Clifton v. Patrick et al

Filing 47

ORDER GRANTING MOTION TO DISMISS OF DEFENDANT BETTYE PATRICK 42 . Signed by Chief Judge S. Thomas Anderson on 10/5/17. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TERRY LEE CLIFTON,
Plaintiff,
v.
BETTYE PATRICK, et al.,
Defendants.

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Civ. No. 1:17-cv-01035-STA-egb

ORDER GRANTING MOTION TO DISMISS OF DEFENDANT BETTYE PATRICK

Plaintiff Terry Lee Clifton has filed a complaint for damages pursuant to 42 U.S.C. §
1983 against now retired Tennessee Board of Parole (“TBOP”) Chairman Charles Traughber,
TBOP District Director Jeff Barnett, TBOP Deputy District Director James Beard, and TBOP
Officers Bettye Patrick and Charlotte Richey,1 alleging that his due process rights were violated
during his 2011 parole revocation proceedings.

Plaintiff has also sued John Does 1-10,

employees of TBOP or the Tennessee Department of Correction (“TDOC”).2 Defendant Patrick
has filed a motion to dismiss the complaint against her. (ECF No. 42.) Plaintiff has filed a
response to the motion (ECF No. 43), and Defendant has filed a reply to Plaintiff’s response.
(ECF No. 45.) For the reasons set forth below, Defendant’s motion is GRANTED.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125,
1

2

A default judgment was granted against Defendant Richey on August 10, 2017. (ECF No. 44.)

Parole supervision functions are performed by the TDOC; thus, parole officers and supervisors
are employees of the TDOC.

1134 (6th Cir. 1996). A complaint need not contain “detailed factual allegations,” but it must
contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not
“suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S.
at 556). The plausibility standard “does not impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of illegal [conduct].” Twombly, 550 U.S. at 556.
In his complaint, Plaintiff alleges that Defendant Patrick was a parole officer at the time
of the relevant events.

While on parole, Plaintiff was assigned to Defendant Patrick’s

supervision. Defendant ordered Plaintiff to appear for an administrative case review hearing on
July 13, 2010. When Plaintiff arrived at the TBOP office, he learned that the meeting was
actually a supervisory intervention. Defendant told Plaintiff that April Knight, an assistant
public defender, had lodged a complaint against him. Defendant allegedly offered to let Plaintiff
remain on parole, rather than violate him, if he paid her $300 - $500 every month. Plaintiff
refused to do so. Subsequently, TBOP issued a parole violation warrant for Plaintiff’s arrest. A
revocation hearing was held, and, upon conclusion of the hearing, Plaintiff’s parole was revoked.

2

The Board denied Plaintiff’s administrative appeal on July 6, 2011.3
On May 18, 2017, Defendant Patrick filed a motion to dismiss. (ECF No. 30.) She did
not raise the statute of limitations in her motion. The motion was denied on June 27, 2017.
(ECF No. 40.) Before the Court is Defendant’s second motion to dismiss which claims that the
action against her is barred by the statute of limitations. Plaintiff exhausted his administrative
remedies on July 6, 2011, when his appeal of his parole revocation was denied. According to
Defendant, the time period to file a § 1983 action expired one year later on July 6, 2012.
Plaintiff’s complaint was not filed until March 6, 2017. Plaintiff has responded that, under Heck
v. Humphrey, 512 U.S. 477 (1994), his cause of action under § 1983 for damages resulting from
his unconstitutionally defective parole revocation hearing did not arise until the revocation was
set aside in his habeas case and a new hearing ordered on March 8, 2016.
As an initial matter, Plaintiff contends that Defendant waived her statute of limitations
defense because she did not raise it in her first motion to dismiss. As noted by Plaintiff, it is
well-settled that “[a] response to a pleading must set forth any matter constituting an affirmative
defense.” Horton v. Potter, 369 F.3d 906, 911 (6th Cir. 2004) (citing Fed. R. Civ. P. 8(c)).
Accordingly, the “[f]ailure to plead an affirmative defense in the first responsive pleading to a
complaint generally results in a waiver of that defense.” Id. (citing Haskell v. Washington Twp.,
864 F.2d 1266, 1273 (6th Cir. 1988)). However, Defendant Patrick has not filed a responsive
pleading. Instead, she filed a motion to dismiss, and a motion to dismiss is not a responsive

