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Budget Charters, Inc. v. Pitts

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

April 11, 2018

IVAN PITTS, in his individual capacity as a Tennessee State Highway Patrolman; WILLIAM MATSUNAGA, in his individual capacity as a Tennessee State Highway Patrolman; BOBBY BARKER, in his individual capacity as a Tennessee State Highway Patrolman; RONNIE SIMMONS, in his individual capacity as a Tennessee State Highway Patrolman; KENT NORRIS, 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.



         Defendants Richard Roberts and Bill Gibbons, in their individual capacities, and Ivan Pitts, William Matsunaga, Tennessee Department of Safety and Homeland Security (“TDSHS”) Commissioner David W. Purkey, and Tennessee Department of Revenue (“TDR”) Commissioner David Gerregano, in their official capacities, have filed a Motion to Dismiss Third Amended Complaint (Docket No. 44), to which Budget Charters, Inc. (“Budget”) and Allen Newcomer have filed a Response (Docket No. 49). Defendants Bobby Barker, Ronnie Simmons, and Kent Norris, in their official capacities, have also filed a Motion to Dismiss Third Amended Complaint (Docket No. 56), to which Budget and Newcomer have filed a Response (Docket No. 58). For the reasons set forth herein, Roberts, Gibbons, Pitts, Matsunaga, Purkey, and Gerregano's motion will be granted in part and denied in part, and the motion filed by Barker, Simmons, and Norris will be granted. The court will dismiss all claims against Roberts and Gibbons, as well as all claims for damages against Pitts, Matsunaga, Barker, Simmons, and Norris in their official capacities. All other claims against Pitts, Matsunaga, Barker, Simmons, and Norris, as well as the claims against Purkey and Gerregano in their official capacities, will remain pending.


         Budget Charters, Inc. (“Budget”) operates charter buses. It is based in Pennsylvania and owned by Gary and Natalie Shimshock. (Docket No. 41 ¶ 1.) Allen Newcomer is a driver employed by Budget. (Id.) On April 21, 2016, Newcomer was operating a Budget bus in Davidson County, Tennessee, in connection with a trip chartered by a group consisting primarily of high school students. (Id. ¶¶ 11-13.) While the students were in a museum at Nashville's Centennial Park, Newcomer waited on a park bench reading a book until he was approached by three members of the Tennessee State Highway Patrol (“TSHP”), Sergeant Ronnie Simmons, Sergeant Kent Norris, and Trooper Bobby Barker. Budget and Newcomer maintain that Newcomer had given the patrolmen no basis for reasonable suspicion of any illegal activity and that Budget's bus had no obvious safety problems. Barker, Simmons, and Norris nevertheless “told Plaintiff Newcomer that they wanted to examine the bus” to perform a safety inspection. (Id. ¶ 14.)

         Upon performing their inspection, the patrolmen informed Newcomer that they had concluded that one of the bus's tires was in unsafe condition. One of the patrolmen placed a red tag on the bus, indicating that it could not lawfully be moved. (Id. ¶ 15.) Newcomer telephoned Gary Shimshock, and Shimshock spoke to one of the patrolmen about the situation. Shimshock requested that Newcomer be allowed to drive the bus to a nearby tire store or service station to purchase a new tire or install a spare, but the patrolmen rejected Shimshock's suggestions. (Id. ¶ 16.) Eventually, Newcomer's student passengers began returning to the bus from the museum. The patrolmen warned the passengers that the bus was extremely unsafe and prevented them from reboarding. (Id. ¶ 17.) At some point shortly thereafter, however, Simmons and Norris concluded-the plaintiffs claim, correctly-that the tire in question was not, in fact, unsafe and that the red tag could be removed. (Id.)

         Despite the red tag's being removed, Barker announced that he intended to follow the bus back to the passengers' hotel, where he would continue the safety inspection. (Id. ¶ 18.) The patrolmen also retained Newcomer's log book, medical certifications, and driver's license, as well as the bus's registration. (Id.) Newcomer began driving the bus to the hotel, but, while on Briley Parkway, the bus's engine began to overheat due to a broken hose clamp. The overheating triggered a mechanism that caused the bus's engine to shut down momentarily, although the overheating did not fully disable the bus, which remained capable of restarting and continuing on to its destination. Apparently detecting that something was amiss, Barker turned on his vehicle's blue lights, requiring Newcomer to pull the bus to the side of the road. (Id. ¶¶ 21-22.)

