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Sallee v. Board of Professional Responsibility of The Supreme Court

United States District Court, E.D. Tennessee, Knoxville

May 18, 2015



THOMAS W. PHILLIPS, Senior District Judge.

Ten motions to dismiss [Docs. 4, 6, 10, 12, 15, 17, 19, 21, 24, 28] are pending in this civil action.[1] Plaintiff requested and was granted an extension of time to respond to all of the pending motions [Doc. 32]; however, she has failed to respond to any of them and the time for doing so has passed. She has, accordingly, waived her opposition to the relief sought. See E.D. Tenn. L.R. 7.2. The Court has carefully considered the pending motions, along with their supporting memoranda [Docs. 5, 7, 11, 13, 16, 18, 20, 22, 25, 27, 29], and the motions are ripe for determination.

Also pending in this case is the plaintiff's request for an injunction [Doc. 30] to which the Tennessee Board of Professional Responsibility and defendants Garrett, Jones, Vick, Willis, and Balkwill have responded [Doc. 33]. Plaintiff has not submitted a further reply in support of this motion and the time for doing so has passed. See E.D. L.R. 7.1(a), 7.2.

I. Relevant Facts[2]

Plaintiff Yarboro Sallee is an attorney licensed to practice law by the State of Tennessee [Doc. 1 at ¶ 15]. The Tennessee Board of Professional Responsibility ("TBPR" or the "Board") is a board created by the Tennessee Supreme Court to govern the disciplinary enforcement of Tennessee attorneys. Tenn. S.Ct. R. 9, § 4; [Doc. 1 at ¶ 11]. Defendants Sandy Garrett and Nancy Jones are respectively the current and former Chief Disciplinary Counsel of the TBPR [ Id. at ¶ 12; Doc. 18 at p. 2]. Defendant James Anthony Vick is the Deputy Chief Disciplinary Counsel and defendants Kevin Balkwill[3] and Russell Willis are Disciplinary Counsel with the TBPR [ Id. ]. Collectively, the Court will refer to these defendants as the "TBPR defendants."

Plaintiff's complaint is not a model of clarity. Several of the defendants have submitted documents from state court proceedings which help clarify some of the events and claims raised in the complaint. While matters outside the pleadings are generally not considered in ruling on a Rule 12(b)(6) motion, the Court has reviewed these documents, submitted with the defendants' motions to dismiss, because they are public records from the disciplinary proceedings and litigation that plaintiff has specifically referenced in her complaint. In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 466 (6th Cir. 2014); Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) (a court may consider public records when deciding a motion to dismiss). Using these additional materials only for the purpose of making sense of the complaint, the Court will endeavor to outline the relevant facts and events.

Plaintiff claims that, at an unidentified time in the past, she filed a successful complaint with the Equal Employment Opportunity Commission ("EEOC") against the State of Tennessee and certain state agencies and that she has been involved in prior litigation "against or involving state departments and against the politically powerful Tennessee politicians in both state and federal courts which culminated in a substantial settlement for plaintiff" [ Id. at ¶¶ 16-17]. Plaintiff claims that she has been subject to retaliation and harassment for these prior claims and for her public criticism of elected officials [ Id. at ¶ 17]. Specifically, plaintiff claims that the TBPR and other defendants began filing baseless ethics complaints against her [ Id. ]. It appears that these allegations are presented as background information and perhaps to identify alleged motivations for the current complained-of acts.

Plaintiff represented defendants Frances Rodgers and Vearl Bible in several cases arising from the death of their adult daughter, including a wrongful death action in Knox County Circuit Court and an interpleader action over life insurance proceeds in Knox County Chancery Court [ Id. at ¶ 18; Doc. 17-1 at pp. 1-2]. Defendants Rodgers and Bible eventually terminated plaintiff and requested their file from her, but she withheld the file claiming unpaid fees [Doc. 17-1 at p. 3]. Defendants Rodgers and Bible hired defendant Larry Vaughan, also a private attorney, to obtain their file and to represent them in the actions initiated by plaintiff [ Id. at p. 3; Doc. 19-1 at p. 2]. A "global" settlement was eventually reached in the wrongful death case and the interpleader action [Doc. 24-1 at p. 2]. Plaintiff claims that defendant Vaughan acted in concert with the TBPR defendants to steal the fees she earned from the wrongful death case and redistribute them to defendants Vaughan, Rodgers, and Bible [Doc. 1 at ¶¶ 18-19].

