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Budget Charters, Inc. v. Pitts

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

November 14, 2017

BUDGET CHARTERS, INC., and ALLEN NEWCOMER, Plaintiffs,
v.
IVAN PITTS, in his individual capacity as a Tennessee State Highway Patrolman, WILLIAM MATSUNAGA, in his individual capacity as a Tennessee State Highway Patrolman, BILL GIBBONS, in his individual capacity, DAVID W. PURKEY, in his official capacity as COMMISSIONER, TENNESSEE DEPARTMENT OF SAFETY AND HOMELAND SECURITY, RICHARD ROBERTS, in his individual capacity, and DAVID GERREGANO, in his official Capacity as COMMISSIONER, TENNESSEE DEPARTMENT OF REVENUE, Defendants.

          MEMORANDUM & ORDER

         Budget Charters, Inc., (“Budget”) and Allen Newcomer have filed a Motion for Leave to Amend Second Amended Complaint (Docket No. 34), to which the several above-named defendants filed a Response (Docket No. 36), and the plaintiffs filed a Reply (Docket No. 39). For the reasons stated herein, Budget and Newcomer's motion will be granted.

         I. BACKGROUND & PROCEDURAL HISTORY [1]

         Budget is a Pennsylvania-based operator of charter buses. (Docket No. 22 ¶ 12.) Newcomer is a driver employed by Budget. (Id. ¶ 1.) On April 21, 2016, Newcomer was operating a Budget bus in Davidson County, Tennessee, in connection with a trip chartered by a Pennsylvania-based group consisting primarily of high school students. (Id. ¶¶ 12-13.) While the students were in a museum, Newcomer waited on a bench reading a book until, in the words of the Second Amended Complaint:

A Tennessee Highway Patrol officer, believed to be Ivan Pitts, approached Plaintiff Newcomer for unspecified reasons and with no possible reasonable suspicion of criminal activity. The officer told Plaintiff Newcomer that he wanted to examine the bus. Defendant Pitts' decision to perform a safety inspection was arbitrary and unpredictable. The bus had no obvious safety problems.

(Id. ¶ 14.) What ensued was a lengthy series of interactions, involving multiple officers, both at the site of the museum and later along the side of Briley Parkway, that resulted in Newcomer's being arrested and charged with unlawful use of drug paraphernalia, unlawful possession of a controlled substance, and driving under the influence-related, apparently, to Newcomer's possession of Vicodin for which he had a prescription and the presence of a straw or straws either on the bus or on his person. (Id. ¶¶ 14-30.) The State eventually entered a nolle prosequi with regard to those charges, and they were expunged-but only after a number of local Pennsylvania news stories about the incident, including reports mentioning Newcomer and Budget by name. (Id. ¶¶ 32-33.) On April 19, 2017, Budget and Newcomer filed their initial Complaint, alleging various constitutional violations related to the search of the bus and the arrest of Newcomer. (Id. ¶¶ 45-55.) Among the named defendants were Pitts and another Tennessee Highway Patrol officer, William Matsunaga. (Id.)

         When Budget and Newcomer received the Defendants' Initial Rule 26 Disclosures on August 23, 2017, however, they learned that the early actions that they had attributed to Pitts had actually been performed by a different officer, Bobby Barker, who was assisted by officers Ronnie Simmons and Kent Norris. (Docket No. 35-3, at 1-2.) Pitts had indeed been involved in the events giving rise to this case, but only later, after being called to the location where the bus was stopped off of Briley Parkway. (Id. at 2.) By the time Budget and Newcomer received the Disclosures, the defendants had already filed a Motion to Dismiss (Docket No. 25), which remains pending. On October 19, 2017, Budget and Newcomer filed the instant Motion For Leave to Amend. (Docket No. 34.)

