Burton v. Durnin et al (TV2)
Filing
11
MEMORANDUM OPINION in support of the following Order.Signed by District Judge Thomas A Varlan on 3/20/12. (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
BENJAMIN S. BURTON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JOE DURNIN, et al.,
Defendants.
No.:
3:11-CV-429
(VARLAN/GUYTON)
MEMORANDUM OPINION
This civil rights action is before the Court on the partial Motion to Dismiss [Doc. 2],
submitted by defendants, Joe Durnin, the Tennessee Wildlife Resource Agency (the
“TWRA”), Ed Carter, Andy Collins, and Willard Perryman, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Plaintiff, Benjamin S. Burton, has responded in opposition
[Doc. 7] to the motion, and defendants have submitted a reply [Doc. 8] to that response. For
the reasons set forth herein, and after considering the pending motion, the supporting and
responsive briefs, the allegations in the complaint, and the relevant law, defendants’ partial
motion to dismiss [Doc. 2] will be GRANTED.
I.
Facts1
On or about September 5, 2010, plaintiff was on a boat with several friends on the
Tennessee River during a fireworks festival [Doc. 1, ¶ 10]. Plaintiff was not the owner of
1
The Court takes as true the factual allegations of a complaint for purposes of a motion to
dismiss under Rule 12(b)(6). See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that, “when
ruling on a defendant’s motion to dismiss, a judge must accept as true all the factual allegations
contained in the complaint”) (citations omitted).
the boat [Id., ¶ 22]. Plaintiff and his friends docked at a restaurant located on the Tennessee
River, parking the boat in a line of boats which extended out from the restaurant [Id., ¶ 11].
Agents from the United States Coast Guard (the “USCG”) and the TWRA informed plaintiff
that the boat was the last one able to dock in the line [Id., ¶ 12].
A short time later, TWRA agent Joe Durnin (“Agent Durnin”) ordered plaintiff to
immediately remove the boat from the boat line [Id., ¶ 14]. Plaintiff told Agent Durnin that
the USCG and the TWRA agents had approved the boat being in the line [Id.]. Plaintiff
alleges that Agent Durnin “responded in a hostile manner” and told plaintiff that he was in
charge of the boat line and that the line had grown too large [Id., ¶ 15]. Plaintiff alleges that
he then asked Agent Durnin for his name and the name of his supervisor [Id., ¶ 16]. Plaintiff
contacted TWRA and was told that Andy Collins (“Supervisor Collins”) and Willard
Perryman (“Supervisor Perryman”) were the names of Agent Durnin’s supervisors [Id., ¶ 17].
Shortly thereafter, plaintiff was approached by a TWRA patrol boat. The two TWRA
agents in the patrol boat told plaintiff that Agent Durnin had ordered that plaintiff’s boat be
removed immediately “or [plaintiff would] face arrest” [Id., ¶ 19]. Plaintiff asked to speak
with Supervisors Collins and Perryman [Id., ¶ 20]. Plaintiff was told that the supervisors
would not be coming to speak with him [Id.]. Plaintiff alleges that he then moved the boat
to the middle of the river, anchored it, and that none of the occupants of the boat were in
breach of any law [Id., ¶¶ 21-23].
Around 1:00 A.M., the boat was approached by two TWRA boats, one containing
Agent Durnin [Id., ¶ 24]. Agent Durnin demanded that plaintiff produce the boat’s
2
registration and shined his flashlight in plaintiff’s eyes, causing “pain and temporary ‘flash’
blindness.” [Id.]. Agent Durnin refused plaintiff’s request to confirm the boat’s registration
from the number visible on the outside hull of the boat [Id., ¶ 26]. Agent Durnin requested
that plaintiff perform sobriety tests [Id., ¶ 29].
Plaintiff refused and Agent Durnin
handcuffed plaintiff and ordered him onto the TWRA boat [Id., ¶¶ 29, 30]. Plaintiff was
instructed to stay seated and not stand up, a position which caused plaintiff pain [Id., ¶¶ 32,
33]. Plaintiff was taken to the police station and charged with public intoxication and a
registration violation [Id., ¶ 34]. These charges were ultimately dismissed [Id., ¶ 35].
