Marisa Werner v. Tammy Young ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0058n.06
No. 22-5197
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jan 27, 2023
MARISA WERNER, DEBORAH S. HUNT, Clerk
Plaintiff - Appellant,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TAMMY C. YOUNG; ROBERT C. TENNESSEE
YOUNG; SEQUATCHIE VALLEY
PREPARATORY ACADEMY, OPINION
Defendants - Appellees.
Before: SUHRHEINRICH, CLAY, and DAVIS, Circuit Judges.
CLAY, Circuit Judge. Marisa Werner (“Plaintiff” or “Werner”) was a student at a school
owned and operated by Defendants when she was sexually abused and molested by the school
owners’ son over the course of two years. She brought suit against her abuser, Bryce Young
(“Bryce”), as well as the school, Sequatchie Valley Preparatory Academy (“SVPA”) and its
owners, Robert Christopher Young (“Chris”) and Tammy Young (“Tammy”), based on diversity
of citizenship pursuant to 28 U.S.C. § 1332(a). At issue in this appeal are Werner’s claims against
Tammy, Chris, and SVPA. Werner appeals the district court’s: (1) dismissal of her negligence,
negligent retention, negligence per se, and breach of fiduciary duty claims against Tammy, Chris,
and SVPA; and (2) grant of Tammy’s motion for summary judgment on the false imprisonment
claim against her. For the reasons set forth below, we AFFIRM the district court’s order
dismissing the negligence and breach of fiduciary duty claims against all defendants and the order
granting summary judgment to Tammy Young.
No. 22-5197, Werner v. Young et al.
I. BACKGROUND
A. Factual Background
SVPA is a non-profit conservative Christian boarding school owned and operated by
Defendants Tammy and Chris Young in Dunlap, Tennessee. Tammy and Chris’s son, Bryce,
served as a volunteer instructor at SVPA.
Werner began attending summer camps at SVPA when she was eight years old. In 2014,
she enrolled in the school’s pre-veterinary program on a partial scholarship and lived at the school
during the school year. Werner alleges that in January of 2017, when she was fifteen years old,
Bryce began grooming her on a school trip to Honduras by engaging in “prolonged, ‘inappropriate
hugging’” with her in order to obtain Werner’s trust and begin a sexual relationship with her. (Am.
Compl., R. 20, Page ID #61).
Bryce first sexually abused Werner in September 2017 on a shuttle bus “while no one else
was watching” during a school-sanctioned trip to Washington, D.C. (Id. at Page ID #62). In
December 2017, Bryce sexually assaulted Werner a second time when he drove Werner and
another student, who was sleeping in the back seat, off campus. Werner alleges that prior to the
last incident of sexual abuse, Tammy and Chris “either knew or had reasonable cause to suspect
that child sexual abuse had occurred due to the frequency of occasions, and the amount of time
[Bryce] Young was alone with Ms. Werner, as well as Young’s prolonged, ‘inappropriate hugging’
with Ms. Werner.” (Id. at Page ID ##62–63).
On June 11, 2018, Bryce’s wife, Natalie Young, discovered “inappropriate” text messages
between Bryce and Werner on Bryce’s phone. That same day, she told Tammy and Chris about
the messages. After speaking with Natalie, Tammy confronted her son and asked him whether he
had done anything inappropriate with Werner. After confronting Bryce, Tammy sought out
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Werner and found her cleaning bathrooms on the second floor of the ranch house. Tammy let
Werner know that she needed to speak with her and left while Werner finished cleaning.
After Werner had finished cleaning, she moved to the kitchen and was speaking with
someone in the hallway when Tammy returned. Tammy reiterated that she needed to speak with
Werner and Werner paused and expressed hesitation. In response, Tammy “grabbed [Werner’s
arm] briefly in the staircase,” “re-emphasized” that she needed to talk to Werner “now,” and then
“let [her] arm go” as they walked downstairs. (Werner Dep. Tr., R. 53-1, Page ID #365.). Tammy
then led Werner into a private room, closed the door, and confronted her about the messages found
on Bryce’s phone and the nature of her relationship with Bryce.
In an affidavit attached to her opposition to Tammy’s motion for summary judgment,
Werner wrote a different version of the start of her encounter with Tammy on June 11, 2018, than
the one she recounted in her deposition testimony. Werner indicated during her deposition that
Tammy’s physical contact was limited to a brief grab. In contrast, Werner specifies in her affidavit
that Tammy grabbed her forearm and “directed and controlled [Werner’s] movements by pulling
[Werner] towards her and downwards” towards the stairs. (Werner Aff., R. 71-3, Page ID ##867–
69).
