MEMORANDUM

R. ALLAN EDGAR, Chief Judge, District

Plaintiff Jeffrey Steven Myres ("Myres") brings this action against Officer Daniel Hooton ("Hooton"), Officer Thomas Buttry ("Buttry"), and the City of Chattanooga, Tennessee, ("City") (collectively "the Defendants") pursuant to 42 U.S.C. §§ 1983 and 1988, alleging violations of the Fourth and Fourteenth Amendments of the United States Constitution and of the laws of the State of Tennessee. Specifically, Myres asserts that the Defendants violated his right to be free from wrongful arrest and excessive force and that the City failed to properly train and supervise Hooton and Buttry. Myres also asserts state law claims of malicious harassment, malicious prosecution, false arrest, assault and battery, and negligence. Myres also seeks punitive damages for these claims. [Court File No. 35]. Buttry and the City move for summary judgment on all claims. [Court File No. 48]. Myres opposes this motion [Court File No. 55]. I. Standard of Review

Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir. 2003). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Shah, 338 F.3d at 566; Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, determine the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex, 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; Shah, 338 F.3d at 566; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Evidence suggesting a mere possibility of a factual dispute is not enough to preclude summary judgment. Shah, 338 F.3d at 566; Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986).

The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; Nat'l Satellite Sports, 253 F.3d at 907. While the Court draws all reasonable factual inferences in the light most favorable to the non-moving party, it may grant summary judgment if the record taken as a whole could not lead a rational, objective jury to find for the non-moving party. Matsushita, 475 U.S. at 587; McKinnie v. Roadway Express, Inc., 341 F.3d 554, 557 (6th Cir. 2003).

II. Facts

As a means of establishing the facts, the parties present the Court with various affidavits, exhibits, and one deposition. From these, the Court finds the undisputed facts are few and provide little more than a skeleton of the events. Nonetheless, the undisputed facts are as follows. On March 16, 2002, Officer Hooton of the Chattanooga Police Department came to question Myres at Myres' home about an alleged traffic violation. Somehow an altercation ensued and Officer Hooton requested back-up. [Court File No. 48, Buttry Aff. at ¶¶ 1-2]. Officer Buttry, along with an officer in training, Officer Tomisek, provided back-up and assisted Officer Hooton handcuff Myres and place Myres in Hooton's patrol car. [ Id. at ¶ 3]. Other than these, the parties vigorously dispute the facts.

Myres' version of the facts — and the version this Court must accept as Myres is the nonmoving party — is as follows. On March 16, 2002, Myres was driving along Frazier Avenue when he noticed Officer Hooton driving the opposite direction. Officer Hooton turned around and followed Myres to Myres' home on Tremont Street. Once at Myres' house, Officer Hooton exited his patrol car and requested Myres' license. Myres asked the reason for Hooton's request to which Hooton again requested Myres' license. Myres provided his current license to Hooton and asked if this incident was just another in a series of on-going harassment. In response, Officer Hooton sprayed Myres with mace and threw Myres to the ground. When Myres tried to stand up, Hooton placed his gun against Myres' temple telling Myres to get on the ground. Hooton then began beating Myres with his club. After approximately ten blows, Myres was able to get up and tried to run inside his house. By the time Myres reached the top of his stairs, Hooton caught Myres from behind. Hooton put his club around Myres' neck, choking Myres and lifting Myres off the ground with the club. Hooton then threw Myres down the stairs, followed Myres to the bottom, and kicked and beat Myres with his club. About this time Officer Buttry arrived and joined Officer Hooton in kicking and beating Myres with his fists and club. Eventually the officers handcuffed Myres but continued to beat him for some time after handcuffing him. Myres contends that this beating was wholly unprovoked as Myres never verbally or physically resisted the officers and never once struck the officers. [Court File No. 56, Myres Aff. at ¶ 16].

Myres alleges that the March 16, 2002, incident was merely the culmination of an ongoing series of harassment from Officer Hooton. This harassment began in April 1996 when Myres complained about unethical insider bids by members of the Better Housing Commission, prompting an investigation by the Internal Affairs Division of the Chattanooga Police Department. [ Id. at ¶ 4]. Following this complaint, Officer Hooton began sitting outside Myres' home for hours, following Myres in his patrol car, and attending the same public meetings as Myres where he would ridicule Myres for his homosexuality. [ Id. at ¶¶ 5, 7]. From 1998 to 1999 Officer Hooton arrested Myres at least six times for minor traffic offenses and "red-tagged" Myres' car to be towed at least four times. [ Id. at ¶ 8].

