Hessmer v. Bad Government
Filing
15
REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the Clerk be instructed to send pltf a service packet for deft Chief Bryant only, and that pltf's claims against all other defts be dismissed. Signed by Magistrate Judge E. Clifton Knowles on 9/10/12. (xc:Pro se party by regular and certified mail.)(rd)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOHN ALLEN HESSMER,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BAD GOVERNMENT et al.,
Defendants.
Case No. 3:12-cv-590
Judge Campbell
Magistrate Judge Knowles
REPORT AND RECOMMENDATION
This is a pro se civil rights action brought by a state
prisoner under 42 U.S.C. § 1983.
The matter has been referred to
the undersigned by District Judge Todd Campbell for case management
and all pretrial proceedings pursuant to 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure.
The first order of business is to conduct the initial review
required by 28 U.S.C. § 1915A, which states in pertinent part:
“The court shall review . . . as soon as practicable after
docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity.”
Id. § 1915A(a).
In conducting this review,
the court is to identify any cognizable claims and to dismiss the
complaint
or
any
portion
thereof,
prior
to
service
on
the
defendants, to the extent it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
Id. §
1915A(b).
Applying these standards, I find that the complaint
states a colorable claim under § 1983 for retaliatory transfer
against defendant “Chief Bryant” in his individual capacity, and
recommend that the complaint be served upon that defendant and that
this claim be permitted, at this stage, to proceed.
I further
recommend that all other claims in the complaint be dismissed, for
the reasons set forth herein.
I.
The Complaint
The plaintiff in this case has filed a 133-page complaint
(Complaint, ECF No. 1) along with an additional 40 pages of
“addenda.”
He does not identify any defendants in the caption of
his complaint; instead, he states that his suit is filed against
“Bad Government.”
In the body of the complaint itself, however,
the plaintiff identifies the following individuals as defendants:
(1) Attorney B.F. Jack Lowery, Sr.; (2) Assistant Public Defender
William Keele Cather; (3) Assistant District Attorney Brian W.
Fuller; (4) Assistant District Attorney Laura E. Bush; (5) Judge
Robert P. Hamilton; (6) Judge David Earl Durham; (7) Clerk of Court
Linda Neal; (8) Attorney Sam W. Guin, Jr.; (9) Judge John D.
Wootten, Jr.; (10) Wilson County Sheriff Terry Ashe; (11) Chief
Bryant; (12) Detective Lee Bridges; (13) Deputy John Puckett; (14)
Deputy Robinson; (16) Judge James Oscar Bond, Sr.; (16) Community
Corrections Officer Mickey Williamson; (17) Community Corrections
Officer Carrol Clemmons; (18) “Community Corrections Director”;
(19) bail bondsman Danny Tidwell; (19) Marty Smith McLemore; (20)
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Judge John Thomas Gwin; (21) Deputy Glidewell; (22) Wilson County
Mayor; (23) Wilson County; (24) the State of Tennessee; (25)
Tennessee Attorney General Robert E. Cooper, Jr.; and (26) Governor
Bill Haslam.
The plaintiff states that he names each of the
defendants in his or her individual and official capacity, and he
seeks monetary damages as well as various unusual and creative
forms of equitable relief.
The
lengthy
complaint
consists
mostly
of
legal
argument
concerning such matters as judicial and other forms of immunity,
and citations to purported legal authority; it contains a relative
paucity of factual allegations.
Aside from the statements of law
and utterly conclusory assertions, the allegations of fact stated
in the complaint are as follows:
Defendant Judges Bond and Wootten were personally in receipt
of “a crudely drafted writ transferred to their courts by the
Davidson County Courts in October of 2004" (Complaint, ECF No. 1,
at 10).
The plaintiff alleges that these defendants did not
respond to said “writs” for which they are liable from October 14,
2004 through July 7, 2007.
Defendant David Earle Durham personally received
such a
“writ,” hand-delivered by the plaintiff on January 9, 2012, “making
him liable to plaintiff for everyday since that day that [he
refused] to receive this writ from this plaintiff and counting!”
(Id. at 10.)
The plaintiff asserts that some of his claims are “nunc pro
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tunc but are still live and valid” because some of his claims
concern allegedly continuing offenses, other claims may have been
tolled due to lack of notice or because of state interference, and
all claims have been tolled for an indefinite period of time due to
the plaintiff’s mental incompetence resulting from brain trauma
incurred in 1999.
(Id. at 21.)
The plaintiff alleges that he was
in a motorcycle accident in September 1999 from which he suffered
a traumatic head injury as well as hearing loss.
He alleges that,
as a result of that accident, he had to relearn how to write and
spell, “just like starting school all over again from the very
beginning.”
(Id. at 22.)
The plaintiff alleges that in January 1999, Sheriff Terry Ashe
seized $52,800 cash from the plaintiff’s mother’s home, along with
two vehicles and a quantity of construction tools, all without a
search
warrant
forfeiture
and
without
proceedings.
The
notifying
plaintiff
the
plaintiff
alleges
this
of
any
seizure
violated state law, as well as his constitutional rights to due
process.
The plaintiff alleges that in 1999, Deputy John Puckett
conspired with Deputy Glidewell to entrap the plaintiff.
This
conspiracy somehow involved luring the plaintiff with a “postal
package at the post office with pot in it.”
(Id. at 30.)
This
situation resulted in the plaintiff’s being arrested on various
charges in 1999 in Macon County, including, based on documents
attached
to
the
plaintiff’s
complaint,
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charges
of
aggravated
burglary, vandalism, and possession of less than a half ounce of
marijuana.
2000.
The plaintiff plead guilty to these charges in March
(Addendum to Complaint, ECF No. 1, at 137–39.)
The
plaintiff asserts that Judge David Earl Durham knew that the
plaintiff was factually innocent of these crimes, and further knew
that the plaintiff was “legally innocent due to the fact that the
state
lacked
both
territorial
and
subject-matter
of
drugs
transported in the mail where the arrest transpired on postal
property.”
(Complaint, ECF No. 1, at 30.)
In October 1999, Deputy Puckett allegedly obtained a search
warrant based on his own unsubstantiated affidavit made in bad
faith, and used it to “invade Plaintiff’s home illegally without
justifiable cause.”
(Id. at 38.)
In the course of the search,
Deputy Puckett allegedly destroyed personal property belong to the
plaintiff valued at $21,000, in retaliation for “finding his
personal information on computer files in an investigation of
Wilson County by Plaintiff.”
(Id.)
In late 1999, Wilson County Sheriff Terry Ashe and “many other
state officials” met with the plaintiff’s retained attorney, Jack
Lowery, Sr., and later “coerced” Mr. Lowery into not filing for
recovery
of
personal
property
plaintiff by Sheriff Ashe,
worth
$75,000
taken
from
the
into agreeing not to recover $250,000
in the plaintiff’s personal injury lawsuit, and into not stating an
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exculpatory defense to the “entrapment drug charge.”
(Id. at 42.1)
The plaintiff claims that Mr. Lowery was paid $44,000 for these
“disservices,” and that he later “actively participated applying
his influences upon Judges James Oscar Bond Sr. and John D. Wootten
Jr. to have Plaintiff illegally arrested without probable cause and
falsely imprisoned without any evidence whatsoever.”
(Id.)
On March 30, 2000, the plaintiff “unknowingly” plead guilty,
under duress, to claims that are not specified in the complaint.
(Id. at 47.)
The record reflects that the plaintiff was sentenced
to probation on those charges.
(See ECF No. 1, at 137–39 (Macon
Cnty. Crim. Ct. Judgments for Aggravated Burglary, Vandalism,
Marijuana Possession. dated April 14, 2000).)
On
June
12,
2000,
Community
Corrections
Officer
Carrol
Clemmons allegedly filed a false warrant against the plaintiff for
violation of probation, and Judge Bond, to whom the warrant was
presented, “knowingly verified false arrest warrant without any
evidence whatsoever.”
(Complaint, ECF No. 1, at 45.)
On June 14,
2000, Deputy Robinson and two other unnamed deputies invaded the
plaintiff’s home and violently assaulted him, without cause, and
took him into custody.
were
taken
(apparently
because
his
The plaintiff asserts that these actions
the
probation
plaintiff
officer)
had
for
asked
Carrol
permission
to
Clemmons
go
see
Attorney Virginia Townzen on June 7, 2000, to attempt to rectify
1
The hand-written complaint contains two pages numbered “41.” The citations to the complaint
herein follow the pagination of the electronically filed document rather than the plaintiff’s pagination.
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Attorney Lowery’s “misdeeds against Plaintiff.”
(Id.)
On June 26, 2000, the plaintiff appeared before Judge John D.
Wootten, Jr.
