CHRISTOPHER H. STEGER, Magistrate Judge.
On December 22, 2015, during a multi-day, school-sponsored trip to a basketball tournament, upper-level students on the Ooltewah High School basketball team assaulted freshman members of the team with a pool cue
Defendants in this lawsuit are comprised of the Tennessee Department of Children's Services ("TDCS"); the Hamilton County District Attorney General's Office ("HCDAGO"); the Hamilton County Department of Education ("HCDE"); HCDE's former Superintendent, Fred Smith; and Hamilton County District Attorney General Marshall N. Pinkston ("Pinkston").
For the reasons set forth below, the Court will
Plaintiffs filed this action on June 19, 2017. Subsequently, Defendants each moved to dismiss the lawsuit. In response to the motions to dismiss, Plaintiffs moved to amend their 30-page complaint. After reviewing the complaint and the proposed amended complaint (which had grown to 34 pages), the Court denied the motion to amend because the proposed amended complaint was organized in a manner that made it extremely difficult for the Court to determine whether it complied with the requirement set forth in Fed. R. Civ. P. 8 to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." [Feb. 23, 2018 Order, Doc. 125]. The Court did, however, give Plaintiffs leave to file another amended complaint. In doing so, the Court provided specific instructions regarding the structure and organization Plaintiffs should utilize to clarify: (1) which Plaintiffs were bringing which claims against which Defendants; and (2) the facts relied upon by Plaintiffs to support each specific claim. [Id.]. The Court instructed Plaintiffs that leave to amend "is not a license to extend the Amended Complaint beyond the claims and facts alleged in the proposed amended complaint. It is simply an opportunity for Plaintiffs to organize and clarify their claims so that the Court can better determine what claims are properly before the Court." [Id. at 3]. The Court then denied the pending motions to dismiss without prejudice. [Id.]. In response, Plaintiffs filed the current 73-page Second Amended Complaint with fourteen exhibits (for purposes of brevity, this pleading will be referred to hereinafter as "Amended Complaint") [Doc. 128]. Defendants responded with their respective motions to dismiss. The Court will separately address each motion to dismiss.
The fact section of the Amended Complaint consists of 29 pages and 186 paragraphs. Not all of the factual allegations are relevant to each claim—neither are they relevant to each Defendant. While the Court makes no finding as to the truth of the allegations in the Amended Complaint, it will—solely for purposes of addressing the motion to dismiss—accept as true all well pleaded allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). A synopsis of the facts alleged by Plaintiffs is set forth below.
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) is an assertion that Plaintiff's claims for relief should be dismissed because the Court lacks subject matter jurisdiction to consider such claims. The court in Alpine Industries v. FTC, 40 F.Supp.2d 938, 940 (E.D. Tenn. 1998), set forth the correct procedures to review a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1):
In the instant case, all attacks on the subject matter jurisdiction of this Court are facial attacks— questioning or testing the sufficiency of the pleading—and can be resolved based on the allegations in the Amended Complaint and the exhibits attached to it. Consequently, for purposes of Defendants' Rule 12(b)(1) motions to dismiss, the correct standard of review for the Court is to take the allegations of fact in the complaint as being true.
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is an assertion that the complaint fails to state a claim upon which relief can be granted. Such a motion to dismiss is meant to test the sufficiency of the complaint; it does not resolve the facts of the case. Cox v. Shelby State Cmty. Coll., 48 F. App'x. 500, 503 (6th Cir. 2002); Metz v. Supreme Court of Ohio, 46 F. App'x. 228, 233 (6th Cir. 2002); Thielen v. GMAC Mortg. Corp., 671 F.Supp.2d 947, 950 (E.D. Mich. 2009). In determining whether a party has set forth a claim in his complaint upon which relief can be granted, all well-pleaded factual allegations contained in the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This tenet does not apply to legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. More than "unadorned, the-defendant-unlawfully-harmed me accusation[s]" are required to state a claim. Id. "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. at 696 (brackets original) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). The complaint must state "a plausible claim." Iqbal, 556 U.S. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. In determining whether a complaint states a plausible claim for relief, the Court may draw on its judicial experience and common sense. Id. at 679. Well-pleaded facts that permit the court to infer no more than a mere possibility of misconduct will not permit a complaint to survive a motion to dismiss. Id.
In Count Two of the Amended Complaint, Montgomery brings a claim against TDCS under 42 U.S.C. § 1981. In this claim, Montgomery alleges that TDCS "deprived Montgomery of his ability to maintain his employment contract with HCDE" by charging him with lack of supervision when similarly-situated Caucasian coaches whose players engaged in conduct similar to that which gave rise to this action were not charged with lack of supervision. [Amended Complaint ¶¶ 208, 210-212].
