No. 3:08-0380, while indicating that it would permit the amendment to state an FTCA claim in Case No. 3:07-ev-1053. (Docket No. 159.) For whatever reason, however, the plaintiffs’ motion to amend remains outstanding on the docket. Consistent with this court’s April 30, 2009 ruling, therefore, that motion will be granted except to the extent that the plaintiffs’ FTCA claim and Officers Terry and Reese have been dismissed from Case No. 3:08-0380 pursuant to the court’s April 30, 2009 Order.
Finally, on July 6, 2009, the court granted the parties’ joint motion to dismiss the plaintiffs’ claims against Officers Terry and Reese, Deputy Marshals Koback and Shelton, and any remaining unknown U.S.
ANALYSIS
Both Fox 17/Sinclair and Metro have moved, separately, for summary judgment with respect to the claims asserted against them.
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). To prevail, the moving party must meet the burden of proving the absence of a genuine issue of material fact as to an essential element of the opposing party’s claim.
See Celotex Corp. v. Catrett,
In determining whether the moving party has met its burden, the court must view the factual evidence and draw all reasonable inferences in the light most favorable to the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
If the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which she has the burden, however, the moving party is entitled to summary judgment as a matter of law.
See Williams v. Ford Motor Co.,
II. Fox 17/Sinclair’s Motion for Summary Judgment
Fox 17/Sinclair has moved for summary judgment with respect to the claims arising under Tennessee state law that the plaintiffs have asserted against it — namely, claims of libel, false light invasion of privacy, and outrageous conduct.
A. Libel
Fox 17/Sinclair asserts that the plaintiffs cannot establish their libel claim because
Under Tennessee law, both libel and slander are forms of the tort of defamation.
Quality Auto Parts Co. v. Bluff City Buick Co.,
In
New York Times v. Sullivan,
Fox 17/Sinclair does not dispute that Mrs. Milligan is a private individual and that the lesser negligence standard would ordinarily govern her defamation claim but, instead, argues that the actual
1. Official action
The fair report privilege applies to a statement made “in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern,” Restatement (Second) of Torts § 611 (cited in
Lewis,
To the extent that the report at issue here included statements about Mrs. Milligan, it provided only that “[the] first arrest came early: Paula Milligan, wanted on four counts of forgery and one count of identity theft” and that the arrest took place “with warrants in hand.” The report contained no further statements about Mrs. Milligan. Moreover, Mr. Dunn, the Fox 17/Sinclair reporter, testified that he received Mrs. Milligan’s name and the charges on which her arrest were based from Deputy Marshal Shelton, who was the team leader overseeing Mrs. Milligan’s arrest.
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Thus, the entirety of the
2. Fair and accurate summary
In addition to constituting a report of an official action, a statement must also provide a fair and accurate summary of that action to be entitled to the protection of the fair report privilege. A report is not protected if it contains “any false statement of fact regarding what occurred during the proceeding, any garbled or one-sided account of the proceeding, or any defamatory observations or comments.”
Lewis,
Mrs. Milligan argues that the report was not accurate to the extent that it included the phrase “with warrants in hand” when, in fact, law enforcement officials did not have the capias, or a copy thereof, physically in their possession at the time of the arrest. As an initial matter, the parties dispute whether the phrase “with warrants in hand” referred specifically to Mrs. Milligan’s arrest or, more generally, to the arrests made during Operation Falcon III. However, even if the phrase did refer to Mrs. Milligan, a reasonable inference that the court must draw in Mrs. Milligan’s favor in considering Fox 17/Sinclair’s motion for summary judgment, the report nevertheless provided a correct and just impression of the fact of Mrs. Milligan’s arrest and the charges on which that arrest was based.
