Thomas v. Schroer et al

Filing 165

ORDER granting in part and denying in part 46 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jon Phipps McCalla on 9/14/2015. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WILLIAM H. THOMAS, JR.,
Plaintiff,
v.
JOHN SCHROER, Commissioner of
Tennessee Department of
Transportation, in his
official and individual
capacity; and JOHN REINBOLD;
PATTI BOWLAN; ROBERT SHELBY;
SHAWN BIBLE; and CONNIE
GILLIAM, in their individual
capacities,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 2:13-cv-02987-JPM-cgc

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PARTIAL
DISMISSAL OF SECOND AMENDED COMPLAINT

Before the Court is Defendants’ motion for partial
dismissal of second amended complaint, filed October 28, 2014.
(ECF No. 46.)
2014.

Plaintiff Thomas filed a response on November 28,

(ECF No. 57.)

December 15, 2015.

The parties filed supplemental briefing on
(ECF Nos. 64-65.)

For the reasons that

follow, the Court GRANTS IN PART AND DENIES IN PART Defendants’
motion for partial dismissal of second amended complaint.
I.

BACKGROUND
This case concerns alleged violations of Plaintiff William

H. Thomas Jr.’s constitutional rights.

Thomas alleges the

Tennessee Department of Transportation (TDOT) violated his

1

First, Fifth, and Fourteenth Amendment rights when it removed
certain of Thomas’ billboards and signs displaying noncommercial
content pursuant to the Billboard Regulation and Control Act of
1972 (“Billboard Act”), as set forth at Tennessee Code Annotated
§§ 54-21-101 to -123 (2008).

Thomas asserts that signs

displaying noncommercial content are exempt from permitting
pursuant to Tenn. Code Ann. § 54-21-107(a)(1).
A.

Procedural Background

On December 17, 2013, Thomas filed a complaint against all
Defendants.

(ECF No. 1.)

On February 3, 2014, Defendants filed

their first motion to dismiss for lack of jurisdiction.
No. 12.)

Defendants moved to dismiss, inter alia, claim no. 4

for declaratory relief as to the Crossroads Ford sign.
1.)

(ECF

(Id. at

On March 10, 2014, Defendants filed their answer to the

initial complaint.

(ECF No. 17.)

The Court granted Thomas

leave to amend the complaint as to the claim for retaliation,
and dismissed as moot in part Defendants’ motion to dismiss.
(ECF No. 34.)
2014.

Thomas filed an amended complaint on October 1,

(ECF No. 38.)

On October 10, 2014, Thomas filed an emergency motion for
temporary restraining order. (ECF No. 39.)

On October 13, 2014,

Defendants filed a motion for dismissal of amended complaint.
(ECF No. 40.)

The Court denied Thomas’ emergency motion for

2

temporary restraining order as moot on October 15, 2014.

(ECF

No. 43.)
On October 27, 2014, Thomas filed a second amended
complaint.

(ECF No. 45.)

Defendants filed the instant motion

for partial dismissal of the second amended complaint on October
28, 2014.

(ECF No. 46.)

Thomas responded in opposition to

Defendants’ motion to dismiss on November 28, 2014.
57.)

(ECF No.

The parties filed supplemental briefing on December 15,

2014.

(ECF Nos. 64-65.)

On May 22, 2015, Thomas filed two motions to compel
discovery and a motion to amend the existing scheduling order.
(ECF Nos. 86-88.)

On May 22, 2015, Thomas’ counsel filed a

motion to withdraw as attorney (ECF No. 85), which the Court
granted on June 15, 2015 (ECF No. 103).
se in the case.

Thomas now proceeds pro

Thomas’ motions to compel were referred to the

Magistrate Judge for determination on June 19, 2015.

(ECF Nos.

106-07.)
On June 10, 2015, Thomas filed an Emergency Motion for
Temporary Restraining Order (“TRO”), seeking to prevent
Defendants from removing his sign at the Crossroads Ford
location.

(ECF No. 96.)

Thomas sought to enjoin Defendants

from executing any judgments “resulting [from] or associated
with the Crossroads Ford billboard sign until such time as a
hearing can be held on the issues . . . .”
3

(Id. at 1.)

On June

11, 2015, Defendants filed a response in opposition to the
motion for TRO.

(ECF No. 99.)

On June 18, 2015, a motion

hearing was held regarding the TRO motion.

(ECF No. 104.)

On

June 24, 2015, the Court entered an order granting Thomas’
motion for emergency temporary restraining order.

(ECF No.

110.)
On July 8, 2015, Defendants filed supplemental briefing in
opposition to issuance of a preliminary injunction.
118.)

(ECF No.

Thomas filed a reply brief in support of a preliminary

injunction on July 13, 2015.

(ECF No. 124.)

The Court held a

preliminary injunction hearing on July 14, 2015.

(ECF No. 125.)

On September 8, 2015, the Court entered an order granting a
preliminary injunction.
B.

(ECF No. 163.)

Factual Background

Thomas is the owner of various tracts of real property at
various locations in the State of Tennessee. (ECF No. 45 ¶ 10.)
Thomas is in the business of posting outdoor advertising signs
for the display of commercial and noncommercial messages.
¶ 11; ECF No. 79 ¶ 11.)

(Id.

Thomas alleges that on several

occasions, he has used outdoor advertising signs located on
property in which he possesses a property interest, for the
display of noncommercial messages. (ECF No. 45 ¶ 12.)
TDOT has the responsibility of promulgating and enforcing
regulations related to billboards and outdoor advertising signs
4

under the Billboard Act.

(Id. ¶ 13; ECF No. 79 ¶ 13.) The State

of Tennessee and TDOT are authorized to regulate billboards and
outdoor advertising signs pursuant to the Federal Highway
Beautification Act of 1965 (“HBA”), as amended. (ECF No. 45
¶ 14; ECF No. 79 ¶ 14.)
Thomas alleges that Defendants “[have] embarked on courses
of action whereby the established practices and policies of TDOT
are not utilized with respect to Mr. Thomas’ applications and
existing signs.”

(ECF No. 45 ¶ 20.)

Thomas argues that the

personal statements and messages on his billboards are
noncommercial speech, and therefore are exempt from permitting
under Tennessee law because Thomas controls the property where
the signs are located. (Id. ¶¶ 22-26.)
In 2008 and 2009, Defendants removed Thomas’ signs located
in Fayette County (the “Fayette County signs”).
No. 79 ¶ 39.)

(Id. ¶ 39; ECF

Defendants removed two of Thomas’ outdoor

advertising signs—referred to as the “Kate Bond signs” in April
and October of 2011. (ECF No. 45 ¶¶ 33, 37; ECF No. 79 ¶¶ 33,
37.)

In October 2014, Defendants removed another of Thomas’

outdoor signs (the “Perkins Road sign”).
No. 79 ¶ 40.)

(ECF No. 45 ¶ 40; ECF

Thomas alleges that the Perkins Road sign “was

displaying exclusively on-premise, non-commercial content” at
the time of removal.

(ECF No. 45 ¶ 40.)

5

Defendants sought to have the Crossroads Ford sign removed
through an ongoing enforcement action in Chancery Court in
Shelby County, Tennessee.

(ECF No. 45 ¶ 27; ECF No. 79 ¶ 27.)

Thomas alleges that this ongoing enforcement action is a
continuation of an adversarial relationship between the parties.
(ECF No. 45 ¶ 29.)

Indeed, the Chancery Court issued an

injunction order in May of 2007, which included findings that
there was “‘substantial evidence of selective and vindictive
enforcement against the Defendant Thomas’ by TDOT.” State ex
rel. Com’r of Dep’t of Transp. v. Thomas, 336 S.W.3d 588, 595
(Tenn. Ct. App. 2010).

