Keppler v. Haslam et al

Filing 16

MEMORANDUM OF THE COURT. Signed by District Judge Aleta A. Trauger on 2/22/12. (rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ROBERT CHARLES (ROB) KEPPLER, III,
Plaintiff,
v.
WILLIAM EDWARD (BILL) HASLAM,
individually and in his official capacity as
Governor of Tennessee, WILLIAM (BILL)
GIBBONS, individually and in his official
capacity as Commissioner of Safety and
Homeland Security for the State of Tennessee
STEVEN G. CATES, individually and in his
official capacity as Commissioner of General
Services for the State of Tennessee, PRESTON
DONALDSON, individually and in his official
capacity as Lieutenant for the Tennessee
Highway Patrol, and John Doe Officers 1-100,
individually and in their official capacities,
Defendants.

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Case No. 3:11-CV-1040
Judge Aleta A. Trauger

MEMORANDUM
Pending before the court is the Motion to Dismiss Amended Complaint by Defendants in
Their Official Capacities (Docket No. 11), to which the plaintiff has responded (Docket No. 15).
BACKGROUND
I.

Procedural History
On October 31, 2011, the plaintiff, Robert Charles Keppler, filed a Complaint against

Tennessee Governor Bill Haslam, Tennessee Commissioner of Safety and Homeland Security
Bill Gibbons, Tennessee Commissioner of General Services Steven G. Cates, Lieutenant for the

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Tennessee Highway Patrol Preston Donaldson, and “John Doe” law enforcement officers.
(Docket No. 1.) The Complaint broadly alleged that, while protesting as part of the “Occupy
Nashville” demonstrations on October 28, 2011 at Legislative Plaza in Nashville, Keppler was
subjected to mistreatment by law enforcement officers (acting at Donaldson’s direction) seeking
to enforce a curfew promulgated by Haslam, Gibbons, and Cates. The Complaint asserted
claims against the defendants in their official capacities only, including civil conspiracy and/or
negligence against Haslam, Gibbons, Cates, and Donaldson, common law and constitutional tort
violations against the “John Doe” defendants, and violations of the Tennessee Governmental
Tort Liability Act by all defendants. As relief, the plaintiff requested: (1) a temporary
restraining order, preliminary injunction, and/or permanent injuction against enforcement of the
curfew and permit requirements issued on October 27, 2011 that led to arrests of demonstrators
at Legislative Plaza; (2) a declaratory judgment holding the curfew and permit requirements
unconstitutional as applied; (3) an award of compensatory damages for injuries and medical
expenses suffered by Keppler; and (4) reasonable litigation expenses, including attorney’s fees.
(Id. at p. 9.)
The defendants moved to dismiss the Complaint (Docket No. 3), arguing in their
supporting memorandum (Docket No. 4) that (1) suits against them in their official capacities are
barred by the doctrine of sovereign immunity, (2) injunctive relief is not justified because the
court already issued such relief in Occupy Nashville, et al. v. William Edward “Bill” Haslam, et
al., Civil Action No. 3:11-CV-1037 (M.D. Tenn. filed Oct. 31, 2011), and (3) declaratory relief
is inappropriate and/or unnecessary.
The plaintiff filed a Response to the Motion to Dismiss (Docket Nos. 6, 8), along with a

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Motion to Amend/Correct Complaint (Docket Nos.5, 7), seeking to name and sue the defendants
in their individual capacities as well. On January 17, 2012, the court granted the Motion to
Amend and denied the defendants’ Motion to Dismiss as moot. (Docket No. 9.) On January 18,
2012, the plaintiff filed an Amended Complaint (Docket No. 10), which is essentially identical to
the original Complaint, except that, in the case caption, it states that each defendant is being sued
“individually and in his official capacity as [X].” (Docket No. 10 at p. 1 (emphasis added).)
On January 20, 2012, just two days after the plaintiff filed his Amended Complaint, the
defendants renewed their Motion to Dismiss (Docket No. 11) with a supporting memorandum
(Docket No. 12). The legal arguments in support of the motion are identical to those previously
asserted. Thus, the defendants reassert that, inter alia, claims against them in their official
capacities are barred by the doctrine of sovereign immunity. The motion also notes that (1) the
individual defendants have not yet been served with the Amended Complaint; and (2)
notwithstanding the ostensible purpose of amending the Complaint, the Amended Complaint
does not distinguish between “individual” and “official” allegations concerning the defendants.
(Id. at p. 1, n.1 and n.2.) The plaintiff does not oppose defendants’ request for dismissal of
claims against them in their official capacities. (Docket No. 15.)
ANALYSIS
Because the plaintiff does not oppose dismissal of his claims against the defendants in
their official capacities, dismissal of those claims is plainly appropriate. However, because the
defendants are not subject to suit in their official capacities, the court does not need to reach their

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additional arguments concerning the appropriateness of declaratory and injunctive relief.1
As the defendants acknowledge in their brief, they have not yet been served with the
Amended Complaint individually. Fed. R. Civ. P. 4(m) permits a plaintiff at least 120 days from
the filing of the original complaint to effectuate service. If a plaintiff does not meet that
deadline, the court (on motion or on its own after notice to the plaintiff) must dismiss the action
or order that service be made within a specified time, unless the plaintiff shows good cause for
the failure to serve, in which case the court must extend the time for service for an appropriate
period. Here, because the plaintiff filed his original Complaint on October 31, 2011, the plaintiff
has at least until February 28, 2012 (120 days) to serve the individual defendants. By this
deadline, the plaintiff should serve the defendants individually or file a motion requesting an
extension of time to do so. If the defendants are timely served in their individual capacities
pursuant to Rule 4(m) or subsequent court order, the defendants may then move to dismiss on
whatever grounds they believe are appropriate, including their arguments regarding the
impropriety of plaintiff’s requests for declaratory and injunctive relief.
CONCLUSION
Subject to the limitations stated herein, the defendants’ motion will be granted. All
claims against the defendants in their official capacities will be dismissed with prejudice.

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Regardless, the defendants’ arguments have merit. In Occupy Nashville, the court on
October 31, 2011 issued a temporary restraining order (the date the plaintiff here filed suit) and
on November 17, 2011 issued an agreed order establishing a preliminary injunction, which have
restrained the government from enforcing the October 27, 2011 policy that the plaintiff here
seeks to restrain.
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An appropriate order will enter.
_____________________________
ALETA A. TRAUGER
United States District Judge

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