                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


WILLIAM F. CUZICK,                     )
                                       )
                                                                         FILED
             Plaintiff/Appellant,      ) Tipton Circuit No. 4837
                                       )                              March 18, 1999
VS.                                    ) Appeal No. 02A01-9809-CV-00244
                                       )                            Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk
SGT. CAVAT BASS, COVINGTON             )
POLICE DEPARTMENT, et al,              )
                                       )
             Defendants/Appellees.     )


            APPEAL FROM THE CIRCUIT COURT OF TIPTON COUNTY
                      AT COVINGTON, TENNESSEE
                 THE HONORABLE JOE H. WALKER, JUDGE




WILLIAM F. CUZICK, pro se
Poplarville, Mississippi



EDWARD J. McKENNEY, JR
HANOVER, WALSH, JALENAK & BLAIR, PLLC
Memphis, Tennessee
Attorney for Appellees




AFFIRMED




                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    William F. Cuzick (“Cuzick” or Appellant”) appeals the judgment of the trial court
granting the Motion to Dismiss of Sgt. Cavat Bass (“Sgt. Bass” or “Appellee”) and

Covington Police Department (“Covington PD” or “Appellee”).



                                  I. Factual and Procedural History



        On October 6, 1997, in Covington, Tennessee, Cuzick was stopped by a citizen and

held by that citizen at gun point until police arrived at the scene. Cuzick was arrested by

Sgt. Bass of the Covington Police Department, and charged with burglary and possession

of burglary tools. At the scene, Sgt. Bass asked Cuzick how he came into town. Cuzick

informed Sgt. Bass that he had driven his car. Sgt. Bass then asked for the car keys and

inquired where the car was parked. Cuzick responded that the keys were in his pocket and

his car was legally parked on Washington Street, approximately two blocks from the scene.



        Cuzick’s automobile was then searched and a number of old coins were removed

from the car and inventoried. Sgt. Bass ordered the car towed to a private lot by H & H

Towing and Automotive. Sgt. Bass and the Covington PD allege that they had probable

cause to search Cuzick and his vehicle and also allege that Cuzick consented to the

search. Cuzick contends that he gave no such consent and inasmuch as his car was

legally parked two blocks away from the scene, the officers should have obtained a search

warrant before executing a search and seizure of the car.



        This action was commenced by Cuzick, pro se, in an attempt to obtain the return

of his vehicle and certain items of property which Cuzick claimed to be in the car before the

search and seizure of the vehicle, to wit: one (1) Citizen wristwatch, and one (1) one-carat

diamond ring. Cuzick titled his complaint “Writ of Replevin” and sought the return of such

property. In his complaint, Cuzick also alleged that Appellees violated his Fifth1 and



        1
          In his complaint, Cuzick states that the police were not in hot pursuit of Cuzick, the car was parked
several hundred feet away, the car was not going anywhere, Cuzick had already been search ed, Sgt. Bass
had obta ined C uzick ’s ke ys to car, and “therefore Bass should have followed proper procedure and obtained
a search warrant before entering the car. Defendant’s action violates the Fifth and F ourteen th Am endm ents
of the U nited State s Co nstit ution and the C ons titution of the State of T enn ess ee.” B ase d upo n Cu zick’s
statem ents in the complaint that the car was improperly searched and seized, we will assume that Cuzick
intended to allege that his Fourth Amendment rights were violated, rather than his Fifth Amendment rights.
There are no a llegations m ade in the com plaint which suppo rt a Fifth Am endm ent claim .

                                                        2
Fourteenth Amendment rights by searching and seizing his car without first obtaining a

search warrant. Cuzick’s complaint prayed for the release of the vehicle at no cost to

Cuzick, sanctions against Sgt. Bass and Covington PD for violating Cuzick’s constitutional

rights, and the return of all personal property seized in the search of the vehicle.



       While Cuzick’s car was in the possession of H&H Towing and Automotive, a finance

company having a lien on the automobile repossessed the automobile and removed it from

H&H Towing’s premises. Cuzick was released from the Tipton County jail on July 11, 1998.