Werner testified that during the period that Werner was in the room with Tammy, Tammy
interrogated Werner in a hostile manner and accused her of participating in “sexual sin” and told
her she needed to “repent.” (Werner Dep. Tr., R. 53-1, Page ID #370). It is undisputed that Tammy
never explicitly prohibited Werner from leaving the room, and that Werner never asked to leave
the room. However, Werner stated in a supplemental affidavit that she believed she would not be
permitted to leave the room.
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After their conversation, Tammy directed Werner to pack her belongings, and drove
Werner to the bus station so she could take a shuttle home to her parents. After dropping off
Werner at the bus station, Tammy confronted her son Bryce, telling him that his life at the school
was over and directing him to pack his belongings. Tammy then reported Bryce to “the local
sheriff’s department, the sheriff’s department for Ms. Werner’s home, and online.” (Appellees’
Br. at 11 (citing Tammy Young Dep. Tr., R. 67-2, Page ID ## 624–27)).
B. Procedural History
On August 31, 2020, Marisa Werner sued Bryce Young, Tammy Young, Chris Young, and
SVPA. (R. 1). She filed an amended complaint on October 31, 2020, bringing claims under
Tennessee law1 for:
I. False imprisonment against Tammy Young;
II. Negligence per se against Bryce Young;
III. Negligence per se against [SVPA], Tammy Young, and Chris Young;
IV. Negligence against [SVPA], Tammy Young, and Chris Young;
V. Negligent retention against [SVPA], Tammy Young, and Chris Young;
VI. Respondeat superior and/or vicarious liability against all Defendants;
VII. Breach of fiduciary duty against all Defendants;
VIII. Childhood sexual abuse against Bryce Young and [SVPA];
IX. Assault against Bryce Young;
X. Battery against Bryce Young;
XI. Intentional infliction of emotional distress (“IIED”) against Bryce Young; and
Punitive damages against all Defendants.
(Am. Compl., R. 20, Page ID ##68–82). The district court approved a settlement agreement and
consent order that resolved all claims against Bryce Young and awarded Werner $3 million.
1
This case is a diversity dispute and requires application of Tennessee substantive law. See Est. of
Riddle ex rel. Riddle v. S. Farm Bureau Life Ins. Co., 421 F.3d 400, 405 (6th Cir. 2005) (citing Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938)).
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SVPA, Tammy, and Chris moved to dismiss the negligence and breach of fiduciary duty
claims in Counts III, IV, V, VI, VII, VIII, and XII of the amended complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). The district court granted this motion, leaving only the false
imprisonment claim against Tammy.
After discovery closed, Tammy filed a motion for summary judgment on the false
imprisonment claim. Werner responded by opposing the summary judgment motion, relying on a
new affidavit supplementing her deposition testimony. The district court granted Tammy’s motion
for summary judgment. In its order granting Tammy’s motion for summary judgment, the court
sua sponte struck portions of Werner’s affidavit pursuant to the sham affidavit rule. On appeal,
Werner argues that the district court: (1) erred by dismissing her negligence and breach of fiduciary
claims against SVPA, Tammy, and Chris; (2) abused its discretion by not permitting her to amend
her complaint after dismissing the negligence and breach of fiduciary duty claims; (3) abused its
discretion by striking portions of the affidavit Werner filed opposing Tammy’s motion for
summary judgment; and (4) erred by granting Tammy’s motion for summary judgment on the false
imprisonment claim. Werner does not appeal the district court’s dismissal of the childhood sexual
abuse claim against SVPA (Count VIII).2
2
Defendants assert that Plaintiff has not appealed the respondeat superior claim (Count VI). In
her reply, Plaintiff clarifies that although she is not appealing the district court’s dismissal of this count as
it relates to her attempts to hold SVPA liable for Bryce Young’s actions, she will pursue this theory of
liability if this Court reverses the dismissal of her negligence and breach of fiduciary duty claims, intending
to hold SVPA liable for Chris and Tammy Young’s actions. Werner notes that she is not pursuing
respondeat superior as a cause of action but as a theory for recovery against SVPA on her negligence and
breach of fiduciary duty claims.
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II. DISCUSSION
A. Dismissal of Negligence and Breach of Fiduciary Duty Claims
In her amended complaint, Werner brought several negligence-based claims alleging that
Tammy, Chris, and SVPA “either knew or had reasonable cause to suspect” that Bryce had
sexually abused Werner “due to the frequency of occasions, and the amount of time, Young was
alone with Ms. Werner, as well as Young’s prolonged, ‘inappropriate hugging’ with Ms. Werner.”