In May 1999 Officer Hooton phoned Myres, requesting Myres to come to a house Myres owned and leased to a tenant. When Myres arrived, Officer Hooton informed Myres that he found a small marijuana plant in a pot on the rental property. Officer Hooton arrested Myres and placed him in his patrol car with the windows rolled up in extreme heat. After an hour a superior officer told Hooton to let Myres out of the vehicle. Officer Hooton ordered Myres to crawl out of the car on his stomach, ridiculing Myres for his homosexuality. [ Id. at ¶ 9].

And in August 1999 Officer Hooton stopped Myres for a traffic offense. Hooton initially informed Myres that the stop was for driving on a revoked license. However, upon checking Myres' license, Hooton learned the license was current. When Officer Hooton returned to Myres' car, he informed Myres that the stop was for failure to use a turn signal and cited Myres for this offense. Myres contested this citation at a court proceeding. [ Id. at ¶ 10]. At the hearing Officer Hooton informed the court that he stopped Myres for failure to use a turn signal; when cross-examined by Myres, Hooton explicitly indicated that the stop was never for driving on a revoked license. Unbeknownst to Hooton, Myres had recorded the entire traffic stop. Myres played the audio recording for the court. The court found that after initially stopping Myres for driving on a revoked license and learning that the license was current, Hooton changed the offense to failure to use a turn signal. Accordingly, the court dismissed the citation. [ Id. at ¶ 10, Ex. B].

Officer Hooton continued to harass and taunt Myres until the March 16, 2002, incident. Throughout this series of harassment, Myres placed numerous complaints with the Chattanooga Police Department, both verbally and in writing. [ Id. at ¶¶ 11, 13]. The department never disciplined Officer Hooton in any manner. [Court File No. 56, Roberts Aff. at ¶¶ 4, 6, 8, Exs. A, B, D]. The department did recognize, however, that Officer Hooton posed a danger to Myres. For following one of Myres' complaints, the department moved Hooton from patrol duty to a desk job for one month. According to Hooton, Police Chief Jimmy Dotson's reason for the move was to ensure that Hooton was not "on the street in a city vehicle if Myres was to end up floating in the Tennessee River." [Court File No. 60, Hooton Dep. at p. 80]. The department took no other action to discipline or counsel Officer Hooton.

To establish the wide discrepancy in the facts, the City's and Buttry's version is as follows. According to Officer Hooton's March 16, 2002, arrest report, Officer Hooton followed Myres, believing that Myres was driving on an expired license. Upon allegedly confirming that suspicion, Hooton turned on his blue lights to stop Myres. Myres, however, did not immediately stop and proceeded approximately five blocks to his driveway. Hooton followed Myres into the driveway. Hooton exited his patrol car, approached Myres, and asked to see his license. Myres allegedly refused Hooton's repeated requests for Myres' license. At this point Hooton requested back-up.

Upon returning to Myres, Hooton threatened to arrest Myres if he continued to refuse to provide his license. Myres refused again, and Officer Hooton attempted to handcuff Myres. Somehow Myres pushed Officer Hooton away. Hooton sprayed Myres with mace and again attempted to handcuff Myres. Again, Myres pushed Hooton away, causing Hooton to fall on his back. Myres allegedly swung at Hooton three times, though he failed to connect on any attempt. Apparently Myres grabbed a hose and began dragging it toward Hooton, at which point Hooton drew his firearm. Myres then turned and ran toward his house. Hooton chased Myres, tackling Myres at the foot of the stairs. Somehow Myres was able to escape Hooton's grasp and raced up the stairs. Hooton followed, catching Myres at the top. The two wrestled until Myres fell down the stairs. Hooton went to Myres, sitting on him until back-up arrived. [Court File No. 48, Buttry Aff., Ex. 1, Hooton's Arrest Report].

Officer Buttry and his training officer, Officer Tomisek, arrived at Myres' residence soon thereafter. The two assisted Officer Hooton handcuff Myres and then place Myres in Hooton's patrol car. [Court File No. 48, Buttry Aff. at ¶ 3]. Officers Buttry and Tomisek were then dispatched to another scene. [ Id. at ¶ 5]. Officer Buttry claims that he used only reasonable force in placing Myres in custody and did not see any officer use excessive force during the incident. [ Id. at ¶ 4]. Finally, Officer Buttry and the City attest that the police department does not have a policy or custom of failing to properly train or supervise officers. [ Id. at ¶¶ 6-9; Court File No. 48, Rawlston Aff; Court File No. 48, Eilders Aff.].

