Budget Charters, Inc. v. Pitts et al

Filing 59

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 4/11/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BUDGET CHARTERS, INC., and
ALLEN NEWCOMER,
Plaintiffs,
v.
IVAN PITTS, in his individual capacity as
a Tennessee State Highway Patrolman;
WILLIAM MATSUNAGA, in his individual
capacity as a Tennessee State Highway
Patrolman; BOBBY BARKER, in his
individual capacity as a Tennessee State
Highway Patrolman; RONNIE SIMMONS,
in his individual capacity as a Tennessee
State Highway Patrolman; KENT NORRIS,
in his individual capacity as a Tennessee
State Highway Patrolman; BILL GIBBONS,
in his individual capacity; DAVID W.
PURKEY, in his official capacity as
COMMISSIONER, TENNESSEE
DEPARTMENT OF SAFETY AND
HOMELAND SECURITY; RICHARD
ROBERTS, in his individual capacity; and
DAVID GERREGANO, in his official
capacity as COMMISSIONER,
TENNESSEE DEPARTMENT OF
REVENUE,
Defendants.

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Case No. 3:17-cv-722
Judge Aleta A. Trauger

MEMORANDUM
Defendants Richard Roberts and Bill Gibbons, in their individual capacities, and Ivan
Pitts, William Matsunaga, Tennessee Department of Safety and Homeland Security (“TDSHS”)
Commissioner David W. Purkey, and Tennessee Department of Revenue (“TDR”)
Commissioner David Gerregano, in their official capacities, have filed a Motion to Dismiss
Third Amended Complaint (Docket No. 44), to which Budget Charters, Inc. (“Budget”) and

Allen Newcomer have filed a Response (Docket No. 49). Defendants Bobby Barker, Ronnie
Simmons, and Kent Norris, in their official capacities, have also filed a Motion to Dismiss Third
Amended Complaint (Docket No. 56), to which Budget and Newcomer have filed a Response
(Docket No. 58). For the reasons set forth herein, Roberts, Gibbons, Pitts, Matsunaga, Purkey,
and Gerregano’s motion will be granted in part and denied in part, and the motion filed by
Barker, Simmons, and Norris will be granted. The court will dismiss all claims against Roberts
and Gibbons, as well as all claims for damages against Pitts, Matsunaga, Barker, Simmons, and
Norris in their official capacities. All other claims against Pitts, Matsunaga, Barker, Simmons,
and Norris, as well as the claims against Purkey and Gerregano in their official capacities, will
remain pending.
I. BACKGROUND & PROCEDURAL HISTORY 1
Budget Charters, Inc. (“Budget”) operates charter buses. It is based in Pennsylvania and
owned by Gary and Natalie Shimshock. (Docket No. 41 ¶ 1.) Allen Newcomer is a driver
employed by Budget. (Id.) On April 21, 2016, Newcomer was operating a Budget bus in
Davidson County, Tennessee, in connection with a trip chartered by a group consisting primarily
of high school students. (Id. ¶¶ 11–13.) While the students were in a museum at Nashville’s
Centennial Park, Newcomer waited on a park bench reading a book until he was approached by
three members of the Tennessee State Highway Patrol (“TSHP”), Sergeant Ronnie Simmons,
Sergeant Kent Norris, and Trooper Bobby Barker. Budget and Newcomer maintain that
Newcomer had given the patrolmen no basis for reasonable suspicion of any illegal activity and
that Budget’s bus had no obvious safety problems. Barker, Simmons, and Norris nevertheless

1

The facts are taken from Budget and Newcomer’s Third Amended Complaint (Docket No. 41) and are
accepted as true for the purposes of the Motions to Dismiss.

2

“told Plaintiff Newcomer that they wanted to examine the bus” to perform a safety inspection.
(Id. ¶ 14.)
Upon performing their inspection, the patrolmen informed Newcomer that they had
concluded that one of the bus’s tires was in unsafe condition. One of the patrolmen placed a red
tag on the bus, indicating that it could not lawfully be moved. (Id. ¶ 15.) Newcomer telephoned
Gary Shimshock, and Shimshock spoke to one of the patrolmen about the situation. Shimshock
requested that Newcomer be allowed to drive the bus to a nearby tire store or service station to
purchase a new tire or install a spare, but the patrolmen rejected Shimshock’s suggestions. (Id. ¶
16.) Eventually, Newcomer’s student passengers began returning to the bus from the museum.
The patrolmen warned the passengers that the bus was extremely unsafe and prevented them
from reboarding. (Id. ¶ 17.) At some point shortly thereafter, however, Simmons and Norris
concluded—the plaintiffs claim, correctly—that the tire in question was not, in fact, unsafe and
that the red tag could be removed. (Id.)
Despite the red tag’s being removed, Barker announced that he intended to follow the bus
back to the passengers’ hotel, where he would continue the safety inspection. (Id. ¶ 18.) The
patrolmen also retained Newcomer’s log book, medical certifications, and driver’s license, as
well as the bus’s registration. (Id.) Newcomer began driving the bus to the hotel, but, while on
Briley Parkway, the bus’s engine began to overheat due to a broken hose clamp. The overheating
triggered a mechanism that caused the bus’s engine to shut down momentarily, although the
overheating did not fully disable the bus, which remained capable of restarting and continuing on
to its destination. Apparently detecting that something was amiss, Barker turned on his vehicle’s
blue lights, requiring Newcomer to pull the bus to the side of the road. (Id. ¶¶ 21–22.)