In Count Four, Montgomery brings a claim against TDCS under 42 U.S.C. § 1983 alleging TDCS violated his due process rights by "indicat[ing] and subsequently substantiat[ing] Montgomery for lack of supervision all without a hearing or an opportunity to present a defense to defend himself" and by "publishing substantiations to his employer while he had both criminal and civil matters pending—which is against [T]DCS policy and regulation." [Amended Complaint ¶¶ 267-268].
TDCS relies upon Fed. R. Civ. P. 12(b)(1) in moving to dismiss [Doc. 135] Montgomery's claims brought under 42 U.S.C. §§ 1981 and 1983. More specifically, TDCS asserts that this Court lacks subject matter jurisdiction to hear Montgomery's claims against it because, as a subdivision of the State of Tennessee, it is entitled to sovereign immunity under the Eleventh Amendment of the United States Constitution. There is no dispute that TDCS is a subdivision of the State of Tennessee. Plaintiffs expressly admit this fact in paragraph 10 of the Amended Complaint.
Although the plaintiff generally bears the burden of proving federal subject matter jurisdiction in response to a motion brought under Fed. R. Civ. P. 12(b)(1), the entity claiming sovereign immunity under the Eleventh Amendment bears the burden of proving its entitlement to such immunity. Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002). The Eleventh Amendment stands for the constitutional principal that state sovereign immunity limits a federal court's jurisdiction under Article III.
Congress did not abrogate Eleventh Amendment immunity for actions brought against states under 42 U.S.C. § 1983 or 42 U.S.C. § 1981. See Quern v. Jordan, 440 U.S. 332, 345 (1979) (no abrogation of Eleventh Amendment immunity for claims brought under Section 1983); Boler v. Early, 865 F.3d 391, 410 (6th Cir. 2017) (same); Freeman v. Mich. Dep't of State, 808 F.2d 1174, 1178-79 (6th Cir. 1987) (no abrogation of Eleventh Amendment immunity for claims brought under Section 1981). Moreover, Tennessee has not waived its Eleventh Amendment immunity for claims brought under Section 1983 or Section 1981. See Berndt v. Tennessee, 796 F.2d 879, 881 (6th Cir. 1986) (no consent to suit under 42 U.S.C. § 1983); Henderson v. Sw. Tenn. Cmty. Coll., 282 F.Supp.2d 804, 807 (W.D. Tenn. 2003) (Tennessee has not consented to suit under 42 U.S.C. § 1981); Tenn. Code Ann. § 9-8-307(f) (Tennessee does not consent to federal suit).
Plaintiff Montgomery responds that TDCS has no immunity because of an exception to Eleventh Amendment immunity created by Ex parte Young, 209 U.S. 123 (1908). The Supreme Court in Ex parte Young did create an exception to Eleventh Amendment immunity; however, this exception is limited to actions brought by a plaintiff against a state official in his official capacity seeking prospective equitable relief to prevent future federal constitutional or statutory violations. Boler, 865 F.3d at 412 (citing S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008)). That exception does not apply here. Boler, 865 F.3d at 412 ("the [Ex parte Young] doctrine does not extend to retroactive relief or claims for money damages"); see also Drinkard v. Tenn. Dep't of Children's Servs., No. 2:08-CV-005, 2008 WL 2609166, at *2 (E.D. Tenn. June 26, 2008) (dismissing complaint against TDCS on Eleventh Amendment grounds where complaint sought only money damages against TDCS). Montgomery does not seek equitable relief against TDCE. Rather, he seeks only monetary damages against TDCS. Eleventh Amendment immunity applies in this situation. Consequently, this Court lacks subject matter jurisdiction to consider Montgomery's claims brought against TDCS under 42 U.S.C. §§ 1981 and 1983. Counts Two and Four of the Complaint will be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(1).
Plaintiffs bring no other federal claims against TDCS. Plaintiffs have asserted several state law claims against TDCS, to wit, malicious prosecution, defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress. When a Court has dismissed all claims over which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over related state law claims. 28 U.S.C. § 1367(c)(3). "`Generally, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.'" Harper v. Auto Alliance Int'l, 392 F.3d 195, 210 (6th Cir. 2004) (quoting Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284, 1287 (6th Cir.1992)). Plaintiffs' state law claims raise questions of immunity under Tennessee law for state and municipal entities and for state employees. Tennessee courts are better positioned than this Court to address these important matters of Tennessee law. Accordingly, the Court will decline to exercise supplemental jurisdiction over the state law claims and will dismiss these state law claims without prejudice.
