Sherman, et al. v. State of Tennessee, et al.

Filing 115

ORDER granting 57 Motion to Dismiss; granting 58 Motion to Dismiss; granting 63 Motion to Dismiss for Failure to State a Claim; denying 65 Motion to Dismiss for Failure to State a Claim; granting 77 Motion to Dismiss for Failure to Sta te a Claim; granting 95 Motion to Dismiss; granting 96 Motion to Dismiss; granting 108 Motion to Dismiss for Failure to State a Claim; denying 112 Motion to Extend Deadline; denying Plaintiffs' six motions to convert Rule 12 motions into motions for summary judgment; denying Plaintiffs' motion to stay the action, as to the United States, for time to exhaust administrative remedies. This action is DISMISSED. Signed by Judge Samuel H. Mays, Jr on 06/14/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

KELLY SHERMAN and BEVERLY
SHERMAN,

)
)
)
Plaintiffs,
)
)
v.
)
)
STATE OF TENNESSEE; THE HUMANE )
SOCIETY OF THE UNITED STATES;
)
FAYETTE COUNTY, TENNESSEE;
)
JULIE McMILLAN, Individually;
)
MICHAEL DUNAVANT, Individually )
and in his official capacity;
)
MARK DAVIDSON, Individually and )
in his official capacity;
)
ROBERT “CHIP” BURNS; JAMIE
)
ESTEPA BURNS; JAMES ESTEPA;
)
CINDY ESTEPA; UNITED STATES OF )
AMERICA; JOHN DOES A, B, and C; )
and JANE DOES A, B, and C,
)
)
Defendants.
)

No. 16-02625

ORDER

This action arises from the seizure of Plaintiffs’ horses.
Before

the

Court

are

Defendants’

seven

Rule

12

motions

to

dismiss the Fourth Amended Complaint (the “Operative Complaint”)
of

Plaintiffs

“Shermans”).1

Kelly
Also

Sherman

before

the

and
Court

Beverly

Sherman

are

Shermans’

the

(the
six

motions to convert Defendants’ Rule 12 motions into motions for
1

Unless otherwise noted, references to “Rule __” are to the
Federal Rules of Civil Procedure.

summary judgment and the Shermans’ motion to stay the action, as
to

the

United

States,

for

time

to

exhaust

administrative

of

United

remedies.
First,
(“HSUS”)

Defendant

filed

a

Humane

motion

to

Society
dismiss

the

under

Rule

States

12(b)(6)

or,

alternatively, a motion for judgment on the pleadings under Rule
(ECF No. 57 at 528.2)

12(c) (the “HSUS Motion”).

The Shermans

filed a motion to convert the HSUS Motion into a motion for
summary

judgment

and,

Motion.

(ECF No. 85 at 1280.)

motion to convert.

alternatively,

responded

to

the

HSUS

HSUS responded to the Shermans’

(ECF No. 99 at 1679.)

replied in support of the HSUS Motion.

HSUS separately

(ECF No. 97 at 1653.)

Second, Defendants Robert “Chip” Burns, Jamie Estepa Burns,
James Estepa, and Cindy Estepa (collectively, the “Burns-Estepa
Defendants”) filed a motion to dismiss under Rule 12(b)(6) (the
“Burns-Estepa Motion”).

(ECF No. 58 at 563.)

The Shermans

filed a motion to convert the Burns-Estepa Motion into a motion
for summary judgment and, alternatively, responded to the BurnsEstepa

Motion.

(ECF

No.

84

at

1101.)

The

Burns-Estepa

Defendants responded to the Shermans’ motion to convert.
No.

100

at

1690.)

The

Burns-Estepa

2

Defendants

(ECF

separately

Unless otherwise noted, all pin cites for record citations are
to the “PageID” page number.
2

replied in support of the Burns-Estepa Motion.

(ECF No. 98 at

1665.)
Third, Defendant State of Tennessee (the “State”) filed a
motion

to

Motion”).

dismiss

under

Rule

12(b)(1)

(ECF No. 63 at 757.)

and

(6)

(the

“State

The Shermans filed a motion to

convert the State Motion into a motion for summary judgment and,
alternatively, responded to the State Motion.
883.)

(ECF No. 82 at

The State filed a response to the Shermans’ motion to

convert that also replies in support of the State Motion.

(ECF

No. 87 at 1584.)
Fourth,

Defendants

District

Attorney

General

Michael

Dunavant and Deputy District Attorney General Mark Davidson (the
“AG Defendants”) filed a motion to dismiss under Rule 12(b)(6)
(the “AG Motion”).
motion

to

convert

(ECF No. 65 at 769.)
the

AG

Motion

into

The Shermans filed a
a

motion

for

summary

judgment and, alternatively, responded to the AG Motion.
No. 86 at 1460.)

(ECF

The AG Defendants filed a response to the

Shermans’ motion to convert that also replies in support of the
AG Motion.

(ECF No. 93 at 1625.)

The AG Defendants then filed

an amended motion to dismiss under Rule 12(b)(6), which asserts
an additional ground for dismissal and incorporates by reference
the

AG

Motion”).

Motion

and

arguments

in

(ECF No. 108 at 1960.)

Amended AG Motion.

support

“Amended

AG

The Shermans responded to the

(ECF No. 111 at 1986.)
3

(the

Because the Amended

AG Motion supersedes the AG Motion, the AG Motion is DENIED as
moot.

The Court construes the Shermans’ motion to convert as a

motion

to

convert

the

Amended

AG

Motion

into

a

motion

for

summary judgment.
Fifth, Defendant Fayette County, Tennessee, filed a motion
to dismiss under Rule 12(b)(6) (the “Fayette County Motion”).
(ECF No. 77 at 848.)

The Shermans filed a motion to convert the

Fayette County Motion into a motion for summary judgment and,
alternatively, responded to the Fayette County Motion.
83 at 1006.)

(ECF No.

Fayette County filed a reply in support of the

Fayette County Motion that also responds to the Shermans’ motion
to convert.

(ECF No. 88 at 1588.)

Sixth, Defendant Julie McMillan filed a motion to dismiss
under Rule 12(b)(6) (the “McMillan Motion”).
1635.)

(ECF No. 95 at

The Shermans filed a motion to convert the McMillan

Motion into a motion for summary judgment and, alternatively,
responded

to

the

McMillan

Motion.

(ECF

No.

106

at

1713.)

McMillan filed a reply in support of the McMillan Motion that
also responds to the Shermans’ motion to convert.

(ECF No. 109

at 1974.)
Seventh, Defendant United States filed a motion to dismiss
under Rule 12(b)(6) (the “U.S. Motion”).

(ECF No. 96 at 1647.)

The Shermans filed a motion to stay the action as to the United
States

for

time

to

exhaust

administrative
4

remedies

and,

alternatively, responded to the U.S. Motion.
1850.)

(ECF No. 107 at

The United States filed a reply in support of the U.S.

Motion that also responds to the Shermans’ motion to stay the
action.

(ECF No. 110 at 1981.)

For

the

following

reasons,

Estepa Motion, the State

the

HSUS

Motion,

the

Burns-

Motion, the Amended AG Motion,

the

Fayette County Motion, the McMillan Motion, and the U.S. Motion
are GRANTED.
motion

to

The Shermans’ motions to convert and the Shermans’

stay

their

action

against

the

United

States

are

DENIED.
I.

Background
A.

Relevant Facts

The following facts are taken from the Operative Complaint.
The Shermans, both citizens and residents of Texas, are owners
of two Tennessee Walking Horses.
505, 507.)
$175,000.

(ECF No. 55 ¶¶ 1-2, 16-17 at

Beverly Sherman purchased “Mucho Bueno” in 2010 for
(Id. ¶ 17 at 507.)

Kelly Sherman purchased “Paroled

In The Night” in 2011 for $12,500.
Shermans

contracted

with

Whitter

(Id. ¶ 16 at 507.)

Stables

in

Fayette

The

County,

Tennessee, for the boarding, training, and care of their horses.
(Id. ¶ 18 at 507.)
The Shermans

allege that on March 1, 2012, federal and

state agents arrested three horse trainers accused of abusing,
or “soring,” horses at Whitter Stables, including the Shermans’
5

horses.

(Id. ¶ 20 at 507.)

The Shermans allege that they were

unaware of and did not approve of the abuse or soring of their
horses.

(Id. ¶ 19 at 507.)

The

Shermans

McMillan’s

allege

direction,

that,

state

or

following
county

the

agents

arrest,
seized

at
the

Shermans’ horses, turned them over to HSUS, and transported them
with

Robert

Burns’s

assistance

Rutherford County, Tennessee.

to

a

secret

location

(Id. ¶¶ 21, 24 at 507-08.)

in
From

there, McMillan, Fayette County, and the AG Defendants directed
that the Shermans’ horses be transported by HSUS and Robert
Burns to land owned or controlled by Jamie Estepa Burns, James
Estepa, and Cindy Estepa.

(Id. ¶ 25 at 508.)

The Shermans

allege that Robert Burns and Jamie Estepa hid the horses from
the Shermans and kept the horses under armed guard.

(Id.)

The Shermans allege that on March 5, 2012, veterinarian Dr.
John Bennett examined the Shermans’ horses and found that the
horses exhibited no signs of injury or soring.
508.)
no

(Id. ¶¶ 22-23 at

The Shermans allege that, from that point on, there was

justification

for

holding

criminal investigation.3

the

horses

as

evidence

in

any

(Id. ¶ 23 at 508.)

The Shermans allege that since March 1, 2012, Defendants,
“acting in concert and under color of state law, have conspired

3

The Operative Complaint
examined the horses.

does
6

not

allege

where

Dr.