The Chancery Court enjoined TDOT “from

engaging in any further selective or vindictive enforcement acts
with regard to Defendant and Counter-Plaintiff Thomas.”
No. 45 ¶ 31; ECF No. 79 ¶ 31.)

(ECF

Thomas alleges, “During this

enforcement action, TDOT conceded that it had allowed similarly
situated billboards, that the Department initially alleged were
illegal, to display non-commercial messages and thereafter be
treated as exempt from TDOT regulation under T.C.A. §
54-21-107(a)(1).”

(ECF No. 45 ¶ 28.)

Defendants deny this

allegation (ECF No. 79 ¶ 28), and the Chancery Court’s
injunction was later vacated on jurisdictional grounds (ECF No.
45 ¶ 32; ECF No. 79 ¶ 32).
Thomas also asserts that “Defendants have refused to issue
[him] permits for outdoor advertising displays on property
6

designated as a [Planned Unit Development] (“PUD”) in Shelby
County[, Tennessee]” even though such permits have traditionally
been granted and are required by the HBA.

(ECF No. 45 ¶¶

43-47.)
Thomas asserts that he received a letter on May 26, 2015,
from George Boyte on behalf of TDOT and Defendant Schroer, which
stated that Thomas must remove the sign structure at the
Crossroads Ford location by June 26, 2015.

(ECF No. 96 at 4.)

Thomas asserts he received an additional letter on June 1, 2015,
from George Boyte on behalf of TDOT and Defendant Schroer, which
stated that they would be seeking an order from Chancellor Evans
in Shelby County Chancery Court, granting them permission to
forcibly remove the sign structure at Crossroads Ford. (Id. at
4-5.) Thomas asserts that he received an Application for Entry
of Judgment Declaring a Public Nuisance and Injunction for
Removal of Unlawful Billboard on June 5, 2015, from George Boyte
on behalf of Defendants and TDOT wherein they seek to have the
billboard at Crossroads Fords declared a public nuisance and
have it forcibly removed.

(Id. at 5.)

Thomas alleges that Defendants, in their individual
capacities, violated his First Amendment rights and equivalent
free speech guarantees under the Tennessee Constitution.
No. 45 ¶¶ 61-72.)

(ECF

Thomas alleges that Defendants retaliated in

violation of his First Amendment rights.
7

(Id. ¶¶ 73-79.)

Thomas fears that “[b]ased on Defendants’ unlawful removal of
the Kate Bond signs, there is a risk that Defendants will remove
the Crossroads Ford sign.” (Id. ¶ 67.)

Consequently, Thomas

seeks a declaratory judgment against Defendant Schroer in his
official capacity.

(Id. ¶¶ 93-102.)

Thomas also alleges that

Defendants in their individual capacities violated his equal
protection rights under the Fourteenth Amendment (Id. ¶¶ 80-92).
II.

STANDARD OF REVIEW
Under Rule 12(b)(6), a court can dismiss a complaint for

“failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).

“A pleading that states a claim for

relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief . . . .”
Fed. R. Civ. P. 8(a)(2).
In assessing a complaint for failure to state a claim,
[a court] must construe the complaint in the light
most favorable to the plaintiff, accept all well-pled
factual allegations as true, and determine whether the
complaint
“contain[s]
sufficient
factual
matter,
accepted as true, to state a claim to relief that is
plausible on its face.”
Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 790
(6th Cir. 2012) (second alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“This standard is

not akin to a probability requirement, but it asks for more than
a sheer possibility that a defendant has acted unlawfully.”
Williams v. Duke Energy Int’l, 681 F.3d 788, 799 (6th Cir. 2012)
8

(quoting Iqbal, 556 U.S. at 678) (internal quotation marks
omitted).
The Court “need not accept as true legal conclusions or
unwarranted factual inferences, and [c]onclusory allegations or
legal conclusions masquerading as factual allegations will not
suffice.”

In re Travel Agent Comm’n Antitrust Litig., 583 F.3d

896, 903 (6th Cir. 2009) (alteration in original) (citation
omitted) (internal quotation marks omitted); see also Mik v.
Fed. Home Loan Mortg. Corp., 743 F.3d 149, 157 (6th Cir. 2014)
(“[A] complaint must contain ‘more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007))).

“Issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are
deemed waived.

It is not sufficient for a party to mention a

possible argument in [a] skeletal way, leaving the court to put
flesh on its bones.”

El-Moussa v. Holder, 569 F.3d 250, 257

(6th Cir. 2009) (alteration in original) (quoting McPherson v.
Kelsey, 125 F. 3d 989, 995-96 (6th Cir. 1997)).
When a court is presented with a Rule 12(b)(6) motion,
it 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 so long as they are
referred to in the Complaint and are central to the
claims contained therein.

9

Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir. 2008).
III. ANALYSIS
Defendants challenge Thomas’ second amended complaint on
the following grounds: 1) running of the statute of limitations;
2) application of the doctrine of res judicata; 3) insufficiency
of Thomas’ First Amendment claims; 4) insufficiency for claims
of retaliation; 5) qualified and quasi-judicial immunity;
6) unavailability of claims under the Tennessee Constitution;
and 7) Eleventh Amendment prohibition of injunctive and
declaratory relief as to state-law claims. (ECF No. 47.)
A.

Statute of Limitations

The Supreme Court instructs that
[w]here a federal statute provides a cause of
action but does not specify a limitations period,
courts
determine
the
appropriate
statute
of
limitations in one of two ways. First, if the federal
cause of action arises under an Act of Congress
enacted after December 1, 1990, it is governed by 28
U.S.C. § 1658, which prescribes a four-year statute of
limitations period.
Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 382, 124 S. Ct. 1836, 158 L. Ed. 2d
645 (2004).
Alternatively, courts borrow the most
analogous state limitations period, so long as the
application of state law is not “at odds with the
purpose or operation of federal substantive law.”
McCormick v. Miami Univ., 693 F.3d 654, 662 (6th Cir. 2012)
(quoting North Star Steel Co. v. Thomas, 51 U.S. 29, 34 (1995)).
Section 1983 does not specify a limitations period, Owens v.
Okure, 488 U.S. 235, 239 (1989), and is the codification of § 1
10

of the Civil Rights Act of 1871, Wilson v. Garcia, 471 U.S. 261,
262 (1985).

Consequently, the applicable statute of limitations

for a § 1983 claim is the most analogous state limitations
period.

See McCormick, 693 F.3d at 662; Holson v. Good, 579 F.

App’x 363, 366 (6th Cir. 2014) (applying Ohio statute of
limitations to § 1983 claim).

Under Tennessee law, “civil

actions brought under the federal civil rights statutes shall be
commenced within one year after the cause of action accrued,”
pursuant to Tenn. Code Ann. § 28-3-104. Jackson v. Richards Med.
Co., 961 F.2d 575, 578 (6th Cir. 1992).
Additionally, federal law determines when a claim begins to
accrue.

Harrison v. Michigan, 722 F.3d 768, 772-73 (6th Cir.

2013), cert. denied, 134 S. Ct. 1023 (2014).

Under federal law,

accrual commences at the time “the plaintiff knows or has reason
to know that the act providing the basis of his or her injury
has occurred.”

Collyer v. Darling, 98 F.3d 211, 220 (6th Cir.

1996).
Defendants argue that the one-year statute of limitations
set forth in Tenn. Code Ann. § 28-3-104 bars Thomas’ claims
related to the Kate Bond and Fayette County signs.

Defendants

assert that claims related to the Kate Bond and Fayette County
signs began to accrue “on the date the signs were removed.”
(ECF No. 47 at 11.)

