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Nunn v. Tennessee Department of Correction

Court of Appeals of Tennessee, Nashville

October 23, 2017

CRAIG ROBERT NUNN
v.
TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

          Session August 16, 2017

         Direct Appeal from the Chancery Court for Davidson County No. 10-1583-IV Russell T. Perkins, Chancellor.

         This case involves a sex offender's complaint for declaratory relief under state law and 42 U.S.C. § 1983 raising various constitutional and other challenges to the conditions imposed on him in accordance with his sentence to community supervision for life. The trial court found that most of the offender's constitutional claims were time-barred. The trial court reviewed the substantive merit of the remaining claims and found them meritless. As a result, the trial court granted the motion for summary judgment filed by the defendants, the Tennessee Department of Correction and the Tennessee Attorney General. The offender raises numerous issues on appeal. We affirm in part, reverse in part, and remand for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part, Reversed in part, and Remanded

          David Louis Raybin, Nashville, Tennessee, for the appellant, Craig Robert Nunn.

          Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, Scott C. Sutherland, Deputy Attorney General, and Brooke K. Schiferle, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Department of Correction, and Herbert H. Slattery III, Attorney General.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, and Kenny Armstrong, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         On January 14, 1999, Craig Nunn pled guilty to four counts of aggravated sexual battery against four minor children who were patients at a hospital where he worked as a physician. The four incidents of aggravated sexual battery occurred between December 1997 and February 1998. Nunn received four concurrent sentences of twelve years to be served in the Tennessee Department of Correction. He was also sentenced to community supervision for life pursuant to Tennessee Code Annotated section 39-13-524, which, at the time, provided, in relevant part:

(a) In addition to the punishment authorized by the specific statute prohibiting the conduct, any person who, on or after July 1, 1996, commits a violation of § 39-13-502, § 39-13-503, § 39-13-504 [aggravated sexual battery], § 39-13-522, or attempts to commit a violation of any of these sections, shall receive a sentence of community supervision for life.[1]. . . .
(c) The sentence of community supervision for life shall commence immediately upon the expiration of the term of imprisonment imposed upon the person by the court or upon the person's release from regular parole supervision, whichever first occurs.
(d)(1) A person on community supervision shall be under the jurisdiction, supervision and control of the Board of Paroles in the same manner as a person under parole supervision.[2] The board is authorized on an individual basis to establish such conditions of community supervision as are necessary to protect the public from the person's committing a new sex offense, as well as promoting the rehabilitation of the person. . . . .

         Essentially, the lifetime supervision requirement of Tennessee Code Annotated section 39-13-524 "imposes an additional set of restrictions and requirements on the offender after serving his or her entire sentence of incarceration." Ward v. State, 315 S.W.3d 461, 476 (Tenn. 2010). The Tennessee Supreme Court has described the lifetime community supervision requirement as "punitive in effect, requiring an offender to regularly report to a parole officer who is granted wide discretion in imposing supervisory requirements, and to pay a monthly fee."[3] Id. at 474. Pursuant to a related statute, Tennessee Code Annotated section 39-13-526, a knowing violation of a condition of community supervision will constitute a separate criminal offense. Tenn. Code Ann. § 39-13-526(a)(4).

         Approximately three months after Nunn pled guilty, on April 26, 1999, the Tennessee Board of Probation and Parole adopted "Sex Offender Directives" that established specialized conditions of community supervision for sex offenders. For example, the Sex Offender Directives required offenders to participate in counseling and polygraph tests and prohibited them from accessing the internet without approval or possessing alcohol. The Board of Probation and Parole granted supervising officers some discretion in imposing the conditions as deemed appropriate based on the particular offender's risks and needs.

         Nunn was released from serving his twelve-year sentence on March 28, 2009. On that same date, Nunn was placed on community supervision for life. According to Nunn, as he was being released from prison, the institutional parole officer placed him on the sex offender community supervision regime over his objection. Nunn signed a "Community Supervision Certificate" agreeing to abide by the Sex Offender Directives adopted by the Board of Probation and Parole, but he wrote beside his signature "under protest." Days later, on March 31, 2009, Nunn met his supervising officer, who had him also sign a copy of the Sex Offender Directives containing the detailed list of specialized conditions of supervision for sex offenders. The Sex Offender Directives required Nunn to submit to curfews or electronic monitoring imposed by his supervising officer and to participate in counseling or treatment and polygraphs as deemed necessary. The Sex Offender Directives prohibited Nunn from possessing pornographic material, possessing alcohol, accessing the internet without permission from his supervising officer, working at an organization that provided services to minor children, or befriending anyone with minor children. The Sex Offender Directives provided that these conditions of supervision were "guidelines . . . established for all offenders" and would apply to Nunn unless either the Board of Probation and Parole or his supervising officer and treatment provider determined otherwise, and if he did not agree with any condition, he could petition the Board for a modification.