Mrs. Milligan relies on the testimony of Ronnie Adcock, Fox 17/Sinclair’s executive producer, that the use of the phrase “warrants in hand” in a report conveys that there is a legal justification for the arrest. (Docket No. 164-7 at 54.) Even if it was technically inaccurate to state that the warrant was physically “in hand” at the time of Mrs. Milligan’s arrest, the fact is that Mrs. Milligan was arrested pursuant to a capias, which provided a legal justification for the arrest, just as Mr. Adcock testified. Further, the use of the phrase “warrants in hand” conveyed nothing about Mrs. Milligan’s guilt or innocence. The fact that Mrs. Milligan was the unfortunate victim of a case of mistaken identity does not defeat the fact that she was arrested pursuant to the capias as a matter of fact. Likewise, although Mrs. Milligan argues that the report was not fair and accurate to the extent it described her as “wanted,” the fact is that the person named in the capias
was
“wanted” at the time of the arrest; this statement is inaccurate only to the extent that Mrs. Milli
Mrs. Milligan further argues that the report was not a fair and accurate summary of her arrest to the extent that the report focused on the serious nature of the alleged crimes for which other individuals were arrested during Operation Falcon III — -felonies that included drug dealing, sex offenses, and gang activity. Mrs. Milligan argues that, by including her in the report, Fox 17/Sinclair unfairly and inaccurately associated her with such serious criminal activity. Again, however, the report provided a correct and just impression of the fact of Mrs. Milligan’s arrest on certain charges. Fox 17/Sinclair did not omit relevant details or provide a one-sided or slanted view of the facts. Moreover, the report specified that Mrs. Milligan was arrested on charges of forgery and identify theft, substantially undermining the likelihood that a viewer would infer from the report that Mrs. Milligan was implicated in crimes involving drugs, sex, and gang activity.
Thus, the Fox 17/Sinclair report was a fair and accurate summary of an official action, and is entitled to the protection of the fair report privilege, unless Mrs. Milligan can demonstrate that the report was broadcast with actual malice.
3. Actual malice
The issue that will determine whether the fair report privilege applies, and the issue that the parties most vigorously dispute, is whether Fox 17/Sinelair’s actions constituted actual malice, in which case the privilege is defeated. Actual malice requires a showing that the defendant published a defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”
New York Times,
Mrs. Milligan asserts that the question of actual malice is a jury question, relying on a case that involved the application of Pennsylvania law regarding the fail-report privilege and in which the court concluded that whether the privilege is overcome “is a factual question for the jury.”
Hudak,
Here, there is very little evidence, let alone clear and convincing evidence, that Fox 17/Sinclair acted with actual malice. Instead, Mrs. Milligan merely erects a house of inferential cards in an effort to establish that an issue of fact exists as to whether Fox 17/Sinclair acted with actual malice. Mrs. Milligan’s argument is largely premised on Mr. Dunn’s deposition testimony, in which he stated that he obtained information about Mrs. Milligan from Deputy Marshal Shelton and did no further independent investigation into the charges against Mrs. Milligan. (Docket No. 164-5 at 20-21.) Also, according to Mr. Dunn, he was aware that officers on the scene had, in them possession, folders regarding the arrested individuals, but that he never saw the contents of those folders himself. (Id. at 45.) He stated that it was his understanding that the law enforcement officers would have had the capias in their possession at the time of the arrest. (Id.) Mr. Dunn also testified about the methods he uses in investigating a report generally, stating that he has consulted public records such as court filings in conjunction with investigations he has conducted in the past. (Id. at 15-16.) Finally, Mrs. Milligan relies on Mr. Dunn’s speculation during his deposition that, had he actually seen the capias, the physical differences between Mrs. Milligan and the individual described in the capias would have served as a “red flag” as to whether Mrs. Milligan was actually the subject of the capias. (Id. at 24-26.)
Based on this testimony, Mrs. Milligan posits that it is reasonable to infer that Mr. Dunn must have seen the capias, despite his uncontroverted testimony to the contrary, because the arresting officers did not have a copy of the capias in their possession at the time of the arrest and because the news report accurately cited the charges on which Mrs. Milligan was arrested. Building on this tortured inference and Mr. Dunn’s testimony that the capias would have raised “red flags,” Mrs. Milligan argues that Mr. Dunn was or should have been aware that her arrest was in error before the Fox 17/Sinclair report was broadcast. Mrs. Milligan further argues that Mr. Dunn should have been aware of the fact that there was no basis for her arrest because the charges against her were dismissed on November 1, 2006, before the report was broadcast, based on the fact that Mr. Dunn testified that he sometimes reviews court records in the course of an investigation.
