govinfo:USCOURTS-tnwd-2_24-cv-02335-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION 
______________________________________________________________________________ 
 
DAMIAN FLOREZ-RAMIREZ, 
 
 Plaintiff, 
 
v.         Case No. 2:24-cv-02335-MSN-atc 
         JURY DEMAND 
JACQUES JONES, et al., 
 
 Defendants. 
______________________________________________________________________________ 
 
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’ 
MOTION TO DISMISS, DIRECTING PLAINTIFF TO IDENTIFY UNKNOWN 
“LIEUTENANT,” AND DISMISSING CLAIMS AGAINST ASHLYN CUNNINGHAM 
______________________________________________________________________________ 
 
Before the Court is the Motion to Dismiss of Defendants Jacques Jones, Tracy Williams, 
Carlus Cleaves, Kendall Davis, Tamiko Swain, and Shelby County, Tennessee, made under Federal 
Rule of Civil Procedure 12(b)(6).  (ECF No. 15, “Motion.”)  Defendants move to dismiss Plaintiff 
Damian Florez-Ramirez’s Complaint alleging civil rights violations by the above officers of the 
Shelby County Sheriff’s Office (“SCSO”) in their individual capacities, civil rights violations by 
Shelby County, and state -law claims of negligent hiring, retention, and training against Shelby 
County.  (ECF No. 1, “Pending Complaint.”)  For the reasons stated below, Defendants’ Motion is 
DENIED in part and GRANTED in part. 
BACKGROUND 
I. The Incident on May 20, 2023 
This action arises from an incident that occurred on May 20, 2023, concerning Plaintiff, a 
pre-trial detainee, and several corrections officers at the Shelby County Criminal Justice Center 
(“Shelby County Jail”) in Memphis, Tennessee.  (ECF No. 21 at PageID 128.)  At approximately 
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1:30 p.m., Sergeant Kendall Davis conducted a security check on the fourth floor where Plaintiff 
was housed.  (ECF No. 15-1 at PageID 95.)  After an altercation in which Plaintiff threw a plastic 
chair at Sergeant Davis and attempted to strike him, officers handcuffed Plaintiff and escorted him 
to the second-floor medical room.  (Id. at PageID 96.)  The officers sprayed Plaintiff with Freeze 
+P (a kind of pepper spray), but Plaintiff had no visible injuries when he entered the exam room, 
Room 213.  (ECF No. 1 at PageID 5.)  Footage from the security camera in the hall (“the camera”) 
shows two members of the Detention Response Team (“ DRT”), Reginald Wilkins and Odell 
Underwood, enter Room 213 at 1:54 p.m.  ( Id. at PageID 1 & 5.)  There was no camera in Room 
213.  (Id. at PageID 5.)  Plaintiff alleges the officers threatened him several times, then exited the 
room to see a higher-ranking officer in the next room to get the “say- so” to beat Plaintiff.  (ECF 
No. 15-1 at PageID 96.)  Plaintiff later learned it was Sergeant Davis in the next room, Room 212, 
being treated for a hand injury.  (ECF No. 1 at PageID 6.) 
While the officers were gone, Nurse Michaela Armstrong entered Room 213 and treated 
Plaintiff, whose hands were still in cuffs.  ( Id. at PageID 5.)  At this time, the camera captured  
Wilkins and Underwood standing in the hallway speaking with other corrections officers, including 
Sergeant Tamiko Swain and an unknown Lieutenant.  (Id.)  At 1:56 p.m., Nurse Armstrong cleared 
Plaintiff to return to the fourth floor.  ( Id.)  However, instead of escorting Plaintiff back, Wilkins 
removed his wristwatch, handed it to Sergeant Swain, and went back into Room 213 with Plaintiff 
alone.  ( Id. at PageID 6.)  Plaintiff alleges Wilkins called him  “bitch” and said he was about to 
learn “what happens in here” to inmates who injure guards.  (Id.) 
During this time , Underwood continued talking with the other officers.  ( Id.)  Plaintiff 
alleges the conversation centered around Sergeant Davis’s hand injury and “how Florez-Ramirez 
ought to be punished.”  (Id. at PageID 6.)  Wilkins came out and Plaintiff heard him say to someone 
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in Room 212, “We got this, Sarge.”  (Id.)  At 1:58 p.m., Wilkins and Underwood reentered Room 
213.  (Id. at PageID 7.)  The camera shows the Lieutenant “direct[ing] everyone else to disperse,” 
then standing in front of Room 213 with his “arms crossed, looking up and down the now -empty 
hallway.”  (Id.)  According to the Pending Complaint, Wilkins and Underwood proceeded to knock 
Plaintiff to the floor and “repeatedly kick[] [him] in the face and torso while shouting, ‘Get up, 
bitch!’”  (Id. at PageID 7.)  Over the next few minutes, the officers struck Plaintiff “more than ten 
times in the head with their fists, handcuffs (used as brass knuckles), and metal Freeze +P canisters.  
The blows from the metal implements left permanent divots in the bony parts of [Plaintiff’s] 
forehead and left and right orbitals.”  (Id. at PageID 8.)  Plaintiff alleges the attack was loud enough 
for officers and medical staff in the hall and nearby rooms to hear.  (Id.) 
A few minutes later, the officers emerged from Plaintiff’s room and asked Nurse Ashlyn 
Cunningham to “finish him up.”  ( Id.)  When Nurse Cunningham entered the room, “chemical 
agent hung so thickly in the air that she could not breathe and had to move Florez -Ramirez to 
Room 212, now empty,” which she did at 2:04 p.m.  ( Id.)  By this time, Plaintiff was covered in 
blood and his face was swollen.  ( Id.)  According to the Pending Complaint, Plaintiff told Nurse 
Cunningham about the attack and asked her to take  pictures to document his injuries, but she 
refused.  ( Id.)  At 2:12 p.m., Underwood and Wilkins took Plaintiff to an isolation cell  in the 
administrative-segregation (“ad-seg”) unit, where Plaintiff alleges that they beat him again in the 
changing room.  (Id. at PageID 9.)  Several prison guards later told investigators that Plaintiff had 
swelling, blood, and lacerations on his face and was “in and out” of consciousness.  (Id.)  At 2:19 
p.m., the DRT officers dragged Plaintiff into an “ad-seg cage,” where he fully lost consciousness.  
(Id. at PageID 10.)  A nurse called for an ambulance and Plaintiff was rushed to Regional One, 
where he was treated for a concussion, facial lacerations, and blunt-force trauma to the head. (Id.) 
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Over the next few weeks, Plaintiff filed several inmate grievances, which were all rejected. 
(Id. at PageID 11.) He was sanctioned to sixty days detention by the Disciplinary Board and was 
not permitted to talk about the DRT  assault on him during the disciplinary proceedings .  (Id.)  
SCSO detectives later conducted an investigation on the incident and submitted a report to the 
Shelby County District Attorney’s (“DA’s”) office, which charged Wilkins and Underwood with 
felony official oppression, felony official misconduct, and criminal assault.  (Id. at PageID 12.)  At 
the time the Pending Complaint was filed, criminal proceedings were ongoing.  (Id.) 
II. Plaintiff’s Initial Pro Se Complaint 
Plaintiff initially filed a pro se  lawsuit on September 15, 2023, alleging civil rights 
violations under 42 U.S.C. § 1983 against Reginald Wilkins, Odell Underwood, Kendall Davis, 
and Melanie Moore (an officer who was present at the fourth- floor security check on May 20, 
2023).  (Florez-Ramirez v. Wilkins et al., Case No. 2:23-cv-02587, ECF No. 1, “Pro Se Complaint.”)  
U.S. District Court Judge Mays granted Plaintiff leave to proceed in forma pauperis.  (Id. at ECF 
No. 4.)  Because Plaintiff did not state whether he was suing the officers in their individual or 
official capacity, the Court presumed the latter and added Shelby County, Tennessee, as a defendant.  
(Id. at ECF No. 6, “August 6 Order.”)  However, because Plaintiff did not state a claim for relief 
against Wilkins, Underwood, Davis, or Moore in their official capacities, and did not allege a 
deprivation of a constitutional right due to a policy or custom of Shelby County, the Court 
dismissed the suit.  (Id. at PageID 26.)  All claims were dismissed without prejudice, with leave to 
amend the Pro Se  Complaint within twenty -one days of the order.  ( Id. at PageID 27.)  
Unfortunately, Defendant did not receive a copy of the August 6 Order until it was forwarded to 
him approximately forty -eight days later because he had not filed a change of address after his  
release from the Shelby County Jail.  (Id. at ECF No. 9 at PageID 45.) 
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On September 25, 2024, Plaintiff filed a motion asking the Court permission to amend his 
Pro Se Complaint and informing the Court that he had now acquired counsel.  ( Id. at ECF No. 8, 
“September 25 Motion.”)  On October 9, the Court granted the motion and directed the clerk to 
mail a copy to Plaintiff’s Counsel, ordering Counsel  to make an appearance within twenty -one 
days and “address the relation of this case to Case No. 24-2355 [sic].”  (Id. at ECF No. 9, “October 
9 Order.”)  Counsel made an appearance on October 30, 2024.  (Id. at ECF Nos. 10, 11 & 13.)  One 
day later, Plaintiff, through Counsel, asked the Court to dismiss the suit, which the Court permitted 
(Id. at ECF Nos. 15, 16.)  The Court did not say whether the suit was dismissed with or without 
prejudice, thus, under Federal Rule of Civil Procedure 41(a)(2), the dismissal is considered to be 
without prejudice. 
III. The Pending Complaint 
After Plaintiff filed his initial complaint, but before the Court dismissed it, Plaintiff asked 
new counsel, Apperson Crump (“Counsel”), to represent him in a civil rights action, but did not 
mention that he had already filed a pro se  complaint.  ( ECF No. 21 at PageID 129.)  Counsel 
obtained information from the DA’s files regarding the incident on May 20, 2023, and filed a 
complaint on May 20, 2024.  (ECF No. 1.)  Counsel did not learn about Plaintiff’s P ro Se 
Complaint until after Judge Mays’ August 6 Order and after Plaintiff’s September 25 Motion.  
(ECF No. 21 at PageID 136.)  By the time Counsel received a copy of Judge Mays’ October 9 
Order and made an appearance, Defendants for the Pending Complaint had alr eady filed their 
Motion to Dismiss.  (Id.)  Counsel acknowledged that the Pending Complaint appears to “arise out 
of the same transaction or occurrence” as the Pro Se Complaint, but “names additional defendants 
and additional theories of liability.”  (Case No. 2:23- cv-02587, ECF No. 12 at PageID 51.)  As  
previously noted, the Court granted Plaintiff’s motion to dismiss regarding the Pro Se Complaint 
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and pursuant to Federal Rule of Civil Procedure 41, leaving the Pending Complaint as the sole 
cause of action relating to the May 20, 2023, incident. 
The Pending Complaint alleges civil rights violations under 42 U.S.C. § 1983 as well as 
Tennessee’s Governmental Tort Liability Act (“GTLA”), bringing the following counts: 
 Federal Causes of Action 
 Count 1: § 1983 Failure to Intervene – against “the Lieutenant” (individual capacity) 
 Count 2: § 1983 Failure to Intervene – against Sergeant Davis (individual capacity) 
 Count 3: § 1983 Failure to Intervene – against Sergeant Swain (individual capacity) 
 Count 4: § 1983 Failure to Intervene – against Nurse Cunningham (individual capacity) 
 Count 5: § 1983 Custom of Tolerance – against Shelby County (Monell claim) 
 Count 6: § 1983 Failure to Train – against Shelby County (Monell claim) 
 
