                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    October 8, 2009 Session

 MICHAEL J. CALDERONE v. GLENN CHRISMAN, CHIEF OF POLICE,
       INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY, THE
    MURFREESBORO CITY POLICE DEPARTMENT, THE CITY OF
 MURFREESBORO, TRUMAN JONES, SHERIFF, INDIVIDUALLY, AND
   IN HIS OFFICIAL CAPACITY, RUTHERFORD COUNTY SHERIFF
     DEPARTMENT, AND RUTHERFORD COUNTY, TENNESSEE

                    Appeal from the Circuit Court for Rutherford County
                         No. 50207 Larry B. Stanley, Jr., Judge



                  No. M2009-00328-COA-R3-CV - Filed December 29, 2009


This appeal involves § 1983 claims against a county and its sheriff on the basis of injuries allegedly
sustained by the plaintiff while in the custody of the sheriff’s department. We conclude that the trial
court erred in denying the sheriff’s motion for summary judgment in his individual capacity because
the plaintiff did not produce any evidence to rebut the sheriff’s testimony that he had no involvement
in or knowledge of the events in question. We further conclude that the trial court erred in denying
the county’s motion for summary judgment because there was no evidence of any causal connection
between a county policy or custom and the plaintiff’s alleged injuries.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

ANDY D. BENNETT , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.

D. Randall Mantooth, Nashville, Tennessee, for the appellants, Truman L. Jones, Jr. and Rutherford
County, Tennessee.

James D.R. Roberts, Jr., Janet L. Layman, and Henry H. Carpenter, Jr., Nashville, Tennessee, for the
appellee, Michael J. Calderone.
                                                      OPINION

                                  FACTUAL AND PROCEDURAL BACKGROUND

        Michael Calderone was a passenger in a car pulled over by officers of the Murfreesboro
Police Department on the evening of June 7, 2003. Mr. Calderone admits that he and the driver had
drunk “a bunch of beer” before they were pulled over. The driver was detained for suspected driving
under the influence. After checking Mr. Calderone’s background information, the officers detained
him on an outstanding capias warrant and placed him in the patrol car. On the way to the county jail,
the patrol car collided with a car parked in an area designated for traffic. According to Mr.
Calderone, he sustained serious injuries as a result of this collision. Emergency medical personnel
were called and took Mr. Calderone to the hospital for treatment.

        After receiving treatment at the hospital, Mr. Calderone was transported to the county jail,
where he went through booking and was placed in a holding cell with other detainees. It is
undisputed that Mr. Calderone was still intoxicated. He and another detainee got into an altercation
in the holding cell, and several officers intervened to separate the two men. A struggle ensued
involving Mr. Calderone and detention officers.1 The officers moved Mr. Calderone to another cell,
where he alleges that someone behind him violently pushed his head into a protruding corner,
resulting in injuries to his head. Mr. Calderone was then returned to the hospital for medical
treatment. He stayed in the county jail for 75 days.

       On May 28, 2004, Mr. Calderone filed this lawsuit against Glenn Chrisman, the
Murfreesboro chief of police, individually and in his official capacity; the Murfreesboro police
department; the city of Murfreesboro; Truman Jones, the sheriff, individually and in his official
capacity; the Rutherford County sheriff’s department; and Rutherford County. In count I of his
complaint, Mr. Calderone alleged negligence on the part of the officers driving the police patrol car
and the other defendants vicariously.2 In count II, Mr. Calderone asserted claims under 42 U.S.C.
§ 1983 on grounds that he “received personal injuries, was kept in custody for a period of time not
substantiated by the charges against him, was denied appropriate medical treatment for his injuries
and was assaulted and abused by both other detainees and employees of the Murfreesboro Police
Department and Rutherford County Sheriff Department.” All of the defendants filed answers
denying liability in August 2004. In March 2006, the city defendants filed an amended answer
giving more specific grounds for their denial of liability.

       The parties engaged in discovery, and on November 20, 2008, Sheriff Jones, the sheriff’s
department, and the county filed a motion for summary judgment supported in part by an affidavit
by Sheriff Jones. The trial court entered an order on January 9, 2009, in which it found that Sheriff
Jones in his official capacity and the sheriff’s department were “superfluous defendants” and


       1
           One of the officers filed assault charges against Mr. Calderone.

       2
           Count I does not make allegations with respect to the sheriff or the county and is not involved in this appeal.

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dismissed the claims against them. The court concluded that summary judgment would be
“premature and improper” as to Sheriff Jones individually and the county because there remained
genuine issues of material facts in dispute. Therefore, the court overruled the motion for summary
judgment with respect to the county and the sheriff in his individual capacity.