The conclusions that Mrs. Milligan draws, however, are based not on any reasonable inference but, rather, upon layers of unreasonable inference upon unreasonable inference. Mr. Dunn’s testimony was clear that Deputy Marshal Shelton provided him with the information regarding Mrs. Milligan’s arrest and that the Fox 17/Sinclair report was based on that information. Mr. Dunn stated that he did no further independent investigation of the charges on which Mrs. Milligan was arrested, and there is no reason to doubt his testimony or to conclude that, contrary to his testimony, he ever actually saw the capias. There is nothing to indicate that Mr. Dunn had any reason to doubt the information he received from Deputy Marshal Shelton and thus nothing that would have alerted him to conduct any further investigation. A “failure to investigate before publishing, even when a reasonably
Mrs. Milligan further attempts to demonstrate actual malice by arguing that Fox 17/Sinclair did not have any explicit guidelines or policies governing the process by which a reporter verifies the accuracy of a report, as news director Ken Smith and executive producer Ronnie Ad-cock both testified. (Docket No. 164-7 at 46-47; Docket No. 164-10 at 40-41.) Mrs. Milligan also relies on the fact that Mr. Adcock testified that he never saw any supporting documentation regarding Mrs. Milligan’s arrest and did nothing personally to verify the accuracy of the report and that he instead relied on Mr. Dunn and expected that Mr. Dunn would have seen the warrant personally. (Docket No. 164-7 at 45-47, 57.) While it may well be the case that the process by which Fox 17/Sin-clair generally verifies a report could be more thorough and that Mr. Dunn could have been more cautious by reviewing the capias himself, neither of these facts satisfies the high bar required to establish actual malice — that is, there is no indication that Mr. Dunn, Mr. Adcock, or, by extension, Fox 17/Sinclair acted with reckless disregard of the falsity of the information published in the report.
Finally, Mrs. Milligan argues that the fact that the report was not removed from Fox 17/Sinclair’s website immediately upon its receiving notification from Mrs. Milligan’s attorney that her arrest was in error demonstrates actual malice on Fox 17/Sinclair’s part. However, the fact is that Fox 17/Sinclair did not broadcast any reports about Mrs. Milligan’s arrest after it was notified that the arrest was false and took steps to remove content regarding Mrs. Milligan’s arrest from its website. 12 Given these efforts, the fact that the content regarding Mrs. Milligan’s arrest remained on the website until November 13 or 14 does not establish a genuine issue of fact as to actual malice.
As there is no genuine issue of fact as to the existence of actual malice, the report published by Fox 17/Sinclair is protected by the fair report privilege and, therefore, summary judgment is appropriate for Fox 17/Sinclair with respect to this claim.
B. False Light Invasion of Privacy
Tennessee has largely adopted the Restatement’s definition of the tort of false light invasion of privacy, permitting liability where a defendant “gives publicity to a matter concerning another that places the other before the public in a false light” such that (1) “the false light into which the
The court need not address the merits of Mrs. Milligan’s false light claim, however, as the fair report privilege applies to the Fox 17/Sinclair report, as discussed supra, and therefore protects Fox 17/Sinclair from liability for false light invasion of privacy. See id. at 648 (noting that “absolute and conditional privileges apply to the invasion of privacy torts” and affirming that “such privileges previously recognized in Tennessee apply to false light claims”). Summary judgment will, therefore, be granted for Fox 17/Sinclair with respect to this claim.
C. Outrageous Conduct
To establish a claim of outrageous conduct, a plaintiff must demonstrate that the defendant’s conduct (1) was intentional or reckless; (2) was “so outrageous that it is not tolerated by civilized society”; and (3) resulted in serious mental injury.
Bain v. Wells,
III. Metro’s Motion for Summary Judgment
Metro has also moved for summary judgment with respect to the claims that the plaintiffs assert against it, including both the federal law claims that the plaintiffs assert in Case No. 3:07-1053 and the state law claims that the plaintiffs assert in Case No. 3:08-0380.
A. Federal Claims
The thrust of the plaintiffs’ federal claims against Metro is that Metro is liable by virtue of an unconstitutional municipal policy, practice, or custom, pursuant to
Monell v. Department of Social Services,
To prove the existence of an unconstitutional municipal policy or custom, a plaintiff may rely on evidence of “a policy of inadequate training or supervision” or “a custom of tolerance or acquiescence of federal rights violations,” among other types of policies or customs.
See
Here, the plaintiffs’ Monell claims against Metro arise from the series of errors that led to Mrs. Milligan’s arrest on the basis of the capias that had been issued for Ms. Milligan/Staps. Specifically, those errors were:
(1) The fact that when Mr. Pride, the data entry clerk, created a computer entry for the capias issued for Ms. Milligan/Staps, he relied on information about Mrs. Milligan contained in the police department’s Master Name Index without cross-referencing that information with information contained on the capias, resulting in the erroneous linkage of individual identifiers for Mrs. Milligan with the capias issued for Ms. Milligan/Staps.
(2) The fact that Deputy Marshal Koback mistakenly sent the T.B.I. a list of outstanding warrants that had not been “cleaned” and thus erroneously included Mrs. Milligan’s name, resulting in the T.B.I.’s creation of an arrest file for Mrs. Milligan. 14
(3) The fact that Ms. White, the warrants clerk, did not actually review the capias issued for Ms. Milligan/Staps and verify her name and date of birth when Officer Anderson radioed in to determine whether the capias was outstanding, resulting in a failure to observe the discrepancy between the information about Mrs. Milligan contained in the arrest file to which Officer Anderson had access and the actual capias issued for Ms. Milligan/Staps.
