Krinks et al v. Haslam et al

Filing 76

REPORT AND RECOMMENDATION: For the foregoing reasons, Governor Haslam and the John Doe Defendants should be dismissed from this action. Counts III, IV, and VI have previously been dismissed. Counts I, V, VIII and IX should be dismissed following t he Sixth Circuit's holding in Occupy Nashville. Counts II and VII should be dismissed because the Plaintiffs have not established these claims. Therefore, Defendants' Motion for Summary Judgment (Docket No. 65 ) should be GRANTED. Signed by Magistrate Judge Jeffery S. Frensley on 5/9/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LINDSAY GLENN KRINKS, et al.,
Plaintiffs,
v.
WILLIAM EDWARD (Bill) HASLAM,
et al.,
Defendants.

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Case No. 3:12-cv-01095
Judge Trauger/Frensley

REPORT AND RECOMMENDATION
I. Background
This matter is before the Court upon Defendants’ Motion for Summary Judgment.
Docket No. 65. Defendants have also filed a “Concise Statement of Undisputed Facts” (Docket
No. 66) and a supporting Memorandum of Law (Docket No. 67). A brief summary of the facts,
which are undisputed, will be helpful context for this Report and Recommendation.
Unless otherwise noted, the following is taken from the Concise Statement of Undisputed
Facts or other submissions of the Parties. This matter arose from the events surrounding the
“Occupy Nashville” protests, in which protesters “occupied” War Memorial Plaza (“the Plaza”)
in downtown Nashville day and night for several weeks in October 2011. Protesters set up tents
and brought other camping-related items to the Plaza, where some of them ate, slept, and
conducted other activities necessary to daily living. On October 27, 2011, Tennessee Governor
Haslam issued curfew and permit requirements related to the use of the Plaza (the “Use Policy”).
On October 26, 2011, representatives of the protesters had met with state officials (including
Defendant Cates) to report safety issues and request additional security, as well as bathrooms and
other hygiene facilities, which they requested the state furnish at its own expense. The state had

also received other reports of safety concerns, theft, and sanitation issues. Defendant Cates told
the protesters that they would be granted use permits on a day to day basis with reasonable
conditions. Through their attorney, the protesters informed state officials that they would not
voluntarily leave the Plaza at night. At around 3:00 a.m. on October 28, 2011, pursuant to the
Use Policy, Tennessee State Troopers arrested those people who remained on the Plaza after the
troopers warned them that they had to leave and gave them ten minutes to vacate. All persons
who remained on the Plaza were arrested. On October 29, 2011, substantially the same sequence
of events occurred. On both nights, after the Plaza was cleared of all people (because they had
either chosen to leave or had been arrested), State officials removed all items (including tents,
sleeping bags, and other items used for overnight occupation) from the Plaza and transported
them to another location for safekeeping. Later, all items were returned.
Some of the protesters then filed suit, alleging that the arrests violated their rights under
the United States Constitution. One such suit, filed on October 31, 2011, ultimately resulted in
an Opinion from the Court of Appeals for the Sixth Circuit styled Occupy Nashville, et al. v.
Haslam, 769 F.3d 434 (6th Cir. 2014). The protesters alleged, inter alia, violation of their rights
under the First, Fourth, Fifth, and Fourteenth Amendments, naming as defendants Governor Bill
Haslam, William Gibbons (Commissioner of the Tennessee Department of Safety and Homeland
Security) Steven Cates (Commissioner of the Tennessee Department of General Services) and
the troopers, who, being unknown, were sued as “Tennessee Highway Patrol Officers Does 1210.” Occupy Nashville, 769 F.3d at 434, 439-40.

