Powers et al v. Wallen et al

Filing 14

MEMORANDUM AND OPINION as set forth in following order.Signed by District Judge R Leon Jordan on 3/29/13. (ABF)

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
BILLY JOE POWERS and
SARAH POWERS,

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Plaintiffs,

v.
STEPHEN WALLEN, et al.,
Defendants.

No. 3:12-CV-96

MEMORANDUM OPINION
This civil action is before the court for consideration of “Defendants’ Motion
to Dismiss” [doc. 5]. Plaintiffs, husband and wife Billy Joe and Sarah Powers, have filed a
response [doc. 10], and defendants have submitted a reply [doc. 11]. Oral argument is
unnecessary, and the motion is ripe for the court’s determination. For the reasons that
follow, the motion will be granted in part and denied in part.

I.
Background 1
Plaintiff Billy Joe Powers (herein after sometimes “plaintiff”) is 70 years old
and has bad knees. He and his wife own rental property including the apartment complex
in LaFollette, Tennessee where the events occurred that are the subject of this lawsuit. On

1

Factual information is taken exclusively from the complaint since this case is before the
court on a motion to dismiss.

April 8, 2010, plaintiffs went to the LaFollette complex regarding matters related to the
management and maintenance of the complex and to inquire about rent money due from the
occupants of apartment number four. Sarah Powers knocked on the apartment door to speak
with the tenants while her husband remained in the driver’s seat of their pickup truck. The
tenants became belligerent and used vulgar and abusive language in a threatening manner
toward Mrs. Powers. Hearing the exchange and observing the conduct of the tenants,
plaintiff walked toward the porch area of the apartment. Abusive and vulgar language was
used toward the plaintiff as well, at which point the plaintiff advised that he “was 70 years
old with two bad knees, but that he had an ‘equalizer’ he could get to.” The complaint states
that in fact plaintiff had an unloaded handgun in the glove compartment of the truck. The
ammunition was kept in a toolbox area in the truck bed. The plaintiffs decided to leave.
The tenants followed the plaintiffs to the truck and continued screaming at the
plaintiffs. One of the tenants, the woman, stood in front of the truck, and as the plaintiffs
drove away she ran along beside the truck continuing to scream vulgarities. The plaintiffs
assert in the complaint that there were a number of witnesses to this confrontation.
After the plaintiffs had left the complex, Mr. Powers attempted to call 911, but
he did not get an answer. The plaintiffs then proceeded to Mrs. Powers’s sister’s house in
Campbell County to determine what to do next. Sometime later, the Campbell County
dispatcher returned the call and advised plaintiffs to return to the apartment complex because
the police were on the scene. Mrs. Powers decided to leave the handgun at her sister’s house
since there was no longer a need for protection with the police at the complex.
2

The officer on the scene was defendant Stephen Wallen who had spoken with
the tenants by the time the plaintiffs returned. He informed plaintiff that he had no business
in the tenant’s apartment and demanded to know why he had threatened the tenants. When
the plaintiff attempted to explain what had happened, Wallen cut him off refusing to hear
plaintiff’s version of the events.
Plaintiff was arrested without a warrant and charged with aggravated assault
and unlawful possession of a weapon. Plaintiff was booked and held in jail until he was
eventually released on bond. On July 29, 2010,2 plaintiff filed a motion to dismiss, citing in
support some of the reasons why Wallen did not have probable cause to arrest him. Wallen
failed to appear at the hearing set on August 3rd, and the hearing was reset for October 26,
2010. Wallen again failed to appear or provide testimony at that hearing. Plaintiff’s counsel
moved to dismiss the case, which was granted by the court.
The State brought the case to a grand jury on December 3, 2010. Based solely
on the testimony of Wallen, the grand injury indicted plaintiff on four counts: 1) aggravated
assault; 2) unlawful possession of a weapon; 3) reckless assault; and 4) reckless
endangerment. A preliminary hearing was set for January 10, 2011, which was reset to
January 31, 2011, because of inclement weather. At the January 31 hearing, plaintiff’s
attorney was informed that the State planned to dismiss all the charges by nolle prosequi,
although additional time was needed to work out details. On March 21, 2011, the prosecutor

2

The complaint states July 29, 2011, which the court considers to be a typographical error.

