Hopkins v. Sellers et al

Filing 105

MEMORANDUM. An Order shall enter Signed by District Judge Curtis L Collier on 6/2/11. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

JEREMY P. HOPKINS,
Plaintiff,
v.
RANDY SELLERS, et al.,
Defendants.

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Case No. 1:09-cv-304

Chief Judge Curtis L. Collier

MEMORANDUM
Before the Court are motions for summary judgment filed by Defendants Randy Sellers
(“Sellers), Steven Bebb (“Bebb”), and Judge Bill Baliles (“Judge Baliles;” collectively,
“Defendants”) (Court File Nos. 66, 64, 62). Plaintiff Jeremy Hopkins (“Plaintiff”) has responded
to each motion (Court File Nos. 70, 68, 69), and has also filed a “consolidated response” (Court File
No. 71), as well as numerous supplemental responses relating to all three motions for summary
judgment (Court File Nos. 72-76). Defendants have replied (Court File Nos. 80, 77, 78).1 For the
following reasons, the Court will GRANT Defendants’ motions for summary judgment (Court File
Nos. 66, 64, 62).

I.

FACTS & PROCEDURAL HISTORY
A. Relevant Facts

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Sellers did not timely file his reply brief (Court File No. 80), and Plaintiff has moved to
strike it on this basis (Court File No. 81). The Court denies this motion. Plaintiff, for his part, did
not finish filing his supplemental responses to the motions for summary judgment (supplemental
responses which, by the way, were not filed with approval by the Court pursuant to Local Rule
7.1(d)) until one week after the deadline (see Court File No. 76). The Court determines it is in the
interest of justice and efficient adjudication of this case to consider Sellers’ reply brief, along with
Plaintiff’s voluminous filings.

The facts in this case are not materially in dispute, though their characterization is. The
backdrop to this action is a contentious divorce and child custody dispute between Plaintiff and his
estranged wife, Ms. Hopkins. The divorce case commenced in the Circuit Court of Bradley County,
Tennessee in January 2007. On February 19, 2008, a Bradley County judge issued a temporary
order for parenting time, to remain in effect for 60 days, establishing Ms. Hopkins as the primary
residential parent, and setting visitation periods for Plaintiff (Court File No. 66-1, p. 8). On May
27, 2008, a hearing was held before Judge Buchanan of Bradley County to determine, among other
issues, a continued temporary parenting schedule. At the hearing, Judge Buchanan assigned Plaintiff
specific parenting dates for the months May through October 2008. In each month, Plaintiff was
assigned approximately four to five days with his child, while Ms. Hopkins retained primary
possession of the child. Judge Buchanan further stated that if the case was not resolved by October
2008, the same basic co-parenting pattern would continue “until this case is concluded” (Court File
No. 80-2, p. 16). Following the hearing, Judge Buchanan entered a written order, memorializing the
May-through-October parenting schedule that was established at the hearing (Court File No. 66-1,
p. 10). This order did not reiterate Judge Buchanan’s oral statement in the hearing that, should the
case not be concluded by October 2008, the same basic allocation of parenting time would continue
indefinitely. However, the order did not contain any language contravening Judge Buchanan’s
statement to this effect.
The divorce case was not, in fact, resolved by October 2008. In and about November 2008,
conflict arose between Plaintiff and Ms. Hopkins (who was represented by her lawyer, Defendant
Sellers) regarding the timing and logistics of Plaintiff’s visitation with his daughter over the
Thanksgiving holidays. Essentially, both Plaintiff and Ms. Hopkins were willing for Plaintiff to take
possession of his child on November 25, 2008. However, as e-mails in the record demonstrate,

