Davis v. City of Memphis Fire Department et al

Filing 43

ORDER denying 40 Motion TRO; deferring ruling on 40 Motion for Preliminary Injunction; deferring ruling on 40 Motion for Permanent Injunction; denying 41 Motion for TRO; denying 42 Motion for TRO. Signed by Judge S. Thomas Anderson on 4/25/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
REGINALD ALAN DAVIS,

)
)
Plaintiff,
)
)
v.
)
No. 11-3076-STA-cgc
)
CITY OF MEMPHIS FIRE
)
DEPARTMENT; MAYOR A.C.
)
WHARTON; ALVIN BENSON,
)
individually and in his official capacity )
as Director of the Fire Department;
)
SANDRA RICHARDS, individually and )
in her official capacity; and DARYL
)
PAYTON, individually and in his
)
official capacity,
)
)
)
Defendants.
)
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR EMERGENCY TEMPORARY
RESTRAINING ORDER
______________________________________________________________________________
Before the Court is Plaintiff’s Motion for an Emergency Temporary Restraining Order,
Preliminary, and Permanent Injunction Enjoining the City of Memphis Fire Department from
Holding an Administrative Hearing and in the Alternative from Barring Lieutenant Davis’
Attorney from the Hearing (D.E. # 40), filed on April 25, 2012 at 2:38 p.m, (D.E. # 41), filed on
April 25, 2010 at 4:00 p.m., and (D.E. # 42), filed on April 25, 2012 at 4:30 p.m.1 For the
following reasons, Plaintiff’s Motion for a Temporary Restraining Order (“TRO”) is DENIED.
1

These Motions appear to be identical except for the change in Plaintiff’s
Counsel’s signature to conform with the Western District’s ECF Policies and Procedures.
1

This Order does not address Plaintiff’s Motion for a Preliminary or Permanent Injunction, and
they remain pending.
BACKGROUND
Plaintiff initially filed his Complaint on December 10, 2011. (D.E. # 1.) He filed an
Amended Complaint on December 13, 2011 (D.E. # 4), and filed a Revised and Corrected
Amended Complaint (D.E. # 15) on December 22, 2011. It is this Revised and Corrected
Amended Complaint (“the Amended Complaint”) which the Court has reviewed and upon which
the Court relies for purposes of this Motion.
Defendant the City of Memphis (“the City of Memphis”) issued a Notification of
Administrative Investigation and Hearing (“the Notification”) on April 19, 2012, at 11:57 a.m.
(“the Hearing”). (D.E. # 40-1, at 1.) This investigation arose from possible violations of the
Division of Fire Services Operations Manual and/or the City of Memphis Personnel Manual for
three separate instances: a June 8, 2011, factfinding investigation relating to allegations of
Defendant Deputy Chief Daryl Payton’s alleged assault on Plaintiff, Plaintiff’s alleged
appearance on Channel 24 Eyewitness News on April 2, 2012, with his counsel, and his
counsel’s alleged April 16, 2012, statements regarding Plaintiff’s airport-firehouse related
statements. (Id.)
The Hearing is set for April 26, 2012, at 7:30 a.m. (Id.) At the Hearing, Plaintiff is
entitled to Union representation. (Id.) Moreover, “[t]he results of this investigation and
[H]earing could lead to disciplinary action being taken against [Plaintiff], up to and including
termination.” (Id.)
STANDARD OF REVIEW
2

Federal Rule of Civil Procedure 65(b) governs TROs, and it provides that “the court may
issue a [TRO] without written or oral notice to the adverse party or its attorney only if” the
moving party satisfies two requirements.2 First, the moving party must present “specific facts in
an affidavit or a verified complaint [which] clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse party can be heard in opposition.”3
Second, the moving party’s attorney must certify “in writing any efforts made to give notice and
the reasons why notice should not be required.”4
TROs are “extraordinary remed[ies] which should be granted “only in the limited
circumstances which clearly demand [them]”5 and then “only if the movant carries his or her
burden of proving that [those] circumstances clearly demand [them].”6 The factors considered in
granting a TRO or a preliminary injunction are similar in nature;7 thus, when determining
whether a plaintiff is entitled to a TRO, courts consider four factors:
(1) whether the movant has shown a strong likelihood of success on the merits; (2)
whether the movant will suffer irreparable harm if the injunction is not issued; (3)
whether the issuance of the injunction would cause substantial harm to others; and
(4) whether the public interest would be served by issuing the injunction.8
2

Fed. R. Civ. P. 65(b).

