govinfo:USCOURTS-tnwd-2_20-cv-02335-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION 
 
 
APRIL HEARD, as Administrator of the  
Estate of Derrickia Heard,  
 
   Plaintiff, 
 
v.                Case No. 2:20-cv-02335-MSN-cgc 
           
MONIQUE THOMAS, 
Individually,  
 
   Defendant. 
 
 
ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL 
 
 
Before the Court is Plaintiff April Heard’s timely Motion for New Trial (ECF No. 240) 1, 
filed on September 26, 2024.    A jury trial was held in this matter  in August of 2024.  The jury 
returned a verdict in favor of Defendant Monique Thomas , and final judgment was entered on 
August 30, 2024.  (ECF No. 239.)  Defendant replied in opposition to the Motion for New Trial 
on October 10, 2024.  (ECF No. 250) .  No repl y was filed.  For the reasons below, Plaintiff’s 
Motion for New Trial is DENIED.2 
In short, regardless of whether the  jury’s verdict on the “under color of law” issue was 
against the weight of the evidence, a new trial is not warranted because the jury independently 
found that Defendant’s actions did not amount to a constitutional violation.  See Robertson v. 
 
1 Once the trial transcripts were released, Ms. Heard filed a “Corrected Memorandum In 
Support of Motion for New Trial” on October 28, 2024.  (ECF No. 252.)  The Corrected 
Memorandum purports only to add record citations and not substantive argument.  ( See ECF No. 
240-1, n. 1.)   
 
2 The Court also DENIES Plaintiff’s Motion for Sanctions (ECF No. 242). 
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Lucas, 753 F.3d 606, 614 (6th Cir. 2014).  Since both elements are required for Plaintiff’s § 1983 
claim, and the jury’s finding on the constitutional violation stands on its own merits, there is no 
basis for disturbing the verdict.  
BACKGROUND 
This matter arose from a physical confrontation between a high school student and a school 
security officer who was employed by the local school district.  The Court assumes knowledge of 
the factual background, but to  clear the muddied  waters of th e record, the Court discusses the 
relevant procedural history below.  Ms. Heard (“ Plaintiff”), as parent and next friend of her 
daughter, Derrickia Heard, initially filed her Complaint in the Circuit Court of Shelby County, 
Tennessee, against both Monique Thomas (“Defendant”)  and her then -employer, t he Shelby 
County Board of Education (“SCBOE”) .3  SCBOE properly removed the  state lawsuit to this 
Court.  (ECF No. 1.)  The Complaint asserted a variety of tort claims  under Tennessee law and 
various federal civil rights violations under 42 U.S.C. § 1983 against Defendant Thomas.  The 
federal claims included  allegations that Defendant viola ted Derrickia Heard’s First Amendment 
right to free speech, her Fourth Amendment protection against use of unreasonable force, and her 
Fourteenth Amendment substantive due process guarantee. 4  (ECF No. 1- 1 at PageID 12 –14.)  
Both Plaintiff’s Fourth Amendment and Fourteenth Amendment claims arose from the same 
allegations of excessive force.    
 
3 SCBOE has since undergone a name change to “Memphis-Shelby County Schools.” 
 
4 The Complaint also asserted state law claims and Monell  liability against Defendant’s 
employer, SCBOE.  (ECF No. 1-1 at PageID 12–14.)  In August of 2020, all claims against SCBOE 
were dismissed for failure to state a claim, leaving Monique Thomas as the only remaining 
defendant.  (ECF No. 13.)   
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I. Summary Judgment  
Following more than a year of discovery  and mediation, Defendant filed a Motion for 
Summary Judgment  on all claims .  (ECF No. 62.)   Defendant argued that summary judgment 
should be granted on Plaintiff’s Fourteenth Amendment claim because the Fourth Amendment 
controls all claims of excessive force arising from a “seizure.”  (ECF No. 62- 1 at PageID 387.)  
Specifically, Defendant argued that because Plaintiff’s Fourth Amendment claim was grounded in 
the same factual allegations as her Fourteenth Amendment claim, Plaintiff should only be allowed 
to proceed on the former and summary judgment should be granted on the latter.  (Id.)  Defendant 
then argued that she was entitled to qualified immunity on the Fourth Amendment claim.  ( Id.)  
The Court denied summary judgment on both the Fourteenth and Fourth Amendment claims.  (ECF 
No. 109 at PageID 1181.)  At the time, the Court viewed Defendant’s position with SCBOE as 
more akin to that of a school administrator than a law enforcement officer.  (ECF No. 109 at PageID 
1175, n.7.)  Consistent with that finding, the Court undertook a traditional summary judgment 
analysis of Plaintiff’s Fourteenth Amendment claim, relying in part on the legal standard set forth 
in Gohl.  See Gohl v. Livonia Public School District, 836 F.3d 672, 678–79 (6th Cir. 2016).  The 
Court then turned to Defendant’s assertion of qualified immunity on the Fourth Amendment claim.  
Because the Court viewed Defendant as a school official and not a law enforcement officer, the 
Court applied the “search and seizure” analysis for public school officials as stated in Cochran.  
See Cochran v. Columbus City Schools, 748 F. App’x 682, 685 (6th Cir. 2018).  As the Court of 
Appeals later pointed out, the Court erred on both counts.    
In contrast to the Court’s view of Defendant’s employment with SCBOE , both parties 
assumed that Defendant’s employment was closer to that of a law enforcement officer than a school 
administrator.  In agreement, the Court of Appeals overruled this Court and held that Defendant’s 
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employment was more akin to law enforcement , reasoning that because Defendant “graduated 
from the Police Academy, attended thirteen weeks of Memphis Police Department training for 
school resource officers, and described herself as a police officer, [she had] all [the] quintessential 
hallmarks of law enforcement.”  Heard v. Thomas, No. 22-5699, 2023 WL 4183455, at *2 (6th Cir. 
June 26, 2023).  While the C ourt of Appeals affirmed the denial of qualified immunity on the 
Fourth Amendment claim, it did so by applying the Graham factors—not  the Cochran factors as 
applied by this Court—to determine if Defendant’s conduct violated the Fourth Amendment .  Id. 
at *2.  As to the Fourteenth Amendment claim, the Court of Appeals reversed this Court’s denial 
of summary judgment , holding that Defendant was entitled to qualified immunity on the 
Fourteenth Amendment claim because Plaintiff alleged no other facts supporting a separate  
substantive due process violation.  Id. at *3.  At summary judgment, there was no argument on the 
“under color” issue before this Court or the Court of Appeals.  After judgment was entered by the 
Court of Appeals, the only federal claim remaining was the Fourth Amendment violation.5  
II. March 18, 2024, Trial Date 
Following summary judgment, this matter was set for trial on March 18, 2024.  Prior to 
this date, Plaintiff filed objections to, inter alia , Defendant’s proposed jury instruction on the 
“under color” issue.  (ECF No. 176 at PageID 1625–26.)  A pretrial conference was held on 
February 16, 2024, where Plaintiff continued to dispute the proposed “under color” instruction.  
(ECF No. 183 at PageID 1661–64.)  The Court ordered the parties to continue their attempts to 
reach consensus and resubmit their joint pretrial order the next week.  (Id. at PageID 1664.)  The 
 
