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Garth v. Hommrich

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

January 3, 2020

TRACY MARIE GARTH, et al., Plaintiffs,
v.
BONNIE HOMMRICH, et al., Defendants.

          Waverly D. Crenshaw, Jr. Chief Judge

          REPORT AND RECOMMENDATION

          ALISXXIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE

         To The Honorable Waverly D. Crenshaw, Jr., Chief District Judge

         Plaintiff Tracy Marie Garth filed this action with counsel on April 25, 2017, asserting various claims under federal and state law on behalf of herself and her minor children that stem from her arrest on April 25, 2016, and the subsequent placement of her children in state custody. (Doc. No. 1.) In September 2017, Brandon Brown, the minor children's father, motion to intervene in the action arguing that, as the children's custodial parent, he has the right to control their claims. (Doc. No. 32.) The Court granted Brown's motion to intervene as unopposed. (Doc. No. 50.) Garth later filed a motion arguing that she has the superior right to assert the children's claims. (Doc. No. 57.) Almost two years later, the Court has yet to resolve this threshold question due to Garth's criminal prosecution, which concluded August 12, 2019, and, more recently, Garth's failure to respond to this Court's orders.

         On September 9, 2019, after the conclusion of Garth's criminal proceedings, the Court ordered Garth and Brown to file renewed motions for the right to control the minor children's claims by November 15, 2019. Garth did not file a renewed motion. On October 23, 2019, the Court granted Garth's counsel's motion to withdraw, ordering Garth to file a notice by November 7, 2019, informing the Court whether she had retained new counsel or would be proceeding pro se. (Doc. Nos. 98, 99). Garth did not respond to that order. On November 20, 2019, the Court expressed concern that Garth had abandoned her claims, and therefore ordered her to show cause by December 5, 2019, why her claims should not be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b). (Doc. No. 102.) Because Garth has not responded to that order, and for the reasons below, the Magistrate Judge will recommend that her claims be dismissed without prejudice under Rule 41(b) for failure to prosecute.

         I. Factual and Procedural Background

         Garth initiated this action by filing a complaint under 42 U.S.C. § 1983, the Tennessee Governmental Tort Liability Act (TGTLA), Tenn. Code Ann. § 29-20-101 et seq., and Tennessee common law. (Doc. No. 1.) According to the complaint's allegations, which are taken as true at this stage of the litigation, Garth pulled into a gas station in Franklin, Tennessee, around midnight on April 25, 2016. (Id.) She was traveling from her home in Alabama with her minor children, Plaintiffs ACB and CAB, to shop in Nashville. (Id.) Defendant Sgt. James Phillips of the Franklin Police Department approached Garth at the station and accused her of “passing a dump truck, striking an orange traffic cone, failing to stop for law enforcement, and speeding on I-65 North.” (Id. at PageID# 7, ¶ 15.) Garth was arrested and taken to the Williamson County Jail, where she was not allowed to speak with an attorney and was “threatened with tasing, harassed, intimidated, [and] strip searched . . . .” (Id. at PageID# 10, ¶ 35.)

         When their mother was arrested, ACB and CAB were left in the custody of Defendant Police Officer Adam Cowen, who transported them to the Franklin police station. (Doc. No. 1.) Before a Tennessee of Department and Children's Services (DCS) investigator arrived, ACB “suffered disfiguring burns to his mouth, chin and chest” caused by hot water. (Id. at PageID# 12, ¶ 42.) ACB was taken to Vanderbilt Children's Hospital, where he received emergency treatment. He and CAB were then placed in foster care in Tennessee. (Doc. No. 1.)

         Garth was released from jail on May 10, 2016, and began what became a prolonged battle with DCS to regain custody of ACB and CAB. (Id.) DCS allowed Garth only eight hours of supervised visitation with her children per month and sued her for child support. (Id.) ACB and CAB were released to the custody of their father in October 2016. (Id.) Garth was ultimately indicted on one count of reckless endangerment with a deadly weapon; two counts of evading arrest while operating a motor vehicle; two counts of travel on a closed road, speeding, violation of a no passing zone, and obedience to required traffic control device; and two counts of violation of the children restraint law. (Id.)

         Garth's complaint asserts the following claims on behalf of herself and ACB and CAB:

• Claims under § 1983 against DCS; former DCS Commissioner Bonnie Hommrich; DCS employees Emily Kirby, Sarah Fischer, Katherine Nabors, and Sarah Grey McCroskey; and four unknown DCS employees for violations of the First, Fourth, and Fourteenth Amendments;
• Claims under § 1983 against the City of Franklin; Franklin Police Officers Cowen, James Phillips, Charles Richards, and Jesus Coreno; and four unknown employees of the City of Franklin for violations of the Fourth, Eighth, and Fourteenth Amendments;
• Claims under § 1983 against Williamson County; former Williamson County Sheriff Jeff Long; Williamson County Deputy Sheriffs Evan Bohn, Brandon Rowe, Amber Pater, Cassie Skinner, and Danielle Telkamp; and four unknown employees of Williamson County for violations of the Fourth, Eighth, and Fourteenth Amendments;
• A claim under the TGTLA against the City of Franklin for negligent policing and ...

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