United States District Court, E.D. Tennessee, Knoxville
Shelia Osann, acting pro se, brings this action
against Sevier County and two of its officers, Sheriff Ronald
L. Seals, and Deputy Walker Marshall. Osann alleges that
Marshall used excessive force against her in violation of her
Fourteenth Amendment right to Due Process, giving rise to
federal liability pursuant to 42 U.S.C. § 1983. Osann
further alleges the use of excessive force was the result of
Sevier County's official policies and customs. Defendants
move to dismiss all claims asserted in Osann's complaint
as time-barred under the applicable statutes of limitations.
For the reasons that follow, the court finds that Osann's
complaint is time-barred, and it will be dismissed.
purposes of reviewing defendants' motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the court accepts
as true all factual allegations in the Amended Complaint,
which states in relevant part, as follows:
On June 21, 2014, Deputy Marshall made at least three visits
to plaintiff's residence for complaints of loud music. On
either the third or fourth visit, after some discussion with
officers, Osann alleges that she “was grabbed and
dropped to the ground” by Marshall after she told
Marshall she would report the visits to Marshall's
incident report states that Osann fainted in his arms, he
administered a sternum rub, checked for proper breathing and
pulse, and called for an ambulance after Osann complained of
numbness. Osann was transported to LeConte Medical Center for
an examination. She was released with instructions to follow
up with her primary care provider. Upon discharge from
LeConte Medical Center, Marshall arrested and charged Osann
with disorderly conduct. Osann was transported to the Sevier
County Jail where she was booked at approximately 4:23 a.m.
on June 22, 2014. After release from the Sevier County Jail,
Osann went to Jefferson Memorial Hospital on June 26, 2014,
where she alleges she was diagnosed with multiple injuries.
filed her original complaint on June 17, 2015. On October 29,
2015, Osann voluntarily dismissed that complaint. On October
28, 2016, Osann filed a second complaint alleging the same
claims based on the same events and facts [R. 2]. Osann did
not sign her complaint filed on October 28, 2016. Instead,
the complaint was signed by Paul Osann. On November 2,
2016, the clerk sent an Administrative Notice to Osann with
instructions to correct several defects, including the
requirement that Osann sign the complaint herself, by
November 7, 2016 [R. 4]. Osann did not comply and defendants
filed a motion to strike the complaint on November 29, 2016
[R. 9]. Osann responded with an Amended Complaint on December
7, 2016 [R. 10]. The Amended Complaint was signed by Osann.
Defendants now move to dismiss Osann's Amended Complaint
Standard of Review
move to dismiss the Amended Complaint under Federal Rule of
Civil Procedure 12(b)(6). A motion to dismiss under Rule
12(b)(6) requires the court to construe the complaint in the
light most favorable to the plaintiff, accept all the
complaint's factual allegations as true, and determine
whether the plaintiff undoubtedly can prove no set of facts
in support of her claims that would entitle her to relief.
Meador v. Cabinet for Human Resources, 902 F.2d 474,
475 (6th Cir. 1990). The court may not grant such a motion to
dismiss based upon a disbelief of a complaint's factual
allegations. Lawler v. Marshall, 898 F.2d 1196, 1198
(6th Cir. 1990); Miller v. Currie, 50 F.3d 373, 377
(6th Cir. 1995) (noting that courts should not weigh evidence
or evaluate the credibility of witnesses). The court must
liberally construe the complaint in favor of the party
opposing the motion. Id. However, the complaint must
articulate more than a bare assertion of legal conclusions.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434 (6th Cir. 1988). “[The] complaint must contain
either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable
legal theory.” Id.
one-year statute of limitations set forth in Tenn. Code Ann.
§ 28-3-104(a)(3) applies to civil rights claims arising
in Tennessee. Jackson v. Richards Med. Co., 961 F.2d
575, 578 (6th Cir. 1992). Claims under the
Tennessee Governmental Tort Liability Act are also subject to
a one-year statute of limitations. Tenn. Code Ann. §
29-20-305. It is undisputed that Osann's original
complaint was filed within the one-year statute of
limitations, but later voluntarily dismissed by Osann on
October 29, 2015. The issue before the court is whether
Osann's second complaint satisfied the requirements of
the Tennessee Savings Statute, Tenn. Code Ann. §
Savings Statute confers upon a plaintiff who files a second
action within one year of a voluntary nonsuit of a first
action the same procedural and substantive benefits that were
available to the plaintiff in the first action. Cronin v.
Howe, 906 S.W.2d 910, 913 (Tenn. 1995). Osann's
first lawsuit was voluntarily dismissed on October 29, 2015.
Osann submitted a second complaint on October 28, 2016,
within one year of voluntarily dismissing her original
complaint. However, that complaint was deficient and failed
to save her claims.
action is commenced when a complaint is properly filed with
the court. See Dolan v. United States, 514 F.3d 587
(6th Cir. 2008). To commence an action, a pro
se plaintiff must sign the complaint herself. Tenn. R.
Civil P. 11.01(a); Old Hickory Eng. & Mach.
Co. v. Henry, 937 S.W.2d 782 (Tenn. 1996) (A party who
is not represented by an attorney shall sign her pleading,
motion or other paper). Failure to sign a complaint is a
technical deficiency that must be corrected promptly after
notice is given of the defect. Tenn. R. Civ. P. 11.01(a).
When a court gives instructions to cure a defect in the
complaint, and allows for prompt correction, an amended
complaint that is properly accepted relates back to the
original date the defective complaint was filed. Gonzales
v. Wyatt, 157 F.3d 1016 (5th Cir. 1998).
Osann's second complaint was signed by Paul Osann, Mr.
Osann is not a licensed attorney. A complaint is void when it
is filed by someone, on behalf of another, who is not
authorized to practice law or otherwise commence an action on
another's behalf. See Bivins v. Hosp. Corp. of
Am., 910 S.W.2d 441, 446 (Tenn.Ct.App. 1995)
(Proceedings in a suit by a person not entitled to practice
are a nullity). Considering facts similar to the instant
case, the Tennessee Court of Appeals recently confirmed that
a complaint signed by a non-attorney representative does not
commence a lawsuit for the purpose of tolling the statute of
limitations, even if the plaintiff subsequently corrects the
error by having a licensed attorney sign and file an amended
complaint pursuant to Tenn. R. Civ. P. 11. Beard v.
Branson, 2016 WL 1292904 (Tenn.Ct.App. Mar. 31, 2016).
to Tennessee law, the court finds Osann did not commence her
suit in time for the Savings Statute to apply. When the prior
suit was voluntarily dismissed on October 29, 2015, Osann had
one year to file a valid complaint based on the same facts.
Osann submitted a complaint on October 28, 2016, one day
before the deadline. However, Osann failed to sign the
complaint. Although her husband signed the complaint, he is
not a licensed attorney. Without a signature by either Osann
herself or a licensed attorney, the complaint did not
commence a second suit under Tennessee law. Osann was
afforded time to correct her mistake, but she failed to do so
within the time allowed by the court. It was not until she
was faced with a motion to strike that she submitted an
Amended Complaint. Osann's Amended Complaint is too late.
Because she failed to commence her second suit by October 29,
2016, the Tennessee Savings Statute does not apply, and
Osann's § 1983 claims are time-barred. ...