         In addition to adding Barker, Simmons, and Norris as defendants, the Proposed Third Amended Complaint revises a number of allegations to attribute previously described actions to those new defendants. The table below reflects the key changes:

Second Amended Complaint (Docket No. 22)

Proposed Third Amended Complaint (Docket No. 34-1)

14

At about 10:00 a.m., while the group was in the museum, Plaintiff Newcomer was sitting on a park bench reading a book. A Tennessee Highway Patrol officer, believed to be Ivan Pitts, approached Plaintiff Newcomer for unspecified reasons and with no possible reasonable suspicion of criminal activity. The officer told Plaintiff Newcomer that he wanted examine the bus. Defendant Pitts' decision to perform a safety inspection was arbitrary and unpredictable. The bus had no obvious safety problems.

14

At about 10:00 a.m., while the group was in the museum, Plaintiff Newcomer was sitting on a park bench reading a book. Tennessee Highway Patrolmen Trooper Bobby Barker, Sergeant Simmons, and Sergeant Norris approached Plaintiff Newcomer for unspecified reasons and with no possible reasonable suspicion of criminal activity. The Tennessee Highway Patrolmen told Plaintiff Newcomer that they wanted to examine the bus. The decision of Defendants Trooper Barker, Sergeant Simmons and Sergeant Norris to perform a safety inspection was arbitrary and unpredictable. The bus had no obvious safety problems.

17

Soon thereafter, an as-yet unidentified Tennessee Highway Patrol (“THP”) officer either arrived at the Parthenon on his own initiative or was summoned by Defendant Officer Pitts. This THP officer correctly noted that the tire was ok and instructed Defendant Officer Pitts to remove the red tag. At that point, any reasonable suspicion, if there had been any suspicion on the part of Defendant Officer Pitts, vanished.

17

Soon thereafter, Sergeant Simmons or Sergeant Norris correctly noted that the tire was ok and that the red tag should be removed. At that point, any reasonable suspicion, if there had been any suspicion on the part of these Defendants[, ] vanished.

18

Without any reason, Defendant Officer Pitts stated that he was going to follow the bus back to the hotel and finish the inspection. The bus then proceeded on toward its next destination, the Days Inn at Opryland. Defendant Officer Pitts had retained Plaintiff Newcomer's log book, medical certifications and driver's license. He also had retained the registration papers for the vehicle and they have never been returned. These actions of Defendant Officer Pitts in restricting the freedom of Plaintiff Newcomer constitute an unconstitutional, warrantless arrest without reasonable suspicion and without probable cause.

18

Without any reason, Trooper Barker stated that he was going to follow the bus back to the hotel and finish the inspection. The bus then proceeded on toward its next destination, the Days Inn at Opryland. Defendants had retained Plaintiff Newcomer's log book, medical certifications and driver's license. They also retained the registration papers for the vehicle and they have never been returned. These actions of Defendants Trooper Barker, Sergeant Simmons and Sergeant Norris in restricting the freedom of Plaintiff Newcomer constitute an unconstitutional, warrantless arrest without reasonable suspicion and without probable cause.

19

At no point, while the bus was parked outside the Parthenon, did Officer Pitts, or any other law enforcement officer, express any concern that Newcomer might be under the influence or that he had white powdery substance in his nose.

19

At no point, while the bus was parked outside the Parthenon, did Trooper Barker, Sergeant Simmons or Sergeant Norris, express any concern that Plaintiff Newcomer might be under the influence or that he had white powdery substance in or around his nose.

20

It would be clear to a reasonable officer that Defendant Officer Pitts' conduct was unconstitutional and unlawful in the situation described.

20

It would be clear to a reasonable officer that the conduct of Trooper Barker, Sergeant Simmons and Sergeant Norris was unconstitutional and unlawful in the situation described.

22

Defendant Officer Pitts turned on his blue lights and required Plaintiff Newcomer to pull the bus over to the side of the road. Plaintiff Newcomer got off the bus and Defendant Pitts never permitted him to get back on the bus.

22

Defendant Trooper Barker, who was following Plaintiff Newcomer and Plaintiff Budget Charters' bus, turned on his blue lights and required Plaintiff Newcomer to pull the bus over to the side of the road on Briley Parkway. Plaintiff Newcomer got off the bus and the Tennessee Highway Patrolmen never permitted him to get back on the bus.