         Approximately eighteen months later, on September 29, 2010, Nunn filed a complaint for declaratory relief against the Board of Probation and Parole and the Tennessee Attorney General challenging the Sex Offender Directives as applied to him, on several grounds.[4] Nunn's complaint described his suit as one "for declaratory relief pursuant to Tenn. Code Ann. § 29-14-102 [Tennessee's Declaratory Judgment Act] and a violation of civil rights pursuant to 42 U.S.C. § 1983." Nunn acknowledged that he was sentenced to community supervision for life but claimed that the conditions of his supervision were fixed at the time of his offense and could not be made more harsh or severe thereafter. He claimed that the Sex Offender Directives adopted in 1999, months after he pled guilty, could not be applied to his community supervision for life. Nunn asked the trial court to declare that this application of Tennessee Code Annotated sections 39-13-524 and -526 and the Sex Offender Directives violated numerous provisions of the United States and Tennessee Constitutions regarding ex post facto laws, due process, equal protection, cruel and unusual punishment, self-incrimination, and separation of powers. In addition to citing Tennessee's Declaratory Judgment Act, he asked the court to also grant him declaratory relief pursuant to 42 U.S.C. § 1983 in order to remedy these constitutional violations and "the deprivation of civil rights under color of state law." Nunn did not seek monetary damages except for an award of attorney's fees and litigation costs pursuant to 42 U.S.C. § 1988.

         The Board of Probation and Parole and Attorney General filed an answer, and discovery ensued. Effective July 1, 2012, while the case was still pending, Tennessee Code Annotated section 39-13-524 was amended to provide that individuals subject to community supervision for life would be under the jurisdiction and supervision of the Tennessee Department of Correction rather than the Board of Probation and Parole. See 2012 Tenn. Pub. Acts, c. 727, § 5 (replacing "board of probation and parole" with "Department of Correction" in the statutory text). Consequently, on August 20, 2012, the parties entered into an agreed order providing that the Department of Correction would be substituted as a party defendant in the place of the Board of Probation and Parole. On October 10, 2014, the parties entered into another agreed order permitting Nunn to file an amended complaint.

         Nunn's amended complaint stated that it was filed as a suit for declaratory judgment pursuant to Tennessee Code Annotated section 4-5-225 of the Uniform Administrative Procedures Act and for declaratory relief pursuant to 42 U.S.C. § 1983.[5] Nunn's amended complaint set forth fifteen counts or claims alleging various violations of constitutional provisions, the Uniform Administrative Procedures Act, and 42 U.S.C. § 1983. Specifically, two of the counts addressed the Uniform Administrative Procedures Act. Twelve counts asserted the following constitutional violations:

1. Ex post facto violations under the United States and Tennessee Constitutions;
2. Separation of powers violation under the Tennessee Constitution;
3. Violation of his due process right to earn a living under the United States and Tennessee Constitutions;
4. Cruel and unusual punishment under the United States and Tennessee Constitutions;
5. Violation of equal protection under the United States Constitution;
6. Violation of the self-incrimination clauses of the United States and Tennessee Constitutions;
7. Void for vagueness under the United States and Tennessee Constitutions;
8. Unlawful bill of attainder under the United States and Tennessee Constitutions;
9. Additional ex post facto and separation of powers violations;
10. Violation of his right to travel under the privileges and immunities clause and due process clause of the United States Constitution;
11. Violation of due process rights and an unconstitutional taking due to the impact on his family;
12. Violation of due process in connection with the mandatory therapy requirement.