On August 7, 2011, plaintiff alleges that he was on the same boat when a TWRA boat
stopped it and Agent Durnin demanded that plaintiff produce life jackets, registration, and
a fire extinguisher [Id., ¶ 37]. The owner of the boat complied [Id.]. Plaintiff alleges that
Agent Durnin asked plaintiff whether he had consumed any alcohol [Id.]. According to
plaintiff, within minutes of stopping the boat, Agent Durnin stopped another boat but did not
ask the occupants of the second boat whether they could produce life jackets, registration,
and a fire extinguisher [Id., ¶ 38].
Following these events, plaintiff filed his complaint against the TWRA and Agent
Durnin, Ed Carter (“Mr. Carter”), who plaintiff alleges to be a TWRA supervisor, Supervisor
Collins, Supervisor Perryman, asserting claims pursuant to 42 U.S.C. § 1983, the Tennessee
Governmental Tort Liability Act (the “GTLA”), Tenn. Code Ann. §§ 29-20-101, et seq., the
Tennessee common law, and for injunctive relief. Defendants then filed the instant partial
motion to dismiss [Doc. 2].
3
II.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, requiring
only “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’”
in order to “‘give the [opposing party] fair notice of what the . . . claim is and the grounds
upon which it rests.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)); Smith v. City of Salem, Ohio, 378 F.3d 566, 576
n.1 (6th Cir. 2004). “[D]etermining whether a complaint states a plausible claim is contextspecific requiring the reviewing court to draw on its experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). A party may move to dismiss for failure to state a
claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). In order to survive a Rule
12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain allegations
supporting all material elements of the claims. Bishop v. Lucent Techs., Inc., 520 F.3d 516,
519 (6th Cir. 2008). In determining whether to grant a motion to dismiss, all well-pleaded
allegations must be taken as true and must be construed most favorably toward the nonmovant. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003). Detailed
factual allegations are not required, but a party’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions and a formulaic recitation
of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555. Nor will an
“unadorned, the-defendant-unlawfully harmed-me accusation.” Iqbal, 129 S. Ct. at 1937.
Rather, a pleading must “contain either direct or inferential allegations respecting all the
4
material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir. 1988) (quoting Car Carriers, Inc.
v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
III.
Analysis
A.
Section 1983
1.
Official Capacity Claims
Count I alleges a violation of civil rights, Count II alleges a failure to implement
appropriate policies and practices claim, Count III alleges an excessive force claim, and
Count IV alleges a false arrest claim. Counts I, II, III, and IV are all pursuant to § 1983 and
alleged against all defendants. Defendants have moved for dismissal of these claims on
grounds that the claims are barred by the Eleventh Amendment and because defendants are
not “persons” for purposes of § 1983.
The Eleventh Amendment bars suits pursuant to § 1983 against states, state agencies,
and state officials sued in their official capacities for money damages, unless the state has
waived its sovereign immunity or consented to be sued in federal court. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 66 (1989). A suit against a state official is no different
than a suit against the state itself. Will, 491 U.S. at 71 (stating that “a suit against a state
official in his or her official capacity is not a suit against the official but rather is a suit
against the official’s office”). This is because in official capacity suits, the state is the real
party in interest. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that the “real party in
interest in an official-capacity suit is the governmental entity and not the named official”).
5
There are, however, a few exceptions to this rule. Quen v. Jordon, 440 U.S. 332 (1972).
First, states are not immune from suits in federal court when Congress has explicitly
abrogated a state’s immunity. Hoffman v. Conn. Dep’t. of Income Maint., 492 U.S. 96
(1989). Second, states are not immune when they have consented to being sued. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). Third, under the Ex parte Young
exception, a state official is not immune when a plaintiff seeks prospective injunctive relief.
See Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (recognizing that a state official
sued in his official capacity for prospective injunctive relief is a “person” under § 1983
because “official-capacity actions for prospective relief are not treated as actions against the
State”).
The first and two exceptions do not apply to this case. First, the state of Tennessee
has not waived its immunity under the Eleventh Amendment with respect to suits for relief
under § 1983. Berndt v. State of Tenn., 796 F.2d 879, 881 (6th Cir. 1986). Second, the
United States Supreme Court has held that Congress did not abrogate states’ immunity when
it passed § 1983. Hafer, 502 U.S. at 25.2 Third, the term “person” in § 1983 does not include
states, state agencies, or state officials acting in their official capacities. Howlett v. Rose, 496
U.S. 356, 365 (1990) (stating that Will applies to states and state agencies).
