Freeman v. Harris

ANTONIO FREEMAN

v.BOBBY HARRIS, et al.

NO. 3:10-0071

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

Dated: December 30, 2010

TO: Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMENDATION

By Order entered February 10, 2010 (Docket Entry No. 7), this action was referred to the Magistrate Judge to enter a scheduling order for management of the case, to dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b) of the Federal Rules of Civil Procedure and the Local Rules of Court.

By Memorandum and Order entered December 17, 2010 (Docket Entry No. 58), the Court rejected a Report and Recommendation (Docket Entry No. 47) in which the Magistrate Judge recommended that the Court: 1) grant the Defendants' Motion to Dismiss (Docket Entry No. 25); 2) deny the Plaintiff's Motion for Summary Judgment (Docket Entry No. 43); and 3) deny the Plaintiff's Motion for Leave to Amend (Docket Entry No. 40). The Court directed that the Magistrate Judge reconsider these motions in light of the decision rejecting the Report and Recommendation. See Docket Entry No. 58, at 5. Set out below is the Magistrate Judge's recommendations for disposition of the motions after reconsideration as directed by the Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiff is an inmate at the Sumner County Jail ("Jail"). He brought this action pro se and in forma pauperis on January 21, 2010, seeking damages under 42 U.S.C. § 1983 for alleged violations of his civil rights. Named as defendants are the Gallatin Police Department and Gallatin Police Officer Bobby Harris.

The Plaintiff was arrested by Defendant Harris on November 21, 2008. Defendant Harris, in an attempt to make a controlled drug purchase from the Plaintiff, had sent a confidential informant to an apartment with marked currency and equipped with a transmitting/recording device. Shortly after the informant entered the apartment, the device became inoperable and Defendant Harris made a forced entry into the apartment with his weapon drawn. In addition to the Plaintiff and the informant, a female occupant and a young baby were inside the apartment. Defendant Harris secured the apartment and arrested the Plaintiff after finding him in possession of the marked currency. Defendant Harris then transported the Plaintiff to the Jail.

At the Jail, Defendant Harris went before a judicial commissioner and swore out an affidavit of complaint against the Plaintiff for the offense of intent to sell a Schedule II controlled substance, specifically crack cocaine, based upon the events of that day. See Attachment to Complaint. The judicial commissioner found probable cause to arrest the Plaintiff and scheduled a further hearing before the Sumner County General Sessions Court.¹ After a preliminary hearing on January 21, 2009, the charge of intent to sell was dismissed. However, the Plaintiff remained in custody on the other criminal charges.²

The Plaintiff alleges that he was the victim of a warrantless and illegal search in violation of his Fourth Amendment rights and in violation of Article I, Section 7 of the Tennessee Constitution. He also alleges that he was falsely arrested as evidenced by the dismissal of the intent to sell charge at the preliminary hearing, that he was illegally detained and falsely imprisoned in violation of his Eighth and Fourteenth Amendment rights, and that the bail set in his case was excessive. Finally, the Plaintiff contends that he had numerous items of personal property stored in the apartment that were stolen or lost because Defendant Harris did not secure the property after arresting the Plaintiff. He seeks compensation for the value of this property.

In lieu of an answer, the Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the Plaintiff's Section 1983 claims were barred by the applicable statute of limitations and that, although the complaint does not specifically set out claims under state law, to the extent that the complaint can be construed to assert claims under state law, any such claims are barred by either the applicable statute of limitations and/or by Tennessee's Governmental Tort Liability Act ("TGTLA"), Tenn. Code. Ann. § 29-20-201. See Docket Entry No. 25. The Plaintiff responded by contending that the statute of limitations did not begin to run onhis claims until the preliminary hearing conducted on January 21, 2009, rendering his complaint, which was filed exactly one year later, timely.