Bennett

to

unlawfully

hide,

Plaintiffs’ horses.”

detain,

and

wrongfully

(Id. ¶ 27 at 509.)

convert

the

The Shermans allege

that, although Defendants knew the Shermans were the rightful
owners

of

the

horses,

none

of

the

Defendants

provided

the

Shermans notice that their horses had been seized or information
about available procedures to seek the return of the horses.
(Id. ¶¶ 26, 33 at 509-10.)

The Shermans allege that Defendants

were required to provide such notice and information under state
and federal law as well as by court order.
509-10.)

(Id. ¶ 28, 33 at

The Shermans allege that Defendants “conspired and

acted in concert to use state law as a subterfuge to accomplish
what they did not have the lawful authority to do under state
and/or federal law.”

(Id. ¶ 30 at 509.)

For example, the

Shermans allege that McMillan, as an agent of the United States
Department of Agriculture, knew that she had no authority under
federal law to hold the Shermans’ horses for more than 24 hours,
so she directed that other Defendants transport and hold the
horses.
The

(Id. ¶¶ 31-32 at 510.)
Operative

Complaint

asserts

numerous

claims

against

Defendants for violations of federal and state constitutional
and statutory law.
and

Fourteenth

The Shermans allege violations of the Fifth

Amendments

of

the

U.S.

violations of the Tennessee Constitution.

Constitution

and

The Shermans allege

violations of the Horse Protection Act, 15 U.S.C. §§ 1821 et
7

seq., violations of Tennessee statutes governing enforcement of
state

cruelty-to-animals

laws,

and

violations

of

Tennessee

statutes governing criminal and civil property forfeiture.
Shermans

primarily

seek

to

vindicate

their

rights

under

The
42

U.S.C. § 1983.
The Shermans’ requested relief includes: (1) an injunction
prohibiting all Defendants from interfering with the Shermans’
title and quiet possession of their horses; and (2) compensatory
and punitive damages, attorney’s fees, and costs, payable by all
Defendants except the State.4
B.

(Id. at 517.)

Procedural History

On May 16, 2012, the Shermans filed this action in the
Fayette County Circuit Court, styled a “Complaint for Possession
or in Nature of Replevin” (the “Original Complaint”).
1-3 at 40-42.)
defendants,

(ECF No.

The Shermans’ Original Complaint named three

including

the

State

and

HSUS,

and

sought

to

challenge the potential forfeiture of their horses pursuant to

4

Although the Operative Complaint alleges that Defendants “have
continued to unlawfully detain, hide and convert Plaintiffs’
horses from . . . March 1, 2012 up to the present” and seeks the
immediate return of the horses (ECF No. 55 ¶ 29 at 509, 517),
the Shermans’ responses to Defendants’ motions to dismiss
demonstrate that the horses were returned to the Shermans before
they filed the Operative Complaint.
In response to the U.S.
Motion, the Shermans represent that their horses were detained
until June 28, 2016, at which point they were returned to the
Shermans.
(ECF No. 107 at 1852, 1856.)
Any relief requesting
the return of the Shermans’ horses is now moot.
8

Tenn. Code Ann. §§ 39-11-701 et seq.
sought

the

defendants
Shermans

return
had

and

of

the

horses

confiscated

had

held

the

the

and

The Original Complaint
alleged

horses

horses

in

that

without

the

notice

violation

of

named

to

the

Tennessee

statutes governing cruelty-to-animals enforcement.5
On May 22, 2012, the arrested horse trainers pled guilty in
the U.S. District Court for the Eastern District of Tennessee to
soring horses, including the Shermans’ horses, in violation of
the Horse Protection Act.

In re Tenn. Walking Horse Forfeiture

Litig., No. W2013-02804-COA-R3-CV, 2015 WL 1636704, at *1 (Tenn.
Ct. App. Apr. 8, 2015) (“Forfeiture Litig. I”).

The trainers

pled guilty to state animal cruelty charges involving the same
horses on July 10, 2013.
an

ex

parte

Id.

application

Shermans’ horses.

Id.

for

Also on July 10, the State filed
a

forfeiture

warrant

for

the

The same day, the Fayette County Circuit

Court issued an ex parte forfeiture warrant and order placing
the

horses

in

determination.

HSUS

custody

pending

a

final

forfeiture

Id.

5

The Shermans represent to this Court that the issues
“originally presented” in the Original Complaint included
“whether Plaintiffs’ guaranteed rights under Art. 1, § 8 of the
Tennessee
Constitution
and/or
the
Fifth
and
Fourteenth
Amendments to the United States Constitution were violated by
Defendants’ seizure, taking, detention and conversion of
Plaintiffs’ property without notice or due process of law and
without just compensation.” (ECF No. 86 at 1465.) The Original
Complaint did not raise or identify those issues. (See ECF No.
1-3 at 40-42.)
9

On August 9, 2013, the State filed a complaint for judicial
forfeiture in the Fayette County Circuit Court alleging that the
Shermans

and

constructive

other

affected

knowledge

that

horse
the

owners

horse

had

trainers

actual
at

Whitter

Stables would sore and abuse horses for training purposes.
No. 65-2 at 796, 799-800.)

or

(ECF

The State asked that the horses be

ordered forfeited and ownership awarded to HSUS.

(Id. at 801.)

The Shermans moved to dismiss the forfeiture complaint, arguing
that the forfeiture warrant was not properly issued because the
State failed to obtain it within five working days of March 1,
2012, as required by Tenn. Code Ann. § 39-11-707(c).

Forfeiture

Litig. I, 2015 WL 1636704, at *1.

The court decided that the

State,

the

in

taking

possession

of

horses,

had

violated

procedural requirements in the forfeiture statutory scheme.
at *2.

The court dismissed the forfeiture complaint.

Id.

Id.

The State appealed, and on April 8, 2015, the Tennessee
Court of Appeals reversed, finding that the Circuit Court had
erred in granting the Shermans’ motion to dismiss without first
requiring

the

forfeiture.

Shermans
Id. at *7.

to

establish

standing

to

contest

the

The Court of Appeals noted that the

Shermans had “never filed a show cause motion pursuant to [Tenn.
Code Ann. §] 39-11-709(d), which would have required the trial
court to schedule a hearing on the issue of standing.”
*5.

Id. at

The Court of Appeals explained that the Shermans had filed
10

a

motion

to

dismiss

the

forfeiture

action,

which

did

“not

relieve [them] of their burden to prove standing to contest the
forfeiture.”
cart

before

Id.

Thus, the Shermans had “put the proverbial

the

proverbial

horse.”

Id.

(alterations

and

quotation marks omitted).
On remand, following a hearing on standing, on September 8,
2015, the Fayette County Circuit Court found that the Shermans
had standing to contest the forfeiture action.
949.)

On April 13, 2016, the court granted the Shermans’ motion

for summary judgment.
that

(ECF No. 82-9 at

Tenn.

Code

(ECF No. 82-10 at 951.)

Ann.

§ 39-11-707(c)

The court opined

required

a

forfeiture

warrant to be issued within five working days of seizure and the
provision of written notice to owners of seized property.
¶ 8 at 953.)

The court found that the State had not satisfied

those requirements.
that

the

(Id.

State’s

(Id. ¶ 9 at 953.)

placing

the

seized

The court also opined
horses

violated Tenn. Code Ann. § 39-14-202(c).

in

HSUS

custody

(Id. ¶ 10 at 953-54.)

The court ordered the horses to be returned to the Shermans
within 30 days.

(Id. ¶ 12 at 954.)

that appeal is pending.

The State appealed, and

In re Tenn. Walking Horse Forfeiture

Litig., No. W2016-01000-COA-R3-CV (Tenn. Ct. App.) (“Forfeiture
Litig. II”).
In April 2014, the Shermans moved to amend their complaint
in this action to add additional claims, including claims under
11

42 U.S.C. § 1983 for Fifth and Fourteenth Amendment federal due
process

violations,

defendants,
Burns-Estepa

and

including

to

assert

McMillan,

Defendants.

(ECF

claims

the
No.

AG
65-3

against

additional

Defendants,
at

803-05,

and

the

809-23.)

After the Fayette County Circuit Court’s April 13, 2016 order
granting the Shermans summary judgment in the forfeiture action,
that court granted the Shermans’ motion to amend in this action
on July 5, 2016.

(ECF No. 1-3 at 64.)

The Shermans filed their

Third Amended Complaint on July 21, 2016, in substantially the
same form as the Operative Complaint now before this Court, but
without naming Fayette County as a defendant.6
at 9-23.)

On July 29, 2016, Defendants removed the action to

this Court.
On

(See ECF No. 1-2

(ECF No. 1 at 1.)

September

27,

2016,

the

Shermans

filed

their

Fourth

Amended Complaint -- the Operative Complaint -- naming Fayette
County as an additional defendant.
II.

(ECF No. 55 at 504.)

Jurisdiction
The

Court

jurisdiction

has

over

U.S.C. § 1331.

the

a

general

Shermans’

grant

of

federal-law

federal-question
claims

under

28

The Court has supplemental jurisdiction over the

Shermans’ state-law claims under 28 U.S.C. § 1367 because they
derive from a “common nucleus of operative fact.”

6

See 28 U.S.C.

The Shermans had previously amended their Original Complaint
but with minor changes. (See ECF No. 1-3 at 59-61.)
12

§ 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725
(1966).
Notwithstanding those general grants of jurisdiction, the
State, the AG Defendants, and the United States raise specific
jurisdictional defenses that they argue warrant dismissal of the
claims

against

challenged

them.

pursuant

“Where

to

Rule

subject

12(b)(1),

matter
the

jurisdiction

plaintiff

has

is
the

burden of proving jurisdiction in order to survive the motion.”
Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269
(6th Cir. 1990).
A.

Eleventh Amendment Sovereign Immunity

The State moves to dismiss
ground

that

the

sovereign immunity.
65.)