 State Causes of Action 
 Count 7: GTLA Negligent Hiring & Retention – against Shelby County 
 Count 8: GTLA Negligent Training – against Shelby County 
 
(ECF No. 1 at PageID 18–26.)  On October 11, 2024, Defendants moved to dismiss all claims on 
the basis of duplicative litigation, qualified immunity, and the civil rights exceptions to the GTLA.  
(ECF No. 15).  On November 27, 2024, Plaintiff filed a Response in Opposition to Defendant’s 
Motion to Dismiss (ECF No. 24, “Response”), to which Defendant replied on December 27, 2024 
(ECF No. 25, “Reply”). 
STANDARD OF REVIEW 
In deciding a motion to dismiss for failure to state a claim under  Rule 12(b)(6)  of the 
Federal Rules of Civil Procedure, the court accepts the plaintiff’s “plausible factual allegations as 
true and draw[s] all reasonable inferences” in the plaintiff’s favor.  Marchek v. United Servs. Auto. 
Ass’n, 118 F.4th 830, 833 (6th Cir. 2024); Cook v. Ohio Nat’l Life Ins. Co., 961 F.3d 850, 855 (6th 
Cir. 2020).   The sufficiency of factual allegations turns on whether the pleading “state[s] a claim 
to relief that is plausible on its face.’”  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. 
Corp. v. Twombly, 550 U.S. 544, 570 (2007)) .  A claim is plausible on its face if “the plaintiff 
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pleads factual content that allows the court to draw the reasonable inference that the defendant is 
liable for the misconduct alleged.”  Id. (citing Twombly, 550 U.S. at 556).  A complaint need not 
contain detailed factual allegations; however, a plaintiff’s “[t]hreadbare recitals of the elements of 
a cause of action, supported by mere conclusory statements, do not suffice.”  Id. (citing Twombly, 
550 U.S. at 556).  In other words, “a plaintiff must allege facts that, when taken as true, state a 
claim to relief that is plausible on its face and that rises above the speculative level.”  Bray v. Bon 
Secours Mercy Health, Inc., 97 F.4th 403, 410 (6th Cir. 2024) (cleaned up).  If a court decides, in 
light of its judicial experience and common sense, that the claim is not plausible, the case may be 
dismissed at the pleading stage.  Iqbal, 556 U.S. at 679. 
“A district court is not permitted to consider matters beyond the complaint” when 
considering a motion to dismiss under Rule 12(b)(6).  Mediacom Se. L.L.C. v. BellSouth Telcoms., 
Inc., 672 F.3d 396, 399 (6th Cir. 2012).  If a court considers material outside of the pleadings, the 
motion to dismiss must be converted into a motion for summary judgment under Federal Rule of 
Civil Procedure 56, “and all parties must be given a reasonable opportunity to present all material 
pertinent to the motion.”  Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 
2011).  A court may, however, consider exhibits attached to the petition as well as exhibits attached 
to the motion to dismiss “so long as they are referred to in the [c]omplaint  and are central to the 
claims contained therein,” without converting the motion to one for summary judgment.  Bassett 
v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008). 
DISCUSSION 
Defendants ask the Court to dismiss Plaintiff’s Pending Complaint because it constitutes 
“duplicative” litigation, Defendants are entitled to qualified immunity, and the state-law claims are 
barred by the civil rights exception to the GTLA.  (ECF No. 15 at PageID 100, 104, & 111.)  
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Plaintiff argues the federal -law claims should proceed  because the Pending Complaint is 
significantly different from the original Pro Se Complaint, and because Plaintiff makes plausible 
§ 1983 claims against Defendants.  (ECF No. 21 at PageID 141 & 146.)  However, Plaintiff 
concedes that the state-law claims must be dismissed under the GTLA.  (Id. at PageID 128.) 
I. Duplicative Litigation and Claim Preclusion Doctrines 
According to Defendants, the Pending Complaint constitutes duplicative litigation because 
it arises out of the same incident and names some of the same Defendants as the Pro Se Complaint.  
(ECF No. 15-1 at PageID 97 & 101.)  Therefore, Defendants argue, its claims must be dismissed 
under the Prison Litigation Reform Act of 1995 (“PLRA”) and claim preclusion doctrines.  Under 
the PLRA, district courts must screen civil cases filed by “prisoners” and dismiss claims that are 
“frivolous, malicious, or fail[] to state a claim upon which relief may be granted.”  28 U.S.C. § 
1915A.  This reflects the goal of the PLRA to prevent meritless prisoner claims from flooding the 
courts and to “reduce the intervention of federal courts into the management of the nation’s prison 
systems.”  Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999).  When an inmate files a second 
suit regarding the same incident, the Court must dismiss the second action as “malicious.”  See, 
e.g., Swann v. Dist. Att’y of Kingsport, No. 1:22-CV-25, 2022 WL 370232, at *2 (E.D. Tenn. Feb. 
7, 2022).  Claims are “malicious” when they “merely repeat[] pending or previously litigated 
claims.”  Brown v. Tribble, No. 1:22-CV-419, 2022 WL 3643734, at *3 (W.D. Mich. Aug. 24, 2022) 
(collecting cases).  In other words, district courts dismiss complaints where the “claims, parties, 
and available relief do not significantly differ from an earlier-filed action.”  Id. at *4.  Courts also 
consider whether the second action “evidence[s] an intent to vex defendants or abuse the judicial 
process by relitigating claims decided in prior cases.”  Rankin v. Brian Lavan & Assocs., P .C., No. 
23-1949, 2024 WL 4675282, at *2 (6th Cir. July 3, 2024) (quoting Washington v. Reno, No. 95-
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5062, 1995 WL 376742, at *1 (6th Cir. June 22, 1995)). 
Here, Plaintiff filed a pro se complaint on September 15, 2023, and then a second complaint, 
through counsel, on May 20, 2024.  Both actions clearly arise from the same incident on May 20, 
2023, which occurred between Plaintiff and corrections officers at the Shelby County Jail .  Both 
allege civil rights violations under § 1983 and therefore have the same possible relief.  However, 
the complaints differ significantly in their claims and parties. 
For instance, t he Pro Se Complaint focuses on Wilkins’ and Underwood’s actions inside 
the medical exam room.  Plaintiff also describes his altercation with Sergeant Davis before being 
escorted to the medical clinic and the nursing staff’s failure to treat him after the alleged beating.  
(Case No. 2:23- cv-02587, ECF No. 1 at PageID 2 –3; ECF No. 1- 1 at PageID 4.) 1  Judge Mays 
liberally construed Plaintiff’s claims as “(1) excessive use of force, (2) failure to protect, and (3) 
deprivation of medical care.”  (Case No. 2:23-cv-02587, ECF No. 6 at PageID 21.); see also Martin 
v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (“The pleadings of pro se petitioners are held to less 
stringent standards than those prepared by attorneys, and are liberally construed . . . .” )  These 
claims were dismissed because Plaintiff failed to state whether he was suing the officers in their 
official or individual capacity; therefore, the C ourt presumed Plaintiff was suing them in their 
official capacity, added Shelby County as a party, and treated the claims as Monell claims.  (Case 
No. 2:23-cv-02587, ECF No. 6 at PageID 25–26.)  Since Plaintiff did not plead sufficient facts to 
establish a Monell claim, the Court dismissed the Pro Se Complaint without prejudice.  (Id.)2 
 
1  In his hand-written complaint, Plaintiff alleges, “I was refused Medical Attention i never 
seen a Nurse, I Kept screaming for help from the Nurses to take pictures. Every Nurse walk away 
and had No dealings with my situation.”  (Case No. 2:23-cv-02587, ECF No. 1-1 at PageID 4.) 
 