3

announced in open court that the case against the plaintiff was dismissed. Plaintiffs filed the
complaint on March 1, 2012.

II.
Standard of Review
Defendants’ motion is brought pursuant to Federal Rule of Civil Procedure
12(b)(6). Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon
which relief can be granted.” In resolving a motion under Rule 12(b)(6), the court must
“construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007). “The factual allegations, assumed to be true, must do more
than create speculation or suspicion of a legally cognizable cause of action; they must show
entitlement to relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527
(6th Cir. 2007) (emphasis in original) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)). “[A] complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’. . . A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 570, 556). “To survive a Rule 12(b)(6) motion to
dismiss, plaintiff’s pleading for relief must provide ‘more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.’” Bowman v. United
4

States, 304 F. App’x 371, 374 (6th Cir. 2008) (citing Ass’n of Cleveland Fire Fighters, 502
F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555)).

III.
Analysis
Federal Claim for False Arrest
Defendants contend that the claim for false arrest brought pursuant to § 1983
by plaintiff

3

is barred by the statute of limitations. Plaintiff does not respond to the

argument, so in their reply defendants contend that plaintiff has abandoned this claim. “It
is well understood . . . that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.” Rouse v. Caruso, No. 06-CV-10961-DT,
2011 WL 918327, at *18 (E.D. Mich. Feb. 18, 2011) (quoting Hopkins v. Women’s Div.,
Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003)); see also Dage v. Time
Warner Cable, 395 F. Supp. 2d 668, 679 (S. D. Ohio 2005) (plaintiff abandoned claim by
failing to address it in his responsive briefing); Kattar v. Three Rivers Area Hosp. Auth., 52
F. Supp. 2d 789, 798 n.7 (W.D. Mich. 1999) (“The Court will treat that claim as abandoned
because Kattar did not address it in his brief in response to Defendants’ motion for summary
judgment.”).

3

The only claim plaintiff Sarah Powers can assert is one for loss of consortium.

5

In any event, whether or not plaintiff responded to the argument, the claim is
barred by the one-year statute of limitations for a § 1983 claim. “[C]onstitutional claims
asserted under 42 U.S.C. § 1983 are governed by the state personal injury statute of
limitations.” Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007) (citations omitted).
Tennessee Code Annotated § 28-3-104(a)(3) provides that a civil action brought under the
federal civil rights statutes must be filed within one year after the cause of action accrues.
Thus, Tennessee has a one year statute of limitations for actions brought under federal civil
rights statutes, including § 1983. Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003) (citing
Tenn. Code Ann. § 28-3-104(a)(3); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986)).
However, “federal law determines when the statute of limitations begins to run on a § 1983
claim.” Fox, 489 F.3d at 233 (citations omitted). “[T]he statute of limitations upon a § 1983
claim seeking damages for a false arrest in violation of the Fourth Amendment, where the
arrest is followed by criminal proceedings, begins to run at the time the claimant becomes
detained pursuant to legal process.” Wallace v. Kato, 549 U.S. 384, 397 (2007).4
Plaintiff was arrested on April 8, 2010, and he posted bond and was released.
The complaint was not filed until March 1, 2012, almost two years after plaintiff’s arrest.
Therefore, plaintiff’s claim for false arrest under the Fourth Amendment is barred by the one-

4

To the extent the complaint asserts a § 1983 claim for false imprisonment, that claim is also
barred by the one-year statute of limitations applicable to the false arrest claim. Sanders v.
Southards Supermarket, No. 99-6105, 2000 WL 1359638, at *2 (6th Cir. Sept. 14, 2000) (statute of
limitations for false imprisonment begins to run when detention ends, which includes when a
plaintiff is released on bond, not at the end of the legal proceedings).

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year statute of limitations.

