NOT RECOMMENDED FOR PUBLICATION File Name: 23a0423n.06
Nos. 21-6163/6167/6169
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 02, 2023 DEBORAH S. HUNT, Clerk
GINNY HUMPHREY, as parent and legal ) ) guardian of minor child, O.H. [21-6167], ) Plaintiff, ) ) BARRY MARTINDELL, as parent and legal ) guardian of minor children, A.M. and C.M. [21- ) 6163]; COURTNEY MARTINDELL [21-6163]; ) MICHAEL GREGORY DERRICK, as Guardian ) ad Litem of minor child, O.H. [21-6167]; ) ON APPEAL FROM THE UNITED ANGEL GIBSON, as parent and legal guardian ) STATES DISTRICT COURT FOR of minor child, B.W. [21-6169], ) THE WESTERN DISTRICT OF ) TENNESSEE Plaintiffs-Appellants, ) v. ) ) ) OPINION RICKIE FRIAR, et al., ) Defendants, ) ) RITA STANBACK and FRANK TENNANT, ) individually and in their official capacities, ) Defendants-Appellees. )
Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.
KETHLEDGE, Circuit Judge. This case is before us a second time. The plaintiffs are
parents of children whom Rickie Friar abused before being sent to a federal penitentiary for
child-sex crimes. Plaintiffs now appeal the district court’s grant of summary judgment to Rita
Stanback and Frank Tennant of plaintiffs’ claims of supervisory liability under 42 U.S.C. § 1983.
We affirm largely for the reasons stated by the district court. Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
I.
In reviewing the district court’s grant of summary judgment to the defendants, we consider
the relevant evidence in the light most favorable to the plaintiffs. See Troche v. Crabtree, 814
F.3d 795, 798 (6th Cir. 2016).
Rickie Friar was a reserve police officer with the Millington, Tennessee Police Department.
In 2013, he drove his police cruiser to a neighborhood gathering, where he wore his uniform and
introduced himself to residents as a police officer. One of those residents was plaintiff Ginny
Humphrey, who attended the gathering with her young daughter, whom we call “O.H.” Another
resident was Scott Walker (former husband of plaintiff Angel Gipson), who attended with his
daughter “B.W.” During the neighborhood event—ostensibly to teach the children about the
consequences of criminal behavior—Friar handcuffed O.H., B.W, and some other children, placed
each of them in the back of his cruiser, and photographed them. A few days later, Friar returned
to the neighborhood and delivered photos of the children to their parents.
Thereafter, the minor children in this case occasionally saw Friar directing traffic or
handing out flyers in his police uniform. But otherwise, after the neighborhood gathering, Friar
interacted with the plaintiffs and their children in his personal capacity—while off-duty, in civilian
clothes, and using his personal vehicle.
Friar spent months developing personal relationships with the plaintiffs and their children.
In the case of Humphrey and O.H., Friar regularly visited Humphrey in the weeks after the
neighborhood gathering, and they became friends. After a few months, Humphrey routinely
allowed Friar to take O.H. to the YMCA, where Friar had a membership allowing him and his
guests to use the pool. Humphrey also allowed Friar to take O.H. to carnivals, restaurants, and the
park; and Friar, for his part, bought gifts for O.H. and helped Humphrey finance her purchase of a
-2- Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
car. Eventually, Humphrey allowed Friar to take O.H. to his home, around 50 times or so, usually
for overnight stays, and without any other adult present. There, Friar sexually abused the girl.
Scott Walker and B.W. had been going to the YMCA together for months before the
neighborhood gathering—indeed they first met Friar at the YMCA, where Walker had a
membership. They continued to go to the YMCA together after the gathering, and a few months
later Friar inappropriately touched and photographed B.W. while they were at the pool.
Plaintiff Barry Martindell and his daughters, A.M. and C.M., had not been present at the
neighborhood gathering, but O.H. later introduced the Martindells to Friar at the YMCA.
Martindell was at first wary of Friar, but Humphrey vouched for him and described him as a “father
figure.” Over the next several months, Martindell and Friar became friendly after learning that
they shared some common interests. Martindell regarded Friar as a “Santa Claus type guy” during
this period. Eventually, in October or November 2014, Martindell allowed C.M. to visit Friar’s
home, where he played “policeman” and swung his nightstick around. Martindell ended his
daughters’ interactions with Friar the following month, however, after seeing Friar take
photographs of the girls’ groin areas while they were all at a McDonald’s.
In July 2015, Friar’s housekeeper found photographs of him sexually abusing young girls.
He later pled guilty in federal court to various child-sex offenses, for which the court sentenced
him to 26 years in prison.
The parents thereafter brought this suit against the City of Millington, three former chiefs
of police, and three former mayors, asserting claims under 42 U.S.C. § 1983. The district court
later dismissed the claims against all defendants, excepting Friar, for failure to state a claim. On
appeal, we affirmed most of the district court’s decision, but reversed as to Chiefs Stanback and
-3- Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
Tennant, holding that the plaintiffs had plausibly alleged claims for supervisory liability against
them. See Humphrey v. Friar, 792 F. App’x 395 (6th Cir. 2020).
