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Harcrow v. Harcrow

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

August 12, 2019

CLYDE HARCROW, et al., Defendants.




         Pro se Plaintiff Mary Beth Harcrow (Harcrow) and her husband, Defendant Clyde Harcrow (C. Harcrow), are involved in divorce proceedings in Circuit Court in Sumner County, Tennessee. In this action, Harcrow alleges that her husband conspired with his divorce attorney, Defendant Joseph Y. Longmire; the Harcrows' adult daughter, Defendant Angelle Richardson; Defendant Leslie Harcrow (L. Harcrow), whose relation to the other parties is not stated; and police officers of Sumner County or the City of Millersville, Defendants John Does 1-99, to violate her civil rights and prevent her from divorcing C. Harcrow. Harcrow also alleges that Defendant District Attorney General Katherine Brown Walker refused to prosecute C. Harcrow for violating a protective order issued by a family court in Delaware that required C. Harcrow to stay away from their marital residence in Tennessee. Harcrow has sued the defendants under 42 U.S.C. § 1983 and various state-law theories. (Doc. No. 6.) Longmire, Walker, and Richardson have filed motions to dismiss. (Doc. Nos. 14, 24, 44.) For the reasons that follow, the Magistrate Judge will recommend that Longmire's and Richardson's motions be granted in part and denied in part and that Walker's motion to dismiss be granted. The Magistrate Judge will also recommend that Harcrow be granted leave to file a proposed second amended complaint.

         I. Background

         A. Factual History

         The factual context for this action is found across multiple filings, including Harcrow's first amended complaint, her motion for an emergency hearing and preliminary injunction, and state-court filings. In the interests of clarity and justice, the following factual history draws from those filings to present a chronological narrative of the events at issue in this action. See Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) (“A court may consider public records without converting a Rule 12(b)(6) motion into a Rule 56 motion.”); see also Simpson v. Baskin, No. 3:17-cv-01077, 2018 WL 1070897, at *2 (M.D. Tenn. Feb. 26, 2018) (considering allegations outside of pro se plaintiff's complaint in ruling on Rule 12(b)(6) motion because plaintiff could move to amend her complaint to include those allegations), report and recommendation adopted by 2018 WL 1288908 (M.D. Tenn. Mar. 13, 2018). The facts as Harcrow states them are taken as true for purposes of ruling on the motions to dismiss.

         In July 2017, Harcrow discovered that C. Harcrow, her husband of thirty-six years, had been living a “double life” to conceal romantic affairs. (Doc. No. 6, PageID# 57.) When Harcrow confronted her husband, he began a campaign to “silence” her accusations and prevent her from initiating a divorce. (Id.) With the help of the Doe Officers, C. Harcrow used “police resources, technology, and databases” to stalk Harcrow, intercept and obstruct her telecommunications and email, and otherwise harass and intimidate her. (Id.) In the fall of 2017, C. Harcrow attempted to poison Harcrow, abandoned her on the side of the road, raped her twice, and physically assaulted her, causing a severe head injury. (Id. at PageID# 60-61.) Harcrow alleges that the assaults took place in Tennessee and Delaware. (Doc. No. 7.) Harcrow made repeated requests for police assistance during this time, which the Doe Officers ignored. (Doc. No. 6.) Harcrow alleges that the “other defendants, ” including Longmire, shared in the plan to violate her rights and “aided and abetted” C. Harcrow's campaign of violence. (Id. at PageID# 47.)

         On January 5, 2018, Harcrow obtained a temporary ex parte order of protection in the Family Court of the State of Delaware for New Castle County. (Doc. No. 6.) That order, which remained in effect until February 2, 2018, prohibited C. Harcrow from coming within 100 yards of Harcrow or attempting to contact her in any way. (Id.) On March 9, 2018, after a hearing, the Family Court entered a consent order that granted Harcrow “exclusive use and possession” of the marital residence in Goodlettsville, Tennessee (the Goodlettsville Property) and prohibited C. Harcrow from (1) coming within 100 yards of Harcrow's person or residence and (2) disposing in any way of property in which Harcrow has an interest. (Id.) The order states that it “complies with all requirements of [18 U.S.C. § 2265] and is entitled to full faith and credit in any State . . . .” (Id. at PageID# 99.) The Family Court further stated that the parties could not waive the terms of the order and would have to file a motion to modify or rescind it. (Id.) In the absence of such a motion, the order would be in effect until March 9, 2019. (Id.)

         At some point in 2018, Harcrow filed for divorce in the Circuit Court for Sumner County, Tennessee. (Doc. No. 7.) In that proceeding, C. Harcrow, who was represented by Longmire, filed a motion for permission to enter the Goodlettsville Property for the purpose of an inspection and inventory of the property. (Id.) The Circuit Court granted the motion on August 27, 2018, authorizing C. Harcrow and “a home inspector” to “gain entry to the home via locksmith, if necessary, on a date and time agreed to by [Harcrow's] counsel[, ]” in order “to inspect the status of the structure as well as inventory the personal property therein.” (Doc. No. 20-1, PageID# 386.) The court also noted that, “[b]y agreement of the parties, ” C. Harcrow could “have immediate possession of his pellet gun and clothing located within [the Goodlettsville Property].” (Id. at PageID# 386-87.)

