Hohenberg et al v. Shelby County, Tennessee et al
ORDER granting 26 Motion to Dismiss; granting 28 Motion to Dismiss for Failure to State a Claim. Signed by Judge Samuel H. Mays, Jr on 03/31/2021. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
SARAH HOHENBERG AND JOSEPH
SHELBY COUNTY, TENNESSEE;
DIVISION 14 OF THE SHELBY
COUNTY, TENNESEE, GENERAL
SESSIONS COURT, CRIMINAL
DIVISION; AND CITY OF
ORDER GRANTING CITY OF MEMPHIS, TENNESSEE’S MOTION TO DISMISS
AND GRANTING DIVISION 14 OF THE SHELBY COUNTY, TENNESEE,
GENERAL SESSIONS COURT, CRIMINAL DIVISION’S MOTION TO DISMISS
Sarah Hohenberg and Joseph Hanson (“Plaintiffs”) seek relief
under 42 U.S.C. § 1983 for violations of their due process rights
and of Hanson’s Fourth Amendment rights. (See D.E. No. 16 ¶¶ 1,
169.) Before the Court are two motions. The first is Defendant
City of Memphis, Tennessee’s (the “City”) motion to dismiss.
(D.E. No. 26.) The second is Defendant Division 14 of the Shelby
County, Tennessee, General Sessions Court, Criminal Division’s
(the “Environmental Court”) motion to dismiss. (D.E. No. 28.) The
motions are ripe for consideration. (See D.E. Nos. 30, 31, 33,
34.) For the following reasons, the City’s motion to dismiss is
GRANTED, and the Environmental Court’s motion to dismiss is
Plaintiffs filed their Complaint on June 18, 2020. (D.E. No.
1.) They filed the Amended Complaint on July 6, 2020, (D.E. No.
16), alleging claims against the City and the Environmental
Court. Plaintiffs allege that the City violated Hanson’s Fourth
Plaintiffs allege that the City and the Environmental Court
violated Hohenberg’s and Hanson’s due process rights because of
deficient procedures in the Environmental Court. For purposes of
the motions to dismiss, the facts are taken from the Amended
The Environmental Court was created by Defendant Shelby
County, Tennessee, in 1991. (Id. ¶ 13.) The Environmental Court
is vested with “the same jurisdiction and powers as are now
exercised by the general sessions courts of the county” and has
violations of environmental ordinances.” (Id. ¶¶ 21-22) (quoting
Shelby County, Tennessee, Code of Ordinances, § 10-605). The
Tennessee Rules of Civil Procedure do not apply and the Tennessee
Rules of Evidence are not applied in the Environmental Court, and
“its proceedings are not recorded or transcribed, and no record
is created.” (Id. ¶¶ 56, 59, 60.) Unlike other general sessions
courts, appeals from the Environmental Court are to the Tennessee
Court of Appeals and are not heard de novo in the Tennessee
Circuit Court. (Id. ¶ 61.)
Neighborhood Preservation Act (the “NPA”). Tenn. Code Ann. §§ 136-101, et seq. (D.E. No. 16 ¶ 35.) The NPA permits actions to
enforce municipal code provisions governing abandoned or occupied
properties. (D.E. No. 16 ¶¶ 36-38.) Those actions can be brought
by property owners affected by blighted properties or by an
subject property is located. (Id. ¶¶ 39-41.) The City frequently
brings cases under the NPA in the Environmental Court. (Id. ¶
The City hosts monthly meetings of an inter-agency team
designed to create “more work” for the Environmental Court. (Id.
¶¶ 28-31.) That team is familiar with the workings of the court.
funding ongoing code-enforcement operations designed to send
property owners to the Environmental Court for litigation.” (Id.
Between 2011 and 2018, Hohenberg’s property was the subject
of three Environmental Court actions. (Id. ¶¶ 70, 73, 85.) Two
were brought by private plaintiffs. (Id.) One was brought by the
State of Tennessee. (Id.)
Between 2008 and 2019, Hanson’s property was the subject of
multiple actions in the Environmental Court. (Id. ¶¶ 115, 118,
126, 131.) Those actions were brought by the City. (Id.) During
the pendency of those actions, the City’s code inspectors1 entered
property. (Id. ¶¶ 132-33, 141.) After years of litigation in the
Environmental Court, Hanson’s property was condemned by that
court and destroyed by the City. (Id. ¶¶ 134, 136.)
