United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING STATE DEFENDANTS' MOTION FOR
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
provides a service desired by few yet needed by many: towing.
Because some needing a tow are unable to acquire it, the
Tennessee Department of Safety and Homeland Security
(“DOSHS”) maintains a “towing rotation
list.” This list is comprised of towing companies
meeting requirements outlined in the Towing Service Standards
Manual. The State does not employ or subcontract towing
services: it merely facilitates contact and access to listed
towing companies. Conversely, it provides towing companies
with reliable business-that is, for companies maintaining
their list placement.
lost its place on the State's towing rotation list and
now challenges various aspects of that removal pursuant to 42
U.S.C. § 1983. (ECF No. 1.) The Court previously
dismissed all but one of Plaintiff's claims against
Defendants Ricky Bratton, Curtis Mansfield Jr., and John
Albertson III (collectively “Defendants”). Thus,
the sole issue before the Court on summary judgment is
whether Plaintiff was owed and denied procedural due process
when Defendants removed Plaintiff from the State's towing
rotation list. (ECF No. 51.)
the Court is not reviewing Plaintiff's services or
charges, which were the subjects of the DOSHS's review.
Such an appellate review would have been within the Chancery
Koenigs, LLC, is a private company engaged in the towing and
recovery business. In 2013, Mr. Koenig applied for inclusion
on the DOSHS Towing Rotation List (“list”). (ECF
No. 51-3 at 2.) When he applied for list placement, Mr.
Koenig agreed to comply with the policies and procedures set
forth in the Tennessee Highway Patrol Towing Service
Standards Manual (“Manual”). Plaintiff
remained on the list until its permanent removal pursuant to
the Manual in 2017. (ECF No. 51-4 at 10.) The Manual's
scope, policies, and procedures, as applied at the time of
Plaintiff's removal from the list, are at the heart of
purpose of the Manual is “to state the policies,
procedures, and standards for Members of the [DOSHS] and for
towing companies in regards to towing service standards and
to further ensure the safe and efficient removal, storage[, ]
and safekeeping of any and all vehicles being towed by and
placed into custody of such towing companies.” (ECF No.
58-6 at 2.) In furtherance of this purpose, the Manual
regulates various aspects of towing services performed by its
members. (See ECF No. 58-6.)
a vehicle owner's request for a specific towing company,
the Tennessee Highway Patrol (“THP”) calls only
listed towing companies. The list's establishment
protects Tennessee drivers by ensuring “that the towing
company is reputable, reliable, possesses adequate equipment,
and qualified employees; [t]hat the towing company is
properly licensed and insured; and [t]hat the towing company
charges a fair, equitable, and reasonable rate for
services rendered.” (ECF No. 58-6 at 2) (emphasis
added). Advancing the latter, the Manual requires that rates
“be reasonable, fair, and equitable to all persons
whose vehicles are towed at the request of the DOSHS.”
(ECF No. 58-6 at 25.) Plaintiff is found to have violated
this provision. (See ECF No. 51-4 at 10.)
9, 2016, a tractor trailer owned by TNJ Trucking Company
crashed on Pyburn Road in Hardin County, Tennessee. (ECF No.
51-3 at 20.) The DOSHS called Plaintiff to the scene to
perform towing and recovery services. Plaintiff cleaned up
the accident site and billed TNJ Trucking Company $45, 090.00
for its services. (ECF No. 58-8 at 5.) After payment was
remitted (ECF No. 58-8 at 8), TNJ Trucking Company or its
insurer submitted a complaint to DOSHS Lieutenant Ricky
Bratton alleging that Plaintiff overcharged TNJ Trucking
Company for the services provided.
Bratton sent Plaintiff a letter on September 22, 2016,
notifying Plaintiff of two complaints filed against it. (ECF No.
51-3 at 20.) The letter cited one complainant as Noel
Williams, owner of TNJ Trucking Company, for excessive
charges related to the commercial vehicle crash on Pyburn
Road in Hardin County, Tennessee. (Id.) Lieutenant
Bratton requested that Plaintiff cooperate with his
investigation by providing information explaining the charges
(id.), but Plaintiff did not. (ECF No. 57 at 7.)
Bratton investigated and found that Plaintiff overcharged TNJ
Trucking Company in excess of $29, 000.00. (ECF No. 51-8 at
9.) Lieutenant Bratton reportedly reached his conclusion in
accordance with his years of experience, the rental rates he
was able to obtain for similar equipment that Plaintiff
rented, what the Manual states a towing company can charge,
Koenig's tow rate sheet, and the recommendation by
Lieutenant Sarah Lund (the District Wrecker Lieutenant in
Nashville) of the charges that she believed were allowed
based on her review of the bill. (ECF No. 57 at 8.)
Lieutenant Bratton submitted the findings of his
investigation to DOSHS Captain Mansfield on October 26, 2016.
(ECF No. 51-4 at 8.)
January 23, 2017, Captain Mansfield issued a Determination
that Plaintiff overcharged complainant TNJ Trucking Company
by $29, 126.28. (ECF No. 51-3 at 21.) Captain Mansfield cited
permanent removal from the list as the predetermined action,
because TNJ Trucking Company's complaint was
Plaintiff's third severe violation within a five-year
period. (Id.) In accordance with the Manual, a
Pre-removal Hearing was scheduled. (See Id. at 22.)
Determination informed Plaintiffs that the Pre-removal
Hearing would be conducted by Captain Mansfield on February
7, 2017. (Id.) The Hearing proceeded as planned.