Of these three errors, the parties focus their attention on the first and the third, and on the related testimony and other evidence.
As a preliminary matter, Metro argues that the plaintiffs never alleged a Monell claim based on these facts, and, thus, that the claim is not properly before the court. Metro argues that the Monell claim alleged in both the original complaint and in each successive amended complaint focused on the actions of Officers Terry and Reese, rather than on the actions of other Metro employees, such as Mr. Pride and Ms. White, and that any liability from the actions of Officers Terry and Reese does not flow to Metro, as those officers were deputized as U.S. Marshals for the purpose of the operation. However, the complaint names “presently unknown” employees of Metro as John Doe defendants, in addition to the named defendants. (Docket No. 139-1.) Moreover, the complaint’s language is not exclusive, alleging constitutional violations that resulted from “interrelated de facto policies, procedures, and/or customs, which included, inter alia: a) a failure to train, supervise, discipline, transfer, monitor, counsel, and otherwise control U.S. Marshals and/or Deputy Marshals and Metro Nashville officers .... and b) by maintaining a law enforcement ‘code of silence.’ ” (Id. ¶ 82 (emphasis added).) It further appears that many of the details regarding Mrs. Milligan’s arrest were uncovered only in the course of discovery. Therefore, the court sees no reason why the plaintiffs complaint should not be understood as pleading the particular factual basis on which they presently are prosecuting their Monell claim against Metro.
As for the merits of the plaintiffs’
Monell
claim, both Mr. Pride and Ms. White testified that they were not provided with any specialized training for their work as a data entry clerk and a radio operator, respectively, and that they learned through on-the-job training. (Docket No. 180-8 at 23-24, 29; Docket No. 180-9 at 20, 24.) Further, it is undisputed that the Metro Police Department did not have in place any method of auditing the entries made by data clerks other than the requirement that individual clerks, such as Mr. Pride, “self-audit” their work by double-checking their entries immediately after inputting those entries, and the requirement that an arresting officer verify a warrant or capias by radio prior to conducting an arrest. (Docket No. 183 ¶¶ 18, 20, 27.) It is also worth
There is some dispute between the parties as to whether there existed a policy requiring an arresting officer to possess a copy of the warrant at the time of an arrest or, at the very least, to have viewed the warrant before making the arrest. The Standard Operating Procedure for Metro’s Warrants Department states, “Copies of warrants will be used to attempt service.” (Docket No. 180-6 Ex. 3 at 5.) Metro however, relies on the testimony of Captain Karl Roller, who testified as the police department’s representative, that this statement does not require an arresting officer to have a copy of a warrant in his or her possession, but merely prohibits an officer from removing the original from the Warrants Division when making an arrest. (Docket No. 167-5 at 65-67.) In any case, however, Captain Roller testified that it is a “recommended policy” that an arresting officer personally review the warrant before making an arrest, and “a best practice” that is “highly recommended” for an officer to take a copy of the warrant along when making an arrest. (Id. at 21-22,113.)
Moreover, it is undisputed that the Metro officers involved in Mrs. Milligan’s arrest, even those such as Officers Anderson, Terry, and Reese, who had been deputized as U.S. Marshals for the purpose of Operation Falcon III, were still subject to the Standard Operating Procedures at the time of Mrs. Milligan’s arrest (Docket No. 183 ¶ 10), that the arresting officers did not have a copy of the capias in their possession at the time of Mrs. Milligan’s arrest
(id.
¶ 7), that certain of the information contained in the arrest file varied from that contained in the capias
(id.
¶ 14), and that, given these variances, no reasonable officer would have arrested Mrs. Milligan had he or she had a copy of the capias at the time of the arrest
(id.
¶ 15). Moreover, it is undisputed that officers do not customarily have warrants in their possession when they conduct an arrest — not just in Mrs. Milligan’s case, but as a general matter — and instead rely on radio operators, such as Ms. White, to verify the information contained in the original warrant or capias.
(Id.