On that date, Community Corrections Officer Mickey
Williamson testified that the plaintiff’s urinalysis was positive
for drugs and asked Judge Wootten to revoke the plaintiff’s
probation.
The plaintiff explained to Judge Wootten that he had
actually passed the urinalysis, that he had a brand new son, that
his mother was dying from lung cancer and also needed his support,
and that the plaintiff had a new job that paid well.
The
plaintiff’s probation was nonetheless revoked; the plaintiff claims
his probation was revoked based on false evidence.
The plaintiff filed a post-conviction petition in October 2000
raising
various
Apparently
no
defenses
action
was
to
the
conviction
taken
on
this
and
petition.
sentence.
After
unsuccessful efforts to contact Attorney Lowery, Judge Bond, and
Clerk Linda Neal, the plaintiff finally filed a federal habeas
petition.
Judge
Wootten
then
“sua
sponte”
initiated
post-conviction proceedings “just to subvert federal review,” but
limited the plaintiff’s claims to false imprisonment. (Id. at 47.)
Judge Wootten claimed that he lacked jurisdiction over his own
probation revocation proceedings, and Judge Bond “issued a timebar
order on July 5, 2001.”
(Id.)
The plaintiff complains that Judge
Bond and Clerk Neal never served notice of the “timebar” order on
him, in violation of Tennessee law.
He also complains that Public
Defender William K. Cather never took a first-tier appeal after
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promising to do so.
Although
not
stated
in
the
complaint,
it
appears
from
documents attached to the complaint that the plaintiff was arrested
again in February 2011 and charged with arson, setting fire to
personal property, aggravated burglary, stalking and harassment.
(See ECF No. 1, at 150 (“Indictment Information and Discovery”).)
It is unclear whether the state proceedings relating to those
charges are still pending.
In relation to those charges, the plaintiff alleges that
Detective
Lee
Bridges
entered
his
home
illegally,
without
a
warrant, on February 16 and 17, 2011 and seized personal property
belonging to the plaintiff, falsified his report to indicate he had
confiscated illegal narcotics, and planted evidence on the scene.
The plaintiff also alleges that defendant Bridges lied on the
witness stand at a preliminary hearing on June 16, 2011 regarding
evidence found on the scene.
(Complaint, ECF No. 1, at 61–62.)
The plaintiff claims that on June 16, 2011, he pointed out to
Prosecutor Laura Bush in open court her “criminal responsibility”
for defendant Bridges’ conduct.
it
was
Judge
disciplinary
Tennessee
Robert
Hamilton’s
proceedings”
Board
of
(Id. at 76.)
against
duty
Professional
to
defendant
He further asserts
“institute
Bush
Responsibility.
.
.
.
before
the
(Id.)
The
plaintiff alleges that on the same day, he moved for transcripts
and an interlocutory appeal, and the court granted both requests.
Defendant Bush later persuaded Judge Hamilton, however, through ex
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parte communications, to deny his request for transcripts, in
violation of state law, in order to “subvert appellate review which
would have corrected all charges to the misdemeanor class that they
are.”
(Id.)
The plaintiff asserts that as an indigent criminal
defendant, he was “entitled to a transcript of prior proceedings at
the government’s expense, if it is reasonably necessary to present
an effective defense at a subsequent proceeding.”
(Id. at 76
(citing United States v. Johnson, 584 F.2d 148, 157 n.21 (6th Cir.
1983), among others).)
On
September
30,
2011,
defendant
David
Earl
Durham
was
informed of defendant Neal and defendant Cather’s violations of the
plaintiff’s post-conviction rights.
Despite defendant Cather’s
refusal to subpoena witnesses and the state’s failure to comply
with discovery requests, defendant Durham “forc[ed]” counsel upon
the
plaintiff,
even
though
(Complaint, ECF No. 1, at 89.)
he
wanted
to
represent
himself.
Defendant Durham refused to accept
pleadings filed pro se by the plaintiff, allegedly in violation of
the
plaintiff’s
constitutional
right
to
represent
himself.
Attached to the complaint is an order dated March 29, 2012, signed
by Judge David Earl Durham for the Criminal Court of Wilson County,
Tennessee denying the plaintiff’s motion in that court (where the
plaintiff was in the posture of defendant in a criminal action) to
represent himself. (ECF No. 1, at 169.) Judge Durham explained on
the
record
that,
while
the
United
States
Supreme
Court
has
recognized a criminal defendant’s right to self-representation, Mr.
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Hessmer would not be permitted to represent himself in the case
before Judge Durham because the Tennessee Supreme Court had entered
an order stating it would not accept further filings from Mr.
Hessmer unless submitted through his attorney; and because Mr.
Hessmer was still incarcerated and therefore did not have the
ability
to
interview
witnesses
or
issue
subpoenas,
or
to
communicate directly with the office of the District Attorney.
(Id. at 169, 171–72.)
In addition, the plaintiff was told by the Judge Durham during
the hearing not to contact any witnesses or potential witnesses if
the plaintiff was released on bail.
A written order was prepared
for entry by Assistant District Attorney Brian Fuller.
The
plaintiff states that on November 30, 2011, he received notice of
the “no-contact” order signed by Judge Durham (a copy of which is
attached to the complaint) but that the plaintiff was never
properly served with the order.
(See ECF No. 1, at 151–52.)
The
plaintiff asserts that Judge Durham’s failure to notify him about
the non-contact order in court was done intentionally to deny the
plaintiff of his constitutional right to object to this order in
court.
Regarding the no-contact list and the plaintiff’s inability to
post bond, it appears that the plaintiff is alleging that his
roommate, Ethan Callaghan, was wrongfully included on the list of
“potential
witnesses”
whom
the
plaintiff
was
not
allowed
to
contact, which meant that Callaghan could not continue to stay in
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the plaintiff’s house and pay rent, thereby depriving the plaintiff
of income he otherwise would have had that would have allowed him
to raise the money to post bail.
The plaintiff also alleges that
his attorney, John Michael Ivey, somehow breached his trust by
mailing a check to bondsman Danny Tidwell, also a defendant in this
action.
The plaintiff appears to be alleging that the non-contact
order and his ultimate inability to post bond is evidence of a
conspiracy among a number of individuals, including Judge Durham,
Brian Fuller, Chief Bryant, Marty McLemore and Sam Gwin, Jr., to
deprive the plaintiff of his right to be released from jail on a
bond while awaiting trial and, somehow, to deprive the plaintiff of
his home.
At a hearing on January 9, 2012, the plaintiff informed Judge
Durham of this conspiracy, but Judge Durham “denied Plaintiff’s
rights to file a civil suit, to seek post-conviction relief, to
expunge prior convictions, to apply for return of excess property,
and twice on writs of habeas corpus,” all while he was himself
allegedly
involved
in
a
conspiracy
to
steal
the
plaintiff’s
property, deprive the plaintiff of his liberty, and to prevent the
plaintiff
from
seeking
a
“huge
personal
injury
settlement.”
(Complaint, ECF No. 1, at 93.)
The plaintiff appears to be contesting the facts used to
arrest him for arson and the other recent charges.
The plaintiff
does not state whether he has actually gone to trial and been
convicted on these charges, but it appears these charges have not
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yet gone to trial.
The plaintiff complains that the evidence
against him has been exaggerated, and that the state “has used
nothing but lies and deceit to deprive Plaintiff of liberty and
property without just cause or right and have never had to stand
answerable for their . . . constitutionally illegal conduct.” (Id.
at 106.) The plaintiff asserts he has been deprived of the ability
to call witnesses in his defense because his public defender
refused to subpoena witnesses designated by the plaintiff, and that
the state also refused to serve subpoenas on his witnesses.
The
plaintiff claims he made repeated requests for “known” exculpatory
evidence from state Attorney General Robert Cooper, Jr., and from
defendants Durham, Fuller and Cather, to no avail.
(Id. at 108.)
The plaintiff claims Judge Durham is using the plaintiff’s
public defender, William Cather, to deprive the plaintiff of his
rights to conduct pretrial discovery, subpoena witnesses, file
pretrial motions, and participate in jury selection, and that
defendants
Durham
and
Cather
are
conspiring
to
deprive
the
plaintiff of his rights to a fair trial.
The plaintiff claims that in May 2011, Chief Bryant in the
Wilson County jail read and confiscated the plaintiff’s legal
papers and gave them to defendant Linda Neal, Clerk of the Wilson
County
Court.
The
plaintiff
alleges
that
defendant
Neal
intentionally failed to submit the plaintiff’s appellate court
brief and
sent the Court of Appeals a writ of coram nobis instead,
which resulted in the plaintiff’s being charged fees for filing
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papers he did not actually intend to file.
Among other forms of
relief, the plaintiff seeks to hold defendant Neal responsible for
paying the filing fees the plaintiff owes as a result of Neal’s
“false
filing
of
Plaintiff’s
pleadings,
her
obstruction
of
Plaintiff’s court access and deprivations of Plaintiff’s appellate
rights.”