Plaintiff seems to agree that under § 1983, “persons” do not include states, state
agencies, or state officials acting in their official capacity. He argues, however, that his
2
The Court addresses the Ex parte Young exception below.
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official capacity § 1983 claims should not be dismissed because Agent Durnin was not acting
in his official capacity and should be treated as a “person” under § 1983. Plaintiff also
argues that the “respective categorization of state versus person” as to Mr. Carter and
Supervisors Perryman and Collins are factual questions to be determined by the trier of fact.
The Court disagrees.
Agent Durnin, Mr. Carter, and Supervisors Collins and Perryman, as employees of the
TWRA, are state employees as defined in Tenn. Code Ann. § 8-42-101(3)(A), and plaintiff
offers no law or argument as to why these state officials are amendable to suit given the
above-cited law. Plaintiff’s assertion that whether a “person” is a person for purposes of §
1983 is a question for the trier of fact also does not demand a different conclusion because
simply stating that an issue is one for the trier of fact is insufficient to defeat defendants’
argument for dismissal based on the above noted law. In sum, given the foregoing, the Court
finds that sovereign immunity prohibits plaintiff’s official capacity § 1983 claims against all
defendants and these claims will be DISMISSED.
2.
Individual Capacity Claims
Plaintiff has also alleged individual capacity claims in Counts I, II, III, and IV,
pursuant to § 1983, against Mr. Carter and Supervisors Perryman and Collins based on their
supervisory authority over Agent Durnin. Defendants have moved for dismissal of these
claims on grounds that respondeat superior is not a basis for imposing liability on supervisory
officials for actions taken by an alleged tortfeasor whom they supervise. In response,
plaintiff contends that Supervisors Perryman and Collins implicitly authorized, approved, or
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acquiesced in the conduct of the TWRA agents under their supervision and that it is a factual
determination whether their inaction played a direct role in Agent Durnin’s violation of
plaintiff’s constitutional rights
A plaintiff pursuing a claim under § 1983 must allege and prove that a defendant was
personally involved in the allegedly unconstitutional activity. In this regard, defendants are
correct that a simple assertion of respondeat superior liability does not constitute a theory of
recovery under § 1983 for actions taken by alleged tortfeasors whom the official supervises.
See Doe v. Claiborne Ctny. Bd. of Educ., 103 F.3d 495, 507 (6th Cir. 1996) (stating that
“respondeat superior is not available as a theory of recovery under § 1983); see also Rizzo
v. Goode, 423 U.S. 362, 373-77 (1976). The United States Court of Appeals for the Sixth
Circuit has explained the standard for supervisory liability as follows:
[T]he § 1983 liability of supervisory personnel must be based on more
than the right to control employees. Section 1983 liability will not be
imposed solely upon the basis of respondeat superior. There must be a
showing that the supervisor encouraged the specific incident of
misconduct or in some other way directly participated in it. At a
minimum, a § 1983 plaintiff must show that a supervisory official at
least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.
Turner v. City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005) (quoting Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir.1984) (citing Hays v. Jefferson Cnty., 668 F.2d 869, 872–74 (6th
Cir.1982))).
While plaintiff asserts in his response that Supervisors Collins and Perryman
implicitly authorized, approved, or acquiesced in Agent Durnin’s conduct, the facts alleged
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in the complaint do not support this assertion. Plaintiff alleges that he was told by TWRA
agents to move the boat, that he asked the agents if he could speak with Supervisors Collins
and Perryman, that he was told by the TWRA agents that the supervisors would not be
speaking with him, and that he was arrested on charges of public intoxication and a boat
registration violation [Doc. 1, ¶¶ 10-31]. However, the complaint contains no allegation that
Supervisors Collins and Perryman were involved, participated in, or knew of plaintiff’s
arrest—only that TWRA agents told plaintiff that Supervisors Collins and Perryman would
not be coming to speak with him. Also, beyond the allegation in the complaint that Mr.