(Am. Compl., R. 20, Page ID ##62–63). The district court determined that Werner failed to allege
facts showing that Defendants knew or had reason to suspect that Bryce was abusing Werner prior
to June 11, 2018, when Tammy and Chris first learned of the text messages between Werner and
Bryce. In dismissing her claims, the court noted that the allegation that Tammy and Chris knew
or had reason to know prior to the last incident of abuse was a “legal conclusion couched as a
factual allegation” since the complaint only made “vague allusions to ‘alone time’ between her
and Bryce” which is not unusual “in the context of a small school.” (Order on Mot. to Dismiss,
R. 42, Page ID ##226–27).
This Court reviews a district court’s grant of a motion to dismiss de novo. See Prod. Sols.
Int’l, Inc. v. Aldez Containers, LLC, 46 F.4th 454, 457 (6th Cir. 2022). To survive a motion to
dismiss for failure to state a claim upon which relief can be granted, a complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. at 458 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Upon review of a motion to
dismiss, we construe “the complaint in the light most favorable to the plaintiff, draw all reasonable
inferences in its favor, and accept all well-pleaded allegations in the complaint as true.” Keene
Group, Inc. v. City of Cincinnati, 998 F.3d 306, 310 (6th Cir. 2021) (citation omitted).
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Turning first to Plaintiff’s claim for negligence per se, Plaintiff contends that the district
court erred by dismissing this claim because she alleged that prior to the last incident of abuse,
Defendants had reasonable cause to suspect that she was a victim of child abuse based on the
inappropriate hugging and long periods of time that Plaintiff spent alone with Bryce. Defendants
argue that the district court properly dismissed this claim because although the complaint makes
those “conclusory allegations” about time spent alone and inappropriate hugging, there were no
facts alleged that Chris, Tammy, or anyone else at the school “saw any such conduct or that anyone
reported such conduct.” (Appellees’ Br. at 18).
To survive a motion to dismiss on a negligence per se claim, a plaintiff must allege that the
defendant breached a statute and that defendant’s breach of that statute proximately caused her
injury. See Shaw v. Metro. Gov’t of Nashville & Davidson Cnty., 596 S.W.3d 726, 734 (Tenn.
2019); Ham v. Hosp. of Morristown, Inc., 917 F. Supp. 531, 535 (E.D. Tenn. 1995) (citing Doe v.
Coffee Cnty. Bd. Of Educ., 852 S.W.2d 899, 909 (Tenn. App. 1992)). Relevant to this case,
Tennessee law requires any schoolteacher or other school official who “knows or has reasonable
cause to suspect that a child has been sexually abused” to “report such knowledge or suspicion” to
the department of children’s services. Tenn. Code Ann. § 37-1-605(a)(4) (West 2020).
At issue is whether Werner has sufficiently alleged that Defendants’ violation of the
Tennessee reporting statute3 proximately caused her injuries by stating that:
Prior to the last instance of Defendant Young sexually abusing Ms. Werner, Tammy
and Chris Young either knew or had reasonable cause to suspect that institutional
child sexual abuse had occurred due to the frequency of occasions, and the amount
3
Defendants dispute whether the Tennessee reporting statute creates a private right of action.
(Appellee’s Br. at 16). This court need not address the issue. Although the Tennessee Supreme Court has
not definitively addressed the issue, it appears that some Tennessee courts do treat the violation of the
mandatory reporter statutes as creating a private right of action for those children who are then abused as a
result of a failure to report. See Coffee Cnty. Bd. of Educ., 852 S.W.2d at 909.
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No. 22-5197, Werner v. Young et al.
of time, Young was alone with Ms. Werner, as well as Young’s prolonged,
“inappropriate hugging” with Ms. Werner.
(Am. Compl., R. 20, Page ID #70).
In deciding a motion to dismiss, a court is required to accept as true all factual allegations,
but not legal conclusions, in a complaint. Iqbal, 556 U.S. at 678. A court is not required to “unlock
the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79.
Where a complaint merely recites the “elements of a cause of action” and does not “permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it
has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).
In this case, Werner has merely recited the elements of the cause of action, without alleging
facts showing that Tammy, Chris, or any other person at SVPA knew about or suspected child
abuse before June 11, 2018. Werner’s allegations that Chris and Tammy were aware of
inappropriate hugging and time spent alone are insufficient to establish that their failure to report
proximately caused her injury. See Coffee Cnty. Bd. of Educ., 852 S.W.2d at 909 (dismissing
failure to report claim against teacher for failure to establish proximate cause because teacher
learned of abuse after it had been perpetrated). Werner has not alleged that anyone saw or reported
inappropriate hugging or excessive time spent alone, nor that anyone saw anything occurring
between Bryce and Werner that would have given the person reason to suspect that Bryce was
abusing her. Nor has Werner alleged that Defendants had previously received any reports that
Bryce had sexually abused any other students. Without such facts, Werner’s allegation that
Defendants knew or had reasonable cause to suspect child sexual abuse is a legal conclusion not
entitled to an assumption of veracity.