III. Analysis

A. Claims Based on § 1983

Pursuant to § 1983 Myres brings wrongful arrest and excessive force claims against Officer Buttry. And against the City, Myres brings a claim for failure to train and supervise Officers Hooton and Buttry. Officer Buttry and the City move for summary judgment on each of these claims for various reasons.

1. Claims Against Officer Buttry

a. Fourth Amendment Wrongful Arrest Claim

"[I]t is well established that any arrest without probable cause violates the Fourth Amendment." Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003). "For a police officer to have probable cause for arrest, there must be `facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense.'" Id. (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). "Probable cause requires only the probability of criminal activity not some type of `prima facie' showing." Id. (quotation omitted). "The probability of criminal activity is assessed under a reasonableness standard based on `an examination of all facts and circumstances within an officer's knowledge at the time of the arrest.'" Id. (quoting Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999)). In a § 1983 action, the existence of probable cause is a jury question, unless there is only one reasonable determination possible. Thacker v. Columbus, 328 F.3d 244, 252-53 (6th Cir. 2003); Crockett, 316 F.3d at 581. And in this case, based on the heavily disputed facts as documented above, there is more than one reasonable determination possible, precluding summary judgment.

Further, Officer Buttry argues that Myres' wrongful arrest claim against him should be dismissed because Officer Buttry did not participate in the arrest of Myres. Officer Buttry's affidavit belies his argument: "When we [Officer Tomisek and Officer Buttry] got there, Hooton was in an active fight on the ground near some steep stairs at the house located at 308 Tremont Street. Officer Tomicek and I helped Hooton get the other individual [Myres] in custody and placed him in Hooton's partrol car." [Court File No. 48, Ex. 1 at ¶ 3]. Accordingly, the Court finds that, at the least, whether Officer Buttry participated in the arrest of Myres is a factual issue not properly decided on summary judgment. The motion for summary judgment on this claim will be DENIED. b. Fourth Amendment Excessive Force Claim

The Fourth Amendment protects an individual's right to be free from the use of excessive force by law enforcement. Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001). Excessive force claims are reviewed under the Fourth Amendment standard of reasonableness. Saucier v. Katz, 533 U.S. 194, 209 (2001).

The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chamber, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

Whether an officer's use of force was reasonable turns on the facts of each case. Relevant to the inquiry are the following: (1) the severity of the crime at issue; (2) the immediate threat the suspect poses to the safety of the officer or others; (3) the suspect's resistance; and (4) the possibility of flight. Graham, 490 U.S. at 396; Dunigan, 390 F.3d at 493. Further, the extent of a plaintiff's injury, though not crucial, is also considered in adjudicating excessive force claims. Neague, 258 F.3d at 508; Magrum v. Meinke, 332 F.Supp.2d 1071, 1079 (N.D. Ohio 2004).

In the instant case, whether Officer Buttry's use of force was reasonable or excessive presents factual disputes precluding summary judgment. Indeed, taken in the light most favorable to Myres the facts indicate Officer Buttry used excessive force against Myres by beating Myres with his fists and club before and after subduing Myres. Accordingly, Officer Buttry's motion for summary judgment on this claim will be DENIED.

c. Qualified Immunity

Officer Buttry also contends that summary judgment on these claims is appropriate because he is entitled to qualified immunity. "[W]hether qualified immunity is applicable to an official's actions is a question of law." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004) (quoting Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996)). "However, where the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability." Id. (quoting Pouillon v. City of Owosso, 206 F.3d 711, 715 (6th Cir. 2000)). Consequently, when there is disagreement about the facts on a summary judgment motion, the Court employs the traditional standard of review noted above, viewing the evidence in the light most favorable to the plaintiff. Id.

Against this backdrop, the Sixth Circuit has enunciated a three-step inquiry for determining whether an officer is entitled to qualified immunity.

First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Champion, 380 F.3d at 901 (quoting Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003)). If the answer to all three questions is "yes," the officer is not entitled to qualified immunity. Id.