         Newcomer got off the bus. (Id.) Meanwhile, Trooper Ivan Pitts and Lieutenant William Matsunaga were called to the scene. (Id. ¶¶ 23-25.) Pitts performed alcohol field sobriety tests on Newcomer, which did not suggest that he had been consuming alcohol. Newcomer did admit, however, that he possessed Vicodin, for which he had a prescription related to a herniated disc, and that he had taken one Vicodin pill the day before. The patrolmen informed Newcomer's passengers that Newcomer was under the influence of drugs and was under arrest and that the passengers, therefore, would have to find some other way to reach the hotel. (Id. ¶ 23.)

         After arresting Newcomer, Pitts and Matsunaga attempted to have him submit to a jail-administered drug screen. Newcomer, however, had been in intermittent contact with Shimshock throughout the encounter with the patrolmen, and Shimshock insisted that the drug screen be performed by a third party. Quest Diagnostics (“Quest”) performed a drug screen on Newcomer at 3:25 p.m., a bit over four hours after the bus had been pulled over. The Quest testing was negative for all covered drugs, as was corroborative screening performed later by the Tennessee Bureau of Investigation. (Id. ¶¶ 21-27.)

         Nevertheless, Newcomer was taken before a night commissioner 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 the prescribed Vicodin and the presence of a straw on the bus. (Id. ¶¶ 28-29.) The night commissioner relied on an affidavit from Pitts, claiming that he observed Newcomer as having “a white powdery substance in his nostrils.” Matsunaga was listed as the arresting officer. (Id.) Newcomer maintains that none of the troopers mentioned any white powdery substance to him during his initial interaction with them outside the museum; that there had not, in fact, been any white powdery substance on his face or shirt; and that there had been numerous straws left on the bus by students who had been using them with their beverages. (Id. ¶ 30.) Newcomer was taken to jail for the night, and Gary and Natalie Shimshock posted his bail the next day. (Id. ¶ 31.)

         The State eventually entered a nolle prosequi on all of the charges against Newcomer, 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. ¶¶ 33-34.) Budget claims to have lost a substantial amount of business because of the negative publicity surrounding the arrest and to have been forced to expend a significant amount of money on a public relations company to attempt to salvage its reputation. Budget also had to pay for another bus company to take Newcomer's passengers to their hotel after Newcomer was arrested, and it was forced to defend itself in a lawsuit from the passengers' organization. (Id. ¶ 35.)

         The plaintiffs now maintain that the patrolmen's treatment of Newcomer was part of a broader pattern of targeting and harassing out-of-state tour buses-a pattern that Gary Shimshock learned about from a representative of the Tennessee Motor Coaches Association (“TMCA”). The TMCA representative apparently singled out some or all of the defendant patrolmen as involved in that practice. (Id. ¶¶ 26, 36, 51.) The plaintiffs allege that former TDSHS Commissioner Bill Gibbons and former TDR Commissioner Richard Roberts failed in their respective duties, under Tenn. Code Ann. § 65-15-101, [2] to adequately oversee the TSHP, leading to widespread disregard of TSHP's statutory and constitutional responsibilities. (Id. ¶¶ 38-42.) The plaintiffs fault Gibbons and Roberts-as well as their successors, Purkey and Gerregano-for having failed to promulgate regulations that would have prevented the patrolmen's treatment of Newcomer. (Id. ¶¶ 41-43.)

         On April 19, 2017, Budget and Newcomer filed their initial Complaint, alleging various constitutional and statutory violations related to the search and seizure of the bus and the arrest of Newcomer. (Docket No. 1.) In the original Complaint, the only patrolmen named by the plaintiffs were Pitts and Matsunaga. The plaintiffs also named Purkey and Gerregano, but not Gibbons or Roberts. (Id. at 1.) The named defendants filed a Motion to Dismiss (Docket No. 7) noting, among other things, that Gerregano had not been in office when the events at issue took place. (Docket No. 8 at 2.) On May 19, 2017, the plaintiffs filed a First Amended Complaint, adding Gibbons and Roberts as defendants in their individual capacities. (Docket No. 11.) The court denied the pending Motion to Dismiss as moot in light of the original Complaint's having been superseded by the First Amended Complaint. (Docket No. 13.) The defendants filed a fresh Motion to Dismiss on June 2, 2017. (Docket No. 15.) The defendants argued, among other things, that Budget and Newcomer lacked standing to seek injunctive relief against the defendants, because their alleged injuries were the result of one isolated course of events that took place when Budget, an out-of-state business, happened to be contracted for a trip into Tennessee. (Docket No. 16 at 5-7.) Budget and Newcomer filed a Motion for Leave to Amend First Amended Complaint, seeking to add allegations clarifying that Budget had continued to provide charter buses for trips to Nashville on an ongoing basis. (Docket No. 20; Docket No. 20-1 at 2.) The court granted leave to amend and denied the Motion to Dismiss as moot because the complaint had again been superseded. (Docket No. 21; Docket No. 23.)

