               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0247n.06

                                       Case No. 13-5493
                                                                                      FILED
                                                                                 Apr 01, 2014
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JACQUELINE KEY,                                    )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
SHELBY COUNTY,                                     )       TENNESSEE
                                                   )
       Defendant-Appellee.                         )
                                                   )
                                                   )


BEFORE: BATCHELDER, Chief Judge; SILER and CLAY, Circuit Judges.

       SILER, Circuit Judge. Jacqueline Key brought suit pursuant to 42 U.S.C. § 1983

against Shelby County alleging that the Shelby County Sheriff’s Office (the “SCSO”) and its law

enforcement officers violated her Fourth Amendment rights when they executed a search warrant

in her home. The district court denied her leave to file a sur-reply to Shelby County’s motion for

summary judgment and then granted Shelby County summary judgment on all claims. Key

appeals both decisions. For the reasons that follow, we AFFIRM the rulings of the district court.

                                       BACKGROUND

       After receiving information that Teska Key, Jacqueline Key’s husband, was a distributor

of marijuana in the Memphis area, SCSO deputies lawfully stopped his vehicle in 2008. Upon

questioning from the SCSO deputies, Teska admitted to transporting five pounds of marijuana in
Case No. 13-5493, Key v. Shelby County


the trunk of his vehicle and consented to a search of the vehicle. The officers found the

marijuana, arrested Teska, and, based on his arrest, obtained a state warrant to search his home.

       A number of SCSO deputies, including Lieutenant J. Setliff and Lieutenant Reginald

Hubbard, arrived at the Key residence that same day to execute the warrant, using a key Teska

provided to enter when no one answered the door. They found two minor children inside and

removed them from the residence during the search.           The officers seized marijuana, drug

paraphernalia, devices used to assist in selling drugs, cash, and a handgun. Later, Jacqueline Key

arrived at the residence to check on her children and informed detectives that she understood

they were searching the house because of her husband’s drug activities.

       Key alleges that SCSO deputies ransacked and damaged her home during the search, and

claims that the officers ate her food, drank her beverages, and played with her sex toys. Shelby

County, through the affidavits of Lt. Setliff and Lt. Hubbard, contests these allegations. Key

further alleges that the officers herded her children out of the home and forced them to wait in

the cold weather in what amounted to excessive force, intimidation, mistreatment and arrest.

Shelby County argues that removing the children from the home was lawful and appropriate

under the circumstances. Finally, Key’s affidavit states that SCSO deputies removed $17,775 in

cash from her home, rather than the $9,155 reported on the return of warrant.

       Key, acting pro se, sued Shelby County and a number of SCSO officers in 2009. After

the district court dismissed the individual officers as defendants, counsel for Key filed a notice of

appearance in 2010. On June 8, 2011, Shelby County filed its motion for summary judgment.

Key responded on July 25, 2011, and Shelby County filed its reply on August 22, 2011. Almost

six months later, on February 21, 2012, Key filed a motion for leave to file a sur-reply. On




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Case No. 13-5493, Key v. Shelby County


March 27, 2013, the district court denied Key leave to file a sur-reply and granted Shelby

County’s motion for summary judgment dismissing each of Key’s claims.

                                          DISCUSSION

   A. Denial of the Motion for Leave to File a Sur-reply

       Key first contends that the district court should have granted her leave to file a sur-reply.

We review a denial of a motion for leave to file a sur-reply for abuse of discretion. See Eng’g &

Mfg. Servs., LLC v. Ashton, 387 F. App’x 575, 583 (6th Cir. 2010) (finding that the district court

abused its discretion in denying leave to file a sur-reply); Tanielian v. DaimlerChrysler Corp.,

108 F. App’x 386, 387 (6th Cir. 2004) (holding that the district court did not abuse its discretion

in refusing to consider the sur-reply).

       Key based her motion for leave to file a sur-reply on the fact that when Shelby County

filed its motion for summary judgment, she was unrepresented, but after she obtained counsel

and filed her response, Shelby County presented new evidence in its reply that she wanted to

address. This argument is inaccurate.

       First, when Shelby County filed its motion for summary judgment, Key had been

represented by counsel for nearly a year. Second, while Shelby County attached two affidavits

to its reply brief, it did not offer new evidence or arguments in the filing. Federal Rule of Civil

Procedure 6(c)(2) states that “any affidavit supporting a motion must be served with the motion.”

Accordingly, “reply affidavits that respond only to the opposing party’s brief are properly filed

with the reply brief.” Peters v. Lincoln Electric Co., 285 F.3d 456, 476 (6th Cir. 2002). Shelby

County filed reply affidavits that merely responded to Key’s arguments presented in her response

brief; the affidavits did not supply new evidence material to any of Key’s claims.