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Plaintiff was vague and arguably evasive about his willingness to allow Ms. Hopkins to regain
possession of the child – repeatedly confirming the pickup date, but failing to confirm or deny the
proposed drop-off date of November 29, 2008 (see id. at pp. 18-31). Eventually, Ms. Hopkins
received what appeared to be confirmation Plaintiff would return the child to her on November 29,
2008 (see id. at p. 31). Ms. Hopkins delivered the child to Plaintiff on November 25, 2008.
However, Plaintiff did not return the child to Ms. Hopkins on November 29, 2008.
On December 3, 2008, Ms. Hopkins filed an Affidavit of Criminal Complaint with the Polk
County General Sessions Court, alleging Plaintiff had committed the crime of custodial interference
(see id.. at pp. 1-3). A deputy clerk of court reviewed the affidavit and found probable cause to issue
a criminal summons. The criminal summons instructed Plaintiff to appear at General Sessions Court
in Ducktown, Tennessee, on December 16, 2008, for an arraignment hearing. It is the events of this
hearing which give rise to the present litigation. At the hearing, Defendant Judge Baliles presided,
Assistant District Attorney (“ADA”) Drew Robinson appeared on behalf of the State of Tennessee,
attorney Jeff Miller appeared on behalf of Plaintiff, and Sellers appeared on behalf of his client, Ms.
Hopkins, the purported victim of the alleged custodial interference. The details of the beginning of
the hearing are foggy, since the Judge Baliles did not turn on the recorder until it became apparent
the hearing would not be a smooth one. What is clear is that the substance of the hearing was
Plaintiff’s oral motion to quash the summons, and Sellers, rather than the ADA, took the lead in
arguing to the court that the criminal summons should not be quashed.2
Ultimately, Judge Baliles determined it was “very clear” there was probable cause for the
criminal summons to have issued (see Court File No. 66-8, p. 5). However, despite probable cause

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According to Sellers, he “took the lead” (though he would not characterize his role thusly)
at the behest of Judge Baliles, who wished to hear from Sellers since Sellers was more familiar than
the ADA with the complicated custodial arrangements between Plaintiff and Ms. Hopkins.
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for the summons, Judge Baliles also articulated misgivings about the wisdom of having the case
prosecuted in the criminal arena rather than being handled in the domestic arena (“the probable
cause is very clear, but whether or not we should go further is not so clear”) (id.). As Judge Baliles
later explained at deposition, “in this particular case there were so many emails and so many orders
that if this case had gone on to court that [sic] it would be easy for any attorney to confuse or hang
a jury or whatever. It’s just the type case [sic] that you would never get a conviction on” (Court File
No. 80-7, p. 3). Judge Baliles expressed these misgivings to Plaintiff’s counsel, the ADA, and
Sellers, and instructed the parties to brief the issue of whether or not, despite probable cause, the
summons ought to be quashed and the criminal case dismissed. In the meantime, he continued the
matter and set a preliminary hearing for January 20, 2009 (Court File No. 66-8, p. 6). Plaintiff was
told that Tennessee law required him to “book himself” within ten days (see id. at p. 7; 71-7, p. 8).
Plaintiff was never incarcerated, detained, made to pay bond, or placed under any other restrictions.
Following the hearing, Sellers submitted a brief arguing against quashing the summons. The
brief was captioned “Memorandum of Law for the State of Tennessee by the Victim, Elisabeth
Hopkins” (Court File No. 71-9, p. 34). The State of Tennessee did not submit an independent brief.
On January 14, 2009, Judge Baliles issued an order of dismissal. The order found there was
probable cause for process to issue on the custodial interference charge. Nonetheless, the order went
on to explain “[a]fter reviewing the documents, e-mails, and orders, this Court is of the opinion that
a contempt of court proceeding in the Circuit Court is the proper remedy” (Court File No. 75-3, p.
2). Consequently, the order sustained Plaintiff’s motion to quash the criminal summons.
Subsequently, Plaintiff commenced the present action. In his amended complaint he names
three Defendants: Judge Baliles, Sellers, and District Attorney Steven Bebb. The crux of Plaintiff’s
claims is his contention Sellers was permitted to act as a “special prosecutor” at the December 16,

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2008 hearing. According to Plaintiff, this was done in violation of the United States Constitution
and Tennessee law. Plaintiff argues Bebb is liable for failing to train and control his assistants
properly to prevent Sellers’ wrongful appointment as “special prosecutor,” Judge Baliles is liable
for wrongfully allowing this appointment, and Sellers is liable for maliciously prosecuting him.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, and pleads supplemental jurisdiction for
the pendant state claims.
B. Procedural History
Early in this litigation, all three Defendants filed motions to dismiss (Court File Nos. 6, 8,
& 11). On August 19, 2010, the Court entered an order ruling as follows: (1) the Court denied
Sellers’ motion to dismiss in its entirety because Sellers did not file a memorandum in support of
his motion; (2) the Court dismissed all claims for monetary damages against Judge Baliles and Bebb
on grounds of immunity and failure to state a claim under § 1983; and (3) the Court did not dismiss
claims for injunctive and declaratory relief against Judge Baliles and Bebb. Following this ruling,
Hopkins, Judge Baliles, and Bebb filed motions to alter or reconsider the judgment (Court File Nos.
25, 27, & 28). The Court has not ruled on these motions, and the present ruling will moot them.

II.