At that time, all inventoried items belonging to Cuzick which were in the possession of the

City of Covington were returned to Cuzick, to wit, the old coins and several tools. The

Citizen wristwatch and the one-carat diamond ring which Cuzick claimed to be in the

vehicle prior to the search and seizure, were not inventoried by the Covington PD and were

not returned to Cuzick with the other items.



       On April 14, 1998, Cuzick filed a Motion for Judgment. Cuzick further filed Motion

to Amend Complaint and Joinder of Defendants on May 28, 1998, in which he sought to

join H&H Towing and Automotive, and sought damages in the amount of $150,000.00

actual damages and $100,000.00 punitive damages. On July 2, 1998, Appellees filed

Motion to Dismiss or, In The Alternative, For Summary Judgment. Appellees attached a

Memorandum in Support of This Motion, along with the transcript of portions of Cuzick’s

deposition testimony, an Affidavit from Sgt. Bass, and a copy of the inventory sheet of

Cuzick’s seized property.



       On July 14, 1998, the court entered an order granting Appellee’s motion to dismiss,

and adopting the legal analysis set forth in the memorandum in support of the motion to

dismiss. On August 7, 1998 Cuzick filed a notice of appeal and requested a finding of fact.

The trial court made the following pertinent findings of fact:

              Plaintiff now complains about the illegal search of his vehicle,
              towing his vehicle, and confiscation of personal property, which
              were intentional acts by defendants.

              The court finds that the Covington Police Department is not a
              municipality, nor is it an entity separately incorporated by the


                                               3
              City of Covington. It is a municipal department, and not subject
              to suit.

              The claim against Sergeant Bass is a complaint against him in
              his official capacity, which is considered to be a suit against
              the City of Covington. The acts of towing his vehicle and
              subjecting his property to seizure during the time he is
              incarcerated are barred by T.C.A. 29-20-205.

              Further, plaintiff is not entitled to damages for the return of
              seized property. . . . Plaintiff’s claim for the return of his car
              and the items stored therein should be properly addressed to
              the finance company that repossessed plaintiff’s car, and is
              given a notice of foreclosure proceeding due to failure to make
              payments. Further, it has been undisputed that those items
              inventoried that belonged to Plaintiff will be returned to Plaintiff
              upon his release from jail.


                                  II. Standard of Review



       Both parties in this matter have addressed the court’s ruling under the standard of

review for summary judgment. Upon a careful review of the trial court’s order and findings

of fact, we find that matters outside the pleadings were presented to and not excluded by

the trial court. The memorandum of law in support of Appellee’s Motion to Dismiss or, In

the Alternative, For Summary Judgment, which was adopted by the court in dismissing

Cuzick’s complaint, contained many arguments based upon matters outside the pleadings.

Furthermore, in its findings of fact, the trial court noted that the acts allegedly taken by

Appellees were intentional acts, a fact which is supported only in Cuzick’s deposition

testimony. Therefore, this case was treated as one for summary judgment and we shall use

the standard of review applicable to summary judgments.



       Summary judgment is to be rendered by a trial court only when it is shown 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,” Tenn. R. Civ. P. 56.03 (1984). In ruling on a motion for

summary judgment, the trial court and the Court of Appeals must consider the matter in the

same manner as a motion for a directed verdict made at the close of the plaintiff’s proof,

i.e., all the evidence must be viewed in the light most favorable to the opponent. It is only

when there is no disputed issue of material fact that a summary judgment should be

granted by the trial court and sustained by the Court of Appeals. Graves v. Anchor Wire

                                               4
Corp. of Tennessee, 692 S.W.2d 420 (Tenn. App. 1985); Bennett v. Mid-South Terminals

Corp., 660 S.W.2d 799 (Tenn. App. 1983).