2  As Defendants point out, Plaintiff had leave to amend within twenty- one days.  ( ECF 
No. 15 at PageID 96–97.)  However, Plaintiff failed to update his address with the Court and did 
not receive Judge Mays’ order for forty-eight days, at which point Plaintiff—unbeknownst to his 
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In contrast, the Pending Complaint focuses on Defendants’ actions outside of the medical 
exam room.  Plaintiff alleges Sergeant Davis, Sergeant Swain, and “the Lieutenant” were all near 
Room 213 during the alleged beating but did nothing to intervene, despite outranking Wilkins and 
Underwood.  (Case No. 2:24-cv-02335, ECF No. 21 at PageID 132–33.)  The Pending Complaint 
includes facts unknown to the Defendant at the time he made his Pro Se Complaint.  (Id. at PageID 
131.)  Furthermore, this second action alleges twenty -three instances of excessive force used by 
SCSO correctional officers against inmates between 2018 and 2023, and alleges that Shelby 
County adopted a “Duty to Intervene” policy in June 2020, but did not train jail staff in how to 
implement the policy and did not enforce it.  (ECF No. 1 at PageID 12–18.)  As Plaintiff argues, 
these claims go “well beyond” those of the Pro Se Complaint.  (ECF No. 21 at PageID 141.) 
Additionally, the Pro Se Complaint lists four officers as defendants: Wilkins, Underwood, 
Davis, and Moore.  (Case No. 2:23- cv-02587, ECF No. 1 at PageID 2.)  Judge Mays construed 
Plaintiff’s Pro Se Complaint as suing the officers in their official capacity, thereby adding Shelby 
County as a defendant.  ( Id., ECF No. 6 at PageID 25.)  The Pro Se Complaint makes factual 
allegations about Sergeant Davis’ conduct during the fourth- floor altercation as well as Wilkins’ 
and Underwood’s conduct in the medical clinic and the ad-seg unit.  The Pro Se Complaint makes 
no specific allegations against Officer Moore, beyond mentioning that she was present during the 
fourth-floor security check.  (Id., ECF No. 1 at PageID 2.) 
In contrast, the Pending Complaint brings claims against three officers (Kendall Davis, 
Tamiko Swain, and “the Lieutenant,” likely one of three lieutenants present at the Shelby County 
 
attorneys—asked for leave to amend.  (ECF No. 21 at PageID 136.)  By the time Plaintiff’s attor-
neys learned about the Pro Se Complaint, the Defendants for the Pending Complaint had already 
filed a Motion to Dismiss.  (Id.)  Therefore, Plaintiff opted to continue with the Pending Complaint 
and asked the Court to dismiss the Pro Se Complaint pursuant to Federal Rule of Civil Procedure 
41, which the Court granted. (Id. at PageID 137.) 
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Jail on May 20, 2023—Jacques Jones, Tracy Williams, and Carlus Cleaves), one nurse (Ashlyn 
Cunningham), and Shelby County.  The Pending Complaint does not list Wilkins, Underwood, or 
Moore as defendants, and it specifically sues Davis in his individual rather than official capacity.3  
Therefore, the Pending Complaint and Pro Se  Complaint share only one Defendant in common: 
the County, which Plaintiff did not name in the original complaint and was added later as a matter 
of procedure.4 
Considering the significant differences between  the two complaints, the Court finds it 
unlikely that Plaintiff filed the second c omplaint with the intent to “vex defendants or abuse the 
judicial process.”  Rankin , No. 23- 1949, 2024 WL 4675282, at *2.  Moreover, the Pending 
Complaint does more than “merely repeat[] pending or previously litigated claims .”  Brown, No. 
1:22-CV-419, 2022 WL 3643734, at *3.  Therefore, the Court finds it is not duplicative or 
malicious under the PLRA. 
Lastly, Defendants argue even if Plaintiff’s Pending Complaint is not malicious, it is still  
precluded by the doctrines of duplicative litigation and claim-splitting.  (ECF No. 15-1 at PageID 
 
3  Because “[a] suit against an individual in his official capacity is the equivalent of a suit 
against the governmental entity,” a suit against a state actor in his or her individual capacity does 
not duplicate official -capacity claims.  Baar v. Jefferson Cnty. Bd. of Educ., 476 F. App’x 621, 
635 (6th Cir. 2012) (quoting Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)). 
 
4  Defendant argues res judicata bars suit against Defendants Jones, Williams, Cleaves, 
and Swain, even though they were not named in Plaintiff’s Pro Se  Complaint , because as 
employees they are “in privity” with the County.  (ECF No. 15-1 at PageID 104.)  However, even 
if Plaintiff’s first suit had received a final judgment, res judicata would only bar suit against these 
Defendants in their official capacity.  See McCoy v. Michigan, 369 F. App’x 646, 650 (6th Cir. 
2010) (holding, where plaintiff had previously sued the employer county, res judicata only barred 
a second suit against employee officers in their official capacity, not in their individual capacity).  
Furthermore, the privity theory also fails because individual Defendants do not satisfy the 
conditions of privity for the purposes of res judicata.  (ECF No. 21 at PageID 146.)  As Plaintiff 
points out, they are not “successors in interest to the County,” they did not “control the litigation,” 
and “nothing suggests the County adequately represented their interests  in the prior action.”  (Id. 
(citing Mitchell v. Chapman, 343 F.3d 811, 823 (6th Cir. 2003).) 
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102–03.)  Both doctrines stem from the U.S. Supreme Court’s instruction that “[a]s between 
federal district courts . . . the general principle is to avoid duplicative litigation.”  Waad v. Farmers 
Ins. Exch., 762 F. App’x 256, 260 (6th Cir. 2019) (citing Colorado River Water Conservation Dist. 
v. United States, 424 U.S. 800, 817 (1976)).  District courts have the authority to “stay or dismiss 
a suit that is duplicative of another federal court suit .”  Id. (citing Curtis v. Citibank, N.A., 226 
F.3d 133, 138 (2d Cir. 2000)).  Courts may also dismiss a second action for claim-splitting even if 
the first action has yet to receive a final judgment.  Id.  (quoting Katz v. Gerardi, 655 F.3d 1212, 
1218 (10th Cir. 2011) (“[T]he test for claim splitting is not whet her there is finality of judgment, 
but whether the first suit, assuming it were final, would preclude the second suit.”)). 
Here, Plaintiff ’s second claim would be precluded if the Pro Se  Complaint had been 
litigated.  However, since the Court has already dismissed it without prejudice, the issue of claim 
preclusion is now moot.5 
Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to Defendants’ 
claims that the Pending Complaint is malicious, duplicative, or barred by claim-splitting.6 
II. Qualified Immunity 
Defendants also claim individual Defendants are entitled to qualified immunity as to the § 
 
5  Although the Pro Se  Complaint was still pending at the time of Defendants ’ Motion, 
Judge Mays dismissed the action without prejudice shortly thereafter.  (Case No. 2:23- cv-02587, 
ECF No. 16 & 17.)  Defendants point out that  Plaintiff had the option to amend his original 
complaint.  (Id., ECF No. 15-1 at PageID 96.)  However, by the time Plaintiff  received notice of 
the Court’s leave to amend in the August 6 and October 9 Orders, circumstances had changed: (1) 
Plaintiff had already filed the second complaint with significantly different claims and parties, (2) 
the statute of limitations (one year under Tennessee law) barred Plaintiff from adding defendants 
to his original complaint, and (3) none of the defendants named in the first suit had responded to 
the original complaint.  Therefore, the Court finds it equitable to allow the Pending Complaint to 
proceed as the sole remaining action, even though it was filed second. 
 
