               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0103n.06

                                  Case Nos. 15-5005, 15-5186                          FILED
                                                                                Feb 19, 2016
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


GREGORY BRYANT,                                    )
                                                   )
       Plaintiff-Appellant,                        )       ON APPEAL FROM THE UNITED
                                                   )       STATES DISTRICT COURT FOR
v.                                                 )       THE WESTERN DISTRICT OF
                                                   )       TENNESSEE
CITY OF MEMPHIS, et al.,                           )
                                                   )
       Defendants-Appellees.                       )


       BEFORE: NORRIS, CLAY, and COOK, Circuit Judges.

       COOK, Circuit Judge. In response to a physical altercation between Gregory Bryant (an

African-American firefighter with the City of Memphis Fire Department) and Mark Forrest

(Bryant’s white battalion chief), Bryant sued Forrest for assault and sued the City of Memphis

for negligent failure to train and supervise Forrest.    Bryant also sued both defendants for

intentional racial discrimination under 42 U.S.C. § 1983, though his complaint cited § 1981.1

The district court dismissed the § 1983 claim for failure to allege an adverse employment action

and dismissed the negligence claim against the City on immunity grounds. After a three-day trial

on the remaining assault claim, a jury found in Forrest’s favor. Bryant appeals the dismissal of

his negligence claim against the City, three pretrial evidentiary rulings, and the jury verdict as

       1
          Bryant’s counsel informed this court in her brief and at oral argument that Bryant was
abandoning the racial discrimination claim. We therefore need not reach the issue of whether the
district court properly dismissed that claim.
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Bryant v. City of Memphis


founded on insufficient evidence. The defendants request sanctions for the filing of a frivolous

appeal. We AFFIRM the district court on all grounds and DENY sanctions.

                                            I.     Facts

       During an attempt by the Memphis Fire Department to extinguish a fire at a vacant house,

Bryant was operating the firetruck’s hose. Battalion Chief Forrest provided all tactical orders

from inside his vehicle stationed in front of the house. When the hose manned by Bryant proved

ineffective, Forrest ordered it shut down so that firemen could enter the house with hand-held

hoses. While the firefighters geared up in the front yard, Bryant tried to use the truck’s hose

again. Chief Forrest tried to get Bryant’s attention—to tell him to turn off the hose—by radio

and then by signaling with his siren. Getting no response, he jumped out of his truck and headed

toward Bryant. Bryant alleges that Forrest then “violently grabbed him by his arm and shoved

him up against the equipment . . . with his arm pressed against his neck.” Forrest says that he

only grabbed Bryant’s arm, turned him around, and ordered him to shut down the hose.

       Upset about the scuffle, Bryant brought various claims against Forrest and the City of

Memphis for assault, negligent failure to train, and intentional racial discrimination under

42 U.S.C. § 1981. The district court dismissed the discrimination claim for lack of an adverse

employment action. The court also dismissed the negligent-training claim against the City on

immunity grounds. The jury returned a verdict in Forrest’s favor on the remaining assault claim,

and Bryant now appeals.

                                 II.   Claims Against the City

       Bryant brought three claims against the City: (1) intentional race discrimination,

(2) “intentional aggravated assault,” and (3) negligent failure to train Forrest in relation to

aggressive physical contact on the job. The district court dismissed the last two claims on state

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Bryant v. City of Memphis


sovereign immunity grounds and Bryant appeals that decision. We review de novo. Town of

Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 645 (6th Cir. 2013) (citing S.J. v. Hamilton

Cnty., 374 F.3d 416, 418 (6th Cir. 2004)).

       First, we agree that sovereign immunity bars Bryant’s assault claim against the City. The

Tennessee Governmental Tort Liability Act provides that “all governmental entities shall be

immune from suit for any injury which may result from” the exercise of governmental duties.

Tenn. Code Ann. § 29-20-201(a).         The Act excludes an “injury proximately caused by a

negligent act or omission of any employee within the scope of his employment.” Tenn. Code

Ann. § 29-20-205. Bryant sued the City for intentional assault—not negligence—by one of its

employees. The Act therefore immunizes the City from Bryant’s assault claim.