(Id. at 127.)
The plaintiff alleges that, while incarcerated, he witnessed
a number of assaults at the Wilson County Jail, perpetrated by jail
officials
against
defenseless
inmates,
without
cause,
and
perpetrated by gang-bangers while jail officials looked on and did
nothing to protect the defenseless inmates.
The plaintiff alleges
he filed numerous grievances about those events, but was told he
could not file grievances for actions taken against other inmates.
He also filed a grievance against Chief Bryant for the confiscation
of his legal papers.
transferred
from
The plaintiff alleges he was thereafter
county
jail
to
“maximum
security
solitary
confinement prison” at Riverbend (based on the plaintiff’s address)
in retaliation for having filed grievances against “Jail Chief
Bryant.”
(Complaint, ECF No. 1, at 121.)
Among other relief, the
plaintiff requests an order from this court appointing him as
“ombudsman” in the county jail, to function as a “middleman between
inmates and correctional staff.”
(Id.)
The plaintiff asserts he was told by an informant that the
informant had witnessed Sheriff Ashe commit murder.
Additionally,
the plaintiff has credible information that Sheriff Ashe has
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committed kidnapping and has bilked the county and state out of
millions
of
dollars
by
buying
up
property
seized
by
county
officials and selling it at a profit, instead of insuring that the
properties are sold at public auction as required by state law.
The plaintiff alleges that he has brought this information to the
attention of the governor, who has taken no action on it.
Based on
a state statute that authorizes the governor to issue a reward of
$50,000 for information leading to the arrest and conviction of a
felon, Tenn. Code Ann. § 40-8-101, the plaintiff seeks damages from
the governor in the amount of $150,000 based on the governor’s
failure to act on the information the plaintiff has brought to his
attention.
Generally, the plaintiff seeks compensatory damages from each
of the defendants named in the complaint.
He also, however, seeks
“equitable” relief from all of them, generally in the form of: (1)
incarceration
requiring
for
the
“contempt”;
defendants
(2)
to
place
criminal
prosecution;
advertisements
in
(3)
local
newspapers announcing their alleged misdeeds publicly; (4) ousting
the defendants from public office and enjoining them from taking
public office again; and (5) enjoining the defendants from taking
any part in the plaintiff’s criminal prosecution.
With respect to
the various attorney defendants, the plaintiff asks that the
Tennessee
Board
of
Professional
initiate disbarment proceedings.
Responsibility
be
ordered
to
He also seeks reinstatement of
his right to appeal and to assert post-conviction claims in state
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court.
The complaint is signed under penalty of perjury.
133.)
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(Id. at
II.
Legal Standards
Under 28 U.S.C. § 1915A, the court must dismiss any portion of
a
civil
complaint
in
which
a
prisoner
seeks
redress
from
a
governmental entity or officer or employee of a governmental entity
that is frivolous or fails to state a claim upon which relief can
be granted.
The Sixth Circuit has confirmed that “the dismissal
standard articulated in [Ashcroft v. Iqbal, 556 U.S. 662 (2009)]
and [Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),] governs
dismissals for failure to state a claim under those statutes
because the relevant statutory language tracks the language in Rule
12(b)(6).”
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010).
Thus, to survive scrutiny under § 1915A(b)(1), “a complaint must
contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.'”
at 678 (quoting Twombly, 550 U.S. at 570).
Iqbal, 556 U.S.
“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.”
at 556).
Id. (citing Twombly, 550 U.S.
“[A] district court must (1) view the complaint in the
light most favorable to the plaintiff and (2) take all well-pleaded
factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC,
561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551
F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
“But the
district
of
court
conclusions.’”
need
not
accept
a
‘bare
assertion
legal
Id. (quoting Columbia Natural Res., Inc. v. Tatum,
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58 F.3d 1101, 1109 (6th Cir. 1995)).
“A pleading that offers
‘labels and conclusions' or ‘a formulaic recitation of the elements
of a cause of action will not do.’
it
tenders
‘naked
enhancement.’”
Nor does a complaint suffice if
assertion[s]’
devoid
of
‘further
factual
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 555, 557).
Although the undersigned recognizes that pro se pleadings are
to be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972);
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to
be ‘less stringent’ with pro se complaints does not require us to
conjure up unpled allegations.”
McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979) (citation omitted).
III. Analysis and Discussion
A.
Statute of Limitations
Because
there
is
no
applicable
“statute
of
limitations
governing § 1983 actions, ‘federal courts must borrow the statute
of limitations governing personal injury actions in the state in
which the section 1983 action was brought.’”
F.3d
707,
713–14
(6th
Cir.
2005)
(quoting
Whitehall, 344 F.3d 550, 553 (6th Cir. 2003)).
Wolfe v. Perry, 412
Banks
v.
City
of
Likewise, “[w]hen
the statute of limitations is borrowed from state law, so too are
the state’s tolling provisions, except when they are ‘inconsistent
with the federal policy underlying the cause of action under
consideration.’”
Bishop v. Children’s Ctr. for Developmental
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Enrichment, 618 F.3d 533, 537 (6th Cir. 2010) (quoting Bd. of
Regents v. Tomanio, 446 U.S. 478, 485 (1980)).
Although the
statute of limitations for § 1983 is borrowed from state law, a §
1983
action
accrues
and
the
according to federal law.
statutory
period
begins
to
run
Wallace v. Kato, 549 U.S. 384, 388
(2007). Typically, the statute of limitations for filing an action
alleging
a
constitutional
violation
begins
to
run
“when
the
plaintiff knows or has reason to know of the injury which is the
basis of his action.”
Eidson v. Tenn. Dep't of Children's Servs.,
510 F.3d 631, 635 (6th Cir. 2007) (citing Kuhnle Bros., Inc. v.
Cnty. of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)).
The statute of limitations for personal injury actions arising
in Tennessee and brought under the federal civil rights statutes is
one year. Tenn. Code Ann. § 28-3-104(a)(3); Roberson v. Tennessee,
399 F.3d 792, 794 (6th Cir. 2005).
This action was filed on June
7, 2012; thus, absent tolling, the plaintiff’s claims must have
accrued within one year of that date to avoid being barred by the
statute of limitations.
Many of the plaintiff’s claims, however,
relate to events that took place in 1999 and 2000—well before June
7, 2011. The plaintiff asserts that the statute of limitations for
those claims was tolled as a result of the head injury that he
suffered in September 1999.2
2
The plaintiff vaguely asserts that other bases for tolling might apply, including that the claims relate
to “continuing offenses,” or because of “lack of notice” or “state interference." (Complaint, ECF No. 1, at 21.)
The plaintiff does not offer any facts to support tolling on these grounds for the claims that accrued in 1999
and 2000.
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The Tennessee tolling provision in effect at the time the
plaintiff’s causes of action accrued in 1999 and 2000 stated in
pertinent part as follows:
If the person entitled to commence an action is, at the
time the cause of action accrued, . . . of unsound mind,
such person, or such person's representatives and
privies, as the case may be, may commence the action,
after the removal of such disability, within the time of
limitation for the particular cause of action. . . .
Tenn. Code Ann. § 28-1-106 (2000) (emphasis added).3
The statute
does not define “unsound mind,” but an early case construing the
statute’s predecessor applied it to an elderly woman who was found
to be “incapable of attending to any business, or of taking care of
herself.”
Porter v. Porter, 22 Tenn. (3 Hum.) 586, 589 (1842).
More recently, the Tennessee Supreme Court has held that the Porter
v. Porter standard is “still relevant to determine whether the
limitations period for a cause of action is subject to tolling.”
Sherrill v. Souder, 325 S.W.3d 584, 600 (Tenn. 2010).
The plaintiff here appears to be claiming that he was of
“unsound mind” as a result of his motorcycle accident in 1999, as
he claims he was required to learn to read and write all over
again.
Assuming that allegation is true, the plaintiff does not
indicate when the alleged disability was “removed” for purposes of
determining how long his claims were tolled.
3
The undersigned
This provision was amended effective July 1, 2011 to substitute “adjudicated incompetent” for “of
unsound mind,” and to substitute “after legal rights are restored” for “after the removal of such disability.”
2011 Tenn. Pub. Acts, c. 47, § 17. The same amendment also made it clear that it applied only to actions
that accrued on or after its effective date. See Tenn. Pub. Acts., c. 47, § 107 (“Nothing in this legislation shall
be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals
covered by the provision on the day before the date of enactment of this legislation.”).
-19-
finds, however, that the plaintiff’s history of filing pro se legal
actions in state and federal courts beginning no later than 2001
clearly demonstrates, as a matter of public record, that the
plaintiff, if he was ever “incapable of tending to any business”
and
therefore
“of
unsound
mind,”
did
not
remain
under
such
disability for very long.
