Howell v. Gonzalez et al

Filing 102

MEMORANDUM. Signed by District Judge William L. Campbell, Jr on 3/31/2022. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MATTHEW HOWELL,
Plaintiff,
v.
JUAN MARCOS GONZALEZ, et al.,
Defendants.

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NO. 3:17-cv-01413
JUDGE CAMPBELL
MAGISTRATE JUDGE FRENSLEY

MEMORANDUM
Pending before the Court is a Motion to Dismiss (Doc. No. 84) filed by Detectives

Hargrave and Harbin. Plaintiff filed a consolidated response to this motion and the other pending
dispositive motions (Doc. No. 98), and Defendants filed a consolidated reply (Doc. No. 100). For
purposes of this ruling, the Court considered only the portions of the consolidated response and
consolidated reply that are applicable to Detectives Hargrave and Harbin. For the reasons stated
herein, the Motion is GRANTED.
I.

FACTUAL BACKGROUND

Plaintiff’s complaint brings multiple counts against several officers and the Metropolitan
Government of Nashville and Davidson County (“Metro”). These claims are based upon four
separate encounters with Metro officers. Only two of those encounters are relevant to this motion:
one in September of 2017 involving Defendant Detective Hargrave and one in February of 2018
involving Defendant Detective Harbin.
A.

September 2017 Incident with Detective Hargrave
In September 2017, Plaintiff returned to his Nashville residence after residing out of state

for several months. (Doc. No. 29 ¶ 35). While living elsewhere, he had leased his property to a

tenant. (Id. ¶ 35). After learning that the property had seemingly been abandoned, Plaintiff returned
to the residence to find the property in a state of disrepair and many items, including home
appliances, furniture, a car, and a bulldozer, missing. (Id. ¶¶ 35-37). Plaintiff reported the theft of
these items to the police. (Id. ¶ 38) Plaintiff states that he made his report, despite reservations that
the police would actually assist him, because Metro Nashville “has policies and customs that
prevent citizens from initiating any criminal case without the consent of a police officer.” (Id. ¶¶
38-39).
Detective Joshua Hargrave (“Hargrave”) was assigned to Plaintiff’s case. (Id. ¶ 42).
Plaintiff alleges that Hargrave was aware that Plaintiff was suing Metro Nashville for violations
of his civil rights at the time he was assigned to the case. (Id.). Despite Plaintiff producing evidence
of the theft, including text messages from the former tenant admitting to taking the bulldozer and
statements of a neighbor who witnessed the tenant removing property from the residence, Plaintiff
alleges that Hargrave refused to prosecute the thief. (Id. ¶¶ 40-44). Plaintiff states that Hargrave
refused to act due to Plaintiff’s pending lawsuits against Metro Nashville. (Id. ¶ 45).
B.

February 2018 Incident with Detective Harbin
In February 2018, Plaintiff alleges that a woman entered his property and slashed the tires

of his vehicle. Plaintiff reported the vandalism, and Metro Nashville Detective Rodney Harbin
(“Harbin”) was assigned to the case.1 (Id. ¶¶ 59 -60). Plaintiff states that both he and a witness to
the incident reported their observations to Harbin, but that Harbin blocked any prosecution of the
vandal on a “pretextual basis.” (Id. ¶¶ 60 – 63). Plaintiff alleges that Harbin blocked any action

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Plaintiff’s Amended Complaint identifies Detective Harbin as John Doe and states that Plaintiff
was unable to obtain the police report identifying the detective by name. Defendant Harbin’s Motion to
Dismiss clarifies that he was the detective assigned. (Doc. No. 85 at 3 n. 2).

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assisting Plaintiff because Harbin was aware of Plaintiff’s pending lawsuits against Metro
Nashville. (Id. ¶ 64-65).
Plaintiff filed this lawsuit alleging violations of his rights under 42 U.S.C. § 1983. The only
claims brought against Detectives Hargrave and Harbin are: Count I for First Amendment
retaliation and Count II for Fourteenth Amendment due process violations. These Defendants now
move to dismiss the claims.
II.
A.