State

is

the Shermans’ claims on the

protected

by

Eleventh

Amendment

(ECF No. 63 at 757; ECF No. 63-1 at 762-

The State contends that it has not waived its sovereign

immunity for federal civil rights suits or for state law claims
in federal court.

The State also contends that, notwithstanding

waiver, it is not a “person” subject to suit under 42 U.S.C.
§ 1983.

In response, although the Shermans agree that the State

is not a “person” subject to suit under § 1983, they argue that,
“[b]y adopting the Fifth and Fourteenth Amendments, the State
consented to the obligations to provide remedies against the
State as required in the Amendments.”

13

(ECF No. 82 at 896.)

The
against

AG

Defendants

them

in

their

move

to

official

dismiss

capacities

Eleventh Amendment sovereign immunity.
94.)

the

Shermans’
on

the

claims

basis

of

(ECF No. 65-1 at 792-

The AG Defendants also contend that state officials in

their official capacities are not “person[s]” subject to suit
under

§ 1983.

The

Shermans

appear

to

disagree

Defendants’ arguments, but do not explain why.

with

the

AG

(See ECF No. 86

at 1476.)
The Eleventh Amendment provides that “[t]he Judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State.”
amend. XI.

U.S. Const.

“This jurisdictional bar applies regardless of the

nature of the relief sought.”

Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984).

“A sovereign’s immunity may

be waived, and . . . a State may consent to suit against it in
federal court,” but “the State’s consent [must] be unequivocally
expressed.”

Id. at 99.

“[A]lthough Congress has power with

respect to the rights protected by the Fourteenth Amendment to
abrogate the Eleventh Amendment immunity,” there must be “an
unequivocal expression of congressional intent to overturn the

14

constitutionally

guaranteed

immunity

of

the

several

States.”

Id. (quotation marks omitted).7
“Official-capacity suits” are “another way of pleading an
action

against

an

entity

of

which

an

officer

is

an

agent.”

Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quotation marks
omitted).
official

When a government official is sued in his or her
capacity,

it

is

“not

a

suit

against

the

official

personally, for the real party in interest is the entity.”
at 166.
the

Id.

The suit instead is “to be treated as a suit against

entity.”

Id.

Where

the

entity

state,

Eleventh

See id. at 167.

Amendment sovereign immunity applies.

is

a

A “suit

against state officials that is in fact a suit against a State
is barred regardless of whether it seeks damages or injunctive
relief,”

with

the

constitutionality

of

against the State.”
Young,

209

U.S.

123

exception
a

state

that

a

“suit

official’s

challenging

action

is

not

the
one

Pennhurst, 465 U.S. at 102 (citing Ex parte
(1908)).

However,

in

official-capacity

suits, “a federal suit against state officials on the basis of

7

A state may also waive its sovereign immunity by removing a
lawsuit from state to federal court. Lapides v. Bd. of Regents
of the Univ. Sys. of Ga., 535 U.S. 613, 616 (2002). The holding
in Lapides was limited to the “context of state-law claims, in
respect to which the State has explicitly waived immunity from
state-court proceedings.” Id. at 617. As discussed below, the
State has not explicitly waived its immunity, so that this
ground for waiver does not apply.
15

state law contravenes the Eleventh Amendment” where no federal
constitutional violation is alleged.
“[N]either

a

State

nor

Id. at 117.

its

officials

acting

official capacities are ‘persons’ under § 1983.”
Dep’t of State Police, 491 U.S. 58, 71 (1989).

in

their

Will v. Mich.
An exception to

this rule is that “a state official in his or her official
capacity, when sued for injunctive relief, [is] a person under
§ 1983 because ‘official-capacity actions for prospective relief
are not treated as actions against the State.’”8

Id. at 71 n.10

(quoting Graham, 473 U.S. at 167 n.14) (citing Young, 209 U.S.
at 159-60).
Because the Shermans are Texas citizens, their suit against
the

State

is

a

suit

Citizens

of

another

Eleventh

Amendment

“against
State.”

directly

one
U.S.

bars

of

the

United

States

Const.

amend.

XI.

the

suit.

“The

State

by
The
of

Tennessee has not consented to any such suit expressly or by
implication.”

Berndt v. Tennessee, 796 F.2d 879, 881 (6th Cir.

1986) (citing Tenn. Code Ann. § 20-13-102(a)).

This general

prohibition is codified under Tennessee law:
No court in
the state shall have any power,
jurisdiction or authority to entertain any suit
against the state, or against any officer of the state
8

Although the scope of § 1983 is not jurisdictional per se, the
Supreme Court has explained that, “in deciphering congressional
intent as to the scope § 1983, the scope of the Eleventh
Amendment is a consideration, and we decline to adopt a reading
of § 1983 that disregards it.” Will, 491 U.S. at 66-67.
16

acting by authority of the state, with a view to reach
the state, its treasury, funds or property, and all
such suits shall be dismissed as to the state or such
officers, on motion, plea or demurrer of the law
officer of the state, or counsel employed for the
state.
Tenn.

Code

Ann.

§ 20-13-102(a).

Although

the

Tennessee

legislature may “specifically provide[] to the contrary,” the
“state cannot be subject to litigation by individuals unless the
words of the act are so plain, clear and unmistakable as to
leave
done.”

no

doubt

of

the

legislative

intent

that

it

should

be

Hise v. State, 968 S.W.2d 852, 853 (Tenn. Ct. App.

1998).
The Shermans cite no Tennessee statute providing that the
State has waived its sovereign immunity or otherwise consented
to suit in the context of this action.

Instead, they argue

that, “[b]y adopting the Fifth and Fourteenth Amendments, the
State consented to the obligations to provide remedies against
the State as required in the Amendments.”

(ECF No. 82 at 896.)

The authorities the Shermans cite do not support that argument.
Citing

Fitzpatrick

v.

Bitzer,

427

U.S.

445

(1976),

the

Shermans contend that, “[w]hen the State ratified the Fourteenth
Amendment, it gave up part of its sovereign immunity to the
extent

that

where

of . . . . property,
remedy

had

to

‘any

State

without

follow.’”

due
(Id.

17

[shall]

deprive

any

process

of

a

(alteration

law,
in

person
judicial

original).)

Fitzpatrick did not hold that a state’s sovereign immunity is
waived in any suit alleging a due process violation under the
Fourteenth Amendment.
Fourteenth

Amendment,

‘appropriate
provisions
suits

It held that, pursuant to § 5 of the
“Congress

legislation’

of

the

against

for

the

Fourteenth

States

may,

in

purpose

Amendment,

or

determining

state

of

constitutionally impermissible in other contexts.”
456 (emphasis added).

enforcing

provide

officials

what

for

is
the

private

which

are

427 U.S. at

In Quern v. Jordan, the Supreme Court

held that Ҥ 1983 does not explicitly and by clear language
indicate on its face an intent to sweep away the immunity of the
States” and does not “abrogate the Eleventh Amendment immunity
of

the

States.”

440

U.S.

332,

345

(1979).

None

of

the

Tennessee statutes or authorities under which the Shermans seek
relief

against

the

State

are

statutes

passed

by

Congress.

Although § 1983 is a federal statute, even were the State a
“person”

under

§ 1983,

Quern

makes

clear

that

the

Shermans’

consent argument as to that statute would not be well taken.
Citing DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir. 2004),
the Shermans contend that the Fifth and Fourteenth “Amendments
require a remedy where there is a due process violation and
place[] a condition on the exercise of a State’s takings power.”
(ECF No. 82 at 896-97.)

The Shermans contend that the “State

must provide both a procedural remedy and just compensation.”
18

(Id.)

DLX

held

that,

although

“the

Fifth

Amendment’s

requirement of just compensation forces the states to provide a
judicial

remedy

in

their

own

courts,”

Eleventh

Amendment

sovereign immunity shields a state against a federal takings
claim in federal court.

381 F.3d at 526-28.

arguments are contrary to

The Shermans’

the holdings of the decisions

the

Shermans cite and are not well taken.
The AG Defendants are not shielded to the extent they are
sued

in

their

official

capacities

violations of federal law.

for

injunctive

relief

for

See Will, 491 U.S. at 71 n.10.

Eleventh Amendment sovereign immunity shields them to the extent
they are sued in their official capacities for damages or for
injunctive

relief

for

purely

state-law

violations.

The

Shermans’ arguments to the contrary are relevant insofar as the
AG Defendants are sued in their individual capacities, but the
Shermans do not explain why the AG Defendants should not be
immune to suit in their official capacities.

(See generally ECF

No. 86 at 1473-76.)
The State

Motion seeking dismissal

is GRANTED.

To the

extent the AG Defendants seek dismissal of the Shermans’ claims
against them in their official capacities for damages or for
injunctive relief for purely state-law violations, the Amended
AG Motion is GRANTED.

19

B.

Failure to Exhaust

On January 20, 2017, the United States moved to substitute
itself as Defendant in place of McMillan as to Count III.B.1 of
the Operative Complaint, which asserts violations of Tennessee
statutes.

(ECF No. 94 at 1632-33.)

The United States certified

that, at all relevant times, McMillan was acting within the
scope of her employment as a federal employee and that, pursuant
to

28

U.S.C.

§ 2679(d)(2),

the

United

defendant for any state-law claims.
the motion.

States

is

the

proper

The Shermans did not oppose

The Court granted the motion.

(ECF No. 102 at

1706.)
The United States moves to dismiss any state-law claims
asserted in III.B.1 of the Operative Complaint.
1650-51.)

The

United

States

argues

that

it

(ECF No. 96 at
has

sovereign

immunity and may be sued only to the extent that Congress has
waived that immunity by federal statute.

The United States

argues that the only federal law, if any, that waives sovereign
immunity for the Shermans’ state-law claims is the Federal Tort
Claims
because

Act
the

(the

“FTCA”).

Shermans

failed

The
to

United

States

exhaust

their

contends

that,

administrative

remedies pursuant to the FTCA for state-law claims before filing
this action, the Court must dismiss any state-law claims against
the United States for lack of jurisdiction.

