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Krinks v. Haslam

United States District Court, M.D. Tennessee, Nashville Division

May 9, 2017


          Judge Trauger


          JEFFERY S. FRENSLEY United States Magistrate Judge.

         I. Background

         This matter is before the Court upon Defendants' Motion for Summary Judgment. Docket No. 65. Defendants have also filed a “Concise Statement of Undisputed Facts” (Docket No. 66) and a supporting Memorandum of Law (Docket No. 67). A brief summary of the facts, which are undisputed, will be helpful context for this Report and Recommendation.

         Unless otherwise noted, the following is taken from the Concise Statement of Undisputed Facts or other submissions of the Parties. This matter arose from the events surrounding the “Occupy Nashville” protests, in which protesters “occupied” War Memorial Plaza (“the Plaza”) in downtown Nashville day and night for several weeks in October 2011. Protesters set up tents and brought other camping-related items to the Plaza, where some of them ate, slept, and conducted other activities necessary to daily living. On October 27, 2011, Tennessee Governor Haslam issued curfew and permit requirements related to the use of the Plaza (the “Use Policy”). On October 26, 2011, representatives of the protesters had met with state officials (including Defendant Cates) to report safety issues and request additional security, as well as bathrooms and other hygiene facilities, which they requested the state furnish at its own expense. The state had also received other reports of safety concerns, theft, and sanitation issues. Defendant Cates told the protesters that they would be granted use permits on a day to day basis with reasonable conditions. Through their attorney, the protesters informed state officials that they would not voluntarily leave the Plaza at night. At around 3:00 a.m. on October 28, 2011, pursuant to the Use Policy, Tennessee State Troopers arrested those people who remained on the Plaza after the troopers warned them that they had to leave and gave them ten minutes to vacate. All persons who remained on the Plaza were arrested. On October 29, 2011, substantially the same sequence of events occurred. On both nights, after the Plaza was cleared of all people (because they had either chosen to leave or had been arrested), State officials removed all items (including tents, sleeping bags, and other items used for overnight occupation) from the Plaza and transported them to another location for safekeeping. Later, all items were returned.

         Some of the protesters then filed suit, alleging that the arrests violated their rights under the United States Constitution. One such suit, filed on October 31, 2011, ultimately resulted in an Opinion from the Court of Appeals for the Sixth Circuit styled Occupy Nashville, v. Haslam, 769 F.3d 434 (6th Cir. 2014). The protesters alleged, inter alia, violation of their rights under the First, Fourth, Fifth, and Fourteenth Amendments, naming as defendants Governor Bill Haslam, William Gibbons (Commissioner of the Tennessee Department of Safety and Homeland Security) Steven Cates (Commissioner of the Tennessee Department of General Services) and the troopers, who, being unknown, were sued as “Tennessee Highway Patrol Officers Does 1-210.” Occupy Nashville, 769 F.3d at 434, 439-40. The Sixth Circuit found that “the State Officials' conduct was objectively reasonable under the circumstances, ” and thus that the Officials were “entitled to qualified immunity for their actions.” Id. at 446. The Sixth Circuit further found that:

Our qualified immunity conclusion also necessarily extends to the Protesters' claims that their Fourth and Fourteenth Amendment rights were violated. Again, the most that can be said for the Protesters' argument is that it is unclear that the law forbade their arrest and that they had any liberty interest that could be infringed by an alleged failure to provide adequate procedural protections.


         Occupy Nashville and the case at bar arise from the same events in October 2011, share the same Defendants, and are identical in their claims with the exception of a claim for First Amendment retaliation, present in the instant matter and not in Occupy Nashville. Compare Docket No. 1 (Complaint) and Occupy Nashville, supra.

         All but two of the original Plaintiffs in this case have since dismissed their claims. See Docket Nos. 28, 43. The two remaining Plaintiffs, Christopher Humphrey and Michael Custer, have not responded to the instant Motion. Indeed, it appears that Mr. Humphrey and Mr. Custer cannot be located. See Docket No. 54, ordering that the case be administratively closed due to inability to locate Mr. Humphrey or Mr. Custer. The Court ordered Plaintiffs to come forward either with new representation or to indicate that they intend to proceed pro se, but Plaintiffs have not done so. See Docket Nos. 47, 48. It is therefore understood that Plaintiffs have not responded to any of the arguments, discussed below, that Defendants make in their Motion or supporting documents. Defendants previously moved for the case to be re-opened in order that they might file this Motion for Summary Judgment, and the Court granted that Motion and reopened the case. See Docket Nos. 62, 63.

         II. Analysis

         A. Local Rules 7.01(b) and 56.01(c) and (g)

         Local Rule 7.01(b) states, in pertinent part:

b. Response. Each party opposing a motion shall serve and file a response, memorandum, affidavits and other responsive material not later than fourteen (14) days after service of the motion, except, that in cases of a motion for summary judgment, that time shall be twenty-one (21) days after service of the motion, unless otherwise ordered by the Court. Failure to file a timely response shall indicate that there is no opposition to the motion.

         Defendants filed the instant Motion on June 2, 2016. Docket No. 65. Plaintiffs have failed to respond to Defendants' Motion.

         Additionally, with respect to Motions for Summary Judgment specifically, Local Rules 65.01(c) and (g) state, in pertinent part:

c. Response to Statement of Facts. Any party opposing the motion for summary judgment must respond to each fact set forth by the movant by either (i) agreeing that the fact is undisputed; (ii) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by a citation to the record. . . .

         . . .

g. Failure to Respond. Failure to respond to moving party's statement of material facts, or a non-moving party's statement of additional facts, within the time periods provided by these Rules shall indicate that the asserted facts are ...

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