         Finally, the "pendant civil rights claim" alleged that these same alleged violations of the United States Constitution also constituted violations of 42 U.S.C. § 1983, as the State of Tennessee deprived him of "rights, privileges, or immunities secured by the [Constitution]" within the meaning of section 1983. Nunn claimed that he was entitled to declaratory relief pursuant to § 1983 due to the deprivation of his civil rights under color of state law. He sought attorney's fees pursuant to 42 U.S.C. § 1988.

         The Department of Correction and Attorney General ("Defendants") filed an answer to Nunn's amended complaint and asserted that his claims were time-barred by the applicable statute of limitations. Thereafter, the Defendants filed a motion for summary judgment asserting that the statute of limitations had expired for all of Nunn's declaratory claims asserting constitutional violations except the one regarding separation of powers. Initially, the Defendants argued that Nunn's claims pursuant to 42 U.S.C. § 1983 were subject to the one-year statute of limitations applicable to federal civil rights claims set forth in Tennessee Code Annotated section 28-3-104(a). Next, the Defendants argued that Nunn's claims for declaratory relief pursuant to state law were not subject to any particular statute of limitations simply based on their nature as declaratory judgment actions, as declaratory judgment actions are merely a procedural device for asserting substantive claims. Accordingly, the Defendants contended that it was necessary to look to the nature of the underlying substantive claims in order to determine the statute of limitations applicable to the claims for declaratory relief. Because Nunn sought declaratory relief pursuant to state law and asserted his section 1983 claim based on the same underlying alleged violations of his federal constitutional rights, the Defendants claimed that the one-year statute of limitations applicable to his 1983 claim should also apply to his claims for declaratory relief under state law alleging federal constitutional violations. In addition, the Defendants argued that the same one-year statute of limitations for section 1983 actions should likewise apply to Nunn's declaratory claims for violations of the Tennessee Constitution, as they also alleged violations of his civil rights. While also suggesting an earlier date, the Defendants argued that the one-year statute of limitations began to run, at the latest, when Nunn was released from prison on March 28, 2009, and placed under supervision pursuant to the 1999 Sex Offender Directives, as he admittedly signed the necessary paperwork under protest. (Nunn's complaint was filed eighteen months later.)

         The Defendants did not argue that Nunn's claims regarding the UAPA and separation of powers were time-barred. Instead, the Defendants analyzed the substantive merit of these claims and argued that they were entitled to summary judgment on these issues. As an alternative basis for summary judgment, the Defendants also analyzed the substantive merit of the constitutional claims that they asserted were time-barred and argued that they were entitled to summary judgment with regard to the merits of those issues as well. The Defendants submitted numerous documents as exhibits in support of their motion for summary judgment.

         Nunn filed a response and cross-motion for partial summary judgment. Nunn conceded that the Sex Offender Directives were imposed on him as he left prison on March 28, 2009, and argued, "The date from which the statute of limitation must be marked is March 28, 2009." However, he claimed that Tennessee's general ten-year statute of limitations applied to his claims for declaratory relief. Nunn acknowledged that he was seeking "declaratory relief under state declaratory judgment statutes and pendant claims under federal statutes permitting identical declaratory relief." Still, he insisted that his section 1983 claim was irrelevant to his "state law declaratory relief claim, albeit citing federal constitutional violations." Nunn also asserted that the "continuing violation" doctrine would apply to his section 1983 claim because the enforcement of the conditions of supervision for sex offenders had become increasingly harsh in recent years. Nunn further analyzed each of the substantive claims asserted in his complaint and argued that it was inappropriate to grant summary judgment to the Department based on the merits of those claims. In fact, he asserted that he was entitled to partial summary judgment on his ex post facto claim. Nunn submitted a host of exhibits in support of his response and cross-motion for partial summary judgment, with the exhibits spanning more than three volumes of the technical record on appeal.