       Second, sovereign immunity also bars Bryant’s negligent-training claim.              Although

Bryant points to § 29-20-205 of the Act as grounds for viewing the negligent-training claims as

non-immunized, that section contains an exception. The City retains immunity for negligence

claims “aris[ing] out of the same circumstances giving rise to [a] civil rights claim.” Johnson v.

City of Memphis, 617 F.3d 864, 872 (6th Cir. 2010); see also Tenn. Code. Ann. § 29-20-205.

Because Bryant’s negligent-training claim arises out of the same facts underlying his § 1983

claim, the City enjoys immunity from suit. See Campbell v. Anderson Cnty., 695 F. Supp. 2d

764, 778 (E.D. Tenn. 2010) (dismissing plaintiff’s negligence claims against the County because

those claims “ar[o]se out of and directly flow[ed] from the [civil rights] allegations”).

       In challenging the immunity finding, Bryant criticizes the district court’s decision to

construe his § 1981 claim as having been brought under § 1983. He reasons as follows: if the

district court had dismissed his improperly brought §1981 claim, there would have been no civil-

rights bypass to the City’s liability for negligent training. Not so. The district court properly

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Bryant v. City of Memphis


recast Bryant’s complaint because 42 U.S.C. § 1983 is the exclusive vehicle by which plaintiffs

may bring 42 U.S.C. § 1981 claims against state governmental units. Arendale v. City of

Memphis, 519 F.3d 587, 594–99 (6th Cir. 2008). The Supreme Court recently reversed a district

court that failed to accord a complaint this relaxed reading. Johnson v. City of Shelby, 135 S. Ct.

346, 347 (2014) (holding that a plaintiff’s failure to specifically invoke 42 U.S.C. §1983 is not a

ground for dismissal). The district court, therefore, properly dismissed the claims against the

City.

                                   III.   Evidentiary Rulings

        Bryant next asks this court to reverse three of the district court’s evidentiary rulings as

abuses of discretion. Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). “Abuse of

discretion is defined as a definite and firm conviction that the trial court committed a clear error

of judgment.” Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989) (citing Balani

v. INS, 669 F.2d 1157 (6th Cir. 1982)). A district court abuses its discretion when it “relies on

clearly erroneous findings of fact, improperly applies the law, or employs an erroneous legal

standard.” Griffin, 689 F.3d at 592 (quoting Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 748

(6th Cir. 2005)). Furthermore, we reverse an erroneous evidentiary ruling only if it “affected the

outcome of the trial.” United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011) (citing United

States v. Vasilakos, 508 F.3d 401, 406 (6th Cir. 2007)).

        A.     The City Attorney’s Interaction with Witnesses

        Bryant sought to introduce evidence to the jury regarding the interaction the City

Attorney had with witnesses to the incident. Bryant’s counsel suggests that the witnesses—all

City employees—may have adjusted their testimony as a result.



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Bryant v. City of Memphis


       The City Attorney and David Rudolph (Forrest’s counsel) invited these witnesses to City

Hall prior to their depositions so that the witnesses could examine their post-incident written

statements and view a page of Bryant’s complaint describing the alleged assault. The City

Attorney also attended the witnesses’ depositions. Bryant describes this conduct as an attempt to

influence the witnesses’ deposition and trial testimony. Defendants, on the other hand, insist that

the City had the “legal right to protect its interests and the interests of its current employees

being deposed.”

       Absent evidence of wrongdoing, the district court committed no abuse of discretion in

excluding as irrelevant evidence of the City Attorney’s interaction with these witnesses. Before

the district court, Bryant’s attorney labeled the City Attorney’s conduct as “blatant witness

tampering” but supported this assertion with no specific factual allegations. Indeed, when

questioned during their depositions about the City Hall meeting, the witnesses’ responses offered

no support for the witness-tampering suggestion.

       In any event, we are confident that even if the jury heard this evidence, the verdict in

Forrest’s favor would still stand. While the district court excluded the interaction evidence, it

nonetheless invited Bryant’s attorney to cross examine the witnesses about any inconsistencies

between their post-incident written statements—completed before the City Hall meeting—and

their trial testimony. At trial, Bryant’s attorney repeatedly asked two of the witnesses to read

directly from their statements and exposed only trivial inconsistencies. Bryant’s counsel thus

had ample opportunity to expose any tampering, bias, or improper influencing.