5 In July of 2023, Derricka Heard passed away from causes unrelated to the facts of this 
case.  (ECF No. 128.)  April Heard, as Administrator for the Estate of Derricka Heard, was 
substituted as the proper plaintiff  for the remaining § 1983 claim and the state law IIED claim.  
(ECF No. 166.)  
 
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final pretrial order was entered on March 15, 2024.  (ECF No. 191.)  The pretrial order listed 
“[w]hether defendant was engaged in police conduct” as one of Plaintiff’s contested issues of fact.  
(ECF No. 191 at PageID 1752.)   
On the first morning of trial, the Court addressed Plaintiff’s objection to Defendant’s 
proposed “under color” jury instruction.  (ECF No. 204 at PageID 1953–54.)  Plaintiff argued that 
inclusion of the “under color” instruction was “disingenuous at best” because the issue had already 
been decided at summary judgment and Defendant had not previously raised this issue during the 
course of litigation.  (ECF No. 176 at PageID 1625–26.)  Defendant responded that the “under 
color” issue was an essential element of Plaintiff’s § 1983 claim, and that while she did not believe 
it would be a “heavy lift” for Plaintiff to prove that Defendant was acting “under color,” she 
intended to put Plaintiff to her proof on the issue.  (ECF No. 204 at PageID 1954.)   
The Court then reviewed its preliminary jury instructions with the parties.  Those 
instructions described Defendant as a “school resource officer,” a title that both parties had used 
throughout litigation.  Defendant objected to the use of this title, discl osing—for the first time —
that her employment with SCBOE was as a “school security officer,” a position that was legally 
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distinct from that of a “school resource officer” under Tennessee law.6  (Id. at PageID 1957.)  After 
a brief recess, Plaintiff represented to the Court that the legal difference between a “school resource 
officer” and “school security officer” was significant and requested more time to research the issue.  
(Id. at PageID  1969–70.)  Plaintiff’s main concern was that Defendant would use this statutory 
difference to argue that Defendant’s actions were not “under color” to the jury.  Defendant 
represented that, in her view, the legal difference between the two positions was a distinction 
without much difference for the purposes of trial, arguing that her employer and title have been 
known from the beginning of litigation and that her only purpose in raising the issue now was 
related to being precise in the jury instructio ns.  (Id. at PageID 1975.)  The Court understood 
Defendant’s position to be that the nature of her work has always been discoverable and is relevant 
to the jury’s reasonableness analysis using the Graham factors.  Plaintiff argued waiver, but the 
Court found that argument unavailing under the circumstances because (1) Plaintiff was always 
aware that Defendant was not employed by law enforcement and that her official title was mobile 
security officer; (2) b oth Plaintiff and Defendant intended to elicit testimony from Monique 
Thomas and her superiors as to the nature of her job; and (3) such information was relevant to the 
 