20

The

Shermans

argue

that

their

“claims

concerning

the

violations of Tennessee forfeiture law are evidence of their
constitutional

claims,”

which

they

seek

to

vindicate

under

§ 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau
of

Narcotics,

403

U.S.

exhaustion requirements.

388

(1971),

for

which

there

are

(ECF No. 107 at 1858, 1860.)

no
The

Shermans also respond that, to the extent they must proceed
under the FTCA, any exhaustion requirement should be excused.
The

Shermans

argue

individually,

not

that

the

United

they

originally

States,

and

sued

that

“it

McMillan
is

pure

sophistry to claim an ‘exhaustion of remedies defense’ when the
government affirmatively volunteered to step into her shoes.”
(Id. at 1857.)

Alternatively, the Shermans move to stay this

action as to the United States so that they may first exhaust
their administrative remedies.

(Id. at 1858.)

“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.”
471, 475 (1994).

FDIC v. Meyer, 510 U.S.

“A waiver of sovereign immunity cannot be

implied but must be unequivocally expressed.”

United States v.

Mitchell, 445 U.S. 535, 538 (1980) (quotation marks omitted).
Absent a waiver, a federal court lacks jurisdiction over a suit
against

the

United

States.

See

Meyer,

510

U.S.

at

475

(“Sovereign immunity is jurisdictional in nature.”); see also
United States v. Sherwood, 312 U.S. 584, 586 (1941) (“[T]he
21

terms of [the United States’] consent to be sued in any court
define that court’s jurisdiction to entertain the suit.”).
“The

FTCA

waives

the

sovereign

immunity

of

the

United

States with respect to tort claims, providing that ‘[t]he United
States shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same
extent

as

a

private

individual

under

like

circumstances.’”

Singleton v. United States, 277 F.3d 864, 872 (6th Cir. 2002)
(alteration in original) (quoting 28 U.S.C. § 2674) overruled on
other grounds by Hawver v. United States, 808 F.3d 693 (6th Cir.
2015).

“An action shall not be instituted upon a claim against

the United States” pursuant to the FTCA “unless the claimant
shall have first presented the claim to the appropriate Federal
agency

and

agency.”

his

claim

shall

have

28 U.S.C. § 2675(a).

been

finally

denied

by

the

“The FTCA bars claimants from

bringing suit in federal court until they have exhausted their
administrative remedies.”

McNeil v. United States, 508 U.S.

106, 113 (1993) (discussing 28 U.S.C. § 2675(a)).
exhaust

administrative

remedies

federal court of jurisdiction.9

9

in

this

context

Failure to
deprives

the

See Blakely v. United States,

In United States v. Kwai Fun Wong, the Supreme Court held that
the FTCA’s time bars are nonjurisdictional and subject to
equitable tolling.
135 S. Ct. 1625, 1638 (2015).
That
decision, however, did not disturb Sixth Circuit authority
providing that failure to exhaust administrative remedies
deprives a federal court of jurisdiction.
22

276 F.3d 853, 864 (6th Cir. 2002); Holt v. Morgan, 79 F. App’x
139, 141 (6th Cir. 2003).
In

the

Operative

Complaint,

the

only

claims

asserted

against the United States are for violations of state law.

The

Shermans do not plausibly dispute the United States’ contention
that the only federal law, if any, waiving sovereign immunity
and

under

which

the

Shermans

may

state-law violations is the FTCA.

sue

the

United

States

for

The Shermans were therefore

required to exhaust administrative remedies pursuant to the FTCA
before bringing state-law claims against the United States.
Shermans

do

not

dispute

that

they

failed

to

exhaust

The
their

administrative remedies against the United States before filing
this action.

Because the Shermans failed to exhaust, the Court

lacks jurisdiction over any claims against the United States.
Dismissal of those claims is warranted.
The Shermans’ arguments to the contrary are unpersuasive.
The Shermans argue that Bivens or § 1983 claims are not subject
to exhaustion requirements.

They argue that they have stated

§ 1983 or Bivens claims against McMillan and that the alleged
state-law
claims.10

violations

are

“evidence”

of

those

federal-law

The Shermans argue that, because they originally sued

McMillan, not the United States, and because the United States

10

As discussed below, the Operative Complaint makes no mention
of Bivens.
23

substituted itself in place of McMillan for the part of the
Operative Complaint asserting state-law violations, the Shermans
can sue the United States for those state-law violations under
§ 1983 or Bivens.
Whatever

the

merits

of

any

federal-law

claims

against

McMillan, which the Court addresses below, the Shermans cite no
authority that a Bivens claim or § 1983 claim can be asserted
against

the

United

States.

Cf.

Bivens,

403

U.S.

at

397

(recognizing cause of action against federal officers); Will,
491

U.S.

§ 1983).

71

(holding

The

that

Shermans

a

cite

state
no

is

not

authority

a

“person”

under

supporting

their

“substitution” theory of liability.
The

Shermans

should be excused

argue

that

the

FTCA

in this case because

exhaustion

requirement

they originally sued

McMillan (who is not protected by sovereign immunity), rather
than the United States.
The

Shermans

did

not

That argument is also unpersuasive.
oppose

the

United

States’

motion

to

substitute itself as Defendant in place of McMillan for any
state-law claims asserted in III.B.1 of the Operative Complaint.
Even if the Shermans could show good cause for their failure to
exhaust, they would not cure a jurisdictional defect.

Because

the Court lacks jurisdiction over any claims against the United

24

States, there is no basis to stay this action to allow the
Shermans to exhaust their administrative remedies.11
The

Shermans’

motion

United States is DENIED.

to

stay

their

action

against

the

The U.S. Motion seeking dismissal of

the claims against the United States is GRANTED.
III. The Shermans’ Motions to Convert
The Shermans have filed six motions to convert Defendants’
Rule 12 motions (not including the U.S. Motion) to motions for
summary judgment.12
“refused

to

The Shermans contend that Defendants have

provide

information

concerning

the

seizure,

whereabouts of the the Shermans’ horses, or the identity of the
persons and/or governmental agencies involved in the unlawful
actions.”

(ECF No. 85 at 1281.)13

“Defendants’

refusal

to

provide

The Shermans contend that
pertinent

information

to

Plaintiffs prevents Plaintiffs from being able to more fully

11

Even if Kwai Fun Wong could be read to hold that failure to
exhaust does not deprive a federal court of jurisdiction over a
claim brought pursuant to the FTCA, there would be no basis to
stay this action because, as discussed below, Count III.B.1
fails to state a claim on which relief can be granted.
12

The Shermans’ motion to convert the State Motion into a motion
for summary judgment is DENIED because the Court lacks
jurisdiction over the Shermans’ claims against the State.
13

For instance, the Shermans assert that in 2012 they were
informed that Fayette County officials had not participated in
the seizure of their horses, but that in 2016, after the horses
had been ordered released, the State asserted for the first time
that Fayette County officials had, in fact, seized the horses.
(ECF No. 85 at 1281.)
25

respond

to

Shermans
support

the

have
of

Defendants’
submitted

their

Rule

12

numerous

motions

to

motions.”

documents

convert

and

(Id.)

and

their

The

exhibits

in

responses

to

Defendants’ motions to dismiss, and the Shermans ask the Court
to consider that evidence.

The Shermans argue that, if the

Court considers that evidence, Defendants’ motions to dismiss
should be converted to motions for summary judgment, and the
Shermans ask that the Court either (1) deny Defendants’ motions
or (2) defer ruling and provide the Shermans opportunity for
discovery with the option to amend their pleadings following
discovery.

(Id. at 1281-82.)

Defendants

oppose

the

Shermans’

motions

to

convert.

Representative of Defendants’ arguments generally, HSUS argues
that discovery is not required for the Court to rule on Rule 12
motions to dismiss.

(ECF No. 99 at 1682.)

HSUS contends that

the Court must assume that all well pled facts in the Operative
Complaint

are

true,

making

it

unnecessary

to

consider

any

additional material offered by the Shermans that merely supports
the pleadings.
is

not

in

HSUS argues that the Shermans’ requested relief

response

to

extraneous

material

introduced

by

Defendants, but “is an attempt to take advantage of extraneous
material that [the Shermans], themselves, filed -- not for any
valid purpose -- but instead, to draw attention away from the

26

deficiencies in the allegations in the [Operative] Complaint.”
(Id. at 1684.)
Rule 12(d) provides that, “[i]f, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.”
If

so

treated,

“[a]ll

parties

must

Fed. R. Civ. P. 12(d).
be

given

a

reasonable

opportunity to present all the material that is pertinent to the
motion.”

Id.

“[F]ederal courts have complete discretion to

determine

whether

or

not

to

accept

the

submission

of

any

material beyond the pleadings that is offered in conjunction
with a Rule 12(b)(6) motion and rely on it, thereby converting
the motion, or to reject it or simply not consider it.”

5C

Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1366 (3d ed. 2004).
“The

purpose

of

a

motion

to

dismiss

is

sufficiency of the pleading before the Court.”
Lublin

Suarez

Serrano,

LLC,

No.

to

test

the

Dillard v. Rubin

12-2182-STA-dkv,

12043557, at *5 (W.D. Tenn. Mar. 1, 2013).

2013

WL

Courts in this

Circuit have denied plaintiffs’ motions to convert when it is
unnecessary

to

consider

matters

deciding a motion to dismiss.

outside

the

pleadings

in

See, e.g., Rider v. HSBC Mortg.