6  Since Defendants’ Motion does not challenge the Monell claims against Shelby County 
under any other theory, all federal claims against the County survive. 
 
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1983 failure to intervene claims because Plaintiff has failed to show Defendants  knew of the 
alleged excessive force or had the opportunity to intervene.  (ECF No. 15-1 at PageID 104). 
To bring a claim under 42 U.S.C. § 1983, plaintiffs must show a government official acting 
under the color of state law deprived them of a constitutional right.  Peatross v. City of Memphis , 
818 F.3d 233, 240 (6th Cir. 2016).  The U.S. Constitution protects those in state custody from the 
use of excessive force.  Leary v. Livingston Cnty., 528 F.3d 438, 443 (6th Cir. 2008).  Pre -trial 
detainees may bring excessive force claims under the Fourteenth Amendment Due Process Clause, 
which courts analyze using an objective deliberate indifference standard.  Kingsley v. Hendrickson, 
576 U.S. 389, 400 (2015).7  In other words, plaintiffs must show that the officer’s use of force was 
objectively unreasonable.  Id. at 397.  Factors to consider are “the relationship between the need 
for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort 
made by the officer to temper or to limit the amount of force; the severity of the security problem 
at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively 
resisting.”  Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). 
Pre-trial detainees may also sue officers who fail to intervene in the use of excessive force.  
Chaney-Snell v. Young, 98 F.4th 699, 721 (6th Cir. 2024).  To assert a failure to intervene claim, 
the plaintiff must allege “(1) the officer observed or had reason to know that excessive force would 
be or was being used, and (2) the officer had both the opportunity and the means to prevent the 
 
7  Traditionally, all prisoners brought excessive force claims under the Eighth 
Amendment’s prohibition against cruel and unusual punishment.  Brawner  v. Scott Cnty., 
Tennessee, 14 F.4th 585, 591 (6th Cir. 2021).  Courts analyze d these claims using a two -prong 
deliberate indifference standard where plaintiffs had to show the officer’s use of force was both 
subjectively and objectively unreasonable.  Id.  However, in Kingsley, the U.S. Supreme Court held 
that the Eighth Amendment is inapplicable to pre -trial detainees who, due to the presumption of 
innocence, cannot be punished.  576 U.S. at  400.  Therefore, excessive force claims by pre -trial 
detainees are more appropriately brought under the Fourteenth Amendment Due Process Clause 
using an objective deliberate indifference standard.  Id. at 396–97. 
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harm from occurring.”  Groth v. City of Birmingham, 761 F. Supp. 3d 1031, 1053–54 (E.D. Mich. 
2025) (quoting Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)).  Courts also consider 
whether the officer was deliberately indifferent to the plaintiff’s health and safety.  Westmoreland 
v. Butler Cnty., Ky., 29 F.4th 721, 726 (6th Cir. 2022).8  However, “officers cannot be held liable 
under this theory if they do not have ‘a realistic opportunity to intervene and prevent harm.’” Wells 
v. City of Dearborn Heights, 538 F. App’x 631, 640 (6th Cir. 2013) (quoting Ontha v. Rutherford 
Cnty., Tenn., 222 F. App’x 498, 507 (6th Cir. 2007).  Furthermore, an officer’s “ mere presence 
during [an] altercation without a showing of direct responsibility cannot subject them to liability.”  
Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013) (citing Binay v. Bettendorf , 601 F.3d 640, 
650 (6th Cir. 2010)). 
Qualified immunity shields government officials performing discretionary functions from 
civil liability unless their conduct violates “clearly established statutory or constitutional rights of 
which a reasonable person would have known.”  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  
The purpose of qualified immunity is to “hold public officials accountable when they exercise 
power irresponsibly” while also shielding officials from “harassment, distraction, and liability 
when they perform their duties reaso nably.”  Peatross, 818 F.3d at 240 (quoting Pearson v. 
Callahan, 555 U.S. 223, 231 (2009)).  To determine whether a government official is entitled to 
qualified immunity, a court may conduct a two- step inquiry: first, viewing the facts in the light 
most favorable to the plaintiff, have the plaintiff’s allegations shown the officer’s conduct violated 
a constitutional right?  Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010).  Second, was 
 