Carter delegated responsibility for establishing TWRA policies, practices, and procedures
to Supervisors Collins and Perryman, the complaint contains no other factual allegations
against Mr. Carter [Id., ¶¶ 9, 42]. Without more, these allegations of supervisory liability do
not form a basis for plaintiff’s claims against Mr. Carter and Supervisors Collins and
Perryman based on their supervisory authority.
As noted above, for a defendant to be liable in a supervisory capacity under § 1983,
more must be alleged than that a defendant simply failed to act. Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999). That is, a plaintiff must allege some sort of encouragement of, or
direct participation in, the alleged misconduct. Id.; Salehpour v. Univ. of Tenn., 159 F.3d
199, 206 (6th Cir. 1998). Here, there are no factual allegations that Mr. Carter and
Supervisors Collins and Perryman were involved in plaintiff’s arrest, the alleged seizure,
false imprisonment, or force in regard to plaintiff. Accordingly, plaintiff’s individual
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capacity claims against Mr. Carter and Supervisors Collins and Perryman, pursuant to §
1983, and based on their supervisory authority over Agent Durnin, will be DISMISSED.
3.
Claim for Injunctive Relief
Plaintiff also alleges a claim for injunctive relief against all defendants. Specifically,
plaintiff requests that a “temporary injunction [should] be issued to prevent the TWRA and
its agents from stopping and seizing the Plaintiff without reasonable suspicion or probable
cause that a crime has been committed.” [Doc. 1, ¶ 6]. Defendants have moved for dismissal
of this claim as to the TWRA, asserting that injunctive relief claims against a state are barred
by the Eleventh Amendment, and for dismissal of this claim as to the individual defendants,
asserting that in cases alleging police misconduct, there must be allegations of a persistent
pattern of police misconduct to warrant injunctive relief [Doc. 3 (citing Alee v. Medrano, 416
U.S. 802, 815 (1974))]. In response, plaintiff contends that he has alleged at least two
separate occurrences in which he was seized without probable cause or reasonable suspicion
and that without the requested injunction, plaintiff will continued to be seized in a like
manner. Plaintiff also contends that the fact that the charges against him were dismissed
prior to a preliminary hearing “lends great weight” to his claim that he was arrested without
probable cause.
The Court finds that plaintiff’s injunctive relief claim against the TWRA should be
dismissed. Both the Supreme Court and the Sixth Circuit have held that claims for injunctive
relief against a state are barred by the Eleventh Amendment. See Alabama v. Pugh, 438 U.S.
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781, 781-82 (1978); Lawson v. Shelby Cnty., 211 F.3d 331, 335 (6th Cir. 2000).
Accordingly, plaintiff’s claim for injunctive relief against the TWRA will be DISMISSED.
As to plaintiff’s claim for injunctive relief against the individual defendants, the Court
notes that under the Ex parte Young exception, a state official sued in his official capacity
for prospective injunctive relief is a “person” under § 1983 because “official-capacity actions
for prospective relief are not treated as actions against the State.” Graham, 473 U.S. at 167
n.14. In Ex parte Young, the Supreme Court held that the Eleventh Amendment does not bar
a federal court from enjoining a state official from enforcing state legislation that violates
federal law. 209 U.S. 123, 149 (1908). Under this exception, “a federal court’s remedial
power . . . is necessarily limited to prospective injunctive relief . . . and may not include a
retroactive award which requires the payments of funds from the state treasury[.]” Edelman
v. Jordan, 415 U.S. 651, 677 (1974) (citations omitted). Accordingly, in connection with
plaintiff’s claim for injunctive relief against the individual defendants, the Court must
consider:
(1) whether the movant has a “strong” likelihood of success on the
merits; (2) whether the movant would otherwise suffer irreparable
injury; (3) whether issuance of a preliminary injunction would cause
substantial harm to others; and (4) whether the public interest would be
served by issuance of a preliminary injunction.
Kallstorm v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998) (quoting McPherson v.
Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir.1997) (en banc) (quoting
Sandison v. Michigan High Sch. Athletic Ass’n, Inc., 64 F.3d 1026, 1030 (6th Cir.1995))).