Corp. (USA), No. 2:12-cv-925, 2013 WL 3901519, at *2 (S.D. Ohio
July 29, 2013); see also Yaldo v. Homeward Residential, Inc.,
27

622 F. App’x 514, 516 (6th Cir. 2015) (“[Plaintiff’s] argument
that

her

inclusion

of

exhibits

in

her

response

to

the

defendants’ motions to dismiss should have converted them into
motions

for

summary

complaint that

judgment

is

not

well

taken,

because

a

cannot survive a motion to dismiss would not

survive a motion for summary judgment.”).
The Court may, and does, consider some of the material
submitted by the parties not constituting “matters outside the
pleadings” in addressing Defendants’ Rule 12 motions.

See Fed.

R.

offer

Civ.

P.

persuasive

12(d).
reason

The
why

Shermans,

the

Court

however,

should

do

not

consider

any

outside the pleadings that they have presented.
material

in

the

documents

and

exhibits

the

a

matters

All of the
Shermans

have

submitted concerns events occurring before the Shermans’ filing
of the Operative Complaint.14
their

pleadings

based

on

The Shermans were able to fashion
the

matters

addressed

by

these

documents.

Defendants’ motions to dismiss challenge the legal

sufficiency

of

the

pleadings.

Any

consideration

of

matters

outside the pleadings presented by the Shermans’ documents and
exhibits

is

unnecessary

in

evaluating

the

pleadings’

legal

sufficiency.

14

The only document the Shermans offer that post-dates the
Operative Complaint (although it concerns matters pre-dating the
Operative Complaint) is a declaration by their own counsel.
(ECF No. 82-2 at 907.)
28

The Shermans’ argument that they cannot adequately respond
to

Defendants’

lacks

merit

because

sufficient.
a

motions

to

it

dismiss

assumes

without
the

further

pleadings

discovery

are

legally

Defendants’ motions challenge that assumption.

motion

to

dismiss,

a

pleadings

to

determine

Ashcroft

v.

Iqbal,

court

tests

whether
556

the

sufficiency

discovery

U.S.

662,

is

of

warranted.

678-79

(2009)

On
the
See

(“Rule

8 . . . does not unlock the doors of discovery for a plaintiff
armed

with

argument

nothing

that

they

more

than

conclusions.”).

need

discovery

to

respond

The
to

Shermans’

Defendants’

motions to dismiss is, in essence, an argument that discovery is
needed

to

determine

whether

discovery

is

warranted.

The

Shermans cite no authority that a plaintiff may avoid a Rule 12
motion by unilaterally presenting matters outside the pleadings.
Courts

have

converted

motions

to

dismiss

into

motions

for

summary judgment where the pleadings are first determined to be
legally sufficient.

See, e.g., Jerome-Duncan, Inc. v. Auto-By-

Tel, L.L.C., 989 F. Supp. 838, 841 (E.D. Mich. 1997) (“Because
the allegations contained in the amended complaint taken as true
are sufficient to state a claim, and because the affidavits and
other

materials

submitted

by

the

parties

are

vital

to

the

discussion infra, this court will decide this motion as a motion
for summary judgment pursuant to [Rule 56].”), aff’d, 176 F.3d
904 (6th Cir. 1999).
29

The authorities the Shermans cite are not to the contrary.
In Yeary v. Goodwill Industries-Knoxville, Inc., the Court of
Appeals reviewed the district court’s disposition as one under
Rule 12(b)(6) rather than under Rule 56 because, “[a]lthough the
district

court

pleadings,

certainly

those

matters

considered
simply

matters

filled

in

the

outside

the

contours

and

details of the plaintiff's complaint, and added nothing new,”
and the district court did not rely on affidavits containing
material that exceeded the scope of the complaint.
443, 445 (6th Cir. 1997).

107 F.3d

In Wysocki v. International Business

Machine Corp., the Court of Appeals affirmed a district court’s
decision

to

convert

a

motion

to

dismiss

into

a

motion

for

summary judgment where the Rule 12 movant -- not the non-movant
-- presented matters outside the pleadings attached to its reply
and gave the non-movant adequate notice.

607 F.3d 1102, 1104-05

(6th Cir. 2010).
The Court will not consider matters outside the pleadings
that

would

converted

require

into

Defendants’

motions

for

motions

summary

to

judgment.

dismiss
The

to

be

Shermans’

motions to convert are DENIED.
IV.

Standard of Review
In addressing a motion to dismiss for failure to state a

claim under Rule 12(b)(6), the court must construe the complaint
in the light most favorable to the plaintiff and accept all
30

well-pled factual allegations as true.

League of United Latin

Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).
plaintiff

can

support

a

claim

“by

showing

any

set

of

consistent with the allegations in the complaint.”

A

facts

Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 563 (2007).
This standard requires more than bare assertions of legal
conclusions.

Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478,

488 (6th Cir. 2009).

“[A] formulaic recitation of the elements

of a cause of action will not do.”
To

survive

a

motion

to

dismiss,

Twombly, 550 U.S. at 555.
a

complaint

must

contain

sufficient facts “to ‘state a claim to relief that is plausible
on its face.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550

U.S. at 570).

“The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer
possibility

that

a

defendant

has

(quoting Twombly, 550 U.S. at 556).

acted

unlawfully.”

Id.

“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements,
plaintiff

do

with

not
no

suffice.”
facts

Id.

and

“armed

(citation
with

omitted).

nothing

more

conclusions” cannot “unlock the doors of discovery.”
678-79.

To

survive

a

motion

to

dismiss,

a

A
than

Id. at

complaint

must

“contain either direct or inferential allegations respecting all
material elements necessary for recovery under a viable legal

31

theory.”

D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir.

2014) (quotation marks omitted).
In addressing a motion to dismiss under Rule 12(b)(6), a
district

court

“may

consider

the

Complaint

and

any

exhibits

attached thereto, public records, items appearing in the record
of

the

case

and

exhibits

attached

to

defendant’s

motion

to

dismiss so long as they are referred to in the Complaint and are
central to the claims contained therein.”

Bassett v. Nat’l

Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
“After the pleadings are closed -- but early enough not to
delay trial -- a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c).
Rule

12(b)(6)

and

Rule

“[T]he legal standards for adjudicating
12(c)

motions

are

the

same . . . .”

Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th Cir. 2007).
V.

Analysis
A.

Claims Asserted and Threshold Challenges

The Operative Complaint alleges three “causes of action”:
(1) due

process

violations;

and

(3) violations

statutes;
regulations.

(2) violations
of

federal

of

Tennessee

statutes

and

Defendants contend that the claims asserted by

those “causes of action” can be summarily dismissed.
1.

Due Process Violations

In Section III.A of the Operative Complaint, the Shermans
allege that Defendants, “all acting individually and in concert
32

with

each

other,

and

under

color

of

state

law,

have

intentionally and purposefully violated Plaintiffs’ procedural
and

substantive

deprived

and

due

are

process

continuing

rights
to

and,

as

deprive

a

Plaintiffs

property rights they possess in their horses.”
at

511.)

The

Shermans

allege

that

result,
of

have
the

(ECF No. 55 ¶ 39

Defendants’

conduct

has

violated their rights under the Fifth Amendment, the Fourteenth
Amendment, and provisions of the Tennessee Constitution.
Shermans seek relief under 42 U.S.C. § 1983.

The

(Id. ¶¶ 34, 36-42

at 510-12.)
The
fails

AG

to

process

Defendants

state

a

contend

§ 1983

violations.

claim

The

AG

that

the

for

Operative

federal

Defendants

Complaint

substantive
argue

that

due
the

protections of substantive due process have mainly been limited
to matters related to marriage, family, procreation, and the
right to bodily integrity, and that the Supreme Court has been
reluctant to expand those protections to other matters.
No. 65-1 at 788-89.)

(ECF

The Shermans do not cite any authority or

plausibly contend that the Operative Complaint states a federal
substantive due process violation as a result of the seizure of
their

horses.

(See

generally

ECF

No.

86

at

1460-78.)

Deprivations of personal property, particularly in the context
of

property

procedural

forfeiture,

due

process,

typically
not

implicate,

substantive
33

due

if

anything,

process.

See

Langston v. Charter Twp. of Redford, 623 F. App’x 749, 758-59
(6th Cir. 2015) (declining to recognize substantive due process
claim in administrative forfeiture context).

To the extent the

Operative

§ 1983

Complaint

purports

to

assert

a

claim

for

federal substantive due process violations, Defendants’ motions
to dismiss are GRANTED.
The

parties

dispute

whether

the

Operative

Complaint

articulates a claim under § 1983 for an unlawful taking without
just compensation, in violation of the Fifth Amendment.
Operative

Complaint

does

not

purport

to

allege

an

The

inverse-

condemnation action, but it does allege the confiscation of the
Shermans’ property and a violation of the Fifth Amendment.

The

AG Defendants contend that any takings claim must fail because
seizing property pursuant to criminal laws or subjected to in
rem forfeiture proceedings is not a taking for which an owner is
entitled to compensation, even where the owner is innocent of
wrongdoing.

(ECF No. 65-1 at 789-90.)

Fayette County, HSUS,

and the Burns-Estepa Defendants contend that, to state a Fifth
Amendment

takings

claim

for

which

relief

can

be

granted,

a

plaintiff must plead that the state does not have an adequate
inverse-condemnation law.
failed to do so.

They contend that the Shermans have

(ECF No. 57-1 at 542 n.9; ECF No. 58-1 at 585

n.11; ECF No. 77-1 at 856.)

The Shermans do not substantively

respond to Defendants’ arguments, but argue summarily, without
34

citing

authority,

that

their

“horses

could

constitutionally taken without ‘just compensation.’”

not

be

(ECF No.

83 at 1021; ECF No. 86 at 1474.)
Generally,

Fifth

Amendment

takings

claims

are

not

cognizable where property is seized pursuant to forfeiture laws,
even

where

an

owner

is

innocent

of

wrongdoing.

See,

e.g.,

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683-86
(1974); AmeriSource Corp. v. United States, 525 F.3d 1149, 115257 (Fed. Cir. 2008).

