Johnson et al v. City of Memphis, Memphis Light Gas & Water Division
Filing
66
ORDER granting 39 Motion for Summary Judgment. Signed by Judge S. Thomas Anderson on 3/25/2014. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
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DOROTHY MAE JOHNSON, surviving spouse; )
and LOIS TOWNES, as Next of Kin to
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J. DEAN JOHNSON, deceased,
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Plaintiffs,
)
)
v.
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No. 12-02664-STA-tmp
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CITY OF MEMPHIS, MEMPHIS,
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LIGHT, GAS & WATER DIVISION,
)
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Defendant.
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______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Before the Court is Defendant Memphis Light, Gas, & Water Division’s (“MLGW”)
Motion for Summary Judgment (D.E. # 39), filed November 1, 2013. On December 20, 2013,
Plaintiffs Dorothy Mae Johnson and Lois Townes (collectively, “Plaintiffs”) filed a Response in
Opposition to the Motion (D.E. # 44) and on January 17, 2013, MLGW filed a Reply (D.E. #
65). For the reasons set forth below, the Court GRANTS Defendant’s Motion.
BACKGROUND
The Court finds the following facts undisputed for the purposes of summary judgment.
On February 5, 2010, decedent Dean Johnson’s (“Mr. Johnson”) niece Lois Jean Taylor
accompanied him to MLGW’s facility on Lamar Avenue to try to connect electrical utilities to
his Park Avenue apartment. (Taylor Dep. 31:20-33:10, 35:4-7, D.E. # 39-7.) MLGW declined
to connect Mr. Johnson’s utilities, because he did not have a state photo identification card or
driver’s license. (Id. at 35:8-15, 38:8-10.) On February 26, 2010, Mr. Johnson’s niece Lorena
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Taylor Jackson accompanied Mr. Johnson to MLGW’s facility to attempt once again to get his
utilities connected. (Jackson Dep. 34:19-35:7, D.E. # 39-8.) MLGW again declined to connect
Mr. Johnson’s utilities, because he did not have the required state photo identification card. (Id.
at 40:13-23.) On both trips, MLGW informed both Mr. Jackson and his accompanying niece that
he could not have his utilities connected without a state issued identification. (Id.; Taylor Dep.
35:815, 38:8-10.) Neither Mr. Johnson, nor anyone acting on his behalf, contacted MLGW again
after February 26, 2010. (Pls.’ Am. Answer to Def.’s First Set of Interrogs. 17, Def.’s Ex. 4,
D.E. # 39-9; Jackson Dep. 54:13-24.)
On August 5, 2011, Mr. Johnson died as a result of heat stroke. (Report of Diagnosis,
Pls.’ Ex. A, D.E. # 49.) On June 13, 2012, Plaintiffs filed a Complaint in the Circuit Court of
Shelby County, Tennessee, alleging that MLGW’s failure to provide utility services to Mr.
Johnson caused his death in violation of 42 U.S.C. § 1983; the Government Tort Liability Act
(“GTLA”), Tenn. Code Ann. § 29-20-205, et seq.; and Tennessee’s wrongful death statute, Tenn.
Code Ann. § 20-5-101 et seq. (Compl. ¶ 1, D.E. # 1-2). MLGW removed the action on July 27,
2012 (D.E. # 1).
STANDARD OF REVIEW
A party is entitled to summary judgment if it “shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 1 In reviewing a
motion for summary judgment, the court “may not make credibility determinations or weigh the
evidence[,]” 2 but instead must view the evidence in the light most favorable to the nonmoving
1
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Canderm
Pharmacal, Ltd. v. Elder Pharms, Inc., 862 F.2d 597, 601 (6th Cir. 1988).
2
Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
2
party. 3 When the movant supports their motion with documentary proof such as depositions and
affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some
“specific facts showing that there is a genuine issue for trial.” 4 It is not sufficient for the
nonmoving party “simply [to] show that there is some metaphysical doubt as to the material
facts.” 5 These facts must constitute more than a scintilla of evidence, and must rise to the level
that a reasonable juror could find by a preponderance of the evidence the nonmoving party is
entitled to a verdict. 6 To determine whether it should grant summary judgment, the court should
ask “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” 7
A court must enter summary judgment “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, on which that
party will bear the burden of proof at trial.” 8 The Sixth Circuit interprets this to mean that “the
nonmoving party . . . ‘put up or shut up’ [on] the critical issues of his asserted causes of action.” 9
ANALYSIS
MLGW argues that both Plaintiff’s federal section 1983 claims and his state law claims
are time-barred. The Court will address each in turn.