6 Accepting partial blame for the misunderstanding, counsel for Defendant, Ms. Morton, 
directed the Court to two statutes that define the respective positions.  Ms. Morton disclosed that 
Tennessee law expressly distinguished between the two roles, and that a “school security officer” 
was not considered law enforcement under the authorizing statute.  See Tenn. Code Ann. § 49-6-
4206.  The key differences from Defendant’s reading of state law were that “school resource 
officers” were (1) employed by local law enforcement agencies; (2) assigned to local schools 
according to a memorandum of understanding with the local education agency; and (3) given arrest 
powers traditionally associated with law enforcement. Compare Tenn. Code Ann. § 49-6-4206 with 
Tenn. Code Ann. § 39- 11-106.  In contrast, Defendant’s position as a “school security officer” 
meant that she was “not employed by a law enforcement agency, she was  not assigned . . . in 
accordance with a memorandum of understanding between the S chool Board and a law 
enforcement agency, and not a ‘law enforcement officer’ with the power to make arrests for 
offenses under Tenn. Code Ann. § 39-11-106(24).”  (ECF No. 202 at PageID 1857; see also ECF 
No. 204 at PageID 1957.)    
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jury’s determination under the Graham factors.  Plaintiff asked if Defendant would concede “that 
she was a state actor” to avoid further delay; Defendant refused.  ( Id. at PageID 1970–71.)  The  
Court ordered further briefing on the statutory differences to be submitted the following morning.7  
(Id. at PageID 1983.)  
The Court also  discussed qualified immunity and Plaintiff’s proposed First Amendment 
jury instruction.  (Id. at PageID 1959, 1963.)  As to qualified immunity, Defendant represented that 
she expected “different facts to come in today,” and that those facts, she argued, would put the 
question of qualified immunity properly before the jury.  ( Id. at PageID 1959.)  Accordingly, 
Defendant’s proposed verdict form included three special interrogatories for the jury to answer so 
that the Court could rule again on qualified immunity at the end of trial.  (Id. at PageID 1959–60).  
The Court included these special interrogatories on the final verdict form over Plaintiff’s 
objections.   
As to Plaintiff’s proposed First Amendment jury instruction, Plaintiff argued that the 
special jury instruction was necessary because she expected Defendant to testify that her actions 
were caused, at least in part,  by Derrickia’s threatening words that day.  ( Id. at PageID 1963.)  
Defendant objected to Plaintiff’s proposed First Amendment  instruction, arguing that Plaintiff’s 
First Amendment claim ha d been dismissed at summary judgment and any First Amendment 
argument would be confusing to the jury and irrelevant to the Fourth Amendment analysis.  (Id. at 
 
7 In ordering additional briefing, the Court’s primary concern was determining  if the 
statutory differences between “school security officer” and “school resource officer” would alter 
the planned analysis under the Fourth Amendment.  At summary judgment, the Court found that 
Defendant’s position was more akin to a school administrat or than a law enforcement officer.  
Ultimately, Defendant did not challenge the Fourth Amendment analysis, and the parties proceeded 
under that standard.   
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PageID 1965–66.)  The Court agreed with Defendant and sustained her objection to the proposed 
First Amendment instruction.  The Court recessed until the following morning.   
III. March 19, 2024, Trial Date 
The next morning, the  parties submitted their briefs, and the  Court permitted additional 
oral argument to supplement their overnight briefing.  (ECF No. 205 at PageID 1991.)  Plaintiff’s 
Brief focused exclusively on the argument that  Defendant could be held liable for a Fourth 
Amendment violation under New Jersey v. T.L.O , 469 U.S. 325  (1985)—a proposition that 
Defendant did not dispute in its briefing.  (ECF No. 195 at PageID 1832.)  Plaintiff also moved for 
a continuance, arguing that Defendant’s recent revelation about the statutory differences required 
more time and additional discovery.  (ECF No. 205 at PageID 2013–19.)  Defendant’s Brief went 
much farther.  Defendant’s Brief laid out the differences between the two statutes and argued that 
the excessive force jury instruction should be “modified to reflect the realities of [Defendant’s] 
position as a school security officer without arrest powers rather than a law enforcement officer.”  
(ECF No. 202 at PageID 1859.)  Defendant also requested an additional special jury instruction 
that instructed the jury on the statutory duties of a school security officer.  (Id.)  Defendant argued 
that “we’re still stuck with the Fourth Amendment Graham factors,” therefore, “at a minimum 
when we say [Defendant’s actions] need to be viewed from the reasonable perspective of a 
reasonable officer, [it] should probably say a ‘reasonable school security officer.’”  (ECF No. 205 
at PageID 1998–99.)  The Court asked Defendant directly if she intended to use these newly 
discovered Tennessee statutes to argue that Defendant was not acting “under color.”  (Id. at 2011–
12.)  Defendant responded:  
That she’s a state actor? As I stand here right now, I have no basis to do that . . . .  
[U]ntil yesterday, counsel raising that as an issue was the first time it became an 
issue as far as we are concerned.  And I asked Mr. King to send me the case he has.  
I don’t have it.  He did not send it to me.  So perhaps if I review that case that can 
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clear all this up.  I’m hesitant to say we’re not going to raise it  . . . but other than 
that, I don’t know why we’re spending so much time on this issue because we’ve 
not said that’s what we’re going to do. 
 