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No. 22-5197, Werner v. Young et al.
Werner’s negligence,4 negligent retention,5 and breach of fiduciary duty6 claims also fail
to allege specific facts to establish that Defendants’ actions proximately caused Werner’s injuries.
Werner cannot establish a claim for negligence or negligent retention for the same reason that she
cannot establish a claim for negligence per se: she has not plausibly alleged that Defendants were
aware of Bryce’s abuse or propensity to commit childhood sexual abuse nor that any training
would have prevented its occurrence. See Snider v. Snider, 855 S.W.2d 588, 591 (Tenn. Ct. App.
1993) (determining that school was not negligent in releasing child to uncle who sexually abused
child because there was no evidence that school officials were aware that uncle posed a threat to
child and injury to child was thus unforeseeable); see also Roe v. Cath. Diocese of Memphis, Inc.,
950 S.W.2d 27, 32 (Tenn. Ct. App. 1996) (determining that sexual assault perpetrated by one
student against another was not reasonably foreseeable to teacher where school “had no reason to
suspect this behavior” from the assailant); Jones v. Bedford Cnty., No. M200901108COAR3CV,
2009 WL 4841063, at *1, 4–5 (Tenn. Ct. App. Dec. 15, 2009) (noting that corrections officers’
4
To assert a claim for negligence, a plaintiff must allege: “1) a duty of care owed by the defendant
to the plaintiff; 2) breach of duty of care by the defendant; 3) injury or loss; 4) causation in fact; and 5)
proximate, or legal, cause.” K.G.R. v. Union City Sch. Dist., No. W201601056COAR9CV, 2016 WL
7230385, at *3 (Tenn. Ct. App. Dec. 14, 2016) (citations omitted).
5
In Tennessee, a plaintiff makes out a claim for negligent supervision and retention of an employee
if she “establishes, in addition to the elements of a negligence claim, that the employer had knowledge of
the employee’s unfitness for the job.” Doe v. Cath. Bishop for Diocese of Memphis, 306 S.W.3d 712, 717
(Tenn. Ct. App. 2008). This tort essentially involves answering the questions of whether the defendant had
“notice of the wrongdoer’s propensity to commit sexual misconduct, authority to prevent the harm, and
some duty of care to those who were harmed?” Redwing v. Cath. Bishop for Diocese of Memphis, 363
S.W.3d 436, 454 (Tenn. 2012) (quoting Ira C. Lupu & Robert W. Tuttle, Sexual Misconduct and
Ecclesiastical Immunity, 2004 B.Y.U. L. Rev. 1789, 1856 n. 266 (2004)).
6
To state a claim for breach of fiduciary duty, Tennessee law requires a plaintiff to allege: “(1) the
existence of a fiduciary duty (2) that was breached (3) proximately causing damages.” Pagliara v. Johnston
Barton Proctor & Rose, LLP, 708 F.3d 813, 818 (6th Cir. 2013). A fiduciary relationship arises “between
two parties in any number of circumstances, both formal and informal, including ‘whenever confidence is
reposed by one party in another who exercises dominion and influence.’” Id. (quoting Thompson v. Am.
Gen. Life & Acc. Ins. Co., 404 F. Supp. 2d 1023, 1028 (M.D. Tenn. 2005)). One who has a fiduciary duty
to another is required “to act with due regard for the interests of another.” Id.-9-
No. 22-5197, Werner v. Young et al.
sexual assault of plaintiff while plaintiff was incarcerated was not reasonably foreseeable to the
county because there was no evidence that any person with supervisory authority had information
that would “lead them to suspect a future sexual assault”).
Werner’s breach of fiduciary duty claim also fails to establish proximate cause. Assuming,
without deciding, that Defendants owed a fiduciary duty to Werner, Werner did not allege facts
showing that Defendants abused the trust she had placed in the school and its administrators to
take advantage of her. On this count, as with her negligence-based claims, Werner makes only
conclusory allegations that Defendants had “superior knowledge of the dangers posed to Ms.