Before discussing Plaintiffs claims against the Hamilton County District Attorney General's office, the Court would note that Plaintiffs refer to this Defendant in the caption of their Amended Complaint as "Hamilton County District Attorney's Office"; however, in the body of the Amended Complaint, Plaintiffs refer to this Defendant as "Hamilton County District Attorney General Office" and sometimes as "HCDAGO." [See Amended Complaint ¶ 11, Doc. 128]. The Court recognizes that all three of these names refer to the same entity. And, as indicated previously, the Court will refer to this Defendant by the shorthand, "HCDAGO." More important to this discussion though, the Court takes judicial notice that the formal name of the Hamilton County District Attorney General's Office is the District Attorney General's Office for the 11th Judicial District of Tennessee.
Now with respect to Plaintiffs' claims, in Count Three of the Amended Complaint, Montgomery and Nayadley bring claims against HCDAGO under 42 U.S.C. § 1983 alleging HCDAGO "depriv[ed] them of their constitutional rights of, among others, . . . due process, freedom from false arrest, freedom from malicious prosecution, freedom from unreasonable seizure, [and] freedom from abuse of process. . . ." [Amended Complaint ¶ 228]. Montgomery and Nayadley allege they were arrested without probable cause and that, without due process, they were unreasonably prosecuted for failure to report child abuse because the assault, which occurred in Gatlinburg, Tennessee, on December 22, 2015, "did not qualify as child sexual abuse or child abuse [as defined by Tennessee law] and thus was not reportable." [Id. ¶ 257, see also Count Three, generally]. Montgomery and Nayadley also allege in Count Three that HCDAGO "further acted with conscious disregard and grossly unreasonably in publishing on September 16, 2016 to third parties . . . [a] [r]eport which aired inaccurate and untrue facts about both Montgomery and Nayadley all while a criminal prosecution was pending and did so outside a judicial forum." [Id. ¶ 258].
HCDAGO moves to dismiss all claims brought against it for, among other reasons, lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). [Doc. 133]. HCDAGO asserts it is an arm of the State of Tennessee and is thus entitled to sovereign immunity under the Eleventh Amendment. Montgomery and Nayadley assert that HCDAGO is a "municipal entity [that] does not enjoy absolute immunity." [Pls.' Resp. at 6, Doc. 140]. Montgomery and Nayadley are correct in stating that municipal entities are not immune from suit under 42 U.S.C. § 1983; however, they provide no support for the contention that HCDAGO is a municipal entity as opposed to a state entity.
As HCDAGO observes, the Tennessee state legislature divided the State of Tennessee into thirty-one judicial districts. Tenn. Code Ann. § 16-2-506. Some judicial districts contain several counties while others in the urban centers of Tennessee, such as the eleventh judicial district, are comprised of only one county. Id. The eleventh judicial district, as established by state statute, encompasses only Hamilton County. Tenn. Code Ann. § 16-2-506(11)(A) ("The eleventh judicial district consists of the county of Hamilton.") State law provides for the establishment of district attorney generals in the judicial districts assigned by Tenn. Code Ann. § 16-2-506. See Tenn. Code Ann. § 16-2-508(a).
The Court concludes that HCDAGO is a subdivision of the State of Tennessee. See also Sentell v. Tennessee, No. 3:12-cv-593, 2013 WL 3820021, at *2 (E.D. Tenn. July 23, 2013) (Varlan, J.) (holding district attorneys general in Tennessee are state officials; a suit brought against a district attorney general in his official capacity is a suit against the State; and the State is entitled to Eleventh Amendment immunity for a claim brought against it under 42 U.S.C. § 1983); see also State v. Spradlin, 12 S.W.3d 432, 437 (Tenn. 2000) ("the trial court made a factual finding that the State (acting through the district attorney general's office. . . .")).
As previously discussed, a subdivision of the State of Tennessee is immune from suit under Section 1983 pursuant to the Eleventh Amendment. Consequently, this Court lacks subject matter jurisdiction to hear Plaintiffs' Section 1983 claim, and it will be dismissed with prejudice under Fed. R. Civ. P. 12(b)(1).
Plaintiffs have asserted no other federal claims against HCDAGO. The Amended Complaint does allege several state law claims against HCDAGO, to wit, negligence, false arrest and false imprisonment, malicious prosecution, abuse of process, defamation, negligent infliction of emotional distress, intentional infliction of emotional distress, and selective prosecution. Plaintiffs Bonita Montgomery, Janet Nayadley, and Amelia Jarvis have also brought claims under state law for loss of consortium. For reasons discussed above, the Court will dismiss without prejudice these state law claims against HCDAGO.