Federal Claim for Malicious Prosecution
Defendants also contend that plaintiff’s federal malicious prosecution claim
is barred by the statute of limitations. Citing several case authorities, including Heck v.
Humphrey, 512 U.S. 477 (1994) and Wallace v. Kato, 549 U.S. 384 (2007), defendants argue
that the statute of limitations on this claim was not tolled or extended until the end of the
criminal prosecution. Plaintiff argues that a claim for malicious prosecution does not begin
to accrue until a favorable termination in the criminal proceeding has occurred. Plaintiff is
correct.
“Wallace clarifies the distinction between claims of malicious prosecution,
such as the one addressed in Heck, and claims of false arrest and false imprisonment. . . .
Heck held that a claim of malicious prosecution does not accrue until the underlying
conviction is invalidated, and this holding was reaffirmed in Wallace.” Fox, 489 F.3d at
235 (internal citations omitted). “In Heck, the Supreme Court held that Heck’s postconviction action under § 1983 for claims analogous to the tort of malicious prosecution
(brought during the pendency of his state-court criminal appeal) would not accrue until a
final adjudication in Heck’s favor in state court, since the tort of malicious prosecution
requires final adjudication in favor of the accursed and any determination by the federal
court regarding the legality of the prosecution would necessarily effect (sic) the validity of
the state court proceedings.” Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d
7

631, 638 (6th Cir. 2007) (emphasis added) (citation omitted); see also Lillard v. City of
Murfreesboro, No. 3:07-1036, 2009 WL 2047048, at *8 (M.D. Tenn. July 10, 2009) (“For
malicious prosecution claims under section 1983, the cause of action accrues, and the statute
begins to run, when the underlying criminal proceeding terminates in the plaintiff’s favor.”)
(citations omitted).
The criminal prosecution against plaintiff was dismissed on March 21, 2011,
ending the criminal matter in his favor. McGuire v. City of Royal Oak, No. 05-40185, 2006
WL 3741898, at *9 (E.D. Mich. Dec. 15, 2006) (“Nolle prosequi is a sufficient disposition
to support a claim for malicious prosecution[;] it does not have to equate to acquittal or a
finding of innocence, only termination in the defendant’s favor.” (citations omitted)).
Plaintiff filed his complaint on March 1, 2012, less than one year from the date of the
dismissal. Therefore, his malicious prosecution claim is not barred by the one-year statute
of limitations.
Nevertheless, defendants also argue that the finding of probable cause by a
grand jury precludes the bringing of a claim for malicious prosecution under § 1983.
Plaintiff argues that the finding of probable cause in the indictment is not preclusive of the
federal malicious prosecution claim.
“The Sixth Circuit recognizes a separate constitutionally cognizable claim 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) (citation omitted). Not until Sykes did the Sixth Circuit Court of Appeals
8

specifically set forth the elements of a malicious prosecution claim under § 1983. Id. (“[T]he
Sixth Circuit has [not] yet articulated the elements of a Fourth Amendment maliciousprosecution claim under 42 U.S.C. § 1983 with specificity[;] . . . we do so now.”) (citations
omitted). 5 The Sixth Circuit stated:
To succeed on a malicious-prosecution claim under § 1983
when the claim is premised on a violation of 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 ma[d]e, influence[d],
or participate[d] 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.
Id. at 308-09 (internal quotations marks and citations omitted). The Sixth Circuit in Sykes
also declined to impose a requirement that a plaintiff must demonstrate “malice” to prevail
on a malicious prosecution claim. Id. at 309-10.
“Prior to Sykes, some cases seemingly held that § 1983 claims predicated on
malicious prosecution necessarily failed if probable cause for the arrest was established.”
Amine v. King, No. 09-13454, 2011 WL 4387229, at *11 (E.D. Mich. Sept. 21, 2011)
(citations omitted); see also Guerra v. Rodriguez, No. 10-199-JGW, 2012 WL 208083, at *9
(E.D. Ky. Jan. 24, 2012) (citing Amine). “Sykes clarified that a probable cause to arrest and

5

Defendants do not cite to nor argue the authority in the Sykes case.