STANDARD OF REVIEW
Summary judgment is proper 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).
The moving party bears the burden of demonstrating no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.
2003). The Court views the evidence, including all reasonable inferences, in the light most
favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574

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(1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the
non-movant is not entitled to a trial based merely on its allegations; it must submit significant
probative evidence to support its claims. See Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224
F.3d 797, 800 (6th Cir. 2000). Should the non-movant fail to provide evidence to support an
essential element of its case, the movant can meet its burden of demonstrating no genuine issue of
material fact exists by pointing out such failure to the court. Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479 (6th Cir. 1989).
At summary judgment, the Court’s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could
not return a verdict in favor of the non-movant based on the record, the Court should enter summary
judgment. Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

III.

ANALYSIS
A. Claims for Damages Against Sellers
Plaintiff advances two § 1983 claims for damages against Sellers: (1) Sellers violated

Plaintiff’s Fourteenth Amendment due process rights by acting as a special prosecutor at the
arraignment hearing; and (2) Sellers maliciously prosecuted Plaintiff in violation of the Fourth
Amendment. “In order to prevail on a civil rights claim under 42 U.S.C. § 1983, plaintiffs must
establish [1] that a person acting under the color of state law [2] deprived them [3] of a right secured
by the Constitution or laws of the United States.” Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.
2010). Since § 1983 “is not itself a source of substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred,” the first step in any § 1983 claim “is to identify the

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specific constitutional right allegedly conferred.” Albright v. Oliver, 510 U.S. 226, 271 (1994)
(quotation omitted).
1. Fourteenth Amendment Claim
In his first claim, Plaintiff argues his right to due process, as conferred by the Fourteenth
Amendment, was violated by Sellers’ wrongful prosecution of him. Plaintiff asserts the due process
clause of the Fourteenth Amendment protects him from being criminally prosecuted by a private
attorney, acting on behalf of the state, who has some personal interest in the prosecution. According
to Plaintiff, this is precisely what Sellers’ participation in the arraignment hearing subjected him to.
Plaintiff also at times appears to argue that Sellers violated his Fourteenth Amendment due process
rights by prosecuting him without probable cause. Additionally, Plaintiff argues that even if the
Fourteenth Amendment does not directly confer the right not to be prosecuted by an interested
private attorney, the due process clause of the Fourteenth Amendment protects a state law-created
liberty interest in not being prosecuted by a private attorney who has not first been approved as
qualified and free of conflicts in a court hearing.
a. Liberty Interest Arising Under the Due Process Clause
It is unnecessary to determine whether or not Sellers was “acting under color of state law,”
or whether Plaintiff was “deprived” of a right, because Plaintiff cannot establish the existence of any
relevant “right” arising directly under the due process clause of the Fourteenth Amendment which
Sellers may have violated. Plaintiff does not, and indeed cannot, point to any binding authority
stating prosecution by an interested prosecutor, without more, deprives a defendant of a liberty
interest protected by the Fourteenth Amendment. In fact, the Supreme Court has specifically
declined to construe this issue as one implicating due process.
In Young v. United States, 481 U.S. 787 (1987), the Supreme Court reviewed the convictions

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of several petitioners who were found guilty of criminal contempt after being prosecuted by private,
interested attorneys who had been appointed by the district court.3 The Court reversed the
convictions, holding it was “improper” for the district court to appoint interested counsel to conduct
the contempt prosecution against petitioners. Id. at 814. Significantly for the present case, however,
this decision did not turn on the Fourteenth Amendment, or any Constitutional provision for that
matter. Rather than citing the Constitution, the Court instead relied solely on its inherent
“supervisory power” to regulate judicial proceedings. Id. at 789. In fact, Justice Blackmun’s
concurrence specifically criticized the majority for not “go[ing] further” and “hold[ing] that the
practice – federal or state – of appointing an interested party’s counsel to prosecute for criminal
contempt is a violation of due process.” Id. at 814-15 (Blackmun, J., concurring); see also Polo
Fashions, Inc. v. Stock Buyers Int’l, Inc., 760 F.2d 698, 704 (6th Cir. 1985) (reversing the
convictions of petitioners prosecuted by interested private attorneys, but making “this determination
under our supervisory authority and [] not decid[ing] that such a proceeding constitutes a per se due
process violation”); Wilson v. Wilson, 984 S.W.2d 898, 902-03 (Tenn. 1998) (holding “due process
does not preclude allowing an attorney who represents the beneficiary of a civil court order to
simultaneously prosecute a contempt action for an alleged violation of the order”).
Furthermore, the Supreme Court has generally declined to analyze alleged pretrial
deprivations of liberty under the due process clause of the Fourteenth Amendment. For example,
in Albright, the petitioner brought a Fourteenth Amendment due process claim based on the alleged
right “to be free from criminal prosecution except upon probable cause.” 510 U.S. at 268. The
Court held Fourteenth Amendment due process entails no such right, and explained the general