3
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
4
Celotex, 477 U.S. at 324.
5
Matsushita, 475 U.S. at 586.
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
7
Id. at 251-52.
8
Celotex, 477 U.S. at 322.
9
Lord v. Saratoga Capital, Inc., 920 F. Supp. 840, 847 (W.D. Tenn. 1995) (citing Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989)).
3
Section 1983 Claim
The statute of limitations for a section 1983 claim is the statute of limitations for personal
injury actions under the law of the state in which the claim arises. 10 Tennessee law provides that
any civil action for compensatory or punitive damages brought under the federal civil rights
statutes must be commenced within one year after the cause of action accrued. 11 Thus, Plaintiffs
had one year from the date the cause of action accrued to bring their section 1983 claim. MLGW
argues that Plaintiffs’ cause of action accrued in February 2010, when MGLW declined to
provide Mr. Johnson with utility services. Plaintiffs argue that their cause of action accrued
when Mr. Johnson died, in August 2011.
When the statute of limitations begins to run in a section 1983 action is a question of
federal law. 12 “Ordinarily, the limitation period starts to run when the plaintiff knows or has
reason to know of the injury which is the basis of his action.” 13 To determine when the cause of
action accrues, courts look at “what event should have alerted the typical lay person to protect
his or her rights.” 14 The weight of federal authority holds that a section 1983 wrongful death
claim is time-barred when the conduct complained of occurred outside the statute of limitations,
even if the death itself did not. 15
10
Eidson v. State of Tenn. Dept. of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007).
11
Tenn. Code Ann. § 28-3-104(a)(3).
12
Eidson, 510 F.3d at 635.
13
Id. (citing Kuhle Bros. Inc. v. Cnty of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)).
14
A to Z, Inc. v. City of Cleveland, 281 F. App’x 458, 460 (6th Cir. 2008) (quoting
Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000)).
15
See, e.g., Brockman v. Texas Dept of Criminal Justice, 397 F. App’x 18 (5th Cir. 2010)
(holding that claim was time-barred where mistreatment of decedent occurred outside of statute
of limitations, but decedent’s suicide occurred within statute of limitations, because decedent
4
Here, Mr. Johnson knew of MLGW’s refusal to initiate utility services as early as
February 5, 2010, when he was told that his services would not be connected unless he provided
state identification. Although Mr. Johnson did not die until August 5, 2011, the wrongdoing that
Plaintiffs allege occurred in February 2010 and Mr. Johnson knew of that conduct at the time it
occurred. Therefore, the claim arising out of that conduct accrued in February 2010. Because
Plaintiffs did not file their Complaint until June 13, 2012, more than one year had passed since
the claim accrued and Plaintiffs’ section 1983 claim is time-barred.
GTLA and Wrongful Death Claims
Plaintiffs also assert that MLGW’s failure to connect Mr. Johnson’s utilities violated the
GTLA and Tennessee’s wrongful death statute. Both causes of action have a one year statute of
limitations. The GTLA provides that a GTLA “action must be commenced within twelve (12)
months after the cause of action arises.” 16 Likewise, although the Tennessee wrongful death
statutes do not contain a specific statute of limitations, Tennessee “courts have uniformly applied
the one-year statute of limitation contained in § 28-3-104 governing actions for personal injuries
to actions for wrongful death.” 17 Like with their section 1983 claim, Plaintiffs argue that these
“should have known the quality of the treatment he was receiving before” his date of death.”);
Lockhart v. Govt of Virgin Islands, 2009 WL 812266 (D. Vi. March 26, 2009) (holding that
claim was time-barred where decedent was shot one day before he died and date of shooting was
outside statute of limitations, but date of death was within the statute of limitations); Ferderber
v. Cnty of Allegheny, 2006 WL 909478 (W.D. Pa. April 7, 2009) (same); Garrett v. Belmont
Cnty Sheriff Dept., No. 2:08-cv-0452, 2011 WL 765975, (S.D. Ohio Feb. 25, 2011) (holding
1983 claim was time-barred where decedent was denied medical attention by defendants outside
statute of limitations and committed suicide at a later date within the statute of limitations).