3

Newcomer got off the bus. (Id.) Meanwhile, Trooper Ivan Pitts and Lieutenant William
Matsunaga were called to the scene. (Id. ¶¶ 23–25.) Pitts performed alcohol field sobriety tests
on Newcomer, which did not suggest that he had been consuming alcohol. Newcomer did admit,
however, that he possessed Vicodin, for which he had a prescription related to a herniated disc,
and that he had taken one Vicodin pill the day before. The patrolmen informed Newcomer’s
passengers that Newcomer was under the influence of drugs and was under arrest and that the
passengers, therefore, would have to find some other way to reach the hotel. (Id. ¶ 23.)
After arresting Newcomer, Pitts and Matsunaga attempted to have him submit to a jailadministered drug screen. Newcomer, however, had been in intermittent contact with Shimshock
throughout the encounter with the patrolmen, and Shimshock insisted that the drug screen be
performed by a third party. Quest Diagnostics (“Quest”) performed a drug screen on Newcomer
at 3:25 p.m., a bit over four hours after the bus had been pulled over. The Quest testing was
negative for all covered drugs, as was corroborative screening performed later by the Tennessee
Bureau of Investigation. (Id. ¶¶ 21–27.)
Nevertheless, Newcomer was taken before a night commissioner and charged with
unlawful use of drug paraphernalia, unlawful possession of a controlled substance, and driving
under the influence—related, apparently, to Newcomer’s possession of the prescribed Vicodin
and the presence of a straw on the bus. (Id. ¶¶ 28–29.) The night commissioner relied on an
affidavit from Pitts, claiming that he observed Newcomer as having “a white powdery substance
in his nostrils.” Matsunaga was listed as the arresting officer. (Id.) Newcomer maintains that
none of the troopers mentioned any white powdery substance to him during his initial interaction
with them outside the museum; that there had not, in fact, been any white powdery substance on
his face or shirt; and that there had been numerous straws left on the bus by students who had

4

been using them with their beverages. (Id. ¶ 30.) Newcomer was taken to jail for the night, and
Gary and Natalie Shimshock posted his bail the next day. (Id. ¶ 31.)
The State eventually entered a nolle prosequi on all of the charges against Newcomer,
and they were expunged—but only after a number of local Pennsylvania news stories about the
incident, including reports mentioning Newcomer and Budget by name. (Id. ¶¶ 33–34.) Budget
claims to have lost a substantial amount of business because of the negative publicity
surrounding the arrest and to have been forced to expend a significant amount of money on a
public relations company to attempt to salvage its reputation. Budget also had to pay for another
bus company to take Newcomer’s passengers to their hotel after Newcomer was arrested, and it
was forced to defend itself in a lawsuit from the passengers’ organization. (Id. ¶ 35.)
The plaintiffs now maintain that the patrolmen’s treatment of Newcomer was part of a
broader pattern of targeting and harassing out-of-state tour buses—a pattern that Gary
Shimshock learned about from a representative of the Tennessee Motor Coaches Association
(“TMCA”). The TMCA representative apparently singled out some or all of the defendant
patrolmen as involved in that practice. (Id. ¶¶ 26, 36, 51.) The plaintiffs allege that former
TDSHS Commissioner Bill Gibbons and former TDR Commissioner Richard Roberts failed in
their respective duties, under Tenn. Code Ann. § 65-15-101, 2 to adequately oversee the TSHP,
leading to widespread disregard of TSHP’s statutory and constitutional responsibilities. (Id. ¶¶
38–42.) The plaintiffs fault Gibbons and Roberts—as well as their successors, Purkey and
Gerregano—for having failed to promulgate regulations that would have prevented the
patrolmen’s treatment of Newcomer. (Id. ¶¶ 41–43.)
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Section 65-15-101 “confer[s] upon the department of revenue and the department of safety the power
and authority, and mak[es] it the duty of the department of revenue and the department of safety to
supervise and regulate the transportation of persons and property by motor vehicle over or upon the public
highways of [Tennessee], and to supervise and regulate certain businesses closely allied with such motor
transportation, so as to” effect certain identified purposes. Tenn. Code Ann. § 65-15-101(a).