9

probable cause to prosecute are two distinct issues, each of which requires separate analyses
by the court.” Amine, 2011 WL 4387229, at *11. The Court in Sykes found, “The tort of
malicious prosecution is entirely distinct from that of false arrest, as the maliciousprosecution tort remedies detention accompanied not by absence of legal process, but by
wrongful institution of legal process.” Sykes, 625 F.3d at 308 (internal quotation marks and
citation omitted) (emphasis in original).
With regard to the first element of a § 1983 malicious prosecution claim, that
the defendant “ma[d]e, influence[d], or participate[d] in the decision to prosecute,” the Court
in Sykes stated that “the term ‘participated’ should be construed within the context of tort
causation principles. Its meaning is akin to ‘aided.’ To be liable for ‘participating’ in the
decision to prosecute, the officer must participate in a way that aids in the decision, as
opposed to passively or neutrally participating.” Id. at 309 n.5. The Sykes Court further
stated, “Whether an officer influenced or participated in the decision to prosecute hinges on
the degree of the officer’s involvement and the nature of the officer’s actions. . . . The
totality of the circumstances informs this fact determination.” Id. at 312 n.9 (citations
omitted).
The Court in Sykes determined that an officer who gave false testimony at a
preliminary hearing and made misrepresentations participated or influenced the decision to
prosecute an individual. The plaintiffs’ malicious prosecution claim against the officer who
testified at the preliminary hearing was predicated on two misrepresentations she made at that
hearing at which the plaintiffs were bound over for trial. The Sixth Circuit noted:
10

It is well established in this circuit that [p]olice officers cannot,
in good faith, rely on a judicial determination of probable cause
[to absolve them of liability] when that determination was
premised on an officer’s own material misrepresentations to the
court. This means that in order to establish that a testifying
officer was responsible for commencing a criminal proceeding
for purposes of a malicious-prosecution claim, the Plaintiffs
were required to present evidence that [the officer] (1) stated a
deliberate falsehood or showed reckless disregard for the truth
[at the hearing] and (2) that the allegedly false or omitted
information was material to the [court’s] finding of probable
cause.
Id. at 312 (internal quotation marks and citations omitted). The Sixth Circuit concluded that
“a reasonable jury could have concluded that [the officer] testified falsely at the preliminary
hearing and that her statements were material to the state court’s finding of probable cause.”
Id.
This case is only in the pleading stage, so the court only has the allegations in
the complaint, which the court takes as true and viewed in the light most favorable to the
plaintiff. Directv, 487 F.3d at 476. The facts alleged in the complaint at this stage are
sufficient to demonstrate that Wallen could have showed a reckless disregard for the truth
or omitted information when he testified before the grand jury and that the disregard for the
truth or omitted information was material to the finding of probable cause. Sykes, 625 F.3d
at 312. Plaintiff, of course, will be called upon at a later time to produce evidence to prove
the allegations in the complaint in order to sustain the malicious prosecution claim.
As to the remaining two elements of the § 1983 malicious prosecution claim,
plaintiff has already shown the fourth element, a favorable determination of the criminal

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proceeding, because the State dismissed the charges by nolle prosequi. McGuire, 2006 WL
3741898, at *9. With regard to the third element, the deprivation of liberty, that can be
demonstrated because a “pretrial release on bond constitutes a sufficient deprivation of
liberty to support a malicious prosecution claim.” Amine, 2011 WL 4387229, at *12
(citations omitted).

Therefore, defendants’ motion as to plaintiff’s § 1983 malicious

prosecution claim will be denied.

State Law Claim for False Arrest
As with the federal law claim for false arrest, plaintiff does not respond to
defendants’ argument that the state-law claim for false arrest is barred by the applicable
statute of limitations. Plaintiff has thus abandoned the claim. See Dage v. Time Warner
Cable, 395 F. Supp. 2d 668, 679 (S. D. Ohio 2005) (plaintiff abandoned claim by failing to
address it in his responsive pleading). Nevertheless, whether or not plaintiff filed a response
to the argument, the claim is barred by the statute of limitations.6 Plaintiff’s false arrest claim
had to be filed within one year of the date he was arrested and taken into custody. Dirks v.
Tudors, No. E2008-01384-COA-R3-CV, 2009 WL 1372180, at *1 (Tenn. Ct. App. May 18,
2009) (citing Tenn. Code Ann. § 28-3-104(a)(1); Simmons v. Gath Baptist Church, 109
S.W.3d 370, 373 (2003)).

6

Plaintiff also asserts in the complaint a claim for false imprisonment. The elements and
statute of limitations for a false imprisonment claim in Tennessee are the same as for false arrest.
Crowe v. Bradley Equip. Rentals & Sales, Inc., No. E2008-02744-COA-R3-CV, 2010 WL 1241550,
at *6 (Tenn. Ct. App. Mar. 31, 2010).