Specifically, the undersigned notes that the plaintiff filed
at least two pro se civil actions in the Tennessee state courts in
2001, as evidenced by reported opinions arising from those cases.
According to the Tennessee Court of Appeals’ decision in Hessmer v.
Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003), the plaintiff
here, while he was still incarcerated, filed a pro se complaint for
divorce from his wife on August 10, 2001.
His complaint was
dismissed for failure to effect service on his wife, and Mr.
Hessmer appealed, raising a fairly sophisticated argument:
that
because he was pro se the trial court should not have dismissed his
complaint without first giving him notice of its intent to do so.
The appellate court nonetheless affirmed.
Also in 2001, Mr.
Hessmer filed a pro se civil complaint in the Circuit Court for
Davidson County, Tennessee against his mother’s treating physician
and nurse, asserting claims for malpractice and wrongful death
arising from his mother’s death.
The trial court granted summary
judgment in favor of the defendants after Mr. Hessmer was unable to
obtain affidavits to oppose the defendants’ affidavits; Mr. Hessmer
appealed, again raising a novel argument
-20-
that, because he was
incarcerated, the trial court should have appointed a “special
master” to assist him in performing tasks that he, as an imprisoned
person, was incapable of performing on his own.
Court
of
Appeals
rejected
his
argument
and
The Tennessee
affirmed
summary
judgment for the defendants.
In addition to this activity in state court, Mr. Hessmer filed
at least three pro se habeas corpus petitions and three pro se
civil actions in the United States District Court for the Middle
District of Tennessee between 2001 and 2006.
In one of these,
filed in 2001, Hessmer named Jack Lowery, Sr., an attorney also
named
as
a
defendant
in
this
action.
Hessmer
v.
Lowery,
3:01-cv-332 (M.D. Tenn.). In another case, he filed a civil action
naming many of the same defendants named here, including Wilson
County; Judges Bond, Wootten and Hamilton; Jack Lowery, Sr.;
William Cather; Linda Neal; Carrol Clemmons; Mickey Williamson;
Terry Ashe; and John Puckett.
(M.D. Tenn.).
Hessmer v. Tennessee, 3:02-CV-520
In a third suit, Hessmer v. Miranda, 3:03-CV-1197
(M.D. Tenn.), Mr. Hessmer apparently tried his luck in the federal
courts after the Tennessee Court of Appeals affirmed the dismissal
of his malpractice and wrongful death claims arising from his
mother’s death.
In
any
event,
Mr.
Hessmer’s
litigious
history
clearly
demonstrates that the plaintiff had the capacity to pursue his own
legal interests, to perform research, draft pleadings, and present
his claims to the courts no later than 2001.
-21-
If Mr. Hessmer was
rendered incapacitated by the head injury resulting from his
motorcycle
accident
in
1999,
such
disability
was
evidently
“removed,” for purposes of the incapacity statute, no later than
2001.
Although the statute of limitations is an affirmative defense,
the Court may dismiss claims sua sponte on the basis that they are
barred by the statute of limitations if the bar is apparent on the
face of the complaint.
LAL Props. v. Portage Metro Housing Auth.,
55 F.3d 1097, 1107 (6th Cir. 1995).
In this case, the claims that
accrued in 1999 and 2000 are clearly time-barred by the one-year
statute of limitations. The plaintiff’s implication that he was of
“unsound mind” is simply not supported by the allegations in the
complaint or the plaintiff’s litigation history, of which the Court
takes judicial notice.
Further, while the plaintiff alleges other
grounds for tolling, the facts as alleged do not support any other
grounds for equitably tolling the statute of limitations.
In sum, even assuming that the plaintiff’s claims that accrued
in 1999 and 2000 were tolled until 2001, the one-year statute of
limitations for those claims began to run as soon as his disability
was removed and therefore expired no later than some time in 2002.
The
undersigned
therefore
finds
that
all
claims
relating
to
incidents that occurred more than one year prior to the filing of
the present complaint are barred by the statute of limitations and
are subject to dismissal on that basis.
This includes the claims
against Judges Bond and Wootten (who are also entitled to judicial
-22-
immunity, as discussed below); Sheriff Terry Ashe; Police Officers
Puckett,
Glidewell,
and
Robinson;
attorney
Jack
Lowery,
Sr.;
probation officers Carrol Clemmons and Mickey Williamson, and their
supervisor, the “Community Corrections Director.”
The claims
against each of those defendants should be dismissed as barred by
the one-year statute of limitations.
B.
The Judge Defendants
To the extent that the plaintiff sues various state-court
judges in their individual capacities in this action, such claims
are barred because the judges are absolutely immune from suit for
damages.
See Mireles v. Waco, 502 U.S. 9, 11 (1991) (“[J]udicial
immunity
is
an
immunity
assessment of damages.”).
from
suit,
not
just
from
ultimate
State court judges are even immune from
injunctive relief, except in circumstances not relevant here.
See
42 U.S.C. § 1983 (“[I]n any action brought against a judicial
officer for an act or omission taken in such officer’s judicial
capacity,
injunctive
declaratory
decree
relief
was
shall
violated
not
or
be
granted
declaratory
unless
relief
a
was
unavailable.”); Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th Cir.
1970) (“[F]ederal courts have no authority . . . to direct state
courts or their judicial officers in the performance of their
duties.”).
Moreover, judicial immunity is not overcome by allegations
that a judge acted in bad faith or with malice.
Mireles, 502 U.S.
at 11. Rather, a judge performing judicial functions is absolutely
-23-
immune from suit even if acting erroneously, corruptly or in excess
of jurisdiction.
Id. at 12–13.
Absolute judicial immunity may be
overcome in only two instances.
First, a judge is not immune from
liability for non-judicial actions, i.e., actions not taken in the
judge’s judicial capacity.
Id. at 11.
Second, a judge is not
immune for actions, though judicial in nature, taken in complete
absence of all jurisdiction.
Id. at 12.
The plaintiff here does not allege facts that would permit him
to circumvent the absolute immunity accorded state judges under
these principles. Even if this court were able to entertain claims
for equitable relief against any of the judge defendants, the
relief
sought—“ouster
from
office
for
life,”
“criminal
prosecution,” “contempt citations,” and ordering the defendants to
take out advertisements in local newspapers “confessing [their]
actions” (see, e.g., Complaint, ECF No. 1, at 34), the district
court lacks authority to provide the relief sought.
The claims
against defendants Judges Robert P. Hamilton, David Earl Durham,
and John Thomas Gwin are subject to dismissal on the grounds that
these defendants are entitled to absolute immunity under the
circumstances presented here.
The claims against Judges John D.
Wootten, Jr., and James Oscar Bond, Sr. are barred by the statute
of limitations, and alternatively, are subject to dismissal on
immunity grounds.
Additionally, to the extent that the plaintiff sues the judges
in their official capacities, such claims are tantamount to suits
-24-
against the entities that employ them.
Several district courts
have concluded that judges in Tennessee are state officials, and
not simply officials of the counties and cities in which they
serve.
See, e.g., Berry v. Seeley, No. 2:10–CV–162, 2010 WL
5184883, at *5 (E.D. Tenn. Dec. 15, 2010); Clark v. Skahan, No.
07-2294-B/V, 2007 WL 2688553, at *3 (W.D. Tenn. Sept. 11, 2007);
see also Tenn. Const. Art. VI, § 4 (providing for the election of
judges
in
the
state);
id.
at
§
7
(establishing
judicial
compensation); Tenn. Code Ann. § 16–10–101 (“The judicial power of
the state is vested in judges of the . . . circuit courts, criminal
courts, common law and chancery courts, chancery courts, court of
appeals, and the supreme court, and other courts created by law.”).
To the extent the defendant judges are state officials, the
official-capacity claims against them are subject to dismissal on
sovereign-immunity grounds under the Eleventh Amendment.
Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); see Colvin v.
Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (Eleventh Amendment
immunity
applies
capacity).
to
state
officials
sued
in
their
official
To the extent the judges could be deemed county
officials such that Eleventh Amendment immunity does not attach,
the claims against them still fail, because an official capacity
claim against a government official must meet the custom or policy
requirement for liability stated in Monell v. Department of Social
Services, 436 U.S. 658, 690–91 (1978).
See Hafer v. Melo, 502 U.S.
21, 25 (1991) (explaining that “official capacity suits generally
-25-
represent only another way of pleading an action against an entity
of which an officer is an agent” and that “[b]ecause the real party
in interest in an official-capacity suit . . . is the governmental
entity and not the named official, the entity’s policy or custom
must have played a part in the violation of federal law” (internal
quotation marks and citations omitted)).