5

On April 19, 2017, Budget and Newcomer filed their initial Complaint, alleging various
constitutional and statutory violations related to the search and seizure of the bus and the arrest
of Newcomer. (Docket No. 1.) In the original Complaint, the only patrolmen named by the
plaintiffs were Pitts and Matsunaga. The plaintiffs also named Purkey and Gerregano, but not
Gibbons or Roberts. (Id. at 1.) The named defendants filed a Motion to Dismiss (Docket No. 7)
noting, among other things, that Gerregano had not been in office when the events at issue took
place. (Docket No. 8 at 2.) On May 19, 2017, the plaintiffs filed a First Amended Complaint,
adding Gibbons and Roberts as defendants in their individual capacities. (Docket No. 11.) The
court denied the pending Motion to Dismiss as moot in light of the original Complaint’s having
been superseded by the First Amended Complaint. (Docket No. 13.) The defendants filed a fresh
Motion to Dismiss on June 2, 2017. (Docket No. 15.) The defendants argued, among other
things, that Budget and Newcomer lacked standing to seek injunctive relief against the
defendants, because their alleged injuries were the result of one isolated course of events that
took place when Budget, an out-of-state business, happened to be contracted for a trip into
Tennessee. (Docket No. 16 at 5–7.) Budget and Newcomer filed a Motion for Leave to Amend
First Amended Complaint, seeking to add allegations clarifying that Budget had continued to
provide charter buses for trips to Nashville on an ongoing basis. (Docket No. 20; Docket No. 201 at 2.) The court granted leave to amend and denied the Motion to Dismiss as moot because the
complaint had again been superseded. (Docket No. 21; Docket No. 23.)
The defendants filed a Motion to Dismiss Second Amended Complaint on July 17, 2017.
(Docket No. 25.) While that motion was pending, Budget and Newcomer learned, via the
defendants’ Rule 26 disclosures, that some of the actions that their complaints had attributed to
Pitts had actually been performed by Barker, Simmons, and/or Norris. (Docket No. 35-3 at 1–2.)

6

The plaintiffs filed a Motion for Leave to Amend Second Amended Complaint, seeking to add
Barker, Simmons, and Norris as defendants and to revise the operative complaint’s allegations to
reflect the plaintiffs’ newfound better understanding of which actions had been performed by
which highway patrolmen. (Docket No. 34.) The court granted the Motion for Leave to Amend
and denied the pending Motion to Dismiss as moot. (Docket No. 40 at 14–15.)
In the Third Amended Complaint, each of Pitts, Matsunaga, Barker, Simmons, and Norris
is named “in his individual capacity as a Tennessee State Highway Patrolman.” Gibbons and
Roberts are named in their individual capacities only, and Purkey and Gerregano are named in
their official capacities only. (Docket No. 41 at 1.) The plaintiffs plead claims pursuant to 42
U.S.C. §§ 1983 and 1988 for (1) violation of Newcomer and/or Budget’s constitutional rights to
equal protection of the laws, freedom from deprivation of liberty without due process, freedom
from unreasonable searches and seizures, freedom from cruel and inhumane treatment, and
freedom from interference in interstate commerce; and (2) violation of Newcomer and/or
Budget’s rights, under the U.S. Department of Transportation’s motor carrier safety assistance
program, to be subject to safety inspections only in certain identified situations and settings, 49
U.S.C. § 31102(c)(2)(W). (Docket No. 41 ¶¶ 46–59.)
On November 28, 2017, Pitts, Matsunaga, Roberts, Gibbons, Purkey and Gerregano filed
a joint Motion to Dismiss Third Amended Complaint pursuant to Rule 12(b)(1) and 12(b)(6).
(Docket No. 44.) With regard to Pitts and Matsunaga, the motion addresses only claims lodged
against them in their official, not individual, capacities. 3 (Id. at 1.) On February 1, 2018, Barker,

3

There is some confusion about which defendants have been sued in their official capacities—owing in
part to the plaintiffs’ use of the phrase “in his individual capacity as a Tennessee State Highway
Patrolman” to describe the capacity in which they are suing the TSHP defendants. The Sixth Circuit
applies a “course of proceedings” test to determine whether a § 1983 defendant has been sued in his
individual or official capacity. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001). Based on