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The Court has considered these four factors and concludes that, taken in the light most
favorable to plaintiff, the allegations contained in the complaint do not support injunctive
relief against the individual defendants. The Court also notes that the Supreme Court has not
found injunctive relief to be appropriate where there is no persistent pattern of police
misconduct. See Allee, 416 U.S. at 815. Here, plaintiff alleges one unconstitutional arrest
[Doc. 1, ¶¶ 31, 35] and one “safety check” of a boat [Id., ¶¶ 36, 37]. These allegations of one
arrest and one safety stop do not constitute a persistent pattern of past violations of
constitutional rights. Further, plaintiff has not shown that these individual defendants have
a history of repeatedly violating individuals’ civil rights and has not shown that an injunction
governing how these individual officers must act in future situations is a necessary remedy.
The Court also disagrees with plaintiff’s argument that because the charges against
him were ultimately dismissed, this supports plaintiff’s claim that he was arrested without
probable cause and demonstrates a likelihood that his claim would succeed on the merits.
A dismissal of charges does not, by itself, show a lack of probable cause. Further, plaintiff’s
allegation in the complaint that his charges were dismissed upon plaintiff’s agreement to pay
court costs also detracts from plaintiff’s argument regarding an arrest without probable cause
[Doc. 1, p. 8]. Finally, if this Court were to enjoin agents of the TWRA or the USCG from
performing arrests or safety checks, such an order would pose a likelihood of causing
substantial harm to others and would not be in the public interest. Accordingly, because the
Court does not find the allegations contained in plaintiff’s complaint, even taken as true, to
be sufficient to meet the standard for ordering injunctive relief as to the individual
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defendants. As such, plaintiff’s claim for injunctive relief against the individual defendants
will be DISMISSED.
B.
Claims Under Tennessee State Law
1.
Official Capacity Claims
Plaintiff also alleges pendent state law tort claims of false imprisonment (Count V),
negligence (Count VI), negligent supervision (Count VII), and assault (Count VIII), against
all defendants in their official capacities. Defendants have moved for dismissal of these
claims because defendants contend that similar to plaintiff’s official capacity claims pursuant
to § 1983, these state law claims are likewise barred by the Eleventh Amendment.
In Pennhurst, the Supreme Court held that the “doctrine of pendent jurisdiction does
not override the Eleventh Amendment.” Williams v. Com. of Ky., 24 F.3d 1526, 1543 (6th
Cir. 1994) (citing Pennhurst, 465 U.S. at 121). Thus, as a general rule, the Eleventh
Amendment bars state law claims against state employees in their official capacity,
regardless what type of relief is sought. Experimental Holdings, Inc. v. Farris, 503 F.3d 514,
521 (6th Cir. 2007). There are only two exceptions to the this rule. Id. First, states are not
immune from suit in federal court when Congress has explicitly abrogated a state’s immunity
and second, states are not immune when they have consented to being sued. Id. (recognizing
that “federal courts are simply not open to such state law challenges to official state action,
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absent explicit state waiver of the federal court immunity found in the Eleventh
Amendment.”).3
Neither of these exceptions apply to this case. First, Congress has not abrogated
Tennessee’s immunity so that tort claims may be filed against the state in federal court.
Second, while Tennessee has consented to being sued in other forums, such as the Tennessee
Claims Commission, it has not consented to being sued in federal court for tort claims
brought under state law. As the Supreme Court has stated, the waiver of Eleventh
Amendment immunity must be explicit: “[I]t is not consonant with our dual system for the
federal courts . . . to read the consent to embrace federal as well as state courts. . . . [A] clear
declaration of the state’s intention to submit its fiscal problems to other courts than those of
its own creation must be found.” Pennhurst, 465 U.S. at 100 (quoting Great Northern Life
Ins. Co. v. Read, 322 U.S. 47, 54 (1944)). In 1984, the Tennessee Claims Commission was
established to allow individuals to file monetary claims against the State. Tenn. Code Ann.
§ 9-8-307. In other words, the state of Tennessee has waived its sovereign immunity so that
it could be sued in this forum. See Estate of Drew v. U.T. Reg’l Med. Ctr. Hospt., 121 F.3d
707 (Table), 1997 WL 441752, at *2 (6th Cir. Aug. 5, 1997). However, there is no indication
that the state of Tennessee has waived its immunity to be sued in federal court:
No court in the state shall have any power, jurisdiction, or authority to
entertain any suit against the state, or against any officer of the state
acting by authority of the state, with a view to reach the state, its
3
The Ex parte Young exception does not apply to pendent state law claims against state
employees in their official capacity. See Pennhurst, 465 U.S. at 121.