       When the party seeking summary judgment makes a properly supported motion, the

burden then shifts to the nonmoving party to set forth specific facts, not legal conclusions,

by using affidavits or the discovery materials listed in Rule 56.03, establishing that there

are indeed disputed, material facts creating a genuine issue that needs to be resolved by

the trier of fact and that a trial is therefore necessary. Byrd v. Hall, 847 S.W.2d 208, 215

(Tenn. 1993).



       In appeals from grants of summary judgment, the Court of Appeals must decide

whether the court below correctly applied Rule 56.03 and in so doing, the Court must make

an entirely fresh determination because only questions of law are presented; no

presumption of correctness accompanies the trial court’s decision. Hill v. Chattanooga, 533

S.W.2d 311(Tenn. App. 1975).



                                   III. Replevin Action



       Cuzick filed a replevin action to recover his vehicle and property which he alleged

to be missing from his vehicle. In his complaint Cuzick claimed that his rights under the

United States Constitution and the Tennessee Constitution were violated.



       While Cuzick’s vehicle was impounded, the vehicle was repossessed by a finance

company which held a lien on the vehicle. Any claim for the return of the vehicle should be

properly addressed to the finance company that repossessed it.

       As to the personal property Cuzick seeks to recover from the officers, Cuzick has

not presented any significant probative evidence in support of his complaint to defeat a

motion for summary judgment. Cuzick claims that a Citizen watch and a diamond ring were

in the vehicle prior to the search of the vehicle. These items were not inventoried by Sgt.

Bass and have not been recovered by Cuzick.



                                             5
       In his affidavit, Sgt. Bass states that the property which was seized in the process

of arresting Cuzick was inventoried. In fact, Cuzick himself admitted in his deposition

testimony that he has no personal knowledge that Sgt. Bass or anyone with the Covington

Police Department took his personal property. Cuzick admitted in his deposition testimony

that the wrecking yard also had access to his car after it was towed. Furthermore, as

Cuzick has not recovered the vehicle from the finance company, he is without knowledge

that the claimed property was ever removed from the vehicle at all. It is possible, albeit

unlikely, that the missing property items remain with the vehicle.



       Summary judgment was proper as to Cuzick’s replevin action for the return of his

vehicle and personal property items.



                                   IV. State Law Claims



       Cuzick’s complaint alleges a violation of his rights under the Tennessee

Constitution, specifically, the equal protection clause. However, it appears from the

allegations in Cuzick’s complaint that his claim would more appropriately fall under Article

1, Section 7 of the Tennessee Constitution.

              Sec. 7, Unreasonable searches and seizures - General
              warrants.- That the people shall be secure in their persons,
              houses, papers, and possessions, from unreasonable
              searches and seizures; and that general warrants, whereby an
              officer may be commanded to search suspected places,
              without evidence of the fact committed, or to seize any person
              or persons not named, whose offences are not particularly
              described and supported by evidence, are dangerous to liberty
              and ought not be granted.

To the extent that Cuzick seeks the return of his property as recourse for a violation of this

constitutional right, summary judgment is proper for the reasons stated in the replevin

discussion above. Cuzick also seeks damages for a violation of this constitutional right.

This court knows of no authority for the recovery of damages for a violation of Article 1,

Section 7 of the Tennessee Constitution. Accordingly, this Court need not address the

constitutionality of the search and seizure of Cuzick’s vehicle and the belongings therein.




                                              6
       To the extent that Cuzick’s complaint can be construed to allege other state law

claims, they too must fail. This suit against Sgt. Bass did not name Sgt. Bass in his

individual capacity. Therefore, the suit against Sgt. Bass is treated as an “official capacity”

suit. A suit against a state official in his official capacity is a suit against the state. Cox v.

State 399 S.W.2d 776, 778. Similarly, a suit brought against a police official may be

actionable against the city or county for which the police official acts. Timberlake v. Benton,

786 F. Supp. 676, 683 (M.D. Tenn. 1992). See, e.g., Monell v. Department of Social

Services 436 U.S. 658, 690, 98 S.Ct. 2018, 2036 (1978) (suit brought nominally against

official of city’s department of social services is actionable suit against city itself); Brandon

v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78 (1985) (suit brought against “Director

of Police, City of Memphis” is suit against city itself); Leach v. Shelby County Sheriff, 891

F.2d 1241, 1242 n.1 (6th Cir. 1989), cert denied 495 U.S. 932 (1990) (suit against county

sheriff essentially suit against county itself). Therefore, the complaint against Sgt. Bass is

treated as a complaint against the City of Covington.