In addition to his response to the motion to dismiss, the Plaintiff filed a separate motion for summary judgment (Docket Entry No. 43) and a motion to amend his complaint (Docket Entry No. 40). In his motion for summary judgment, he argued that his acquittal on all of the charges which were brought against him evidences the merit of his claims and that he has provided sufficient evidence supporting his claims to warrant a trial. In his motion to amend, he sought leave to amend his complaint adding a claim for civil damages and other relief under Tenn. Code. Ann. § 39-13-603 based on allegations that Defendant Harris violated Tenn. Code Ann. § 39-13-601, the Tennessee's Wiretapping and Electronic Surveillance Act of 1994, by using a recording/transmitting device to intercept conversations between the Plaintiff and the confidential informant. The Plaintiff names Defendant Harris, the confidential informant, and Gallatin Police Department Officers Joe Russell and Eban Bates as defendants to this claim. See Docket Entry No. 40, at 3. The Defendants have not responded to these two motions.

II. STANDARD OF REVIEW

The Defendants filed their motion as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure is reviewed under the standard that the Court must accept as true all of the allegations contained in the complaint, resolve all doubts in the plaintiff's favor, and construe the complaint liberally in favor of the pro se plaintiff. See Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Morgan v. Church's Fried Chicken, 829 F.2d 10, 11-12 (6th Cir. 1987). While a complaint need not contain detailed factual allegations, the plaintiff mustprovide the grounds for his entitlement to relief, and this "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See also Ashcroft v. Iqbal, 556 U.S. _, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The factual allegations supplied must be enough to show a plausible right to relief. Twombly, 550 U.S. at 555-61. More than bare assertions of legal conclusions are required to withstand a motion to dismiss and the complaint must contain either direct or inferential allegations respecting all of the material elements to sustain a recovery under some viable legal theory. Id.; Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir. 1988). The Court need not accept as true legal conclusions or unwarranted factual inferences. See Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000).

III. CONCLUSIONS

A. Motion to Dismiss

In the prior Report and Recommendation, the Magistrate Judge recommended that the Plaintiffs Section 1983 illegal search and excessive bail claims be dismissed as untimely under the applicable one year statute of limitations. See Docket Entry No. 47, at 6-8. The Magistrate Judge's analysis and recommendations as to the dismissal of these claims remains unchanged upon reconsideration of the motion to dismiss, and the motion to dismiss should be granted as to these two claims. The Magistrate Judge also recommended that the Plaintiff's Section 1983 claim for wrongful deprivation of property, to the extent that such a claim was alleged in the complaint, should be dismissed. Id. at 8-9. The Magistrate Judge's analysis and recommendations as to the dismissal of thisclaim remains unchanged upon reconsideration of the motion to dismiss, and the motion to dismiss should be granted as to this claim.

In the December 17, 2010, Memorandum and Order, the Court rejected the Defendants' statute of limitations argument with respect to the Plaintiff's Section 1983 claims for false arrest and false imprisonment. The Court determined that the judicial commissioner's finding that probable cause existed to support the Plaintiff's arrest, "does not, in the Court's view, sufficiently resemble an arraignment or the formal institution of legal process against the plaintiff sufficient to start the statute of limitations." See Docket Entry No. 58, at 3.³ Accordingly, to the extent that the Defendants seek dismissal of these two claims based upon the statute of limitations argument as set out in their motion, the motion to dismiss should be denied.

In his complaint, the Plaintiff also asserted an illegal search claim under Article I, Section 7 of the Tennessee Constitution. In the prior Report and Recommendation, the Court recommended that the Court, in accordance with 28 U.S.C. § 1367(c)(3), decline to exercise supplemental jurisdiction over any state law claims raised by the Plaintiff because of the recommendation that all of the Plaintiffs Section 1983 claims be dismissed. Given the Court's rejection of that portion of the Report and Recommendation recommending dismissal of the Plaintiffs Section 1983 false arrest and false imprisonment claims, the recommendation as to dismissal of the Tennessee Constitutional claim requires reconsideration.

Upon reconsideration, the Magistrate Judge recommends that the Plaintiff's illegal search claim under the Tennessee Constitution...