¶ 12.) Finally, it is undisputed that, in this case, Ms. White could not have actually verified the information in the original warrant when Officer Anderson radioed in, as she was required, given the fact that mere seconds elapsed before she provided verification and that, had she actually reviewed the capias, she would have realized that there was a discrepancy between certain information in the capias and the information provided by Officer Anderson,
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likely prompting either Ms. White or Officer
Further, a number of internal Metro Police Department publications reflect that problems related to both the inputting of information from warrants and capiases and the radio verification of information from those warrants and capiases existed prior to Mrs. Milligan’s arrest. A memorandum dated February 12, 2004 and addressed to “All clerks” stated:
Beginning today, driver’s license must be checked on every warrant entered .... Take special notice to the issue date of driver’s license. We are finding warrants where the demographics do not match the subject. This is very pertinent in the service of any outstanding warrants.
(Docket No. 180-7 Ex. 6 at Bates 1442.) Additionally, a memorandum dated March 22, 2006 and addressed to “All supervisors” stated:
We are experiencing many unexplained arrests because of faulty warrant entry or failure to recall a warrant or citation. This can not continue.... As of today we have a new policy on improperly entered warrants. If warrant information is put into the computer incorrectly and it is brought to the attention of a supervisor we will take corrective action .... It is equally important to understand that the radio person plays a big part in this process, as always they should take the warrant out of the jacket and give the information that is on the warrant to the requesting officer. The radio operator or disseminator of the information will be held to the same standard as the entry clerk.
(Docket No. 180-7 Ex. 6 at Bates 1440 (emphasis in the original).) Finally, a flyer placed in the clerks’ office stated:
RADIO PERSONS
CLERKS AND OFFICERS
AS OF 06-24-06 WHEN CONFIRMING A WARRANT OR WARRANT INFORMATION OVER THE RADIO OR PHONE:
THE OPERATOR WILL/SHALL EACH TIME PULL THE WARRANT OUT OF THE JACKET AND REVIEW THE INFORMATION ON THE WARRANT, VERIFY THE INFORMATION ON THE WARRANT MATCHES THE INFORMATION GIVEN BY THE REQUESTING OFFICER
DO NOT ASSUME.
(Docket No. 180-7 Ex. 6 at Bates 1441 (emphasis in the original).)
Metro argues that Mr. Pride’s fourteen years on the job and Ms. White’s fifteen years on the job constitute adequate training to defeat the plaintiffs’
Monell
claim. However, the fact is that not only was that training inadequate to prevent the errors that led to Mrs. Milligan’s arrest, but that similar errors had occurred in the past.
18
Under the circumstances, it is a question of fact whether the degree of training and supervision that Metro provided to its employees in the Warrants Division — which Metro fully acknowledges amounts merely to on-the-job training — was adequate. Moreover, there is evidence that this fail
In support of their argument, the plaintiffs rely on the ruling of the United States Court of Appeals for the Third Circuit in
Berg v. County of Allegheny,
Here, Metro argues that Berg is distinguishable to the extent that, in Berg, there did not exist any procedures whatsoever to verify the accuracy of a warrant, whereas Metro required that the inputting data clerk “self-audit” by double-checking his or her work and that the arresting officer verify a warrant is still outstanding by radioing the Warrants Division before conducting an arrest. Once again, however, it is clear that these nominal procedures did not function to prevent, in any meaningful way, the type of errors that resulted in Mrs. Milligan’s arrest. Indeed, errors of that exact nature had led to previous false arrests, a fact that was well-known to both police department employees and to Metro itself 19 Further, although Metro argues that the existence of the memoranda and flyer reflects that policies were in place to ensure the proper functioning of the Warrants Division, it seems the opposite was in fact the case — the practices of the Warrants Division permitted repeated rights violations and Metro’s meager attempts to prevent such violations were clearly inadequate. As a practical matter, and like the system at issue in Berg, there were no meaningful checks on Metro’s system, either at the data entry stage to prevent a clerk’s erroneous reliance on information from the Master Name List, or at the radio verification stage to prevent a clerk from providing the arresting officer with verification without actually physically looking at the relevant warrant or capias.
As such, Metro’s motion for summary judgment with respect to the plaintiffs’ Monell claims based on Metro’s alleged failure to train or supervise will be denied.
B. State Claims
In Case No. 3:08-0380, the plaintiffs assert claims against Metro arising under various Tennessee statutes, including failure to exhibit a warrant in violation of Tenn.Code Ann. § 40-7-106(a), failure to provide Mrs. Milligan with a telephone call while she was in custody in violation of Tenn.Code Ann. § 40-7-106(b), failure to take Mrs. Milligan before a magistrate to determine the lawfulness of her arrest in violation of Tenn.Code Ann. § 40-7-204, and unauthorized exercise of official power and an unlawful arrest in violation of Tenn. Code Ann. §§ 39-16^02 and -403. The plaintiffs also assert a variety of state tort claims, including claims of negligence, conspiracy, assault and battery, false arrest, false imprisonment, invasion of privacy, libel, malicious prosecution, negligent infliction of emotional distress, intentional infliction of emotional distress/outrageous conduct. 20 Metro has moved for summary judgment with respect to all of these claims. In responding to Metro’s motion, the plaintiffs did not address Metro’s argument that the statutory provisions under which the plaintiffs purported to bring claims do not provide a private cause of action. As such, summary judgment will be granted for Metro with respect to the plaintiffs’ state statutory claims.