7

Simmons, and Norris filed a Motion to Dismiss Third Amended Complaint, also pursuant to
Rule 12(b)(1) and 12(b)(6), which similarly focuses only on the claims against them in their
official, not individual, capacities. (Docket No. 56.)
II. LEGAL STANDARD
A. Rule 12(b)(1)
“Rule 12(b)(1) motions to dismiss . . . generally come in two varieties: a facial attack or a
factual attack.” Genetek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007). When a Rule 12(b)(1) motion contests subject matter jurisdiction factually, the court must
weigh the evidence in order to determine whether it has the power to hear the case, without
presuming the challenged allegations in the complaint to be true. Id.; DLX, Inc. v. Kentucky, 381
F.3d 511, 516 (6th Cir. 2004). When the facts are disputed in this way, “[t]he district court has
broad discretion to consider affidavits, documents outside the complaint, and to even conduct a
limited evidentiary hearing if necessary,” without converting the motion into one for summary
judgment. Cooley v. United States, 791 F. Supp. 1294, 1298 (E.D. Tenn. 1992), aff’d sub nom.
Myers v. United States, 17 F.3d 890 (6th Cir. 1994); see also Genetek, 491 F.3d at 330. It is then
the plaintiff’s burden to show that jurisdiction is appropriate. DLX, 381 F.3d at 511. If a Rule
12(b)(1) motion challenges subject matter jurisdiction based on the face of the complaint, to the
contrary, the plaintiff’s burden is “not onerous,” and the plaintiff need only demonstrate that the
complaint alleges a “substantial” federal claim, meaning that prior decisions do not inescapably
render the claim frivolous. Musson Theatrical Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248
(6th Cir. 1996). A court evaluating this sort of facial attack to the assertion of subject matter
jurisdiction must consider the allegations of fact in the complaint to be true. Genetek, 491 F.3d at

the facts alleged and the relief sought, the court will construe the Third Amended Complaint as naming
the TSHP defendants in both capacities.

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330; Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir. 1999). Thus, “the plaintiff can
survive the motion by showing any arguable basis in law for the claim made.” Musson
Theatrical, 89 F.3d at 1248.
B. Rule 12(b)(6)
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement
of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must
determine only whether “the claimant is entitled to offer evidence to support the claims,” not
whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the
plaintiff must plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. at 679; Twombly, 550 U.S. at 556.

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III. ANALYSIS
A. Official Capacity Claims for Monetary Damages
The defendants first ask the court to dismiss all monetary claims raised against them in
their official capacities because (1) the claims are barred by sovereign immunity and (2) the
claims are, as a matter of law, actually directed at their respective agencies, which are not
“persons” for the purposes of 42 U.S.C. § 1983. See Thiokol Corp. v. Mich. Dep’t of Treasury,
987 F.2d 376, 381 (6th Cir. 1993) (“[The Eleventh Amendment] bars all suits, whether for
injunctive, declaratory or monetary relief, against the state and its departments.”); see also Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 70–71 (1989) (holding that the Eleventh Amendment
also precludes claims against state officials in their official capacity for damages). Accord Tenn.
Code Ann. § 20-13-102(a) (barring claims for damages against the state and state officials “with
a view to reach the state, its treasury, funds or property” in any “court in the state”); Berndt v.
Tennessee, 796 F.2d 879, 881 (6th Cir. 1986) (“We are persuaded that section 20-13-102(a) of
the Tennessee Code, which expressly prohibits any suits in state court against the state . . . also
extends impliedly to suits brought in federal court.”).
In response, the plaintiffs argue only that “[w]hether a defendant is liable for acts done in
his official capacity is not necessarily the same question as whether damages may be awarded
against the State directly for such acts.” (Docket No. 58 at 2.) The plaintiffs’ argument appears to
misunderstand the point that the defendants are making, which is not premised on the capacity in
which the defendants acted, but the capacity in which they have been sued. A “suit against a state
official in his or her official capacity is not a suit against the official but rather is a suit against
the official’s office” and is, therefore, “no different from a suit against the State itself.” Will, 491
U.S. at 71 (internal quotation marks and citation omitted). Thus, sovereign immunity “also

10

applies to actions against state officials sued in their official capacity for money damages.” Ernst
v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 616,
623 (2002); Edelman v. Jordan, 415 U.S. 651, 664–66 (1974)). The court, accordingly, will
dismiss all claims for damages raised against the defendants in their official capacities.
B. Claims for Injunctive/Declaratory Relief Against Purkey and Gerregano
1. Standing
Purkey and Gerregano next argue that the court should dismiss the claims for injunctive
and declaratory relief against them because the plaintiffs have no standing to raise such claims.
Specifically, they argue that Budget and Newcomer have alleged only an isolated series of
wholly past events giving rise to their injury and, therefore, have no standing to raise a claim for
prospective relief. Budget and Newcomer respond that they continue to operate in Tennessee and
that they have alleged not merely a past harm, but an ongoing practice of targeting tour buses—
particularly out-of-state tour buses—for unjustified scrutiny and unwarranted safety inspections.
Article III of the Constitution gives the federal courts jurisdiction only over “cases and
controversies,” of which the component of standing is an “essential and unchanging part.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A party seeking to invoke the court’s
jurisdiction must establish the necessary standing to sue before the court may consider the merits
of that party’s cause of action. Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). To establish
standing under the Constitution, a plaintiff must show that: (1) he has suffered an “injury in fact”
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by the relief requested. Gaylor v.
Hamilton Crossing CMBS, 582 F. App’x 576, 579–80 (6th Cir. 2014) (citing Lujan, 504 U.S. at