Defendants further assert that the

allegations in the second amended complaint establish that
11

removal of those signs occurred more than one year prior to the
filing of the initial complaint on December 17, 2013.

(Id.)

Thomas argues that Defendants’ assertion that the claims
related to the Kate Bond and Fayette County signs began to
accrue at the time of removal is unsupported by case law.
No. 57 at 11.)

(ECF

Thomas asserts that “the fact that there is

still an active state court proceeding pending regarding [the
Kate Bond] signs” shows that his claims are not time-barred.
(See id. at 12.)

Additionally, Thomas states that “the gravamen

of [his] First Amendment claim and equal protection claim is
Defendants’ conduct regarding the Crossroads Ford sign and
Perkins Road sign.”

(Id. at 11.)

The Court agrees with Defendants that Tenn. Code Ann. §
28-3-104 sets the limitations period for Thomas’ § 1983 claims.
See Jackson, 961 F.2d at 578.

Thomas’ First Amendment and equal

protection claims both rely in part on the removal of the
Fayette County and Kate Bond signs.

(See ECF No. 45 ¶¶ 67-68,

86.)
Additionally, Thomas alleges that Defendants forcibly
removed the Kate Bond signs in April and October of 2011.

(ECF

No. 45 ¶¶ 33, 37.) Thomas further alleges that Defendants
forcibly removed the Fayette County signs in 2008 and 2009.
(Id. ¶ 39.)

Because Thomas filed the initial complaint in the

present action on December 17, 2013 (see ECF No. 1), removal of
12

the Fayette County and Kate Bond signs fall outside the one-year
statute of limitations.

Consequently, Thomas’ First Amendment

and equal protection claims that are based on the removal of the
Fayette County and Kate Bond signs are time-barred. 1
Thomas’ claim for retaliation, however, does not depend on
the removal of the Fayette County and Kate Bond signs.

Instead,

that claim is premised on the Commissioner’s filing of a
recoupment action against Thomas in the Twentieth Judicial
District Chancery Court for the State of Tennessee.
¶ 76.)

(ECF No. 45

Accepted as true, Thomas would not have reason to know

the grounds for retaliation until the filing date of the
recoupment action in March 2014.

(See id.)

Because the alleged

filing date falls within a year of the filing of the instant
action, Thomas’ claim for retaliation is not time-barred as a
matter of law.
Accordingly, Thomas’ First Amendment and equal protection
claims that are based on the removal of the Fayette County and
Kate Bond signs are hereby dismissed with prejudice.

1
Although not argued by Defendants, Thomas may have had reason to know of the
basis of his First Amendment and equal protection claims upon TDOT’s denial
of permits for the relevant signs. Because removal of the Fayette County and
Kate Bond signs occurred more than one year prior to filing of the instant
action, the Court need not determine whether accrual began at an earlier
date.

13

B.

Res Judicata

A successful claim of res judicata “extinguish[es] all
rights of the plaintiff to remedies against the defendant with
respect to all or any part of the transaction, or series of
connected transactions, out of which the action arose.”
Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 650 (6th
Cir. 2007) (internal quotation marks omitted).

“[W]hen

considering the preclusive effect of a state court judgment,
[the Court] must look to the law of that state.”

Id.

To

succeed on a claim of res judicata, the plaintiff must establish
the following elements:
(1) there is a final decision on the merits of the
first action by a court of competent jurisdiction; (2)
the second action involves the same parties, or their
privies, as the first; (3) the second action raises an
issue actually litigated or which should have been
litigated in the first action; and (4) there is
identity of claims.
Id. at 650 n.4 (internal quotation marks omitted).
Defendants assert that the doctrine of res judicata
precludes Thomas’ claims that “pertain[] to the removal of the
Kate Bond and Fayette County signs.” (ECF No. 47 at 12.)
Because the Court has ruled that claims based on the removal of
the Kate Bond and Fayette County signs are time-barred, supra
Part III.A, the Court finds it unnecessary to reach the issue of
whether those claims are also barred under the doctrine of res
judicata.
14

Defendants also assert that Thomas’ claims that relate to
the Perkins Road sign are barred by the doctrine of res
judicata.

(ECF No. 47 at 13.)

Defendants contend that “[i]f

plaintiff believed that the defendants’ actions were in fact
violative of his Constitutional rights, he could have and should
have raised that in the state court action.

Since he did not,

he is now barred from raising that as an issue here.”

(Id.)

Defendants’ res judicata defense regarding the Perkins Road
sign fails as to the second and third elements.

With regard to

the second element, the individual Defendants in the instant
case are dissimilar from the parties in the state court cases.
As Defendants argued in their response in opposition to Thomas’
first motion amend his complaint,
[n]one of the defendants in this case are parties
in the Davidson Chancery case. [See, Exhibit 1]. The
only parties in that matter are Commissioner Schroer
in his official capacity only and William H. Thomas,
Jr. [Exhibit 1]. Plaintiffs do not name Commissioner
Schroer in his official capacity in this suit.
(ECF No. 23 at 6 (alterations in original).)

Defendants further

argued that
Section
1983
only
authorizes
the
imposition
of
liability against [e]very “person” who, acting under
color of state law, violated another person’s rights.
As a matter of law, the term “person” in 42 U.S.C. §
1983 does not include states, state agencies, or state
employees sued in their official capacities.
Will,
491 U.S. at 71, 109 S. Ct. at 2312, 105 L. Ed. 2d at
58; Howlett v. Rose, 496 U.S. 356, 365, 100 S. Ct.
2430, 110 L. Ed. 2d 332 (1990).
While “state
officials literally are persons, . . . a suit against
15

the official in his or her official capacity is not a
suit against the official but rather is a suit against
the official’s office.
As such, it is no different
from a suit against the state itself.” Will, 491 U.S.
at 71, 109 S. Ct. at 2312, 105 L. Ed. 2d 45.
(ECF No. 23 at 6-7.)

Accordingly, Defendants have not

established the second res judicata element as to the individual
Defendants.
Commissioner Schroer, however, has been added in his
official capacity as a named defendant in the second amended
complaint.

(See ECF No. 45 ¶ 2.)

Consequently, Defendants have

satisfied the second element as to claims against Commissioner
Schroer in his official capacity.
Defendants’ res judicata defense fails as to the third
element with regard to Commissioner Schroer in his official
capacity.

In the relevant state court proceedings, Thomas filed

a counterclaim alleging constitutional violations against TDOT
officials, which included Commissioner Schroer in his official
capacity.

Com’r of Dep’t of Transp. v. Thomas, 336 S.W.3d at

593-94, 605.

The Court of Appeals found that the Chancery Court

lacked subject matter jurisdiction to hear the counterclaim
against Commissioner Schroer and TDOT.

Id. at 608.

Consequently, the Shelby County Chancery Court was not a Court
of competent jurisdiction and there was no final determination
of Thomas’ constitutional claims on the merits in the relevant
state court proceedings.
16

Because Defendants’ res judicata arguments fail to
establish the second and third elements of a res judicata
defense, the Court need not reach the fourth element.
Accordingly, the Court finds that res judicata does not bar any
claims regarding the Perkins Road sign.
C.

First Amendment Violations

Defendants argue that the Billboard Act and the on-premise
exemption provided therein are facially content-neutral.
No. 47 at 7.)

(ECF

Consequently, Defendants contend, the Billboard

Act is subject to reasonable time, place and manner
restrictions.

(See id. at 6-7.)

Defendants aver that the

Billboard Act is narrowly tailored because “there are ample
other means of communication that are available.”

(Id.)