Defendant Vaughan also filed suit in the Knox County Circuit Court on behalf of Rodgers and Bible to recover the fees paid to plaintiff as well as for punitive damages [Doc. 19-1 at p. 2]. A default judgment was entered against plaintiff and the case was appealed to the Tennessee Court of Appeals [ Id. at p. 3]. In a February 13, 2015 opinion, the Court of Appeals concluded that the trial court should have ruled on a motion to recuse before entering other orders and remanded the case for further proceedings [ Id. at pp. 8-9].

An ethics complaint was filed in 2011 against plaintiff arising from her representation of defendants Rodgers and Bible [Doc. 17, Exs. 1-3]. A hearing panel imposed a one-year suspension on plaintiff for several ethical violations and plaintiff appealed that decision to the Knox County Chancery Court [ Id., Ex. 1]. The Chancery Court affirmed the decision of the hearing panel and plaintiff appealed the decision to the Tennessee Supreme Court, where it is currently pending [ Id., Exs. 2-3].

Plaintiff claims that the TBPR defendants filed a baseless ethics petition against her and misrepresented the facts so as to convince the panel that she had committed ethical violations [ Id. at ¶¶ 20-21]. Plaintiff claims that she has been subjected to 13 baseless ethics complaints solicited by the defendants over the last eight years [ Id. at ¶ 23]. Plaintiff claims that the TBPR defendants "engaged active cronyism and protectionism" by not investigating complaints about other attorneys [ Id. at ¶¶ 24-25]. Plaintiff claims that defendant Jones "admittedly solicited the false complaint filed by defendant Larry Vaughan" [ Id. at ¶ 26]. Plaintiff further claims that the TBPR defendants "engaged in a pattern of propaganda and bullying against any attorney hired... to represent her" and that her attorney was intimidated and threatened into withdrawing from representing her [ Id. at ¶ 28]. Plaintiff claims the TBPR defendants "engaged in the falsification of evidence and the destruction or ignoring of supporting evidence" for her in an "attempt to run plaintiff out of the practice of law" and "to steal her rightful liens" [ Id. at ¶ 29]. Plaintiff claims the defendants "engaged in... blackmail... to force her to release perfected and earned liens" in exchange for the dismissal of the false ethical charges [ Id. at ¶¶ 31-32]. Plaintiff cites as an example false allegations that she withheld portions of a file from defendants Rodgers and Bible [ Id. at ¶¶ 33-34].

Plaintiff claims defendant Jones instructed defendant Balkwill to sign a petition against her even though Mr. Balkwill admitted that he had not investigated, written or recommended that a petition be filed against plaintiff [ Id. at ¶ 36]. Plaintiff claims defendant Willis has apologized to her by stating that he did not agree with the petition against her, but he was ordered to proceed against her without justification or cause [ Id. ].

Plaintiff claims that former Knox County Circuit Judge Harold Wimberly held a hearing in a case against her, presumably the case by Rodgers and Bible to recover fees, when he knew plaintiff was not given notice and could not defend herself [ Id. at ¶ 37]. Plaintiff complains that Judge Wimberly did not set aside the judgment against her, did not apply the correct law or procedures, failed to bifurcate a hearing into "general and punitive damage" (which may be the same allegation as failing "to hold three separate hearings, one for causality and one for general damages and one for punitive damages"), and created a false court record that placed her in a fraudulent negative light [ Id. at ¶ 37]. Plaintiff also claims that Judge Wimberly was aware of a pending settlement which "obviated" the lawsuit against her by defendants Vaughan, Rodgers, and Bible [ Id. at ¶ 38].