11

560–61); see also Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167,
180–81 (2000). These constitutional requirements—commonly known as (1) injury-in-fact, (2)
causation, and (3) redressability—apply in every case.
When a plaintiff seeks injunctive relief, the plaintiff must demonstrate that there is a nonspeculative, imminent threat of ongoing or repeated injury to establish that there is a redressable
injury-in-fact. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); Fieger v. Mich. Supreme
Court, 553 F.3d 955, 966 (6th Cir. 2009)). “Redressability . . . requires ‘that prospective relief
will remove the harm,’ and the plaintiff must show ‘that he personally would benefit in a
tangible way from the court’s intervention.’” Am. Civil Liberties Union v. Nat’l Sec. Agency, 493
F.3d 644, 670 (6th Cir. 2007) (quoting Warth v. Seldin, 422 U.S. 490, 505, 508 (1975)). Purkey
and Gerregano liken this case to City of Los Angeles v. Lyons, in which the Supreme Court held
that a man who had allegedly been improperly placed in a chokehold by police did not have
standing to seek prospective relief, because he could not show that “he was likely to suffer future
injury from the use of the chokeholds by police officers.” 461 U.S. at 105. By the same token,
Purkey and Gerregano argue, Newcomer and Budget cannot show that they are likely to be
subject to a future bogus safety inspection simply because they were allegedly subjected to one
in the past.
The court in Lyons emphasized the “incredible” level of speculation that was necessary to
assume that the plaintiff in that case would be likely to find himself placed in an improper
chokehold by Los Angeles police for a second time. 461 U.S. at 106. Such a claim, the Court
wrote, would have to hinge on one of two premises: “either, (1) that all police officers in Los
Angeles always choke any citizen with whom they happen to have an encounter, whether for the
purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized

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police officers to act in such manner.” Id. Because the plaintiff’s allegations did not support
either premise, the Court reasoned, any prospect of a repeated injury was too speculative to
support standing to bring a claim for injunctive relief. Id.
The rule announced in Lyons is not a formalistic bar on a plaintiff’s seeking injunctive
relief in a case arising originally out of a past constitutional violation. Rather, the court must look
at the substance of the plaintiff’s allegations to assess “the reality of the threat of repeated
injury.” Lyons, 461 U.S. 95 at 107 n.8. The possibility that Newcomer and Budget might be
targeted again by TSHP patrolmen is significantly less speculative than the risk of repeated
injury in Lyons. This is not a case, like Lyons, where the constitutional violation could be visited
upon anyone, and the plaintiff’s risk of a repeat injury depends on the chance of his having the
same bad luck twice. Allen and Newcomer allege a much more specific abuse: the improper
targeting of out-of-state tour buses on specious grounds. (Docket No. 41 ¶¶ 36, 51.) In other
words, the potential for a future injury to the plaintiffs arises out of their allegation of an ongoing
pattern of abuse directed at a particular, limited class of targets of which they are members.
At this stage, Purkey and Gerregano have challenged the plaintiffs’ right to bring a claim
for prospective relief solely on the face of their Third Amended Complaint. If, once a factual
record is developed, the court is revealed not to have jurisdiction, it can dismiss the claims
accordingly. Purely on the face of the Third Amended Complaint, however, and construing the
plaintiffs’ allegations in the light most favorable to their claim of jurisdiction, Budget and
Newcomer have set forth a facially plausible basis for concluding that they face a nonspeculative, imminent threat of repeated injury due to TSHP patrolmen’s targeted mistreatment
of out-of-state tour buses. The court, accordingly, will not dismiss the plaintiffs’ claims against
Purkey and Gerregano for lack of standing.

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2. Failure to State a Claim for Relief
Purkey and Gerregano argue next that the plaintiffs’ claims for injunctive and declaratory
relief against them are barred by sovereign immunity and/or are premised on a misunderstanding
of the particular laws cited. Specifically, the plaintiffs seek an injunction requiring Purkey and
Gerregano to promulgate regulations bringing them into compliance with Tenn. Code Ann. § 6515-101 and 49 U.S.C. § 31102(c)(2)(W). (Docket No. 41 ¶¶ 60–62.) Purkey and Gerregano
argue that sovereign immunity prevents the plaintiffs from suing to enforce state law and that 49
U.S.C. § 31102(c)(2)(W) only places duties on the federal Secretary of Transportation—not
Purkey’s and Gerregano’s respective state agencies.
a. Reliance on Tenn. Code Ann. § 65-15-101
To prevail on a claim under § 1983, a plaintiff must prove two elements: (1) that he was
deprived of a right secured by the Constitution or laws of the United States; and (2) that the
deprivation was caused by a person acting under color of law. Robertson v. Lucas, 753 F.3d 606,
614 (6th Cir. 2014). The plaintiffs frequently frame their claims for injunctive and declaratory
relief pursuant to § 1983 in terms of the Commissioners’ general oversight duties pursuant to
Tenn. Code Ann. § 65-15-101—leading Purkey and Gerregano to suggest that the plaintiffs are
improperly seeking to use § 1983 to enforce state law. Budget and Newcomer, however, appear
to concede that they would not be able to sue under § 1983 purely to force TDSHS and TDR to
comport with their state-level statutory responsibilities. Rather, the plaintiffs argue that they are
permitted to seek an order requiring compliance with Tennessee law, insofar as such injunctive
relief would be an appropriate remedy with regard to the alleged violations of federal law.
(Docket No. 49 at 8–9.)