As for the plaintiffs’ state tort claims, Metro argues, much as it does in the context of the federal claims addressed above, that any liability from the actions of Officers Terry and Reese must be imputed to the United States rather than to Metro, as those officers were deputized as U.S. Marshals for the purpose of the operation and, further, that the plaintiffs’ complaint did not allege the basis for any tort claims arising from the actions of any individuals other than Officers Terry and Reese. Again, however, this argument fails, as the allegations in the complaint were sufficiently broad to encompass tort claims arising from the actions of Metro employees other than Officers Terry and Reese, including, especially, those individuals employed in the police department’s Warrants Division. 21
By the express terms of the GTLA, Metro is immune from suit with respect to the claims of false arrest, invasion of privacy, libel, malicious prosecution, and intentional infliction of emotional distress, a fact that the plaintiffs do not dispute. Summary judgment will therefore be granted to Metro with respect to these claims. However, with respect to the false imprisonment claim, there is no indication that Mrs. Milligan was imprisoned pursuant to a mittimus from a court, and, thus, the retention of immunity contained in Section 29-20-205(2) does not apply.
Chalmers v. Clemons,
[38] The survival of the remaining intentional tort claims—assault and battery and conspiracy—depends on the plaintiffs’ ability to demonstrate that Metro acted negligently in allowing its employees to commit these intentional torts,
see Lim
However, with respect to the claims against Metro for negligence and negligent infliction of emotional distress, the court concludes that the evidence adduced by the plaintiffs and discussed in detail supra regarding the functioning of the Warrants Division, specifically the data entry and radio verification processes, creates a genuine issue of fact as to whether Metro’s actions constituted negligence, particularly in light of the fact that Metro appears to have been aware that those processes resulted in false arrests prior to Mrs. Milligan’s false arrest.
CONCLUSION
For the reasons discussed herein, the motion for summary judgment filed by the defendant Sinclair Television of Nashville, Inc. will be granted, and the motion for summary judgment filed by the defendant Metropolitan Government of Nashville and Davidson County will be granted in part and denied in part. In addition, the motion to amend filed by the plaintiffs will be granted except with respect to those matters stricken by the court’s April 30, 2009 Order.
An appropriate order will enter.
ORDER
For the reasons expressed in the accompanying memorandum, the motion for summary judgment filed by the defendant Sinclair Television of Nashville, Inc. (Docket No. 155) is GRANTED with respect to all of the plaintiffs’ claims against this defendant.
The motion for summary judgment filed by the defendant Metropolitan Government of Nashville and Davidson County (Docket No. 167) is GRANTED in part and DENIED in part. The motion is granted with respect to the plaintiffs’ claims arising under Tenn.Code Ann. § 40-7-106(a), 40-7-106(b), 40-7-204, 39-16-402, and 39-16-^403, and with respect to their claims of false arrest, invasion of privacy, libel, malicious prosecution, intentional infliction of emotional distress/outrageous conduct, conspiracy, and assault and battery. The motion is denied with respect to the plaintiffs’ Monell claims alleging a failure to train or supervise and their claims of false imprisonment, negligence, and negligent infliction of emotional distress. These claims remain for adjudication, as do the plaintiffs’ claims against the federal defendants under the Federal Tort Claims Act.
Finally, the motion to amend filed by the plaintiffs (Docket No. 139) is GRANTED except with respect to those matters stricken by the court’s April 30, 2009 Order.
It is so Ordered.
Entered this 21st day of July 2009.
Notes
. The federal defendants have also filed a response, although this response does not take any position on the legal arguments but merely attempts to clarify the other parties’ characterizations of certain deposition testimony. (Docket No. 179.)