Plaintiff claims that Knox County Circuit Court employee Frankie Holt[4] interfered with the filing of documents, destroyed and withheld documents from proper filing, and illegally removed documents from the court record to benefit defendants Vaughan, Rodgers, and Bible [ Id. at ¶ 39].

Plaintiff claims that Knox County Chancery Court Clerk & Master Howard Hogan and Knox County Circuit Court Clerk Cathy Shanks[5] agreed to disburse money deposited by plaintiff in an escrow account without paying her perfected liens on the funds [ Id. at ¶ 40].

Plaintiff asserts constitutional violations of the First, Fifth, and Fourteenth Amendments of the Constitution via 42 U.S.C. § 1983, violations of 42 U.S.C. § 1985, and violations of Article I, Sections 8, 19, and 21 of the Tennessee Constitution [ Id. at ¶¶ 44-48].

II. Standards of Review

Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only "a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the [opposing party] fair notice of what the... claim is and the grounds upon which it rests, '" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's "obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions." Twombly, 550 U.S. at 555. "[A] formulaic recitation of the elements of a cause of action will not do, " nor will "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In deciding a Rule 12(b)(6)[6] motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in favor of the plaintiff, and determine whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). "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." Iqbal, 556 U.S. at 678. "Determining whether a complaint states a plausible claim for relief will [ultimately]... be a context-specific task that requires th[is Court] to draw on its judicial experience and common sense." Id. at 679.

Dismissal pursuant to Fed.R.Civ.P. 12(b)(1) is proper when a federal court lacks subject matter jurisdiction. When subject matter jurisdiction is challenged, the party asserting jurisdiction bears the burden of establishing jurisdiction to survive a motion to dismiss. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Under Rule 12(b)(1), a motion to dismiss "may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction." Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). A facial attack on the subject matter jurisdiction alleged in a complaint challenges the sufficiency of the pleading. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In reviewing a facial attack, the court takes the plaintiff's allegations in the complaint as true, similar to a Rule 12(b)(6) motion to dismiss. Id. A party making a factual attack on subject matter jurisdiction challenges the actual existence of the court's jurisdiction - a defect that may exist even though the complaint contains the formal allegations necessary to invoke jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). With a factual attack, no presumption of truthfulness applies to the allegations and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

III. Analysis

A. Claims Under 42 U.S.C. § 1985

Plaintiff has very generally alleged that "[d]efendant[s] and each state employee of defendants personally violated 42 U.S.C. § 1985" [Doc. 1 at ¶ 45]. The complaint contains no other allegations which specifically reference a § 1985 claim, although the complaint is rife with vague allegations of conspiracy, fraud, and deprivations of plaintiff's constitutional rights [ see, e.g., id. at ¶¶ 5, 21, 25, 28, 37, 38, 40]. Plaintiff does not specify on which subsection of § 1985 she bases her claim and the Court declines to construct her arguments for her. See, e.g., McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) ("[i]t is not sufficient for a party to mention a possible argument in a most skeletal way, leaving the court to... put flesh on its bones").

Part one of § 1985 protects officers seeking to perform the duties of their office. 42 U.S.C. § 1985(1). Plaintiff has not alleged, nor could she, that she was an officer seeking to perform the duties of her office. Part two of § 1985 provides a civil remedy to an injured party to recover damages where two or more persons have engaged in a racially motivated conspiracy to obstruct the administration of justice in a state or territory of the United States. 42 U.S.C. § 1985(2); Mason v. Stacey, No. 4:07-cv-43, 2009 WL 803107, at *6 (E.D. Tenn. Mar. 25, 2009) (Mattice, J.). The complaint contains no allegations that any of the alleged acts were racially motivated. Part three provides a civil remedy to an injured party to recover damages where two or more persons have engaged in a racially motivated conspiracy to deprive an individual of equal protection of the law or equal privileges and immunities of the law. 42 U.S.C. § 1985(3); Mason, 2009 WL 803107, at *6. Similarly, to prevail under § 1985(3), a plaintiff must show, among other things, that the defendants were motivated by class-based or racial animus. Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994). The complaint contains no such allegations and therefore fails to state a claim under any part of § 1985 upon which relief could be granted. Further, as to the TBPR defendants, the Knox County Circuit Court and Knox County Chancery Court, and Judge Wimberly, the Eleventh Amendment prohibits suits against a state and its agencies under § 1985 and the individual defendants in their official capacities. Abe v. Mich. Dep't of Consumer & Indus. Servs., 2000 WL 1176878, at *1 (6th Cir. Aug. 9, 2000); Mason, 2009 WL 803107, at *8. Plaintiffs' § 1985 claims against all defendants will be dismissed.