(Id. at PageID 2012.)   
 Based on Defendant’s Brief and her other in-court representations,8 the Court understood 
Defendant’s position to be that she wanted the true nature of Defendant’s position reflected in the 
jury instructions because it would aid the jury in assessing the reasonableness of Defendant’s 
actions under the Fourth Amendment, not the “under color” issue.   (See ECF No. 205 at PageID 
1997–2000, 2002–03; see also  ECF No. 243 at PageID 2250.)   The only new “issue” was 
Defendant’s argument that she did not have the same arrest powers as a duly authorized law 
enforcement officer and that this “fact” was relevant to the jury’s Fourth Amendment 
reasonableness analysis.
9  (Id. at PageID 1998.)  On this point, the Court agreed that the nature of 
 
8 Counsel for Defendant, Ms. Morton, stated: “As to the question about whether or not she 
was a state actor, we have never said that she was not a state actor.  We did not say that yesterday.  
We did not say that before yesterday.  We’ve never said that.  What I just discussed is the reason 
that I think it’s important to just outline and make sure the jury understands that she is not a police 
officer, she is not a law enforcement officer.”  ( ECF No. 205  at PageID 1999.)  Ms. Morton 
continued by saying that the only reason she made the Court aware of the two Tennessee statutes 
is that “we wanted precision because there is a difference under Tennessee  state law . . . . [W] e 
have never used that or intend to use that to argue that she was not a state actor.  That never 
happened.  I’m not sure where that came from .”  (Id. at 2006–07. )  Finally, Ms. Morton stated: 
“One issue I think is that we’re conflating the issue of state actor and the concept of whether or 
not the case proceeds under the Fourth and Fourteenth Amendment.  As [Plaintiff’s] counsel said 
yesterday, the state actor issue would apply to either one.  So that’s a distinct issue.  And I’ve 
represented here in court this morning that I have no authority to suggest that [Defendant]  . . . is 
not a state actor.”  (Id. at PageID 2011.) 
 
9 In retrospect, whether Defendant possessed arrest powers or not is not at all clear from 
the face of the statute.   See Tenn. Code Ann. § 49-6-4206.  Neither party has cited any case that 
would support or dispute the proposition that school security officers have no arrest powers.  In 
any event, whether the Tennessee statute confers arrest powers on school security officers is a 
question of law and not one of fact, as Ms. Morton seemed to suggest.  During the March trial 
dates, Plaintiff seemed to accept this fact at face value, and focused her arguments on waiver and 
Defendant’s amenability to suit for violations under the Fourth Amendment.  Plaintiff later 
disputed this idea during the August trial.  
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Defendant’s employment and training was relevant to the jury’s reasonableness analysis and would 
work no prejudice to Plaintiff’s case if the jury heard proof on those issues.  In fact, it was apparent 
from the pretrial order that both parties intended to elicit proof about Defendant’s employment and 
training—two issues that had been at issue since the beginning of litigation.  Instructing the jury 
that training and the scope of duties  could be considered when assessing the reasonableness of 
Defendant’s actions was in alignment with the federal pattern jury instructions and relevant § 1983 
case law.  Nevertheless, “in an abundance of precaution and in order of fairness,” the Court granted 
Plaintiff’s motion for a continuance to allow more time to research the arrest powers issue.  (ECF 
No. 205 at PageID 2019.)   
IV. Motion to Reopen Discovery  
Two weeks later, Plaintiff filed a Motion to Reopen Discovery.  (ECF No. 203.)   During 
the March 19 trial date, the Court indicated on the record that it would be willing to consider such 
a motion but only if Plaintiff could show it  necessary.  (ECF No. 205 at PageID 2019.)  Plaintiff 
stated that she would “seek discovery regarding Monique Thomas police officer standard training 
through the Memphis Police Department and juxtapose that with S ecurity Officer Training 
pursuant to T.C.A. 49-6-4206.”  (ECF No. 203-1 at PageID 1918.)  Defendant opposed the motion, 
arguing that her employment with SCBOE has been known from the beginning of litigation in this 
matter, as evidenced by Plaintiff’s own Complaint.  (ECF No.  207 at PageID 2030.)  Defendant 
further pointed out that she produced her personnel file in discovery, which included an assignment 
sheet, employment application, and the SCBOE offer letter, a ll of which made clear Defendant’s 
title as a “mobile security officer.”  ( Id. at PageID 20 30–31.)  Based on these facts, Defendant 
argued that Plaintiff had every opportunity to seek information regarding Defendant’s training 
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when she deposed both Defendant and Defendant’s commander, Chief Carolyn Jackson.  ( Id. at 
PageID 2033.)   
The Court ultimately agreed that Plaintiff did not show sufficient cause to reopen discovery.  
(ECF No. 221.)  Defendant’s training and the scope of her duties were always going to be an issue, 
and their relevance was never in dispute.  Plaintiff had the opportunity to explore her training in 
discovery, and the late disclosure of the Tennessee statute governing Defendant’s position did not 
change the training Defendant actually received.  Further, the Court flagged this very issue in its  
denial of summary j udgment when it found Defendant ’s job to be more akin to a school 
administrator.  (ECF No. 221 at PageID 2135.)  Finally, the Court found that reopening discovery 
under those circumstances would have prejudiced the Defendant, given that litigation had been 
ongoing for more than four years.  (Id. at PageID 2136.) 
V. The August 2024 Trial  
 After a second continuance due to illness, the Court set a new trial date for August 12, 
2024.  On the first morning of trial, Plaintiff reraised the same arguments she made in March, in 
her Motion to Reopen Discovery, and in her Motion in Limine, to exclude mention of Defendant’s 
job title.  ( See ECF 222 at PageID 2137–42.)  The sum of Plaintiff’s arguments was that 
Defendant’s revelation about the statutory differences between a “school security officer” and a 
“school resource officer” constituted unfair surprise and that Plaintiff should be allowed to re -
depose Chief Carolyn Jackson or, in the alternative, the Court should grant Plaintiff’s motion in 
limine to preclude mentioning Defendant’s job title.  (See ECF No. 243 at PageID 2244–47, 2253.)   
Plaintiff also argued that the issue of qualified immunity was decided by the Sixth Circuit and 
should not be reconsidered at trial.  ( Id. at PageID 2253.)  Defendant reiterated  that all she  was 
asking for was for the jury to evaluate the reasonableness of her actions in light of what her job 
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actually was.10  (Id. at PageID 2250–51.)  As to qualified immunity, Defendant argued that there 
would be new facts coming in at trial that would permit the Court to decide qualified immunity 
again; Defendant stated clearly that she had not waived the qualified immunity argument for trial.  
(Id. at PageID at 2256–57.)  Finally, Defendant argued that Plaintiff had already deposed Chief 
Jackson and that she was always going to testify about the duties of a mobile security officer 
employed by SCBOE.  (Id. at PageID 2260.)  To strike a middle ground, the Court suggested that 
Defendant should be referred to simply as an “officer” and to let the facts about her training and 
the scope of her job duties fall where they may—i.e., “don’t say security officer; don’t say resource 
officer.”
11  (Id. at PageID 2252.)  The Court also relied on the fact that Chief Carolyn Jackson had 
been listed as a potential witness in this case in the original pretrial order, and that Plaintiff deposed 
 