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State Law Claim for Malicious Prosecution
There is a one-year statute of limitations for a malicious prosecution claim
brought under Tennessee law. Tenn. Code Ann. § 28-3-104(a)(1); Gray v. 26th Judicial
Drug Task Force, No. 02A01-9609-CV-00218, 1997 WL 379141, at *2 (Tenn. Ct. App. July
8, 1997) (state law claim for malicious prosecution must be brought within one year after
accrual of the claim). There are three elements to a state law claim for malicious
prosecution: “(1) A prior suit or judicial proceeding was instituted without probable cause,
(2) defendant brought such prior action with malice, and (3) the prior action was finally
terminated in plaintiff’s favor.” Gray, 1997 WL 379141, at *2 (citations omitted). “Thus,
an action for malicious prosecution cannot be maintained until the termination of the original
action in the plaintiff’s favor, and the cause of action does not accrue until that point.” Id.
The criminal proceeding against the plaintiff was dismissed on March 21, 2011.
The malicious prosecution claim accrued at that time. The complaint was filed March 1,
2012, within the one-year limitations period. Therefore, the claim is not barred by the statute
of limitations.
In addition, defendants argue that any state law torts asserted by plaintiff are
barred by the Tennessee Governmental Tort Liability Act (“TGTLA”), citing Tenn. Code
Ann. § 29-20-205. Defendant’s assertion is true as to the governmental entity defendant,
City of LaFollette, but not accurate as to the defendant officer sued in his individual capacity.

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Section 29-20-205 provides in pertinent part:
Immunity from suit of all governmental entities is removed for
injury proximately caused by a negligent act or omission of any
employee within the scope of his employment except if the
injury arises out of: . . .
(2) False imprisonment pursuant to a mittimus from a court,
false arrest, malicious prosecution, intentional trespass, abuse of
process, libel, slander, deceit, interference with contract rights,
infliction of mental anguish, invasion of right of privacy, or civil
rights.7
The immunity granted in § 205 applies only to the intentional torts specifically enumerated
in the statute. Arbuckle v. City of Chattanooga, 696 F. Supp. 2d 907, 929 (E.D. Tenn. 2010)
(citing Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001)). In addition, “the
TGTLA ‘addresses the liability of governmental entities only. Its jurisdictional limitations
do not apply to persons sued individually.’” Id. (quoting Timberlake v. Benton, 786 F. Supp.
676, 697 (M.D. Tenn. 1992)); see also Reagan v. City of Knoxville, No. 3:07-CV-189, 2008
WL 305018, at *5-7 (E.D. Tenn. Jan. 31, 2008) (TGTLA definition of governmental entity
does not include employees, so TGTLA does not provide immunity to public employees);
Hatfield v. Cleveland Bank & Trust Co., No. 03A01-9506-CV-00209, 1995 WL 621003, at
*4 (Tenn. Ct. App. Oct. 24, 1995) (“T.C.A. § 29-20-205 does not address the subject of a
governmental employee’s immunity. That statute, by its terms, only applies to ‘governmental
entities.’” (emphasis in original)). “Thus, when the injury caused by the governmental

7

The Tennessee Supreme Court has held that “infliction of mental anguish” applies only to
intentional infliction of emotional distress. Sallee v. Barrett, 171 S.W.3d 822, 829 (Tenn. 2005).

14

employee arises out of one of the listed intentional torts, the governmental entity is immune
from suit.”

Therefore, the City of LaFollette would have immunity for the malicious

prosecution claim by virtue of § 205(2).
There is limited immunity granted to governmental employees by Tenn. Code
Ann. § 29-20-310(c).
An individual employee of a governmental entity is immune
when the governmental entity for which he works is immune
from suit, unless the employee’s act or omission was willful,
malicious, criminal, or performed for personal financial gain:
(c) No claim may be brought against an employee
or judgment entered against an employee for
injury proximately caused by an act or omission
of the employee within the scope of the
employee’s employment for which the
governmental entity is immune in any amount in
excess of the amounts established for
governmental entities in § 29-20-404, unless the
act or omission was willful, malicious, criminal,
or performed for personal financial gain, or
unless the act or omission was one of medical
malpractice committed by a health care
practitioner . . . .
Autry v. Hooker, 304 S.W.3d 356, 363 (Tenn. Ct. App. 2009) (quoting Tenn. Code Ann. §
29-20-310(c) (emphasis added in original)). Further, in Wells v. Hefner, No. M2002-02502COA-R3-CV, 2003 WL 22068097 (Tenn. Ct. App. Sept. 5, 2003), the Tennessee Court of
Appeals determined that employees of a state university, “a governmental entity pursuant to
the [TGTLA],” were not immune from a malicious prosecution suit. The Court relied on
Tenn. Code Ann. § 9-8-307(h), which provides in relevant part: “State officers and