         Following a hearing, the trial court entered an order granting the motion for summary judgment filed by the Defendants and denying the motion for partial summary judgment filed by Nunn. First, the trial court concluded that the one-year statute of limitations provided in Tennessee Code Annotated section 28-3-104(a)(1)(B) applied to Nunn's claims pursuant to section 1983 seeking declaratory relief based on federal constitutional violations. Looking to the substantive nature of the remaining claims, the trial court found that Nunn was seeking declaratory relief under state law based on the same alleged violations of his federal constitutional rights that supported his 1983 claims, "along with parallel violations of the Tennessee Constitution." As such, the trial court concluded that the same one-year statute of limitations applied to all of Nunn's civil rights claims, whether based on the United States or Tennessee Constitution. The court found that Nunn knew he was subject to the 1999 Sex Offender Directives when he was released from prison on March 28, 2009, and therefore, the one-year statute of limitations expired in March 2010. Because Nunn filed his complaint in September 2010, the trial court found that his civil rights claims under the federal and state constitutions were time-barred.[6] Despite Nunn's insistence that all of his constitutional claims were "as applied" challenges, [7] the trial court construed two of Nunn's claims -- based on separation of powers and vagueness -- as "facial challenges, " and the court analyzed the substantive merit of those two claims. It also analyzed Nunn's claims under the UAPA. Finding no merit in any of Nunn's claims regarding these issues, the trial court also entered summary judgment in favor of the Defendants on these claims. As an "alternative analysis, " the trial court analyzed the substantive merit of Nunn's ex post facto claim and concluded that he had not demonstrated any ex post facto violation. Nunn timely filed a notice of appeal.

         II. Issues Presented

         Nunn raises the following issues, as we perceive them, for review on appeal:

1. Whether Nunn's suit for declaratory relief pursuant to Tennessee Code Annotated section 4-5-225 was timely either because it has a ten-year statute of limitations or because his section 1983 claim is subject to the continuing violation doctrine;
2. Whether the Sex Offender Directives created and implemented after the commission of Nunn's crimes constitute ex post facto laws as applied to Nunn, violating the state and federal constitutions;
3. Whether the statutes governing community supervision for life impose cruel and unusual punishment as applied to Nunn;
4. Whether the application of the statutes governing community supervision for life violates the equal protection clause because the Department of Correction is authorized to treat similarly situated persons differently with individualized conditions of supervision;
5. Whether the legislative delegation of authority to the Department of Correction was unlawful under the separation of powers doctrine of the Tennessee Constitution;
6. Whether the statutes regarding community supervision for life are unconstitutionally vague;
7. Whether the statutes imposing community supervision for life violate Nunn's constitutional right to be free from bills of attainder;
8. Whether the statutes governing community supervision for life violate Nunn's constitutional right to travel;
9. Whether the conditions of supervision violate Nunn's family's due process rights and constitute a taking of his property without due process;
10. Whether the Sex Offender Directives were promulgated without compliance with the UAPA.

         For the following reasons, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

         III. Standard of Review

         Appellate courts review the grant or denial of a motion for summary judgment de novo with no presumption of correctness. Bryant v. Bryant, 522 S.W.3d 392, 398-99 (Tenn. 2017) (citing Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015)). This Court also reviews issues involving constitutional and statutory interpretation de novo, affording no presumption of correctness to the trial court's conclusions. Crank, 468 S.W.3d at 21.

         IV. Discussion

         A. Statute of Limitations

         At the outset, Nunn argues that his claims for declaratory relief pursuant to Tennessee Code Annotated section 4-5-225 were timely either because they were subject to Tennessee's general ten-year statute of limitations or because the continuing violation doctrine applies to his section 1983 claim. Nunn asserts that the trial court erroneously characterized the majority of his constitutional claims as federal civil rights claims subject to the one-year statute of limitations.

         1. Declaratory Judgment Actions & Statutes of Limitation

         Generally, "in choosing the applicable statute of limitations, courts must ascertain the gravamen of each claim" asserted. Benz-Elliott v. Barrett Enters., 456 S.W.3d 140, 149 (Tenn. 2015). We "first consider the legal basis of the claim and then consider the type of injuries for which damages are sought." Id. at 151.

         However, according to the Tennessee Supreme Court,

Limitations statutes do not apply to declaratory judgments suits, as such, because a declaratory judgment action is a mere procedural device by which various types of substantive claims may be asserted. Accordingly, it is necessary to ascertain the nature of the substantive claims sought to be asserted in a declaratory judgment action in order to determine the appropriate statute of limitations. And, if a special statute of limitations applies to a special statutory proceeding, such as an election contest, it will be applied when a declaratory judgment action is employed to achieve the same result as the special proceeding.