10 Ms. Morton argued: “[s]o the only thing we want is to be able to have the jury look at 
the facts as though they occurred within the context of what her job actually was.  She’s not a 
police officer out on the streets of Memphis.  That’s not what she’s doing.  She has specif ic job 
duties within the school environment . . . [that are] defined by state law.”   (ECF No. 243 at PageID 
2050.)   
 
11 In the present Motion for New Trial, Plaintiff states that “the Court amended the Pretrial 
Order to benefit Defendant’s new theory, even though Defendant never sought leave to amend,” 
even though Plaintiff “sternly objected.”  (ECF No. 240- 1 at PageID 2191.)  It appears that this 
statement is referring to the Court’s suggestion that the preliminary jury instructions refer to Ms. 
Thomas as an officer who was employed by SCBOE.  The Court is unaware of any other 
amendments.  Further, Plaintiff’s original memorandum indicated that Plaintiff would provide 
specific record citations on this very point once the transcripts were released.   (Id., n.2.)  However, 
Plaintiff’s corrected memorandum includes no such citation.   
 
The Court notes that Fed. R. Civ. P. 16(e) permits the district court to amend a pretrial order 
following a final pretrial conference in order to prevent manifest injustice.  Indeed, the “manifest 
injustice” standard is a high bar, but amendment may occur if the danger of surprise or prejudice 
to the opposing party is small. See Wright & Miller, Federal Practice & Procedure, §1527.1.  No 
doubt Defendant’s March surprise prejudiced Plaintiff’s case, but the Court granted a continuance 
to alleviate this prejudice.   The Court opted to use the above language to ensure fairness to both 
parties, and doing so did not constitute unfair surprise or prejudice to Plaintiff’s case.  In the end, 
Plaintiff had nearly five months to prepare for this very issue.   
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her early in the litigation.   ( Id. at PageID 2254–55.)  Ultimately, the Court rejected Plaintiff’s 
arguments—as it had done in March — and proceeded to jury selection.   
DISCUSSION 
Plaintiff now moves for a new trial under Fed. R. Civ. P. 59.  Rule 59 provides that a new 
trial may be granted following a jury verdict “for any reason for which a new trial has heretofore 
been granted in an action at law in federal court.”  Fed. R. Civ. P. 59(a)(1)(A).  The moving party 
is entitled to a new trial “when a jury has reached a seriously erroneous result as evidenced by: (1) 
the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the 
trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by 
prejudice or bias.”  Mosby-Meachem v. Memphis, Light, Gas & Water Division, 883 F.3d 595, 606 
(6th Cir. 2018) (citation omitted).   
Although Plaintiff seeks a new trial on both the federal civil rights claim and the state tort 
claim, her argument focuses almost exclusively on the “under color of state law” issue pertaining 
to the former.  The sum of Plaintiff’s argument as to the state tort claim is that “akin to the doctrine 
of the ‘fruit of the poisonous tree,’ the jury’s finding that Defendant was not acting under color of 
state law poisoned the entire verdict . . . .”  (ECF No. 252 at PageID 2941.)  Plaintiff’s argument 
is not well-taken, and the jury’s verdict will stand as to the state tort claim.  As to the federal civil 
rights claim, Plaintiff argues that (1) the “under color of state law” question was improperly 
submitted to the jury; (2) she was prejudiced by the three “First Amendment” questions included 
at the end of the special verdict form; (3) the jury’s verdict was against the weight of the evidence; 
and (4) the prejudicial effect of the proceedings before and during trial warrant a new trial.  ( See 
generally ECF No. 240-1.)  Here, damages are not an issue.  Plaintiff’s first and second theo ries 
complain of what she views as errors by the Court during trial; her third theory challenges the 
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weight of the evidence; and her fourth theory alleges that misconduct by opposing counsel 
prejudiced her case.  Each of these theories are related to Defendant’s assertion that she was not a 
“school resource officer” but instead a “school security officer” without arrest powers under 
Tennessee law, and the ways in which that fact was put before the jury.  The Court will address 
each in turn below.  
I. Errors by the District Court 
Plaintiff argues that the Court erred in two ways: first, when it submitted the “under color” 
question to the jury; and second, when it included the special interrogatories on the final verdict 
form.  (ECF No. 240-1 at PageID 2193–97.)   Defendant responds that when she asked t he Court 
to instruct the jury on her  proper title and job duties with SCBOE, she was not raising a new 
defense or argument.  (ECF No. 250 at PageID 2913.)  Defendant further argues that she is entitled 
to a jury decision on the “under color” issue because the issue is an essential element of Plaintiff’s 
§ 1983 claim, and to the extent the Court could have decided the “under color” issue as a matter 
of law, Plaintiff never moved the Court to do so.
12  (Id. at PageID 2914, 2917.)  The Court will 
address the “under color” instruction first and then the special interrogatories.   
On these facts, submission of the “under color” instruction to the jury does not warrant a 
new trial.  Plaintiff tried  two of her claims to verdict.  The claim at issue here is the civil rights 
violation under 42 U.S.C. § 1983.  Section 1983 provides a remedy against “[e]very person who, 
under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives another 
 
