                                          File Name: 06a0557n.06
                                           Filed: August 3, 2006

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                               No. 05-6315

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

ANGELA HENDERSON,

          Plaintiff-Appellant,

v.                                                           ON APPEAL FROM THE
                                                             UNITED STATES DISTRICT
MICHAEL REYDA, TIMOTHY HUTCHISON,                            COURT FOR THE EASTERN
KNOX COUNTY, TENNESSEE, and                                  DISTRICT OF TENNESSEE
HARTFORD INSURANCE COMPANY,

          Defendants-Appellees.


                                                         /

Before:           MARTIN, NORRIS, and McKEAGUE, Circuit Judges

          BOYCE F. MARTIN, JR., Circuit Judge. Angela Henderson appeals a number of the district

court’s decisions in her section 1983 case against Knox County Deputy Sheriff Michael Reyda,

Knox County Sheriff Timothy Hutchison, Knox County the entity, and the Hartford Insurance

Company (as Insurer and Surety for Reyda and Hutchison), including the dismissal of all causes of

action at summary judgment. Henderson’s suit stems from a confrontation between Ms. Henderson

and Deputy Reyda at the Three Ridges Golf Course in Knoxville, Tennessee. Based on the

following, we affirm the dismissal of Henderson’s suit.

                                                    I.

          As the district court stated:
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               This case arises from an incident which occurred on December 30, 2002, at
       the Three Ridges Golf Course in Knox County, Tennessee. Defendant Reyda was on
       patrol as a deputy sheriff with the Knox County Sheriff’s Department. At
       approximately 10:30 p.m. that evening, Reyda saw a pickup truck parked at the
       closed gate of the golf course and became suspicious. The golf course was closed and
       there had apparently been some recent break-ins and vandalism. Reyda approached
       the truck on foot with his flashlight and then climbed over the gate and began
       walking toward the golf course.

               About that time, plaintiff Angela Henderson came running toward the truck
       from the golf course. Reyda questioned her about what she was doing and whether
       she was alone. Henderson told Reyda that she was alone and she was taking a walk.
       Reyda did not believe Henderson’s explanation and asked for her identification. He
       then grabbed her arm in an attempt to escort her back to the truck at which point she
       resisted. At this point, the two versions of the facts diverge. Reyda testified that
       Henderson slapped him on the forehead. Henderson testified that Reyda grabbed her
       sweatshirt hood, dragged her down the hill and then slammed her to the ground.
       However, it is undisputed that Reyda handcuffed Henderson’s arms behind her back,
       walked her to the vehicles, and placed her on the hood of her truck. It is also
       undisputed that Henderson had an object in one of her hands and that Reyda hit her
       hand or her back to force her to release the object, which turned out to be a set of
       keys.

               Henderson claims she was taken to the Knox County Detention Facility and
       held for over nine hours before she was released on bail. [Henderson] was initially
       charged with assault, possession of marijuana, and possession of drug paraphernalia.
       Following a preliminary hearing on March 19, 2003, the Knox County General
       Sessions Court bound the assault charge over to the Grand Jury and the drug charges
       were dismissed. [Henderson] was indicted by the Grand Jury for assault on Officer
       Reyda and criminal trespass. Following a jury trial on December 15 and 16, 2003,
       in the Knox County Criminal Court, Henderson was acquitted of the criminal charges
       against her.

Dist. Ct. Opn. of June 13, 2005 at 2-3 (footnote omitted).

       Henderson filed this action on December 29, 2003 against Knox County, Tennessee and

against Sheriff Hutchison and Deputy Reyda in both their official and individual capacities. Reyda

and Knox County moved for summary judgment on March 11, 2005. On June 13, 2005, the district

court granted summary judgment in favor of Reyda and Knox County on Henderson’s federal
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claims. Lacking supplemental jurisdiction from those federal claims, the district court remanded her

remaining state law claims to state court. Henderson filed motions with the district court for relief

from judgment, to amend the complaint, and for disqualification of the district judge for his reliance

on extra-judicial personal knowledge. The district court denied each of these motions. Henderson

filed her timely appeal to this Court on August 10, 2005.