3

In Clifton v. Easterling, Civ. No. 1:11-cv-01347, 2016 WL 918049 (W.D. Tenn. Mar. 8, 2016),
Plaintiff filed a petition pursuant to 28 U.S.C. § 2254 challenging the decision of the Parole
Board revoking his parole on the ground that his due process rights had been violated during the
revocation proceedings. The Court granted Plaintiff’s petition on March 8, 2016, and ordered
the Parole Board to conduct a new revocation hearing. On October 26, 2016, the Parole Board
held another hearing and voted in early November to re-release Plaintiff on parole. (ECF No.
101.)
3

pleading. See Youn v. Track, Inc., 324 F.3d 409, 416 n. 6 (6th Cir. 2003); accord Marcum v.
G.L.A. Collection Co., 2008 WL 2325600 at *1 (E.D. Ky. June 4, 2008).
Even if her first motion to dismiss was a responsive pleading, failure to plead an
affirmative defense such as the statute of limitations does not invariably result in waiver. See
Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992
F.2d 1439, 1445 (6th Cir. 1993). In deciding whether waiver has occurred, courts look to the
purpose of Fed. R. Civ. P. 8(c) which is to give the opposing party timely notice of the
affirmative defense and an opportunity to respond. Smith, 117 F.3d at 969. Accordingly, courts
have allowed an affirmative defense to be raised after the first responsive pleading when the
opposing party had notice and did not demonstrate prejudice.

See, e.g., Stupak-Thrall v.

Glickman, 346 F.3d 579 (6th Cir. 2003) (explaining that the party opposing the statute of
limitations defense is not prejudiced when he “had a fair opportunity to respond” and was not
“unfairly surprised”).
“If a [party] receives notice of an affirmative defense by some means other than
pleadings, the [opposing party’s] failure to comply with Rule 8(c) does not cause ... any
prejudice.” Huss v. King Co., 338 F.3d 647, 651 (6th Cir. 2003). In Griffin v. Reznick, 609 F.
Supp. 2d 695, 708–09 (W.D. Mich. 2008), the Court found that two of the defendants had not
waived their affirmative defense by raising it in a motion rather than in their answer because the
affirmative defense had been raised in the answer of the other defendants (“Well before Royal
and Nielson filed this motion, the filing of those other answers put the Griffins on notice that the
statute of limitations was being asserted as a possible ground for dismissal of the FDCPA
claim.”) See also P. & E. Elec., Inc. v. Utility Supply of America, Inc., 655 F. Supp. 89, 95 n. 1
(M.D. Tenn. 1986) (finding that, although certain defendants did not plead the statute of

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limitations as an affirmative defense in their answers, “the defense of statute of limitations was
raised by each of the other defendants and responded to by the plaintiff. The issues raised by that
defense would be identical for the defendants Don Wood and Utility. [T]he interests of justice
require the Court to consider the defense as not having been waived.”) (citation omitted)).
In the present case, Plaintiff cannot (and has not) claimed that he was surprised by
Defendant Patrick’s statute of limitations defense in light of the motions to dismiss of the other
defendants raising this same defense, nor has he claimed that he will be unfairly prejudiced if the
Court considers the defense. Because Plaintiff had a fair opportunity to respond to Defendant
Patrick’s statute of limitations argument, the Court finds that Plaintiff will suffer no prejudice by
allowing the defense and, therefore, Defendant Patrick did not waive her defense.
Turning now to the defense itself, it is undisputed that federal courts apply the state
personal injury statute of limitations in actions brought under § 1983. Wilson v. Garcia, 471 U.S.
261, 280 (1985). The statute of limitations for personal injury arising in Tennessee and brought
under federal civil rights statutes is one year. Tenn. Code Ann. § 28-3-104(a)(3). The statute of
limitations is tolled for the period of time during which the plaintiff is exhausting his available
administrative remedies. Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012) (citing Brown v.
Morgan, 209 F.3d 595, 596 (6th Cir. 2000)). In the present case, the Court must decide whether
Plaintiff’s § 1983 cause of action accrued when he exhausted his administrative remedies, which
would make this action untimely, or when the Court granted his habeas petition under 28 U.S.C.
§ 2254, which would make the action timely.4
Ordinarily, a plaintiff has no cause of action under § 1983 unless and until his conviction
or sentence are invalidated by the grant of a writ of habeas corpus. Heck, 512 U.S. at 489. “This
4