15

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.” (emphasis added). The
Court held: “State employees, therefore are not immune from causes of action alleging
malicious acts. [Plaintiff’s] claim is for malicious prosecution. Without opining on whether
[plaintiff] will succeed in demonstrating malice, defendants are not immune from this claim.”
Wells, 2003 WL 22068097, at *1. Accordingly, the individual officer defendant, Wallen, is
not immune from the state law malicious prosecution claim.
Defendants argued exclusively that to the extent plaintiff alleged Tennessee
state law torts in the complaint, those claims are barred by the one-year TGTLA statute of
limitations. Because of that position, defendants did not make the argument regarding the
preclusive effect of the grand jury’s finding of probable cause as they did with the § 1983
malicious prosecution claim. Plaintiff does address the argument concerning the state law
claim in his response, arguing that the indictment is not preclusive to bringing the state law
claim for malicious prosecution. The court therefore must determine whether plaintiff has
alleged sufficient facts under Tennessee law, which differs from the standard in a § 1983
case, to demonstrate that the indictment is insufficient to bar the subsequent suit for
malicious prosecution.
“Tennessee courts have declined to adopt a per se rule that the indictment of
the accused by a grand jury is evidence that the person who initiated the proceedings has
probable cause therefore.” Day v. Ingle’s Markets, Inc., No. 2:01-CV-325, 2006 WL
16

239290, at *3 (E.D. Tenn. Jan. 25, 2006) (citing Kerney v. Aetna Cas. & Surety Co., 648
S.W.2d 247 (Tenn. Ct. App. 1982)). In Kerney, the Tennessee Court of Appeals stated:
We decline the defendant’s invitation to adopt the rule that the
indictment of the accused by a grand jury, if unexplained, is
evidence that the person who initiated the proceedings had
probable cause therefor. This rule is one of many rules on the
subject and we are not convinced that it is either the best rule or
that it is in conformity with the law of malicious prosecution in
Tennessee. Where a finding is procured by fraud, false
testimony, or where the defendant did not believe in the guilt of
the plaintiff, an indictment is not sufficient to bar a suit for
malicious prosecution.
Kerney, 648 S.W.2d at 252 (internal quotation marks and citations omitted); see also Spicer
v. Thompson, No. M2002-03110-COA-R3-CV, 2004 WL 1531431, at *26 (Tenn. Ct. App.
July 7, 2004) (“While an indictment by a grand jury is said in some cases to allow a fact
inference of probable cause[,] such cases are in Tennessee at best questionable . . . .” (citing
Kerney rule)).
This court in Day addressed a malicious prosecution case in which there had
been a prior grand jury indictment. The court considered the preclusive effect of the grand
jury’s findings of probable cause. After noting that Tennessee has not adopted a per se rule
on the issue and that an indictment is not sufficient to bar a later malicious prosecution action
when the grand jury’s finding are procured by fraud, false testimony or other corrupt means,
the court stated:
Defendant, of course, argues that there is absolutely no evidence
in this case that Ingle’s procured Day’s indictment by fraud,
false testimony or other corrupt means and, therefore, Ingle’s is
entitled to judgment as a matter of law. There is, however,
17