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In this case, the attorneys were counsel for a handbag manufacturer which previously sued
petitioners for trademark infringement. That suit resulted in an injunction against petitioners.
Petitioners’ violation of this injunction gave rise to the criminal contempt litigation.
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inapplicability of the Fourteenth Amendment to pretrial deprivations of liberty:
As a general matter, the Court has always been reluctant to expand the concept of
substantive due process because the guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended. . . . Where a particular Amendment
provides an explicit textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more generalized notion of
‘substantive due process,’ must be the guide for analyzing these claims. We think
this principle is likewise applicable here. The Framers considered the matter of
pretrial deprivations of liberty and drafted the Fourth Amendment to address it.
Id. at 272-74 (quotations omitted). Accordingly, the Court held the Fourth Amendment, not the
Fourteenth Amendment, is the proper “constitutional peg” on which claims of prosecutorial
impropriety hang. Id. at 271 n.4, 275.
Following Young and Polo Fashions, this Court is unwilling to find in the due process clause
of the Fourteenth Amendment a hitherto unrecognized right not to be prosecuted by an interested
private attorney. Accordingly, to the extent Plaintiff’s Fourteenth Amendment claim against Sellers
relies on such a right, it must fail.4 Likewise, following Albright, to the extent Plaintiff’s Fourteenth
Amendment claim relies on a right not to be prosecuted without probable cause, it must fail since
this right implicates the Fourth, not the Fourteenth, Amendment.
b. Liberty Interest Arising Under State Law
Even if Sellers did not violate a liberty interest arising directly from the due process clause
of the Fourteenth Amendment, Plaintiff argues he violated a liberty interest arising from state law
that is entitled to Fourteenth Amendment protection.
“A liberty interest may arise from the Constitution itself, by reason of guarantees implicit
in the word ‘liberty,’ or it may arise from an expectation of interest created by state laws or