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Case No. 13-5493, Key v. Shelby County


        On appeal, Key argues that while the federal rules do not provide for the filing of a sur-

reply, neither do they provide for the filing of a reply, and because she did not oppose Shelby

County’s filing of a reply, she should have been entitled to file a sur-reply. However, the Local

Rules for the Western District of Tennessee do permit the filing of reply briefs without leave of

the court. W.D. TENN. LOCAL R. 56.1(c). And that Key did not oppose Shelby County’s reply

does not translate into a right to file a sur-reply, especially given that filing reply briefs is such a

common practice in civil litigation.

        Although the Federal Rules of Civil Procedure do not expressly permit the filing of sur-

replies, such filings may be allowed in the appropriate circumstances, especially “[w]hen new

submissions and/or arguments are included in a reply brief, and a nonmovant’s ability to respond

to the new evidence has been vitiated.” Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir.

2003). However, as already noted, Shelby County presented no new evidence or arguments in its

reply brief necessitating response.

        Even if the reply did introduce new evidence or arguments, Key’s contention that her

motion for leave should have been granted is incorrect. The district court ultimately ruled that in

the absence of any Federal Rule or Local Rule providing for the filing of a sur-reply, Key’s

unexplained delay of six months in moving for leave to file the sur-reply justified its denial. Key

claims that her motion for leave was not untimely, because the Federal Rules of Civil Procedure

exact no time limitations on the filing of sur-replies. However, as explained in Seay, the district

court must “accord[] an adequate opportunity to respond to the new evidence presented with [the

moving party’s] reply briefs.” Id. at 481. Seay only mandates that the district court provide an

adequate opportunity to respond, not an indefinite opportunity to respond. The district court

waited six months to deliver its decision on the motion, leaving Key plenty of time to file her




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Case No. 13-5493, Key v. Shelby County


motion for leave. Considering the amount of time that passed between Shelby County’s filing of

its reply brief and Key’s filing of her motion for leave to file a sur-reply, the district court did not

abuse its discretion in denying the motion.

   B. Grant of Motion for Summary Judgment

       Key’s second claim of error on appeal concerns the grant of summary judgment in favor

of Shelby County. We review the district court’s summary judgment grant de novo, and apply

the same standards for summary judgment as the district court. Sharp v. Aker Plant Servs. Grp.,

Inc., 726 F.3d 789, 796 (6th Cir. 2013).

       In order to hold a municipal entity like Shelby County liable for constitutional

deprivations under 42 U.S.C. § 1983, the court must determine “(1) whether [Key’s] harm was

caused by a constitutional violation, and (2) if so, whether [Shelby County] is responsible for

that violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). To prove that

Shelby County is responsible for the alleged violations, Key must “(1) identify the municipal

policy or custom, (2) connect the policy to [Shelby County], and (3) show that [her] particular

injury was incurred due to the execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th

Cir. 2003). In sum, Key must connect the alleged constitutional violations to an official SCSO

policy or custom. See Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691 (1978).

       Key alleges the following constitutional violations: (1) SCSO conducted an unlawful

search of her home pursuant to a defective warrant; (2) SCSO deputies herded her minor children

outside and forced them into the cold weather, which constituted excessive force, intimidation,

mistreatment, and arrest; and (3) SCSO deputies ransacked her home, ate her food, drank her




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Case No. 13-5493, Key v. Shelby County


beverages, and played with her sex toys.1 Key alleges that two different official policies or

customs caused her injuries. First, she asserts that SCSO failed to adequately supervise the

actions of its officers in implementing proper and non-abusive search and arrest procedures. A

failure to supervise claim can constitute an official policy or custom where the failure to

supervise amounts to deliberate indifference. See Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241,

1246–48 (6th Cir. 1989). In her complaint, Key claims that this SCSO policy or custom exhibits

deliberate indifference to abusive tactics regarding the search, arrest, and treatment of black

citizens. Second, in her reply brief filed before this court, Key implies that SCSO had an official

policy of permitting a deputy, who had been the subject of a federal investigation into illegal

conduct concerning official raids and searches, to participate in searches despite awareness that

he was under investigation.2

       The district court ruled that Key failed to identify a municipal policy or custom that was

the “moving force behind the alleged violations,” other than that Shelby County employed

alleged violators, and municipal entities cannot be held liable on a respondeat superior theory.

Monell, 436 U.S. at 691, 694. Key’s response to the district court’s conclusions is incomplete.