3

Fed. R. Civ. P. 65(b)(1)(A).

4

Fed. R. Civ. P. 65(b)(1)(B).

5

Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).

6

Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.

2002).
7

Ray v. Franklin Cnty. Bd. of Elections, No. 2:08-cv-1086, 2008 WL 4966759, at
*1 (S.D. Ohio Nov. 17, 2008).
8

Leary, 228 F.3d at 736.
3

Courts “balance [these factors] against each other” in their evaluation of whether to issue a TRO,
but they do not serve as prerequisites.9
ANALYSIS
At the outset, the Court finds that Plaintiff has narrowly met the initial requirements of
Rule 65(b)(1). Plaintiff did not file an Affidavit with his Motion. While Plaintiff’s Amended
Complaint was not verified,10 he did verify his Motion, thereby satisfying a broad reading of Rule
65(b)(1)(A)’s requirement that a TRO movant present “a verified complaint.” Moreover,
Plaintiff provided a Certification of Notice which indicates that his counsel began attempting to
contact counsel Herman Morris11 for the City of Memphis on Saturday, April 21, by email, handdelivered letter, and telephone. His counsel also attempted to contact Venita Martin and Robert
Spence, counsel of record for all Defendants in this case, by phone on April 24, 2012, but she left
a voicemail “advising them that an application would be made by [Plaintiff] of a [TRO].”12
Plaintiff’s counsel also provided “reasons why [notice] should not be required” as mandated by
Rule 65(b)(1)(B), but her reasons leave much to be desired: she merely stated that “[t]his is an
emergency situation and time is of the essence in order to prevent [Plaintiff] from irreparable

9

Overstreet, 305 F.3d at 573.

10

The Court notes that Plaintiff’s original Complaint was verified by Plaintiff, and
the first version of his unrevised and uncorrected amended Complaint (D.E. # 4) was verified as
well.
11

The Court notes that Herman Morris has not entered a Notice of Appearance on
behalf of the City of Memphis in this case. The City of Memphis’ sole counsel of record is
Venita Martin.
12

(D.E. # 40, at 15.)
4

injury. Therefore notice should not be required.”13 Therefore, the Court finds that Plaintiff has
satisfied the threshold requirements of Rule 65(b)(1).
However, the Court finds Plaintiff’s initial arguments unavailing. Plaintiff’s initial
grounds for his TRO are the Sixth Amendment right to counsel, attorney-client privilege, and
Federal Rule of Civil Procedure 32 (“Rule 32”).14 First, the Sixth Amendment provides that “in
all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense.”15
Thus, by its text, the Sixth Amendment does not apply to Plaintiff because the Hearing is not a
criminal prosecution. Moreover, the Notification provides that Plaintiff is entitled to Union
representation. Second, as for attorney-client privilege, “it is important also to recognize that
under the law of this country a communication covered by attorney-client privilege is entitled to
protection regardless of whether the proceeding is civil, criminal or administrative, whether the
question arises in grand jury, in discovery or at trial, unless the client has waived the privilege.”16
Thus, Plaintiff should be able to assert the attorney-client privilege at the Hearing, and his fears
of waiving the attorney-client privilege are not good grounds for granting a TRO. Third, Rule 32
governs the use of depositions in court proceedings; the Hearing is not a deposition, and Plaintiff
is not yet at a trial in this Court at which Rule 32 would apply. Therefore, the Court finds that

13

(Id.)