B. Tennessee Constitutional Claims

As with the § 1985 claims, plaintiff generally alleges that all of the defendants "personally violated Article 1 section 8 and 19 of the Tennessee Constitution" and that they each "personally violated Article 1, section 21 of the Tennessee Constitution" [Doc. 1 at ¶¶ 47-48]. Tennessee does not recognize any private cause of action for violations of the Tennessee Constitution. Williams v. Leatherwood, 258 F.Appx. 817, 824 (6th Cir. 2007); Bowden Bldg. Corp. v. Tenn. Real Estate Comm'n, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999); Lee v. Ladd, 834 S.W.2d 323, 325 (Tenn. Ct. App. 1992). Accordingly, these claims will be dismissed against all defendants for failure to state a claim upon which relief can be granted.

C. Motions to Dismiss by Defendants Board of Professional Responsibility of the Supreme Court, Sandy Garrett, Nancy Jones, James Anthony Vick, Kevin Balkwill, and Russell Willis [Docs. 4, 17][7]

Section 8.1 of Tennessee Supreme Court Rule 9 provides that "[a]ny attorney admitted to practice law in this State... is subject to the disciplinary jurisdiction of the Court, the Board, panels, the district committees and hearing panels herein established, and the circuit and chancery courts of this State." Pursuant to § 4.5 of Rule 9, the Board's authority includes the following:

(a) To consider and investigate any alleged ground for discipline or alleged incapacity of any attorney called to its attention, or upon its own motion, and to take such action with respect thereto as shall be appropriate to effectuate the purposes of this Rule....
(b) To adopt written internal operating procedures to ensure the efficient and timely resolution of complaints, investigations, and formal proceedings, which operating procedures shall be approved by the Court, and to monitor Disciplinary Counsel's and the hearing panels' continuing compliance with those operating procedures....
(d) To review, upon application by Disciplinary Counsel, a determination by the reviewing member of a district committee that a matter should be concluded by dismissal or by private informal admonition without the institution of formal charges.
(e) To privately reprimand, publicly censure or authorize the filing of formal charges against attorneys for misconduct....

Pursuant to § 7.1 of Rule 9, the Supreme Court appoints an attorney to serve as Chief Disciplinary Counsel for the TBPR. The Chief Disciplinary Counsel and staff have the following relevant powers as set forth in § 7.3:

(a) To investigate all matters involving possible misconduct.
(b) To dispose of all matters involving alleged misconduct by recommendation to the reviewing district committee member of either dismissal or private informal admonition; by recommendation to the Board of either private reprimand, public censure or the prosecution of formal charges before a hearing panel; or by diversion in accordance with Section
13. Except in matters requiring dismissal because the complaint is frivolous and clearly unfounded on its face or falls outside the Board's jurisdiction, no disposition shall be recommended or undertaken by Disciplinary Counsel until the accused attorney shall have been afforded the opportunity to state a position with respect to the allegations against the attorney.
(c) To present in a timely manner all disciplinary proceedings.
(d) To investigate and to present in a timely manner all proceedings with respect to petitions for reinstatement of suspended or disbarred attorneys or attorneys transferred to inactive status because of disability, or with respect to petitions for voluntary surrenders of law licenses.
(e) To file with the Court adequate proof of attorneys' pleas of nolo contendere or pleas of guilty to, or verdicts of guilt of, crimes pursuant to Section 22....

As set forth above and in the complaint, all of the allegations against defendants Garrett, Jones, Vick, Balkwill, and Willis relate to the performance of their ...

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