8  See also Brawner , 14 F.4th at 596–97 ( citing Farmer v. Brennan, 511 U.S. 825, 836 
(1994)) (holding that deliberate indifference in this context goes beyond “mere negligence” and is 
more like acting recklessly “in the face of an unjustifiably high risk of harm that is either known 
or so obvious that it should be known”) 
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the right clearly established at the time of the alleged violation?   Id.  Courts may analyze either 
prong of the analysis first.  Pearson, 555 U.S. at 236.  The plaintiff has the burden of showing 
“that a clearly established right has been violated and that the official’s conduct caused that 
violation.”  Essex v. Cnty. of Livingston, 518 F. App’x 351, 357 (6th Cir. 2013). 
At the pleading stage, dismissal on qualified immunity grounds is generally disfavored.  
Hart v. Hillsdale Cnty., 973 F.3d 627, 635 (6th Cir. 2020).  The Sixth Circuit has consistently held 
that “[i]t is preferable to resolve the ‘threshold question’ of a government officer’s entitlement to 
qualified immunity at ‘summary judgment[,] . . . not dismissal under Rule 12.’”  Id.  (quoting 
Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015)).  This is because “development of the 
factual record is frequently necessary to decide whether the official’s actions violated clearly 
established law.”  Id. (quoting Singleton v. Kentucky, 843 F.3d 238, 242 (6th Cir. 2016)); see also 
Kulpa for Est. of Kulpa v. Cantea, 708 F. App’x 846, 854 (6th Cir. 2017)  (“We have repeatedly 
denied qualified immunity when officers observe the use of excessive force yet fail to intercede.” 
(citations omitted) (collecting cases)). 
Prior to addressing the  qualified immunity inquiry, the Court will first consider whether 
Plaintiff has pleaded sufficient facts to show that excessive force was used and Defendants failed 
to intervene.  Plaintiff alleges Officers Wilkins and Underwood entered the medical exam room 
several times, made verbal threats, and struck him “more than ten times in the head with their fists, 
handcuffs (used as brass knuckles), and metal Freeze +P canisters”— all while Plaintiff had his 
hands cuffed behind his back and was not resisting the officers.  (ECF No. 1 at PageID 6–8.)  These 
allegations are more than sufficient to establish a plausible claim of excessive force.  The question, 
then, is whether individual Defendants failed to intervene—specifically, did they (1) know about 
the excessive force and (2) have the opportunity and means to prevent it.  Groth , 761 F. Supp. 3d 
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at 1053–54.  The Court will address these questions in the context of the qualified immunity 
inquiry for each individual Defendant. 
Under the first prong of the qualified immunity inquiry, the Court asks whether the alleged 
facts show Sergeant Davis violated Plaintiff’s right against excessive force by failing to intervene.  
Specifically, the Court asks whether Davis (1) knew about the excessive force , (2) had the 
opportunity and means to prevent it, but (3) did not take action to prevent it.  Groth, 761 F. Supp. 
3d at 1053–54; Essex, 518 Fed.Appx. at 357. 
Plaintiff alleges that, after the altercation on the fourth floor, Davis was being treated for a 
hand injury in Room 212, the medical exam room next to the one Plaintiff occupied at the time of 
the alleged beating.  (ECF No. 1 at PageID 6 –7.)  According to Plaintiff, Davis’s injury was the 
reason Wilkins and Underwood wanted to teach Plaintiff a “lesson.”  ( Id.)  Footage from the 
security camera displays Wilkins entering Room 213 for the second time at 1:56 p.m., when he 
allegedly called Plaintiff “bitch” and said he was about to learn “what happens in here” to inmates 
who injure guards.  (Id. at PageID 6.)  In his Pro Se Complaint, Plaintiff did not know who was in 
the next room, but he alleged Wilkins and Underwood left the room  to “get the say so” from a 
higher-ranking officer.  (ECF No. 15-1 at PageID 96.)  Plaintiff also heard Wilkins state, “We got 
this, Sarge,” before entering Room 213 for a third time at 1:58 p.m.  (ECF No. 1 at PageID 6–7.)  
According to the Pending Complaint, Wilkins and Underwood repeatedly hit and kicked Plaintiff, 
who was still hand-cuffed behind his back, all “well within earshot of the Lieutenant in the hallway 
and the other staff in Room 212.”  ( Id. at PageID 7.)  These facts support a plausible claim that 
Davis knew about Wilkins’s and Underwood’s use of excessive force, both before it happened and 
while it was happening. 
Defendants argue that even if Davis knew about the excessive force, he  did not have a 
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“realistic opportunity” to intervene because “the assault was brief” and “Sergeant Davis was 
preoccupied with his own injury during that time.”  (ECF No. 15-1 at PageID 109.)  However, this 
argument has little merit because Davis was warned of Wilkins’ and Underwoods’ plans (“We got 
this, Sarge”) and, as their superior officer, had the opportunity to order them to stand down.  (ECF 
No. 21 at PageID 151.)  This holds true even if he was receiving treatment for a minor injury.  
Therefore, since Plaintiff has alleged sufficient facts to show Davis knew about the excessive force, 
had the opportunity to prevent it, but did not take action to prevent it, the Court finds the first prong 
of the qualified immunity inquiry is met. 
The second prong of the qualified immunity inquiry—whether the constitutional right was 
“clearly established” at the time of the alleged violation—is also met .  The Sixth Circuit has clearly 
established that those in state custody, whether pre -trial detainees or convicted inmates, have a 
constitutional right against excessive force, and that officers are liable for failure to intervene.  See, 
e.g., Chaney-Snell, 98 F.4th at 721 (6th Cir. 2024) (citing Bruner v. Dunaway, 684 F.2d 422, 425–
426 (1982)) (“[A]n officer who fails to intervene to prevent another officer’s excessive force can 
face liability for that force under § 1983.”); McHenry v. Chadwick , 896 F.2d 184, 188 (6th Cir. 
1990) (“[A] corrections officer who observes an unlawful beating may, nevertheless, be held liable 
under § 1983 without actively participating in the unlawful beating.”) 
Defendants argue that Davis  could not have reasonably known that by “failing to cease 
receiving medical treatment for his own injuries, he would be violating Plaintiff’s constitutional 
rights.”  (ECF No. 15-1 at PageID 108–110.)  Defendants cite Sixth Circuit case law where courts 