       B.      The Written Witness Statements

       Bryant also wanted to introduce into evidence as exhibits the witnesses’ post-incident

written statements. Though he conceded the hearsay nature of the unsworn statements, he

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Bryant v. City of Memphis


proposed several hearsay exceptions to the district court as authorizing their admission. After

reviewing the record and applicable law, we find that the denial of these statements on hearsay

grounds was well within the district court’s discretion.

       Regardless, any error in the court’s refusal to admit the statements into the record was

harmless and reversal unwarranted. Again, Bryant’s attorney repeatedly cross examined the

witnesses with their written statements.      Bryant thus fails to show that admission of the

statements themselves as exhibits would have altered the trial’s outcome.

       C.      Forrest’s “Hot-Headed” and Aggressive Character

       Finally, Bryant sought to testify about Forrest’s hot-headed and aggressive character,

making two arguments for admissibility.        First, he contended that Forrest’s character was

evidence of habit—admissible under Federal Rule of Evidence 406—because Forrest “has a

habit of putting his hands on others when he feels his authority has been challenged.” Second,

he pressed for admissibility because Forrest’s aggressive character “directly [bears] on the

Plaintiff’s burden of [proving] imminent fear from harm.” Forrest, on the other hand, invoked

Federal Rules of Evidence 401, 402, 403, and 404 as barring admission, arguing that “[a]ny such

character evidence is not relevant to the issues in the instant case” and “is unduly prejudicial.”

       The district court excluded the evidence as squarely within Federal Rule of Evidence

404(a)’s prohibition of the admission of character evidence.         On the stand at trial, Bryant

asserted that he had “known [Forrest] to have an angry temperament” and the district court

sustained an objection to that statement.      On appeal, Bryant abandons the Rule 406 habit

argument but insists that the district court’s failure to admit the evidence for the imminent-fear

purpose merits a new trial.



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           1. The District Court Incorrectly Excluded the Character Evidence under Rule
              404(a)

       We agree with Bryant’s argument that the district court erred in excluding—under Rule

404(a)—any testimony by Bryant regarding his view that Forrest had an angry temperament.

That rule holds that “[e]vidence of a person’s character or character trait is not admissible to

prove that on a particular occasion the person acted in accordance with the character or trait.”

Fed. R. Evid. 404(a)(1). In other words, a character trait is inadmissible to show that the person

had a propensity to act in accordance with that trait. See Flagg v. City of Detroit, 715 F.3d 165,

175 (6th Cir. 2013). Here, one reason Bryant sought to introduce the character evidence was to

prove that he reasonably feared imminent bodily injury—an element of assault. Rule 404(a)

would allow admission for that limited purpose.

           2. The Evidence Was Inadmissible under Rule 403

       We disagree, however, that the district court’s error demands a new trial because the

evidence was inadmissible under Federal Rule of Evidence 403. Rule 403 requires exclusion of

the evidence “if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,

or needlessly presenting cumulative evidence.” Though the district court failed to address

Forrest’s 403 argument—because it excluded the evidence under Rule 404—this court may

conduct an independent Rule 403 analysis. United States v. Harris, 200 F. App’x 472, 488 (6th

Cir. 2006); cf. United States v. Joseph, 270 F. App’x 399, 405–06 (6th Cir. 2008) (holding that

we may affirm the district court’s decision to admit evidence on any ground supported by the

record); Pierce v. F.R. Tripler & Co., 955 F.2d 820, 829 (2d Cir. 1992) (holding that the district

court properly excluded the evidence “albeit for the wrong stated reason”); A.J. Cunningham


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Bryant v. City of Memphis


Packing Corp. v. Florence Beef Co., 785 F.2d 348, 351 (1st Cir. 1986) (holding that we may

affirm the district court’s decision to exclude evidence on any ground supported by the record).

                    a. Probative Value

        Evidence of Forrest’s “angry temperament” was of marginal probative value to the

underlying assault claim.       Bryant could prove assault in one of three ways: (1) Forrest

“intentionally, knowingly or recklessly caus[ed] bodily injury” to Bryant, (2) Forrest

“intentionally or knowingly caus[ed] physical contact with [Bryant] and a reasonable person

would regard the contact as extremely offensive or provocative,” or (3) Forrest “intentionally or

knowingly caus[ed] Bryant to reasonably fear imminent bodily injury.” (Jury Verdict, R. 65.)

