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Case 2:13-cv-02117-JPM-dkv Document 22 Filed 06/04/13 Page 1 of 11 PageID 156

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION









)
LAKENDUS COLE and LEON EDMOND, )
individually and as
)
representatives of all others )
similarly situated,
)
)


Plaintiffs,

)


)
v.
) 13-cv-02117-JPM-dkv

)

CITY OF MEMPHIS; and
)
ROBERT FORBERT, SAMUEL HEARN, )
CHRISTOPHER BING, JOHN
)
)
FAIRCLOTH, CARI COOPER, and
ROBERT SKELTON, individually
)
and in their official
)
capacities as City of Memphis )
)
police officers,


)
Defendants.

)



ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS ROBERT FORBERT AND JOHN FAIRCLOTH’S MOTION TO DISMISS



Before the Court is the Motion to Dismiss of Defendants
Robert Forbert and John Faircloth, filed April 2, 2013. (ECF
No. 5.) Plaintiffs Lakendus Cole and Leon Edmond responded in
opposition on April 10, 2013. (ECF No. 7.)

For the following reasons, Defendants Robert Forbert and

John Faircloth’s Motion to Dismiss is GRANTED IN PART and DENIED
IN PART.
I. BACKGROUND

In their Complaint (ECF No. 1), Plaintiffs assert the
following causes of action against City of Memphis police

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The following facts are those alleged in Plaintiff’s

officers Robert Forbert, Samuel Hearn, Christopher Bing, John
Faircloth, Robert Skelton, and Cari Cooper (collectively, the
“Individual Defendants”) (id. ¶¶ 4-9): federal-law claims for
the use of excessive force and unlawful arrest in violation of
42 U.S.C. § 1983 (“§ 1983”) based on violations of Plaintiffs’
Fourth and Fourteenth Amendment rights (id. ¶¶ 114-19); state-
law claims for civil assault and battery (id. ¶¶ 128-32); and
state-law claims for false arrest and imprisonment (id. ¶¶ 133-
37).

Complaint.
The City of Memphis engages in a policy or practice of

ordering “all persons lawfully standing on the sidewalks and
street in the Beale Street Entertainment District” to
immediately leave, irrespective of “whether circumstances exist
which threaten the safety of the public or [City of Memphis]
police officers” (the “Beale Street Sweep”). (Id. ¶¶ 24-25.)
The Beale Street Sweep routinely occurs in the early morning
hours and frequently results in City of Memphis police officers
“assaulting, using excessive force, detaining, arresting and/or
fabricating false [] criminal charges against persons who are
engaged in lawful and constitutionally protected conduct.” (Id.
¶¶ 26-28.)



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Plaintiff Lakendus Cole (“Cole”), an off-duty City of


Memphis police officer, was standing outside Club 152 on Beale
Street in Memphis in the early morning of August 26, 2012. (Id.
¶ 30.) Cole was engaging in lawful behavior, and had not
consumed any alcohol. (Id. ¶¶ 31, 33.) City of Memphis police
officers, including the Individual Defendants, ordered the
people on the street to “immediately leave the sidewalks and
street in the Beale Street Entertainment District” pursuant to
the Beale Street Sweep. (Id. ¶¶ 32-33.) The Individual
Defendants are alleged to have committed the following acts:
grabbing Cole and assaulting him (id. ¶ 35); slamming Cole’s
body into the police car twice, denting the body of the police
car (id. ¶ 36); handcuffing and arresting Cole (id. ¶ 37);
transporting Cole to the Shelby County Jail (id. ¶ 38); and
preparing, or assisting in the preparation of, an affidavit that
included false information against Cole resulting in Cole being
charged with vandalism, disorderly conduct, and resisting arrest
(id. ¶¶ 39-40). The charges against Cole were ultimately
dismissed. (Id. ¶ 41.)

with the Bureau of Alcohol, Tobacco, Firearms and Explosives
(the “ATF”), was walking in the Beale Street Entertainment
District in the early morning of May 5, 2012. (Id. ¶¶ 2, 46.)
Edmond was not intoxicated. (Id. ¶ 47.) City of Memphis police