did not hold officers liable for failing to intervene when they were preoccupied with other duties .  
(Id. at PageID 108 (citing Chaney- Snell, 98 F.4th at 723; Wright v. City of Euclid, 962 F.3d 852, 
972 (6th Cir. 2020).)  However, these cases granted immunity to officers who were actively 
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detaining the plaintiff or another individual, not receiving medical treatment.  ( Id.)  As Plaintiff 
argues, just because Davis was receiving medical treatment did not give him a “pass” to ignore 
what was occurring in the next room.  (ECF No. 21 at PageID 150.)  As long as his injury was not 
severe, and his treatment not overwhelming, he still had the ability to order Wilkins and 
Underwood to stand down.  (Id. at PageID 151.)  Therefore, “no reasonable officer in his position 
would have believed that he could let the beating occur because he was, in the technical  sense, 
‘receiving medical care.’” (Id.)  The Court agrees with Plaintiff’s assessment.  Therefore,  the 
second prong of the qualified immunity inquiry is met 
Thus, in viewing the allegations in the light most favorable to Plaintiff, the Court finds that 
Plaintiff has alleged sufficient facts to show a plausible claim  for failure to intervene against 
Sergeant Davis, and that Sergeant Davis is not entitled to qualified immunity at this time. 
Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to claims against 
Defendant Sergeant Davis. 
With respect to Sergeant Swain, the Court will apply the same qualified immunity inquiry. 
Under the first prong of the  analysis, the Court will ask whether the alleged facts show Sergeant 
Swain violated Plaintiff’s right against excessive force by failing to intervene.  Specifically, the 
Court will consider whether Swain (1) knew about the excessive force, (2) had the opportunity and 
means to prevent it, but (3) did not take action to prevent it.  Groth , 761 F. Supp. 3d at 1053–54; 
Essex, 518 Fed.Appx. at 357. 
Plaintiff alleges that the camera footage captured Swain in front of Room 213 while  
Plaintiff was being treated  by Nurse Armstrong.  (ECF No. 1 at PageID 5.)  During this time, 
Wilkins and Underwood stood in the hallway talking with Swain and other officers.  (Id.)  Plaintiff 
alleges the conversation centered around Sergeant Davis’s hand injury and “how Florez-Ramirez 
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ought to be punished.”  ( Id. at PageID 6.)  According to the Pending Complaint, at 1:56 p.m., 
“Wilkins removed his wristwatch, handed it to Sergeant  Swain, and went back into Room 213.”  
(Id. at PageID 6.)  Plaintiff alleges that “Sergeant Swain knew Wilkins took off his wristwatch in 
anticipation of physical ly attacking Florez- Ramirez” and “did nothing to stop the attack from 
happening.”  (Id.)  Defendant argues this “lone factual allegation” is not enough to establish Swain 
knew about the excessive force.  (ECF No. 15- 1 at PageID 107.)  Fur thermore, Defendant points 
out, camera footage shows officers dispersing after Wilkins and Underwood reentered Room 213, 
indicating Swain “would not have been anywhere near Plaintiff’s medical room at the time of the 
assault.”  ( Id.)  However, Plaintiff’s allegations that Swain heard Wilkins’ and Underwoods’ 
grievances, and that Wilkins gave her the wristw atch “in anticipation of physically attacking 
Florez-Ramirez” are sufficient to show a plausible claim that Swain knew or should have known 
that Wilkins and Underwood were about to use excessive force. 
Defendants argue that Swain did not have a realistic opportunity to intervene since she left 
the scene during the alleged beating.  (ECF No. 15- 1 at PageID 107.)  However, like Sergeant 
Davis, Sergeant Swain outranked Wilkins and Underwood and had both the opportunity and 
authority to order them to stand down before they went back into Room 213.  Therefore, since 
Plaintiff has alleged sufficient facts to show Swain knew or should have known about the excessive 
force, had the opportunity to prevent it, but did not take action to prevent it, the Court finds the 
first prong of the qualified immunity inquiry is met.  The second prong is also met for the reasons 
discussed above. 
Thus, viewing the allegations in the light most favorable to Plaintiff, the Court finds that 
Plaintiff has alleged sufficient facts to show a plausible claim for failure to intervene against 
Sergeant Swain, and that Sergeant Swain is not entitled to qualified immunity at this time. 
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Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to claims against 
Defendant Sergeant Swain. 
Next, the Court will address  the qualified immunity inquiry as applied to the Lieutenant.  
Under the first prong of the inquiry, the Court asks whether the alleged facts show the Lieutenant 
violated Plaintiff’s right against excessive force by failing to intervene.  Specifically, the Court 
asks whether the Lieutenant (1) knew about the excessive force, (2) had the opportunity and means 
to prevent it, but (3) did not take action to prevent it.  Groth , 761 F. Supp. 3d at 1053–54; Essex, 
518 F. App’x at 357. 
According to Plaintiff, camera footage also reveals a lieutenant in the hallway with Wilkins 
and Underwood while Nurse Armstrong treated Plaintiff.  (ECF No. 1 at PageID  5.)  The 
Lieutenant was “distinguishable because his SCSCO uniform included a necktie.”  (Id.)  Plaintiff 
alleges Underwood and the other officers were talking about Sergeant Davis’ s hand injury and 
“how Florez -Ramirez ought to be punished.”  ( Id. at PageID 6.)  According to the Pending 
Complaint, after Wilkins and Underwood returned to Room 213, the Lieutenant “directed everyone 
else to disperse” and “remained standing directly outside Room 213—arms crossed, looking up 
and down the now -empty hallway,” as if to stand watch.  ( Id. at PageID 7.)  P laintiff argues the 
Lieutenant facilitated the “assault and battery” in this way, or “[a]t the very least . . . would have 
heard everything happening inside the Room 213.”  ( Id.)  These allegations sufficient ly 
demonstrate the Lieutenant knew about the excessive force, had the opportunity to prevent it, yet  
did not take action to prevent it.  Therefore, the first prong of the qualified immunity inquiry is 
met.  The second prong is also met for the aforementioned reasons.  Therefore, the Lieutenant 
would not be entitled to qualified immunity if he were properly identified and named.
9 
 