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Tenn. Code Ann. § 65-15-101(a) sets forth a number of general purposes pursuant to
which TDSHS and TDR are instructed to exercise their authority over highway safety in the
state, such as “[p]rotect[ing] the welfare and safety of the traveling and shipping public in their
use of the highways” and “[p]rotect[ing] the property of the state and its highways from
unreasonable, improper or excessive use.” Tenn. Code Ann. § 65-15-101(a)(2), (4). Given the
fairly general nature of the obligations set forth in Tenn. Code Ann. § 65-15-101(a), one could
argue that the plaintiffs’ frequent citations to the statute are superfluous, other than insofar as
they are necessary to establish the agencies’ respective responsibilities. Those superfluous
citations, however, have no effect on the viability of the plaintiffs’ claims based on violations of
federal law. Nor are those federal-law claims undermined by the proposition that complying with
federal law might also, through a certain lens, be seen as furthering the purposes outlined in
Tenn. Code Ann. § 65-15-101(a). The plaintiffs’ citations to Tenn. Code Ann. § 65-15-101,
therefore, pose no obstacle to their claims for injunctive relief.
b. Claims for Relief Pursuant to 49 U.S.C. § 31102(c)(2)(W)
Purkey and Gerregano argue next that the plaintiffs have not pled an actionable violation
of 49 U.S.C. § 31102(c)(2)(W). As a general rule, “§ 1983 provides a cause of action for
violations of federal statutes as well as the Constitution.” Wilder v. Va. Hosp. Ass’n, 496 U.S.
498, 508 (1990). Not every federal statute, however, is appropriate for enforcement via a § 1983
claim. “A plaintiff alleging a violation of a federal statute will [not] be permitted to sue under §
1983 [if] (1) ‘the statute [does] not create enforceable rights, privileges, or immunities within the
meaning of § 1983,’ or (2) ‘Congress has foreclosed such enforcement of the statute in the
enactment itself.’” Id. (quoting Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423
(1987)).

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The provision at issue here, 49 U.S.C. § 31102(c), authorizes the U.S. Secretary of
Transportation to make federal funds available to states pursuant to federally approved state
plans under the Department of Transportation’s Motor Carrier Safety Assistance Program
(“MCSAP”). 49 U.S.C. § 31102(c) (setting forth standards for approving state plans),
31104(a)(1) (authorizing motor carrier safety assistance program funds through 2020); cf. Ind.
Bureau of Motor Vehicles v. Orange, 889 N.E.2d 388, 391 (Ind. Ct. App. 2008) (discussing
Indiana’s enacting laws to comply with federal motor carrier safety requirements in order “[t]o
ensure federal support in highway funding”). “The MCSAP is a Federal grant program that
provides financial assistance to States to reduce the number and severity of accidents and
hazardous materials incidents involving commercial motor vehicles (CMVs).” 49 C.F.R. §
350.101(a). The state’s adoption of an MCSAP-compliant commercial vehicle safety plan
(“CVSP”) is tied to the state’s ability to receive the relevant federal highway funding. See United
States v. Orozco, 858 F.3d 1204, 1207 (9th Cir. 2017) (“Nevada has also enacted a [CVSP],
which complies with the Motor Carrier Safety Assistance Program’s requirements for receiving
federal highway funding . . . .”).
In order to be approved by the Secretary, a state’s CVSP must meet a number of
requirements, including, as relevant to this case, that the plan “ensures that an inspection of a
vehicle transporting passengers for a motor carrier of passengers is conducted at a bus station,
terminal, border crossing, maintenance facility, destination, or other location where a motor
carrier may make a planned stop (excluding a weigh station),” unless the inspection is justified
by “an imminent hazard or obvious safety hazard.” 49 U.S.C. § 31102(c)(2)(W). Budget and
Newcomer argue that this particular CVSP requirement, if complied with, would have prevented
the events of April 21, 2016, because Tennessee authorities would not have been permitted to