        Sheriff Jones filed a notice of appeal as of right under the collateral rule doctrine. See Fann
v. Brailey, 841 S.W.2d 833, 835 (Tenn. Ct. App. 1992). Rutherford County sought and received
permission from the trial court to seek an interlocutory appeal. This court granted the county’s
application for an interlocutory appeal and ordered that the sheriff’s and county’s appeals be
consolidated. On appeal, Sheriff Jones and Rutherford County argue that the trial court erred in
denying their motion for summary judgment. They further request that this court direct the entry of
final judgment pursuant to Tenn. R. Civ. P. 54.02 with respect to the plaintiff’s claims against them.

                                       STANDARD OF REVIEW

         In reviewing a summary judgment, this court must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisified. Hunter v. Brown, 955 S.W.2d 49, 50
(Tenn. 1997). The party seeking summary judgment bears the burden of demonstrating that no
genuine disputes of material fact exist and that the party is entitled to judgment as a matter of law.
Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). We must take the strongest legitimate view of
the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party,
and discard all countervailing evidence. Id.; Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).
If there is a dispute as to any material fact or if there is any doubt as to the existence of a material
fact, summary judgment cannot be granted. Byrd, 847 S.W.2d at 211; EVCO Corp. v. Ross, 528
S.W.2d 20, 25 (Tenn. 1975). To shift the burden of production to the nonmoving party who bears
the burden of proof at trial, a moving party must negate an element of the opposing party’s claim or
“show that the monmoving party cannot prove an essential element of the claim at trial.” Hannan
v. Alltel Publ’g Co., 270 S.W.3d 1, 9 (Tenn. 2008).

                                              ANALYSIS

       We will examine the liability of the sheriff and the county separately as the claims against
them present somewhat different issues.

                                             Sheriff Jones

        Mr. Calderone’s complaint does not allege and there is no evidence of any direct involvement
by Sheriff Jones in the alleged acts of misconduct by the sheriff’s department. His § 1983 action
against Sheriff Jones is based on supervisory liability.

        Caselaw has established that the liability of supervisory personnel under 42 U.S.C. § 1983
cannot be based solely upon respondeat superior or the right to control one’s employees. Hays v.
Jefferson County, 668 F.2d 869, 872 (6th Cir. 1982) (citing Monell v. Dept. of Soc. Servs., 436 U.S.


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658, 694 n.58 (1978), and Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). Rather, a plaintiff “must
allege and demonstrate that the official at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct of the employee.” Luckett v. Turner, 18 F. Supp. 2d 835,
838 (W.D. Tenn. 1998) (citing Hays, 668 F.2d at 874). In this case, Sheriff Jones submitted an
affidavit expressly denying any knowledge of the events in question as well as any training that
might have led to the alleged improprieties. The affidavit states, in part, as follows:

       I have never acquiesced in, condoned, or encouraged any employee of the Rutherford
       County Adult Detention Center to keep Mr. Calderone in custody for a period of time
       not substantiated by the charges against him, to deny him appropriate medical
       treatment for his injuries, to allow other detainees 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;

In his deposition testimony, Mr. Calderone acknowledged that he had no knowledge of any
involvement in or knowledge by Sheriff Jones with respect to the relevant events:

              Q. Anyway, do you have any knowledge that would suggest that Sheriff
       Jones was personally aware of anything in connection with how the guards treated
       you that night?

               A. At the time, no, I don’t think he had anything to do with it.
               ...

              Q. As far as you claim that the medical staff did not provide you with
       appropriate medical treatment, are you aware of anything to indicate that [Sheriff
       Jones] was aware of that at the time it was going on?

               A. No.

               Q. Okay.

               A. Or he might not have been told. He wasn’t aware of it.
               ...

              Q. Are you aware, though, whether the sheriff indeed had any knowledge of
       you being kept in the jail longer than you claim you should have been kept there?

               A. That there, I don’t know.

        On appeal, Mr. Calderone argues that there is evidence in conflict with Sheriff Jones’s
affidavit because Joanne Patricia LeCroy, an officer with the Rutherford County Sheriff’s
Department, testified in her deposition that she took out a warrant against Mr. Calderone that night


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for injuries he allegedly inflicted upon her. According to Mr. Calderone’s reasoning, this warrant
“placed or should have placed Sheriff Jones on notice of the facts surrounding the incident,” thereby
requiring him to investigate the propriety of his officers’ actions. Even if Sheriff Jones learned of
the incident involving Mr. Calderone and his officers shortly after the events occurred, we know of
no basis upon which this knowledge would subject him to § 1983 liability since such facts do not
reflect any prior knowledge of or acquiescence in the actions of the officers.