                                                  II.

A. Dismissal of the Fourth Amendment excessive force claim

       Henderson appeals the district court’s decision to fail to construe her complaint as having

pled a section 1983 claim for excessive force. The district court did so in a footnote:

       The Court notes that, while the facts set forth in the complaint could possibly be
       construed to allege a § 1983 claim for excessive force, the plaintiff has not pled such
       a claim, nor does she characterize her case as including such a claim in her
       responsive pleadings to the pending dispositive motions. The Court must assume that
       the 21 claims asserted by plaintiff were deliberately chosen by her and her counsel,
       who is experienced in such matters, and the Court will accordingly decline to
       construe the complaint as asserting a claim not pled. See Fed. R. Civ. P. 8(a).

Dist. Ct. Opn. of 6/13/2005 at 7 n.3.

       This Court reviews a dismissal for failure to state a claim de novo. Kottmyer v. Maas, 436

F.3d 684, 688 (6th Cir. 2006). Rule 12(b)(6) permits a district court to dismiss a plaintiff’s

complaint for “failure to state a claim upon which relief can be granted.” Under Rule 12(b)(6) “a

complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering whether to grant a defendant’s motion

to dismiss pursuant to Rule 12(b)(6), a district court must accept as true all the allegations contained
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in the complaint and construe the complaint liberally in favor of the plaintiff. Miller v. Currie, 50

F.3d 373, 377 (6th Cir. 1995). A district court need not, however, accept as true legal conclusions

or unwarranted factual inferences. Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000).

       In Henderson’s initial complaint, she listed three federal claims in Counts Fifteen, Sixteen,

and Seventeen. None of these three claims specifically enumerate a section 1983 claim based on

excessive force. However, Henderson argues that in Count Fifteen, covering “Fifth and Fourteenth

Amendment Due Process of Law,” she sufficiently pled an excessive force claim by accusing Reyda

of using “unlawful force against [Henderson] and violat[ing] [Henderson’s] clearly established rights

guaranteed him [sic] pursuant to Fifth and Fourteenth Amendments to the United States

Constitution.” Based on this assertion, we hold that the district court did not err in failing to

construe the pleadings as Henderson requests based on that language.

B. Summary Judgment Standard

       This Court reviews a district court’s decision to grant summary judgment de novo. Bennett,

410 F.3d at 817. Summary judgment is only appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). “The burden is generally on the moving party to show that no

genuine issue of material fact exists, but that burden may be discharged by ‘showing -- that is,

pointing out to the district court -- that there is an absence of evidence to support the nonmoving

party’s case.’” Bennett, 410 F.3d at 817 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)). “In reviewing a summary judgment motion, credibility judgments and weighing of the
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evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the

non-moving party.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “Thus,

the facts and any inferences that can be drawn from those facts, must be viewed in the light most

favorable to the non-moving party.” Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)).

C. Henderson’s Due Process Claim

       The district court granted summary judgment in favor of Reyda on Henderson’s due process

claim. The district court’s reasoning was that Henderson had no procedural or substantive due

process claim because the alleged injuries against her should be construed under the Fourth

Amendment, not the Fourteenth Amendment’s due process clause.              “[A]ll claims that law

enforcement officers have used excessive force – deadly or not – in the course of an arrest,

investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’

approach.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). In this case,

Henderson’s due process claim was based on Reyda’s “unlawful force” and, therefore, must be

analyzed under the Fourth Amendment rather than the Fourteenth Amendment.