Plaintiff Leon Edmond (“Edmond”), an off-duty special agent



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Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), a

officers, including the Individual Defendants, ordered Edmond
and others to “immediately leave the sidewalks and street of the
Beale Street Entertainment District” pursuant to the Beale
Street Sweep. (Id. ¶ 48.) Defendant Cooper stopped Edmond
after he unsuccessfully tried to enter Club 152. (Id. ¶¶ 49-
51.) Defendants Cooper and Skelton handcuffed Edmond and placed
him under arrest for public intoxication. (Id. ¶¶ 53-54.)
Edmond was released from police custody after a local ATF agent
arrived on the scene. (Id. ¶ 57.)
II. STANDARD OF REVIEW

defendant may move to dismiss a plaintiff’s complaint for
“failure to state a claim upon which relief can be granted.”
Pursuant to Rule 8(a), a complaint need only contain a “‘short
and plain statement of the claims showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). To survive a motion to dismiss for failure to state
a claim, however, the “[f]actual allegations [in the complaint]
must be enough to raise a right to relief above the speculative
level and to state a claim to relief that is plausible on its
face.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012)



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On a motion to dismiss, the court must “construe the

(first alteration in original) (quoting Twombly, 550 U.S. at
555) (internal quotation marks omitted). “A claim is plausible
on its face if the ‘plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’” Ctr. for Bio-Ethical
Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

complaint in the light most favorable to the plaintiff, accept
its allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” In re Travel Agent Comm’n Antitrust
Litig., 583 F.3d 896, 903 (6th Cir. 2009) (quoting Jones v. City
of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)) (internal
quotation marks omitted). A court may not dismiss a complaint
for failure to state a claim “based on disbelief of a
complaint’s factual allegations.” Bovee v. Coopers & Lybrand
C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). The court, however,
“need not accept as true legal conclusions or unwarranted
factual inferences, and [c]onclusory allegations or legal
conclusions masquerading as factual allegations will not
suffice.” In re Travel Agent, 583 F.3d at 903 (alteration in
original) (citation omitted) (internal quotation marks omitted).





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Defendants Robert Forthbert and John Faircloth

III. ANALYSIS

(“Defendants”) argue that Plaintiffs have failed to state a
claim against them pursuant to Rule 8(a) because the Plaintiffs’
blanket allegations fail to give Defendants adequate notice of
their alleged misconduct. (ECF No. 5-1 at 4-5.) Alternatively,
Defendants argue that even if Plaintiffs’ allegations are
sufficient under Rule 8(a), the Complaint fails to state a
substantive due-process claim pursuant to the Fourteenth
Amendment. (Id. at 5-6.) Defendants’ arguments are addressed
in turn.
A. Failure to State a Claim Against Defendants Under Rule 8(a)

against the Individual Defendants are so generalized as to not
provide them adequate notice of the conduct of which they are
accused. (Id. at 5.) In support of their argument, Defendants
assert that the Complaint does not mention them by name in the
federal and state-law claims; that the Complaint fails to
distinguish between the Individual Defendants; and that the
Complaint fails to tie them to specific alleged actions. (Id.
at 4-5.) Defendants state that blanket assertions against the
Individual Defendants do not satisfy Rule 8(a)’s pleading
requirement if the allegations do not distinguish between
defendants nor give notice of the specific allegations against

Defendants argue that the allegations in the Complaint



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Plaintiffs assert that each of the Individual Defendants

each defendant. (Id. at 4 (citing Bondex Int’l, Inc. v.
Hartford Accident & Indem. Co., 667 F.3d 669, 681 (6th Cir.
2011) and Muhammad v. Weis, No. 08-3616, 2009 WL 637112, at *2
(E.D. Pa. Mar. 11, 2009)).)

engaged in the actions stated in the allegations. (ECF No. 7 at
2.) Accordingly, Defendants have notice of the conduct of which
they are accused. (Id. at 2-3.) Plaintiffs argue that the
cases Defendants cite are distinguishable from the instant case.
(Id. at 3.)

Plaintiffs, the Court finds that Plaintiffs have stated a claim
against Defendants that is plausible on its face. Plaintiffs’
Complaint contains specific federal and state-law claims against
the Individual Defendants. (See, e.g., ECF No. 1 ¶¶ 80-86, 128-
32, 133-37 (asserting specific claims of misconduct against the
Individual Defendants).)

Bondex. In Bondex, the United States Court of Appeals for the
Sixth Circuit held that “the pleadings’ generic references to
the misconduct of ‘all Defendants’” did not encompass a theory
of liability against a specific defendant that was not pled in
the complaint. 667 F.3d at 681; see Am. Compl., Bondex Int’l,
Inc. v. Hartford Accident & Indem. Co., Case No. 03-1322 (N.D.