9  Plaintiff claims the Lieutenant is likely one of three lieutenants present at the Shelby 
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Defendants do not dispute the presence of a lieutenant in the hallway but argue that Plaintiff 
has not made specific allegations against Defendants Jones, Williams, and Cleaves.  (ECF No. 15-
1 at PageID 106.)  As Defendant points out, § 1983 claims must “specifically link the officer’s 
involvement” to the constitutional violation.  (Id. at PageID 105 (citing Przybysz v. City of Toledo, 
746 F . App’x 480, 483 (6th Cir. 2018).)   Thus, a plaintiff must show each defendant was 
“personally involved in the wrongful conduct” and “attribute specific factual allegations to 
particular defendants.” (Id. at PageID 105–06 (first quoting Barkes v. First Corr. Med., Inc., 766 
F.3d 307, 316 (3d Cir. 2014) ; and then quoting Alghusain v. Nemeth, 2021 U.S. Dist. LEXIS 
168540, at *13 (N.D. Ohio Sep. 7, 2021).)   Defendant argues that because Plaintiff “lumps” the 
three lieutenants together, he has failed to state a claim against each of them and they are entitled 
to qualified immunity.  (Id. at PageID 106.) 
On the contrary, P laintiff argues the Pending Complaint “alleges specific, individual 
actions against each of the three corrections officers  at once. ”  (ECF No. 21 at PageID 147).  
Plaintiff cites to Federal Rule of Civil Procedure 8(d) , which allows parties to plead inconsistent 
claims that district courts have construed “to cover inconsistent factual allegations” as well.  ( Id. 
(citing Truck and Auto Extras, LLC, No. 5:19-CV-280-REW, 2020 WL 3578348, at *5 (E.D. Ky. 
Jul. 1, 2020).)  Plaintiff argues that s ince the lieutenant in the camera footage violated Plaintiff’s 
constitutional rights, and “that individual might plausibly have been one of several persons,” Rule 
8(d) allows him to make inconsistent factual allegations against all three lieutenants until he can 
 
County Jail on May 20, 2023—Jacques Jones, Tracy Williams, or Carlus Cleaves.  ( ECF No. 21 
at PageID 133.)  Plaintiff obtained this information from the SCSO’s internal investigation into the 
incident as part of the Shelby County DA’s policy of sharing pertinent criminal case information 
with crime victims and civil attorneys representing them.  ( Id. at PageID 129, n.4.)  According to 
the Pending Complaint, Plaintiff  “does not anticipate substantively proceeding against all three 
SCSO lieutenants” but names them “to preserve [his] claims until [he can] establish the 
Lieutenant’s identity.”  (ECF No. 1 at PageID 2, n. 2.) 
 