               While excessive force claims are often best analyzed under the Fourth
       Amendment’s protection against unreasonable seizures, Graham v. Connor, 490 U.S.
       386, 394 (1989), the Supreme Court has recently cautioned that not “all
       constitutional claims relating to physically abusive government conduct must arise
       under either the Fourth or Eighth Amendments[.]” United States v. Lanier, 520 U.S.
       259, 272 n.7 (1997). Instead, the Court noted that “Graham simply requires that if
       a constitutional claim is covered by a specific constitutional provision, such as the
       Fourth or Eighth Amendment, the claim must be analyzed under the standard
       appropriate to that specific provision, not under the rubric of substantive due
       process.” Id. Thus, while the Fourth Amendment “objective reasonableness”
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       analysis should be used in excessive force cases involving searches and seizures,
       where there is no search or seizure, the Supreme Court has held that the substantive
       component of the Fourteenth Amendment's due process clause is the most
       appropriate lens with which to view an excessive force claim. County of Sacramento
       v. Lewis, 523 U.S. 833, 843-44 (1998).

Darrah v. City of Oak Park, 255 F.3d 301, 305-06 (6th Cir. 2001) (emphasis added).

       Based on this Court’s holding in Darrah, the district court failed to address the question of

whether Henderson’s claim arose out of a search or seizure. Despite this oversight, the district

court’s outcome was ultimately correct.      This case clearly stems from Reyda’s seizure of

Henderson’s person while investigating potential criminal acts. Therefore, Henderson’s substantive

due process claim must be analyzed under the Fourth Amendment’s “objective reasonableness”

standard. See Graham, 490 U.S. 386. We believe the district court was correct in dismissing

Henderson’s claims as separate due process violations under the Fifth and Fourteenth Amendments.

The claims Henderson brought against Reyda involving “unlawful force” or “excessive force”

should be analyzed under the Fourth Amendment as instructed by Graham v. Connor. However,

as stated above, Henderson did not plead or argue to the district court that Reyda’s use of force

violated her Fourth Amendment right to be free from unreasonable seizure.

D. Henderson’s Unlawful Arrest and Seizure Claim

       The district court dismissed Henderson’s section 1983 suit against Reyda for unlawful arrest

and seizure based on collateral estoppel on the issue of probable cause. A preliminary hearing was

held during Henderson’s criminal trial for assault, and the court found that Reyda had probable

cause to arrest Henderson for assault based on Henderson striking Reyda after Reyda had grabbed
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her arm. The district court held that such a finding collaterally estopped Henderson’s 1983 suit for

unlawful arrest because if there was probable cause for the arrest, the arrest was therefore legal.

       After reviewing the decision of the district court, we hold that the district court’s dismissal

based on collateral estoppel was correct and any further discussion on this issue would be

duplicative of the analysis conducted by the district court.1

E. Henderson’s Equal Protection Claim

       Henderson asserts a claim of a violation of the Equal Protection clause based on Reyda’s

failure to follow T.C.A. § 40-7-118(b)(1). That Tennessee law states “[a] peace officer who has

arrested a person for the commission of a misdemeanor committed in such peace officer’s presence

. . . shall issue a citation to such arrested person to appear in court in lieu of the continued custody

and the taking of the arrested person before a magistrate.” T.C.A. § 40-7-118(b)(1).        Henderson

claims she was not provided equal protection under this Tennessee statute and, therefore, brings a

section 1983 suit.

       The district court, however, dismissed Henderson’s claim because section 1983 requires

some constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Henderson argues on

appeal that section 1988 expands the scope of section 1983 beyond those rights protected in the

Constitution to encompass any civil rights violation protected by state statute as well. The district

court addressed this argument in its opinion:



       1
        Henderson also argues in her brief that the district court erred in dismissing her malicious
prosecution claim based on collateral estoppel. It does not appear from her original complaint that
she pled malicious prosecution. Additionally, the district court did not refer to a malicious
prosecution claim in its discussion of collateral estoppel.
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        Finally, with respect to plaintiff’s argument that 42 U.S.C. § 1988 provides a federal
        remedy for violation of plaintiff’s rights pursuant to Tennessee law, it is well settled
        that § 1988 does not create federal causes of action for violation of civil rights. Moor
        v. County of Alameda, 411 U.S. 693, 703-704 (1973) (“we do not believe that the
        section [1988], without more, was meant to authorize the wholesale importation into
        federal law of state causes of action”); Monell [v. Department of Social Servs. of City
        of N.Y.], 436 U.S. [658] at 701 n.66 (“42 U.S.C. § 1988 cannot be used to create a
        federal cause of action where § 1983 does not otherwise provide one”); Hall v.
        Wooten, 506 F.2d 564, 568 (6th Cir. 1974) (“section 1988 does not create federal
        causes of action for violation of civil rights”).