In the instant case, viewing the facts in the light most favorable to Myres, the Court answers all three questions in the affirmative. First, accepting Myres' version of the facts, two constitutional violations occurred: wrongful arrest and use of excessive force. Second, both violations involved clearly established constitutional rights: an arrest without probable cause clearly violates the Fourth Amendment, Crockett, 316 F.3d at 580; and using force in the manner described by Myres — including beatings with a club and beatings after he was subdued — is certainly excessive, see Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002) (beating after individual neutralized excessive), McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988) (unprovoked blows with nightstick clearly excessive), Lewis v. Downs, 774 F.2d 711, 715 (6th Cir. 1985) (same). Third, Myres offers sufficient evidence that Officer Buttry's actions were objectively unreasonable in light of Myres' clearly established constitutional rights. Accordingly, Officer Buttry is not entitled to qualified immunity.

2. Claims Against the City

As both parties correctly note, "a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, (1978). Rather, municipalities may be held liable under § 1983 only when the injury inflicted is a result of "a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Id. at 694; accord Thomas v. City of Chattanooga, ___ F.3d ___, 2005 WL 292573, at *3 (6th Cir. Feb. 9, 2005) (citing Monell). A plaintiff may prove a municipality's illegal policy or custom through four avenues: "(1) the municipality's legislative enactments or official agency policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations." Thomas, ___ F.3d ___, 2005 WL 292573 at *3 (citing Monell, 436 U.S. at 694).

In the instant case, Myres seeks to establish that the City had a policy or custom of inadequate training or supervision of Officers Hooton and Buttry. Inadequate training of officers may serve as a basis for liability under § 1983 "only where the failure to train amounts to deliberate indifference to the rights of individuals with whom the officers come into contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989); accord Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003). "Only where a failure to train reflects a `deliberate' or `conscious' choice by a municipality . . . can a city be liable for such a failure under § 1983." Id. at 389.

The Sixth Circuit recognizes two situations in which inadequate training, or a failure to train, could be the result of deliberate indifference. The first situation "is failure to provide adequate training in light of foreseeable consequences that could result from the lack of instruction, as would be the case, for example, if a municipality failed to instruct its officers in the use of deadly force." Cherrington, 344 F.3d at 646 (internal quotations and citations omitted). The second situation "is where the city fails to act in response to repeated complaints of constitutional violations by its officers." Id.

In the instant case, Myres proceeds under the second situation. Specifically, Myres contends that the City received numerous complaints against Officers Hooton and Buttry involving excessive use of force, including multiple complaints by Myres, but took no action. After one such complaint by Myres the City deemed it necessary to take Hooton off the street and have him work at the front counter for thirty days; however, the City did not council, reprimand, or discipline Hooton. In short, based on the evidence Myres presents, a reasonable jury could find that the City's failure to properly respond to complaints against Officers Hooton and Buttry, including complaints by Myres, constitutes a deliberate failure to train or supervise. Accordingly, the City's motion for summary judgment on this claim will be DENIED.

D. State Law Tort Claims

1. Malicious Harassment

The civil cause of action for malicious harassment is defined in Tenn. Code Ann. § 4-21-701, which provides: "(a) There is hereby created a civil cause of action for malicious harassment; (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney's fees and costs, and punitive damages." Tenn. Code Ann. §§ 4-21-701.

Because of the legislative history and the repeal of companion statutes, the parameters of the civil malicious harassment statute have been muddy. See Fromuth v. Metro. Gov't of Nashville, 158 F.Supp.2d 787, 797 (M.D. Tenn. 2001). At bottom, "the elements of the civil claim of malicious harassment under Tenn. Code Ann. § 4-21-701(1998) are derived from the criminal offense of civil rights intimidation under Tenn. Code Ann. § 39-17-309 (1997)." Washington v. Roberston County, 29 S.W.3d 466, 468 (Tenn. 2000). Accordingly,

a claim of malicious harassment requires not only that a person acted maliciously, i.e., ill-will, hatred or spite, but also that a person unlawfully intimidated another from the free exercise or enjoyment of a constitutional right by injuring or threatening to injure or coercing another person or by damaging, destroying or defacing any real or personal property of another person.