In Count One, Plaintiffs Montgomery, Nayadley, and Jarvis bring a claim against HCDE and against Rick Smith in his individual and official capacities under 42 U.S.C. § 1981. They allege that "HCDE intentionally, through Rick Smith, acted in concert with Pinkston and [T]DCS. HCDE and Rick Smith used inaccurate and false information to suspend, transfer, and demote Montgomery, Nayadley, and Jarvis in violation of their contract with HCDE." [Amended Complaint ¶189]. Plaintiffs allege these actions were motivated by their race and their gender. [Id. ¶¶ 102-140, 190-99]. Plaintiffs further allege:
[Id. ¶¶ 202-203].
HCDE and Rick Smith move jointly to dismiss Plaintiffs' claims against them pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. [Doc. 137]. HCDE and Rick Smith assert that this Section 1981 claim is the only federal claim brought against them. They further argue that Plaintiffs' Section 1981 claim should be dismissed because 42 U.S.C. § 1983 is the exclusive mechanism for asserting rights against state actors protected by 42 U.S.C. § 1981. The Court agrees.
Plaintiffs have not brought a Section 1983 claim against HCDE and/or Smith in the Amended Complaint. Plaintiffs caption Count One of the Amended Complaint, "VIOLATION OF 42 U.S.C. § 1981 BY HCDE AND RICK SMITH (AS TO MONTGOMERY, NAYADLEY, AND JARVIS)." [Id. at p. 29]. Nowhere in the body of Count One do Plaintiffs reference Section 1983; they refer exclusively to Section 1981. [See Id. ¶¶ 187-204].
The Court further notes that Plaintiffs have not responded to HCDE and Smith's argument that the Amended Complaint is facially deficient because it does not state a Section 1983 claim against them. Rather, Plaintiffs' response simply ignores this argument and proceeds as if a Section 1983 claim had been stated. Having failed to address this argument in their brief, they have waived opposition to it. Johnson v. Apple, Inc., No. 3:13-cv-204, 2014 WL 4076148, at *1 (S.D. Ohio Aug. 14, 2014) ("Based upon Johnson's failure to address any of the arguments advanced by Apple, it appears that he has waived opposition to Apple's motion [to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim].")
Beyond Plaintiffs' waiver for failure to respond, the Court finds HCDE and Rick Smith's substantive position to be meritorious. Section 1983 is the exclusive federal remedy for violations of rights guaranteed by Section 1981 when a party seeks damages against a state actor in his official or individual capacities. Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) ("`[T]he express action at law provided by § 1983 for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is asserted against a state actor in his official capacity") (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989)); see also McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012) ("§ 1983 is the exclusive mechanism to vindicate violations of § 1981 by an individual state actor acting in his individual capacity.")
Plaintiffs bring no other federal claims against HCDE and Rick Smith; however, the Amended Complaint alleges several state law clams against HCDE and Smith, to wit, negligence; breach of contract; age, race, and gender discrimination in violation of Tenn. Code Ann. § 4-21-401, et seq.; defamation; negligent infliction of emotional distress; and intentional infliction of emotional distress. Bonita Montgomery, Janet Nayadley, and Amelia Jarvis have also brought claims under state law for loss of consortium. The Court will dismiss without prejudice the state law claims against HCDE and Rick Smith.
In Count Three of the Amended Complaint, Montgomery, Nayadley, and Jarvis
Paragraph nine of the Amended Complaint states that Defendant Pinkston "is sued in his individual and official capacity [sic]." [Id. ¶ 9, Doc. 128]. A claim against a government employee in his official capacity constitutes a claim against the governmental entity itself and cannot be maintained independently from the claim against the governmental entity. Kentucky v. Graham, 473 U.S. 159 (1985); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Thus, a suit against Pinkston in his official capacity is a suit against HCDAGO. As previously discussed, HCDAGO is entitled to immunity under the Eleventh Amendment for all claims brought under Section 1983. For that reason, the Court will dismiss this claim with prejudice.
Plaintiffs bring several causes of action against Pinkston in his individual capacity in Count Three of the Amended Complaint—all under the umbrella of 42 U.S.C. § 1983. Section 1983 does not—in and of itself—create independent substantive legal rights; rather, this statute simply provides a vehicle by which a person may recover damages for a violation of rights secured to him by federal law. Radvansky v. City of Olmstead Falls, 395 F.3d 291, 302 (6th Cir. 2005); Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995).
Plaintiffs allege that Pinkston committed several violations of different rights, and they aggregate these claims in Count Three. The Court found it challenging to identify each constitutional deprivation alleged against Pinkston and then to connect each such claim with relevant facts among those strewn across the 5 pages and 36 paragraphs of Count Three of the Amended Complaint. Nevertheless, the Court made a diligent effort.