. Unless otherwise noted, the facts have been drawn from the Plaintiffs' Response to Sinclair's Statement of Undisputed Facts in Support of Motion for Summary Judgment (Docket No. 164), Plaintiffs' Response to Statement of Material Facts Not in Dispute Filed by Defendant Metropolitan Government of Nashville and Davidson County in Support of Motion for Summary Judgment (Docket No. 180), and The Metropolitan Government’s Response to Plaintiffs' Statement of Additional Facts (Docket No. 183), as well as the exhibits, deposition transcripts, and other materials submitted by the parties in support thereof. Defendant Sinclair Television of Nashville, Inc. has objected to the plaintiffs’ response to Sinclair's statement of undisputed facts, arguing that the plaintiffs’ responses are "voluminous, argumentative, and elusive” and, thus, do not constitute a response in conformity with the applicable local rule. (Docket No.
. The other plaintiff is Harold Montgomery Milligan, Mrs. Milligan’s husband.
. The capias is the document that authorized the arrest of Ms. Milligan/Staps, although the parties appear to use the terms "warrant” and “capias” interchangeably.
. Deputy Marshal Koback originally testified that he believed that he sent the later list he received from Sargent Bourk to the T.B.I., and the plaintiffs rely on that testimony in disputing Metro's assertion that Deputy Marshal Koback mistakenly sent the earlier list to the T.B.I. However, the fact that the earlier list contained Mrs. Milligan’s name while the later list did not, coupled with the fact that the list that Deputy Marshal Koback actually forwarded to the T.B.I. contained Mrs. Milligan's name, demonstrates that Deputy Marshal Koback could not possibly have forwarded the later list to the T.B.I., as he testified. Moreover, Deputy Marshal Koback has acknowledged that his initial testimony was mistaken and has submitted an affidavit to this effect. (Docket No. 179 at 2-3; Docket No. 179-1.)
. As detailed in a previous ruling issued by this court in this case (Docket No. 84), as part of its process, the T.B.I. conducted searches of various databases for identifying information and a criminal record check that revealed that Mrs. Milligan had no criminal record on the national crime database, no outstanding warrants, and no local warrants. This information was entered into a worksheet, which was placed in the arrest file. The worksheet also contained a section asking whether or not the warrant for the individual in question had been "confirmed.” This section was left blank.
.Officer Anderson testified that he could not recall whether he had reviewed the arrest file prior to arresting Mrs. Milligan. Further, upon reviewing the information contained in the arrest file during his deposition, he testified that, had he reviewed it at the time, it would have caused him considerable concern as to whether Mrs. Milligan was, in fact, the individual identified in the capias.
. Although the plaintiffs insinuate that the officers were under some obligation to verify Mrs. Milligan's identity based on her and her husband’s insistence that the officers were making a mistake, this argument is unpersuasive, as many arrestees make this claim, and most such claims are false.
. Also in
Nichols,
the court addressed the proper placement of the burden, stating that the burden "rests upon the plaintiff to show defamation and prove damages. He need not show, however, that the statement is false. There is a legal presumption of falsity which the defendant may rebut by proving truth as a defense.”
Nichols,
. Mr. Dunn testified that, at some point on October 24, 2006 while he was accompanying law enforcement officials on Operation Falcon III, he asked Deputy Marshal Shelton "who is it that we're here for and can you
. It is worth noting that the standard for demonstrating actual malice presumes the falsity of the allegedly defamatory statement. In this case, there appear to be serious questions as to whether the allegedly defamatory statements were untrue at all, which not only would undermine the plaintiffs’ argument with respect to actual malice and the application of the fair report privilege, but also would call into serious doubt the plaintiffs’ ability to establish their libel claim if the privilege did not apply. In any case, the court need not address the falsity of the statements, as it finds that there is no issue of fact with respect to actual malice in any event and that, therefore, the fair report privilege applies.
. Representatives of Fox 17/Sinclair have stated that they took efforts, in good faith, to remove the report from the website as soon as Mrs. Milligan's attorney notified them that Mrs. Milligan had been falsely arrested. (Docket No. 155-2 (Smith Aff. ¶¶ 23-26; Kordalski Aff. ¶¶ 6-12).) They further stated that, as of November 3, 2006, the report could no longer be accessed from any link on the Fox 17/Sinclair website. (Docket No. 155-2 (Smith Aff. ¶ 25; Kordalski Aff. ¶¶ 8-10).) However, after Mrs. Milligan's attorney again contacted Fox 17/Sinclair on November 13, 2006 and alerted them that she could still access the report by searching for specific terms on the Fox 17/Sinclar website, Fox 17/Sinclair discovered certain additional files relating to the report, at which time those files were also removed. (Docket No. 155-2 (Smith Aff. ¶¶ 30-31; Kordalski Aff. ¶¶ 13-17).)