Defendants assert that the Billboard Act serves significant
governmental interests of driver safety and preservation of the
aesthetic beauty of state highways.

(Id.)

Thomas contends that

his signs are exempt from regulation under the on-premise
exemption because they display noncommercial speech.

(ECF No.

57 at 3-4.)
In its Order Granting Preliminary Injunction, the Court
analyzed the likely unconstitutionality of the Billboard Act.
(ECF No. 163.)

For the purpose of this Rule 12(b)(6) motion,

the Court assumes that the Billboard Act is constitutional.
Court, therefore, need not address in this order the
17

The

constitutionality of the Billboard Act as a reasonable time,
place, and manner restriction that survives strict scrutiny.
Moreover, as to the instant motion, Thomas does not seek to
challenge Defendants’ argument on the issue of whether the
Billboard Act is a reasonable time, place, and manner
restriction.

(ECF No. 57 at 3-4.)

Rather, Thomas alleges that

Defendants have restricted his speech by requiring billboard
permits for the Crossroads Ford and Perkins Road locations when
those billboards are exempt under the on-premise exception in
§ 54-21-107(a)(1).

(ECF No. 45 ¶¶ 22-26, 40.)

These

allegations are supported by specific facts that are sufficient
under Iqbal and Twombly, and therefore, Thomas’ First Amendment
claims cannot be dismissed.
Both parties agree that Defendants seek to remove the
Crossroads Ford billboard and have removed the Perkins Road
billboard because Thomas lacks permits for those locations. (ECF
No. 45 ¶¶ 27, 40; ECF No. 79 ¶¶ 27, 40.)

Thomas argues that

those billboards are exempt from permitting because they display
noncommercial, on-premise content.
40.)

(ECF No. 45 ¶¶ 22, 25-26,

For example, Thomas asserts that in the fall of 2012, the

Crossroads Ford billboard displayed an American flag and
referenced the holiday season.

(Id. ¶ 24.)

He argues that such

displays of his “personal expressions . . . are, by definition,

18

located on the premises ([his] property) of the message ([his]
thoughts).”

(ECF No. 57 at 7.)

Defendants assert that Thomas’ billboards are not exempt
under the Billboard Act because an exempt billboard must be “(1)
located on the same premises as the activity advertised; and (2)
have as its purpose the identification of the activity conducted
or product sold there or the sale or lease of the property on
which it is located.”

(ECF No. 47 at 8.)

Defendants argue that

Thomas’ billboards do not advertise any activity or product and
therefore do not meet the requirements of an on-premise sign.
(Id.)
Advertising, however, is not limited to commercial
activities.

See Metromedia, Inc. v. City of San Diego, 453 U.S.

490 (1981) (requiring commercial billboard advertising and
noncommercial billboard advertising be subject to the same
regulations); Midwest Media Prop., L.L.C., v. Symmes Twp., Ohio,
503 F.3d 456, 466 (6th Cir. 2007) (“the sign regulations clearly
distinguish different types of speech--including political,
commercial, and noncommercial”).

Noncommercial speech such as

expressions of one’s thoughts can be an advertised activity.
Moreover, Thomas cites case law that classifies
noncommercial advertising as inherently on-premise because “[a]n
idea, unlike a product, may be viewed as located wherever the
idea is expressed, i.e., wherever the speaker is located . . .
19

[or] wherever the speaker places it.”

(ECF No. 57 at 5 (quoting

Southlake Prop. Assocs., Ltd. v. City of Morrow, 112 F.3d, 1114,
1119 (11th Cir. 1997).)

Although this Court is not required to

apply Eleventh Circuit precedent, the reasoning in Southlake is
sufficiently persuasive for Thomas’ First Amendment claims to
survive Defendants’ Rule 12(b)(6) challenge.
If the Court were to operate under the assumption that the
Billboard Act is unconstitutional, the outcome on Defendants’
motion to dismiss would remain the same.

His First Amendment

claims would not be dismissed because the statute pursuant to
which Defendants were operating when they removed or sought to
remove Thomas’ billboards would no longer be in effect.

Thus,

Thomas’ argument would not be that his billboards qualified as
on-premise signs under the Billboard Act exception, but rather
that, in the absence of the Billboard Act, his billboards were
not subject to regulation.
Therefore, whether the Billboard Act is constitutional or
not, the Court finds that Thomas has sufficiently alleged facts
to support his First Amendment claims.

Accordingly, Defendants’

motion to dismiss Thomas’s First Amendment claims is denied.
D.

Retaliation

“[A]dverse state action motivated at least in part as a
response to the exercise of the plaintiff’s constitutional
rights presents an actionable claim of retaliation.”
20

Barnes v.

Wright, 449 F.3d 709, 718 (6th Cir. 2006) (internal quotation
marks omitted).

“[W]here constitutionally protected speech is a

motivating factor in governmental action adverse to the
plaintiff, the adverse action is unconstitutional (assuming the
requisite degree of seriousness) unless the same action would
have been taken even in the absence of the protected conduct.”
Id. (internal quotation marks omitted).
A First Amendment retaliation claim requires the plaintiff
to establish the following elements:
(1) that there was constitutionally-protected conduct;
(2) an adverse action by defendants sufficient to
deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) a causal connection
between the first and second elements--that is, the
adverse action was motivated at least in part by
plaintiff’s protected conduct.
Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 207 (6th Cir.
2010).

Once the plaintiff has met his burden of establishing

that his protected conduct was a motivating factor behind any
harm, the burden of production shifts to the defendant.
Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999).
To succeed on a retaliation claim for malicious
prosecution, the plaintiff must also show a lack of probable
cause.

Barnes, 449 F.3d at 720.

“Probable cause requires only

the existence of such facts and circumstances sufficient to
excite in a reasonable mind the belief that the accused is
guilty of the crime” or liable in a civil suit.
21

See Hill v.

White, 190 F.3d 427, 431 (6th Cir. 1999).

“The existence of

probable cause does not depend upon a subjective assessment of
the defendant’s mental state, but instead is determined solely
from an objective examination of the surrounding facts and
circumstances.”

Id. (internal quotation marks omitted).

The

burden is on the plaintiff to prove a lack of probable cause.
Id.
Defendants argue that Thomas cannot establish a lack of
probable cause because the Chancery Court and the Court of
Appeals of Tennessee already determined that Thomas’ signs were
illegal.

(See ECF No. 47 at 14.)

Defendants further argue that

TDOT was within its rights to recoup its costs for removing the
illegal signs under Tenn. Code Ann. § 54-21-105.
14-15.)

(ECF No. 47 at

Defendants further argue that the only Defendant in the

instant case that is party to the Chancery Court case for
recoupment of costs is Commissioner Schroer.

(Id. at 15.)

Defendants contend that Thomas’ allegations against Commissioner
Schroer for retaliation are conclusory and fail under Rule
12(b)(6).

(ECF No. 47 at 15.)

Thomas argues that his filing of the instant lawsuit is
protected conduct under the First Amendment.
15.)

(ECF No. 57 at

Additionally, Thomas asserts that he has sufficiently

alleged that the filing of the Chancery Court action for
recoupment “would chill an ordinary person from continuing to
22

pursue their claims against Defendants.”
45 ¶¶ 55-59, 77-78).)

(Id. (citing ECF No.

Thomas also asserts that the second

amended complaint “plainly alleges the adverse action taken by
Defendants was motivated at least in part by Mr. Thomas’
exercise of a protected activity.”
58, 77).)

(Id. (citing ECF No. 45 ¶¶

Thomas avers that even though Defendants have

asserted that they would have taken the same action regardless
of whether Thomas filed the instant lawsuit, Thomas’ allegations
that Defendants’ actions were motivated by Thomas’ protected
conduct controls at the pleadings stage of a case.