The jury found Forrest not liable on all three assault variants.

        Bryant’s imminent fear of bodily injury relates only to one element of the last assault

variant. And he could prove his fear of imminent bodily injury in a variety of ways, the most

probative of which was describing the altercation itself. United States v. Adams, 722 F.3d 788,

831 (6th Cir. 2013) (explaining that the availability of other evidence with the same or greater

probative value factors into the 403 analysis). Also, Bryant made no offers of proof about past

instances of violent conduct to support his claimed knowledge of Forrest’s aggressive character,

despite his opportunity to do so in response to Forrest’s motion in limine. Bryant’s general

statements concerning Forrest’s angry temperament, therefore, bear little on Bryant’s fear that

Forrest would cause him bodily injury. The probative value of this character evidence is slight

given the facts of this case.




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                     b. Danger of Unfair Prejudice, Confusing the Issues, and Misleading the
                        Jury

        The evidence’s low probative value is “substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, [and] misleading the jury.”        Fed. R. Evid. 403.     At the

preliminary hearing on the motions in limine, Bryant suggested a third purpose for admitting the

evidence: to show that Forrest attacked Bryant out of anger, and not because of any safety

concerns. But this would ask the jury to draw a propensity inference prohibited by Rule 404—

that Forrest acted in accordance with his angry tendencies on the day in question.

Though evidence may be admissible for one purpose and not another, the character evidence

here posed a danger of the jury impermissibly inferring propensity and bad character while

distracting it from the issues at hand. United States v. Stout, 509 F.3d 796, 801 (6th Cir. 2007)

(“[T]he unfair prejudice of the evidence of surreptitious filming—both because it demonstrated

bad character and propensity—was significant.”); United States v. Johnson, 27 F.3d 1186, 1193

(6th Cir. 1994) (“When prior acts evidence is introduced, regardless of the stated purpose, the

likelihood is very great that the jurors will use the evidence precisely for the purpose it may not

be considered . . . .”).

        Rule 403 balancing therefore weighs in favor of exclusion, and Bryant’s arguments fail to

instill in us a “definite and firm conviction” that the district court committed a “clear error of

judgment” by barring this character evidence from trial. Logan, 865 F.2d at 790 (citing Balani,

669 F.2d 1157).

                                IV.   Sufficiency of the Evidence

        This court may quickly dispense with Bryant’s sufficiency-of-the-evidence claim.

Having neither moved for judgment as a matter of law before he submitted the assault claim to


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the jury, see Fed. R. Civ. P. 50(a), nor renewed the motion (or sought a new trial) after the entry

of judgment, see Fed. R. Civ. P. 50(b); Fed. R. Civ. P. 59, Bryant failed to preserve the issue for

review by this court. See Maxwell v. Dodd, 662 F.3d 418, 420–21 (6th Cir. 2011).

                                V.    Frivolous-Appeal Sanctions

       Defendants seek damages and costs under Federal Rule of Appellate Procedure 38,

arguing that Bryant’s appeal is frivolous. To be sure, Bryant’s appeal falls short in many

respects, but we are not prepared to label it “obviously without merit” and “prosecuted for delay,

harassment, or other improper purposes.” Bridgeport Music, Inc. v. Smith, 714 F.3d 932, 944

(6th Cir. 2013) (quoting Vic Wertz Distrib. Co. v. Teamsters Local 1038, 898 F.2d 1136, 1143

(6th Cir. 1990)). Accordingly, we deny the defendants’ request for sanctions.

                                       VI.     Conclusion

       We AFFIRM the district court’s judgment on all counts and DENY defendants’ motion

for sanctions.




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