To bring a claim under Section 1983, a plaintiff must satisfy two requirements: (1) that the defendants were acting under color of state law when; (2) they caused plaintiff a deprivation of a right, privilege, or immunity secured to him by the United States Constitution or other federal law. Gregory v. Shelby Cnty., Tenn., 220 F.3d 433, 441 (6th Cir. 2000); Baker v. Hadley, 167 F.3d 1014, 1017 (6th Cir. 1999); Valot v. Se. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1225 (6th Cir. 1997). Plaintiffs satisfy the first requirement: the parties do not dispute that Pinkston acted under color of law at all times relevant to this lawsuit. The Court will examine the second requirement in the following sections.
Montgomery and Nayadley assert that Pinkston violated the Fourth Amendment through commission of false arrest, abuse of process and malicious prosecution. More specifically, they allege that Pinkston—in furtherance of his position that Montgomery and Nayadley had violated the Tennessee child abuse/child sexual abuse reporting law—took the following actions: (1) Pinkston caused them to receive a summons to Hamilton County Juvenile Court; (2) he sought an indictment against them in Hamilton County Criminal Court; and (3) he criminally prosecuted them. The Court notes that claims alleging constitutional deprivations for false arrest, abuse of process, and malicious prosecution are properly brought under the Fourth Amendment. See, e.g., Tunne v. Paducah Police Dept., No. 5:08CV-188-R, 2010 WL 323547, at *14 (W.D. Ky Jan. 21, 2010). The Fourth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650 (1961); Thomas v. Cohen, 304 F.3d 563, 569 (6th Cir. 2002). Count Three of the Amended Complaint does not reference the Fourth or Fourteenth Amendments, nor does it explicitly state any other constitutional amendment or federal statute which supplies the substantive right that Plaintiffs contend Pinkston has denied them. Paragraph 2—which is an introductory paragraph in the 420-paragraph Amended Complaint—is the sole paragraph in the entire document that references either the Fourth and Fourteenth Amendments as a basis for jurisdiction for any of the claims asserted.
In response, Pinkston asserts prosecutorial immunity with respect to each of these claims.
Van de Kamp, 555 U. S. at 342; see also Burns v. Reed, 500 U.S. 478, 494 (1991) ("[a]bsolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation") (emphasis omitted). "`[T]he safeguards built into the judicial system tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct.'" Burns, 500 U.S. at 492 (quoting Butz v. Economou, 438 U.S. 478, 512 (1978)).
Issuing process to make an arrest, seeking indictments to begin a prosecution, and engaging in prosecutions are fundamental functions of a prosecutor entitling them to absolute immunity. Buckley, 509 U.S. at 269 (a state prosecutor has absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the state's case at trial) (citing Imbler v. Pachtman, 424 U.S. 409 (1976)); see also Howell, 668 F.3d at 349 ("prosecutor's decision to initiate a prosecution, including the decision to file a criminal complaint or seek an arrest warrant, is protected by absolute immunity"); Adams v. Hanson, 656 F.3d 397, 402 (6th Cir. 2011) (listing functions for which a prosecutor enjoys absolute immunity including preparing and filing documents unsworn by the prosecutor in order to obtain an arrest warrant and seeking an indictment from a grand jury); Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) ("Prosecutorial immunity extends to a prosecutor's decision to file a criminal complaint and seek an arrest warrant and the presentation of these materials to a judicial officer") (internal citation omitted).
Despite what appears to be Pinkston's well-founded assertion of prosecutorial immunity, Plaintiffs have raised several arguments disputing absolute, prosecutorial immunity. First, Plaintiffs rely on Anderson v. Creighton, 483 U.S. 635 (1987) to argue Pinkston is not entitled to prosecutorial immunity. [Pls.' Resp. at 9-12, Doc. 146]. Creighton does not address absolute immunity for prosecutorial actions. Creighton addresses whether an FBI agent was entitled to qualified immunity from civil liability for conducting a warrantless search. Creighton is inapposite to this Court's analysis of prosecutorial immunity as it applies to Pinkston.
Second, Plaintiffs argue that Pinkston "violated his fiduciary duty not to prosecute the innocent" pursuant to Tennessee Supreme Court Rule 8, RPC 3.8(1)(a), (d) and (f), and that this breach of the duty "destroys any claim to immunity. . . ." [Pls.' Resp. at 13, Doc. 146]. Plaintiffs offer no authority to support this theory of liability. Recognizing breach of "fiduciary duty" as an exception to prosecutorial immunity would effectively eviscerate such immunity. This Court will not adopt such an imaginative and impractical exception to prosecutorial immunity. And indeed, the Tennessee Supreme Court never intended that a violation of its Rules of Professional Conduct would form the basis for a civil cause of action. In the preamble to the Rules, the Tennessee Supreme Court wrote:
See Tenn. Sup. Ct. R. 8, Preamble ¶ 21. If Plaintiffs believe that Pinkston breached Rule 3.8 of the Rules of Professional Conduct, there are procedures by which Plaintiffs and their counsel can assert that violation; however, there is no basis to use that alleged breach as leverage to support a civil cause of action.