       The City of Covington and the Covington PD are governmental entities which are

entitled to immunity under Tennessee’s Governmental Tort Liability Act (hereinafter GTLA).

The GTLA provides in pertinent part:

               §29-20-201 General rule of immunity from suit - Exception.
               - (a). Except as may be otherwise provided in this chapter, all
               governmental entities shall be immune from suit for any injury
               which may result from the activities of such governmental
               entities wherein such governmental entities are engaged in the
               exercise and discharge of any of their functions, governmental
               or proprietary.

Section 29-20-205 involves a general removal of immunity for injury caused by negligent

acts or omissions of employees with some exceptions. Immunity is restored for injury

arising in various ways including civil rights claims. Claims involving allegedly intentional

acts fall within the purview of the act and are barred.



       In his deposition testimony, Cuzick stated that the actions taken by Sgt. Bass in

searching and seizing his vehicle and the property therein were intentional acts. As the City

of Covington and the Covington PD are generally immune from suit for the intentional acts



                                                7
of their employees pursuant to the GTLA, summary judgment was proper as to Cuzick’s

state law claims.



                                     V. Federal Civil Rights Claims



         Cuzick seeks to recover against the City of Covington2 and the Covington PD under

the provisions of 42 U.S.C. §1983 for the allegedly wrongful search and seizure of his

vehicle and belongings. To prove a claim under 42 U.S.C. §1983, Cuzick must establish:

1) That he was deprived of a right secured by the Constitution or the laws of the United

States, and 2) that he was subjected to or caused to be subjected to this deprivation by a

person acting under color of State law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 98

S.Ct. 1729, 1734 (1978). While municipalities are “persons” subject to suit under §1983,

it is only under limited circumstance that a municipality may be sued successfully under

§1983.



         We will first address the propriety of Cuzick’s §1983 claims against the Covington

PD. Covington PD, in contrast to the city itself, is not an entity suable under the Civil

Rights Act. Williams v. Baxter, 536 F. Supp. 13, 16 (E.D. Tenn. 1981). See also Damron

v. Pfannes, 785 F. Supp. 644, 646 (E.D.Mich.1992) (a municipal police department is not

a legal entity separate from its parent city); Timberlake v. Benton, 786 F. Supp. 676 (M.D.

Tenn. 1992) (drug task force was not a “person” for purposes of §1983); Pierre v.

Schlemmer, 932 F. Supp. 278 (M.D. Florida 1996) (police department not legal entity

subject to suit under §1983). Therefore summary judgment was proper as to all §1983

claims against Covington PD.



         With respect to Cuzick’s §1983 claims against the City of Covington, Cuzick must

show that the execution of the city’s policy or custom inflicted the injury.3 Monell v. New

         2
          As explained in our discussion of Cuzick’s state law claims, the suit against Sgt. Bass is in his “official
capac ity” and, as su ch, is a su it against the City of Cov ington.

         3
          Because the real party in interest in an official capacity suit is the governmental entity and not the
named official, the entity’s “policy or custom” must have played a part in the violation of federal law. Hafer v.
Melo , 502 U.S. 21, 24, 112 S.Ct. 358, 361 (1991) (citing Kentucky v. Graham , 473 U.S. 159, 166, 105 S.Ct.
3099, 3105 (1985)).

                                                         8
York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037 (1978).A

local government may not be sued under §1983 for an injury inflicted solely by its

employees or agents. Instead it is when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government as an entity is responsible

under §1983. Monell, 436 U.S. at 694, 98 S.Ct. at 2037. This is so because the “ . . .