In this case, the
plaintiff does not allege the existence of any county-wide custom
or policy that gave rise to his claims against the individual
judges. Rather, the plaintiff’s claims are all based on particular
actions allegedly taken by the individual judges without regard to
a custom or policy of the governmental entity for which they work.
The plaintiff therefore fails to state an official capacity claim
against the defendant judges.
C.
Claims against Clerk of Court Linda Neal
The plaintiff claims that in May 2011, defendant Linda Neal,
Clerk of the Wilson County Court, intentionally failed to submit
the plaintiff’s appellate court brief and instead sent the Court of
Appeals a writ of coram nobis which the plaintiff apparently
drafted
but
did
not
intend
to
file,
which
resulted
in
the
plaintiff’s being charged for filing papers he did not actually
file.
Among other forms of relief, the plaintiff seeks to hold
defendant Neal responsible for paying the filing fees the plaintiff
owes as a result of Neal’s “false filing of Plaintiff’s pleadings,
her obstruction of Plaintiff’s court access and deprivations of
Plaintiff’s appellate rights.”
(Complaint, ECF No. 1, at 127.)
-26-
The undersigned notes as an initial matter that the claim
against defendant Neal appears to have accrued more than one year
prior to the filing of the complaint in June 2012, and that the
claim
would
therefore
limitations.
In
be
barred
addition,
by
the
however,
one
year
absolute
statute
of
quasi-judicial
immunity is extended to non-judicial officers who, like the clerk
of
court,
perform
“quasi-judicial”
duties.
“Quasi-judicial
immunity extends to those persons performing tasks so integral or
intertwined with the judicial process that these persons are
considered an arm of the judicial officer who is immune.”
Bush v.
Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (holding that probate court
administrator was entitled to quasi-judicial immunity for his role
in carrying out the orders of the court) (citing Scruggs v.
Moellering, 870 F.2d 376 (7th Cir. 1989)).
“As with absolute
judicial immunity, whether an individual is entitled to absolute
quasi-judicial immunity is determined by the function of the actor,
rather
than
actions.
the
constitutionality
and
reasonableness
of
his
Smith v. Leis, 407 F. App’x 918, 929 (6th Cir. 2011)
(citing Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007) (“Whether
an action is judicial depends on the nature and function of the
act, not the act itself.”)).
Accordingly, “a court ‘looks to the
nature of the function performed, not the identity of the actor who
performed
it.’”
Bush,
38
F.3d
at
847
(quoting
Buckley
v.
Fitzsimmons, 509 U.S. 259, 269 (1993)).
The act that the plaintiff alleges gave rise to defendant
-27-
Neal’s liability involves the filing of court documents he did not
intend for her to file, which he claims resulted in the obstruction
of his access to the courts and interference with his appellate
rights.
Because the alleged act—the filing or misfiling of court
pleadings—clearly falls within the parameters of defendant Neal’s
core functions as Clerk of Court and is completely integral to the
judicial
process,
defendant
Neal
is
entitled
to
absolute
quasi-judicial immunity.
Cf. Smith v. Shelby Cnty., Tenn., 3 F.
App’x
Cir.
436,
437–38
(6th
2001)
(affirming
application
of
quasi-judicial immunity for a court clerk in a § 1983 action
brought pro se by a prisoner who alleged that the clerk had
violated his rights by delaying adjudication of his petition for
post-conviction relief and motion to set aside guilty pleas).
The
claims against defendant Neal are therefore subject to dismissal on
that ground as well.
Additionally, to the extent the plaintiff intends to assert an
official capacity claim against defendant Neal, that claim fails,
because, again, an official capacity claim against a government
official must meet the custom or policy requirement for liability
stated in Monell v. Department of Social Services, 436 U.S. 658,
690–91 (1978). Because the plaintiff does not allege the existence
of any county-wide custom or policy that gave rise to his claims
against defendant Neal, the complaint fails to state an official
capacity claim against her.
D.
The Claims Against the State and State Officials
-28-
1.
The Plaintiff Fails to State Claims Against the
Governor and Attorney General.
The § 1983 claims against Governor Haslam and Attorney General
Cooper in their individual capacities fail because the plaintiff
has not alleged facts showing that either defendant actively
engaged in, or was even aware of, acts by other persons that
arguably violated the plaintiff’s constitutional rights.
See
Miller v. Calhoun Cnty., 408 F.3d 803, 817 n.3 (6th Cir. 2005)
(“Because § 1983 liability cannot be imposed under a theory of
respondeat superior, proof of personal involvement is required for
a supervisor to incur personal liability.”).
Moreover, to the
extent the plaintiff claims liability on the part of Governor
Haslam on the basis of Tenn. Code Ann. § 40-8-101, which authorizes
the governor “to offer a reward leading to the apprehension, arrest
and conviction of a person or persons who have committed . . . a
criminal offense in this state,” such a claim is subject to
dismissal on the grounds that it is frivolous.
2.
The State Prosecutors Are Entitled to Prosecutorial
Immunity.
The individual capacity claims against the Assistant District
Attorneys, Laura Bush and Brian Fuller, are barred under common-law
principles of absolute prosecutorial immunity insofar as the acts
for which the attorneys are sued fall within the scope of their
prosecutorial duties.
See Imbler v. Pachtman, 424 U.S. 409, 427
(1976) (holding that prosecutorial immunity encompasses immunity
-29-
from § 1983 claims).
Moreover, such immunity applies even where
the plaintiff alleges that the prosecutor has acted with malice or
dishonesty, id. at 427, or that the prosecutor knowingly presented
false testimony at trial, id. at 431 n.34.
Prosecutors also have
absolute immunity for appearances at probable cause and grand jury
hearings; evaluation of evidence and presentation of that evidence
at pre-trial and trial proceedings; and preparation of witnesses
for trial.
2003).
Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir.
The only exception to absolute immunity is that “when a
prosecutor ‘functions as an administrator rather than as an officer
of the court’ he is entitled only to qualified immunity.”
Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993) (quoting Imbler, 424 U.S.
at 431 n.33).
In this case, the plaintiff alleges that defendant Bush failed
to
take
“criminal
responsibility”
for
the
allegedly
improper
actions of Detective Bridges even after he alerted her to said
responsibility in open court, and that she had improper ex parte
communications with Judge Hamilton to persuade him to deny the
plaintiff’s motions for a copy of certain transcripts and for an
interlocutory appeal.
In the “relief” section of his complaint,
the plaintiff implies that Bush brought charges she knew were not
supported by sufficient evidence and that she knowingly used
perjured testimony and fabricated evidence.
The plaintiff also
alleges that Assistant District Attorney Fuller, in drafting and
presenting to Judge Hamilton the order barring the plaintiff from
-30-
contacting potential witnesses in his case, conspired with other
individuals to deprive the plaintiff of his right to be released
from jail on bond while awaiting trial, and also somehow to deprive
him of his home.
He alleges that defendant Fuller failed to
respond to his repeated requests for “known” exculpatory evidence
in his possession.
The plaintiff also alleges that defendant
Fuller and the plaintiff’s public defender, defendant Cather,
conspired to deprive the plaintiff of his right to a fair trial,
which is proven, he claims, by the fact that defendant Fuller was
filing answers to defense motions days before defendant Cather
actually filed the motions.
The actions alleged to have been taken by defendants Bush and
Fuller were clearly within the scope of their prosecutorial duties
and those of an advocate intimately associated with the judicial
process.
To the extent that the plaintiff alleges that defendant
Fuller was involved in a “conspiracy” to deprive the plaintiff of
his
rights,
the
undersigned
notes
that
such
allegations
are
grounded in speculation rather than actual fact, and are not plead
with sufficient specificity to state a claim upon which relief may
be granted.
The claims that defendant Bush was “criminally
responsible” for the actions of a police detective are likewise
without factual or legal foundation.
The plaintiff’s primary
complaints stem from these defendants’ actions in court, including
filing or responding to motions in the criminal court, the alleged
failure to disclose exculpatory evidence, the countenancing of
-31-
perjured testimony, and the like.
Because these actions all fall
within the scope of these defendants’ prosecutorial duties, these
defendants are immune from such claims.
The plaintiff's claims
against these defendants in their individual capacities should
therefore be dismissed.
3.
The State Is Entitled to Immunity.
The plaintiff’s claims against the State of Tennessee are
subject to dismissal because the state is not a suable entity under
§ 1983, and in any event is immune from suit pursuant to the
Eleventh Amendment.
Quern v. Jordan, 440 U.S. 332, 340–45 (1979).
The sovereign immunity protected by the Eleventh Amendment extends
to claims for injunctive relief and other forms of equitable
relief.
See Lawson v. Shelby Cnty., Tenn., 211 F.3d 331, 335 (6th
Cir. 2000) (“[T]he [Eleventh] Amendment prohibits suits against a
‘state’ in federal court whether for injunctive, declaratory or
monetary relief.”). The only exceptions to a State’s immunity are:
(1) if the State has consented to suit, or (2) if Congress has
properly abrogated a State’s immunity.