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The Court is not here holding that Sellers did, in fact, act as a “prosecutor” at the
arraignment hearing.
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policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). To determine whether
the due process clause of the Fourteenth Amendment protects a state created interest, courts “must
look not to the ‘weight’ but to the nature of the interest at stake.” Board of Regents v. Roth, 408
U.S. 564, 570-71 (1972) (emphasis added). The Sixth Circuit has described at length the proper
analysis to determine whether a state created interest rises to the level of a constitutionally protected
liberty interest:
In determining whether state law creates a liberty interest protected by the due
process clause, the initial inquiry is whether the state has used “explicitly mandatory
language in connection with requiring specific substantive predicates” to place
substantive limits on official conduct. Hewitt v. Helms, 459 U.S. 460, 472 (1983).
If the statute uses explicit mandatory language and provides substantive predicates,
the second inquiry is whether the state has mandated a specific outcome if the
substantive predicates are met. “Tony” L and “Joey” L v. Childers, 71 F.3d 1182,
1185 (6th Cir. 1995); Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993).
Procedural rights that do not require a particular substantive outcome are not liberty
interests protected by the Fourteenth Amendment, even if the right is “mandatory.”
Gibson v. McMurray, 159 F.3d 230, 233 (6th Cir. 1998).
Here, Plaintiff claims Tenn. Code Ann. § 8-7-401 creates a liberty interest protected by the
Fourteenth Amendment. The statute reads:
Employment of private counsel by crime victim – Participation as co-counsel in
prosecution of crime.
(a) A victim of crime or the family members of crime may employ private legal
counsel to act as co-counsel with the district attorney general or the district attorney
general’s deputies in trying cases, with the extent of participation of such privately
employed counsel being at the discretion of the district attorney general. The district
attorney general or a deputy shall make the final and concluding argument. The
privately retained counsel shall immediately inform the district attorney general of
such counsel’s employment.
(b) (1) No private legal counsel employed as a special prosecutor pursuant to
subsection (a) is permitted to participate in any criminal hearing, trial or other
proceeding unless the defendant or defendants have been notified and the court has
conducted a hearing on such employment as provided in this subdivision (b)(2).
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(2) At such hearing, the defendant or defendants have the right to be present and to
raise and preserve any objections to the employment of such special prosecutor as
provided by law. The court shall examine the private counsel to be employed and
shall make a specific finding as to whether such person is or is not qualified under
the law to serve as special prosecutor and as to whether such person has or does not
have a conflict of interest as provided by law.
(3) Any allegations of prosecutorial misconduct or other defects in the trial
committed or caused by the special prosecutor shall be raised and disposed of at the
time a motion for new trial is made by the new defendant.
Plaintiff argues § 8-7-401 uses “explicitly mandatory language” (“No private legal counsel is
permitted . . . . The Court shall examine . . .”) in connection with “requiring specific substantive
predicates” (“shall make a specific finding as to whether such person is or is not qualified under the
law . . . and as to whether such person has or does not have a conflict of interest”), and “mandates
a specific outcome if the substantive predicates are met,” namely, no prosecution by the private
counsel. Therefore, says Plaintiff, § 8-7-401 creates a liberty interest protected by the due process
clause of the Fourteenth Amendment. Since no hearing was held before Sellers participated in
Plaintiff’s arraignment hearing, such participation violated Plaintiff’s protected liberty interest, and
Sellers is therefore liable under § 1983.
There are two fatal flaws to Plaintiff’s argument. First, § 8-7-401 does not, in fact, mandate
a specific substantive outcome. The statute undoubtedly uses mandatory language in requiring
specific substantive predicates – a private attorney employed as a special prosecutor is simply not
permitted to participate in a criminal hearing until the defendant has been notified and a hearing has
been held to evaluate the attorney’s fitness and conflicts of interest. However, the statute does not
mandate any specific substantive, as opposed to procedural, outcome, because it does not state how
the hearing must affect the outcome of the related criminal proceeding. The statute neither requires
a defendant be convicted if the hearing requirement of § 8-7-401 is complied with, nor requires a
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defendant be released from charges if a special prosecutor is employed without the requisite hearing.
The statute at issue here is quite similar to one considered by the Sixth Circuit in Gibson v.
McMurray (“Gibson II”), 159 F.3d 230 (6th Cir. 1998). In Gibson, a plaintiff filed a § 1983 action
against a police officer and police chief after he was arrested on a warrant that issued in
contravention of state law. Michigan law required that “[a] magistrate shall not issue a warrant for
a minor offense unless an authorization in writing allowing the issuance of the warrant is filed with
the magistrate and signed by the prosecuting attorney.” M.C.L. § 764.1(2). In this case, the warrant
authorizing the plaintiff’s arrest had not been signed by the prosecuting attorney. The district court
held M.C.L. § 764.1(2) did not create a substantive liberty interest protected by the due process
clause of the Fourteenth Amendment, because “[d]espite its substantive limitations on the
magistrate’s discretion to issue a warrant, the statute does not provide any specific result or outcome
[if that statute is or is not complied with].” Gibson v. Sain (“Gibson I”), 979 F. Supp. 557, 564
(W.D. Mich. 1997). The Sixth Circuit agreed, finding “the statute does not provide any specific
outcome . . . so plaintiff’s procedural due process claim must fail.” Gibson II, 150 F.3d at 233; see
also Levin v. Childers, 101 F.3d 44, 46 (6th Cir. 1996) (finding no protected liberty or property
interest in obtaining a statutorily mandated administrative review of an adverse Medicaid decision,
because no substantive outcome was guaranteed to follow from such administrative review); “Tony”
L, 71 F.3d at 1185-86 (finding no protected liberty or property interest arising from a statute stating
an agency “shall initiate a prompt investigation [of child abuse allegations], take necessary action
and shall offer protective services toward safeguarding the welfare of the child,” because no
particular substantive outcome was mandated to follow from this mandatory investigation process).
Like the statute at issue in Gibson, Tennessee’s special prosecutor statute limits the

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discretion of state courts. Just as the statute in Gibson forbade magistrates from issuing warrants
that had not been signed by the prosecuting attorney, so § 8-7-401 forbids courts from permitting
private counsel employed as special prosecutors to participate in criminal proceedings without first
holding a hearing to determine the appropriateness of that counsel’s participation. However, also
like the statute in Gibson, § 8-7-401 does not mandate any specific substantive outcome if the
hearing requirement is or is not complied with. As the statute in Gibson did not mandate a voiding
of the warrant or reversal of a conviction based on the deficient warrant, so the statute at issue here
does not mandate a substantive outcome such as dismissal of criminal charges if a special prosecutor
participates in criminal proceedings without the court having first held the requisite hearing.
Accordingly, the procedural right to a hearing created by § 8-7-401 is not one giving rise to a liberty
interest protected by the due process clause of the Fourteenth Amendment.5
Moreover, even assuming arguendo that § 8-7-401 gives rise to a protected liberty interest