STANDARD OF REVIEW

Rule 12(b)(1) 2
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come

in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams
Co., 491 F.3d 320, 330 (6th Cir. 2007). When a Rule 12(b)(1) motion contests 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). However, if a Rule 12(b)(1) motion challenges
subject matter jurisdiction based on the face of the complaint, as this one does, the plaintiff's
burden is “not onerous.” 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 and evaluate jurisdiction
accordingly. Gentek, 491 F.3d at 330.
B.

Rule 12(b)(6)
In deciding a motion to dismiss under Rule 12(b)(6), a court must take all the factual

allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662 (2009). To survive a motion
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Despite their challenge to Plaintiff’s standing, Defendants omit the standard of review for motions
to dismiss under Rule 12(b)(1).

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to dismiss, a complaint must contain sufficient factual allegations, accepted as true, to state a claim
for relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads
facts that allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. In reviewing a motion to dismiss, the Court construes the complaint in the
light most favorable to the plaintiff, accepts its allegations as true, and draws all reasonable
inferences in favor of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
In considering a Rule 12(b)(6) motion, the Court may consider the complaint and any
exhibits attached thereto, public records, items appearing in the record of the case, and exhibits
attached to Defendant’s motion to dismiss provided they are referred to in the Complaint and are
central to the claims. Bassett v. National Collegiate Athletic Assn., 528 F.3d 426, 430 (6th Cir.
2008).
III.
A.

ANALYSIS

Standing
As an initial matter, the Court must address the Defendants’ contention that Plaintiff lacks

standing to assert his First Amendment retaliation claim against them. The issue of standing is a
threshold determination for the Court. Kanuszewski v. Mich. HHS, 927 F.3d 396, 405 (6th Cir.
2019). This reflects the fundamental principle that “[j]urisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex
parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).
Article III of the Constitution limits the jurisdiction of federal courts to adjudication of
“cases” and “controversies.” U.S. Const., Art. III, § 2. Integral to the case or controversy
requirement is the doctrine of standing – a plaintiff must show a “personal stake in the outcome of

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the controversy as to … justify [the] exercise of the court’s remedial powers on [their] behalf.”
Nikolao v. Lyon, 875 F.3d 310, 315 (6th Cir. 2017) (quoting Town of Chester, N.Y. v. Laroe
Estates, Inc., 137 S.Ct. 1645, 1650 (2017)). “Standing requires Plaintiff to show 1) that they have
suffered an injury-in-fact that was 2) caused by Defendants’ conduct and that 3) this Court can
likely redress the injury with a decision for Plaintiffs.” Kanuszewski 927 F.3d at 405. At this stage,
Plaintiff must do so by “clearly alleg[ing] facts demonstrating each element.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016) (internal quotations omitted).
At issue here is the first element. “An Article III injury…requires the ‘invasion of a legally
protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” CHKRS, LLC v. City of Dublin, 984 F.3d 483, 488 (6th Cir. 2021) (quoting Spokeo,
Inc. v. Robins, 578 U.S. 330, 339 (2016)). “To allege the invasion of a legally protected interest, a
plaintiff must show that the plaintiff has a right to relief if the court accepts the plaintiff’s
interpretation of the constitutional or statutory laws on which the complaint relies.” Id.
The injury alleged by Plaintiff is that the Defendants retaliated against him by failing or
refusing to prosecute the individual who stole from him and the individual who slashed his tires.
As a legally cognizable injury, this allegation fails. The Supreme Court has held that “a citizen
lacks standing the contest the policies of the prosecuting authority when he himself is neither
prosecuted nor threatened with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(collecting cases). This holding is based on the understanding that “in American jurisprudence at
least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution
of another.” Id. Because Plaintiff cannot plausibly allege the invasion of a legally cognizable
interest, he lacks standing to assert his claim of First Amendment retaliation against Detectives
Hargrave and Harbin. Accordingly, Count I will be dismissed as to these Defendants.

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B.