Dehoff v. Attorney Gen., 564 S.W.2d 361, 363 (Tenn. 1978) (citation omitted). For a declaratory judgment action, the appropriate statute of limitations depends on the nature of the substantive claims sought to be asserted. Taylor v. Reynolds, No. 93-552-I, 1994 WL 256286, at *1 (Tenn. Ct. App. June 10, 1994). A declaratory judgment action is time-barred if relief on the direct claim would also be barred. Kielbasa v. B & H Rentals, LLC, No. M2002-00129-COA-R3-CV, 2003 WL 21297315, at *4 (Tenn. Ct. App. May 22, 2003). "'A contrary rule would allow the plaintiff to make a mockery of the statute of limitations by the simple expediency of creative labeling.'" Id. (quoting Int'l Ass'n of Machinists & Aerospace Workers v. Tenn. Valley Auth., 108 F.3d 658, 668 (6th Cir. 1997)).

         Here, Nunn originally sought declaratory relief under Tennessee's Declaratory Judgment Act and under 42 U.S.C. § 1983. In his amended complaint, he sought a declaratory judgment under Tennessee Code Annotated section 4-5-225 of the UAPA and under 42 U.S.C. § 1983. At the outset, Nunn suggests that because he is now seeking relief under the UAPA rather than the Declaratory Judgment Act, he is somehow entitled to a different limitations period. We respectfully disagree. Initially, it is important to recognize that a declaratory judgment action filed pursuant to Tennessee Code Annotated section 4-5-225 is fundamentally different than a petition for judicial review of a final order of an administrative agency under section 4-5-322 of the UAPA. Taylor, 1994 WL 256286, at *2. The declaratory judgment action is also "distinct from" the administrative proceeding in which the affected person petitioned the agency for a declaratory order. Nonprofit Hous. Corp. v. Tenn. Hous. Dev. Agency, No. M2014-01588-COA-R3-CV, 2015 WL 5096181, at *3 n.4 (Tenn. Ct. App. Aug. 27, 2015). A declaratory judgment action filed pursuant to section 4-5-225 is "an original action for a declaratory judgment." Pickard v. Tenn. Dep't of Env't & Conservation, No. M2011-01172-COA-R3-CV, 2012 WL 3329618, at *10 (Tenn. Ct. App. Aug. 14, 2012); Taylor, 1994 WL 256286, at *2. Thus, we agree with the Defendants' contention that section 4-5-225 "does not transform a declaratory judgment action from a procedural vehicle into a substantive claim with its own statute of limitations."

         We reject Nunn's assertion that Hughley v. State, 208 S.W.3d 388 (Tenn. 2006), is "virtually on point" and demands application of the general ten-year statute of limitations to all declaratory judgment actions filed pursuant to section 4-5-225. We recognize that in Hughley, the Tennessee Supreme Court began its opinion by stating, in general terms:

We granted this appeal to determine the statute of limitations applicable to suits for declaratory judgments filed pursuant to Tennessee Code Annotated section 4-5-225, a provision of the Uniform Administrative Procedures Act, after an agency declines to issue a declaratory order. We hold that, where an agency is petitioned to issue a declaratory order pursuant to Tennessee Code Annotated section 4-5-223 and the agency declines to convene a contested case hearing and issue the declaratory order, the petitioner is not subject to the sixty-day statute of limitations established by Tennessee Code Annotated section 4-5-322(b)(1). Instead, because the legislature has not expressly provided for a statute of limitations, the petitioner's complaint for declaratory judgment under Tennessee Code Annotated section 4-5-225 is governed by Tennessee's general ten-year statute of limitations, codified at Tennessee Code Annotated section 28-3-110(3).

Id. at 390. However, in our view, a close reading of Hughley reveals that the general ten- year statute of limitations is not automatically applicable to all declaratory judgment suits filed pursuant to the UAPA. The facts in Hughley involved a prisoner who was seeking a declaratory judgment regarding the calculation of his sentence. Id. The trial court held that his petition for declaratory judgment was untimely because it was not filed within sixty days of the agency's refusal to issue a declaratory order. Id. The sixty-day time period was found in section 4-5-322 of the UAPA, which governs petitions for judicial review. Id. The supreme court took the opportunity to emphasize the differences between declaratory judgment actions filed under section 4-5-225 of the UAPA and petitions for judicial review of an agency's order pursuant to section 4-5-322 of the UAPA. When an agency declines to issue a declaratory order, "the aggrieved petitioner may seek a judicial determination of his concerns by filing a suit for declaratory judgment in the chancery court of Davidson County, " and the UAPA "does not set forth a time period within which the complainant must file his suit for declaratory judgment." Id. at 391. The court added,

The legislature may have intended to provide a specific limitations period for declaratory judgment actions following an agency's decision not to convene a contested case hearing and issue a requested declaratory order. It did not, however, do so. By the plain language of the applicable statute, such a limitations period does not exist. Accordingly, we urge the legislature to address this issue.