S & M Brands, Inc. v.
Cooper, 527 F.3d 500, 507 (6th Cir. 2008).
Neither of these
exceptions applies to § 1983 suits against the State of Tennessee.
See Berndt v. Tennessee, 796 F.2d 879, 881 (6th Cir. 1986) (noting
that Tennessee has not waived immunity to suits under § 1983);
Hafer v. Melo, 502 U.S. 21, 25 (1991) (reaffirming that Congress
did not abrogate states’ immunity when it passed § 1983).
4.
The Official-Capacity Claims Are Barred by the
-32-
Eleventh Amendment.
When suits are filed against state officials in their official
capacities, they “should be treated as suits against the State,”
Hafer v. Melo, 502 U.S. 21, 25 (1991), because in an action against
a state officer acting in an official capacity, “the plaintiff
seeks damages not from the individual officer, but from the entity
for which the officer is an agent.”
Pusey v. City of Youngstown,
11 F.3d 652, 657 (6th Cir. 1993). Therefore, “an official-capacity
suit is, in all respects other than name, to be treated as a suit
against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Generally, the Eleventh Amendment “bars all suits, whether for
injunctive, declaratory or monetary relief, against the state and
its departments.”
Thiokol Corp. v. Mich. Dep’t of Treasury, 987
F.2d 376, 381 (6th Cir. 1993).
An exception set forth in Ex parte
Young, however, allows for “actions against state officials sued in
their official capacity for prospective injunctive or declaratory
relief.”
Thiokol, 987 F.2d at 381 (describing the holding of Ex
parte Young, 209 U.S. 123 (1908)).
Suits for damages are not
permitted against state officials, but “a federal court can issue
prospective injunctive and declaratory relief compelling a state
official to comply with federal law . . . [because] it is beyond
dispute that federal courts have jurisdiction over suits to enjoin
state officials from interfering with federal rights.”
S & M
Brands, Inc. v. Cooper, 527 F.3d 500, 507–08 (6th Cir. 2008)
(emphasis added) (quotation marks and internal citations omitted).
-33-
The Ex parte Young exception does not, however, extend to any
retroactive relief.
Quern v. Jordan, 440 U.S. 332, 338 (1979).
Indeed, if a plaintiff’s complaint against state officials is
“based entirely on past acts and not continuing conduct that, if
stopped, would provide a remedy to them, . . . it . . . does not
come under the doctrine of Ex parte Young.”
Gean v. Hattaway, 330
F.3d 758, 776 (6th Cir. 2003) (dismissing plaintiffs’ claim for
injunctive relief from state officials after determining their
complaint was based entirely on past acts).
The Ex parte Young exception does not permit official capacity
suits against the state official defendants in this case because
the
plaintiff
declaratory
defendants
does
relief.
address
not
request
The
plaintiff's
only
past
acts
prospective
injunctive
allegations
and,
allthough
against
he
or
the
demands
equitable relief in various novel forms, the plaintiff does not
seek relief from any continuing conduct of these defendants, nor
does he seek to compel them to comply with federal law.
Because an official capacity suit is to be treated as a suit
against the entity, Kentucky v. Graham, 473 U.S. at 166, and none
of the sovereign-immunity exceptions applies to the plaintiff's
claims, the undersigned concludes that the claims against all state
officials named as defendants in their official capacities should
be dismissed.
See Grinter v. Knight, 532 F.3d 567, 572 (6th Cir.
2008) (finding that when a state has not waived its sovereign
immunity and defendants are state employees, “[t]o the extent
-34-
[defendants] are sued in their official capacities, the § 1983
claim fails.”).
Accordingly, the official capacity claims against
the Assistant District Attorneys Bush and Fuller, Attorney General
Cooper, and Governor Haslam should be dismissed.
E.
The Claims against the Public Defender
The
claims
against
William
Cather,
the
Assistant
Public
Defender who represented (and perhaps continues to represent) the
plaintiff
in
underlying
criminal
proceedings,
fail
because
defendant Cather, in his traditional role as criminal defense
counsel to the plaintiff, is not a person acting under color of
state law who is subject to suit under § 1983.
See Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act
under color of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal proceeding.”).
The plaintiff alleges liability on the part of defendant Cather
only in connection with defendant Cather’s activities as the
plaintiff’s appointed criminal defense counsel, so the exceptions
the Supreme Court and the Sixth Circuit have recognized under which
a public defender may be sued under § 1983 do not apply.
Cf.
Powers v. Hamilton Cnty. Public Defender Comm’n, 501 F.3d 592, 612
(6th Cir. 2007) (holding public defender and public defender’s
office were subject to liability under § 1983 where the allegations
supported a finding that the challenged action was administrative
in nature and also was alleged to be an unconstitutional policy or
custom), cert. denied, 555 U.S. 813 (2008).
-35-
To the extent that defendant Cather is sued in his official
capacity, those claims also fail. If he is deemed a state official
for purposes of an official-capacity suit, the claims fail because,
as set forth above, they are barred under the Eleventh Amendment.
If he is not deemed a state official, the claims still fail because
the plaintiff has not alleged that he acted pursuant to a custom or
policy for which his employer could be liable.
See Hafer v. Melo,
502 U.S. 21, 25 (1991) (explaining that “official capacity suits
generally represent only another way of pleading an action against
an entity of which an officer is an agent” and that “because the
real party in interest in an official-capacity suit . . . is the
governmental entity and not the named official, the entity’s policy
or custom must have played a part in the violation of federal law”
(internal quotation marks and citations omitted)).
therefore
fails
to
state
an
official
capacity
The plaintiff
claim
against
defendant Cather.
F.
Claims against Wilson County and the Mayor of Wilson
County
Although the plaintiff purports to name the “Wilson County
Mayor” as a defendant in both his individual and official capacity,
the plaintiff does not anywhere in the complaint reference any
personal involvement by the Mayor of Wilson County in the actions
giving rise to the plaintiff’s claims.
As stated above, it is
well-settled that a civil rights plaintiff must allege the personal
involvement of a defendant in order to state a claim against him
-36-
under 42 U.S.C. § 1983.
See, e.g., Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691–92 (1978) (Section 1983 liability cannot be based
upon a theory of respondeat superior); Taylor v. Mich. Dep’t of
Corrs., 69 F.3d 76, 81 (6th Cir. 1995) (plaintiff must allege facts
showing
that
defendant
participated,
approved
or
knowingly
acquiesced in alleged misconduct to establish liability).
Because
the plaintiff has not alleged the personal involvement of the
Wilson County Mayor, he fails to state a claim against him in his
individual capacity.
The plaintiff also purports to state a claim against the Mayor
in his official capacity, which is tantamount to a claim against
Wilson County itself, as the governmental entity that employs the
Mayor.
The
defendant.
complaint
also
names
Wilson
County
itself
as
a
The plaintiff, however, has not alleged the existence
of a custom or policy upon which the claims against Wilson County
might be premised.
against
Wilson
The complaint therefore fails to state a claim
County
or
against
the
Mayor
in
his
official
capacity, and these claims are subject to dismissal for failure to
state a claim upon which relief may be granted.
G.
Claims against Bail Bondsman Danny Tidwell
In order to state a claim under § 1983, besides “identify[ing]
a right secured by the United States Constitution,” the plaintiff
must show that this deprivation was caused “by a person acting
under color of state law.”
Russo v. City of Cincinnati, 953 F.2d
1036, 1042 (6th Cir. 1992); West v. Atkins, 487 U.S. 42, 48 (1988).
-37-
The color of state law question “is a threshold issue; there is no
liability under [§] 1983 for those not acting under color of law.”
Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
element
requires
that
“the
conduct
allegedly
causing
This
the
deprivation of [the plaintiff’s rights] be fairly attributable to
the State.”
In
order
Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982).
for
the
conduct
of
a
private
party
be
“fairly
attributable” to the State, (1) the deprivation must be caused by:
(a) the exercise of some right or privilege created by the State,
or (b) by a rule of conduct imposed by it or by a person for whom
the State is responsible; and (2) the defendant must be a person
who may fairly be said to be a state actor, either because the
person: (a) is a state official, (b) acted together with or has
obtained significant aid from state officials, or (c) performed
conduct otherwise chargeable to the State.
Id. at 937–39.