(ECF No. 57 at 9.) Ronald and Trina Koenig, Defendant
Lieutenant Bratton, Defendant Captain Mansfield, and
Lieutenant Taylor were present. (Id. at 9.) Captain
Mansfield presided over the Hearing and first had Lieutenant
Bratton explain his determination of the charges.
(Id.) Then, Mr. and Mrs. Koenig were given an
opportunity to testify and produce any documentation that
they wanted Captain Mansfield to consider. (Id.)
Koenig stated that he had a separate contract for the cleanup
of the TNJ Trucking Company accident site and provided the
names of the individuals purported to have knowledge of the
agreements between the owner of the damaged load and
Plaintiff. (Id.) Additionally, Mr. Koenig showed
Captain Mansfield a photo of a Class A wrecker at the scene
to support his assertion that such a wrecker was present.
(Id. at 10.) Mr. Koenig did not, however, formally
submit this photo into evidence for Captain Mansfield to
consider. (Id.) Mr. Koenig also showed Captain
Mansfield a bank statement purportedly showing an entry
attributed to the rental charge for the skid steer that was
utilized. (Id.) Mr. Koenig similarly refused to
submit the bank statement into evidence. (Id.)
the Hearing, Captain Mansfield went to Git'er Done
Equipment Rental, where Plaintiff reported to have rented the
skid steer, in an attempt to ascertain Plaintiff's skid
steer rental fee. (Id. at 11.) The company's
inadequate record keeping prohibited Captain Mansfield from
accurately determining the amount Git'er Done charged
Mansfield also contacted the individuals with whom Mr. Koenig
stated there was a separate contract for the cleanup.
(Id.) Each person, however, denied having a separate
contract with Plaintiff. (Id.)
Captain Mansfield's investigation, he issued a Final
Determination permanently removing Plaintiff from the DOSHS
towing rotation list for the Jackson district. (ECF No.
51-7.) Plaintiff appealed the Final Determination to
Lieutenant Colonel John Albertson III. Pending the appeal,
Plaintiff remained on the DOSHS towing rotation list. (ECF
No. 51-7 at 3.)
to the Manual, Lieutenant Colonel Albertson III's review
of Captain Mansfield's Final Determination was based
“solely on the record compiled by the District Wrecker
Lieutenant [(Defendant Bratton)] and the District Captain
[(Defendant Mansfield)].” Such a review was required to
include “the District Wrecker Lieutenant's
investigatory report, the transcript of the hearing, and any
documentation submitted during the hearing.” (ECF No.
58-6 at 33.) On April 4, 2017, Lieutenant Colonel Albertson
III upheld Plaintiff's permanent removal from the list.
(ECF No. 51-4 at 10.)
could have appealed Lieutenant Colonel Albertson III's
decision to the Davidson County Chancery Court, but Plaintiff
did not. Instead, Plaintiff filed suit in this Court on June
9, 2017. (ECF No. 1.) The Court has since dismissed
Plaintiff's claims, with the exception of its allegation
that Defendants deprived Plaintiff of procedural due process
when they eliminated Plaintiff from the towing rotation list.
(ECF Nos. 33 and 48.) That issue is now before the Court on
summary judgment. (ECF No. 51.)
judgment is appropriate if the Court determines that there is
“no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “genuine issue of material
fact” is a fact which, if proven at trial, could lead a
reasonable jury to return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In considering whether summary judgment is
appropriate, the Court must “look beyond the pleadings
and assess the proof to determine whether there is a genuine
need for trial.” Sowards v. Loudon Cnty., 203
F.3d 426, 431 (6th Cir.), cert. denied, 531 U.S. 875
Court must view the evidence and all inferences drawn from
underlying facts “in the light most favorable to the
party opposing the motion.” See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574,
587 (1986); Gribcheck v. Runyon, 245 F.3d 547, 550
(6th Cir.), cert. denied, 534 U.S. 896 (2001). The
moving party must demonstrate “the absence of a genuine
issue of material fact as to at least one essential element
on Plaintiff's claim, ” at which point the
non-moving party “must present sufficient evidence from
which a jury could reasonably find for him.” Jones
v. Muskegon Cty., 625 F.3d 935, 940 (6th Cir. 2010).
only remaining claim in this case is for the deprivation of
procedural due process. Defendants assert that Plaintiff was
not entitled to due process; but, even if it was so entitled,
Defendants afforded due process. Conversely, Plaintiff
contends that it was entitled to due process and that its
rights were violated. The parties also disagree as to whether
Defendants are entitled to qualified immunity. For reasons
that follow, the Court finds that Defendants are entitled to
summary judgment in their favor as a matter of law.
Plaintiff's Response neither raises a genuine issue of
material fact nor responds to the merits of
Defendants' procedural due process analysis.
precedent prescribes that “[w]hen a plaintiff
‘fails to address [a claim] in response to a motion for
summary judgment,' the claim is deemed waived.”
Alexander v. Carter for Byrd, 733 Fed.Appx. 256, 261
(6th Cir. 2018) (quoting Haddad v. Sec'y, U.S. Dept.
of Homeland Sec., 610 Fed.Appx. 567, 568-69 (6th Cir.
2015) (citing Brown v. VHS of Mich., Inc., 545
Fed.Appx. 368, 372 (6th Cir. 2013))). “Where claims are
so waived, district courts in this Circuit grant summary
judgment as a matter of course.” Id.
while Plaintiff purports to address Defendants'
procedural due process arguments, Plaintiff instead relies
almost entirely on irrelevant claims and arguments. Plaintiff
does not address the issue by refuting case law or material
facts as set forth by Defendants. The Court is confounded by