Plaintiffs allege a number of procedural deficiencies in the
Hearing hearsay testimony (id. ¶ 144);
Hearing unsworn witnesses (id. ¶ 145);
The City’s failure to lay a foundation for evidence
(id. ¶ 146);
The City’s failure to authenticate evidence (id. ¶
The Amended Complaint is inconsistent about how many code inspectors
entered Hanson’s property. Paragraph 132 alleges that “a Memphis code
inspector entered” Hanson’s home. Paragraph 141 alleges that “code
enforcers . . . entered” Hanson’s home.
Lack of acceptable appeal procedures (id. ¶¶ 149-51);
No notice or opportunity to be heard before Hanson’s
home was destroyed (id. ¶ 142).
On August 10, 2020, the City moved to dismiss the Amended
Complaint. (D.E. No. 26.) The City argues that Hanson’s Fourth
Amendment claim is barred by the Rooker-Feldman doctrine and that
the Amended Complaint lacks sufficient allegations to state a due
process claim against the City. (See id.)
On August 14, 2020, the Environmental Court moved to dismiss
the Amended Complaint. (D.E. No. 28.) The Environmental Court
argues that, as a court, it cannot be sued. (See id.)
Hanson’s Fourth Amendment Claim
The Rooker-Feldman doctrine precludes a lower federal court
from rendering a decision that amounts to appellate review of a
state court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005) (“The Rooker–Feldman doctrine .
. . is confined to cases . . . brought by state-court losers
complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting
district court review and rejection of those judgments.”). The
City argues that the Hanson’s Fourth Amendment claim invites the
Court to reject the Environmental Court’s order approving the
entry into and search of his home. (D.E. No. 26-1 at 105; see
D.E. No. 26-2 at 112-117.) If true, the Court lacks subjectmatter jurisdiction over Hanson’s Fourth Amendment claim.
When deciding whether a claim is barred by the RookerFeldman doctrine, the Court must look to the “source of the
injury.” McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir.
2006) (holding that after Exxon Mobil the proper “inquiry then
is the source of the injury the plaintiff alleges in the federal
complaint. If the source of
the injury is
decision, then the Rooker–Feldman doctrine would prevent the
district court from asserting jurisdiction. If there is some
other source of injury, such as a third party’s actions, then the
plaintiff asserts an independent claim.”); see also Kovacic v.
Cuyahoga Cty. Dep’t of Children and Family Servs., 606 F.3d 301,
pertinent inquiry after Exxon is whether the ‘source of the
injury’ upon which plaintiff bases his federal claim is the state
court judgment, not simply whether the injury complained of is
‘inextricably intertwined’ with the state-court judgment”).
Where the injury is the result of third-party action that
is the “direct and immediate” product of the state court judgment,
“claims of specific injuries . . . are actually challenges to the
state-court . . . judgments and are barred by the Rooker-Feldman
doctrine.” Abbott v. Michigan, 474 F.3d 324, 329 (6th Cir. 2007)
benefits by third parties pursuant to state-court orders were
attacks on the state-court orders themselves); McCormick, 451
F.3d at 394 (“[I]f a third party’s actions are the product of a
state court judgment, then a plaintiff’s challenge to those
actions [is] in fact a challenge to the judgment itself.”).
Applying the source of the injury test, the result in this
Environmental Court’s order authorizing the entry and search. See
Abbott, 474 F.3d at 329. Plaintiffs contend, however, that the
prosecution of the case denied Hanson constitutionally-sound
process. (D.E. No. 31 at 156.)
Plaintiffs argue that actions leading to a state court
decision, such as the City’s conduct in prosecuting the case
against Hanson, cause an injury independent of the state court
order and permit a claim that is not precluded by Rooker-Feldman.
(Id. at 157.) There is arguable support in the Sixth Circuit for
that proposition. Kovacic, 606 F.3d at 310 (“[T]he children's
claims in this case do not seek review or reversal of the decision
of the juvenile court to award temporary custody to the state,
but instead focus on the conduct of Family Services and of the
social workers that led up to the juvenile court's decision to
award temporary custody to the County.”) (emphasis in original);
McCormick, 451 F.3d at 392 (“Plaintiff asserts independent claims
Defendants through fraud, misrepresentation, or other improper
means”) (emphasis in original).