N/A

23

One of the Tennessee Highway Patrolmen called Defendant Trooper Ivan Pitts to come to Briley Parkway where the bus was located.

29

Defendant Pitts did not mention any of these observations when he was at the Parthenon.

30

Defendants Trooper Barker, Sergeant Simmons and Sergeant Norris did not mention any of these observations when they were at the Parthenon.

41

Defendant Trooper Pitts had a history of noncompliance with [Tenn. Code Ann. §] 65-15-101 et seq., but Defendant Matsunaga, Defendant Gibbons and Defendant Roberts ignored Defendant Pitts' conduct.

42

Defendant Trooper Pitts had a history of noncompliance with [Tenn. Code Ann. §] 65-15-101 et seq., but Defendants Sergeant Simmons, Sergeant Norris, Lieutenant Matsunaga, Defendant Gibbons and Defendant Roberts ignored Defendant Trooper Pitts' conduct.

48

Defendant Pitts knowingly violated Plaintiffs' constitutional rights under the Fourth Amendment to be free from unreasonable searches and seizures.

49

Defendants Trooper Barker, Sergeant Simmons and Sergeant Barker [sic] knowingly violated Plaintiffs' constitutional rights under the Fourth Amendment to be free from unreasonable searches and seizures.

         In short, under the Proposed Third Amended Complaint, a number of actions previously attributed to Pitts alone would now be attributed collectively to Barker, Simmons, and Norris or to Barker alone; some actions previously attributed to an unnamed patrolman would now be attributed to Simmons and Norris; and some supervisory failures previously attributed to other named defendants would now be attributed to those defendants as well as to Simmons and Norris.

         II. LEGAL STANDARD

         Rule 15(a)(2) of the Federal Rules of Civil Procedure states that leave to amend should be freely given “when justice so requires.” In deciding whether to grant a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment. Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005). “Amendment of a complaint is futile when the proposed amendment would not permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cty., 408 F.3d 803, 817 (6th Cir. 2005) (citing Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980)).

         III. ANALYSIS

         The defendants argue that an amendment adding Barker, Simmons, and Norris as defendants would be futile because Budget and Newcomer's causes of action against those new defendants would be untimely. “The statute of limitations applicable to a § 1983 action is the state statute of limitations applicable to personal injury actions under the law of the state in which the § 1983 claim arises.” Eidson v. Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007). The applicable limitations period in Tennessee is one year. Tenn. Code Ann. § 28-3-104(a); see Howell v. Farris, 655 F. App'x 349, 351 (6th Cir. 2016). “Although the applicable time period is borrowed from state law, the ‘date on which the statute of limitations begins to run in a § 1983 action is a question of federal law.'” Howell, 655 F. App'x at 351 (quoting Eidson, 510 F.3d at 635). Under federal law, the limitations period ordinarily begins to run “when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. That is, the cause of action accrues upon the occurrence of the event that “should have alerted the typical lay person to protect his or her right.” Id. (quoting Kuhnle Bros., Inc. v. Cty. of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)). At that point, the plaintiff has a “complete and present cause of action” such that he may “file suit and obtain relief.” Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)). The allegedly unlawful search and arrest in this case took place on April 21, 2016. Because the original Complaint was filed within one year of that date, it was timely.

         Generally speaking, an amendment that “adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations.” In re Kent Holland Die Casting & Plating, 928 F.2d 1448, 1449 (6th Cir. 1991). Such an amendment “establishes a new and independent cause of action which cannot be maintained when the statute has run, for the amendment is one of substance rather than one of form and brings into being one not presently in court.” United State ex rel. Statham Instruments, Inc. v. W. Cas. & Surety Co., 359 F.2d 521, 523 (6th Cir. 1966). For example, where a plaintiff attempts to add additional defendant entities which were later found to have acted in concert with the original, properly named ...


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