(Id. (citing

In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 903
(6th Cir. 2009); Newsome v. Holiday Inn Express, 803 F. Supp. 2d
836, 839 (W.D. Tenn. 2011)).)

Thomas does not address

Defendants’ argument that he has failed to demonstrate a lack of
probable cause.
The Court agrees with Thomas that his allegations satisfy
the first and third elements of a retaliation claim.

With

regard to the first element, Thomas has alleged retaliation in
response to his filing of the instant case.

The filing of a

lawsuit to enforce one’s constitutional rights is a protected
activity under the First Amendment.

Eckerman, 636 F.3d at 208

(“The filing of a lawsuit to redress grievances is clearly
protected activity under the First Amendment.”).
With regard to the third element,
23

[o]nce
the
plaintiff
has
met
his
burden
of
establishing
that
his
protected
conduct
was
a
motivating factor behind any harm, the burden of
production shifts to the defendant. Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.
Ct. 568, 50 L. Ed. 2d 471 (1977).
If the defendant
can show that he would have taken the same action in
the absence of the protected activity, he is entitled
to prevail on summary judgment.
Thaddeus-X, 175 F.3d at 399.

In the second amended complaint,

Thomas alleges that “Defendants’ motivation for filing the
Chancery Court action . . . was the fact that Mr. Thomas was
pursuing this action against them.”

(ECF No. 45 ¶ 77.)

Thomas

further alleges that Defendants decided to file the Chancery
Court action for recoupment of costs after they had slept on
those causes of action for over four years.

(Id.)

These

allegations, accepted as true and viewed in a light most
favorable to Thomas, are sufficient to establish that Thomas’
filing of the instant case was the motivation for the Chancery
Court action.

Additionally, Defendants have not argued that

they or Commissioner Schroer would have filed the Chancery Court
action in the absence of Thomas’ pursuance of the instant case.
(See ECF No. 47.)

Accordingly, Thomas has established the third

element under Rule 12(b)(6).
Thomas, however, fails to allege facts sufficient to
establish the deterring effect and lack of probable cause as to
the filing of the March 2014 Chancery Court action for

24

recoupment of costs.

To establish deterrence, Thomas must

allege facts sufficient to
show the actions were “capable of deterring a person
of ordinary firmness from exercising his or her
right[s].” Id. at 398. A chilling effect sufficient
under this prong is not born of de minimis threats or
“inconsequential
actions,”
but
neither
does
the
requisite showing permit “solely egregious retaliatory
acts . . . to proceed past summary judgment.” Id.
Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477
F.3d 807, 822 (6th Cir. 2007) (quoting Thaddeus-X, 175 F.3d at
398).

Thomas’ sole allegations as to deterrence are:

1) ”Commissioner Schroer filed the aforementioned Chancery Court
action in hopes of chilling Mr. Thomas’ exercise of his First
Amendment rights and deterring Mr. Thomas from pursuing this
action”; and 2) ”Through this recently-filed Chancery Court
action, Defendants are also attempting to deter Mr. Thomas from
continuing to pursue this action to protect his rights.”
No. 45 ¶¶ 57, 78.)

(ECF

These allegations are conclusory and

unsupported by factual allegations in the second amended
complaint.

Consequently, under Iqbal and Twombly, these

allegations fail to establish that the Chancery Court filing
would “deter a person of ordinary firmness from continuing to”
pursue the instant lawsuit.

See Eckerman, 636 F.3d at 207.

With regard to lack of probable cause, the Court is unable
to locate a single factual allegation that relates to this
element.

Even assuming that the sole motivation for filing the
25

Chancery Court action was to deter Thomas from proceeding with
the instant case, Thomas’ complaint still fails to state a claim
upon which relief can be granted.

Under § 54-21-105(b),

If advertising content is placed on the device during
any extended period, the device may be immediately
removed by the commissioner without further notice.
The owner of the structures shall be liable to the
state for damages equal to three (3) times the cost of
removal, in addition to any other applicable fees,
costs or damages, but the owner of the land on which
the sign is located shall not be presumed to be the
owner of the sign simply because it is on the owner’s
property.
Thomas does not dispute Defendants’ assertion that the legality
of the Fayette County and Kate Bond signs at issue in the March
2014 Chancery Court action for recoupment and their removal was
previously determined in separate state court proceedings.

(See

ECF Nos. 45, 57; see also ECF No. 64-2 (collecting cases), ECF
No. 135-1 (Defendant’s Complaint in the March 2014 Chancery
Court action).)

Thomas also does not contest that those signs

that were removed were displaying content at the time of their
removal.

(See ECF No. 57.)

Rather, Thomas admits that the

Perkins Road sign displayed noncommercial content at the time it
was removed and indicates that the Kate Bond and Fayette County
signs displayed commercial content at the time of their
respective removal by alleging that those signs were forcibly
removed “without allowing Plaintiff to display on-premise,
noncommercial speech on the existing signs . . . .”

26

(ECF No. 45

¶¶ 37-40, 67-70.)

Consequently, the express language of

§ 105(b) of the Billboard Act authorized Commissioner Schroer to
file the suit to recover the costs of removing those signs and
other related damages.

Under these circumstances, Thomas has

not alleged any fact that would shed doubt on whether
Commissioner Schroer had probable cause to pursue the lawsuit.
For these reasons, Thomas’ retaliation claim is hereby
dismissed with prejudice.
E.

Immunity

Defendants argue that they are entitled to qualified
immunity with regard to Thomas’ First Amendment, equal
protection and retaliation claims, and quasi-judicial immunity
with regard to Thomas’ claims that are based on removal of the
Perkins Road sign. 2

Because Thomas’ claim for retaliation is

dismissed with prejudice, the Court does not consider whether
Defendants are also entitled to qualified immunity from that
claim.
1.

Qualified Immunity

“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
2

In a previous action, Thomas brought First and Fourteenth Amendment claims
against TDOT for alleged unlawful enforcement of the Billboard Act.
Complaint at 11-15, Thomas v. Tenn. Dep’t of Transp., No. 2:13-CV-02185 (W.D.
Tenn. Mar. 25, 2013), ECF No. 1. The Sixth Circuit affirmed this Court’s
dismissal of the case. Thomas v. Tenn. Dep’t of Transp., 579 F. App’x 331,
332 (6th Cir. 2014). Thomas’ claims against TDOT were barred by the Eleventh
Amendment and Thomas’ was not permitted to add TDOT officials as defendants
because his motion to amend was untimely. Id.

27

conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted).
law for the Court.
Cir. 1987).

Qualified immunity is a question of

Dominque v. Telb, 831 F.2d 673, 677 (6th

“The protection of qualified immunity applies

regardless of whether the government official’s error is a
mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.”

Pearson, 555 U.S. at 231 (internal

quotation marks omitted).
Where qualified immunity is claimed in a Rule 12(b)(6)
motion, the court must determine 1) whether the facts alleged in
the complaint “make out a violation of a constitutional right”;
and 2) ”whether the right at issue was ‘clearly established’ at
the time of defendant’s alleged misconduct.”

Id. at 232.

“We

sometimes apply a third step to ‘increase the clarity’ of the
analysis which asks ‘whether the plaintiff offered sufficient
evidence to indicate that what the official allegedly did was
objectively unreasonable in light of the clearly established
constitutional rights.’”

Leavey v. City of Detroit, 467 F.

App’x 420, 430 (6th Cir. 2012) (quoting Estate of Carter v. City
of Detroit, 408 F.3d 305, 311 n.2 (6th Cir. 2005)); see also
Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th Cir. 2010).
“‘Once the qualified immunity defense is raised, the burden is
28

on the plaintiff to demonstrate that the officials are not
entitled to qualified immunity.’”