Kovacic and McCormick are distinguishable, however, because
they did not address process claims, but claims objecting to
unconstitutional conduct unrelated to the process afforded the
plaintiffs during the state court proceedings. See Kovacic, 606
F.3d at 310 (“The conduct complained of primarily consists of
Family Services’ alleged failure to undertake an independent
review of the situation before removing the children from the
home and triggering the Juvenile Court proceedings based on the
uncorroborated and unverified information from third parties
received in an ex-parte, informal meeting.”); McCormick, 451 F.3
Where the conduct leading to a state court order implicates
a denial of process, there is not an independent injury based on
that improper process. Raymond v. Moyer, 501 F.3d 548, 553-54
(6th Cir. 2007) (holding that, although bar membership was denied
without a hearing, opportunity to respond to alleged application
deficiencies, or a reason for denial, “the Supreme Court has made
clear that the Rooker–Feldman doctrine applies even when the
state court provides as little process as it did here”); see
Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482
(1983) (quoting In re Summers, 325 U.S. 561, 567 (1945)) (“‘[T]he
form of the proceeding is not significant. It is the nature and
effect which is controlling.’”); Reed v. Tennessee, No. 06-2756Ma/P, 2008 WL 1141586, at *6 (W.D. Tenn. Sept. 22, 2008) (“[T]he
Rooker-Feldman doctrine also bars claims that the state courts
used unfair procedures in reaching their decisions.”).
Plaintiffs’ attacks on the process afforded Hanson during
the Environmental Court proceedings do not create a source of
injury independent of the Environmental Court order. The entry
and search of Hanson’s home were a direct and immediate product
Environmental Court order itself. That claim is barred by the
Rooker-Feldman doctrine. The City’s motion to dismiss Hanson’s
subject-matter jurisdiction over that claim. Hanson’s Fourth
Amendment claim is DISMISSED.
The Court has federal question jurisdiction over Plaintiffs’
remaining § 1983 claims under 28 U.S.C. § 1331. Plaintiffs’ §
1983 claims arise under the laws of the United States.
III. Standard of Review
Rule 12(b)(6) provides for dismissal of a complaint that
“fail[s] to state a claim upon which relief can be granted.”
“defendant to test whether, as a matter of law, the plaintiff is
entitled to legal relief even if everything alleged in the
complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.
1993) (citing Nishiyama v. Dickson Cty., 814 F.2d 277, 279 (6th
Cir. 1987)). A motion to dismiss tests only whether the plaintiff
has pled a cognizable claim and allows the court to dismiss
meritless cases that would waste judicial resources and result
in unnecessary discovery. See Brown v. City of Memphis, 440 F.
Supp. 2d 868, 872 (W.D. Tenn. 2006).
“To survive a motion to dismiss, the plaintiff must allege
facts that, if accepted as true, are sufficient to state a claim
to relief that is plausible on its face.” Cooper Butt ex rel.
Q.T.R. v. Barr, 954 F.3d 901, 904 (6th Cir. 2020) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible
on its face if “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556). The court
considers the plaintiff’s complaint in the light most favorable
to the plaintiff. Ryan v. Blackwell, 979 F.3d 519, 525 (6th Cir.
2020) (citing Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512
allegations but does not accept legal conclusions or unwarranted
factual inferences as true. Theile v. Michigan, 891 F.3d 240, 243
(6th Cir. 2018). “The plaintiff must present a facially plausible
(citing Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 677-678).
A. The City’s Motion to Dismiss Plaintiffs’ Due Process Claim
Section 1983 reaches municipalities. Monell v. Dep’t of
Social Servs. of New York, 436 U.S. 658, 690 (1978). “To set
plaintiff must allege that (1) agents of the municipality, while
acting under color of state law, (2) violated the plaintiff’s
constitutional rights, and (3) that a municipal policy or policy
of inaction was the moving force behind the violation.” Memphis,
Tenn. Area Local, Am. Postal Workers Union, AFL-CIO v. City of
Memphis, 361 F.3d 898, 902 (6th Cir. 2004).