Werner by [Bryce] Young” and that “SVPA . . . recklessly allowed [Bryce] Young to groom
students and molest them including Ms. Werner.” (Am. Compl., Page ID ##75–76). The amended
complaint alleges that Defendants knew that Bryce would sexually assault students but provides
no specific facts in support of that allegation—for example, allegations of prior abuse committed
by Bryce or reports of such abuse made to Defendants. These pleadings, like those made with
respect to her negligence-based claims, are legal conclusions bereft of any specific facts that would
allow her to establish that Defendants’ breach of a fiduciary duty caused injury to Werner.
Because Werner fails to plead facts specifically alleging that Defendants were aware of
abuse before June 11, 2018, the district court did not err by dismissing the negligence per se,
negligence, negligent retention/supervision, and breach of fiduciary duty claims.
B. Dismissal of Claims with Prejudice
Werner argues that the district court abused its discretion by dismissing her claims without
granting her leave to amend. After filing her initial complaint, Werner sought the court’s leave to
amend the complaint and filed an amended complaint in October 2020. Following Defendants’
motion to dismiss, Werner did not file any additional motions for leave to file an amended
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complaint, nor did she include such a request in her opposition to Defendants’ motion to dismiss.
For the first time on appeal, she argues the district court abused its discretion by dismissing her
claims with prejudice, without allowing her to file a second amended complaint.7
This Court reviews for abuse of discretion a district court’s decision to grant a motion to
dismiss with prejudice. Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC,
700 F.3d 829, 844 (6th Cir. 2012) (citation omitted). A district court does not abuse its discretion
merely because it does not invite a plaintiff to file an amended complaint upon dismissing
plaintiff’s claims. Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 551 (6th Cir. 2008) citing
Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 913 (8th Cir. 2002)).
Because Plaintiff never sought leave to file an amended complaint, it was not an abuse of
discretion for the district court to dismiss her claims with prejudice. Tucker, 539 F.3d at 551 (“No
abuse of discretion occurs when a district court denies a party leave to amend where such leave
was never sought.”). Furthermore, Plaintiff has not pointed to any extenuating circumstances for
failing to file a motion to amend and gives “no reason to believe that amendment would not be
futile.” Justice v. Petersen, No. 21-5848, 2022 WL 2188451, at *4 (6th Cir. June 17, 2022); Ohio
Police & Fire Pension Fund, 700 F.3d at 844 (determining that there were “no extenuating
7
Just prior to the close of discovery, Plaintiff filed a motion for reconsideration requesting leave to
file a second amended complaint using evidence uncovered during discovery, notably a voicemail by
Tammy apologizing to Werner’s parents that “something happened on our watch” and Werner’s deposition
testimony that “sexual hugging” took place in plain view of other students and that she had been
admonished by Tammy for flirting with Bryce. (Mot. for Recons., R. 53, Page ID ##280–89). The district
court denied the motion for reconsideration because Werner’s deposition testimony was not new
information since it was based on her own recollections and because Tammy’s voicemail to Werner’s
parents did not indicate that Tammy had knowledge of the sexual abuse prior to its last occurrence. Werner
has not appealed the district court’s order on the motion for reconsideration, so this Court lacks jurisdiction
to address whether the district court abused its discretion in denying the motion for reconsideration. See
United States v. Universal Mgmt. Servs., Corp., 191 F.3d 750, 757 (6th Cir. 1999) (“[T]he notice
of appeal references only the district court’s summary judgment rulings, we do not have jurisdiction to
consider issues raised in the Motion for Reconsideration.”).
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circumstances justifying a departure from the principle that ‘it is not the district court’s role to
initiate amendments’” (quoting Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue
Shield, 552 F.3d 430, 438 (6th Cir. 2008))). For these reasons, the district court did not abuse its
discretion in dismissing Werner’s claims with prejudice.
C. Striking of Marisa Werner’s Supplemental Affidavit
1. Exclusion of affidavit pursuant to sham affidavit doctrine
After discovery concluded on Werner’s false imprisonment claim, Tammy moved for
summary judgment, arguing that there was no genuine issue of fact on any element of the false
imprisonment claim. Werner thereafter filed a response to the motion for summary judgment and
attached an affidavit that sought to clarify the encounter between her and Tammy on June 11,
2018. Tammy failed to file a reply, and the district court issued its order on the motion for
summary judgment a day after the deadline for the reply.
The district court considered the affidavit and struck the portion of the affidavit that
described Tammy’s purported use of force to lead Werner to a private room. The district court
determined that this section of the affidavit was in tension with her deposition testimony and
appeared to contain a formulaic recitation of the elements of a false imprisonment cause of action
in an attempt to create an issue of fact.