Moldowan v. City of Warren,

578 F.3d 351, 375 (6th Cir. 2009) (quoting Silberstein v. City
of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)).
i.

Immunity from First Amendment Claims

Defendants argue that they are entitled to qualified
immunity because they removed Plaintiff’s signs and denied
Plaintiff’s permits pursuant to “a statute and a Rule that guide
the Defendants as to placement of signs that are permissible.”
(ECF No. 47 at 10.)

Defendants further assert that “Plaintiff

has not cited to any case that would tell the Defendants that
their conduct violates his rights,” and “there is a Sixth
Circuit case that has held that a similar Billboard Act is
constitutional--Wheeler v. Commissioner of Highways,
Commonwealth of Kentucky, 822 F.2d 586, 590-91 (6th Cir. 1987).”
(Id.)
Thomas argues that the alleged facts establish violations
of the First Amendment.

(ECF No. 57 at 9-10.)

Thomas asserts

that “the right at issue has been clearly established for over
30 years.”

(Id. at 10.)

Thomas avers,

The holding of the Chancery Court in the
Crossroad[s] Ford case, coupled with the Supreme
Court’s decision in Metromedia and the many subsequent
follow-on decisions, including those from the Sixth
Circuit, establish that signs like Mr. Thomas’ must be
exempt from the permitting requirements of T.C.A. §
54-21-107(a)(1) both because they are on-premise in
29

nature and because an on-premise commercial message is
undeniably also exempt.
(ECF No. 57 at 10.)

Thomas further contends that “[t]he rule

that no noncommercial sign can be disfavored relative to any
commercial sign has been horn book law for decades.”

(Id.)

Thomas also asserts that Defendants removed the Perkins Road
sign with knowledge of the Chancery Court’s order in the
Crossroads Ford case that held that Thomas’ signs displaying
noncommercial messages are protected by the First Amendment and
exempt from regulation under the Billboard Act.

(Id.)

Thomas

argues that Defendants’ actions were unreasonable because they
“are experienced in the realm of sign regulation and have the
benefit of many lawyers working for the State.”

(Id. at 11.)

With regard to the Chancery Court’s order relied on by
Thomas, Defendants assert that that order was overturned by the
Tennessee Court of Appeals.

(ECF No. 64.)

Thomas argues that

the Court of Appeals’ reversal “does not dictate the result in
this matter” because 1) the finding that Thomas was required to
pay TDOT restitution is unrelated to Thomas’ First Amendment
arguments; 2) “the Court of Appeals[’] decision was based on its
conclusion that the lower court did not have jurisdiction to
adjudicate Mr. Thomas’ First Amendment defense based on the
first appellate decision in that case”; and 3) “the Court of
Appeals expressly recognized the possibility of Mr. Thomas’ sign

30

fitting ‘within one of the exceptions named in the Act’ as set
forth in Tennessee Code Annotated § 54-21-107.”

(ECF No. 65 at

9 (citing State ex rel. Dep’t of Transp. v. Thomas, No.
W2013-02082-COA-R3-CV, 2014 WL 6992126 (Tenn. Ct. App. Dec. 11,
2014)).)
Thomas’ allegations, taken as true and viewed in a light
most favorable to Thomas, establish a claim for First Amendment
violations.

Supra Part III.C.

Next, the Court considers whether Thomas’ First Amendment
and equal protection rights were clearly established at the time
Defendants’ conduct allegedly violated those rights.

A

constitutional right is clearly established if a reasonable
person in the official’s position would have known of the right.
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 263 (6th
Cir. 2006); see Holzemer, 621 F.3d at 527-28 (considering
whether a reasonable local city official “would have known that
the Constitution prohibits retaliation for a citizen’s exercise
of his First Amendment right to Free Speech, whether that speech
takes written, oral, or another form”).
Thomas’ First Amendment claims are based in large part on
the removal of Thomas’ various signs.

The latest of Thomas’

signs to be removed is the Perkins Road sign, which Thomas
alleges to have been removed in October 2014.
69.)

(See ECF No. 45 ¶

Because Thomas does not argue that his First Amendment
31

rights were violated at the time of removal of any signs removed
prior to the removal of the Perkins Road signs, the Court will
analyze Thomas’ First Amendment rights as they existed in
October 2014.
In October 2014, no binding precedent existed that
expressly addressed the constitutionality of the Billboard Act
and the First Amendment issues raised by Thomas.

The Court

agrees with Defendants that the most analogous and persuasive
case that existed in October 2014 was Wheeler v. Comm’r of
Highways, Commonwealth of Ky., 822 F.2d 586 (6th Cir. 1987).

In

Wheeler, the Court of Appeals upheld the constitutionality of
the Kentucky Billboard Act in the face of challenges similar to
those asserted by Thomas.

See 822 F.2d at 589-90.

Similar to

the instant case, the Court of Appeals considered the
constitutionality of the on-premise exemption in the Kentucky
Billboard Act.

The Court found the on-premise provision to be

constitutional even though the Kentucky Billboard Act placed
limitations on the size and spacing of on-premise signs.
id. at 588.

See

Importantly, the Court of Appeals found that the

Kentucky Billboard Act and the on-premise exception treated
noncommercial and commercial speech alike.

Id. at 594.

The

Court of Appeals distinguished the on-premise exemption from the
restriction at issue in Metromedia in part because “the on-site
exception can be applied to any topic, commercial or
32

non-commercial.”

Id. at 593.

The Court of Appeals also made

clear that a sign displaying noncommercial content qualified for
the on-premise exception “as long as an activity related to the
message is conducted on the property.”

Id.

The similarity between the on-premise provisions in the
Tennessee and Kentucky Billboard Acts in conjunction with the
clear language by the Sixth Circuit in upholding the
constitutionality of the Kentucky Billboard Act is strong
evidence that Thomas’ First Amendment claims would have failed
prior to the issuance of the Supreme Court’s Reed v. Town of
Gilbert, Ariz. decision.

135 S. Ct. 2218 (2015).

In

comparison, Thomas’ cited case law fails to persuade.

The

Chancery Court Order on which Thomas relies was reversed by the
Court of Appeals of Tennessee for lack of jurisdiction and, in
any event, would not be binding precedent for this Court.

Dep’t

of Transp. v. Thomas, 2014 WL 6992126, at *8, appeal denied (May
18, 2015).

Thomas cites extensively to Eleventh Circuit cases,

which in light of the Wheeler decision, has limited influence on
this Court.

(See ECF No. 57 at 4-6.)

Thomas’ reliance on

Metromedia is also of limited significance given the Court of
Appeals’ analysis differentiating the on-premise provision in
the Kentucky Billboard Act from the restriction at issue in
Metromedia.

Accordingly, Thomas’ First Amendment rights were

33

not clearly established prior to issuance of the Supreme Court’s
Reed decision.
Thomas also alleges First Amendment violations with regard
to the Crossroads Ford sign, which has not yet been removed.
Because proceedings regarding the Crossroad Ford sign are still
pending and have been stayed by Court order in the instant case,
the Court must consider whether Reed clearly established Thomas’
First Amendment rights as to the Crossroad Ford sign.
As discussed in the Order Granting Preliminary Injunction
(ECF No. 163), the Reed decision likely renders the entire
Billboard Act unconstitutional under the First Amendment.
Accordingly, the findings in the instant order now put
Defendants on notice of the probable unconstitutionality of the
Billboard Act, and Thomas’ First Amendment rights are clearly
established going forward.
For these reasons, the Court finds that Thomas has failed
to satisfy his burden of alleging facts sufficient to overcome
the individual Defendants’ qualified immunity defense to Thomas’
First Amendment claims.