16

initiate an impromptu, non-emergency safety inspection in a setting that, the plaintiffs argue,
does not fall into the class of locations permitted under 49 U.S.C. § 31102(c)(2)(W). 4
Purkey and Gerregano appear to argue that, because the MCSAP is a conditional
spending program, its requirements cannot be enforced by way of a private cause of action
brought by an injured member of the public and, instead, can only be enforced by the federal
Secretary of Transportation. In so doing, the Commissioners resort repeatedly to suggesting that
the plaintiffs’ theory amounts to an attempt to insert themselves into a “contract,” or lack thereof,
between Tennessee and the United States. (See Docket No. 45 at 3 (“The Plaintiffs allege that
former Commissioners Roberts and Gibbons were responsible for entering into a contract with
the federal government for purposes of conserving the interest and convenience of the public.”)
(internal quotation marks omitted), 11 (“Essentially, Plaintiffs complain that former

4

The Third Amended Complaint does not go into much detail regarding Tennessee’s MCSAP history,
and the plaintiffs, in their briefing, suggest that they will require discovery to know the details of any
historical CVSP submissions by the state. (Docket No. 49 at 10.) Some acceptance of relevant funds,
however, is implicit in any allegation that the state violated 49 U.S.C. § 31102(c)(2)(W). The very nature
of a federal conditional spending program, after all, is that it is voluntary. A state is always free to choose
the option of “‘not yielding’ to federal blandishments when [it does] not want to embrace the federal
policies as [its] own.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 579 (2012) (quoting
Massachusetts v. Mellon, 262 U.S. 447, 482 (1923)). The only way that Tennessee could violate the
MCSAP, therefore, would be for it to accept the benefit of the federal government’s offer but not hold up
its end of the bargain.
At least according to records published by the U.S. Department of Transportation, moreover, Tennessee
does, in fact, appear to have submitted and received federal approval of a CVSP. See Tennessee
Commercial Vehicle Safety Plan for the Federal Motor Carrier Safety Administration’s Motor Carrier
Safety
Assistance
Program
Fiscal
Year
2017
(Jan.
6,
2017),
available
at
https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/fastact/83176/tennesseeaccepted-20170106.pdf.
Indeed, the 2017 CVSP includes a “Certificate of Conformance,” signed by then-Commissioner Gibbons,
in which the State of Tennessee expressly certifies that “[t]he State will ensure that, except in the case of
an imminent or obvious safety hazard, an inspection of a vehicle transporting passengers for a motor
carrier of passengers is conducted at a bus station, terminal, border crossing, maintenance facility,
destination, or other location where motor carriers may make planned stops (excluding a weigh
station)”—repeating, verbatim, the very obligation at issue here. Id. at 72. While the existence of a 2017
CVSP does not necessarily establish that such a plan was in effect in April 2016, the court does note that
the 2017 CVSP appears to discuss a 2016 CVSP that preceded it. Id. at 16–19.

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Commissioners Bill Gibbons and Richard Roberts failed to properly enter into a contract with the
federal government, and in so doing, violated Tenn. Code Ann. § 65-15-101 et seq.”), 12
(“Plaintiffs are asking this Court to find that these Defendants are liable solely on the basis that
they failed to enter into a contract with the federal government . . . .”), 16 (“Plaintiffs have not,
and cannot, demonstrate that there is any clearly established right to force a state official to enter
into a contract with the federal government . . . .”).) Although the Supreme Court has noted that a
federal conditional spending program is “much in the nature of a contract” and has “applied the
contract-law analogy” in conditional spending cases, it has also “been careful not to imply that
all contract-law rules apply.” Barnes v. Gorman, 536 U.S. 181, 186 (2002) (quoting & citing
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); Bennett v. Ky. Dep’t of
Educ., 470 U.S. 656, 669 (1985)) (emphasis altered). Section 31102(c) is a federal statute, not a
provision in a contract. A violation of 49 U.S.C. § 31102(c)(2)(W) is no less a statutory violation
simply because conditional spending was involved.
Indeed, the Supreme Court has left little doubt that, where the necessary conditions are
met, the violation of a right under a federal conditional spending program can give rise to a claim
under § 1983. See Wilder, 496 U.S. at 502, 524 (finding that a plaintiff can raise a § 1983 claim
pursuant to a statutory right related to Medicaid, “a cooperative federal-state program through
which the Federal Government provides financial assistance to States so that they may furnish
medical care to needy individuals”); see also New York v. United States, 505 U.S. 144, 209
(1992) (White, J., dissenting) (collecting cases); Hughlett v. Romer-Sensky, 497 F.3d 557, 565
(6th Cir. 2006) (discussing “instances when the [Supreme] Court has found an individual right
enforceable under § 1983 within spending legislation”). Even if the federal government, in such
a program, retains the “authority to audit . . . and cut off federal funds,” those “generalized

