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Adkerson v. Metropolitan Government of Nashville and Davidson County

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

October 24, 2017




         Before the court is the Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 42) filed by the Metropolitan Government of Nashville and Davidson County (“Metro”). The motion has been fully briefed by both parties and is ripe for review. For the reasons set forth herein, the motion will be granted and this case dismissed.

         I. Factual and Procedural History

         Plaintiff Carey John Adkerson's first Amended Complaint (Doc. No. 12) asserted a procedural due process claim under 42 U.S.C. § 1983 and a whistleblowing claim under the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304(b), both in connection with his alleged termination from his job as a police officer with the Metro Nashville Police Department (“MNPD”). In January 2017, the court denied Metro's Motion to Dismiss the first Amended Complaint.

         On May 3, 2017, new counsel for the plaintiff entered an appearance and filed the Second Amended Complaint (“SAC”) (Doc. No. 41) on his behalf. The SAC articulates a single cause of action under 42 U.S.C. § 1983, but the factual allegations supporting the claim have shifted fairly dramatically from those set forth in the first Amended Complaint. For purposes of reviewing the defendant's motion, the court accepts as true the factual allegations in the SAC, summarized here in relevant part.

         Plaintiff Carey John Adkerson was formerly employed as a fully commissioned police officer with the MNPD. On January 6, 2014, Adkerson was decommissioned as an active police officer because of various disciplinary charges that were then pending against him. At a hearing conducted on March 5, 2014, he was found guilty of the charges and given two terminations and thirty-eight days of suspension. His employment was terminated. (SAC ¶¶ 21-22 & Ex. A.) He pursued an administrative appeal, and, on February 19, 2015, the Metro Civil Service Commission issued a written Order (“reinstatement Order”) directing that Adkerson “be reinstated to his former position with MNPD with back pay and benefits, minus a nineteen (19) day suspension.” (SAC ¶ 23 & Ex. B.)

         Adkerson was rehired by the MNPD in May 2015 with full back pay and benefits and, apparently, at the same salary level as before his termination, but the Chief of Police “refused to give him a badge and a weapon.” (SAC ¶ 24.) In other words, the plaintiff remained decommissioned. More than a year later, in July 2016, Adkerson submitted a grievance challenging the Police Chief's action and requesting that Adkerson's commission be “fully restored immediately.” (SAC Ex. C, Doc. No. 41-3, at 3.) The grievance was denied by the Human Resources Department and at the initial level of appeal. (SAC ¶ 26 & Ex. D.) Adkerson appealed to the Metro Human Resources Department, which denied his appeal on the basis that his complaint regarding his assignment within the police department was “non-grievable.” (SAC ¶ 27 & Ex. E.) He appealed to the Civil Service Commission, which entered a Final Order on November 16, 2016, also denying relief on the grounds that the matter was non-grievable and notifying Adkerson of his right to file a petition for review of the Final Order in the Chancery Court for Davidson County, Tennessee. (Final Order, SAC Ex. F.)[1]

         The SAC references and included as an exhibit to the SAC numerous MNPD Rules and Regulations, including Rule 3.50, which outlines the process for a police officer to appeal an adverse employment action taken against him, and 4.60, which pertains to decommissioning. As the plaintiff points out, Rule 3.50 did not apply to his situation, because Rule 4.60 “has no provision for appealing decommissioning.” (SAC ¶ 30; see also SAC Ex. G.) Further, Civil Service Commission Rule 6.9A, also attached to the SAC, states that actions that fall within “management rights to schedule and organize work, to make work assignments, and to prescribe methods and procedures by which work is performed” are not grievable. (SAC ¶ 32 & Ex. H.)

         Adkerson asserts that, without a badge or weapon, he cannot perform the essential duties of the job of a police officer and, therefore, that the Police Chief's refusal to issue him a weapon or badge constitutes a demotion. He also asserts that he had a property interest in his employment as a police officer with the MNPD and that the MNPD Rules and Regulations delineate a specific process available to officers who seek to challenge any adverse employment action taken against them, but the Rules and Regulations do not set out a process for appealing a decommissioning. Adkerson claims that the failure of the Rules and Regulations to provide a process for an officer to appeal a decommissioning, as a de facto demotion, constitutes a violation of his due process rights. (SAC ¶ 30.) Finally, he claims that the MNPD's refusal to reinstate him to his former position within the police department, without affording him either a pre-deprivation hearing or a post-deprivation hearing, violated the Civil Service Commission's Order that he be reinstated to his “former position with the MNPD” and also violated his right to procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution. (SAC ¶ 36.)

         Following the filing of the SAC, Metro promptly filed its Motion to Dismiss, which has now been fully briefed.

         II. Legal Standard

         The defendant's motion is brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims, ” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         The complaint's allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery, ” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action” but, instead, must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678- 79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556.

         III. ...

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