In enunciating the elements of malicious harassment, however, the Tennessee Supreme Court failed to address whether the tort requires a specific intent to intimidate based on civil rights motives, as does the companion criminal offense of § 39-17-309. See Fromuth, 158 F.Supp.2d at 797. In interpreting Washington in light of § 39-17-309, the Tennessee Court of Appeals held that a civil malicious harassment claim requires a specific intent to intimidate based on civil rights motives. Surber v. Cannon, No. M1998-00928-COA-R3-CV, 2001 WL 120735, at *5 (Tenn.Ct.App. Feb. 14, 2001); accord Levy v. James C.D., No. M2002-027390COA-R3-CV, 2004 WL 1534185, at *12-*13 (Tenn.Ct.App. July 9, 2004); Fromuth, 158 F.Supp.2d at 797-98. And because the criminal offense of § 39-17-309 is limited to civil rights motives concerning "race, color, ancestry, religion or national origin," a civil malicious harassment claim is similarly limited. Levy, 2004 WL 1534185, at *12-*13; Surber, 2001 WL 120735, at *5-*6. Indeed, in Surber the plaintiff implored the court to extend these motives to include gender-based harassment. 2001 WL 120735, at *6. However, the court declined the invitation, refusing to "broaden the legislature's definition of malicious harassment beyond the elements of civil rights intimidation, as set out in Tenn. Code Ann. § 39-17-309." Id.

In the instant case, Myres contends that the harassment of Officers Hooton and Buttry was motivated by Myres' sexual preference as a homosexual. Recognizing that sexual preference is not included in the list of civil rights motives contained in § 39-17-309, Myres invites this Court to extend the list to include sexual preference. Given the Tennessee courts' refusal to extend the list to include gender-based motivation, this Court will decline Myres' invitation. Consequently, Myres is unable to satisfy the elements of a malicious harassment claim as a matter of law. Accordingly, the City's and Officer Buttry's motion for summary judgment on this claim will be GRANTED.

2. False Arrest and Malicious Prosecution

The Tennessee Government Tort Liability Act ("GTLA"), Tenn. Code Ann. §§ 29-20-101 to 29-20-407, removes a governmental entity's sovereign immunity for all but specific enumerated acts. Tenn. Code Ann. § 29-20-205. GTLA specifically retains a governmental entity's immunity for injuries arising out of false arrest and malicious prosecution. Tenn. Code Ann. § 29-20-205(2). Consequently, the City is immune from these claims, and its motion for summary judgment to this extent will be GRANTED.

Although the City is immune from claims of false arrest and malicious prosecution, this immunity does not extend to Officer Buttry in his individual capacity. For "the governmental immunity afforded governmental entities has not been extended to the governmental employee." Fann v. City of Fairview, Tenn., 905 S.W.2d 167, 174 (Tenn.Ct.App. 1994). To be clear, GTLA does immunize governmental employees where the governmental entity has waived its immunity. Tenn. Code Ann. § 29-20-310(b). However, where the governmental entity is immune, GTLA does not similarly immunize governmental employees. Fann, 905 S.W.2d at 174. Accordingly, Officer Buttry is not immune from Myres' false arrest and malicious prosecution claims.

To prevail on his Tennessee common law claim of false arrest against Officer Buttry, Myres must prove that he was arrested without probable cause. See Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990); McLaughlin v. Smith, 412 S.W.2d 21, 26-27 (Tenn.Ct.App. 1966). As discussed above, whether Officers Hooton and Buttry had probable cause to arrest Myres presents a material factual dispute precluding summary judgment. Accordingly, Officer Buttry's motion for summary judgment on this claim will be DENIED.

To prevail on his malicious prosecution claim against Officer Buttry, Myres must establish the following elements: "(1) a prior suit or judicial proceeding was instituted without probable cause, (2) defendant brought such prior action with malice, and (3) the prior action was finally terminated in plaintiff's favor." Roberts v. Fed. Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992). Officer Buttry contends that summary judgment is appropriate here because Officer Hooton instituted the criminal proceeding against Myres, not Officer Buttry. This argument is similar to that Officer Buttry raised regarding Myres wrongful arrest claim where the Court held that the existence of factual issues precluded summary judgment. Here again, whether Officer Buttry played any role in bringing the prior suit against Myres presents factual issues. Consequently, summary judgment is inappropriate and Officer Buttry's motion to that extent will be DENIED.