Congress did not intend municipalities to be held liable unless action pursuant to an official

municipal policy of some nature caused the constitutional tort.” Monell, 436 U.S. at 691,

98 S.Ct. at 2036. Before a custom can be the basis for a civil rights violation, the 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 690, 98 S.Ct. 2035.



       To satisfy the Monell requirements, a plaintiff must: 1) identify the policy; 2) connect

the policy to the city itself; and 3) show that the particular injury was incurred because of

the execution of that policy. Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987).

In the present case, Cuzick did not allege that his injury was inflicted by the policy or

custom of the City of Covington. In Cuzick’s deposition testimony, Cuzick admitted that he

has no knowledge of the city’s policy or customs. Cuzick admitted that he had no personal

knowledge of the City’s policy regarding searching vehicles or seizing property or towing

vehicles. Proof of wrongful conduct by a single officer is not sufficient to establish liability

under Monell, unless proof of the incident includes proof that it was caused by an existing

policy maker. Otherwise the existence of the municipal policy and its origins must be

separately proved. City of Oklahoma v. Tuttle, 471 U.S. 808, 824, 105 S.Ct. 2427, 2437

(1985); Bills v. Aseltine, 958 F.2d 697, 708 (6th Cir. 1992).



       Although not raised in his original complaint, Cuzick alleges, in his response to

Defendant’s motion to dismiss, that his injuries were sustained due to inadequate training

of Sgt. Bass. A municipality can be liable under §1983 for constitutional violations resulting

from its failure to train municipal employees. City of Canton v. Harris, 489 U.S. 378, 388,

109 S.Ct. 1197, 1204 (1989). However, inadequacy of police training may serve as the



                                               9
basis for §1983 liability only where the failure to train amounts to deliberate indifference

to the rights of persons with whom the police come into contact. Canton, 489 U.S. at 388,

109 S.Ct. at 1204. “Only where a municipality’s failure to train its employees in a relevant

aspect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a

shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under

§1983.” Id.



       The issue in a case like this is whether the training program of the City of Covington

is adequate; and if it is not, the question becomes whether such inadequate training can

justifiably be said to represent “city policy.” Canton 489 U.S. at 389, 109 S.Ct. at 1205. As

the Supreme Court stated in Canton:

              In resolving the issue of a city’s liability, the focus must be on
              the adequacy of the training program in relation to the tasks
              the particular officers must perform. That a particular officer
              may be unsatisfactorily trained will not alone suffice to fasten
              liability on the city, for the officer’s shortcomings may have
              resulted from factors other than a faulty training program. [It]
              may be, for example, that an otherwise sound program has
              occasionally been negligently administered. Neither will it
              suffice to prove that an injury or accident could have been
              avoided if an officer had better or more training, sufficient to
              equip him to avoid the particular injury-causing conduct. Such
              a claim could be made about almost any encounter resulting
              in injury, yet not condemn the adequacy of the program to
              enable officers to respond properly to the usual and recurring
              situations with which they must deal. And plainly, adequately
              trained officers occasionally make mistakes; the fact that they
              do says little about the training program or the legal basis for
              holding the city liable.

Canton, 489 U.S. at 391, 109 S.Ct. at 1205.



       Cuzick admitted in his deposition testimony that he is aware of no evidence that the

training program required by the City of Covington for its officers is inadequate to the tasks

that officers must perform or that the City was aware of the need for additional or different

training. Cuzick has neither alleged in his complaint nor presented any evidence in

response to the motion for summary judgment that the City of Covington had a custom or

policy of allowing its officers illegally to search vehicles, tow vehicles or seize property or

that the City of Covington was indifferent to such actions. Cuzick admits he has no

knowledge of any such custom or policy or any complaint which was ignored by the city.


                                              10
As Cuzick failed to present any evidence that a policy or custom of the City of Covington

resulted in a violation of his constitutional rights, summary judgment was proper as to all

§1983 claims against the City of Covington.



                                     VI. Conclusion



       The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to

Cuzick, for which execution may issue if necessary.




                                                        HIGHERS, J.



CONCUR:



FARMER, J.




LILLARD, J.




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