The Sixth Circuit has held that, to state

a Fifth Amendment takings claim, “the plaintiff must show ‘that
the

inverse

condemnation

inadequate.’”

procedure

is

unavailable

or

G.M. Eng’rs & Assocs., Inc. v. W. Bloomfield

Twp., 922 F.2d 328, 331 (6th Cir. 1990) (quoting

Williamson

Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City,
473 U.S. 172, 197 (1985)).

The Shermans agree that the seizure

about which they complain was pursuant to Tennessee’s forfeiture
laws.

The Operative Complaint does not allege that Tennessee’s

inverse-condemnation procedure is unavailable or inadequate.

To

the extent the Operative Complaint purports to assert a § 1983
claim for violation of the Fifth Amendment’s Takings Clause,
Defendants’ motions to dismiss are GRANTED.
The

AG

Defendants

contend

that

the

Operative

Complaint

fails to state a § 1983 claim for Fourth Amendment violations.
(ECF

No.

65-1

at

789.)

Although
35

the

Operative

Complaint

explicitly

alleges

violations

of

the

Fifth

and

Fourteenth

Amendments, it makes no mention of the Fourth Amendment.

The

Shermans’ responses focus on alleged violations of the Fifth and
Fourteenth Amendments, not the Fourth Amendment.

To the extent

the Operative Complaint purports to assert a § 1983 claim for
Fourth Amendment violations, Defendants’ motions to dismiss are
GRANTED.
The AG Defendants and Fayette County contend that, to the
extent the Shermans seek relief under § 1983 for violations of
state law, any such claim must fail.
No. 77-1 at 860 n.4.)

(ECF No. 65-1 at 792; ECF

The Shermans’ filings are unclear about

whether the Shermans

purport to predicate a § 1983 claim on

state-law violations.

In the Operative Complaint, the Shermans

seek

relief

Constitution.

under

§ 1983

for

violations

(ECF No. 55 ¶ 39 at 511.)

of

the

Tennessee

In response to the

Fayette County Motion, the Shermans argue that the “doctrines of
due

process

in . . . the

and

just

Tennessee
statutes,

compensation

have

long

been

Constitution, . . . codified

State’s

own

and

confirmed

court.”

(ECF No. 83 at 1021.)

by

the

State’s

embodied
in

the

highest

In response to the U.S. Motion,

however, the Shermans characterize their allegations of statelaw violations as “direct factual evidence of the violations of
due process under the United States Constitution.”
at 1860.)
36

(ECF No. 107

Although

alleged

noncompliance

with

state-law

procedures

can be relevant in assessing a federal due process claim, § 1983
is

“limited

to

deprivations

of

federal

statutory

and

constitutional rights” and “does not cover official conduct that
allegedly violates state law” alone.

Michael v. Ghee, 498 F.3d

372, 375 (6th Cir. 2007) (quotation marks omitted).

To the

extent the Operative Complaint purports to assert a § 1983 claim
for solely state-law violations, Defendants’ motions to dismiss
are GRANTED.
The

Shermans’

only

§ 1983

claim

that

warrants

further

discussion is their claim for federal procedural due process
violations, which will be addressed below.
2.

Tennessee Statutory Violations

In Section III.B.1 of the Operative Complaint, the Shermans
allege

numerous

violations

of

Tennessee

statutes,

including

Tenn. Code Ann. §§ 39-14-210(a) et seq., governing enforcement
of cruelty-to-animals laws, and Tenn. Code Ann. §§ 39-11-701 et
seq., governing criminal and civil property forfeiture.
No. 55 ¶¶ 43-51 at 512-15.)

(ECF

The Operative Complaint alleges

that “Defendants, acting individually and in concert, violated”
those state statutes and, “[a]s a direct and proximate result of
these

violations,

the

Plaintiffs

have

suffered

entitled to equitable relief and damages.”
514.)
37

harm

and

are

(Id. ¶¶ 50-51 at

Defendants

contend

that,

to

the

extent

the

Operative

Complaint purports to assert independent state-law claims for
the

statutory

violations,

or

an

independent

state-law

claim

arising under the Tennessee Constitution, any such claims fail.
(E.g., ECF No. 77-1 at 859-61.)

Fayette County points out that

the

as

Tennessee

Code

provides

follows:

“In

order

for

legislation enacted by the general assembly to create or confer
a private right of action, the legislation must contain express
language creating or conferring the right.”
§ 1-3-119(a).

Tenn. Code Ann.

The Code further provides: “In the absence of the

express language required by subsection (a), no court of this
state . . . shall construe or interpret a statute to impliedly
create or confer a private right of action except as otherwise
provided

in

this

section.”

Tenn.

Code

Ann.

§ 1-3-119(b).

“Tennessee does not recognize a private cause of action for
violations of the Tennessee Constitution.”

Cline v. Rogers, 87

F.3d 176, 179 (6th Cir. 1996) (citing Lee v. Ladd, 834 S.W.2d
323 (Tenn. Ct. App. 1992)).
Fayette County argues that, although the Shermans allege
violations of Tenn. Code Ann. § 39-14-210(a) et seq., none of
those provisions creates or confers a right of action for an
alleged violation.

Addressing Tennessee’s property-forfeiture

statutes, Fayette County argues that, although those statutes
allow an owner or interest-holder to petition a court for the
38

return of seized property, no provision creates or confers a
right of action for damages for an alleged violation of the
forfeiture

statutes.

Fayette

County

also

contends

that

any

claim by the Shermans seeking the return of their horses is now
moot because their horses have been returned.

(ECF No. 77-1 at

860.)
The

Shermans

contentions.
U.S.

Motion)

do

not

disagree

with

any

of

Defendants’

Indeed, the Shermans represent (in response to the
that

their

allegations

of

“violations

of

the

Tennessee forfeiture law are not the direct claims being made”
and

are

instead

violations.

“factual

The

Shermans’

evidence”

of

federal

representations

due

confirm

process
that

the

Tennessee statutory violations asserted in Section III.B.1 of
the Operative Complaint are not independent claims for relief.
To

the

extent

the

Operative

Complaint

purports

to

assert

independent claims for relief for violations of Tenn. Code Ann.
§§ 39-14-210(a) et seq., §§ 39-11-701 et seq., or the Tennessee
Constitution, Defendants’ motions to dismiss are GRANTED.
3.

Violations of the Horse Protection Act

In Section III.B.2 of the Operative Complaint, the Shermans
allege

violations

of

the

Horse

Protection

Act

and

related

regulations, specifically 15 U.S.C. § 1825(e)(1) and 9 C.F.R.
§ 11.4, by Defendant McMillan and various John and Jane Doe

39

defendants (the “Horse Protection Act Claim”).

(Id. ¶¶ 52-56 at

515-16.)
McMillan and the Shermans agree that the Horse Protection
Act does not create or confer a right of action for damages for
the specific violations about which the Shermans complain.
ECF No. 95 at 1643; ECF No. 106 at 1730.)

(See

McMillan contends

that the Shermans may seek relief for her alleged violation of
the Horse Protection Act, if at all, only under Bivens.
No. 95 at 1639, 1641-45.)
mention

Bivens

(although

(ECF

The Operative Complaint does not
it

cites

other

legal

grounds

for

relief), but the Shermans argue in response that the Operative
Complaint can be construed to assert a Bivens claim.

(ECF No.

106 at 1729-31.)
Although the Supreme Court has recognized the availability
of Bivens claims in limited circumstances, it has “consistently
refused to extend Bivens liability to any new context or new
category

of

defendants.”

Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 68 (2001); see, e.g., Minneci v. Pollard, 565 U.S. 118,
120 (2012) (refusing to extend Bivens

liability to employees

working in privately operated federal prisons); Wilkie v. Robbins,
551 U.S. 537, 541 (2007) (refusing to extend Bivens liability to
federal employees accused of harassment and intimidation aimed at
extracting easement across private property); Meyer, 510 U.S. at
473 (refusing to extend Bivens liability to federal agencies);
40

Schweiker v. Chilicky,
extend

Bivens

487 U.S. 412, 414 (1988) (refusing to

liability

to

government

employees

for

alleged

improper denial of Social Security benefits); United States v.
Stanley, 483 U.S. 669, 684 (1987) (refusing to extend Bivens
liability for injuries arising out of or incident to military
service); Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to
extend Bivens liability to superiors for alleged violations of
federal employees’ First Amendment rights); Chappell v. Wallace,
462 U.S. 296, 297 (1983) (refusing to extend Bivens liability to
superior

officers

for

enlisted

military

personnel

injured

in

military service).
Against

this

weight

of

authority,

the

Shermans

cite

no

cases and offer no plausible reason why a federal employee’s
violation of the Horse Protection Act, specifically the decision
to detain another’s horse for longer than 24 hours, should give
rise to a Bivens claim.

The McMillan Motion seeking dismissal

of the Horse Protection Act Claim is GRANTED.
B.

§ 1983 Due Process Claim

The Operative Complaint alleges that Defendants, “acting in
concert

and

under

color

of

state

law,

have

conspired

to

unlawfully hide, detain, and wrongfully convert the Plaintiffs’
horses.”
seizure

Specifically, the Shermans allege that, following the
of

(1) notice

their
of

the

horses,
seizure

the
or

Shermans

were

(2) information
41

not

provided

about

available

procedures to obtain the return of their horses.
26-27,

33,

40

at

509-11.)

Although

not

(ECF No. 55 ¶¶

properly

pled,

in

response to the AG Motion, the Shermans allege that “(3) no predeprivation

due

process

hearing

was

provided;

(4) no

post-

deprivation hearing was provided; (5) the only hearing was an in
rem action, brought sixteen months after the horses were taken,
in which the State sought their forfeiture; (6) the horses were
unlawfully placed in the custody of a foreign corporation in
violation of statute; and (7) no official accusation, complaint,
charge,

presentment

or

indictment

alleging

any

wrongdoing were ever filed against Plaintiffs.”

crime

or

(ECF No. 86 at

1475-76.)
Defendants generally contend that the Shermans’ due process
claim fails because adequate state remedies exist for the harms
about

which

the

Shermans

complain.