testimony that John Freshour, Ingle’s store manager, who was
the only witness to testify before the initial Carter County
Grand Jury considering Day’s case, intentionally failed to
inform the grand jury of relevant, material facts, many of
which were exculpatory to Day, surrounding these alleged
thefts. Taking the strongest legitimate view of the evidence in
favor of Ms. Day and allowing all reasonable inferences in her
favor, this Court cannot find as a matter of law that plaintiff’s
indictment was not procured through fraud, false testimony or
other corrupt means. The indictments, therefore, do not
preclude relitigation of the question of probable cause.
Day, 2006 WL 239290, at *3.
Plaintiff in this case makes similar allegations concerning the conduct of
Wallen. In the complaint, plaintiff alleges in part that Wallen, who was the only witness at
the grand jury proceedings, “turned a blind eye toward any and all exculpatory evidence” and
conducted “an incomplete, incompetent, unreasonable, and reckless investigation in order
to effect Mr. Powers’s arrest.”
This case is in the pleading stage, at which the allegations in the complaint are
considered true and viewed in the light most favorable to the plaintiff. Directv, 487 F.3d at
476. Plaintiff has provided sufficient factual matter, which the court accepts as true, to “state
a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 570). Plaintiff will of course have to provide sufficient proof to demonstrate that the
indictment was in fact procured by fraud, false testimony or other corrupt means. At this
point, the complaint is sufficient to survive the motion to dismiss.

18

Outrageous Conduct Claim
Plaintiff asserts in the complaint that Wallen is guilty of outrageous conduct
and that plaintiff suffered “serious mental anguish.” Outrageous conduct and intentional
infliction of emotional distress are the same cause of action. Bain v. Wells, 936 S.W.2d 618,
622 n.3 (Tenn. 1997). Defendants argue that plaintiff’s claim for mental anguish is barred
by the TGTLA one-year statute of limitations.
To the extent the complaint can be construed that a claim for intentional
infliction of emotional distress has been asserted against the City of LaFollette, the claim is
barred by Tenn. Code Ann. § 29-20-205. The “infliction of mental anguish” referenced in
section 205 applies only to intentional infliction of emotional distress. Sallee, 171 S.W.3d
at 829. However, Wallen, sued in his individual capacity, would not be immune. Arbuckle,
696 F. Supp. 2d at 930 (city immune under TGTLA for intentional infliction of emotional
distress but individual officers not immune from claim).
Nevertheless, the claim fails for two reasons. The first is that it is barred by
the one year statute of limitations. Tenn. Code Ann. § 28-3-104. Plaintiff was arrested on
April 10, 2010, and plaintiff alleges that his “unwarranted arrest” by Wallen is a basis for
his outrageous conduct claim. The complaint was not filed until March 1, 2012, clearly
more than one year after the arrest. Thus the claim is barred.
The second reason the claim fails is because plaintiff has not alleged sufficient
facts to state a claim for intentional infliction of emotional distress. There are three elements

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to the cause of action for intentional infliction of emotional distress under Tennessee law:
“(1) the conduct complained of must be intentional or reckless; (2) the conduct must be so
outrageous that it is not tolerated by civilized society; and (3) the conduct complained of
must result in serious mental injury.” Bain, 936 S.W.2d at 622 (citations omitted). In Bain,
the Tennessee Supreme Court also noted that it has “adopted and applied the high threshold
standard described in the Restatement (Second) of Torts” for determining when particular
conduct is tortious. Id. at 622-23. The Court stated:
The cases thus far decided have found liability
only where the defendant’s conduct has been
extreme and outrageous. It has not been enough
that the defendant has acted with an intent which
is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that
his conduct has been characterized by “malice,”
or a degree of aggravation which would entitle
the plaintiff to punitive damages for another tort.
Liability has been found only where the
conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all
bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized
community. Generally, the case is one in which
the recitation of the facts to an average member of
the community would arouse his resentment
against the actor, and lead him to exclaim,
“Outrageous.”
Id. at 623 (emphasis added) (citations omitted). The allegations in the complaint do not rise
to this stringent standard. Therefore, the claim would also be dismissed for failure to state
a claim for relief.