12 In rather unhelpful fashion, Defendant supports her arguments with no affirmative legal 
authority; instead, she merely argues that Plaintiff’s precedential authority is not on all fours with 
her arguments supporting a new trial.  Distinguishing opposing a uthority is unquestionably a 
helpful tactic—but only when it is paired with some affirmative argument.  To proceed with the 
former absent the latter is merely conclusory and altogether unhelpful.  This type of argument has 
been a consistent feature of this  litigation on both sides , and it is one reason why litigation has 
continued into year six.  
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person of federal rights secured by the Constitution or laws of the United States.  42 U.S.C. § 1983.  
To prevail on a § 1983 claim, a plaintiff must prove two distinct elements: “ (1) that [] she was 
deprived of a right secured by the Constitution or laws of the United States; and (2) that the 
deprivation was caused by a person acting under color of state law.”  Robertson v. Lucas, 753 F.3d 
606, 614 (6th Cir. 2014).  Plaintiffs bear the burden to establish both elements of their § 1983 
claim.  Id.  Generally, whether a § 1983 defendant was acting under color of state law is a legal 
issue for the court to decide.  Neuens v. City of Columbus , 303 F.3d 667, 670 (6th Cir. 2002); see 
also Mackey v. Rising, 106 F.4th 552, 564 (6th Cir. 2024).  Still, such questions are often sent to 
the jury when the answer “turns on a dispute about [] historical facts” (e.g., what a police officer 
said in the moment).  Mackey, 106 F.4th at 564.   
Here, both § 1983 elements were submitted to the jury for consideration.  There is no 
challenge to the content of the instruction.  The question presented is whether the instruction should 
have been given at all, and, if not, whether that warrants a new trial.  At both the March trial setting 
and the August trial, Plaintiff failed to articulate any argument—much less  make any motion—for 
this question to  be decided as a matter of law by the district court.  Instead, Plaintiff focused 
exclusively on (1) her w aiver argument —namely , that Defendant’s disclosure after the final 
pretrial conference constituted waiver —or (2) her argument that the Sixth Circuit had already 
decided the “under color” issue at summary judgment —both of which the Court found 
unpersuasive at the time.   
Ultimately, though, the Court need not opine on whether submitting the “under color” issue 
to the jury constitutes error.  First,  even where the Court of Appeals has agreed that an “under 
color” question should have been decided by the district court, it has held that submitting the 
question to the jury did not constitute error. See Stengel v. Belcher, 522 F.2d 438, 441 (1975).  In 
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Stengel, the plaintiffs-appellees argued that the district court should have decided the “under color” 
issue as a matter of law.  Id.  The Sixth Circuit agreed, but also stated that “[o]ut of an abundance 
of caution the district court submitted this factual issue to the jury . . . .  We see no objection to this 
procedure.”  Id.  Second, and perhaps most importantly, “even erroneous instructions do not require 
reversal unless the instructions are ‘confusing, misleading, and prejudicial.’”  Lee v. Metro. Gov't 
of Nashville & Davidson Cnty., 432 F. App’x 435, 448 (6th Cir. 2011) (quoting Pivnick v. White, 
Getgey & Meyer Co., LPA, 552 F.3d 479, 488 (6th Cir. 2009)).  In other words, the Sixth Circuit 
“will ‘not reverse a decision on the basis of an erroneous jury instruction where the error is 
harmless.’”  Id. (quoting Pivnick, 552 F.3d at 488 (internal citations omitted)).  
With this legal backdrop  in mind, the Court has reviewed the record, including both the 
March and August trial transcripts, and it is apparent there was never a clear factual dispute that 
would have necessitated submission of the “under color” question to the jury.13  And no additional 
facts came in at trial that would have altered this analysis.14  Nevertheless, the Court submitted the 
“under color” question to the jury out of an abundance of caution.  This procedure tracks with the 
procedure approved of in Stengel.  522 F.2d at 441.  But even assuming arguendo that the Court 
did err in submitting the “under color” question to the jury, such error was harmless because the 
verdict had an independent basis.  Specifically, the jury found that the Defendant did not deprive  
Plaintiff of any right secured by the Constitution or laws of the United States.  (ECF No. 236.)  
That finding, on its own, w as fatal to Plaintiff’s § 1983 claim.  See Robertson, 753 F.3d at 614.  
 