         The defendants filed a Motion to Dismiss Second Amended Complaint on July 17, 2017. (Docket No. 25.) While that motion was pending, Budget and Newcomer learned, via the defendants' Rule 26 disclosures, that some of the actions that their complaints had attributed to Pitts had actually been performed by Barker, Simmons, and/or Norris. (Docket No. 35-3 at 1-2.) The plaintiffs filed a Motion for Leave to Amend Second Amended Complaint, seeking to add Barker, Simmons, and Norris as defendants and to revise the operative complaint's allegations to reflect the plaintiffs' newfound better understanding of which actions had been performed by which highway patrolmen. (Docket No. 34.) The court granted the Motion for Leave to Amend and denied the pending Motion to Dismiss as moot. (Docket No. 40 at 14-15.)

         In the Third Amended Complaint, each of Pitts, Matsunaga, Barker, Simmons, and Norris is named “in his individual capacity as a Tennessee State Highway Patrolman.” Gibbons and Roberts are named in their individual capacities only, and Purkey and Gerregano are named in their official capacities only. (Docket No. 41 at 1.) The plaintiffs plead claims pursuant to 42 U.S.C. §§ 1983 and 1988 for (1) violation of Newcomer and/or Budget's constitutional rights to equal protection of the laws, freedom from deprivation of liberty without due process, freedom from unreasonable searches and seizures, freedom from cruel and inhumane treatment, and freedom from interference in interstate commerce; and (2) violation of Newcomer and/or Budget's rights, under the U.S. Department of Transportation's motor carrier safety assistance program, to be subject to safety inspections only in certain identified situations and settings, 49 U.S.C. § 31102(c)(2)(W). (Docket No. 41 ¶¶ 46-59.)

         On November 28, 2017, Pitts, Matsunaga, Roberts, Gibbons, Purkey and Gerregano filed a joint Motion to Dismiss Third Amended Complaint pursuant to Rule 12(b)(1) and 12(b)(6). (Docket No. 44.) With regard to Pitts and Matsunaga, the motion addresses only claims lodged against them in their official, not individual, capacities.[3] (Id. at 1.) On February 1, 2018, Barker, Simmons, and Norris filed a Motion to Dismiss Third Amended Complaint, also pursuant to Rule 12(b)(1) and 12(b)(6), which similarly focuses only on the claims against them in their official, not individual, capacities. (Docket No. 56.)


         A. Rule 12(b)(1)

         “Rule 12(b)(1) motions to dismiss . . . generally come in two varieties: a facial attack or a factual attack.” Genetek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). When a Rule 12(b)(1) motion contests subject matter jurisdiction factually, the court must weigh the evidence in order to determine whether it has the power to hear the case, without presuming the challenged allegations in the complaint to be true. Id.; DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). When the facts are disputed in this way, “[t]he district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary, ” without converting the motion into one for summary judgment. Cooley v. United States, 791 F.Supp. 1294, 1298 (E.D. Tenn. 1992), aff'd sub nom. Myers v. United States, 17 F.3d 890 (6th Cir. 1994); see also Genetek, 491 F.3d at 330. It is then the plaintiff's burden to show that jurisdiction is appropriate. DLX, 381 F.3d at 511. If a Rule 12(b)(1) motion challenges subject matter jurisdiction based on the face of the complaint, to the contrary, the plaintiff's burden is “not onerous, ” and the plaintiff need only demonstrate that the complaint alleges a “substantial” federal claim, meaning that prior decisions do not inescapably render the claim frivolous. Musson Theatrical Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996). A ...

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