After striking the section of the affidavit describing Tammy’s interaction with Plaintiff on
June 11, 2018, the district court determined that there was no evidence that Werner was detained
against her will or that the detention was unlawful. Werner argues that the application of the sham
affidavit doctrine was improper since the district court relied on “erroneous factual findings” in
determining that there was an inconsistency between the deposition testimony and the affidavit.
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A district court’s decision to strike an affidavit pursuant to the sham affidavit rule is an
evidentiary ruling that is reviewed for abuse of discretion. Aerel, S.R.L. v. PCC Airfoils, L.L.C.,
448 F.3d 899, 906 (6th Cir. 2006). A district court abuses its discretion when it “relies on
erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard
when reaching a conclusion, or makes a clear error of judgment.” Id. (quoting Reeb v. Ohio Dep’t
of Rehab. & Corr., 435 F.3d 639, 644 (6th Cir. 2006)).
The sham affidavit rule prohibits a party from filing a post-deposition affidavit that
“directly contradicts the nonmoving party’s prior sworn testimony.” Aerel, 448 F.3d at 908 (citing
Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986)). If the affidavit does not directly
contradict prior sworn testimony, it should not be stricken unless the court determines that it is in
tension with the prior testimony and an attempt to create a sham issue of fact for trial. See Boykin
v. Fam. Dollar Stores of Mich., LLC, 3 F.4th 832, 842 (6th Cir. 2021); Aerel, 448 F.3d at 908. To
determine whether the affidavit attempts to create a sham fact issue, the court can assess whether
“affiant was cross-examined during [her] earlier testimony, whether the affiant had access to the
pertinent evidence at the time of [her] earlier testimony or whether the affidavit was based on
newly discovered evidence, and whether the earlier testimony reflects confusion [that]
the affidavit attempts to explain.” Aerel, 448 F.3d at 909 (quoting Franks v. Nimmo, 796 F.2d
1230, 1237 (10th Cir. 1986)).
During her deposition, Werner testified:
Mrs. Tammy was, like, I need to talk to you now. And I kind of waited because I was
getting nervous at that point. I hesitated for a second. And then my arm was grabbed
briefly in the staircase. The door was open, and we were standing at, like, the top of the
staircase. And she said, I need to talk to you now, re-emphasized it. Then she let my arm
go, and we walked downstairs. . . . We went to one of the guest restrooms – the guest
rooms downstairs in the ranch house. So downstairs was where the girls’ dorm is, and then
there’s two guest bedrooms down there and then another kitchen. And we went in the
room, she closed the door, we sat down on the bed, and we had a conversation.
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(Werner Dep. Tr., R. 53-1, Page ID ##365–66). Werner also testified that she could not remember
whether she followed Tammy or whether Tammy followed her down the stairs and into the guest
room. In the affidavit attached to her motion in opposition to summary judgment, Werner wrote:
While standing in the doorway of the stairwell in the main ranch house, I nervously
hesitated after Tammy Young stated to me for the second time that she “needed to
speak with [me] now.” In response to my hesitation, Tammy Young grabbed my
forearm and stated to me for the third that she “needed to speak with [me] now,”
placing extra emphasis on the word “now.” Mrs. Young used an aggressive,
coercive tone.
When Tammy Young grabbed my arm, she used much greater force than
normal, though not her full strength.
The force in which Tammy Young grabbed my arm immediately indicated
to me that there was a severe issue occurring, as Mrs. Young had not previously
used aggressive physical force towards me, besides disciplinary paddling.
While I had witnessed Tammy Young angry several times during the eight
years I spent at the ranch, when Tammy Young grabbed my forearm, this was the
most infuriated I had ever seen her. I could feel her blood boiling.
While grabbing my forearm, Tammy Young directed and controlled my
movements by pulling me towards her and downwards in the direction of the stairs.
I felt compelled to move down the stairs, and she let go of my arm once I walked
down in front of her while she followed closely behind me.
I yielded to Tammy Young’s assertion of authority over me because you do
not say no or argue with authority figures at SVPA, especially not Tammy Young.
Not a single thought in my mind suggested that I could have refused to let her take
me wherever she wanted me to go.
Once we reached the bottom of the stairs, Tammy Young went in front of
me because I had stopped, unaware of where she wanted me to go.
Once Tammy Young began walking in front of me, she led me into a guest
bedroom on the bottom floor of the main ranch house. Tammy closed the door
behind her. The room had no other doors and only one small window. The only
exit was the door we used to enter the room.
(Werner Aff., R. 71-3, Page ID ##867–69).