Id. at 394. Lastly, the court was required to determine "what limitations period applies to Hughley's suit." Id. at 395. The court explained:

Neither section 4-5-225 nor any other provision of the Act expressly provides a limitations period for a suit for declaratory judgment following an agency's summary refusal of a petition for declaratory order. Our Court of Appeals has recognized that "when a petition for declaratory judgment seeks the same relief that is otherwise available in another statutory proceeding, then the filing of the declaratory judgment is governed by the statute of limitations governing that statutory proceeding." Newsome v. White, No. M2001-03014-COA-R3-CV, 2003 WL 22994288, at *4 (Tenn. Ct. App. Dec.22, 2003) (citing Dehoff v. Attorney General, 564 S.W.2d 361, 363 (Tenn. 1978)). In this case, however, Hughley is not seeking the same relief that is otherwise available in another statutory proceeding. As noted by our Court of Criminal Appeals, "[t]he validity of any sentence reduction credits must be addressed through the avenues of the Uniform Administrative Procedures Act." Carroll v. Raney, 868 S.W.2d 721, 723 (Tenn. Crim. App. 1993) (emphasis added). Accordingly, Hughley's complaint is covered by Tennessee's general ten-year statute of limitations. See Tenn. Code Ann. § 28-3-110 (2000) ("The following actions shall be commenced within ten (10) years after the cause of action accrued: ... (3) All other cases not expressly provided for.").

Id. (emphasis by underlining added, italics in original). The supreme court broadly stated its conclusion as follows:

Where an agency declines to convene a contested case hearing in response to a petition for declaratory order made pursuant to Tennessee Code Annotated section 4-5-223 and issues only a letter of denial, a petitioner has ten years in which to file a suit for declaratory judgment pursuant to Tennessee Code Annotated section 4-5-225.

Id. However, we believe that the supreme court did not mean to foreclose the possibility that another statute of limitations might apply "'when a petition for declaratory judgment seeks the same relief that is otherwise available in another statutory proceeding, '" and in that case, "'the filing of the declaratory judgment is governed by the statute of limitations governing that statutory proceeding.'" Id. (quoting Newsome, 2003 WL 22994288, at *4).[8] Indeed, contrary to Nunn's position on appeal, this Court has cited Hughley for the notion that "[t]here is no universal statute of limitations applicable to all actions for declaratory judgment." Witty v. Cantrell, No. E2010-02303-COA-R3-CV, 2011 WL 2570754, at *9 (Tenn. Ct. App. June 29, 2011); see also Allen v. City of Memphis, 397 S.W.3d 572, 582 (Tenn. Ct. App. 2012).

         Again, because declaratory judgment actions do not have a specific statute of limitations applicable to them "as such, " we must "ascertain the nature of the substantive claims sought to be asserted" in the action in order to determine the applicable statute of limitations. Dehoff, 564 S.W.2d at 363. And, according to Hughley, we must consider whether Nunn's petition for declaratory judgment "'seeks the same relief that is otherwise available in another statutory proceeding.'" Hughley, 208 S.W.3d at 395 (quoting Newsome, 2003 WL 22994288, at *4).

         2. The Declaratory Claims asserted by Nunn

         a. Section 1983 Claim

         42 U.S.C. section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

(Emphasis added.) "Section 1983 creates a private cause of action for citizens whose federal constitutional rights have been violated by persons acting under color of state law." Payne v. Breuer, 891 S.W.2d 200, 202 (Tenn. 1994).

         Nunn's amended complaint alleged that section 1983 "prohibits the State of Tennessee from depriving [Nunn] of the 'rights, privileges, and immunities secured by the constitution[ and] laws' in the United States." The amended complaint alleged that the federal constitutional violations Nunn alleged in his previous counts for declaratory relief under state law also "constitute violations of ...


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