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Additionally, the Court notes it is unlikely Tennessee courts would regard a private attorney
for the beneficiary of a civil custody order as having a conflict of interest disqualifying him from
acting as special prosecutor in a criminal custodial interference action arising from a defendant’s
violation of that order. “[C]ustodial interference significantly overlaps with the [Tennessee]
contempt statute.” State v. Smith, No. E2009-00202-CCA-R3-CD, 2010 WL 5276902, *5 (Tenn.
Crim. App. Dec. 17, 2010). In Wilson, the Tennessee Supreme Court disclaimed the reasoning of
Young, and held that neither due process, nor ethical standards, nor any other equitable
considerations “preclude allowing an attorney who represents the beneficiary of a civil court order
to simultaneously prosecute a contempt action for an alleged violation of the order.” 984 S.W.2d
at 902-03. This ruling was based on two considerations: (1) contempt actions would rarely be
brought if not brought by the beneficiary of the prior court order; and (2) in a contempt proceeding
private counsel and the court have identical interests, namely, compliance with the court order.
Considering that both contempt and criminal interference involve violation of a court order, see
Smith, 2010 WL 5276902, at *4, and criminal contempt has a higher mens rea requirement than
custodial interference, see id. at *7, it is probable that as with contempt actions, Tennessee courts
would not disqualify a private attorney from prosecuting a custodial interference case merely
because that attorney represents the beneficiary of a court order the violation of which underlies the
criminal action.
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in not being prosecuted by a private attorney who has not been properly vetted in the statutorilymandated hearing, Sellers is not the agent responsible for depriving Plaintiff of this liberty interest
without due process. To prevail on a § 1983 claim, a plaintiff must show not just that someone, but
that the defendant specifically, deprived him of a constitutionally protected right. See, e.g., Rush
v. City of Mansfield, No. 1:07-CV-1068, 2011 WL 609802, *3 (N.D. Ohio Feb. 11, 2011) (“[Section
1983] analysis begins with the familiar requirement that a specific defendant proximately caused the
constitutional deprivation”). The statute at issue here is most plausibly read as placing certain
obligations on the court, namely, to notify the defendant and hold a hearing for the purpose of
examining the private counsel and determining whether he is qualified and free of conflicts such that
he can properly act as special prosecutor in a pending criminal matter. The statute cannot plausibly
be read as placing any obligation on the would-be special prosecutor. Indeed, if the statute obliged
would-be special prosecutors to preemptively veto their own appointment if they determine they are
unqualified or conflicted, there would be no need for a judicial hearing on the matter. Yet if the
statute did not bind Sellers, it is axiomatic that Sellers could not have deprived Plaintiff of a liberty
interest arising from that statute. Accordingly, even if Plaintiff possesses a protected liberty interest
arising from § 8-7-401, which he does not, Sellers could not have deprived Plaintiff of this interest,
and therefore cannot be liable under § 1983.
Thus, to the extent Plaintiff’s Fourteenth Amendment claim against Sellers relies on a liberty
interest arising under state law, it must fail.
2. Fourth Amendment Claim
In his next claim, Plaintiff argues Sellers maliciously prosecuted him, in violation of the
Fourth Amendment. “The Sixth Circuit ‘recognize[s] a separate constitutionally cognizable claim

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of malicious prosecution under the Fourth Amendment,’ which ‘encompasses wrongful
investigation, prosecution, conviction, and incarceration.’” Sykes v. Anderson, 625 F.3d 294, 308
(6th Cir. 2010) (quoting Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006)). To succeed on
a § 1983 malicious prosecution claim premised on the Fourth Amendment, a plaintiff must prove
the following:
First, the plaintiff must show that a criminal prosecution was initiated against the
plaintiff and that the defendant made, influenced, or participated in the decision to
prosecute.
Second, because a § 1983 claim is premised on the violation of a constitutional right,
the plaintiff must show that there was a lack of probable cause for the criminal
prosecution.
Third, the plaintiff must show that, as a consequence of a legal proceeding, the
plaintiff suffered a deprivation of liberty, as understood in our Fourth Amendment
jurisprudence, apart from the initial seizure.
Fourth, the criminal proceeding must have been resolved in the plaintiff’s favor.
Sykes, 625 F.3d at 308-09 (quotations and citations omitted).
Both Plaintiff and Sellers argue at length about whether or not there was probable cause
supporting the issuance of summons and the arraignment hearing on the custodial interference
charge. The issue is complex, involving collateral estoppel, interpretation of state statutes, and
construal of written orders in light of corresponding oral judicial remarks. However, it is an issue
that need not be decided, for there is a much clearer deficiency in Plaintiff’s malicious prosecution
claim: he has not alleged a “deprivation of liberty, as understood in our Fourth Amendment
jurisprudence, apart from the initial seizure.” Sykes, 625 F.3d at 308.
Though he was charged with custodial interference, Plaintiff was never arrested, never jailed,
never detained, never required to post bond, and never placed under travel restrictions. The hearing