Specifically,

the

AG

Defendants argue that, not only do specific state procedures
exist for a property owner to contest the seizure and forfeiture
of property, but that the Shermans have failed to use those
procedures.
further

(ECF

argue

No.

that

a

65-1

at

787-88.)

predeprivation

The

hearing

is

AG

Defendants

not

required

where property is seized for criminal-investigation purposes.
(ECF No. 93 at 1628.)
“The
provides

Due
that

Process
no

state

Clause
shall

of

the

‘deprive

42

Fourteenth

Amendment

any

of

person

life,

liberty, or property, without due process of law.’”

Puckett v.

Lexington-Fayette Urban Cnty. Gov’t, 833 F.3d 590, 604 (6th Cir.
2016) (quoting U.S. Const. amend. XIV, § 1).

“At its core,

procedural due process requires notice and an opportunity to be
heard at a meaningful time and in a meaningful manner.”
606 (quotation marks omitted).

Id. at

“[T]he Due Process Clause is

flexible and provides different levels of protection depending
on

the

particular

deprivation.”
The

situation

and

circumstances

of

the

Id.

Shermans

their horses.

allege

a

deprivation

of

personal

property,

“To establish a procedural due process claim, a

plaintiff must show (1) the existence of a protected property
interest at issue, (2) a deprivation of that protected property
interest,

and

(3)

procedures.”
(6th

Cir.

that

he

or

she

was

not

afforded

adequate

Paterek v. Village of Armada, 801 F.3d 630, 649

2015).

At

issue

here

is

whether

the

Shermans’

pleadings plausibly allege the third element.
In

this

Circuit,

“a

§ 1983

plaintiff

can

prevail

on

a

procedural due process claim by demonstrating that the property
deprivation
procedure

resulted

that

itself

from

either:

violates

due

(1) an
process

established
rights,

or

state
(2) a

‘random and unauthorized act’ causing a loss for which available
state remedies would not adequately compensate the plaintiff.”
Warren v. City of Athens, 411 F.3d 697, 709 (6th Cir. 2005)
43

(quoting

Macene

v.

MJW,

Inc.,

951

F.2d

700,

706

(6th

Cir.

1991)).
To afford adequate procedures, “[p]rocedural due process
generally requires that the state provide a person with notice
and an opportunity to be heard before depriving that person of a
property . . . interest.”

Warren,

411

F.3d

at

708.

“Under

certain circumstances, however, a state may satisfy due process
without providing notice or an opportunity to be heard before
the deprivation.”

Daily Servs., LLC v. Valentino, 756 F.3d 893,

904 (6th Cir. 2014).
only

required

feasible.”

in

That is because “predeprivation process is
cases

where

predeprivation

process

is

Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir.

1999).
For example, in cases of property forfeiture, “pre-seizure
hearings

are

interested

not

constitutionally

persons

receive

notice

mandated,

and

a

as

timely

opportunity to be heard prior to forfeiture.”

long

as

post-seizure

Ross v. Duggan,

402 F.3d 575, 584 (6th Cir. 2004) (emphasis removed).

Also,

“[i]n cases involving ‘random and unauthorized’ deprivations of
property” by a government employee, “pre-deprivation process is
impossible

and,

therefore,

adequate

post-deprivation

state

procedures comport with the constitutional requirements of due
process.”
Taylor,

451

Macene,
U.S.

951

527

F.2d

at

(1981)).
44

706
That

(discussing
is

true

Parratt

even

where

v.
an

“intentional deprivation of property by a state employee” is
alleged.
Parratt

Hudson v. Palmer, 468 U.S. 517, 533 (1984).
and

its

progeny,

“random

and

unauthorized”

Under
acts

by

government employees are those that the state cannot “anticipate
and control in advance.”
Under

the

Id.

Parratt

doctrine,

“[c]ourts

may

dismiss

a

procedural due process claim if the state provides an adequate
postdeprivation remedy and (1) the deprivation was unpredictable
or

random;

(2) predeprivation

process

was

impossible

or

impracticable; and (3) the state actor was not authorized to
take

the

action

liberty.”15

that

Daily

omitted).

“In

deprived

Servs.,

this

the

756

context,

plaintiff

F.3d

at

907

‘unauthorized’

of

property

(quotation
means

or

marks

that

the

official in question did not have the power or authority to
effect the deprivation, not that the act was contrary to law.”
Warren,

411

established

F.3d
state

at

709-10.

procedure

that

A

plaintiff

itself

alleging

violates

due

“an

process

rights” does “not need to demonstrate the inadequacy of state
remedies.”
unauthorized

Id. at 709.
acts,

the

But for a plaintiff alleging random and
“Parratt

rule

creates

the

requirement

that plaintiffs in such circumstances must prove that the post15

Parratt was overruled in part by Daniels v. Williams, which
held that “a negligent act of an official causing unintended
loss of or injury to life, liberty, or property” does not amount
to a violation of the Due Process Clause.
474 U.S. 327, 328
(1986). Parratt otherwise remains binding precedent.
45

deprivation process afforded by the state is somehow inadequate
to right the wrong at issue.”

Macene, 951 F.2d at 706.

failure

to

circuit,

section

1983

so

plead

in

complaint

this

subject

to

therefore,

“The

renders

a

Watts

v.

dismissal.”

Burkhart, 854 F.2d 839, 843 (6th Cir. 1988).
The

Shermans’

due

process

claim

is

allegedly unlawful conduct by Defendants.

largely

premised

on

They complain of the

“unlawful seizure, confiscation, detention and conversion” of
their horses and allege that Defendants’ actions “exceeded their
lawful authority under state and/or federal law.”
¶¶ 12, 35 at 506, 510.)
Tenn.

Code

Ann.

(ECF No. 55

The Shermans allege that HSUS violated

§ 39-14-210(f)

by

taking

custody

of

the

Shermans’ horses without being a “humane society chartered by
the state” and that Defendants, “[a]lthough legally required to
do so,” provided

the Shermans

“absolutely no notice” of the

seizure “as required by state statute and federal regulation.”
(Id.

¶¶

33,

44-45

at

510,

512.)

The

Shermans

allege

that

Defendants “conspired and acted in concert to use state law as a
subterfuge

to

accomplish

what

they

did

not

have

authority to do under state and/or federal law.”

the

lawful

(Id. ¶ 30 at

509.)
The Shermans agree that the Tennessee statutes they cite
provided constitutional protections and maintain that, “[h]ad
they been followed by Defendants as the statutes mandate, the
46

Plaintiffs

could

protections.”
Defendants

have

(ECF

received

No.

“conspired”

86
or

procedural . . . due

at

1475.)

By

intentionally

process

alleging

violated

that

various

statutes and acted without lawful authority, the Shermans have
alleged

random

and

unauthorized

government employees.
F.2d at 706.

deprivations

of

property

by

See Parratt, 451 U.S. at 541; Macene, 951

Hudson makes clear that “when deprivations of

property are effected through random and unauthorized conduct of
a

state

employee,

‘impracticable’

predeprivation

since

the

deprivations will occur.”

state

procedures
cannot

are

know

simply

when

such

468 U.S. at 533.

The Shermans’ contentions establish that the deprivation of
which

they

complain

“predeprivation process
Defendants

were

“not

was

“unpredictable

random,”

was impossible or impracticable,”

authorized

to

take

deprived” the Shermans of their horses.
at 907.

or

the

action[s]

and
that

Daily Servs., 756 F.3d

Under the Parratt rule, the Shermans were required to

plead and prove that the “post-deprivation process afforded by
the state is somehow inadequate.”
Operative
remedies

Complaint
are

does

inadequate

not
to

Macene, 951 F.2d at 706.

allege

that

compensate

the

available
Shermans

caused by Defendants’ allegedly unlawful conduct.
that

pleading

failure,

the

Shermans’

47

due

The

state-law
for

harm

Because of

process

claim

predicated on Defendants’ random and unauthorized acts must be
dismissed.

Watts, 854 F.2d at 843.

To the extent the Shermans rely on State v. Sprunger, 458
S.W.3d 482 (Tenn. 2015), to support their contention that they
have adequately pled due process violations, that reliance is
misplaced.
of

the

Sprunger invoked the Fifth and Fourteenth Amendments

U.S.

Constitution

Constitution
in

and

discussing

a
the

provision

of

the

importance

of

compliance with Tennessee’s forfeiture statutes.

Tennessee
procedural

Id. at 493-94.

Sprunger explained that the “State’s exercise of police powers
in effecting the forfeiture of citizens’ property requires black
letter compliance to procedural rules intended to safeguard the
due process rights of citizens.”
omitted).
proceeding
process
warrants

Sprunger
under

addressed

Tennessee

violations

under

departure

from

Id. at 499 (quotation marks
a

law,
federal
the

challenge
not

a

law.

Parratt

to

§ 1983

a

claim

Nothing
rule,

forfeiture
for

due

in

Sprunger

which

requires

dismissal of a federal due process claim premised on government
actors’ unlawful noncompliance with procedural rules where the
plaintiff fails to allege that state remedies are inadequate for
those due process violations.
Although not properly pled, some of the Shermans’ arguments
suggest that certain

established

state procedures

themselves,

rather than Defendants’ random and unauthorized acts, violated
48

the Shermans’ due process rights.

The Shermans complain that,

in the wake of the seizure of their horses, no information was
provided about available procedures to obtain the return of the
horses.