Qualified Immunity
Defendants also raise the affirmative defense of qualified immunity.3 Qualified immunity

is an “immunity from suit” available to government officials performing discretionary functions.
Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). Qualified immunity protects government officials from civil damages “unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was
‘clearly established at the time.’” Reich v. City of Elizabethtown, Ky., 945 F.3d 968, 977 (6th Cir.
2019) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). Once raised by the
defendant, the plaintiff bears the burden to show qualified immunity does not apply. Id. at 978.
Courts have recognized, however, that this inquiry is “a low bar, given that granting
qualified immunity at the motion to dismiss stage is usually disfavored.” Marvaso v. Sanchez, 971
F.3d 599, 605 (6th Cir. 2020). “To survive the motion to dismiss on qualified-immunity grounds,
the plaintiff must allege facts that ‘plausibly mak[e] out a claim that the defendant's conduct
violated a constitutional right that was clearly established law at the time, such that a reasonable
officer would have known that his conduct violated that right.’” Courtright v. City of Battle Creek,
839 F.3d 513, 518 (6th Cir. 2016) (quoting Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)).
“The test is whether, reading the complaint in the light most favorable to the plaintiff, it is plausible
that an official’s acts violated the plaintiff’s clearly established right.” Id. (quoting Heyne v. Metro.
Nashville Pub. Sch., 655 F.3d 556, 562–63 (6th Cir. 2011)).

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Defendants invoke qualified immunity on Count I and Count II. The Court has determined that
Plaintiff lacks standing on Count I. Accordingly, the qualified immunity analysis is concerned only with
Count II.

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1. Fourteenth Amendment Due Process—State Created Danger
In Count II of his Amended Complaint, Plaintiff alleges that Defendants have violated his
due process rights by creating a situation where he is vulnerable to attacks from third parties
without official recourse. The general rule is that “a State’s failure to protect an individual against
private violence simply does not constitute a violation of the Due Process clause.” DeShaney v.
Winnebago Cnty Dept. of Social Services, 489 U.S. 189, 197 (1989). An exception to this general
rule is the “state-created danger exception.” Cartwright v. City of Marine City, 336 F.3d 487, 493
(6th Cir. 2003). Under this exception “state officials may be found to have violated the substantive
due process rights of people not within their custody when their affirmative actions directly
increase the vulnerability of citizens to danger or otherwise place citizens in harm’s way.” Id.
(internal quotations omitted).
The Sixth Circuit has articulated a clear test for plaintiffs pleading claims of state-created
danger:
To show a state-created danger, plaintiff must show: (1) an affirmative act by the
state which either created or increased the risk that the plaintiff would be exposed
to an act of violence by a third party; (2) a special danger to the plaintiff wherein
the state's actions placed the plaintiff specifically at risk, as distinguished from a
risk that affects the public at large; and (3) the state knew or should have known
that its actions specifically endangered the plaintiff.
Williams v. City of Georgetown, Kentucky, 774 F. App'x 951, 955–56 (6th Cir. 2019) (quoting
Cartwright, 336 F.3d at 493).
Plaintiff alleges that these and other Defendants violated his due process rights under the
state-created danger exception. He alleges that due their failure to prosecute third parties who act
against him, Defendants have “establish[ed] an environment wherein [he] cannot defend his own
home without being punished, and where criminals can instead harm him with the full blessing of
the [Defendants].” (Doc. No. 29 ¶ 100). Under this exception, however, the action of the
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Defendants “must be an affirmative act; failure to act is not an affirmative act under the statecreated danger theory.” Wilson v. Gregory, 3 F.4th 844 (6th Cir. 2021). Because all Plaintiff has
alleged against these Defendants is a failure to act, he has made an insufficient showing under the
standard and the state-created danger exception does not apply.
Absent an applicable exception, the Court returns to the general rule as stated in DeShaney.
489 U.S. at 197. Under these circumstances, Plaintiff fails to state a due process claim.
Accordingly, the Detectives are entitled to qualified immunity on Count II.
IV.

CONCLUSION

For the reasons stated herein, the Court finds that Plaintiff lacks standing to assert his
claims in Count I against these Defendants. The Court also finds that Defendants are entitled to
qualified immunity on Count II. Accordingly, their Motion to Dismiss (Doc. No. 84) is
GRANTED and Detectives Hargrave and Harbin are DISMISSED from this action.
An appropriate order will enter.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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