Further, because Defendants have not

removed Thomas’ signs at issue in the instant case subsequent to
the Supreme Court’s Reed decision, Thomas’ claims for damages
resulting from First Amendment violations against Defendants in
their individual capacities are hereby dismissed with prejudice.
ii.

Immunity from Equal Protection Claims
34

The Court must also consider whether Thomas’ equal
protection rights were clearly established.

Without citing to

any case law, Defendants summarily contend that Thomas’ equal
protection claims arising out of circumstances related to the
Perkins Road, Kate Bond, and Fayette County signs are barred by
qualified immunity.

(ECF No. 47.)

With regard to Thomas’

claims for unequal treatment during the PUD proceedings,
Defendants’ do not expressly assert a qualified immunity
defense.

Instead, Defendants’ discussion of the PUD claims is

limited to a challenge on res judicata grounds.

(ECF No. 47 at

16.)
“The Fourteenth Amendment provides that ‘[n]o State shall
. . . deny to any person within its jurisdiction the equal
protection of the laws.’”

Bah v. Attorney Gen. of Tenn., No.

14-5861, 2015 WL 2167792, at *5 (6th Cir. May 8, 2015) (quoting
U.S. Const. amend. XIV, § 1).

“The Equal Protection Clause

prohibits states from making distinctions that either (1) burden
a fundamental right, (2) target a suspect classification, or (3)
intentionally treat one differently from others similarly
situated without any rational basis for the difference.”

Bench

Billboard Co. v. City of Toledo, 499 F. App’x 538, 547 (6th Cir.
2012).

“[E]qual protection jurisprudence has typically been

concerned with governmental classifications that affect some
groups of citizens differently than others.”
35

Bah, 2015 WL

2167792, at *5 (internal quotation marks and citations omitted).
Where the plaintiff’s “claim does not concern a suspect class or
fundamental right, the state’s action is subject to
rational-basis review.”

Bah, 2015 WL 2167792, at *5.

Under the

rational basis test, state action “must be sustained if any
conceivable basis rationally supports it.

A defendant need not

offer any rational basis so long as this Court can conceive of
one.”

Bench Billboard, 499 F. App’x at 548 (internal quotation

marks and citations omitted).
Furthermore, “the conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional
violation.”

Oyler v. Boles, 368 U.S. 448, 456 (1962).

“‘In

order to make out an equal protection claim on the basis of
selective enforcement, a plaintiff must demonstrate that someone
similarly situated[--]but for the illegitimate classification
used by the government actor[--]was treated differently.’”

Bah,

2015 WL 2167792, at *6 (quoting Boone v. Spurgess, 385 F.3d 923,
932 (6th Cir. 2004)).

The plaintiff “must demonstrate that it

and the entities who were treated differently were similarly
situated in all material respects.”

Bench Billboard, 499 F.

App’x at 547.
In the second amended complaint, Thomas alleges that
“Defendants have knowingly engaged in an enforcement action
against Mr. Thomas’ sign at Crossroad[s] Ford even though they
36

are not actively attempting to remove similarly situated signs
without state permits that display the same type of
noncommercial content.”

(ECF No. 45 ¶ 81.)

With regard to the

Perkins Road sign, Thomas alleges that Defendants knowingly
removed that sign “even though they have not removed similarly
situated signs without state permits that display the
substantively identical noncommercial content.”

(Id. ¶ 82.)

Thomas further alleges that “Defendants forcibly removed Mr.
Thomas’ Perkins Road, Kate Bond, and Fayette County signs even
though TDOT had previously allowed similarly situated landowners
and/or sign owners to convert off-premise outdoor advertising
signs that did not have a TDOT permit to on-premise signs or
noncommercial signs.”

(Id. ¶ 86.)

Thomas alleges that

Defendants’ actions “were taken maliciously, intentionally, and
with reckless or callous indifference to Mr. Thomas’ protected
rights. Defendants have threatened such behavior regarding the
Crossroads Ford sign as well.”

(Id.)

With regard to the

rational basis prong, Thomas alleges that “[t]here is absolutely
no rational basis for such differences in treatment by
Defendants. Defendants’ departure from their prior
interpretation of TDOT’s Rules and Regulations in order to force
the removal of Plaintiff’s signs, and threaten removal of
another sign, has violated Mr. Thomas’ equal protection rights.”
(Id. ¶ 88.)

Thomas does not allege that he is part of a suspect
37

class or that the right he is seeking to protect is a
fundamental right.

Consequently, Thomas’ claim for equal

protection violations is subject to the rational basis test.
Thomas has alleged that his signs received treatment different
from others similarly situated.

Thomas has also alleged that

there is no legitimate basis for the different treatment under
either the Billboard Act or TDOT’s own rules and regulations.
Defendants do not directly challenge the sufficiency of Thomas’
claims.

Accordingly, the Court finds that Thomas has made out a

claim for equal protection violations.
The law applying the rational basis test for equal
protection is not new.

A reasonable person in Defendants’

positions as officers in TDOT would be aware of the equal
protection requirements for carrying out their agency’s policies
and procedures.

Consequently, accepting all of the relevant

allegations as true and viewing them in a light most favorable
to Thomas, Defendants are not entitled to qualified immunity
with regard to Thomas’ equal protection claims.
2.

Quasi-Judicial Immunity

“Non-judicial officers who perform quasi-judicial duties”
are entitled to “absolute judicial immunity.”

Bush v. Rauch, 38

F.3d 842, 847 (6th Cir. 1994) (internal quotation marks
omitted).

“[I]mmunity extends to those persons performing tasks

so integral or intertwined with the judicial process that these
38

persons are considered an arm of the judicial officer who is
immune.”

Id.

To determine whether a state official is entitled

to quasi-judicial immunity the Court
“looks to ‘the nature of the function performed, not
the identity of the actor who performed it.’” Buckley
v. Fitzsimmons, 509 U.S. 259, ––––, 113 S. Ct. 2606,
2613, 125 L. Ed. 2d 209 (1993)(quoting Forrester, 484
U.S. at 229, 108 S. Ct. at 545). For example, a
prosecutor who undertakes acts in the preparation or
initiation of judicial proceedings is entitled to
absolute immunity. Id. On the other hand, when a
prosecutor performs administrative acts unrelated to
judicial proceedings, qualified immunity is all that
is available. Id.
Bush, 38 F.3d at 847.

An official carrying out a court order

acts with quasi-judicial immunity.

See id. (finding that

although the defendant “was not acting in a judicial
capacity, . . . he was nevertheless acting as an arm of the
court in carrying out the court order”).
Defendants argue that they are entitled to quasi-judicial
immunity with regard to claims that relate to the Perkins Road
sign because Defendants were complying with a court order when
they removed the Perkins Road sign.

(ECF No. 47 at 13.)

Defendants further assert that Thomas’ allegations fail to
establish that Defendants’ actions were malicious.

(Id.)

Thomas argues that the court order directing Defendants to
remove the Perkins Road sign was not an order to remove, but
rather only “indicated that TDOT should remove any commercial
billboard present at the Perkins Road location.”
39

(ECF No. 57 at

12.)

Additionally, Thomas avers that “the Perkins Road

litigation dealt only with use of the subject sign for
commercial purposes . . . .”

(Id.)

Thomas asserts that because

the Perkins Road sign displayed noncommercial messages,
Defendants are not entitled to quasi-judicial immunity based on
the court order.

(Id.)