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transcript reflects the possibility that Plaintiff might have to “book himself” within 10 days, although
nothing in the record indicates Plaintiff ever was, in fact, booked. At most, then, the custodial
interference charge caused: (1) a criminal summons to be issued to Plaintiff; (2) an arraignment
hearing to be held during which the judge requested further briefing on Plaintiff’s motion to quash
summons; (3) the possible “booking” of Plaintiff; and (4) the quashing of the summons after the
judge reviewed a round of briefing. Nothing in this sequence qualifies as a “deprivation of liberty”
actionable under current Fourth Amendment jurisprudence.
Plaintiff cites no authority for the proposition that the issuance of a summons and the holding
of an arraignment hearing is a deprivation of liberty sufficient to undergird a malicious prosecution
claim. In fact, all authority supports the opposite conclusion. Courts have uniformly required some
meaningful deprivation of liberty beyond mere summons and arraignment to support a Fourth
Amendment malicious claim. For example, in Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir.
1995), the Second Circuit held that “to successfully pursue a § 1983 claim of malicious prosecution
in violation of [the] Fourth Amendment,” a petitioner “must show some post-arraignment
deprivation of liberty that rises to the level of a constitutional violation.” Id. at 117. Similarly, the
Third Circuit, quoting Singer, held that a plaintiff claiming malicious prosecution must show “some
post-arraignment deprivation of liberty,” and found that an 8-month period of incarceration
following arraignment qualifies. Torres v. McLaughlin, 163 F.3d 169, 177 (3d Cir. 1998).
In Mahoney v. Kesery, 976 F.2d 1054 (7th Cir. 1992), the Seventh Circuit, in an opinion
written by Judge Posner, considered a malicious prosecution claim on facts quite similar to the case
at bar. There, the petitioner was a Marquette undergraduate against whom a summons was issued
for obstruction of justice at the recommendation of a police office. Following the issuance of the

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summons, the petitioner was arraigned before a county judge who found probable cause to
prosecute. The petitioner was booked and a jury trial was scheduled, but on the day of trial the
judge dismissed the charges upon the motion of the district attorney. The petitioner sued the officer
for malicious prosecution. The Seventh Circuit, noting that “not every tort committed by public
officers is actionable under the Constitution,” opined that mere summons and arraignment is not a
liberty deprivation of such magnitude as to implicate the Fourth Amendment. Id. at 1060.
“[Petitioner] was required to (and did) appear for arraignment, but we do not think a required court
appearance, any more than having to show up at the motor vehicle bureau to take a driving test in
order to get a driver’s license, is a sufficient deprivation of liberty to warrant the elevation of
malicious prosecution to a constitutional tort.” Id.
Most recently, in a district case out of our own circuit, the court held a plaintiff could not
make out a malicious prosecution claim where misdemeanor complaints were filed against her, she
was forced to stand trial, and the court granted her motion to dismiss following the close of the
government’s case in chief. See Briner v. City of Ontario, No. 1:07CV129, 2011 WL 866464 (N.D.
Ohio March 9, 2011). The court noted that the plaintiff “was issued a summons; she was not
arrested. There was no bond required and there is nothing in the record to suggest that she had any
restrictions placed on her movements prior to trial.” Id. at * 4. Relying on Sykes’ requirement that
a plaintiff suffer a “deprivation of liberty, as understood in our Fourth Amendment jurisprudence,
apart from the initial seizure,” 625 F.3d at 309, the court held the plaintiff’s “summons to appear for
trial on misdemeanor charges did not amount to a seizure or detention within the meaning of the
fourth amendment.” Briner, 2011 WL 866464, at *4.
Following the univocal persuasive authority of courts that have considered the issue, the