The Sixth Circuit found that “the State

Officials’ conduct was objectively reasonable under the circumstances,” and thus that the
Officials were “entitled to qualified immunity for their actions.” Id. at 446. The Sixth Circuit
further found that:
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Our qualified immunity conclusion also necessarily extends to the
Protesters’ claims that their Fourth and Fourteenth Amendment
rights were violated. Again, the most that can be said for the
Protesters’ argument is that it is unclear that the law forbade their
arrest and that they had any liberty interest that could be infringed
by an alleged failure to provide adequate procedural protections.
Id.
Occupy Nashville and the case at bar arise from the same events in October 2011, share
the same Defendants, and are identical in their claims with the exception of a claim for First
Amendment retaliation, present in the instant matter and not in Occupy Nashville. Compare
Docket No. 1 (Complaint) and Occupy Nashville, supra.
All but two of the original Plaintiffs in this case have since dismissed their claims. See
Docket Nos. 28, 43. The two remaining Plaintiffs, Christopher Humphrey and Michael Custer,
have not responded to the instant Motion. Indeed, it appears that Mr. Humphrey and Mr. Custer
cannot be located. See Docket No. 54, ordering that the case be administratively closed due to
inability to locate Mr. Humphrey or Mr. Custer. The Court ordered Plaintiffs to come forward
either with new representation or to indicate that they intend to proceed pro se, but Plaintiffs
have not done so. See Docket Nos. 47, 48. It is therefore understood that Plaintiffs have not
responded to any of the arguments, discussed below, that Defendants make in their Motion or
supporting documents. Defendants previously moved for the case to be re-opened in order that
they might file this Motion for Summary Judgment, and the Court granted that Motion and
reopened the case. See Docket Nos. 62, 63.
II. Analysis
A. Local Rules 7.01(b) and 56.01(c) and (g)
Local Rule 7.01(b) states, in pertinent part:
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b. Response. Each party opposing a motion shall serve and file a
response, memorandum, affidavits and other responsive material
not later than fourteen (14) days after service of the motion,
except, that in cases of a motion for summary judgment, that time
shall be twenty-one (21) days after service of the motion, unless
otherwise ordered by the Court. Failure to file a timely response
shall indicate that there is no opposition to the motion.
Defendants filed the instant Motion on June 2, 2016. Docket No. 65. Plaintiffs have
failed to respond to Defendants’ Motion.
Additionally, with respect to Motions for Summary Judgment specifically, Local Rules
65.01(c) and (g) state, in pertinent part:
c. Response to Statement of Facts. Any party opposing the
motion for summary judgment must respond to each fact set forth
by the movant by either (i) agreeing that the fact is undisputed; (ii)
agreeing that the fact is undisputed for the purpose of ruling on the
motion for summary judgment only; or (iii) demonstrating that the
fact is disputed. Each disputed fact must be supported by a citation
to the record. . . .
...
g. Failure to Respond. Failure to respond to moving party’s
statement of material facts, or a non-moving party’s statement of
additional facts, within the time periods provided by these Rules
shall indicate that the asserted facts are not disputed for the
purposes of summary judgment.
Plaintiffs have failed to respond to Defendants’ Concise Statement of Undisputed Facts
or file their own Statement of Material Facts. Pursuant to Local Rule 56.01(g), Plaintiff’s failure
to respond indicates “that the asserted facts are not disputed for the purposes of summary
judgment.” Even if Plaintiffs are considered to be proceeding pro se at this time (pro se
pleadings should be held to less stringent standards, see, e.g., Williams v. Curtin, 631 F.3d 380
(6th Cir. 2011)), pro se litigants are not exempt from the requirements of the Federal Rules of
Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Accordingly, there are no
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genuine issues as to any material fact, and all that remains to be determined is whether
Defendants are entitled to a judgment as a matter of law.
B. Motion for Summary Judgment
It would be inappropriate to grant Defendants’ Motion solely on the ground that Plaintiffs
have failed to respond. See Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir.
1998). As the Court of Appeals for the Sixth Circuit has stated:
[A] district court cannot grant summary judgment in favor of the
movant simply because the adverse party has not responded. The