Dist. Ct. Opn. of June 13, 2005 at 11-12.

        Henderson’s brief argues that the question of whether 1988(a) expands state civil rights laws

to a federal cause of action is one of first impression before this Court. Contrary to Henderson’s

argument, section 1988(a) only speaks to damages brought under an already valid section 1983

claim. Therefore, Henderson’s claim must first survive as a 1983 claim before 1988 becomes

relevant. Under the Equal Protection clause, states may not make distinctions which either burden

a fundamental right, target a suspect class, or intentionally treat one differently from others similarly

situated without any rational basis for the difference. Vacco v. Quill, 521 U.S. 793, 799 (1997).

Henderson has failed to show how her situation fits in any of these categories. Henderson is arguing

that she has a fundamental right to be served with a citation rather than subject to a full arrest for a

misdemeanor. There is no basis in federal law for this argument without some showing that it is

discriminatorily enforced, which Henderson has not made.

        Fundamental rights are “the basic civil rights of man.” Skinner v. Oklahoma, 316 U.S. 535

(1942). These rights include the right to procreate, id., the right to vote, Harper v. Virginia Bd. of

Elections, 383 U.S. 663 (1966), access to the judicial process, see, e.g., Boddie v. Connecticut, 401

U.S. 371 (1971), and the right to interstate travel, Shapiro v. Thompson, 394 U.S. 618 (1969). While
No. 05-6315
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the Supreme Court has recognized that “[t]he [Fourth] Amendment protects the fundamental ‘right

of the people to be secure in their persons, houses, papers, and effects,’ against all official searches

and seizures that are unreasonable,” Arizona v. Evans, 514 U.S. 1, 18 (1995) (Stevens, J. dissenting)

(quoting U.S. CONST. amend. IV), this fundamental right has not been expanded to a choice of

written citation rather than full arrest once the officer has probable cause to make that arrest.

Therefore, we affirm the district court’s decision, dismissing Henderson’s claim under the Equal

Protection clause.

F. Henderson’s Claims against Knox County

       The district court also granted summary judgment in favor of Knox County as to all of

Henderson’s causes of action against the county for two reasons. First, because the district court had

dismissed all of Henderson’s underlying actions against Officer Reyda, she could not succeed

against the entity employing Reyda, Knox County, for his actions. City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986) (“neither Monell. . . nor any other of our cases authorizes the award of

damages against a municipal corporation based on the actions of one of its officers when in fact the

jury has concluded that the officer inflicted no constitutional harm.”). Second, the district court held

that Henderson failed to demonstrate a policy or custom of Knox County which led to the

unconstitutional conduct, a requirement for a section 1983 suit against an entity. Monell, 436 U.S.

at 691. Because we have affirmed the district court’s decision in dismissing Henderson’s underlying

federal claims against Reyda, we are compelled to affirm its decision dismissing the claims against

Knox County as well. Therefore, we need not address the question of whether Henderson failed to

demonstrate a policy or custom which led to the unconstitutional conduct.
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G. Evidentiary and Procedural Issues

        Henderson raised on appeal a number of evidentiary and procedural issues which she felt

were wrongly decided by the district court. Because we have affirmed the district court’s dismissal

of all of Henderson’s federal claims, these remaining issues are best left to the discretion of the state

court, as the district court has declined to grant supplemental jurisdiction in this action.

                                                  III.

        Based on the discussion above, we affirm the district court’s decision dismissing all of

Henderson’s federal claims in this action. Without these causes of action, the federal courts no

longer have jurisdiction over this dispute and, therefore, we REMAND her remaining state claims

to Tennessee state court.2




        2
          There was a pending motion before this Court filed by Timothy Hutchison and the Hartford
Insurance Company to dismiss them as appellees in this matter. Because we have affirmed the
district court, that motion is now moot.