Applying these principles, most courts that have considered
the issue have held that bondsmen act under color of state law when
they act in concert with police officers or in some other way
attain state authority. See, e.g., Landry v. A-Able Bonding, Inc.,
75 F.3d 200, 204 (5th Cir. 1996) (“The majority of federal courts
that have addressed the state action issue in the context of bail
bondsmen
have
based
their
decisions
on
whether
the
bondsmen
enlisted the assistance of law enforcement officials in arresting
their principals.”); Jackson v. Pantazes, 810 F.2d 426, 429-30 (4th
Cir. 1987) (finding state action where bondsman obtained aid from
-38-
a police officer and the relationship between bondsmen and the
state was interdependent); Weaver v. James Bonding Co., 442 F.
Supp. 2d 1219, 1226 (S.D. Ala. 2006) (labeling the test of whether
bail bondsman utilized police assistance in arresting a principal
the “litmus test” for finding state action (collecting cases));
McCoy v. Johnson, 176 F.R.D. 676, 682 (N.D. Ga. 1997) (“[W]hen
bondsmen
unilaterally
apprehend
their
principals
without
any
assistance from law enforcement officials, courts have consistently
found them not to be state actors.”
(collecting cases)).
Danny Tidwell, who is apparently a private bail bondsman, is
not alleged to have engaged in any action that would justify a
conclusion that he was functioning as a state actor.
For that
reason alone, he is not subject to liability under § 1983.
In
addition, however, the plaintiff does not allege that Tidwell
engaged in any action that would give rise to liability under §
1983.
Tidwell is mentioned in the complaint only because the
plaintiff’s attorney mailed him a check that was meant to serve as
a bond or a portion thereof.
What happened to that check is not
explained in the complaint.
To
the
extent
the
plaintiff
is
attempting
to
allege
a
conspiracy among defendant Tidwell and others, including state
actors, to deprive him of the ability to be released on a bond, the
allegations are insufficiently specific to state a claim.
Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 565 (2007) (recognizing that
allegations of conspiracy must be supported by allegations of fact
-39-
that support a “plausible suggestion of conspiracy,” not merely a
“possible” one).
See also Fieger v. Cox, 524 F.3d 770, 776 (6th
Cir. 2008) (“It is ‘well-settled that conspiracy claims must be
pled with some degree of specificity and that vague and conclusory
allegations unsupported by material facts will not be sufficient to
state such a claim under § 1983.’”
826 F.2d 1534, 1538 (6th Cir. 1987)).
(quoting Gutierrez v. Lynch,
The plaintiff's allegations
of conspiracy are conclusory and speculative and are insufficient
to state a claim, regardless of whether the plaintiff states the
violation of a federal right.
In sum, the complaint contains no allegations that give rise
to a reasonable inference that defendant Tidwell was a state actor
or that he acted in concert with state actors.
Since defendant
Tidwell’s actions cannot be fairly attributed to the state, the
plaintiff's allegations fail to meet the threshold “color of law”
requirement, and the claims against defendant Tidwell are subject
to dismissal for failure to state claim upon which relief may be
granted.
H.
The Claims Against Other Private Individuals
The claims against attorney John Michael Ivey, attorney Sam
Gwin, and Trustee Marty McLemore, all private individuals, must be
dismissed on the basis that these individuals are not plausibly
alleged to have engaged in any activity “under color of state law.”
The plaintiff alleges that defendants Gwin and McLemore were
somehow involved in the same conspiracy with Danny Tidwell, along
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with several persons who may be considered to have acted under
state law, to deprive the plaintiff of his right to be released
from jail on a bond while awaiting trial and to deprive the
plaintiff of his home.
Other than the plaintiff’s completely
unsupported conjecture and speculation, he has adduced no proof
that there was such a conspiracy.
Again, as set forth above, the
allegations of a conspiracy are insufficiently specific to state a
claim.
The undersigned therefore finds that the complaint fails to
state a claim against any of these individuals under § 1983.
I.
The Claims against Detective Lee Bridges
The plaintiff alleges that Detective Bridges entered his home
illegally, without a warrant, on February 16 and 17, 2011, and
seized personal property belonging to the plaintiff, falsified his
report to indicate that he had confiscated illegal narcotics,
planted
evidence
on
the
scene,
belonging to the plaintiff.
and
seized
personal
property
The plaintiff also alleges that
Detective Bridges lied on the witness stand at a preliminary
hearing on June 16, 2011, regarding evidence found on the scene.
The plaintiff contends that each of these actions violated the
plaintiff’s constitutional rights and various state laws.
(Id. at
61–62.)
As discussed at length above, the statute of limitations for
actions under § 1983 is borrowed from the statute of limitations
governing personal injury actions in the state in which the section
-41-
1983 action was brought.
Cir. 2005).
year
Wolfe v. Perry, 412 F.3d 707, 713–14 (6th
In Tennessee, § 1983 actions are limited by the one
statute
of
limitations
found
in
Tenn.
Code
Ann.
§
28-3-104(a)(3). Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir.
2005).
Although state law establishes the statute of limitations
for § 1983 actions, federal law controls the issue of when the
limitations period accrues and begins to run. Wallace v. Kato, 549
U.S. 384, 388 (2007).
Federal law establishes that the § 1983
statute of limitations accrues when the plaintiff knew or should
have known of the injury and the cause of the injury that forms the
basis of the claim.
Campbell v. Grand Trunk W.R.R. Co., 238 F.3d
772, 775 (6th Cir. 2001).
In cases of alleged Fourth Amendment violations brought under
§ 1983, the statute of limitations begins to run on the date that
the alleged constitutional violations occurred.
at 388.
Wallace, 549 U.S.
Thus, the statute of limitations challenging an unlawful
search and seizure accrues at the time of the search and seizure.
See Harper v. Jackson, 293 F. App’x 389, 392 n.1 (6th Cir. 2008)
(“Harper's claims thus accrued on July 31, 2003, the date of the
alleged illegal search and seizure.”).
In this case, nearly all the plaintiff's § 1983 claims against
Detective Bridges are associated with the searches and seizures
that
occurred
on
February
16
and
17,
2011,
and
the
alleged
falsification of evidence and planting evidence on the scene that
occurred around the same time. The causes of action based on these
-42-
allegations accrued one year after the date the plaintiff knew or
should have known of the injuries resulting from the illegal
searches
and
the
planting
of
evidence,
and
the
statute
of
limitations for claims based on that conduct expired one year
later.
Although the plaintiff is vague as to when exactly these
actions took place, it is clear they occurred around the same time
as the searches and seizures that took place in mid-February 2011.
In fact, the only action the plaintiff alleges to have been taken
by Detective Bridges less than one year prior to the filing of the
complaint was the presentation of perjured testimony, which took
place on June 16, 2011.
Every other allegedly unlawful action
taken by Detective Bridges clearly took place more than one year
before the plaintiff filed his complaint in this case, on June 7,
2012.
Thus, the claims against Detective Bridges based upon the
allegedly illegal searches and seizures, the planting of evidence,
and the falsification of the police report associated with the
searches and seizures are time-barred.
The claim relating to the presentation of perjured testimony
on June 16, 2011 is not time-barred,
but “[i]t is well-settled
that witnesses are granted absolute immunity from suit for all
testimony
provided
in
judicial
proceedings.”
Spurlock
v.
Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999) (citing Briscoe v.
LaHue, 460 U.S. 325, 330–31 (1983)).
Thus, Detective Bridges is
completely insulated from liability for any testimony that he
provided as a witness at the preliminary hearing, “no matter how
-43-
egregious or perjurious that testimony was alleged to have been.”
Spurlock, 167 F.3d at 1001.
giving
of
allegedly
The plaintiff's claim related to the
misleading
and
false
testimony
must
be
dismissed on the grounds that Detective Bridges is immune from
liability as to that claim.
In sum, the plaintiff fails to state a claim against Detective
Bridges under 42 U.S.C. § 1983 for which relief may be granted and
all claims against him are subject to dismissal.
J.
The Claims Against Chief Bryant
The plaintiff also sues “Chief Bryant,” whom he identifies
only as having formerly been a “chief” of the Wilson County Jail
who is allegedly now serving time in a federal prison.
The
plaintiff alleges that he “f[oun]d out that Defendants Fuller,
Gwin, McLemore & Chief Bryant have contacted the bondsmen not to
sign on Plaintiff’s bond” (Complaint, ECF No.1,
at 92), and
further alleges that Assistant District Attorney Brian Fuller
“conspire[ed] with Defendants Bryant, McLemore and Gwin to deny
Plaintiff liberty on bond.”
(Id. at 93.)
The undersigned concludes that the plaintiff fails to allege
conspiracy with sufficient specificity and therefore fails to state
a claim upon which relief may be granted with regard to the
existence of an alleged conspiracy to prevent him from posting a
bond.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 565 (2007)
(recognizing that allegations of conspiracy must be supported by
allegations
of
fact
that
support
-44-
a
“plausible
suggestion
of
conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d
770, 776 (6th Cir. 2008) (“It is ‘well-settled that conspiracy
claims must be pled with some degree of specificity and that vague
and conclusory allegations unsupported by material facts will not
be sufficient to state such a claim under § 1983.’”