Court is required, at a minimum, to examine the movant’s Motion
for Summary Judgment to ensure that he has discharged [his
initial] burden . . . . The federal rules require that the party filing a
Motion for Summary Judgment “always bears the burden of
demonstrating the absence of a genuine issue as to a material fact.”
Id. (citations omitted). The Court will, therefore, consider whether Defendants’ have met their
burden under the appropriate summary judgment standards discussed below.
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” A dispute is “genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106. S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
In order to prevail on a motion for summary judgment, the moving party must meet the
burden of proving the absence of a genuine issue as to material fact concerning an essential
element of the opposing party’s claim. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553, 91 L. Ed. 2d 265 (1986); Street v. J.C. Bradford & Co., 886 F. 2d 1472, 1477 (6th Cir.
1989). In determining whether the moving party has met its burden, the Court must view the
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evidence in the light most favorable to the nonmoving party. Matsushita Electric Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Fed. R. Civ. P. 56 provides that the nonmoving party may not rest upon the mere
allegations or denials of his or her pleadings; rather, his or her response, by affidavits or
otherwise, must set forth specific facts showing that there is a genuine issue for trial. If a
nonmoving party, however, fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial, there is no genuine issue as to any material fact because a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial. Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552, 91 L. Ed. 2d at 273. When this
occurs, the moving party is entitled to summary judgment as a matter of law. Id.; Williams v.
Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir. 1999).
C. Dismissal of Defendant Haslam
Defendants argue that Governor Haslam should be dismissed as a Defendant. Docket
No. 67, p. 3. Defendants point out that Plaintiffs’ claims against Governor Haslam (and all other
Defendants) for declaratory relief and injunctive relief have been dismissed, and the only
remaining claim against Governor Haslam is a claim for “[r]eturn of all seized items.” Id., citing
Docket No. 1, p. 28, and Docket Nos. 26, 27. As noted above, Plaintiffs have not responded to
this or any other argument in the Motion.
Plaintiffs’ claims for declaratory and injunctive relief have been dismissed. Docket Nos.
26, 27. Regarding the property removed from the Plaza, it is undisputed that:
The intent was to store the property in a secure location for safekeeping, not to seize the property for any law enforcement purpose
or to keep it for any reason. The intent was always to return the
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property. All of the property that was removed was returned.
No one from the Governor’s office was involved in the removal
or return of the property. Neither the Department of Safety nor
the Department of General Services have any of the property that
was removed. Neither Commissioner Cates nor Commissioner
Gibbons were personally involved in the removal or return of the
property.
Docket No. 66, ¶ 40, citations and response prompt omitted, emphasis added.
As it is now undisputed that all of the property that was removed was returned, the claim
for return of seized items should be dismissed as moot. As there are no other extant claims
against him, Governor Haslam should be dismissed as a Defendant.
D. Dismissal of “John Doe” Defendants
Defendants argue that the “John Doe” trooper Defendants should be dismissed because,
having not yet been identified and served with process, the action against them has not been
properly commenced, and the statute of limitations has run on any civil rights claims that
Plaintiffs have attempted to bring against them. Docket No. 67, p. 3-4.
As described above, the events that led to this action took place in October, 2011. See
Docket No. 1. The statute of limitations has thus run on claims against the John Doe Defendants.
See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) (amendment to identify John Doe officers
did not relate back, where statute of limitations had run); Jackson v. Richards Med. Co., 961 F.2d
575, 578 (6th Cir. 1992) (one-year statute of limitations in Tenn. Code. Ann. § 28-3-104(a)(1)
applies to § 1983 claims arising in Tennessee); see also Gibson-Holmes v. Fifth Third Bank, 661
F. Supp. 2d 905, 912 (M.D. Tenn. 2009). The statute has run as to the John Doe troopers, and
thus the claims against them are time-barred and should be dismissed.