The district court later granted summary judgment to Stanback and Tennant, holding that,
as a matter of law, Friar had not acted “under color of” state law when he harmed the plaintiffs’
daughters. This appeal followed.
II.
We review de novo the district court’s grant of summary judgment. Maben v. Thelen, 887
F.3d 252, 258 (6th Cir. 2018).
The only claims at issue in this appeal are plaintiffs’ claims of supervisory liability against
Stanback and Tennant. Yet § 1983 does not provide for vicarious (or “respondeat superior”)
liability; a defendant can be liable under § 1983 only for his own actions or omissions, not for
those of anyone else. McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006). Thus,
a subordinate’s violation of the Constitution does not, standing alone, render his supervisor liable
for those actions. Instead, under § 1983, a supervisor is liable for a subordinate’s constitutional
violation only if the supervisor expressly or tacitly authorized it. Id.; Doe v. City of Roseville,
296 F.3d 431, 439 (6th Cir. 2002).
The dispute in this appeal, however, largely concerns an antecedent question: namely,
whether Friar’s abuse of the plaintiffs’ children amounted to a violation of the Constitution, as
opposed to only a violation of federal and state criminal law. For a “prerequisite of supervisory
liability under § 1983 is unconstitutional conduct by a subordinate of the supervisor.” McQueen,
433 F.3d at 470.
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0423n.06
Nos. 21-6163/6167/6169
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 02, 2023 DEBORAH S. HUNT, Clerk
GINNY HUMPHREY, as parent and legal ) ) guardian of minor child, O.H. [21-6167], ) Plaintiff, ) ) BARRY MARTINDELL, as parent and legal ) guardian of minor children, A.M. and C.M. [21- ) 6163]; COURTNEY MARTINDELL [21-6163]; ) MICHAEL GREGORY DERRICK, as Guardian ) ad Litem of minor child, O.H. [21-6167]; ) ON APPEAL FROM THE UNITED ANGEL GIBSON, as parent and legal guardian ) STATES DISTRICT COURT FOR of minor child, B.W. [21-6169], ) THE WESTERN DISTRICT OF ) TENNESSEE Plaintiffs-Appellants, ) v. ) ) ) OPINION RICKIE FRIAR, et al., ) Defendants, ) ) RITA STANBACK and FRANK TENNANT, ) individually and in their official capacities, ) Defendants-Appellees. )
Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.
KETHLEDGE, Circuit Judge. This case is before us a second time. The plaintiffs are
parents of children whom Rickie Friar abused before being sent to a federal penitentiary for
child-sex crimes. Plaintiffs now appeal the district court’s grant of summary judgment to Rita
Stanback and Frank Tennant of plaintiffs’ claims of supervisory liability under 42 U.S.C. § 1983.
We affirm largely for the reasons stated by the district court. Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
I.
In reviewing the district court’s grant of summary judgment to the defendants, we consider
the relevant evidence in the light most favorable to the plaintiffs. See Troche v. Crabtree, 814
F.3d 795, 798 (6th Cir. 2016).
Rickie Friar was a reserve police officer with the Millington, Tennessee Police Department.
In 2013, he drove his police cruiser to a neighborhood gathering, where he wore his uniform and
introduced himself to residents as a police officer. One of those residents was plaintiff Ginny
Humphrey, who attended the gathering with her young daughter, whom we call “O.H.” Another
resident was Scott Walker (former husband of plaintiff Angel Gipson), who attended with his
daughter “B.W.” During the neighborhood event—ostensibly to teach the children about the
consequences of criminal behavior—Friar handcuffed O.H., B.W, and some other children, placed
each of them in the back of his cruiser, and photographed them. A few days later, Friar returned
to the neighborhood and delivered photos of the children to their parents.
Thereafter, the minor children in this case occasionally saw Friar directing traffic or
handing out flyers in his police uniform. But otherwise, after the neighborhood gathering, Friar
interacted with the plaintiffs and their children in his personal capacity—while off-duty, in civilian
clothes, and using his personal vehicle.
Friar spent months developing personal relationships with the plaintiffs and their children.
In the case of Humphrey and O.H., Friar regularly visited Humphrey in the weeks after the
neighborhood gathering, and they became friends. After a few months, Humphrey routinely
allowed Friar to take O.H. to the YMCA, where Friar had a membership allowing him and his
guests to use the pool. Humphrey also allowed Friar to take O.H. to carnivals, restaurants, and the
park; and Friar, for his part, bought gifts for O.H. and helped Humphrey finance her purchase of a
-2- Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
car. Eventually, Humphrey allowed Friar to take O.H. to his home, around 50 times or so, usually
for overnight stays, and without any other adult present. There, Friar sexually abused the girl.
Scott Walker and B.W. had been going to the YMCA together for months before the
neighborhood gathering—indeed they first met Friar at the YMCA, where Walker had a
membership. They continued to go to the YMCA together after the gathering, and a few months
later Friar inappropriately touched and photographed B.W. while they were at the pool.