Clearly, any cause of action that Plaintiff has against Defendant Patrick for her alleged attempt
to extort money from him in July 2010 is barred by the one year statute of limitations.
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‘favorable termination’ requirement is necessary to prevent inmates from doing indirectly
through damages actions what they could not do directly by seeking injunctive relief - challenge
the fact or duration of their confinement without complying with the procedural limitations of the
federal habeas statute.” Nelson v. Campbell, 541 U.S. 637, 646-47 (2004) (citing Muhammad v.
Close, 540 U.S. 749 (2004)). Thus, under Heck and its progeny, a state prisoner’s § 1983 action
is barred, absent prior invalidation of a confinement or its duration, “if success in [the § 1983]
action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.
Dotson, 544 U.S. 74, 81 (2005).
The Sixth Circuit has recognized that Heck applies to proceedings that call into question
the fact or duration of parole or probation. See Noel v. Grzesiak, 96 F. App’x 353, 354 (6th Cir.
2004) (citation omitted). Accordingly, “claims which challenge the revocation of parole are not
cognizable under § 1983 until the parole revocation has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
Davis v. McGinnis, 1999 WL 313857 at *1 (6th Cir. May 5, 1999) (citation omitted). However,
in Dotson v. Wilkinson, 329 F.3d 463, 472 (6th Cir. 2003), aff’d, Wilkinson v. Dotson, 544 U.S.
74 (2005), the Sixth Circuit distinguished challenges to parole proceedings, as opposed to the
result of the parole hearing, from Heck and held that “a challenge to the procedures used during
the parole process as generally improper or improper as applied in his case [which] will at best
result in a new discretionary hearing the outcome of which cannot be predicted,. . . [is] a
challenge cognizable under section 1983. . . . [P]rocedural challenges to parole . . .
determinations . . . do not ‘necessarily imply’ the invalidity of the prisoner’s conviction or
sentence and, therefore, may appropriately be brought as civil rights actions, under 42 U.S.C. §