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“rule out those mistakenly named.”  (Id.)  Defendants disagree, arguing Rule 8(d) allows pleading 
claims and factual allegations in the alternative but not defendants in the alternative.  (ECF No. 25 
at PageID 156.)  De fendant argues the proper way to preserve a claim against an unknown party 
is to sue “John Doe” and later change the name.  (Id. (citing Colson v. City of Alcoa, 458 F. Supp. 
3d 887, 918 (E.D. Tenn. 2020).)  However, as Plaintiff elucidates, the Sixth Circuit does not allow 
parties to change “John Doe” for a different name after the statute of limitations has passed, 
because this is considered a change of parties rather than a mistake of identity.  (ECF No. 21 at 
PageID 147–48 (citing Moore v. Tennessee, 267 F. App’x 450, 455 (6th Cir. 2008).) 
Both parties are correct.  Defendants are right that Plaintiff must make specific allegations 
against Defendants in order for his claims against them to proceed.  Przybysz, 746 Fed. App’x. at 
483.  However, Plaintiff is right that, the statute of limitations having run, the Federal Rules of 
Civil Procedure do not allow him to preserve his claims against the L ieutenant by using a “John 
Doe” placeholder.  Moor e, 267 F. App’x at 455.  Instead, Plaintiff relies on the U.S. Supreme 
Court’s decision in Twombly that, at the pleading stage, he need only “state a claim to relief that is 
plausible on its face.”  550 U.S. at 570.  This pleading standard enables plaintiffs  who might not 
otherwise have access to evidence under a defendant’s control to “raise a reasonable expectation 
that discovery will reveal evidence” supporting their claims.  Id. at 556. 
Here, Plaintiff has raised a “reasonable expectation” that jail records may reveal which 
Defendant was the Lieutenant in the hallway during the alleged beating on May 20, 2023.  
Although more than a year has passed since Plaintiff filed the Pending Complaint, discovery has 
been stayed while the Court considers whether Defendants are entitled to qualified immunity.  
Having found they are not entitled to qualified immunity at this time, the Court finds it appropriate 
to allow Plaintiff to proceed with his claims against Defendants Jones, Williams, and Cleaves and 
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establish the Lieutenant’s identity during discovery.  If, at the end of discovery, Plaintiff has not 
discerned which Defendant is the L ieutenant, the Court will dismiss claims  against all three.  If 
Plaintiff discovers a different officer was the Lieutenant, the Court will dismiss claims against all 
three, and Plaintiff will be barred from adding the new defendant since he or she did not receive 
process within the time prescribed by local rules of civil procedure.10 
Thus, taking both parties’ arguments into consideration and viewing the allegations in the 
light most favorable to Plaintiff, the Court finds Plaintiff has alleged sufficient facts to show a 
plausible claim for failure to intervene against Defendants Jones, Williams, and Cleaves.  
Therefore, they are not entitled to qualified immunity at this time. 
Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as to claims against 
Defendants Jones, Williams, and Cleaves.  The Court DIRECTS  Plaintiff to identify which 
Defendant is the unknown “Lieutenant” as soon as possible in the discovery phase, and then to file 
a Rule 21 motion asking the Court to dismiss claims against Defendants who are not “the 
Lieutenant.” 
Lastly, the Pending Complaint also asserts  a failure to intervene claim against Nurse 
Cunningham.  However, in the Response, Plaintiff states, “[f]or reasons beyond the scope of this 
Response, Florez-Ramirez elects not to proceed against Nurse Cunningham at this time.”  (ECF 
No. 21 at PageID 131, n.6.) 
Accordingly, Plaintiff’s claims against Ashlyn Cunningham in the Pending Complaint 
 
10  In this case, sixty days from filing of the Pending Complaint and service order .  Local 
Rule 4.1(c); see also Fed. R. Civ. P. 15(c)(C) (allowing plaintiffs to change a party only if that 
party, within the time limit for service of process, “(i) received such notice of the action that it will 
not be prejudiced in defending on the merits; and (ii) knew or should have known that the action 
would have been brought against it, but for a mistake concerning the proper party’s identity.”) 
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(ECF No. 1) are DISMISSED WITHOUT PREJUDICE.11 
III. GTLA Claims 
Defendants argue that Plaintiff’s state-law claims cannot continue because GTLA does not 
remove governmental immunity for injuries arising from allegations of civil rights violations or 
governmental entities exercising discretionary functions.  (ECF No. 15- 1 at PageID 111 (citing 
Tenn. Code Ann. § 29-20-205).)  Plaintiff concedes this point and chooses to “proceed solely under 
Section 1983.”  (ECF No. 21 at PageID 128.) 
Accordingly, Defendants’ Motion to Dismiss (ECF No. 15) is GRANTED as to claims 
under Tennessee’s Governmental Tort Liability Act against Shelby County, Tennessee. 
CONCLUSION 
 For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 15) is DENIED as 
to the federal claims because the Pending Complaint is not malicious, duplicative, or barred by 
claim-splitting, and individual Defendants are not entitled to qualified immunity at this time.  
Defendants’ Motion is GRANTED as to the state-law claims which are precluded by the GTLA.  
Furthermore, the Court DIRECTS  Plaintiff to identify which Defendant is the unknown 
“Lieutenant” as soon as possible in the discovery phase, and then to file a Rule 41 motion asking 
the Court to dismiss claims against Defendants who are not “the Lieutenant.” 
Finally, the Court DISMISSES WITHOUT PREJUDICE  all claims in the Pending 
Complaint against Ashlyn Cunningham, RN. 
 IT IS SO ORDERED, this 31st day of March, 2026.
 
s/ Mark S. Norris 
MARK S. NORRIS 
UNITED STATES DISTRICT JUDGE 
 
11  Since Ashlyn Cunningham has not responded to the Pending Complaint and was not 
represented in this Motion, there is no need to grant or deny the motion as to this claim. 
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