14

(Pl.’s Mot., D.E. # 40, at 1.)

15

U.S. Const. amend. VI.

16

Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 188 F.R.D. 189, 199-200
(S.D.N.Y. 1999).
5

these grounds do not merit granting a TRO. However, the Court will also address the substance
of Plaintiff’s Motion.
Plaintiff addresses each of the four factors for granting a TRO in turn, and the Court will
do the same. First, Plaintiff argues that he is likely to succeed on the merits. Plaintiff reiterates
many of the facts from his Amended Complaint and asserts that “the [Hearing is] designed to
punish and terminate [Plaintiff] based on his attorney’s statements to the media informing the
public of the danger involved with having improperly trained firefighter[s] charged with public
safety at the airport.”17 He also asserts that he is “living proof” of Defendants’ violations of
various laws for assigning him to the airport firehouse even though they knew he was not trained
or properly certified to fight aircraft fires.18 He points to Defendants’ denial of his appeal of his
transfer from his permanent station, an alleged violation of the bargaining agreement with the
Union, as further proof that Defendants have retaliated against him.19
The Court is unpersuaded by Plaintiff’s arguments as to this first factor. Based on the
allegations contained in the Amended Complaint, it is not clear to the Court exactly which claims
Plaintiff has attempted to bring. Moreover, the Court is unable to conclude that Plaintiff would
prevail on the merits of those claims. Thus, the Court finds that this first factor, substantial
likelihood of success on the merits, weighs against granting a TRO.20

17

(Pl.’s Mot., D.E. # 40, at 7.)

18

(Id.)

19

(Id.)

20

Based on the Amended Complaint and the facts contained in Plaintiff’s Motion
alone, the Court is hard-pressed to conclude that Plaintiff would succeed on the merits without
holding a hearing. Dual problems prohibit the Court from further developing the factual and
6

Second, Plaintiff argues that the Whistleblower Act was enacted to protect Plaintiff and
ensure a meaningful and fair opportunity for him to litigate his retaliation claims; thus, Plaintiff
implies that he would suffer an irreparable injury if the Court does not issue a TRO.21 Plaintiff
focuses on the purpose of the Whistleblower Act as “effectively deputizing the eyes and ears of
private citizens” and argues that permitting the Hearing to occur would “obstruct justice and set a
precedent for future retaliation and instill fear in other firefighters that would come forward.”22
Plaintiff argues that if he is terminated, he will suffer “an unconscionable retaliation in the face
of justice,” thereby rendering “the whistleblower laws ineffective to protect whistleblowers.”23
Additionally, Plaintiff fears that allowing Defendants to proceed with the Hearing will permit
them to gain leverage in this case’s litigation and deprive him of the opportunity to finance this
lawsuit.24
Additionally, Plaintiff argues that he will suffer irreparable harm “if the City of Memphis
Fire Department is allowed to use their administrative powers to usurp the protection for
wrongful termination granted under the whistleblower laws and there will be no adequate remedy

legal basis for a TRO at this time. First, the Court is out of state at a judicial conference, and it is
thus unable to hold a hearing before the Hearing occurs tomorrow morning. Second, the
Notification issued on Thursday, April 19 at 11:57 p.m.; Plaintiff filed the Motion at 2:38 p.m.
on Wednesday, April 25, six days after the Notification issued. The Hearing is set to take place
tomorrow, Thursday, April 26 at 7:30 a.m. Thus, the urgency of this Motion was partially caused
by Plaintiff’s delay in filing it.
21

(Pl.’s Mot., D.E. # 40, at 7.)

22

(Id. at 7-8.)

23

(Id. at 8.)