. In contrast to a failure to train or supervise claim, where a plaintiff seeks to establish a
Mone.ll
claim by demonstrating that the municipality had a custom of tolerance or acquiescence of constitutional violations, the plaintiff must provide evidence of (1) a clear and persistent pattern of rights violations; (2) notice or constructive notice of this pattern on the part of the municipality; (3) the municipality's deliberate indifference; and (4) a causal link between the municipality's failure to act and the alleged constitutional violation.
Thomas,
. As discussed above,
see
note 5
supra,
Deputy Marshal Koback’s initial testimony regarding which list he sent to the T.B.I. is at odds with the facts — that is, because Mrs. Milligan’s name was on the list sent to the T.B.I., Deputy Marshal Koback could not possibly have sent the T.B.I. the later list that he received from Sargent Bourk, as he testified. Deputy Marshal Koback himself has acknowledged that this was the case and that his initial testimony was likely based on an erroneous recollection. (Docket No. 179 at 2-3;
. At her deposition, Ms. White acknowledged that she could not have obtained the capias and reviewed it prior to providing verification to Officer Anderson, given the short period of time that elapsed on the recording of the radio call. (Docket No. 180-9 at 48-49.) She surmised, however, that another officer was working in the Warrants Division that day and “helping” her by pulling the original capiases and warrants, reviewing them, and relaying verification to her, which she then passed along by radio to the requesting officer.
(Id.
at 34-36, 47-49,
12-Til)
However, Ms. White could not recall who it was that ostensibly retrieved the capias for her and there is no evidence whatsoever to corroborate her seemingly self-serving assertion that someone else was working in the Warrants Division on the day of Mrs. Milligan's arrest. Moreover, even crediting her testimony that she had assistance from an officer in obtaining and reviewing the capias, this explanation still does not account for the
. The parties do dispute, however, whether Officer Anderson should have known, based on the fact that only a few seconds elapsed between his request and Ms. White’s verification, that Ms. White had not retrieved and reviewed the original capias before providing verification. (Docket No. 183 ¶ 13.) Metro points out that, in the event of a pre-planned arrest operation, radio operators often ''pull” warrants in advance so that the warrants are at hand when an officer radios in for verification. Thus, Metro argues that Officer Anderson would not necessarily have reason to believe that Ms. White had not actually viewed the original warrant before providing verification. In any case, the relevant issue is not what Officer Anderson — or a reasonable officer — should have believed, given the short period of time that it took Ms. White to respond to the request for verification but, rather, whether these facts reflect Metro’s inadequate training and supervision of its employees and its deliberate indifference to a risk of constitutional rights violations.
. In addition, the plaintiffs attempt to argue that Metro’s actions also reflect a failure to investigate on Metro's part. However, the evidence does not bear out such a claim. First, although Mr. Pride was not disciplined for his role in Mrs. Milligan's arrest, the plaintiffs have provided no evidence to counter Captain Roller's testimony that Mr. Pride left his employment before Metro learned of his role and that Metro was, therefore, unable to discipline him. (Docket No. 180-7 at 62, 91.) In addition, the plaintiffs acknowledge that Ms. White was subject to discipline as a result of Mrs. Milligan's arrest. (Docket No. 181 at 15 n. 3.) The plaintiffs argue, however, that Mrs. Milligan's arrest was merely a pretext for discipline and that Ms. White was, in fact, disciplined in retaliation for a grievance she filed against a supervisor. As such, the plaintiffs claim, no one, including Ms. White, was actually disciplined for their role in Mrs. Milligan's arrest. This argument however, constitutes little more than baseless specula- . tion about the circumstances of the discipline to which Ms. White was subject.
. In addition to the errors referenced in the March 22, 2006 memorandum, Sargent Bourk testified that, on several instances, problems in the Warrants Division regarding the servicing of warrants led to police officers "picking up the wrong people.” (Docket No. 180-4 at 37-38.) Likewise, both Mr. Pride and Ms. White testified with respect to mistaken arrests stemming from errors made within the Warrants Department. (Docket No. 180-8 at 38-39, 48-49; Docket No. 180-9 at 38.)
. Metro attempts to argue that these problems were not sufficiently widespread to establish a
Monell
claim. In making this argument, however, Metro draws on the elements required to establish an inaction claim under
Monell,
rather than a failure to train or supervise claim.
Compare Thomas,
. The plaintiffs also alleged claims of libel and invasion of privacy against Metro in Case No. 3:07-cv-1053, although those claims are essentially duplicative of the same claims in Case No. 3:08-cv-0380, and thus the following analysis applies equally to those claims.
. In the complaint, in addition to naming various John Doe defendants who were em