Viewing the Complaint in the light most favorable to

Additionally, the instant case is distinguishable from



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Finally, this Court declines to follow Muhammad, a case

Ohio Sept. 30, 2005), ECF No. 213. In the instant case,
Plaintiffs’ pleadings do not contain only general allegations of
misconduct against all Defendants but instead contain specific
federal and state-law claims plead against all of the Individual
Defendants. Accordingly, Plaintiffs’ claims against Defendants
are plausible as Defendants have fair notice that each of the
allegations against the Individual Defendants pertains to them.

from the United States District Court for the Eastern District
of Pennsylvania, holding that allegations against over one
hundred defendants do not satisfy Rule 8(a) where the plaintiff
did not “describe how each individual actor within the group
contributed to the alleged harm.” 2009 WL 637112, at *2; see
Am. Compl., Muhammad v. Weis, No. 08-3616 (E.D. Pa. Sept. 18,
2008), ECF No. 4. Instead, this Court follows Hale v. Enerco
Grp., Inc., which distinguished between small and large groups
of defendants and found that “allegations that multiple
Defendants have engaged in the same conduct” were “plausible and
raise a reasonable expectation that discovery will reveal
evidence to support their claims.” No. 1:10 CV 00867-DAP, 2011
WL 49545, at *4 (N.D. Ohio Jan. 5, 2011); see also Freedom Banc
Mortg. Servs., Inc. v. O’Harra, No. 2:11-cv-01073, 2012 WL
3862209, at *4 (S.D. Ohio Sept. 5, 2012) (holding that blanket
allegations against multiple defendants were sufficient under



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Plaintiffs assert that their § 1983 claim arises from a

Rule 8(a) because it was plausible that multiple defendants
engaged in, or assisted in, the alleged misconduct).
Accordingly, Plaintiffs have satisfied Rule 8(a) by including a
“short and plain statement of the claims” that are “plausible on
[their] face.” Keys, 684 F.3d at 608.
B. Failure to State a Claim Under the Fourteenth Amendment

Defendants argue that Plaintiffs have failed to state a
substantive due-process claim under the Fourteenth Amendment
because Plaintiffs’ claims “are nothing more than excessive
force and unreasonable seizure claims,” which courts analyze
exclusively under the Fourth Amendment. (ECF No. 5-1 at 5-6.)

violation of their substantive due-process right under the
Fourteenth Amendment “to remain in a public place with no
apparent purpose and to travel locally through public spaces and
roadways.” (ECF No. 7 at 4 (internal quotation marks omitted));
see City of Chicago v. Morales, 527 U.S. 41, 53-54 (1999).

source of constitutional protection’ against a particular sort
of government behavior,” a § 1983 claim based on that behavior
must be analyzed under that Amendment and not under the
substantive due process clause of the Fourteenth Amendment.
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v.
Connor, 490 U.S. 386, 395 (1989)); see Handy-Clay v. City of

“Where a particular Amendment ‘provides an explicit textual



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Viewing the Complaint in the light most favorable to

Memphis, Tenn., 695 F.3d 531, 547-48 (6th Cir. 2012). Claims
arising out of an “arrest or investigatory stop of a free
citizen” invoke the “protections of the Fourth Amendment, which
guarantees citizens the right ‘to be secure in their persons
. . . against unreasonable . . . seizures.’” Graham, 490 U.S.
at 394 (alterations in original); see Brooks v. Rothe, 577 F.3d
701, 706 (6th Cir. 2009).

Plaintiffs, the Court finds that Plaintiffs have not stated a
§ 1983 claim against Defendants based on the Fourteenth
Amendment. In the instant case, Plaintiffs allege that they
were placed under arrest by the Individual Defendants which led
to the purported § 1983 violations. Accordingly, their claims
against Defendants arise from the “arrest or investigatory stop
of a free citizen” and are properly analyzed under the Fourth
Amendment, not the Fourteenth Amendment. Graham, 490 U.S. at
394; accord Brooks, 577 F.3d at 706; Lanman v. Hinson, 529 F.3d
673, 680 (6th Cir. 2008).
Therefore, Plaintiffs’ substantive due-process claim

arising under the Fourteenth Amendment is DISMISSED as to
Defendants Robert Forbert and John Faircloth.
IV. CONCLUSION

John Faircloth’s Motion to Dismiss is GRANTED IN PART and DENIED
IN PART.


For the foregoing reasons, Defendants Robert Forbert and

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SO ORDERED this 4th day of June, 2013.
















s/ Jon P. McCalla

JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE

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