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treasury, funds, or property, and all such suits shall be dismissed as to
the state or such officers, on motion, plea, or demurrer of the law
officer of the state, or counsel employed for the state.
Tenn. Code Ann. § 20-13-102(a). In addition, the Tennessee Supreme Court has recognized
that the state of Tennessee retains its immunity outside the Tennessee Claims Commission.
See Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000) (holding that outside the Tennessee
Claims Commission, the “state retains its immunity from suit, and a claimant may not seek
relief from the state” ). As previously explained, a state’s waiver of Eleventh Amendment
immunity in federal court must be explicit. See Pennhurst, 465 U.S. at 100. Thus, based
upon the foregoing, the Court finds that the state of Tennessee has not consented to being
sued in federal court for tort claims brought under state law.
In sum, plaintiff’s pendent state law tort claims against defendants in their official
capacities will be DISMISSED.
2.
GTLA Claims
To the extent plaintiff has brought state law claims under the GTLA, those claims will
also be dismissed. The GTLA governs claims made against counties, municipalities, and
other local governmental agencies, not against the state, state agencies, or state officials.
Tenn. Dep’t of Mental Health & Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975).
As noted above, Agent Durnin, Mr. Carter, and Supervisors Collins and Perryman, as
employees of the TWRA, are state employees. See Tenn. Code Ann. § 8-42-101(3)(A).
Accordingly, since a suit against these defendants in their official capacities is “actually a
suit against the governmental entity[,]” Parks v. City of Chattanooga, No. 1:02-CV-116,
15
2003 WL 23717092, at *7 (E.D. Tenn. Dec. 15, 2003), and because the state of Tennessee,
as sovereign, is immune from suit, plaintiff’s claims against these defendants under the
GTLA will be DISMISSED.
3.
Individual Capacity Claims
Plaintiff also alleges his pendent state law tort claims of false imprisonment (Count
V), negligence (Count VI), negligent supervision (Count VII), and assault (Count VIII),
against the individual defendants in their individual capacities. Defendants have moved for
dismissal of plaintiff’s false imprisonment claims against Mr. Carter and Supervisors
Perryman and Collins for failure to state a claim; moved for dismissal of plaintiff’s
negligence and negligent supervision claims because the individual defendants are immune
from negligence claims; and moved for dismissal of plaintiff’s assault claim against Mr.
Carter and Supervisors Perryman and Collins because plaintiff has failed to allege sufficient
facts for which relief may be granted. In response, plaintiff asserts that Agent Durnin was
acting outside of his official capacity as a state official when he removed plaintiff from his
boat and detained him, that the TWRA agents was not authorized to arrest plaintiff, and that
the role of the other defendants, and whether they knew of plaintiff’s request to speak with
them, is to be ascertained by a trier of fact.
a.
False Imprisonment
The elements of the tort of false imprisonment, or false arrest, are “(1) the detention
of 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); see Barbee v. Wal16
Mart Stores, Inc., No. W2003-0017-COA-R3-CV, 2004 WL 239763, at *5 (Tenn. Ct. App.
Feb. 9, 2004).
Per the allegations in plaintiff’s complaint, it is undisputed that of the named
defendants, only Agent Durnin is alleged to have restrained plaintiff. Defendants point out
that while plaintiff alleges numerous actions taken by Agent Durnin in connection with
plaintiff’s arrest and transport to the police station, plaintiff has not made any factual
allegation regarding any actions taken by Mr. Carter and Supervisors Perryman and Collins
in regard to plaintiff’s arrest and detention [Doc. 1, ¶¶ 10-38]. Therefore, as there are no
allegations that Mr. Carter or Supervisors Perryman and Collins restrained plaintiff against
his will, plaintiff cannot show that these defendants engaged in any “detention or restraint”
of plaintiff and his claims for false imprisonment against Mr. Carter and Supervisors
Perryman and Collins, in their individual capacities, will be DISMISSED.
b.