As the district court determined, Werner’s affidavit is in tension and at times conflicts with
her deposition testimony. First, Werner’s statement that Tammy “directed and controlled my
movements by pulling me towards her and downwards in the direction of the stairs” conflicts with
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her prior statement that Tammy only “briefly” grabbed her arm. While the testimony does not
directly contradict her prior testimony, the brief encounter described in the deposition testimony
indicated that Tammy grabbed Werner’s arm as a way of emphasizing the urgency of the
conversation whereas the description of the encounter in the affidavit suggests a more prolonged
encounter wherein Tammy is physically pushing Werner in a certain direction. These differences
reveal a tension between Werner’s deposition testimony and her later-filed affidavit.
The district court also determined that Werner’s affidavit was an attempt to “create an issue
of fact where none exists” since the included descriptions were “conclusory recitations of the
elements of false imprisonment.” (Order on Mot. for Summ. J., R. 75, Page ID #927). This
determination was not an abuse of discretion because Werner was directly questioned about this
encounter during her deposition. See Boykin, 3 F.4th 832 at 842 (noting that sham affidavit rule
would apply in a situation where a deposed individual testified that they could not recall an event,
only to submit a subsequent affidavit testifying to the previously forgotten details). Moreover, the
language used in the affidavit tracks the elements of the false imprisonment cause of action, but
fails to provide factual specificity, indicating that Werner’s affidavit was submitted as an attempt
to create an issue of fact where none exists.
Additionally, during the deposition, Werner could not recall who led the way down the
stairs or into the room, whereas Werner’s affidavit recalls that Tammy was behind Werner as they
walked down the stairs and that Tammy led the way into the room. This is a plain contradiction
that could contribute to the application of the sham affidavit rule. See Reich v. City of
Elizabethtown, 945 F.3d 968, 976 (6th Cir. 2019) (“Where a deponent is ‘asked specific questions
about, yet denie[s] knowledge of, the material aspects of her case, the material allegations in her
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No. 22-5197, Werner v. Young et al.
affidavit directly contradict her deposition.’” (quoting Powell-Pickett v. A.K. Steel Corp., 549 F.
App’x 347, 353 (6th Cir. 2013)))
Accordingly, the district court did not abuse its discretion in striking the portions of the
affidavit that contradicted or were in tension with Werner’s prior deposition testimony.
2. Sua sponte exclusion of evidence
Werner argues that the district court was wrong to grant the motion for summary judgment
on a ground that was not advanced by Tammy. Werner argues that Federal Rule of Civil Procedure
56(f)(2) requires the court to give notice and an opportunity to respond before granting a motion
for summary judgment on a ground not advanced by the parties. Plaintiff is correct that a court
must give “notice and a reasonable time to respond” when granting a summary judgment motion
“on grounds not raised by a party.” Fed. R. Civ. P. 56(f)(2). The district court, however, did not
grant summary judgment on a different ground than the one advanced in Defendant’s motion.
Rather, the court determined that Plaintiff failed to point to evidence raising a genuine issue of fact
on each of the elements of the false imprisonment claim. Tammy made this same argument in her
motion for summary judgment.
Accordingly, the application of the sham affidavit rule was an evidentiary ruling. District
courts “generally have broad discretion regarding evidentiary rulings.” Ondo v. City of Cleveland,
795 F.3d 597, 604 (6th Cir. 2015). Sixth Circuit law permits district courts to
“exclude evidence sua sponte.” HDM Flugservice GmbH v. Parker Hannifin Corp., 332 F.3d
1025, 1034 (6th Cir. 2003) (affirming district court’s grant of summary judgment after sua sponte
exclusion of evidence). The district court did not abuse its discretion by sua sponte striking
sections of Werner’s affidavit pursuant to the sham affidavit rule.
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No. 22-5197, Werner v. Young et al.
D. District Court’s Grant of Tammy Young’s Motion for Summary Judgment
Werner also appeals the district court’s grant of summary judgment on the false
imprisonment claim, arguing that the district court erred by viewing the facts through “Tammy
Young’s self-serving lens” and not in the light most favorable to the non-moving party.
(Appellant’s Br. at 15).
This Court reviews a district court’s grant of a motion for summary judgment de novo. See
Thacker v. Ethicon, Inc., 47 F.4th 451, 458 (6th Cir. 2022). Summary judgment is properly granted
when the “movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When evaluating whether a motion
for summary judgment was properly granted, “this Court views the evidence in the light most
favorable to the party opposing the motion.” Kirilenko-Ison v. Bd. of Educ. of Danville Indep.
Schs., 974 F.3d 652, 660 (6th Cir. 2020) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). This means that the “evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor,” since “credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In Tennessee, the elements of the civil cause of action for false imprisonment are “(1) the
detention or restraint of one against his will and (2) the unlawfulness of such detention or restraint.”
Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990) (first citing 32 Am. Jur.
2d False Imprisonment § 5 (1982); and then citing Little Stores v. Isenberg, 172 S.W.2d 13, 15
(Tenn. Ct. App. 1943)). Merely “[f]eeling mentally restrained is not sufficient to establish false
imprisonment; the restraint must be against the plaintiff’s will, such as when the plaintiff yields to
force, the threat of force, or the assertion of authority.” Doe v. Andrews, 275 F. Supp. 3d 880, 885
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No. 22-5197, Werner v. Young et al.
(M.D. Tenn. 2017) (citing Newsom v. Thalhimer Bros., Inc., 901 S.W.2d 365, 367 (Tenn. Ct. App.
1994)).
Werner’s testimony reveals that she was not detained or restrained against her will. Werner
testified that she never asked to leave the room and Tammy never told her she could not leave the
room. Even if Werner’s affidavit is considered, Tammy’s grabbing of Werner’s arm did not
constitute a restraint or detention since it was not accompanied with a threat of force or assertion
of authority beyond that which Tammy was entitled to use toward a student in her capacity as a
school administrator.8 See Newsom, 901 S.W.2d at 367 (determining that employee who felt
mentally restrained by employers who accused her of theft and threatened to call the police was
not falsely imprisoned since neither employer touched her, used any profanity to her, nor stated
they would personally arrest her); cf. Little Stores, 172 S.W.2d at 15, 17 (determining that jury
verdict on false imprisonment in favor of woman accused of theft was not in error where store
clerk grabbed her arm and led her back to the store, scared her with his loud voice, and made her
fear that he would put her in jail if she did not accompany him).
Although Tammy did grab Werner’s arm before they both walked down the stairs, Werner
presented no other evidence indicating that she was yelled at or that she felt that she would have
been subjected to any harm, arrest, or other physical restraint had she not complied with Tammy’s
directive to go talk in a private room. See Doe, 275 F. Supp. 3d at 886 (determining that plaintiff
presented no evidence that defendant restrained or detained her after alleged sexual assault even
though evidence showed that plaintiff was in a bathroom with defendant and that door was locked,
8
Tennessee law permits schools to discipline students using corporal punishment. See Tenn. Code
Ann. § 49-6-4103(a) (West 2018) (“Any teacher or school principal may use corporal punishment in a
reasonable manner against any pupil for good cause in order to maintain discipline and order within the
public schools.”); see also Paul v. McGhee, 577 F. Supp. 460, 461–62 (E.D. Tenn. 1983) (determining that
school teacher who punished student corporally did not violate his constitutional rights) (citing Ingraham
v. Wright, 430 U.S. 651, 672 (1977)).
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plaintiff had previously said she would not consent and was too drunk to give consent, finding it
relevant that no evidence indicated that defendant forced plaintiff to enter the bathroom or stopped
her from leaving or otherwise “restrained her by force or by threat”); but see Richards v. O'Connor
Mgmt., Inc., No. 01A01-9708-CV-00379, 1998 WL 151392, at *4–5 (Tenn. Ct. App. Apr. 3, 1998)
(determining that plaintiff provided facts sufficient to survive summary judgment on false
imprisonment claim where defendant shouted at plaintiff, was armed and wearing a police
uniform, took her by the arm to another officer, and touched his gun in a manner that led her to
believe he would shoot her if she did not comply with his shouted orders).
Furthermore, Werner’s affidavit makes clear that she agreed to go with Tammy to talk, not
because Tammy exercised physical force by grabbing her arm or threatening Werner with physical
force, but because Werner understood that school culture and policy required that she comply with
requests by authority figures. In her affidavit, Werner stated: “I yielded to Tammy Young’s
assertion of authority over me because you do not say no or argue with authority figures at SVPA.”
(Werner Aff., R. 71-3, Page ID ##867–69). A “verbal direction” that is unaccompanied by “a
reasonably apprehended force” or threat of force or restraint is not a detention sufficient to
constitute false imprisonment. See Newsom, 901 S.W.2d at 367-68 (quoting Martin v.
Santora, 199 So. 2d 63, 65 (Miss. 1967)).
Because Werner did not present evidence that she was detained against her will, the district
court did not err in granting Tammy’s motion for summary judgment on Plaintiff’s false
imprisonment claim.
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No. 22-5197, Werner v. Young et al.
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s orders (1) dismissing the
negligence and breach of fiduciary duty claims against all Defendants and (2) granting summary
judgment to Tammy Young.
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