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1983, rather than pursuant to an application for habeas corpus.” See also Spencer v. Kemna, 523
U.S. 1, 17 (1998) (noting that Heck would bar an action under § 1983 if a plaintiff were seeking
damages for reaching the wrong result in his parole revocation hearing rather than using the
wrong procedures if his conviction had not been previously invalidated).
The Sixth Circuit has explained that, in Wilkinson,
the Court concluded that the plaintiffs’ challenges to parole procedures could
proceed under § 1983 because they did not automatically imply shorter sentences.
Instead, the best outcome that one of the Dotson plaintiffs could obtain was a
“new eligibility review, which will speed consideration of a new parole
application.” [544 U.S.] at 82. And success for the other plaintiff would entitle
him “at most” to “a new parole hearing at which Ohio parole authorities may, in
their discretion, decline to shorten his prison term.” Id. Thus, Dotson establishes
that when the relief sought in a § 1983 claim has only a potential effect on the
amount of time a prisoner serves, the habeas bar does not apply.
Thomas v. Eby, 481 F.3d 434, 439 (6th Cir. 2007) (footnote and emphases omitted).
In the present case, while Heck would have barred Plaintiff from bringing a § 1983 action
until his parole revocation was overturned if he had been challenging the fact of his revocation, it
did not bar a § 1983 action claiming that his due process rights were violated during the parole
revocation proceedings. See, e.g., Royster v. Imbrogno, 2017 WL 1365793 at *2 (S.D. Ohio
Apr. 14, 2017), R. & R. adopted, 2017 WL 2378403 (S.D. Ohio June 1, 2017) (finding that
because “Petitioner is not necessarily asking for his immediate release from prison, but only a
hearing that is, in his view, free from procedural defects” and “[t]hat type of claim can also be
brought under 42 U.S.C. § 1983,” his claim accrued on the date that he was denied parole);
Murdock v. Bruce, 2017 WL 1322075 at *6 (M.D. Tenn. Mar. 24, 2017) (finding that, to the
extent the plaintiff challenges “the processes of the parole hearing,” the allegations can be made
in a § 1983 action because “the logical remedy ... would be a new hearing at which no result
would be necessarily implied”); Horton v. Groat, 2006 WL 1752393 *2 (W.D. Mich. June 23,
2006) (“Prisoners may challenge the process of parole revocation proceedings, but not the result
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of those proceedings, under § 1983.”) C.f. Anyanwutaku v. Moore, 151 F.3d 1053, 1055-56
(D.C. Cir. 1998) (noting that, when a complaint alleges procedural defects in the parole
revocation process, such a challenge is not barred by Heck). See also Smith v. Sampson, 2010
WL 750195 *2 (E.D. Mich. Mar. 3, 2010) (“The Court notes that a state prisoner may maintain a
§ 1983 action for procedural challenges to a parole hearing [when] success in the action would
not necessarily call for an immediate or speedier release from custody. However, Plaintiff’s false
and inaccurate information claims go to the propriety of the parole revocation decision itself such
that ruling on those claims in Plaintiff's favor would necessarily demonstrate the invalidity of his
incarceration.”) (citing Wilkinson and Eby)); Williams v. Rubitschun, 2005 WL 3050445 at *2
(W.D. Mich. Nov. 14, 2005) (“Plaintiff’s contention is that the Defendants’ decision to revoke
parole was against the great weight of the evidence [when] the county prosecutor had not found
probable cause to charge Plaintiff with a crime.... If, however, Plaintiff is challenging the
procedures used during his parole revocation hearing and is seeking a second hearing using
proper procedures, he may proceed under § 1983 pursuant to Wilkinson.”).
To the extent that Plaintiff contends that Defendant’s action was a “continuing violation”
of § 1983 which resulted in his not being released until 2016, this contention is without merit.
“The Sixth Circuit has previously recognized two distinct categories of continuing violations,
namely, those alleging serial violations and those identified with a longstanding and
demonstrable policy of discrimination.”5 Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003)
(citations omitted). The first category of continuing violations “cannot be said to occur on any
particular day, but occur over a series of days or years.” Id. at 267. That category is not
5

The Sixth Circuit employs the continuing violations doctrine most commonly in Title VII
cases and rarely extends it to § 1983 actions. See, e.g., LRL Properties v. Portage Metro Hous.
Auth., 55 F.3d 1097, 1106 n. 3 (6th Cir. 1995).
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applicable to the facts of this case because Defendant’s alleged acts were discrete and occurred
on a particular day. Neither is the second category applicable because Plaintiff has not alleged
that Defendant’s actions were part of a “longstanding and demonstrable policy of
discrimination.” Therefore, Plaintiff cannot avail himself of this theory. See Eidson v. State of
Tennessee Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007) (“[A] continuing
violation is occasioned by continual unlawful acts, not continual ill effects from an original
violation.”) (citations omitted)).
Because Plaintiff’s allegations are based on the lack of due process afforded him in the
parole revocation proceedings rather than the fact or duration of his confinement, i.e., the parole
revocation itself, he was not required under Heck to file a habeas petition and obtain a favorable
result before proceeding under § 1983. Therefore, the statute of limitations for the present action
began to run in July 2011, when Plaintiff exhausted his administrative remedies, and this action
is barred by the statute of limitations. Accordingly, Defendant Patrick’s motion to dismiss is
GRANTED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date:

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October 5, 2017.