Defendants’ quasi-judicial immunity defense turns on
whether Defendants were carrying out the Chancery Court’s order
when they removed the Perkins Road sign, accepting all of
Thomas’ alleged facts as true.

Thomas’ argument that the court

only ordered removal of a commercial billboard is misplaced.
The Chancery Court order states, “TDOT is instructed to take
appropriate action in regard to the removal of the billboards at
the Perkins Road location.”

(ECF No. 46-3 at 11.)

In reviewing

the Chancery Court’s order, the Court of Appeals of Tennessee
explained that pursuant to Tenn. Code Ann. § 54–21–103(4),
billboards may be built or maintained only “in areas that are
zoned industrial or commercial under authority of law.”

Thomas

v. Tenn. Dep’t of Transp., No. M2013-01780-COA-R3-CV, 2014 WL
2971027, at *5 (Tenn. Ct. App. June 27, 2014).

Thomas’ Perkins

Road sign was not removed based on its content; rather, it was
removed because it “was not located in an area ‘zoned industrial
or commercial,’ as the state statute and regulations require.”

40

Id.

Both the Chancery Court and the Court of Appeals instructed

TDOT to remove the Perkins Road sign.
Consequently, the individual Defendants were carrying out a
court order when they removed the Perkins Road Sign.

For these

reasons, the individual Defendants are entitled to absolute
quasi-judicial immunity with regard to removal of the Perkins
Road sign.

Accordingly, Thomas’ claims with regard to the

removal of the Perkins Road sign are hereby dismissed with
prejudice.
F.

Tennessee Constitution

Tennessee does not recognize a private cause of action for
violations of the Tennessee Constitution.
F.3d 176, 179 (6th Cir. 1996).

Cline v. Rogers, 87

Consequently, Thomas’ claims for

damages based on violations of the Tennessee Constitution are
hereby dismissed with prejudice.

See id. at 180 (“We have held

. . . that we know of no authority for the recovery of damages
for a violation of the Tennessee Constitution by a state
officer.” (quoting Lee v. Ladd, 834 S.W.2d 323, 325 (Tenn. Ct.
App. 1992))).
G.

Injunctive Relief

Defendants challenge Thomas’ claims for injunctive relief
on three grounds: 1) a plaintiff may not sue state officials in
their individual capacities for injunctive relief that relates
to the officials’ job; 2) federal court injunctions prohibiting
41

“Defendants from pursuing enforcement actions under State law .
. . [are] barred by the Eleventh Amendment; and 3) Thomas’
request for injunctive relief is ambiguous.
17-18.)

(ECF No. 47 at

Defendants also challenge Thomas’ claim for declaratory

relief as moot because the Perkins Road sign has already been
removed pursuant to court order, and “declaratory judgment to
the effect that defendants are violating state law would be
contrary to the core principles of state rights.”

(Id. at 18.)

In support of this argument, Defendants assert that “[t]he
Declaratory Judgment Act does not create an independent basis
for federal subject matter jurisdiction and cannot be used to
circumvent the Eleventh Amendment.”

(Id. at 18-19.)

Thomas argues that his claim for injunctive and declaratory
relief is directed only at Commissioner Schroer in his official
capacity.

(ECF No. 57 at 16.)

Thomas further asserts that

injunctive relief is appropriate under the Ex parte Young
doctrine.

(Id. at 16-17.)

The Court agrees with Thomas that the fourth claim for
relief in the second amended complaint, which is a claim for
declaratory and injunctive relief, is directed solely against
Commissioner Schroer in his official capacity.
at 21.)

(See ECF No. 45

Consequently, Defendants’ first stated basis for

dismissal of Thomas’ claims for injunctive and declaratory
relief is irrelevant to the instant case.
42

Defendants, however, correctly argue that this Court lacks
authority to enjoin state officials based on violations of state
law.

The Supreme Court has explained that the purpose of the Ex

parte Young doctrine is “to permit the federal courts to
vindicate federal rights and hold state officials responsible to
‘the supreme authority of the United States.’”

Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting Ex
parte Young, 209 U.S. 123, 160 (1908)).

In Pennhurst, the

Supreme Court explained that
[t]his need to reconcile competing interests is
wholly absent, however, when a plaintiff alleges that
a state official has violated state law.
In such a
case the entire basis for the doctrine of Young and
Edelman disappears. A federal court’s grant of relief
against state officials on the basis of state law,
whether prospective or retroactive, does not vindicate
the supreme authority of federal law.
On the
contrary, it is difficult to think of a greater
intrusion on state sovereignty than when a federal
court instructs state officials on how to conform
their conduct to state law.
Such a result conflicts
directly with the principles of federalism that
underlie the Eleventh Amendment.
465 U.S. at 106.

The Supreme Court ultimately concluded “that a

federal suit against state officials on the basis of state law
contravenes the Eleventh Amendment when . . . the relief sought
and ordered has an impact directly on the State itself.”
117.

Id. at

The Supreme Court held that the Eleventh Amendment

similarly barred “state-law claims brought into federal court
under pendent jurisdiction.”

Id. at 121.

43

“[N]either pendent

jurisdiction nor any other basis of jurisdiction may override
the Eleventh Amendment.”

Id.

In light of the Supreme Court’s holding in Pennhurst, the
Court finds that injunctive relief sought by Thomas for
violations of the Tennessee State Constitution or any other
state-law theory is barred by the Eleventh Amendment.

Because

the Declaratory Judgment Act requires an independent basis for
federal subject matter jurisdiction to attach, Thomas’ claims
for declaratory judgment of state-law violations is also barred
by the Eleventh Amendment.

See Heydon v. MediaOne of Se. Mich.,

Inc., 327 F.3d 466, 470 (6th Cir. 2003).
With regard to Defendants’ contention that Thomas’ claims
for injunctive and declaratory relief are ambiguous, the Court
finds that Thomas’ claims are sufficient to survive a Rule
12(b)(6) motion.

Thomas’ fourth claim for relief in the second

amended complaint incorporates by reference the factual
allegations in paragraphs 1-60.

(ECF No. 45 ¶ 93.)

Those

factual allegations form a sufficient basis for Thomas’ First
Amendment and equal protection claims.
E.

See supra Parts.III.C,

Consequently, Thomas’ has alleged sufficient facts to

sustain claims for injunctive and declaratory relief under Iqbal
and Twombly.
Accordingly, Thomas’ claims for injunctive and declaratory
relief for violations of state law are hereby dismissed with
44

prejudice.

Injunctive and declaratory relief based on

violations of federal law, however, are not barred by the
Eleventh Amendment and remain available in the instant case
pursuant to Ex parte Young.
IV.

CONCLUSION
For the reasons stated above, Defendants’ motion for

partial dismissal of the second amended complaint is GRANTED as
follows: 1) Thomas’ First Amendment and equal protection claims
that are based on the removal of the Fayette County and Kate
Bond signs are time-barred; 2) Thomas has failed to state a
claim for retaliation upon which the Court can grant relief
under Rule 12(b)(6); 3) Defendants are entitled to qualified
immunity from the First Amendment claims alleged in the second
amended complaint and are put on notice that the Billboard Act
has been declared unconstitutional by the instant Order;
4) Defendants are entitled to absolute quasi-judicial immunity
as to the removal of the Perkins Road sign; 5) Thomas’ claims
for damages resulting from violations of the Tennessee
Constitution are dismissed because Tennessee does not recognize
a private cause of action for state constitutional violations;
and 6) Thomas’ claims for injunctive and declaratory relief
resulting from state-law violations are barred by the Eleventh
Amendment.

45

Defendants’ motion is DENIED as to Thomas’ remaining
claims.
IT IS SO ORDERED, this 14th day of September, 2015.

/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

46