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Court concludes Plaintiff’s criminal summons and the ensuing arraignment hearing did not
constitute a deprivation of liberty cognizable under the Fourth Amendment. The most severe
hardship Plaintiff suffered was his required attendance at the arraignment hearing, a circumstance
best described as an annoyance rather than a deprivation of liberty of constitutional proportions.
Consequently, because Plaintiff can show no actionable deprivation of liberty, his § 1983 claim for
malicious prosecution must fail.
B. Claims for Prospective Relief Against All Defendants
On August 19, 2010, the Court entered an order dismissing all claims for monetary damages
against Judge Baliles and Bebb on grounds of immunity and failure to state a claim under § 1983.
However, the Court did not dismiss the claims for prospective relief, because Defendants did not file
reply briefs addressing the arguments Plaintiff made in support of these claims in his response brief.
Thus, at present two claims remain against Defendants:6 (1) Plaintiff’s claim for an injunction
prohibiting Defendants from unlawfully subjecting him and other similarly situated persons to
unlawful prosecution at the hands of a conflicted private attorney in violation of § 8-7-401; and (2)
Plaintiff’s claim for declaratory relief stating Defendants violated § 8-7-401, and further stating that
in the future Defendants are not to allow a private attorney to serve as special prosecutor except as
permitted by § 8-7-401.7
As already discussed, the due process clause of the Fourteenth Amendment does not confer

6

It is not entirely clear from Plaintiff’s complaint and briefing whether he asserts the same
claims for prospective relief against Sellers as he does for Judge Baliles and Bebb. However, out
of an abundance of caution, the Court will consider Plaintiff’s claims for prospective relief to be
stated against all three Defendants.
7

Insofar as the injunctive and declaratory claims both ask the Court to order Defendants not
to violate § 8-7-401 in the future, they are indistinguishable.
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a right, either directly or indirectly vis-a-vis a liberty interest arising from § 8-7-401, not to be
prosecuted by an interested private attorney. In other words, failure to comply with § 8-7-401 is not
tantamount to failure to comply with the Constitution. Thus, Plaintiff’s claims for injunctive and
declaratory relief turn entirely on state law, and to the extent Defendants seek summary judgment
on any federal claims for prospective relief the motions will be granted.
While this Court has supplemental jurisdiction over the state claims pursuant to 28 U.S.C.
§ 1367(a), the Court also has discretion to decline to exercise supplemental jurisdiction where it has
dismissed all claims over which it had original jurisdiction. See 28 U.S.C. § 1367(c). Here, values
of judicial economy and comity counsel exercising such discretion. See Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988); see also Thurman v. DaimlerChrysler, 397 F.3d 352, 359 (6th Cir.
2004) (“We have previously held that when all federal claims have been dismissed before trial, the
best course is to remand the state law claims”) (citations omitted). The issue of whether § 8-7-401
prohibits the type of involvement Sellers had in Plaintiff’s arraignment hearing – an issue essential
to both the injunctive and declaratory claims – is a novel issue of state law that is best left to the
expertise of state courts. Moreover, whereas this Court has virtually no interest in construing § 8-7401, Tennessee courts have a paramount interest in construing a statute regulating so fundamental
an issue as who may practice before them. Accordingly, the Court declines to exercise supplemental
jurisdiction over all state law claims.8

8

Moreover, the Court notes that the relief Plaintiff seeks would violate the Eleventh
Amendment with respect to two of the three Defendants, see Murray v. Ohio Adult Parole Authority,
No. 90-3071, 1990 WL 155692, *2 (6th Cir. Oct. 17, 1990) (“the eleventh amendment prohibits a
federal court from ordering state officials to obey state law”); George-Khouri Family L.P. v. Ohio
Dep’t of Liquor Control, No. 04-3782, 2005 WL 1285677, *2 (6th Cir. May 26, 2005) (“There is
no precedent suggesting that federal courts have jurisdiction over requests for a declaratory
judgment that state officials are violating state law.”), and with respect to the third Defendant would
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IV.

CONCLUSION
For the above reasons, the Court will GRANT all Defendants’ motions for summary

judgment (Court File Nos. 62, 64, 66). This grant constitutes a DENIAL of Plaintiff’s motion for
summary judgment (Court File No. 35), and likewise RENDERS MOOT Plaintiff’s motion for
reconsideration (Court File No. 27), Bebb’s motion to alter judgment order (Court File No. 25), and
Judge Baliles’ motion to alter judgment order (Court File No. 28). The Court will DISMISS all
state law claims. As no further matters remain for adjudication, the Court will DIRECT the Clerk
of Court to CLOSE the case.
An Order shall enter.

/s/
CURTIS L. COLLIER
CHIEF UNITED STATES DISTRICT JUDGE

amount to enjoining and declaring that he may not violate a state law that this Court has already
determined he did not – indeed could not – violate in the first place.
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