To the extent that resulted from the proper application

of Tennessee law rather than Defendants’ random and unauthorized
acts in disregard of Tennessee law, the Supreme Court has held
that, when government officials seize property for a criminal
investigation,

“individualized

remedies . . . established

by

notice

published,

of
generally

state statutes and case law” is not required.
v. Perkins, 525 U.S. 234, 240-41 (1999).

state-law
available

City of W. Covina

Tennessee’s statutory

forfeiture scheme affords owners of property numerous mechanisms
by

which

they

may

challenge

forfeiture of property.

the

seizure

and

threatened

See Hill v. City of Memphis, No. W2013-

02307-COA-R3-CV, 2014 WL 7426636, at *9 (Tenn. Ct. App. Dec. 30,
2014) (discussing provisions in Tenn. Code Ann. §§ 39-11-701 et
seq.).

Defendants were not constitutionally required to provide

the Shermans information about available remedies outlined in
the Tennessee Code.
The Shermans also complain that no predeprivation hearing
was provided before their horses were seized, but the Sixth
Circuit

has

held

constitutionally

that

mandated”

“pre-seizure
where

a

hearings
“timely

are

post-seizure

opportunity to be heard prior to forfeiture” is provided.
49

not

Ross,

402 F.3d at 584.
the

form

of

The Shermans were provided such a hearing in

the

State’s

forfeiture

action.

The

Shermans

contested that forfeiture action, prevailed before the Fayette
County Circuit Court, and secured the return of their horses.16
The Shermans also complain that their horses were seized
and subjected to forfeiture proceedings although the Shermans
were

never

officially

charged

with

any

crime

or

wrongdoing.

(ECF No. 86 at 1476 & n.9.)

The Shermans suggest that, by

permitting

where

forfeiture

actions

the

property

owner

is

innocent of wrongdoing, Tennessee’s forfeiture scheme violates
their due process rights.
The Fayette County Circuit Court found the Shermans to be
“innocent owners” because they “were not criminally charged or
convicted in connection with the abuse of their horses” (ECF No.
82-10 ¶ 5 at 952).

That finding does not mean that subjecting

the Shermans’ horses to a forfeiture action violated the federal
constitution.

In

Bennis

v.

Michigan,

explained that its decisions had

the

Supreme

Court

long held that “an owner’s

interest in property may be forfeited by reason of the use to
which the property is put even though the owner did not know
16

Although the State’s appeal in that action is pending before
the Tennessee Court of Appeals, the possibility of reversal does
not implicate the issues in this case.
The Shermans’ § 1983
claims in this action are premised on Defendants’ conduct in
attempting to secure the forfeiture of the Shermans’ horses, not
on any alleged due process violations by Tennessee courts in
adjudicating the State’s forfeiture action.
50

that it was to be put to such use.”

516 U.S. 442, 443, 446

(1996) (affirming Michigan Supreme Court decision holding that
“Michigan’s

failure

to

provide

an

innocent-owner

defense

was

without constitutional consequence” where trial court ordered
forfeiture

of

automobile

jointly

owned

by

claimant

and

her

convicted husband with no offset for claimant’s interest in the
forfeited property (quotation marks omitted)).

The Shermans’

innocent-owner

result

argument

likewise

fails.

The

is

no

different, even where a property owner successfully challenges a
forfeiture

action

so

long

as

the

forfeiture action was justified.

seizure

that

prompted

the

See Ross, 402 F.3d at 586

(“[T]he initial seizures were constitutionally justified upon
‘probable
notice

cause,’
and

as

a

long
fair

as

the

owners

received

reasonable

post-impoundment-but-pre-forfeiture

opportunity to contest ultimate forfeiture.”)
In its order granting the Shermans summary judgment in the
forfeiture action, the Fayette County Circuit Court noted that
it

was

undisputed

McConnell . . . to

that

‘train’

(1) the
Paroled

“Shermans
In

The

hired

Night

and

Jackie
Mucho

Bueno”; (2) “McConnell and others working for him pled guilty in
both

state

and

federal

court

to

abusing

horses,

including

Paroled In The Night and Mucho Bueno”; and (3) “the Shermans’
horses were seized from McConnell’s barn on March 1, 2012, in
connection

with

McConnell’s

arrest
51

on

state

animal

cruelty

charges.”

(ECF

No.

82-10

¶

2

at

951-52.)

Although

the

Operative Complaint alleges that a veterinarian’s examination of
the Shermans’ horses four days after their seizure disclosed no
signs of injury or soring (see ECF No. 55 ¶¶ 22-23 at 508), the
Operative

Complaint’s

allegations

do

not

challenge

the

undisputed findings of the Fayette County Circuit Court.

The

Shermans allege that “there was no justification for further
holding the the Shermans’ horses as ‘evidence’ in any criminal
investigation” following the veterinarian’s examination (id. ¶
23 at 508), but the Shermans cite no authority establishing the
unlawfulness
where

the

of

their

State’s

horses’

seizure

investigation
pleading

or

continued

culminated

guilty

to

in

soring

detention

the
the

Whitter

Stables

trainers’

Shermans’

horses.

The Shermans do not plausibly allege that the seizure

and detention of their horses violated due process.
The

Shermans

also

complain

that

the

State’s

forfeiture

action was brought 16 months after the horses were seized and
did not allow for a damages counterclaim.

(ECF No. 86 at 1476 &

n.9.)

The AG Defendants contend, however, that the Shermans

failed

to

mechanisms
continued

avail

themselves

through
detention

more expeditiously.

which
and

of

available

they

could

potential

statutory
have

forfeiture

(ECF No. 65-1 at 787-88.)

52

procedural

challenged
of

their

the

horses

When

the

provided:

“If

seizure

of

forfeiture

Shermans’
after

the

horses

thirty

(30)

were

seized,

days

from

property . . . no

action

has

been

Tennessee

the

date

administrative

initiated,

the

or

law

of

the

civil

owner . . . may

petition the chancery court in the judicial district where the
seizure occurred for return of the property.”
39-11-709(b).17

Tenn. Code Ann. §

That statute provided that, if no “action is

commended within thirty (30) days after the appropriate official
has been served with the petition for return of property . . . ,
then the chancery court shall order the property be returned.”
Id.

Rather than file a petition pursuant to § 39-11-709(b) in

the chancery court, the Shermans filed a replevin action in the
circuit court.

(ECF No. 1-3 at 40-42.)

The Tennessee Code

expressly proscribed the filing of a replevin action as a means
of contesting seizure for forfeiture.
709(a).

Tenn. Code Ann. § 39-11-

In challenging the seizure and potential forfeiture of

their horses, the Shermans filed an action that the Tennessee
Code proscribes and failed to file an action in the manner the
Code authorizes.
Tennessee

law

also

provided

that,

following

the

State’s

filing of a forfeiture action, “a claimant may file a motion
with the court in which the action is pending for the state to
show
17

cause

why

the

property . . . should

not

Section 39-11-709(b) has since been amended.
53

be

returned.”

Tenn.

Code

Ann.

§ 39-11-709(d).

That

statute

provided

that

within 21 days of the filing of such a motion, the court “shall
conduct

a

hearing

on

the

motion”

and,

if

the

claimant

can

establish standing, “the court shall order that the property be
returned” if “the court finds that the state has failed to prove
a

probability

action.”
pursuant

of

Id.
to

success

on

the

merits

of

the

forfeiture

The Shermans “never filed a show cause motion”

§ 39-11-709(d),

action.

availed

dismissal

of

themselves

the

Court

of

Forfeiture Litig. I, 2015 WL 1636704, at *7.
Shermans

initial

Tennessee

to

the

the

the

Appeals

Had

reverse

prompting

of

the

forfeiture

remedial

provisions provided by Tennessee’s forfeiture laws, the Shermans
might

have

secured

the

return

of

their

horses

more

expeditiously, mitigating any decline in value of their horses
and the loss of use about which they now complain.

The Shermans

quote Logan v. Zimmerman Brush Co. for the proposition that “the
State may not finally destroy a property interest without first
giving the putative owner an opportunity to present his claim of
entitlement.”

455 U.S. 422, 434 (1982).

Logan immediately

qualified that proposition, however, explaining, “This is not to
suggest, of course, that the State must consider the merits of
the claim when the claimant fails to comply with a reasonable
procedural requirement.”
to

comply

with

Id. at 434 n.7.

available

procedural
54

The Shermans’ failure
means

to

contest

the

continued detention of their horses precludes any due process
challenge to the statutory forfeiture scheme itself.
Because the Shermans have failed to plead and prove that
state remedies were inadequate for any due process violations
resulting

from

Defendants’

allegedly

random

and

unlawful

conduct, and because the Shermans do not plausibly allege that
state procedures themselves were constitutionally defective, the
Shermans’ due process claim fails to state a claim on which
relief can be granted.
Because the Operative Complaint does not state any claim on
which relief can be granted, the HSUS Motion, the Burns-Estepa
Motion, the Amended AG Motion, the Fayette County Motion, and
the McMillan Motion are GRANTED.
C.

Other Grounds for Dismissal

Defendants

raise

other

grounds

for

dismissal,

including

failure to plead conspiracy or acting in concert, time bar,
laches,

waiver,

related defenses.
because

the

absolute

immunity,

qualified

immunity,

and

It is unnecessary to address those defenses

Operative

Complaint

warrants

dismissal

in

its

entirety for the reasons addressed in this order.
VI.

Conclusion
For

the

foregoing

reasons,

Estepa Motion, the State

the

HSUS

Motion,

the

Burns-

Motion, the Amended AG Motion,

the

Fayette County Motion, the McMillan Motion, and the U.S. Motion
55

are GRANTED.
motion
DENIED.

to

The Shermans’ motions to convert and the Shermans’

stay

their

action

against

the

United

States

are

This action is DISMISSED.18

So ordered this 14th day of June, 2017.

/s/_Samuel H. Mays, Jr______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

18

The parties’ joint motion to amend the scheduling order and to
extend discovery deadlines (ECF No. 112 at 1997) is DENIED as
moot.
56