16
Tenn. Code Ann. § 19-20-305(b).
17
Collier v. Memphis, Light, Gas & Water Div., 657 S.W.2d 771, 774 (Tenn. Ct. App.
1983) (citing Jones v. Black, 539 S.W.2d 123 (Tenn. 1976)).
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causes of action accrued at Mr. Johnson’s death, while MLGW argues that they accrued in
February 2011, when MLGW refused to initiate Mr. Johnson’s utility services.
A cause of action for wrongful death accrues on the date on which the claim accrues for
the injury which resulted in the death. 18 “Where one suffers personal injury in an accident and
death later occurs, whether directly or indirectly caused by those injuries, the one year statute of
limitations runs from the date of the injury; not from the date of death.” 19 Further, “[t]he
wrongful death statute . . . does not create a new right of action for the beneficiaries; it only
preserves the Decedent’s right of action. Therefore, the statute may begin to run on the date of
the Decedent’s injury rather than the date of death.” 20 Similarly, “a cause of action ‘arises’
under the GTLA when the plaintiff discovers, or in the exercise of reasonable care should have
discovered, that he or she sustained an injury as a result of the defendant’s wrongful conduct.” 21
Because the same discovery rule applies to claims under GTLA as claims under Tennessee’s
wrongful death statute, the Court will apply the same analysis and finds that the statute of
limitations begins to run on the date of Plaintiffs’ injury, rather than the date of death.
As discussed above, the wrongful conduct, which caused the injury here was MLGW’s
failure to turn on Mr. Johnson’s utilities. This injury caused Mr. Johnson’s death. Both Mr.
Johnson and his nieces knew of this injury when it occurred in February 2010. Therefore,
although Mr. Johnson did not die until August 2011, the injury which starts the running of the
18
Craig v. R.R. Street & Co., Inc., 794 S.W.2d 351, 355 (Tenn. Ct. App. 1990), perm.
app. denied, (Tenn. 1990).
19
Hooper v. State Farm Mut. Auto. Ins. Co., 682 S.W.2d 505, 507 (Tenn. Ct. App. 1984).
20
Holliman v. McGrew, 343 S.W.3d 68, 74 (Tenn. Ct. App. 2009) (internal citations
omitted).
21
Sutton v. Barnes, 78 S.W.3d 908, 916 (Tenn. Ct. App. 2002) (citing Shadrick v. Coker,
963 S.W.2d 726, 733 (Tenn. 1998)).
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statute of limitations occurred in February 2010. Because Plaintiffs did not file their Complaint
until June 2013, the one year statute of limitations expired and both their wrongful death claim
and their GTLA claim are untimely.
Tolling of the Statute of Limitations
Plaintiffs argue alternatively that the statutes of limitations on the claims did begin to run
in February of 2010, but that they were tolled because Mr. Johnson was of unsound mind. Under
Tennessee law, the statute of limitations for a personal injury cause of action may be tolled if
“the person entitled to commence [the] action is, at the time the cause of action accrued . . .
adjudicated incompetent.” 22 Plaintiffs have provided no evidence that Mr. Johnson had been
adjudicated incompetent at the time of the injury. Instead, Plaintiffs rely on an old version of
Tennessee Code Annotated section 28-1-106, which stated that the statute of limitations could be
tolled “if the person entitled to commence [the] action is, at the time the cause of action accrued .
. . of unsound mind.” 23 The test for determining whether a person was of unsound mind for
purposes of that version of the statute was “whether that individual was unable to manage his or
her day-to-day affairs at the time the cause of action accrued.” 24 That version of the tolling
statute remained in effect until June 30, 2011 and therefore was the operative statute at the time
Plaintiffs’ cause of action accrued, although not at the time of Mr. Johnson’s death or when
Plaintiffs filed their Complaint. However, because this version of the tolling statute was in effect
22
Tenn. Code Ann. § 28-1-106 (2011).