Plaintiffs argue that, because the City chose to litigate
in the Environmental Court to enforce the NPA, the City is liable
for violations of due process based on the deficient procedures
in that court. (D.E. No. 31 at 162.) Allegations of discretionary
enforcement of a state statute such that citizens’ constitutional
municipality. Garner v. Memphis Police Dep’t, 8 F.3d 358, 364
(6th Cir. 1993) (“Defendants argue that they had no choice but
to follow [a state] statute. This argument is without merit. The
defendants were bound to follow the statute in that they could
not adopt a more permissive deadly force policy . . . . The
statute did not, however, prevent the defendants from adopting a
more restrictive deadly force policy.”); Jordan v. Williams, No.
3:19-cv-00907, 2020 WL 4676477, at *9 (M.D. Tenn. Aug. 12, 2020)
(“There are a handful of specific areas in which local law
enforcement in Tennessee has mandatory enforcement duties. . . .
Unless a specific mandatory enforcement duty is established by
statute, however, Tennessee’s grants of enforcement powers to
local law enforcement are ‘permissive’ and do not ‘impose a
mandatory duty to arrest every’ violator. . . . While Metro had
identified no mandatory duty to enforce the Act against every
therefore appears that, if Metro wished not to enforce the Act
against individuals whose long-ago crimes occurred before the
registry’s creation, it could do so.” (citation omitted)); Bruce
& Tanya & Assocs., Inc. v. Bd. Of Supervisors of Fairfax Cty.,
Va., 355 F. Supp. 3d 386, 400 n.6 (E.D. Va. 2018) (“[T]he
prevailing view is that a local government's exposure to Monell
discretion the local government retains and whether the locality
has made its own deliberate choices with respect to the law.”);
see Vives v. City of New York, 524 F.3d 346, 353 (2d Cir. 2008)
(“[I]f a municipality decides to enforce a statute that it is
authorized, but not required, to enforce, it may have created a
municipal policy. . . .”).
Plaintiffs fail to state a claim on this theory because they
do not allege
that the City
them in the
Environmental Court based on the NPA. (See D.E. No. 34 at 179);
municipality know that the statute it decides to enforce as a
matter of municipal policy is an unconstitutional statute, it is
Plaintiffs do not allege that the City proceeded against
them under the NPA. Plaintiffs do not allege that the City
proceeded against Hohenberg in the Environmental Court at all.
(See D.E. No. 16 ¶¶ 70, 73, 85) (two private plaintiffs and the
Environmental Court). Hohenberg has no cause of action against
the City under § 1983. The City did litigate against Hanson in
Plaintiffs do not allege in the Amended Complaint that the City
proceeded based on the NPA. (See id. ¶¶ 115, 118-19, 131.)
The Amended Complaint does not allege that all proceedings
by the City in the Environmental Court must be pursuant to the
NPA. The Shelby County ordinance Plaintiffs cite that created the
ordinances. See Shelby County, Tennessee, Code of Ordinances §
10-605 (“The fourteenth division shall have the same jurisdiction
and powers as are now exercised by general sessions courts of the
county, and shall also have the exclusive jurisdiction to hear
ordinances.”). The allegations of the Amended Complaint state
authority to adjudicate cases arising under the NPA.” (D.E. No.
16 ¶ 54.) Although that allegation states that no other court in
Memphis could hear an NPA case, it does not state that the
Environmental Court could hear only NPA cases. (See id.) The
Amended Complaint alleges that the NPA “permits private entities
to sue property owners to enforce municipal code violations.”
(Id. ¶ 36.) That allegation does not state that there were no
other means for the City to have pursued code enforcement in the
Environmental Court against Hanson. Plaintiffs have not alleged
that the City proceeded against Hanson under the NPA. (See id.)
The theory that a municipality can be liable for using its
discretion to enforce a state statute in an unconstitutional way
requires that the municipality enforce the state statute against
the relevant plaintiffs, see Vives, 524 F.3d at 353, which is not
alleged in the Amended Complaint.
Even assuming the truth of the allegations that the City was
aggressively pursued policies to increase its litigation in that
court, (see D.E. No. 16 ¶ 26-34), there is no support in federal
law for the proposition that a participant in a proceeding is
liable for participating under procedural rules over which it has
no control, see Askanazi v. Tiaa-Cref, No. 1:07-cv-199, 2008 WL
540839, at *5 (W.D. Mich. Feb. 25, 2008) (“In the context of the
stakeholder and was bound to obey the orders of the court . . .