        The disputed facts relied upon by Mr. Calderone are not material to the § 1983 claim against
Sheriff Jones. The sheriff negated an essential element of Mr. Calderone’s claim, namely the
sheriff’s knowledge of or acquiescence in the incidents in question, so the burden of production
shifted to Mr. Calderone, who failed to produce any countervailing evidence. The undisputed facts
provide no basis for supervisory liability, and the trial court erred in failing to grant Sheriff Jones’s
motion for summary judgment. Because of this conclusion, we need not address Sheriff Jones’s
argument that he was also entitled to summary judgment on the basis of qualified immunity.

                                                County

        A county can be liable under § 1983 if the plaintiff has been deprived of a constitutional right
and the county is responsible for that violation. Doe v. Claiborne County, 103 F.3d 495, 505-06 (6th
Cir. 1996). The county’s responsibility cannot be based upon a theory of respondeat superior.
Monell, 436 U.S. at 691. Rather, the plaintiff must prove that “a municipal policy or policy of
inaction was the moving force behind the violation.” Memphis, Tenn. Area Local, Am. Postal
Workers Union v. City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004) (citing City of Canton v.
Harris, 489 U.S. 378, 379 (1989)). Thus, a county can be subject to § 1983 liability “when
execution of a government’s policy or custom . . . inflicts the injury.” Monell, 436 U.S. at 694.

       The complaint in this case does not specifically allege a county policy or custom as a cause
of Mr. Calderone’s injuries. In his affidavit, Sheriff Jones testified that the county gave its
employees appropriate training with regard to the protection and care of detainees:

        The Rutherford County Adult Detention Center trains its employees to use the least
        amount of force necessary to maintain control of detainees at the Rutherford County
        Adult Detention Center, to protect detainees from assaults by other detainees, to see
        that injured employees receive appropriate medical treatment in a timely manner, and
        to avoid keeping detainees in custody any longer than required by court order. To my
        knowledge, there was no custom, pattern, policy, or practice on or around June 7,
        2003, that would have resulted in Mr. Calderone being kept in custody at the
        Rutherford County Adult Detention Center for a period of time not substantiated by
        the charges against him, being denied appropriate medical treatment for his alleged
        injuries, being assaulted and abused by other detainees, or being assaulted and abused
        by employees of the Rutherford County Sheriff’s Department.




                                                  -5-
When asked in interrogatories about any applicable county custom or policy, Mr. Calderone stated
only that he was denied appropriate medical care and was held in custody for too long. In his
response to the county’s statement of material facts, Mr. Calderone stated that he had “no knowledge
as to the existence or non-existence of any custom, pattern, policy, or practice in place on or around
June 7, 2003.” He further asserted that “the facts would strongly indicate that a custom or pattern
of abuse was present on that date.” On appeal, Mr. Calderone emphasizes that, despite significant
injuries from the car accident, he was placed in a holding cell with other detainees. He argues that
he “suffered a second set of injuries [after the car accident] as a result of Rutherford County’s
deliberate indifference to his previously injured condition, as well as the intentional and violent acts
of its officers.”

         A county’s “deliberate indifference” to the rights of persons with whom its employees come
into contact can, in certain circumstances, constitute a “custom” for purposes of § 1983 liability.
City of Canton, 489 U.S. at 388. Under § 1983, a 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 691. Municipal
liability attaches only when “a deliberate choice to follow a course of action is made from among
various alternatives” by city or county policymakers. City of Canton, 489 U.S. at 389 (quoting
Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)). Thus, inadequate training must
amount to a county policy. Id. This could occur when “the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the
policymakers . . . can reasonably be said to have been deliberately indifferent to the need.” Id. at
390. In this case, there is no evidence of any previous problems with assaults or inadequate medical
care involving county detainees and no evidence of inadequate training to which county officials
were deliberately indifferent.

       Although Mr. Calderone argues that genuine issues of material fact remain, we find none.
The county, through Sheriff Jones’s affidavit, shifted the burden to Mr. Calderone to produce some
evidence of a relevant county policy or custom, and Mr. Calderone produced no facts indicating that
the county had any policy or custom that caused the alleged injuries. The trial court erred in denying
Rutherford County’s motion for summary judgment.

       We decline the appellants’ request to direct the trial court to enter a final judgment pursuant
to Rule 54.02 but will leave that issue for determination by the trial court.

                                            CONCLUSION

       We reverse the trial court’s denial of summary judgment to Sheriff Jones in his individual
capacity and to Rutherford County. Costs of appeal are assessed against Mr. Calderone, for which
execution may issue if necessary.

                                                        ___________________________________
                                                        ANDY D. BENNETT, JUDGE



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