         It appears that C. Harcrow was acting pursuant to the August 27, 2018 order on the morning of September 18, 2018, when Harcrow discovered him on the Goodlettsville Property “with crews of work men, some of whom were climbing on the roof of the property.” (Doc. No. 7, PageID# 104-105.) Harcrow characterizes this attempted inspection as a trespass that was “aided and abetted” by Longmire, Richardson, L. Harcrow, the Doe Officers, and District Attorney General Walker. (Doc. No. 6, PageID# 67, 77.) Harcrow called the police to report a burglary. (Doc. No. 7.) When the Doe Officers arrived, Harcrow showed them the protective order, but they claimed they were not bound to enforce it. (Doc. No. 7.) District Attorney General Walker then refused to prosecute C. Harcrow for violating the protective order. (Doc. No. 6.) Longmire, Richardson, and L. Harcrow tried to get the Doe Officers to arrest Harcrow, who refused to surrender the house. (Doc. No. 7.)

         C. Harcrow and Longmire responded by filing a motion in Circuit Court seeking to compel Harcrow to comply with the August 27, 2018 order. (Id.) The motion stated that C. Harcrow had hired a home inspector to inventory the contents of the Goodlettsville Property on September 18, 2018, “as agreed to by counsel” for both parties, and that, despite Harcrow's prior representation to the court that she would be in Arizona, she was physically present on the property and called the police. (Id. at PageID# 146.) The Circuit Court granted that motion on October 9, 2018. (Doc. No. 20-2.) The order authorized a home inspector, C. Harcrow, and his three adult daughters “to physically attend said inspection for the purposes of photography and inventorying the personal property within the marital residence . . .” on October 16, 2018. (Id. at PageID# 389.) The order added, inconsistently, that “only counsel of record or their staff may attend said inspection/inventory” and specifically prohibited Harcrow from being there. (Id. (emphasis in original).)

         It is not clear whether the October 16, 2018 inspection ever occurred. However, Harcrow alleges that C. Harcrow, Longmire, Richardson, L. Harcrow, and the Doe Officers trespassed on the Goodlettsville Property twice in November 2018, rifling through and converting Harcrow's personal property. (Doc. No. 50.) On December 18, 2018, the Family Court of the State of Delaware entered a consent order modifying the March 9, 2018 order to allow C. Harcrow to “return to [the Goodlettsville Property] as allowed by the Tennessee Court handling the parties' property division related to their divorce.” (Doc. No. 20-3, PageID# 394.)

         B. Procedural History

         On September 4, 2018, proceeding pro se, Harcrow initiated this action by filing a complaint that named C. Harcrow and unnamed police officers employed by the City of Millersville or Sumner County as defendants. (Doc. No. 1.) Before summonses had issued to any defendants, Harcrow filed a first amended complaint adding Longmire, Richardson, L. Harcrow, Walker, Sumner County, and the City of Millersville as defendants. (Doc. No. 6.)

         The first amended complaint contains four counts. Count I, which includes four separate counts, asserts claims against:

• C. Harcrow, the Doe Officers, Longmire, Richardson, and L. Harcrow under 42 U.S.C. § 1983, alleging that they conspired, “according to a common plan, ” to violate Harcrow's constitutional rights under the First, Sixth, and Fourteenth Amendments and, more specifically, her rights to “free speech, due process, privacy, and access to the judicial system/police protection . . .” (Doc. No. 6, PageID# 55);
• C. Harcrow, the Doe Officers, Longmire, Richardson, and L. Harcrow for violating Tennessee Code Annotated § 39-17-309, a criminal statute that prohibits intimidation of others to deter their exercise of civil rights, see Tenn. Code Ann. § 39-17-309(b);
• Sumner County or the City of Millersville under § 1983 for authorizing- through “lax and permissive policies and customs”-the illegal conduct of the Doe Officers (Doc. No. 6, PageID# 76); and
• Walker for violating various federal and state laws by refusing to prosecute C. Harcrow (id. at PageID# 77-78).[1]

Counts II through V assert claims against C. Harcrow under state law for physical assault and battery, sexual assault and battery, civil conversion, and intentional infliction of emotional distress. (Doc. No. 6.) Harcrow seeks damages for each of her claims. (Id.) She also requests an order declaring the conduct of the Doe Officers unconstitutional and a preliminary injunction requiring Sumner County and the City of Millersville “to adopt appropriate policies related to the proper use/misuse of Sumner County, or City of Millersville police technology, data systems, equipment, and resources[.]” (Id. at PageID# 88-89.)

         Harcrow filed a motion for an emergency hearing and preliminary injunction with her first amended complaint, asserting that C. Harcrow was trying to compel an inspection of the Goodlettsville Property and asking the Court to enjoin the defendants from any further attempts to violate the March 9, 2018 protective order. (Doc. No. 7.) Harcrow's motion did not describe her efforts to notify the defendants of her request for injunctive relief, and there was no indication that any of them had been served at the time the motion was filed. In an October 19, 2018 report and recommendation, the Magistrate Judge found that the only type of injunctive relief entered on an ex parte basis is a temporary restraining order and concluded that Harcrow had failed to show that one was justified in this case. (Doc. No. 10.) The Magistrate Judge recommended that the Court deny Harcrow's motion for an ex parte restraining order and defer ruling on her request for a preliminary injunction until all adverse parties had been served and received notice of it. (Id.)

         On February 20, 2019, after being served and making an appearance in this action, Longmire responded in opposition to Harcrow's motion for injunctive relief, arguing that the Court should decline to exercise jurisdiction over Harcrow's attempts to interfere with her pending divorce proceedings. (Doc. No. 20.) In support of his response, Longmire filed the October 9, 2018 order from the Circuit Court granting C. Harcrow's motion to compel inspection of the Goodlettsville Property and the December 18, 2018 ...

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