3. Assault and Battery

Under Tennessee common law, assault is "any act tending to do corporal injury to another, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against that person." Thompson v. Williamson County, Tenn., 965 F.Supp. 1026, 1037 (M.D. Tenn. 1997) (quotation and citations omitted). Battery is "any intentional, unlawful and harmful (or offensive) contact by one person with the person of another." Id. at 1038 (quotation and citation omitted). An indispensable element of assault and battery is that the act be intentional. Id.

Assuming Officer Buttry committed the tort of assault and battery, he is nonetheless immune from such a claim. As noted above, GTLA prohibits suits against governmental employees where the governmental entity has waived its sovereign immunity from such suit. Tenn. Code Ann. § 29-20-310(b). GTLA waives a governmental entity's sovereign immunity from suits for injuries proximately caused by an employee's intentional tort of assault and battery. Tenn. Code Ann. § 29-20-205(2); Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001). Consequently, GTLA prohibits a plaintiff from bringing an assault and battery claim against governmental employees. Tenn. Code Ann. § 29-20-310(b); Alexander v. Newman, 345 F.Supp.2d 876, 886 (W.D. Tenn. 2004). Accordingly, Buttry's motion for summary judgment on Myre's assault and battery claim will be GRANTED.

Insofar as Myres brings an assault and battery claim against the City, the claim survives the City's summary judgment motion. As noted above, GTLA waives a governmental entity's sovereign immunity from suits for injuries proximately caused by an employee's intentional tort of assault and battery. Tenn. Code Ann. § 29-20-205(2); Limbaugh, 59 S.W.3d at 84. However, in such suits, the governmental entity is only "liab[le] where the injuries at issue were proximately caused by its negligence in failing to exercise reasonable care to protect [an individual] from the foreseeable risk of an employee's intentional assault and battery." Limbaugh, 59 S.W.3d at 76; accord Tenn. Code Ann. § 29-20-205. Consequently, the governmental entity cannot be sued directly for the intentional torts of assault and battery, but merely for assaults and batteries caused by a negligent act or omission of the governmental entity. Id. at 84; accord Alexander, 345 F.Supp.2d at 885-86. And in the instant case, as noted above, there are material factual disputes regarding whether the City failed to properly train or supervise Officers Hooton and Buttry. Thus, whether the City's negligence led to the assault and battery of Myres is a factual issue not properly decided on summary judgment. The City's motion to this extent will be DENIED.

4. Negligence

Officer Buttry is immune to Myres' state law claim of negligence. For, as discussed above, governmental employees are immune to claims for damages where the governmental entity has waived its immunity to such suits. Tenn. Code Ann. § 29-20-310(b). GTLA waives a governmental entity's immunity from suits for injuries proximately caused by negligent acts of any employee within the scope of his employment. Tenn. Code Ann. § 29-20-205(a). Consequently, GTLA prohibits a plaintiff from bringing a negligence claim against a governmental employee. Tenn. Code Ann. § 29-20-310(b); Alexander, 345 F.Supp.2d at 885. Accordingly, Buttry's motion for summary judgment on Myre's negligence claim will be GRANTED.

In turn, the City's motion for summary judgment on Myre's negligence claim will be DENIED. As just discussed, GTLA waives the City's immunity from such suits. Tenn. Code Ann. § 29-20-205(a). And as previously discussed, whether the City was negligent in failing to train or supervise Officers Hooton and Buttry presents factual disputes precluding summary judgment.

C. Punitive Damages

To the extent Myres seeks punitive damages from the City, the City is immune from such damages by law. For, "a municipality is immune from punitive damages under 42 U.S.C. § 1983." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Similarly, a municipality is immune from punitive damages for state law claims under GTLA. Tipton County Bd. of Educ. v. Denis, 561 S.W.2d 148, 152-53 (Tenn. 1978). Accordingly, the City's motion for summary judgment on Myres' claims for punitive damages will be GRANTED.

However, Officer Buttry in his individual capacity is not immune from punitive damages. For, punitive damages may be awarded against a state or local official in his individual capacity under § 1983 for reckless conduct. Smith v. Wade, 461 U.S. 30, 56 (1983). Officer Buttry contends that he is entitled to summary judgment on this issue because the facts do not support a claim for punitive damages. However, as the Court has continually noted, the parties vigorously dispute the facts. And if a jury credits Myres' version of the facts, a jury could reasonably find that Officer Buttry's conduct warrants punitive damages. Accordingly, Officer Buttry's motion for summary judgment to this extent will be DENIED.

A separate order will enter.

ORDER

SO ORDERED.