Plaintiff Barry Martindell and his daughters, A.M. and C.M., had not been present at the
neighborhood gathering, but O.H. later introduced the Martindells to Friar at the YMCA.
Martindell was at first wary of Friar, but Humphrey vouched for him and described him as a “father
figure.” Over the next several months, Martindell and Friar became friendly after learning that
they shared some common interests. Martindell regarded Friar as a “Santa Claus type guy” during
this period. Eventually, in October or November 2014, Martindell allowed C.M. to visit Friar’s
home, where he played “policeman” and swung his nightstick around. Martindell ended his
daughters’ interactions with Friar the following month, however, after seeing Friar take
photographs of the girls’ groin areas while they were all at a McDonald’s.
In July 2015, Friar’s housekeeper found photographs of him sexually abusing young girls.
He later pled guilty in federal court to various child-sex offenses, for which the court sentenced
him to 26 years in prison.
The parents thereafter brought this suit against the City of Millington, three former chiefs
of police, and three former mayors, asserting claims under 42 U.S.C. § 1983. The district court
later dismissed the claims against all defendants, excepting Friar, for failure to state a claim. On
appeal, we affirmed most of the district court’s decision, but reversed as to Chiefs Stanback and
-3- Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
Tennant, holding that the plaintiffs had plausibly alleged claims for supervisory liability against
them. See Humphrey v. Friar, 792 F. App’x 395 (6th Cir. 2020).
The district court later granted summary judgment to Stanback and Tennant, holding that,
as a matter of law, Friar had not acted “under color of” state law when he harmed the plaintiffs’
daughters. This appeal followed.
II.
We review de novo the district court’s grant of summary judgment. Maben v. Thelen, 887
F.3d 252, 258 (6th Cir. 2018).
The only claims at issue in this appeal are plaintiffs’ claims of supervisory liability against
Stanback and Tennant. Yet § 1983 does not provide for vicarious (or “respondeat superior”)
liability; a defendant can be liable under § 1983 only for his own actions or omissions, not for
those of anyone else. McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006). Thus,
a subordinate’s violation of the Constitution does not, standing alone, render his supervisor liable
for those actions. Instead, under § 1983, a supervisor is liable for a subordinate’s constitutional
violation only if the supervisor expressly or tacitly authorized it. Id.; Doe v. City of Roseville,
296 F.3d 431, 439 (6th Cir. 2002).
The dispute in this appeal, however, largely concerns an antecedent question: namely,
whether Friar’s abuse of the plaintiffs’ children amounted to a violation of the Constitution, as
opposed to only a violation of federal and state criminal law. For a “prerequisite of supervisory
liability under § 1983 is unconstitutional conduct by a subordinate of the supervisor.” McQueen,
433 F.3d at 470. Here, whether Friar’s conduct violated the Constitution—specifically the
Fourteenth Amendment’s Due Process Clause—depends on whether he was a state actor when he
abused the plaintiffs’ children. See Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996).
-4- Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
As an initial matter, the parties and the district court alike frame this question somewhat
differently than we do. Specifically, the district court in its opinion, and the parties in their briefs
in this appeal, address the statutory question whether Friar acted “under color of” state law when
he committed that abuse, see 42 U.S.C. § 1983, rather than the question whether Friar was a state
actor then. Those questions are closely related, but distinct: state action under the Fourteenth
Amendment is always action under of color of state law for purposes of § 1983, see Lugar
v. Edmondson Oil Co., 457 U.S. 922, 934–35 (1982); but not all action under color of state law is
necessarily state action. See id. at 935 n.18 (stating that not “all conduct that satisfies the color-
of-state-law requirement would [necessarily] satisfy the Fourteenth Amendment requirement of
state action.”). That technical distinction makes no practical difference in this appeal, however,
because here the analysis for both questions is the same.
Turning to the merits, we affirm the district court’s decision for substantially the reasons
stated in the court’s (again) notably thorough opinion. As described above, Friar’s abuse of the
plaintiffs’ children came long after the sole occasion (a 2013 neighborhood gathering) in which he
interacted with any of the plaintiffs in his capacity as a reserve police officer. And in the months
that followed that gathering—as the district court’s opinion explains in detail—Friar assiduously
cultivated a relationship with each of these plaintiffs that was entirely personal. Friar then
exploited those personal relationships—in his home, at the pool, and at a McDonald’s—to abuse
the plaintiffs’ children. True, Friar’s status as a reserve police officer helped open the door to these
relationships. But Friar’s interactions with the plaintiffs as a police officer were miniscule
compared to his interactions with them in his personal capacity. And the offending actions
themselves were undisputedly taken for Friar’s purposes alone. As a matter of law, therefore, none
-5- Nos. 21-6163/6167/6169, Martindell, et al. v. Friar, et al.
of the abusive actions at issue here were “‘fairly attributable to the State.’” Lindke v. Freed, 37
F.4th 1199, 1202 (6th Cir. 2022) (quoting Lugar, 457 U.S. at 937).
The district court’s judgment is affirmed.
-6-