She argues on appeal that genuine issues of material fact exist concerning whether and for how

long SCSO was aware that a deputy, who was convicted for violating a detainee’s rights, was

participating in searches and arrests, and whether and to what extent SCSO officers ransacked

1
  We question whether any of these satisfies the first element of municipal liability, in that Key
fails to establish that SCSO officers committed these acts and that each rises to the level of a
constitutional violation under these circumstances. Indeed, nothing in Key’s affidavit even
purports to be based on her personal knowledge. Nevertheless, because we find that Key cannot
link the alleged constitutional violations to an official SCSO policy or custom, we decline to
analyze these issues.
2
  We acknowledge that it is unclear whether Key presents this policy for the first time on appeal.
However, the district court addressed the investigation into the deputy in its opinion, suggesting
that it, and perhaps the parties, read Key’s affidavit as making such an argument. Accordingly,
we address the policy here.


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Case No. 13-5493, Key v. Shelby County


her home. She claims that the basis for the motion for summary judgment was that she should

not be believed, and that she never actually witnessed the unlawful acts of the deputies.

However, these arguments, even if true, do not overcome the inadequacies in Key’s case: she is

unable to show that Shelby County is responsible for the alleged violations.

       As to the first policy, Key alleges that SCSO failed to supervise the implementation of

proper search and arrest procedures in such a way as to amount to deliberate indifference to the

abusive tactics of deputies regarding their treatment of African Americans. Key offers no

evidence that SCSO deputies exhibited any pattern of behavior wherein they acted unlawfully,

inappropriately, or with deliberate indifference toward African American citizens. See Miller v.

Calhoun Cnty., 408 F.3d 803, 815–16 (6th Cir. 2005) (finding that without evidence of similar

constitutional violations, the plaintiff could not show deliberate indifference, because the county

was not on notice of the danger of those violations); Doe v. Claiborne Cnty., Tenn., 103 F.3d

495, 512–13 (6th Cir. 1996) (holding that because the county was not confronted with a

widespread pattern of constitutional violations, the plaintiff could not show the county’s

deliberate indifference). Key presents virtually no support for this alleged policy other than the

allegation in the complaint that the policy exists; even her affidavit is silent on the issue.

       Moreover, Key cannot show that SCSO failed to supervise its deputies in the proper

implementation of search and arrest procedures.          She presents no evidence to further this

allegation and offers no meaningful response to Shelby County’s defense to this claim that SCSO

official policies in fact teach proper search and arrest techniques. As explained in the affidavits

of E. Wayne Goudy, Commander of the SCSO Narcotics Unit, Lt. Setliff, and Lt. Hubbard,

SCSO implements policies regarding the training and supervision of deputies, including specific

instruction on searches and seizures, and the Narcotics Unit undergoes additional training on the




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Case No. 13-5493, Key v. Shelby County


law governing searches and seizures. The SCSO deputies are subject to frequent evaluations of

their performance and may be disciplined for violations of these policies, including criminal

prosecution where applicable. Key offers no argument to cast doubt on the district court’s

conclusion that SCSO properly supervised its deputies in arrest and search and seizure

procedures. She failed to carry her burden of establishing municipal liability regarding this

policy.

          Turning to the policy of permitting a now-convicted felon deputy to conduct searches,3

Key essentially asserts that SCSO failed to act to prevent the constitutional violations. Under the

“inaction theory,” a plaintiff must show the existence of a clear pattern of unlawful behavior,

notice or constructive notice on the part of the county, the county’s tacit approval of the unlawful

behavior amounting to deliberate indifference and an official policy of inaction, and that the

county’s inaction was the moving force behind the constitutional deprivation. Claiborne Cnty.,

Tenn., 103 F.3d at 508. In her reply brief, Key essentially admits that she is unsure whether this

policy exists; she seeks more time to develop the record and to inquire into how long SCSO

knew of the investigation. This circuit has said that “[a] municipality can be shown to have a

‘custom’ causing constitutional violations, even if that custom was not formally sanctioned,

provided that the plaintiff offers proof of policymaking officials’ knowledge and acquiescence to

the established practice.” Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 2009). Key has not

established that SCSO had knowledge of the deputy’s unlawful conduct, or that if SCSO had

such knowledge, it would have permitted the deputy to participate in the search of her home.




3
  On October 15, 2009, SCSO deputy Jeff McCall entered a guilty plea to a two-count
information charging him with depriving two individuals of their civil rights, in violation of 18
U.S.C. § 242.


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Case No. 13-5493, Key v. Shelby County


       Even if SCSO was aware of the federal investigation, and this awareness without

prohibiting the deputy from continuing to serve as a law enforcement officer could be considered

a municipal policy or custom, the existence of this policy does not establish Shelby County’s

liability here. The complaint supporting charges against Teska Key and the affidavits of Lt.

Setliff and Lt. Hubbard appear to show that Jacqueline Key was not present during the search of

her house, and Key does not refute this fact. Therefore, she cannot say whether the discredited

deputy committed any constitutional violation while conducting the search. She is unable to

connect any constitutional violation to a recognizable municipal policy or custom.

       AFFIRMED.




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