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E. Previously Dismissed Counts
The Complaint contains nine separate Counts. See Docket No. 1. Of these, the Court has
already dismissed Counts III and IV (Violations of the Tennessee Constitution) and VI
(Violation of the Tennessee Uniform Administrative Procedures Act). Docket Nos. 26, 27.
F. Counts Subject to Stare Decisis
Defendants maintain that the Complaint in this case is “almost identical to” and “based
on the exact same facts as” the Complaint filed in Occupy Nashville, supra, and thus that the
Court should make the same findings here with regard to Count I (Violation of First Amendment
Rights to Free Speech and Assembly), Count V (Violation of Fourteenth Amendment Due
Process) and Count VIII (Unlawful Arrest). Docket No. 67, p. 4-5, 7-8, 10. Defendants argue
that because the Court of Appeals for the Sixth Circuit determined in Occupy Nashville that
Defendants are entitled to qualified immunity from damages claims arising from alleged
violations of the First, Fourth, and Fourteenth Amendment violations, stare decisis requires the
Court to find that Defendants are entitled to the same immunity in the case at bar. Id.
Stare decisis, defined by Black’s Law Dictionary (9th ed. 2009) as “the doctrine of
precedence, under which a court must follow earlier decisions when the same points arise again
in litigation,” is well-established in the Sixth Circuit. See, e.g., Sandusky Mall Co. v. NLRBI,
242 F.3d 682 (6th Cir. 2001); Kermin v. C.I.R., 713 F.3d 849 (6th Cir. 2013). The Sixth
Circuit’s holding providing qualified immunity for the Defendants against First, Fourth, and
Fourteenth Amendment claims under identical facts is clear. See Occupy Nashville, 769 F.3d at
445-46. This Court should therefore also find that Defendants have qualified immunity and
dismiss Counts I, V, and VIII. Although the plaintiffs in Occupy Nashville did not, as Plaintiffs
here do, allege First Amendment retaliation, it follows from the Sixth Circuit’s holding regarding
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the Occupy Plaintiffs’ First Amendment claims (that the constitutional right at issue – the right to
“indefinite occupation of a public park” – was not clearly established by Supreme Court
precedent) that Count IX should also be dismissed under stare decisis. See Occupy Nashville,
769 F.3d at 444.
G. Remaining Counts
Remaining before the Court are Counts II (Selective Enforcement) and VII (Unlawful
Search and Seizure of Personal Property).
1. Count II (Selective Enforcement)
Defendants argue that, under the selective prosecution analysis held by the Sixth Circuit
as the proper standard to apply to cases of selective enforcement, a claimant “must demonstrate
that the challenged law enforcement practice had a discriminatory effect and was motivated by a
discriminatory purpose.” Docket No. 65, p. 6, emphasis in original, internal citation omitted.
Defendants argue that Plaintiffs cannot satisfy these elements. Id. at 5-7.
To sustain a selective enforcement claim, Plaintiffs must show that similarly situated
individuals were treated differently. See, e.g., Silver v. Franklin Twp. Bd. of Zoning Appeals,
966 F.2d 1031, 1036-37 (6th Cir. 1992). Here, the undisputed facts are that all persons on the
Plaza on October 28 and 29, 2011 who did not leave after being warned were arrested, and that
there were no such persons who were not arrested. Docket No. 66, ¶¶ 34-36. Further, Plaintiffs
have not provided evidence that Defendants’ actions were motivated by a discriminatory
purpose. See i.d., ¶¶ 41-43 (Plaintiffs did not respond, other than by objecting, to discovery
requests seeking, inter alia, “all facts, including identification of witnesses and documents which
support your claim that the Use Policy was implemented for purposes of denying First