18

powers are insufficient to indicate a congressional intention to foreclose § 1983 remedies.”
Wright, 479 U.S. at 428 (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 704–707 (1979);
Rosado v. Wyman, 397 U.S. 397, 420 (1970)).
In order for a statutory provision to be enforceable through § 1983, “1) ‘Congress must
have intended that the provision in question benefit the plaintiff’; 2) the asserted right must not
be ‘so vague and amorphous that its enforcement would strain judicial competence’; and 3) ‘the
statute must unambiguously impose a binding obligation on the States.’” D.O. v. Glisson, 847
F.3d 374, 377 (6th Cir. 2017) (quoting Blessing v. Freestone, 520 U.S. 329, 340–41 (1997)). The
court must consider, in particular, whether the federal statute at issue includes “the sort of
‘rights-creating’ language critical to showing the requisite congressional intent to create new
rights.” Id. at 378 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). Purkey and
Gerregano advance no argument pursuant to that test, choosing to rely entirely on their contractlaw analogy and the contention that 49 U.S.C. § 31102(c)(2)(W) is categorically inappropriate
for enforcement through a private cause of action. Because the grounds that Purkey and
Gerregano have raised for the court to dismiss the plaintiffs’ claims against them for injunctive
relief fail, their motion will be denied, insofar as it seeks dismissal of those claims pursuant to
Rule 12(b)(6).
C. Claims Against Gibbons and Roberts
Former Commissioners Gibbons and Roberts argue that the claims against them should
be dismissed because the claims improperly rely on a respondeat superior theory of liability. The
plaintiffs argue, in response, that Gibbons and Roberts can be held liable under § 1983 because
each was “in a position of responsibility” and “knew or should have known” about facts that

19

would have allowed them to prevent the plaintiffs’ injury. (Docket No. 49 at 11 (emphasis
omitted).)
“Respondeat superior 5 is not a proper basis for liability under § 1983. Nor can the
liability of supervisors be based solely on the right to control employees, or simple awareness of
employees’ misconduct.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006)
(citations and internal quotation marks omitted). “In order for supervisory liability to attach, a
plaintiff must prove that the official ‘did more than play a passive role in the alleged violation or
showed mere tacit approval of the goings on.’” Loy v. Sexton, 132 F. App’x 624, 626 (6th Cir.
2005) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). In other words, “liability
under § 1983 must be based on active unconstitutional behavior . . . .” Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999) (citing Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir.
1998), cert. denied, 526 U.S. 1115 (1999)). “A supervisor’s awareness of allegations of
unconstitutional conduct and failure to act are not a basis for liability.” McCurtis v. Wood, 76 F.
App’x 632, 634 (6th Cir. 2003) (citing Shehee, 199 F.3d at 300).
The plaintiffs suggest that ongoing discovery may uncover facts that would support a
greater finding of culpability for Gibbons and Roberts with regard to the TSHP’s treatment of
tour bus operators. (Docket No. 49 at 12.) The mere prospect of uncovering sufficient facts in
discovery, however, does not excuse the plaintiffs from the need to plead facts upon which relief
could be granted in their complaint. See Krygoski Const. Co. v. Flanders Indus., Inc., No. 2:08CV-202, 2009 WL 722611, at *5 (W.D. Mich. Mar. 17, 2009) (“Plaintiff’s speculation that
during the course of discovery it might find evidence to bring its claim . . . is insufficient to
defeat Defendant’s motion to dismiss.”). The allegations against Gibbons and Roberts in the
5

Respondeat superior is “the doctrine under which liability is imposed upon an employer for the acts of
his employees committed in the course and scope of their employment.” Ballentine’s Law Dictionary (3d
ed. 1969).

20

Third Amended Complaint do not rise above the general contention that, through their inaction,
they failed to prevent the patrolmen’s alleged mistreatment of Newcomer. (See Docket No. 41 ¶¶
37–39, 42, 51–52.) Accordingly, the claims against the former Commissioners will be dismissed.
IV. CONCLUSION
For the foregoing reasons, Roberts, Gibbons, Pitts, Matsunaga, Purkey and Gerregano’s
Motion to Dismiss Third Amended Complaint (Docket No. 44) will be granted in part and denied
in part, and the (partial) Motion to Dismiss Third Amended Complaint filed by Barker,
Simmons, and Norris (Docket No. 56) will be granted. The court will dismiss all claims against
Roberts and Gibbons, as well as all claims for damages against Pitts, Matsunaga, Barker,
Simmons, and Norris in their official capacities. All other claims against Pitts, Matsunaga,
Barker, Simmons, and Norris, as well as the claims against Purkey and Gerregano in their
official capacities, will remain pending.
An appropriate order will enter.
ENTER this 11th day of April 2018.

______________________________
ALETA A. TRAUGER
United States District Judge

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