Third, Plaintiffs argue that Pinkston has no prosecutorial immunity because he "egregiously and unreasonably ignored [T]DCS's definition of child sexual abuse as well as statutory requirements of reporting child sexual abuse."
Moreover, the Court does not agree with Plaintiffs' assertion that Pinkston's interpretation of the Tennessee statute requiring reporting of child sexual abuse was unreasonable or entirely misplaced. To fully understand Plaintiffs' argument, it is necessary to examine the relevant Tennessee statutes. Pinkston indicted Montgomery and Nayadley for failure to report child sexual abuse in violation of Tenn. Code Ann. § 37-1-615. [See Montgomery, No. 298399, slip op. at 1]. Tenn. Code Ann. § 37-1-605 (a) requires that teachers and school officials, among others, "who know[] or [have] reasonable cause to suspect that a child has been sexually abused [to] report such knowledge or suspicion to the [Tennessee Department of Children's Services] in the manner prescribed in subsection (b)." Subsection (b)(1) provides in relevant part,
See Tenn. Code Ann. § 37-1-605(b)(1) (emphasis added). Under Tenn. Code Ann. § 37-1-615(a), failure to report child abuse, if required by Tenn. Code Ann. § 37-1-605, is a misdemeanor.
Pinkston interpreted the statute to mean that Montgomery and Nayadley were under a legal obligation to report the sexual assault of the minor to one of the following agencies: (1) the Hamilton County office of TDCS; (2) the Hamilton County juvenile court judge; (3) the Hamilton County Sheriff; or (4) the chief law enforcement official for the municipality where the student resided. The statute requires that appropriate reporting take place where the child resides. So, even though the assault took place in Sevier County, the reporting needed to take place where the minor resided at the time, i.e., Hamilton County.
Plaintiff argues that the Tennessee statute did not impose any reporting requirement on them because the juvenile who was sexually assaulted did not meet the definition of "child" as set forth in the statute. Plaintiffs' argument rests upon Tenn. Code Ann. §§ 37-1-602 which defines "child sexual abuse" in four separate subsections, to wit:
The freshman basketball player injured in the December 22, 2015, assault was older than thirteen but still a minor. [Montgomery, No. 298399, slip op. at 2.] Pinkston conceded that subsections A, B and D of Tenn. Code Ann. § 37-1-602(a)(3) did not apply; however, he maintained that the reporting requirement was triggered by subsection C of the statute. Since subsection C did not set forth a specific age limitation, Pinkston took the position that it applied to all minors, not just those under the age of 13.
The Hamilton County Criminal Court considered this issue as a matter of first impression and reached a different conclusion—finding that Subsection C implicitly included the requirement that the victim of abuse must be under the age of thirteen. [Montgomery, Case No. 298399, slip op. at 4]. The court reasoned, "even though the language of subsection (a)(3)(C) is unconditional with respect to age, the logical effect of the conditions of age in the other three subsections is to make the definition in subsection (a)(3)(C) also conditional on age." [Id.]. In reaching this decision, the criminal court judge court also concluded that—had the "under 13" age limitation not applied— Pinkston would have been justified in bringing criminal charges against Montgomery for failing to report the sexual assault in Hamilton County "where the child resides." [Id. at 6]. Pinkston's reliance on Tenn. Code Ann. § 37-1-602(a)(3) proved to be misplaced; however, the position he took was not entirely illogical or unreasonable. Although this Court believes that the criminal court judge correctly decided the issue, it is conceivable that different jurists endeavoring to plumb the meaning of the same statute could arrive at different conclusions.
Regardless, this Court concludes that Pinkston acted within the scope of his function as a prosecutor when he examined the criminal statute at issue, initiated prosecution, and prosecuted Montgomery and Nayadley for failure to report an incident of child abuse/child sexual abuse.
As indicated in the recitation of facts above, Pinkston made a number of statements to members of the media about the investigation of the Ooltewah high school basketball team sexual assault incident as well as other allegations concerning the school's basketball program and the conduct of school officials. Montgomery and Nayadley claim that his statements support a Fourth Amendment claim for malicious prosecution.