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Amendment rights.”) As can be seen, Plaintiffs have not established a claim of selective
enforcement, and Count II should be dismissed.
2. Count VII (Unlawful Search and Seizure of Personal Property)
Defendants contend that Plaintiffs’ request for the return of property is moot, as it is
undisputed that all property that was removed from War Memorial Plaza was returned. Docket
No. 67, p. 8, citing Docket No. 66, ¶ 37-40. Regarding Plaintiffs’ claim for damages related to
seizure of personal property, Defendants argue that they are entitled to qualified immunity
because there was no “seizure” for evidence gathering, as contemplated by the Fourth
Amendment; instead, the property was removed for safe-keeping. Id. at 8, citing Docket No. 66,
¶37-40, 47. Defendants also argue that Defendants Cates and Gibbons were not personally
involved in the removal or return of property, and that Plaintiffs have not shown a “‘causal
connection between the misconduct complained of and the official sued.’” Id. at 9, quoting
Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1983). Further, Defendants maintain
that any potential claim for negligence related to lost or destroyed property would only be
properly brought against the State of Tennessee in the Claims Commission, as Defendants are
immune to such claims. Id. at 9-10, citing Tenn. Code Ann. § 9-8-307(h).
The following facts regarding personal property that was removed from the Plaza are
undisputed:
After the arrests, on both nights, David Carpenter and his crew
went all across the Plaza to remove items on the Plaza, put them
into large trash bags, mark the trash bags and move the trash bags
to a safe location. They tried to keep everything that had been in
one spot together.
The property was taken to the parking garage underneath the
Legislative Plaza.
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The property was returned. David Carpenter loaded the property
into a truck and parked the truck at one of the street entrances to
the Legislative Plaza. Occupy Nashville participants unloaded the
property from the truck and took it back to the War Memorial
Plaza. Some of the property was wet, so Occupy Nashville
participants took that property to a place to dry it out. Occupy
Nashville put the property on the sidewalk, then loaded it onto
another truck to either take it to be dried out or transferred back to
the Plaza.
The intent was to store the property in a secure location for safekeeping, not to seize the property for any law enforcement purpose
or to keep it for any reason. The intent was always to return the
property. All of the property that was removed was returned. No
one from the Governor’s office was involved in the removal or
return of the property. Neither the Department of Safety nor the
Department of General Services have any of the property that was
removed. Neither Commissioner Cates nor Commissioner
Gibbons were personally involved in the removal or return of the
property.
Docket No. 66, ¶37-40 (internal citations and response prompts omitted).
As it is undisputed that all personal property that was removed has been returned,
Plaintiffs’ claim for return of such property is moot. Regarding Plaintiffs’ claim for damages
related to removal of property, the Court has previously held that:
With respect to Cates and Gibbons, (1) the plaintiffs’ official
capacity claims under federal law (Counts I, II, V, VII (as to a
Fourth Amendment violation), VIII, and IX) will proceed, to the
extent they seek relief other than monetary damages and
declaratory and injunctive relief; (2) the plaintiffs’ individual
capacity claims under federal law will proceed, to the extent that
the plaintiffs seek relief other than declaratory and injunctive
relief.
Docket No. 26, p. 10.
Related to Count VII, the relief sought from Defendants Cates and Gibbons is
declaratory, injunctive, for monetary (including punitive and compensatory) damages, and for
“return of all seized items.” See Docket No. 1, p. 28-29. As previously discussed, Governor
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Haslam and the John Doe troopers should be dismissed as Defendants. Thus, the only relief still
potentially available is monetary damages for claims brought against Defendants Cates and
Gibbons in their individual capacities.
In order to maintain a liability claim under 42 U.S.C. § 1983, Plaintiffs may not rely upon
respondeat superior. Polk County v. Dodson, 454 U.S. 312, 325 (1981). In order for Defendants
to be held liable in their individual capacities, Plaintiffs must demonstrate that the each
Defendant personally condoned, encouraged, or participated in the allegedly unconstitutional
conduct. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (citations omitted). At a minimum,
Plaintiffs must show that the Defendants “at least implicitly authorized, approved or knowingly
acquiesced in” the misconduct. Hays v. Jefferson County, 668 F.2d 869, 872-74 (6th Cir. 1982).
It is now undisputed that Defendants Cates and Gibbons were not personally involved in the
removal or return of Plaintiffs’ property. Docket No. 66, ¶ 116-119. Further, Plaintiffs have not
provided evidence that Defendant Cates or Defendant Gibbons condoned or encouraged the
specific conduct of taking the Plaintiffs’ possessions in a way that would give rise to personal
liability under 42 U.S.C. § 1983.
Because Plaintiffs cannot establish the necessary connection to establish Defendants’
liability, the Court need not address Defendants’ other arguments, including Defendants’
analysis of the claim’s Fourth Amendment implications. See, e.g., Pearson v. Callahan, 555
U.S. 223, 129 S. Ct. 308 (2009) (“the older, wiser judicial counsel not to pass on questions of
constitutionality unless such adjudication is unavoidable”) (internal citation and quotation marks
omitted); Bowman v. Tenn. Valley Auth., 744 F.2d 1207, 1211 (6th Cir. 1984) (“we follow the
longstanding practice of the Supreme Court . . . [in declining] to decide questions of a

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constitutional nature unless absolutely necessary to a decision of the case,”) (quotation marks
and citation omitted).
III. CONCLUSION
For the foregoing reasons, Governor Haslam and the John Doe Defendants should be
dismissed from this action. Counts III, IV, and VI have previously been dismissed. Counts I, V,
VIII and IX should be dismissed following the Sixth Circuit’s holding in Occupy Nashville.
Counts II and VII should be dismissed because the Plaintiffs have not established these claims.
Therefore, Defendants’ Motion for Summary Judgment (Docket No. 65) should be GRANTED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

___________________________________
JEFFERY S. FRENSLEY
United States Magistrate Judge

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