23
Tenn. Code Ann. § 28-1-106 (amended 2011).
24
Wilhite v. Corr. Corp. of Am., 498 F. App’x 499, 502 (6th Cir. 2012) (internal
quotations and citation omitted); see also Wade v. Knoxville Utils. Bd., 259 F.3d 452, 461 n. 5
(6th Cir. 2001) (“To be of ‘unsound mind,’ Tennessee law requires that one be incapable of
attending to any business or taking care of himself.”).
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at the time Plaintiffs’ cause of action accrued, the Court will consider whether Plaintiffs have
provided sufficient evidence to defeat summary judgment.
The only evidence Plaintiffs have offered in support of their claim that Mr. Johnson was
of unsound mind from the time MLGW refused him services until his death are the affidavits of
Lorena Jackson and Melvin Hunt. However, these affidavits are insufficient to create a disputed
issue of fact sufficient to defeat summary judgment. As the Supreme Court has noted, appellate
courts “have held with virtual unanimity that a party cannot create a genuine issue of fact
sufficient to survive summary judgment simply by contradicting his or her own previous sworn
statement . . . without explaining the contradiction or attempting to resolve the disparity.” 25
Thus, courts have held that a party cannot create avoid summary judgment by filing an affidavit
that contradicts earlier deposition testimony. 26
Prior to filing their Response to MLGW’s
Motion for Summary Judgment, Plaintiffs had not raised the applicability of Tennessee Code
annotated section 28-1-106 or alleged that Mr. Johnson was of unsound mind. To the contrary,
Plaintiffs’ Complaint alleges that “Mr. Johnson was a healthy, active, and industrious man, sixtyfive (65) years of age, who worked for more than thirty-five (35) years full-time for the City of
Memphis Public Works/Sanitation Department, earning $37,000 per year.” 27 Further, nothing in
any of the excerpts of deposition testimony that either Party has provided suggests that Mr.
Johnson was unable to conduct his day to day affairs or that he was of unsound mind. Courts
have used the same reasoning discussed above to conclude that a party’s “statement[s] in his
affidavit, which clearly contradict[] factual allegations made in his complaint, [are] insufficient
25
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (citations omitted).
26
See, e.g., Aerel, S.R.L, v. PCC Airfoils, L.L.C., 448 F.3d 899, 907 (6th Cir. 2006); Peck
v. Bridgeport Machines, Inc., 237 F.3d 614, 619 (6th Cir. 2001)
27
(Compl. ¶ 4.)
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to create an issue of material fact to defeat a motion for summary judgment.” 28 The Court finds
that rule applicable here and as such concludes that Plaintiffs cannot now submit the affidavits of
Jackson and Hunt to create a dispute of material fact with their own allegations sufficient to
defeat summary judgment. Therefore, Plaintiffs have provided no evidence to show that Mr.
Johnson was of unsound mind and that the statute of limitations should be tolled.
Alternative Statutes of Limitations
Plaintiffs offer as an alternative argument that the one year statutes of limitations
discussed above do not apply to their claims. Rather, they argue, either the three year statute of
limitations for property tort claims provided in Tenn. Code Ann. section 28-3-105 or the six-year
statute of limitations for written or oral contracts provided in Tenn. Code Ann. section 28-3109(3) apply here. However, Plaintiffs Complaint clearly asserts causes of action based on the
personal injury to their decedent, Mr. Johnson, not any injury to his property. Nowhere do they
claim that MLGW breached any contract with Mr. Johnson. Thus, these arguments are without
merit and the one year statutes of limitations applied by the Court above govern in this case.
28
In re Taylor, No. 11-61117-jms, 2012 WL 2325659, at *3 (Bankr. E.D. Ky. June 19, 2012)
(citing Harriet & Henderson Yarns, Inc. v. Castle, 75 F. Supp. 2d 818, 835 (W.D. Tenn. 1999)).
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CONCLUSION
For the reasons set forth above, the Court GRANTS MLGW’s Motion for Summary
Judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: March 25, 2014.
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