13 The Court pushed the parties for a stipulation on this point, but to no avail.   
 
14 The Court acknowledges that there was direct, albeit very brief, testimony from Chief 
Carolyn Jackson that Defendant did not possess arrest powers and, therefore, could not have acted 
under color of state law.  (ECF No. 247 at PageID 2724.)  Chief Jackson’s testimony on this point 
was improper and, for reasons discussed in Discussion section III , highly suspect.  Despite this, 
Plaintiff permitted Chief Jackson’s direct testimony to continue without objection.   
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And Plaintiff has presented no evidence or good reason to believe that submitting the “under color” 
issue to the jury in any way affected its  consideration of the second element of Plaintiff’s § 1983 
claim.15  Indeed, they are separate inquiries.   Accordingly, there is no basis to order a new trial 
because of the “under color” issue. 
Similarly, inclusion of the special interrogatories on the verdict form was not an error that 
warrants a new trial.  Defendant requested these interrogatories because she expected new facts to 
come in at trial that would have, arguably, changed the qualified immunity o utcome at summary 
judgment.  The interrogatories served the purpose of aiding the Court in making a qualified 
immunity determination —a determination that was ultimately not necessary given the jury’s 
verdict in this case.  Plaintiff’s argument on this point is limited to these questions having “nothing 
to do with the issues raised in the Graham case.”  (ECF No. 240- 1 at PageID 2197.)  The Court 
disagrees.  Further, Plaintiff conflates this issue with her complaints over the Court’s refusal to 
include her own proposed First Amendment instruction.  (Id.)  The Court is not at all clear on how 
these two issues fit together, but in any event, Plaintiff’s argument on this point is conclusory and 
without supporting authority.  Even if it was supported with relevant case law, there is clear 
precedent that the qualified immunity defense can be raised at the various stages of litigation, 
including at trial, and even when it has been denied at previous stages.  See English v. Dyke, 23 
F.3d 1086, 1089 (6th Cir. 1994). Contrary to Plaintiff’s assertions, there is no evidence the jury 
was confused by the inclusion of these special interrogatories, and even if they were, the 
accompanying jury instructions would have cured any confusion.  Therefore, including the special 
interrogatories on the final verdict form does not warrant a new trial.  
 
15 The best Plaintiff can muster is the bare assertion, without support, that “[s]ince 
Defendant was a private citizen, the jury found that Defendant’s conduct could not have been 
based on outrageous conduct.”  (ECF No. 240-1 at PageID 2199.) 
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II. Whether Verdict Was Against the Weight of the Evidence    
Plaintiff also moves for a new trial on the basis that the jury’s verdict was against the clear 
weight of the evidence.  When considering whether the jury’s verdict was against the weight of the 
evidence, the judge must “to some extent at least, substitute his judgment of the facts and the 
credibility of the witnesses for that of the jury.”  Mosby -Meachem, 883 F.3d at 606 (citation 
omitted).  The district court must compare opposing proofs, weigh evidence, and set aside the 
verdict only if it determines that the verdict is against the clear weight of the evidence; “the motion 
should be denied if the verdict is one which  could reasonably have been reached, and the verdict 
is not unreasonable simply because different inferences and conclusions could have been drawn 
or because other results are more reasonable.”  United States v. L.E. Cooke Co., Inc., 991 F.2d 336, 
343 (6th Cir. 1993) (citation omitted).  
Here, Plaintiff argues , with no support whatsoever , that because the jury found that 
Defendant was a “pr ivate citizen,” they “concluded . . . that Defendant had a right to strike 
Derrickia and thus, Defendant’s conduct was therefore not outrageous.”  (ECF No. 240-1 at PageID 
2199.)  But, as above, there is no reason to believe that the jury’s finding on the “under color” issue 
affected in any way at all their analysis of Defendant’s actual conduct.  The jury’s findings on the 
reasonableness of the Defendant’s actions were clear, and they were independent of their finding 
on the “under color” issue.  Of the two elements required by Plaintiff’s § 1983 claim, the jury 
needed to answer only one in the negative in order to return a verdict in favor of Defendant.  Here, 
they answered both in the negative.  The Court declines to upset  the jury decision as to the 
constitutional violation because there is no evidence that the jury’s decision on this point was in 
any material way impacted by their decision on the “under color” element.  T o the contrary, the 
verdict form—including the special interrogatories —indicates  that the jury considered whether 
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Defendant violated Derrickia’s constitutional rights  independently of whether Defendant acted 
under color of state law.  (ECF No. 236.)  Therefore, the Court declines to grant a new trial when 
there was an independent basis for the verdict that was returned.   
III. Misconduct by Opposing Counsel 
Plaintiff goes on to argue that the testimony of Carolyn Jackson on the “under color” issue 
was prejudicial to her case.  (ECF No. 252 at PageID 2945–47.)  Ms. Jackson was, at the time of 
the incident, Chief of Safety and Security for the school system and supervised all mobile school 
officers employed by the school system, including Defendant.  At trial, Defendant elicited the 
following testimony from Ms. Jackson:  
Q: Are there different types of officers that make up the safety and security 
department of Memphis-Shelby County Schools? 
 