A prosecutor is not entitled to absolute immunity for a Fourth Amendment malicious prosecution claim arising from statements the prosecutor made at a press conference. Buckley v. Fitzsimmons, 509 U.S. 259, 277-78 (1993). Nevertheless, to the extent that Montgomery and Nayadley seek to bring such a claim against Pinkston on the basis of statements he made to the press and in his September 2016 report, Plaintiffs fail to state a viable claim.
Plaintiffs contend that the allegedly false statements Pinkston made "inflamed" the public against them, but Plaintiffs do not allege that these statements caused them prejudice in the prosecution Pinkston brought against them. By comparison, in Buckley v. Fitzsimmons, 509 U.S. 259, 276-277 (1993), the plaintiff alleged that the prosecutor made false statements about him and released a mug shot of him at a press conference which "inflamed the populace of DuPage County against him, thereby defaming him, resulting in deprivation of his right to a fair trial, and causing the jury to deadlock rather than acquit." (Internal citations omitted).
Whatever public statements Pinkston made about Montgomery and Nayadley before and during his prosecution of them, such statements obviously did not prejudice the Hamilton County Criminal Court Judge—indeed, that judge dismissed the criminal charges against them. And, no jury was ever prejudiced or inflamed by Pinkston's statements because the case never reached a jury. In other words, Pinkston's public statements had no effect on the actual prosecution of the case or the outcome of that prosecution.
Consequently, to the extent Plaintiffs are asserting a malicious prosecution claim arising from Pinkston's public statements to the press and public, such claim will be dismissed for failure to state a claim upon which relief can be granted.
Employing a very liberal interpretation of the Amended Complaint, it appears to the Court that Montgomery, Nayadley, and Jarvis are attempting to assert a claim against Pinkston under the Fourteenth Amendment for a deprivation of a property interest without due process of law. Plaintiffs allege Pinkston violated their due process rights by making false statements about them orally and in writing, thereby causing HCDE and Superintendent Smith to take adverse employment actions against them.
The Fourteenth Amendment prohibits state actors from depriving persons of life, liberty, or property without due process of law. Crosby v. Univ. of Kentucky, 863 F.3d 545, 552 (6th Cir. 2017), cert. denied 138 S.Ct. 741 (`); Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir. 2002). To establish a procedural due process claim for deprivation of property under the Fourteenth Amendment, a plaintiff must establish that: (1) he possessed a property interest; (2) the defendant deprived him of that property interest; and (3) the defendant, a state actor, did not give the plaintiff adequate procedural rights prior to the deprivation. Albrecht v. Treon, 617 F.3d 890, 894 (6th Cir. 2010); Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006); Hines v. Town of Vonore, 912 F.Supp.2d 628, 643 (E.D. Tenn. 2012) (Varlan, J.). The Court will assume, for purposes of this argument, that Plaintiffs did have a property interest in their employment with HCDE.
The Court finds Plaintiffs have not established the second element of this claim (i.e., the defendant deprived plaintiff of the property interest). While Plaintiffs may have experienced the deprivation of a property interest, Pinkston was not the person responsible for depriving them of that interest. Plaintiffs allege that Pinkston's statements influenced HCDE's decisions, but Pinkston was not Plaintiffs' employer and was not in a position to suspend, transfer, demote, or "de facto terminate" Plaintiffs.
In an effort to establish a controlling nexus between Pinkston and HCDE, Plaintiffs allege that Pinkston acted "in concert" with HCDE and Smith in their decision to suspend Plaintiffs. However, this statement is merely conclusory. The Amended Complaint provides no facts to establish that Pinkston had authority to make or influence HCDE's employment decisions relating to Plaintiffs—whether those decisions related to suspension, discipline, demotion, transfer, termination, or a pre-decision notice and opportunity to be heard.
Plaintiffs have failed to state a plausible claim against Pinkston for a deprivation of a property interest in violation of the Fourteenth Amendment. Consequently, this claim will be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). It is unnecessary to address the other bases for Pinkston's motion to dismiss this claim.
Again, employing a very liberal interpretation of the Amended Complaint, it appears that Plaintiffs are alleging a loss of a liberty interest without due process of law in violation of the Fourteenth Amendment. Plaintiffs allege Pinkston published false statements about them— damaging their reputations and good names—which caused HCDE and Smith to take adverse employment actions against them without due process of law. Plaintiffs also allege that these false statements will prevent them from obtaining future employment.
A person has a liberty interest under the Fourteenth Amendment to one's good name, reputation, honor, and integrity. Crosby, 863 F.3d at 555; Quinn, 293 F.3d at 319. But defamation of one's good name and reputation is not, by itself, sufficient to invoke Fourteenth Amendment protections. Crosby, 863 F.3d at 555; Quinn, 293 F.3d at 319 (citing Paul v. Davis, 424 U.S. 693, 711-12 (1976) (holding police distribution of flyer identifying plaintiff as an "active shoplifter"— thereby defaming plaintiff and impairing his ability to secure future employment—did not state a constitutional claim against police chief for deprivation of a liberty interest under the Fourteenth Amendment.)