Negligence and Negligent Supervision
Section 9-8-307(h) of the Tennessee Code Annotated states as follows:
State officers and employees are absolutely immune from liability for
acts or omissions within the scope of the officer’s or employee’s office
or employment, except for willful, malicious, or criminal acts or
omissions or for acts or omissions done for personal gain. For purposes
of this chapter, “state officer” or “employee” has the meaning set forth
in § 8-42-101(3).
Tenn. Code Ann. § 9-8-307(h). Defendants move for dismissal of plaintiff’s negligence and
negligent supervision claims against the individual defendants because pursuant to Tenn.
Code Ann. § 9-8-307(h), these defendants have absolute immunity for claims of negligence.
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As noted above, Agent Durnin, Mr. Carter, and Supervisors Collins and Perryman are
employees of the TWRA and are state officials. See Tenn. Code Ann. § 8-42-101(3). In his
response, plaintiff has not addressed the immunity of state officials under state law but
asserts that the individual defendants were acting outside of the scope of their employment.
Given the law stated above, the Court finds that as state officials, the individual
defendants are entitled to immunity under state law. Tenn. Code Ann. § 9-8-307(h). In
addition, despite plaintiff’s argument that these defendants were acting outside the scope of
their employment, the allegations of plaintiff’s complaint contradict this statement because
plaintiff has alleged that “the individual Defendants were acting in the scope of their
employment” [Doc. 1, p. 2]. Furthermore, as discussed above, plaintiff’s argument that
defendants’ roles will be ascertained by the trier of fact and therefore are not subject to
dismissal, is not a sufficient argument to defeat defendants’ request for dismissal.
Accordingly, upon review, and under the plain language of Tenn. Code Ann. § 9-8-307(h),
Agent Durnin, Mr. Carter, and Supervisors Collins and Perryman, sued for negligence and
negligent supervision in their individual capacities, are entitled to absolute immunity for such
claims and the claims will be DISMISSED.
c.
Assault
Defendants have also moved for dismissal of plaintiff’s assault claim against Mr.
Carter and Supervisors Collins and Perryman because the complaint contains no allegations
that these defendants were personally involved in the alleged assault. In response, plaintiff
states that he has not alleged that these defendants were present during the assault and
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therefore the complaint does not “implicate” these defendants “as it relates to the assault.”
[Doc. 7, p. 5]. Accordingly, it appears to the Court that plaintiff has acknowledged that his
complaint does not allege an assault claim against Mr. Carter and Supervisors Collins and
Perryman. However, in an abundance of caution, the Court has reviewed the allegations of
the complaint [Doc. 1, ¶¶ 32, 32, 80], and agrees with defendants that in contrast to the
allegations contained in the complaint against Agent Durnin, the complaint contains no
factual allegations that Mr. Carter or Supervisors Collins and Perryman were involved in
plaintiff’s arrest. Accordingly, these claims will be DISMISSED as well.
IV.
Conclusion
For the reasons given above, defendants’ partial Motion to Dismiss [Doc. 2] is
GRANTED and the following claims will be DISMISSED: (1) plaintiff’s official capacity
claims, pursuant to 42 U.S.C. § 1983, against all defendants; (2) plaintiff’s individual
capacity claims, pursuant to 42 U.S.C. § 1983, against Ed Carter, Willard Perryman and
Andy Collins; (3) plaintiff’s claims under the Tennessee Governmental Tort Liability Act,
Tenn. Code Ann. §§ 29-20-101, et seq.; (4) plaintiff’s official capacity state law claims
against all defendants; (5) plaintiff’s false imprisonment claims, under state law, against Ed
Carter, Willard Perryman, and Andy Collins; (6) plaintiff’s negligence and negligent
supervision claims, under state law, against all individual defendants; and (7) plaintiff’s
assault claims, under state law, against Ed Carter, Willard Perryman, and Andy Collins. The
following claims are not dismissed: (1) plaintiff’s individual capacity claims against Joe
Durnin for a general civil rights violation and for false arrest, both pursuant to 42 U.S.C. §
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1983; (2) plaintiff’s individual capacity state law claim for false imprisonment against Joe
Durnin; and (3) plaintiff’s individual capacity state law claim for assault against Joe Durnin.
An appropriate order will be entered.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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