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Sarah Powers’s Loss of Consortium Claim
Although defendants assert that complaint contains no allegations regarding
any claim by Sarah Powers, she does in fact allege that she has lost the consortium and
services of her husband because of the medical and emotional injuries he has suffered.
However, with regard to the § 1983 claim asserted by Billy Joe Powers, the court is of the
opinion that Sarah Powers cannot state a claim for loss of consortium for the alleged
violation of her husband’s civil rights. Loss of consortium is a derivative claim. Hunley v.
Silver Furniture Mfg. Co., 38 S.W.3d 555, 557 (Tenn. 2001). Thus, Sarah Powers’s
consortium claim would originate from Billy Joe Powers’s claim for violation of his civil
rights. Id. “One person may not sue for the deprivation of another person’s civil rights.”
Pierce v. Stinson, 493 F. Supp. 609, 611 (E.D. Tenn. 1979) (citing Hall v. Wooten, 506 F.2d
564, 566 (6th Cir. 1974)).
In Cramblit v. Fikse, No. 91-4002, 1992 WL 307962 (6th Cir. Oct. 23, 1992),
the Sixth Circuit did not have to reach the issue of whether the plaintiff’s mother could
maintain a derivative action for alleged violation of her son’s constitutional rights. However,
the Court observed: “We note in passing, however, that an action under 42 U.S.C. § 1983
inures only to the benefit of one whose own personal constitutional rights were violated.” Id.
at *6 (citing Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986) (bystander cannot recover for
witnessing violation of the civil rights of another); Hall v. Wooten, 506 F.2d 564 (6th Cir.
1974) (one cannot sue for the deprivation of the civil rights of another); Jenkins v. Carruth,
583 F. Supp. 613 (E.D. Tenn. 1982) (husband cannot sue for the alleged deprivation of his
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wife’s civil rights); Pierce v. Stinson, 493 F. Supp. 609 (E.D.Tenn. 1979) (parents cannot
maintain an action under 42 U.S.C. § 1983 for the alleged deprivation of their children’s civil
rights)).
In Jenkins v. Carruth, this court stated:
The plaintiffs have not cited, nor has the Court found, any
authority permitting a husband to recover damages under 42
U.S.C. § 1983 for the deprivation by a third party of the civil
rights of his wife. The law seems clear that one person may not
sue, nor recover damages, for the deprivation of another
person’s civil rights.
583 F. Supp. at 616 (citations omitted). Relying on Jenkins, this court held that a spouse
“cannot state a claim for loss of consortium due to any alleged violation of [her husband’s]
civil rights under Section 1983.” Cross v. City of Chattanooga, No. 1:04CV108, 2005 WL
2456977, at *11 (E.D. Tenn. Oct. 3, 2005); see also Claybrook v. Birchwell, 199 F.3d 350,
357 (6th Cir. 2000) (“In the Sixth Circuit, a section 1983 cause of action is entirely personal
to the direct victim of the alleged constitutional tort.”); Murray v. Harriman City, No. 3:07CV-482, 2010 WL 546590, at *6 (E.D. Tenn. Feb. 10, 2010) (“[T]here is no loss of
consortium claim under § 1983.”). Therefore, Sarah Powers’s loss of consortium claim based
upon § 1983 will be dismissed.
Nonetheless, plaintiffs assert that Sarah Powers’s loss of consortium claim can
be based upon the state law tort of malicious prosecution. “[W]ith respect to common law
claims for loss of consortium, ‘the right to recover for loss of consortium is a right
independent of the spouse’s right to recover for the injuries themselves.’” Shaffer v. Shelby

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Cnty., No. W2000-02215-COA-R3-CV, 2002 WL 54389, at *6 (Tenn. Ct. App. Jan. 11,
2002) (quoting Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App.
1987)). However, “while the claim for loss of consortium is a claim independent from that
of the injured spouse for other damages, it is also a derivative claim in that the physical
injuries or incapacities of one’s spouse give rise to and establish the claim.” Cary v. Bourne,
No. 02A01-9511-CV-00263, 1997 WL 585750, at *9 (Tenn. Ct. App. Sept. 23, 1997) (citing
Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 108 (Tenn. 1996) (in Tennessee a loss
of consortium claim is considered as derivative of the principal claim for injuries)).
Therefore, Sarah Powers must have a state-law tort claim asserted by her husband that
survives in order to maintain her loss of consortium claim.
The malicious prosecution claim, at this juncture, can be the underlying state
law tort claim on which Sarah Powers’s loss of consortium claim can be based. Should the
malicious prosecution claim not survive a future dispositive motion, the loss of consortium
claim, because of its derivative nature, would also fail.

However, the claim presently

survives the motion to dismiss.

IV.
Conclusion
Accordingly, for the reasons stated herein, defendants’ motion to dismiss will
be granted in part and denied in part. An order consistent with this opinion will be entered.

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ENTER:

s/ Leon Jordan
United States District Judge

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