There is no constitutional claim for simple defamation. See Paul v. Davis, 424 U.S. 693 (1976); Quinn, 293 F.3d at 320. Rather, an additional requirement must be met, to wit, damage to reputation must be accompanied by the contemporaneous alteration of a right or status previously recognized under state law. Crosby, 863 F.3d at 555; Quinn, 293 F.3d at 319. That additional requirement may be met where an employee alleges termination from employment in connection with damage to one's good name or reputation; however, such a claim has only been recognized when brought against the employer—not a third party.
If the plaintiff establishes the five factors discussed above, he is then entitled to a name-clearing hearing. Quinn, 293 F.3d at 320; Ludwig, 123 F.3d at 410. Importantly, it is the denial of the name-clearing hearing, not the alleged defamation, that causes the deprivation of the liberty interest without due process. Crosby, 863 F.3d at 555; Quinn, 293 F.3d at 320. An employee must request from his employer a name-clearing hearing in order to prevail on a Fourteenth Amendment claim for loss of a liberty interest without due process of law. Quinn, 293 F.3d at 321-24; see also Stringfield v. Graham, 212 F. App'x 530, 540 (6th Cir. 2007) ("We have consistently held that a failure of the plaintiff to request a name-clearing hearing bars due process claims for violations of a liberty interest.") A plaintiff's failure to specifically allege in his complaint that he requested a name-clearing hearing which his employer denied will result in dismissal of that claim. Quinn, 293 F.3d at 324.
The Court has found no case in the Sixth Circuit in which an employee brought a Fourth Amendment due process claim for damage to one's good name and reputation accompanied with loss of current employment where the employee brought that claim against someone other than the employer. Again, the Amended Complaint is devoid of allegations that Pinkston had authority to make employment decisions concerning Montgomery, Nayadley, or Jarvis—or that Pinkston could have provided them a name-clearing hearing if one had been requested. The Amended Complaint is also devoid of allegations that Plaintiffs actually asked Pinkston for a name-clearing hearing and that Pinkston denied such a request.
For those reasons, the Court concludes Plaintiffs have not stated a claim against Pinkston for deprivation of a liberty interest without due process based on stigmatization of their good names in connection with HCDE's and Smith's adverse employment decisions. Consequently, this claim will be dismissed with prejudice. The Court finds it unnecessary to address the other bases raised by Pinkston to dismiss this claim.
Furthermore, to the extent that any Plaintiffs attempt to assert a procedural due process claim for loss of a liberty interest in connection with the loss of future job opportunities, that claim also fails. Stigmatization of one's reputation in connection with employment termination must be based on a contemporaneous job loss, not the loss of future employment opportunities. Siegert v. Gilley, 500 U.S. 226, 233-34 (1991) (finding future employment opportunities were not a protected liberty interest under the Fourteenth Amendment in a claim brought by a plaintiff alleging damage to reputation by his former employer); see also Mertik v. Blalock, 983 F.2d 1353, 1262-63 (6th Cir. 1993) (interpreting Siegert to hold that "a stigma to reputation that affects only future employment opportunities does not give rise to a protected liberty interest.") The Court will also dismiss this claim with prejudice.
In their response to Pinkston's Motion to Dismiss, Plaintiffs argue that Pinkston deprived them of equal protection in violation of their Fourteenth Amendment rights. [Pls.' Resp. at 18, Doc. 146]. The Amended Complaint makes no reference to an "equal protection" claim. It simply was not pled. Plaintiffs did not raise a constitutional claim of deprivation of equal protection against Pinkston in the Amended Complaint, and they cannot do so in their response to the motion to dismiss.
The Amended Complaint alleges several state law claims against Pinkston, to wit, negligence, false arrest and false imprisonment, malicious prosecution, abuse of process, defamation, negligent infliction of emotional distress, intentional infliction of emotional distress, and selective prosecution. Plaintiffs Bonita Montgomery, Janet Nayadley, and Amelia Jarvis have also brought claims under state law for loss of consortium. The Court declines to retain supplemental jurisdiction over these state law claims and will dismiss them without prejudice.
For the reasons stated in this Memorandum Opinion, Defendants' motions to dismiss will be granted in that: (1) all federal claims will be dismissed with prejudice; and (2) the Court will decline supplemental jurisdiction of all state law claims and dismiss those claims without prejudice.
Specifically, the Court will
U.S. Const. amend. XI