24

(Id.)
7

at law.”25 Plaintiff asserts that Defendants seek to violate his protected rights under the
whistleblower laws and that “it would be a grave miss carriage [sic] of justice to allow them to
proceed with a hearing on the very claims of retaliation before this court.”26 Plaintiff alleges,
without citing to any documentation, that Defendants have already investigated and closed the
case against him eight months ago and that this Hearing is a mere farce intended to retaliate for
statements he made to the media.27 Plaintiff also asserts that he has been denied representation
by legal counsel at the Hearing, and he believes that the Hearing is designed to extract
information and to effectually litigate his claims of retaliation that are before the Court.28
Plaintiff fears that he is facing an unfair and partial hearing.29
The Court finds Plaintiff’s arguments regarding irreparable injury unavailing. Even if
Plaintiff is terminated, the very whistleblower laws upon which he relies in the instant Motion
will ensure that he is not irreparably injured. Losing one’s job is certainly an injury, but
whistleblower protection laws exist to ensure that plaintiffs can be fully compensated at law for
all of their damages arising from their wrongful terminations. Thus, if Plaintiff’s whistleblower
claim, to the extent he has made one, should prove meritorious, he will be fully compensated for
his injuries, and he will be made whole. Moreover, Plaintiff’s assertion that he will not be
represented by counsel is contradicted by the Notification, which states that he is entitled to a

25

(Id.)

26

(Id. at 9.)

27

(Id.)

28

(Id.)

29

(Id. at 10.)
8

Union representative. Furthermore, due process exists to protect individuals like Plaintiff from
unfair and partial hearings; if Plaintiff believes that the Hearing violates his due process rights,
he can seek legal redress in a court of law. Therefore, Plaintiff will not suffer an irreparable
injury if the Hearing occurs tomorrow, and this second factor weighs against granting a TRO.
Third, Plaintiff argues that no third parties will be unjustifiably harmed if the TRO is
granted and that the public interest will be served by granting a TRO.30 Plaintiff argues that
Defendants will not suffer any unreasonable harm if the Hearing is delayed because they have
already suspended him and locked him out of the system.31 Plaintiff asserts that “the public will
benefit greatly because they will still have faith in the protection offered by the Whistleblower
laws.”32 He further avers that “it is in the best interest of the public that Defendants are not
allowed to hide behind their policies to terminate and punish whistleblowers.”33
The Court finds that, while it is not in a position to know whether others would suffer
substantial harm without issuing a TRO, it will give Plaintiff the benefit of the doubt and find
that this factor weights in his favor. However, the fourth factor weighs against granting a TRO.
If Plaintiff is terminated as a result of the Hearing, his termination would not preclude any
remedies he may have. Moreover, the public’s faith in the protections of whistleblower law
would not be undermined by Defendants’ termination of Plaintiff or the occurrence of the
Hearing; instead, the public trust in the rule of law would be harmed only if courts declined to

30

(Id.) Plaintiff combines his arguments regarding the third and fourth factors.

31

(Id.)

32

(Id.)

33

(Id. at 11.)
9

enforce the protections afforded by those laws. Whistleblower laws do not exist to prevent
administrative hearings from occurring: they prohibit wrongful terminations and provide
adequate remedies at law when wrongful terminations in violation of their provisions do occur.
This Court has no intention of undermining the rule of law; denying a TRO in this instance
would not be against the public interest, nor would it undermine the public trust. Therefore, the
Court finds that the fourth factor weighs against granting a TRO.
After balancing the four factors, the Court finds that they weigh against granting a TRO
in this case. Therefore, Plaintiff’s Motion for a TRO is DENIED. The Court expresses no
opinion on Plaintiff’s Motion for Preliminary and Permanent Injunction. In his Motion, Plaintiff
alternatively requested the Court to “enjoin the Defendant and all persons acting on its behalf
from barring [Plaintiff’s] legal counsel from the [H]earing and allowing [the H]earing to be
recorded by a court reporter.”34 The Court will not grant this relief. The City of Memphis has
administrative policies and procedures which the Court presumes are available to Plaintiff and
will be followed during the Hearing. Plaintiff has presented no justification for interfering in the
administrative process in this way. Therefore, Plaintiff’s alternative relief is DENIED.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion is DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: April 25, 2012, 6:05 p.m.

34

(Id. at 12.)
10