. TIAA-CREF is not responsible for any procedural flaw or lack
of due process that may have occurred during the post-judgment
shortcomings was to appeal to the Court of Appeals, not a lawsuit
against TIAA-CREF.”); cf. Kedrowski v. Richards, No. 20-cv-0193,
2020 WL 5253869, at *9 (D. Minn. Sept. 3, 2020).
administrators of a grant-based adjudicative system for victims
sympathetic to [d]efendants’ missions to select[ ], implement[
], and administer [c]ourt policies and processes that delivered
both favorable litigation outcomes for women alleging to be
victims of domestic abuse and unfavorable litigation outcomes for
men accused of domestic abuse.” Kedrowski, 2020 WL 5253869, at
dissolution case to be biased against him,” the court held that,
because plaintiff had not alleged due process problems in the
state court of appeals, no due process claim was stated. Id. at
*9. Although they allege due process problems in appeals from the
Environmental Court, Plaintiffs do not allege that the City
caused the Environmental Court to be biased against them or that
the City was responsible for any appellate deficiencies. See id.
Absent allegations of bias in a judicial proceeding, the Amended
Complaint does not state a due process claim that the City is
liable for aggressively litigating in the Environmental Court.
Plaintiffs fail to state a due process claim against the
City. Because Plaintiffs do not allege that the City enforced the
NPA against them, the City cannot be liable for discretionary
enforcement of the NPA. There is no support in federal law for
any theory of liability based on the facts alleged. The City’s
motion to dismiss Plaintiffs’ due process claim is GRANTED.
The Environmental Court’s Motion to Dismiss
The Environmental Court argues that it cannot be sued. (D.E.
No. 28 at 122.) Whether the Environmental Court can be sued is a
question of Tennessee law. Fed.R.Civ.P. 17(b)(3); Bush v. Godwin,
No. 3:15-CV-524-TAV-CCS, 2018 WL 576850, at *6 (E.D. Tenn. Jan.
26, 2018) (quoting Fed.R.Civ.P. 17(b)(3)) (“Whether an entity is
sui juris, i.e., has ‘[c]apacity to sue or be sued,’ is determined
‘by the law of the state where the court is located.’”). Although
there appears to be no Tennessee case squarely deciding the issue,
federal courts interpreting Tennessee law have concluded that
courts in Tennessee cannot be sued. Godwin, 2018 WL 576850, at
*6 (citing Wood v. Circuit Court of Warren Cty., Tenn., 331 F.
Supp. 1245, 1245 (E.D. Tenn. 1971)) (“This Court has previously
interpreted Tennessee law to hold that its state courts lack
legal capacity to sue or be sued . . . .[T]he Probate Court . .
. is not capable of being sued.”); see Wood, 331 F. Supp. at 1245
(holding without referencing state law that “[a] ‘court’ is not
a legal entity which may sue and be sued, but is an organ of the
government authorized to administer justice.”).
Plaintiffs argue that some Tennessee cases have permitted
suits against entities like the Environmental Court. (D.E. No.
30 at 145.) The state cases cited do not establish that courts
can be sued in Tennessee. Graham v. Gen. Sessions Court, 157
S.W.3d 790 (Tenn. Ct. App. 2004), was an action for declaratory
judgment invalidating a specific general sessions court order,
not a suit to determine liability or money damages against the
court. Lewis v. Metro. Gen. Sessions Court, 949 S.W.2d 696 (Tenn.
Crim. App. 1985), was a habeas action in criminal court to
determine the subject matter jurisdiction of the general sessions
proceedings. The liability of the general sessions court was not
at issue. Oxford Inv., Inc. v. Mashburn, 729 S.W.2d 96 (Tenn. Ct.
App. 1985), was a suit against the general sessions court clerk,
not against the court. In none of those cases was a suit for
damages maintained against a general sessions court. They do not
establish that such a suit is permitted under Tennessee law. The
Environmental Court cannot be sued.
Because the Environmental Court is not sui juris, its motion
to dismiss is GRANTED.
For the foregoing reasons, the City’s motion to dismiss is
GRANTED, and the Environmental Court’s motion to dismiss is
SO ORDERED this 31st day of March, 2021.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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