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Durham v. Estate of Gus Losleben

United States District Court, W.D. Tennessee, Eastern Division

April 21, 2017

SUSAN SUMMER DURHAM, as Widow and Administratrix of the Estate of Christopher Durham and on behalf of the Wrongful Death Beneficiaries of CHRISTOPHER DURHAM, deceased, Plaintiffs, and STONETRUST COMMERCIAL INSURANCE COMPANY and MAPLE LAND AND TIMBER, LLC, Intervenors,
ESTATE OF GUS LOSLEBEN, DECEASED, by and through the Estate's Administrator, Lloyd Tatum, Esq.; HARDIN COUNTY FIRE DEPARTMENT; HARDIN COUNTY, TENNESSEE; and JOHN DOES 1-10, Defendants.



         Before the Court is Defendants Estate of Gus Losleben, Hardin County Fire Department (“Fire Department”), and Hardin County, Tennessee (“Hardin County”)'s Motion to Dismiss (ECF No. 6) filed on March 9, 2016. Plaintiff Susan Summer Durham has responded in opposition, and Defendants have replied. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.


         Plaintiff's Complaint alleges claims for federal civil rights violations under 42 U.S.C. § 1983 and state law negligence and negligence per se claims under the Tennessee Governmental Tort Liability Act (“TGTLA”). Plaintiff initially filed her Complaint in the Hardin County Circuit Court on December 30, 2015. Defendants removed the case to this Court on March 3, 2016. The Court subsequently granted Plaintiff's motion to remand her state law claims to state court but denied her request to remand her § 1983 claims. On June 9, 2016, Stonetrust Commercial Insurance Company and Maple Land and Timber, LLC filed an Intervenor Complaint (ECF No. 34). Defendants' motion to dismiss (ECF No. 37) the Intervenor Complaint followed on June 23, 2016, and remains pending before the Court.

         According to the Complaint, Christopher Durham (“Plaintiff's decedent”) was traveling northbound in a log truck in Hardin County, Tennessee on December 9, 2014. (Compl. ¶ 9.) Gus Losleben, a Fire Department employee, was driving a fire truck southbound on the same road. (Id.) Losleben crossed into the decedent's lane, colliding head-on with his truck, and both men were killed. (Id. ¶ 10.) The Complaint alleges that at the time of the collision, Losleben was not responding to any “fire service emergency, ” he was driving the truck at an excessive rate of speed, he was aware that the call he was responding to did not require him to drive at a high speed, and he crossed into the decedent's lane. (Id. ¶ 11.) According to Plaintiff, “[the decedent] was killed as a result of said negligence, willful, wanton, reckless and/or deliberately indifferent acts or omissions on the part of Losleben.” (Id. ¶ 13.)


         A defendant may move to dismiss a claim “for failure to state a claim upon which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6). When considering a Rule 12(b)(6) motion, the Court must treat all of the well-pleaded allegations of the pleadings as true and construe all of the allegations in the light most favorable to the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Saylor v. Parker Seal Co., 975 F.2d 252, 254 (6th Cir. 1992). However, legal conclusions or unwarranted factual inferences need not be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all material elements of the claim.” Wittstock v. Mark a Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).

         Under Rule 8 of the Federal Rules of Civil Procedure, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although this standard does not require “detailed factual allegations, ” it does require more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012) (quoting Twombly, 550 U.S. at 555). In order to survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570. “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.


         The Court holds that Plaintiff has failed to state a claim for relief under federal law as to any Defendant. The Court will analyze the merits of the pleadings as to each Defendant separately.

         I. Hardin County Fire Department

         The Court first considers Defendants' contention that the Fire Department should be dismissed because it is not an entity capable of being sued. Plaintiff did not actually respond to this argument and therefore waived the issue. On the merits, 42 U.S.C. § 1983 creates liability for “municipalities and other local government units.” Monell, 436 U.S. at 690. Courts have concluded, however, that a police or sheriff's department is generally not an entity capable of being sued under the statute. See Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341, 347 (6th Cir. 2007) (holding that, under Ohio law, a sheriff's office is not an entity capable of being sued). Although the Sixth Circuit has never squarely decided the issue under Tennessee law, federal courts sitting in Tennessee have consistently held that plaintiffs cannot maintain actions against Tennessee police and sheriff's departments under § 1983. See, e.g., McKinney v. McNairy Cnty., Tenn., 1:12-CV-01101, 2012 WL 4863052, at *3 (W.D. Tenn. Oct. 11, 2012); Newby v. Sharp, 3:11-CV-534, 2012 WL 1230764, at *3 (E.D. Tenn. Apr. 12, 2012); Mathes v. Metro. Gov't of Nashville and Davidson Cnty., No. 3:10-CV-0496, 2010 WL 3341889, at *2 (M.D. Tenn. Aug. 25, 2010). Other courts have applied this same reasoning when dismissing municipal fire departments from suits brought under § 1983. See Lathan v. City of Cleveland, No. 1:12 CV 37, 2012 WL 1708762, at *2 (N.D. Ohio May 15, 2012); Hicks v. City of Barberton, No. 5:11cv76, 2011 WL 3022089, at *2 (N.D. Ohio July 22, 2011). Even if Plaintiff had not waived the issue, the Court holds that the Fire Department is entitled to dismissal of the claims against it. Defendants' Motion is GRANTED, and the Fire Department is dismissed as a party to this action.

         II. Statute of Limitations

         Defendants next argue that Plaintiff filed her Complaint outside the applicable statute of limitations. According to the pleadings, the collision giving rise to Plaintiff's claims occurred on December 9, 2014. Plaintiff filed her Complaint in state court on December 30, 2015. A motion to dismiss on statute of limitations grounds should be granted when “it is apparent from the face of the complaint that the limit[ations period] has passed.” Howell v. Farris, 655 F. App'x 349, 350 (6th Cir. 2016) (quoting Bishop v. Lucent Techs., Inc., 520 F.3d 516, 520 (6th Cir. 2008)). State law governs the statute of limitations for a claim under § 1983, and in Tennessee the applicable statute of limitations is one year. Id. (citing Tenn. Code Ann. § 28-3-104(a)). While federal courts look to state law for tolling rules, Wallace v. Kato, 549 U.S. 384, 394 (2007), federal standards determine when the claim accrues. Id. at 388. The Sixth Circuit has held that “[g]enerally, the statute of limitations begins to run when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Kovacic v. Cuyahoga Cnty. Dep't of Children & Family Servs., 606 F.3d 301, 307 (6th Cir. 2010) ...

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