A: Yes. 
 
Q: Can you tell the jury what those are? 
 
A: So we have our officers that are in schools every day, and those are our —
we call them—they’re not SROs by state law because by state law, an SRO 
is a law enforcement officer.  And you can only be an SRO if you are a law 
enforcement officer working in a sc hool.  So we do have those.  And we 
work with the Sheriff’s department, and they have deputies that are assigned 
to designated schools. 
 
 And then we have our officers that are security officers and they’re 
Memphis-Shelby County mobile security officers, and they work in schools.  
They work in the same capacity, but they have different titles.  The deputies 
that work in the schools are law enforcement and, of course, they have arrest 
powers, and they are bound by law and color of law.   
 
 Our officers [the mobile security officers] do not have arrest powers, and 
they are not bound by color of law, so when our officers make an arrest, we 
have to make a call and notify the law enforcement agency to make the 
scene and they take it over because we do not have arrest powers.  
 
(ECF No. 247 at PageID 2723–24.) 
 
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The Court is in agreement with Plaintiff that Ms. Jackson’s testimony on this point was 
improper.  The Court finds it suspect that Ms. Jackson, a non-lawyer, was so well-versed in “under 
color” language.  Regardless of whether the “under color” issue shoul d or should not have been 
submitted to the jury, Ms. Jackson had no business testifying to conclusions of law.  And counsel 
for Defendant, Mr. Jones, should have never repeated this testimony, as he did, during closing 
argument.  Still, any objection to Ms. Jackson’s testimony has been waived because Plaintiff failed 
to raise any contemporaneous objection to this testimony. 16  And any prejudice worked by Mr. 
Jones’ closing argument was cured when the Court instructed the jury that statements of counsel 
were not considered evidence.  (ECF No. 247 at PageID 2803–04.)  To the extent Plaintiff 
complains of the Court’s order on her Motion to Reopen Discovery and her Motion in Limine, the 
Court declines to grant a new trial on those bases.  To the extent Plaintiff complains of improper 
testimony of Ms. Jackson, Plaintiff failed to object.  And to the extent Plaintiff complains of Mr. 
Jones’ closing argument, any prejudice was cured by the Court’s instructions to the jury.   
Therefore, Plaintiff’s motion for new trial on the basis of prejudic e before and during trial is 
denied.  
IV. Motion for Sanctions 
 To be clear, this case continues to be litigated nearly six  years after its inception, in part, 
because of how Plaintiff has prosecuted this case, and, in part, because of Defendant’s strategic 
 
16 Plaintiff allowed the direct examination of Ms. Jackson to continue uninterrupted.  On 
cross, Plaintiff questioned Ms. Jackson for a time and then requested a sidebar. (See ECF No. 247 
at PageID 2742.)  At sidebar, Plaintiff reraised old arguments regarding the Court’s refusal to 
reopen discovery but offered no other objection.  The Court stated at the time: “There’s no 
objection before me. You’re over here talking about the testimony you’re eliciting.  I mean, you’re 
not objecting to something somebody else is bringing up.”  (ECF No. 247 at PageID 2745.)  
Plaintiff’s co-counsel made clear that “all he’s doing is just preserving the objection on the order 
that’s already been entered on the discovery issue.”  (Id.)  
 
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lawyering that, at times, has come dangerously close to misconduct.  Plaintiff has filed a Motion 
for Sanctions  alleging as much. 17  (ECF No. 242.)  The Court cannot definitively say that 
Defendant deliberately misled the Court; however, it is clear from the record that Defendant 
elicited the precise testimony from Ms. Jackson that she repeatedly stated she would not.  Further, 
Defendant’s suggestions that she had no duty to disclose the statutory differences between a school 
security officer and a mobile security officer do not comport with counsel’s duty of candor to this 
tribunal. She may not be obligated to disclose every argument and defense that may come up at 
trial, but she is certainly obligated to inform the Court as to matters of law.  There is nothing in the 
record that reveals when Defendant discovered the statutory differences between a “school security 
officer” and “school resource officer.”  The Court assumes, without evidence to the contrary, that 
she disclosed this information at the earliest possible opportunity .  And when she did disclose it, 
the Court granted Plaintiff a continuance to cure any prejudice.  For these reasons, and all the  
reasons given above, the Court DENIES Plaintiff’s Motion for Sanctions.   
CONCLUSION 
Because Plaintiff has not met her burden under Rule 59 and sanctions are not warranted, 
Plaintiff’s Motions for New Trial (ECF No. 240) and Sanctions (ECF No. 242) are DENIED. 
 IT IS SO ORDERED, this 31st day of March, 2026. 
       s/ Mark S. Norris 
MARK S. NORRIS 
UNITED STATES DISTRICT JUDGE 
 
 
17 The Court does not credit Plaintiff’s assertions therein that defense counsel put forward 
positions that were “frivolous and in violation of 28 U.S.C. § 1927.”  (ECF No. 242- 1 at PageID 
2233.)         
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