(quoting
Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)).
The
witnessed
plaintiff
a
also
alleges
of
assaults
number
that,
at
while
the
incarcerated,
Wilson
County
he
Jail,
perpetrated by jail officials against defenseless inmates, without
cause, and perpetrated by gang-bangers while jail officials looked
on and did nothing to protect the defenseless inmates. (Complaint,
ECF No. 1, at 120.)
The plaintiff alleges that he filed numerous
grievances about those events, but was told he could not file
grievances for actions taken against other inmates.
He also avers
that he filed a grievance against Chief Bryant for his having
confiscated the plaintiff’s legal papers. The plaintiff alleges he
was thereafter transferred from county jail to “maximum security
solitary confinement prison” at Riverbend (based on the plaintiff’s
current address) in retaliation for having filed grievances against
“Jail Chief Bryant.”
(Id. at 120.)
Among other relief, the
plaintiff requests an order from this court appointing him as
“ombudsman” in the county jail, to function as a “middleman between
inmates and correctional staff.”
(Id. at 121.)
Retaliation based upon a prisoner’s exercise of his or her
constitutional rights violates the Constitution.
-45-
Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
In order to
set forth a First Amendment retaliation claim, a plaintiff must
allege facts showing that:
(1) he was engaged in protected
conduct; (2) an adverse action was taken against him that would
deter a person of ordinary firmness from engaging in that conduct;
and (3) the adverse action was motivated, in least in part, by the
protected conduct.
Id.
In the context of a First Amendment retaliation claim, a
prisoner is expected to endure more than the average citizen, id.
at 389, and enjoys no protected right to remain incarcerated in any
specific correctional facility, Hix v. Tenn. Dep’t of Corrs., 196
F. App’x 350, 358 (6th Cir. 2006).
Where the transfer of a
prisoner might foreseeably inhibit the prisoner’s ability to access
the courts, however, or where other aggravating circumstances
suggest that the transfer is an adverse action that would deter a
person of ordinary firmness from engaging in constitutionally
protected
conduct,
a
transfer
may
rise
to
the
level
of
unconstitutional retaliation. See, e.g., Siggers-El v. Barlow, 412
F.3d 693, 704 (6th Cir. 2005).
In this case, it appears the plaintiff may be a pretrial
detainee who was being held in a county jail pending trial.
He
alleges that he was subject to a transfer to a maximum-security
prison where he was held under much more stringent conditions, in
retaliation for having filed grievances against the jail chief.
The court is required at this stage to accept the plaintiff’s
-46-
non-frivolous allegations as true and to draw all reasonable
inferences in the plaintiff’s favor.
Under the circumstances
presented, the undersigned finds that the plaintiff states a
colorable claim under 42 U.S.C. § 1983 against Chief Bryant for
retaliatory transfer in violation of the plaintiff’s constitutional
rights.
the
This claim alone should be allowed to proceed, assuming
plaintiff
is
able
to
effect
service
of
process
on
this
defendant.
The plaintiff, however, has not stated an official capacity
claim
against
Chief
Bryant,
because
he
does
not
allege
the
existence of a jail-wide or county-wide policy that resulted in his
allegedly retaliatory transfer.
K.
Potential State Law Claims
To the extent the complaint might be construed to assert state
law causes of action, such claims should be dismissed without
prejudice.
If the plaintiff has any colorable state law claims
against any defendant other than Chief Bryant, they are not closely
enough related to the one colorable claim in this action to form
part of the same case or controversy.
The court ,therefore, lacks
supplemental jurisdiction over such claims under 28 U.S.C. § 1367.
IV.
RECOMMENDATION
In light of the foregoing, the undersigned recommends as
follows:
1. That the claims against defendants Sheriff Terry
Ashe; Police Officers Puckett, Glidewell, and Robinson;
attorney Jack Lowery, Sr.; probation officers Carrol
-47-
Clemmons and Mickey Williamson, and their supervisor, the
“Community Corrections Director,” and Judges John D.
Wootten, Jr. and James Oscar Bond, Sr., be dismissed with
prejudice as barred by the one-year statute of
limitations;
2. Alternatively, that the claims against judges
John D. Wootten, Jr. and James Oscar Bond, Sr. in their
individual capacities be dismissed with prejudice because
the judges are entitled to absolute judicial immunity
from suit;
3.
That the claims against Judges Robert P.
Hamilton, David Earl Durham, and John Thomas Gwin in
their individual capacities be dismissed with prejudice
because the judges are entitled to absolute judicial
immunity;
4. That the claims against all the judges in their
official capacities be dismissed with prejudice because
these claims are tantamount to suits against the state of
Tennessee, and the state has sovereign immunity under the
Eleventh Amendment;
5.
That the individual capacity claim against
defendant Linda Neal, Clerk of the Wilson County courts,
be dismissed with prejudice because this defendant is
entitled to absolute quasi-judicial immunity from suit,
and the official capacity claim against her be dismissed
for failure to state a claim upon which relief may be
granted;
6.
That the individual capacity claims against
Governor Haslam and Attorney General Cooper be dismissed
with prejudice on the basis that the plaintiff fails to
allege facts showing that these defendants had any
individual involvement in the acts giving rise to the
claims in the complaint and because there is no
supervisory liability under 42 U.S.C. § 1983;
7. That the individual capacity claims against the
state prosecutors, Assistant District Attorneys Laura
Bush and Brian Fuller, be dismissed with prejudice
because these defendants are entitled to absolute
prosecutorial immunity from suit;
8. That the official capacity claims against all
the state-actor defendants (Governor Haslam, Attorney
General Cooper, Laura Bush, and Brian Fuller) be
-48-
dismissed with prejudice because these claims are
tantamount to suits against the state of Tennessee, and
the state has sovereign immunity under the Eleventh
Amendment;
9.
That the claims against the State itself be
dismissed with prejudice on the grounds that they are
barred by the Eleventh Amendment and because the state is
not a suable entity under § 1983;
10. That the individual capacity claims against the
Assistant Public Defender, defendant William Cather, be
dismissed with prejudice on the basis that the public
defender is not a person acting under color of state law
who is subject to liability under § 1983, and that the
official-capacity claim against the Assistant Public
Defender be dismissed without prejudice for failure to
state a claim upon which relief may be granted;
11. That the claims against the Wilson County Mayor
in his individual capacity be dismissed with prejudice
because the plaintiff has not alleged facts showing that
the Wilson County Mayor was individually involved in any
action giving rise to the claims in his complaint;
12.
That the claims against Wilson County and
against the Mayor of Wilson County in his official
capacity be dismissed with prejudice because the
plaintiff has not alleged the existence of a custom or
policy upon which the claims against Wilson County might
be premised, and the complaint therefore fails state a
claim upon which relief may be granted;
13. That the § 1983 claims against defendants Danny
Tidwell, John Michael Ivey, Sam Gwin, and Marty McLemore
be dismissed with prejudice on the grounds that these
defendants are all private individuals who are not state
actors and therefore may not be sued under § 1983;
14.
That the individual capacity and official
capacity claims against Detective Lee Bridges based on
actions that took place in or around February 2011 be
dismissed with prejudice on the basis that they are
barred by the statute of limitations; that the individual
capacity claims based on this defendant’s allegedly
giving perjured testimony in court be dismissed with
prejudice on the grounds of absolute immunity; and that
the official capacity claims based on the same action be
dismissed for failure to state a claim upon which relief
-49-
may be granted;
15.
That the conspiracy claims against “Chief
Bryant” be dismissed with prejudice on the grounds that
the claims are plead with insufficient specificity to
state a claim upon which relief may be granted;
16.
That the claim against Chief Bryant in
individual
capacity
for
retaliatory
transfer
permitted, at this stage, to proceed, but that
official capacity claim be dismissed with prejudice
failure to state a claim upon which relief may
granted; and
his
be
the
for
be
17.
To the extent that the complaint might be
construed to assert state law claims, that all such
claims be dismissed without prejudice.
The
undersigned
therefore
recommends
that
the
Clerk
be
instructed to send the plaintiff a service packet (a blank summons
and USM 285 form) for defendant Chief Bryant only, and that the
plaintiff be directed to complete the service packet for this
defendant and return it to the Clerk’s Office within 30 days so
that process may issue.
The plaintiff has fourteen days from receipt of the Report and
Recommendation in which to file any written objections to it with
the District Court.
Fed. R. Civ. P. 72(b)(2).
Failure to file
specific objections within fourteen days of receipt of this Report
and Recommendation can constitute a waiver of further appeal of
this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985); Cowherd
v. Millon, 380 F.3d 909, 912 (6th Cir. 2004) (en banc).
E. CLIFTON KNOWLES
United States Magistrate Judge
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