United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
PB&J Towing Svc., I&II, LLC (“PB&J
Towing”) brings this action for due process violations
and civil conspiracy under 42 U.S.C. § 1983. (ECF No.
1.) Before the Court is Defendants Samuel Hines, Debra
Streeter, Karen Armstrong, Stacy Smith, Mark Taylor (the
“Individual Defendants”) and the City of
Memphis's (the “City”)(collectively, the
“Defendants”) Motion to Dismiss, filed on August
6, 2019. (ECF No. 40.) PB&J Towing responded on September
3, 2019. (ECF No. 46.) The Individual Defendants and the City
replied on September 12, 2019. (ECF No. 50.)
following reasons, Defendants' Motion to Dismiss is
GRANTED in part and DENIED in part.
following facts are taken from PB&J Towing's
Complaint and the ordinances of the City of Memphis:
Towing is a towing company that operates its
wreckerservice in Memphis, Tennessee. (ECF No. 1
¶ I.) Defendant Samuel Hines is the Commander of the
Traffic/Special Operations Division of the Memphis Police
Department. (Id. ¶ 2.) Defendants Debra
Streeter, Nathaniel Jackson,  Karen Armstrong, Stacy Smith, and
Mark Taylor were members of a panel, formed by the Memphis
Police Department, that reviewed the purported denial of
PB&J Towing's application to provide emergency
wrecker services for the City.(Id. ¶¶ 3-7.)
City of Memphis contracts with wrecker companies to provide
emergency services in different areas or “zones”
of the City. Memphis City Ord. § 6-88-29. Wreckers are
dispatched to accidents and other situations that require
prompt clearance of the roadway. Id. §§
6-88-10 & -26(D). The City dispatches wreckers from what
is known as a “police rotation list” (the
“Rotation List”). Id. Wrecker companies
must apply and comply with all applicable regulations to be
placed on the Rotation List. Id. §§
6-88-28(L) & -29(A). Once a wrecker service has been
approved to be on the Rotation List, it is assigned to one of
the City's zones and the City's Permit Office issues
decals to be displayed on each wrecker vehicle assigned to
the zone. Id. § 6-88-33.
19, 2017, PB&J Towing applied to provide emergency
wrecker services for Zone 6 of the City of Memphis. (ECF No.
1 ¶ 14.) The City inspected PB&J Towing's lot in
Zone 6 as part of the application process. (Id.
¶ 15.) After the inspection, the City raised issues
about PB&J Towing's lot. (Id. ¶ 16.)
PB&J Towing paid to fix those issues and, on June 30,
2017, PB&J Towing submitted a revised application.
(Id. ¶¶ 16-17.) After submission of the
revised application, the City conducted a second inspection
of PB&J Towing's lot in Zone 6. (Id. ¶
18.) After that inspection, the City approved PB&J
Towing's application to provide emergency wrecker
services and issued emergency wrecker decals to PB&J
Towing to be displayed on each wrecker vehicle assigned to
Zone 6. (Id. ¶ 19.) After receiving
its emergency wrecker decals, PB&J Towing did not receive
any emergency towing calls from the City. (Id.
¶ 21.) PB&J Towing inquired about the lack of calls.
September 7, 2017, Samuel Hines wrote to PB&J Towing to
inform it that its application had been denied “due to
sustained citizen complaints.” (Id. ¶
22.) Hines informed PB&J Towing that it had the right to
appeal his decision within five days. (Id.) PB&J
Towing timely appealed the decision, and, on September 28,
2017, Hines convened an appeal hearing before a panel
consisting of Defendants Streeter, Jackson, Armstrong, Smith,
and Taylor. (Id. ¶ 23.)
appeal hearing, the Individual Defendants provided PB&J
Towing with a list of alleged complaints and violations and
asked PB&J Towing to respond. (Id. ¶ 24.)
Because PB&J Towing was unprepared to respond, having
heard them for the first time, it asked for a continuance.
The hearing was reset to October 18, 2017. (Id.; ECF
No. 27 ¶ 24.) At the second hearing, the panel,
consisting of the same members,  voted to uphold Hines's
decision to deny PB&J Towing's application to provide
emergency wrecker services for the City. (ECF No. 1
August 14, 2018, PB&J Towing filed this lawsuit against
the City and Individual Defendants under 42 U.S.C. §
1983, alleging due process violations and a civil conspiracy
arising from PB&J Towing's removal from the Zone 6
emergency wrecker towing rotation. (ECF No. 1.) PB&J
Towing asserts that it was deprived of its constitutionally
protected procedural due process property interest under the
Fourteenth Amendment when Hines removed it from the Rotation
List without notice or hearing. (Id. ¶¶
29-34.) PB&J Towing contends that, after its removal from
the Rotation List, the Individual Defendants and the City
conspired to continue PB&J Towing's deprivation by
forming a panel for purposes of conducting a
“perfunctory hearing” to review Hines's
determination. (Id. ¶¶ 35-42; ECF No. 46-1
August 6, 2019, the Individual Defendants moved to dismiss
PB&J Towing's claims, arguing that they are entitled
to qualified immunity or quasi-judicial immunity from
PB&J Towing's due process claims, and that PB&J
Towing fails to plead sufficient facts to support its
conspiracy claim. (See ECF No. 40.)
Court has federal question jurisdiction. Under 28 U.S.C.
§ 1331, district courts have original jurisdiction
“of all civil actions arising under the Constitution,
laws, or treaties of the United States.” PB&J
Towing asserts violations of its constitutional rights and
seeks relief under 42 U.S.C. § 1983. (ECF No. 1 ¶
9.) Its claims arise under the laws of the United States.
Standard of Review
12(b)(6) allows dismissal of a complaint that “fail[s]
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion permits the
“defendant to test whether, as a matter of law, the
plaintiff is entitled to legal relief even if everything
alleged in the complaint is true.” Mayer v.
Mylod, 988 F.2d 635, 638 (6th Cir. 1993). A motion to
dismiss tests only whether the plaintiff has pled a
cognizable claim and allows the court to dismiss meritless
cases that would waste judicial resources and result in
unnecessary discovery. See Brown v. City of Memphis,
440 F.Supp.2d 868, 872 (W.D. Tenn. 2006).
evaluating a motion to dismiss for failure to state a claim,
the Court must determine whether the complaint alleges
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). If a court decides in light of its
judicial experience and common sense that the claim is not
plausible, the case may be dismissed at the pleading stage.
Iqbal, 556 U.S. at 679. The “[f]actual
allegations must be enough to raise a right to relief above
[a] speculative level . . . .” Twombly, 550
U.S. at 555.
is plausible on its face if “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. A complaint
need not contain detailed factual allegations. However, a
plaintiff's “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
Defendants argue that the Court should dismiss PB&J
Towing's claims because: (1) the Individual Defendants
are entitled to qualified immunity; (2) the Individual
Defendants are entitled to quasi-judicial immunity; and (3)
PB&J Towing does not sufficiently plead a civil
conspiracy claim. (ECF No. 40.)
Towing argues that its application to be added to the
Rotation List was approved by the City and that the Permit
Office's issuance of decals corroborates this.
(See ECF No. 1 ¶¶ 30-31; No. 46-1 at
198-204.) Because PB&J Towing was properly accepted and
added on to the Rotation List, Defendants acted to
remove PB&J Towing from the list, and thus,
deprived it of a vested property interest. (See id.)
argue that PB&J Towing's application was never
approved and that the issuance of the decals was an
administrative accident. (ECF No. 27 ¶¶ 19, 21.)
Because PB&J Towing's application was never approved,
Defendants' actions only served to deny PB&J
Towing's application. (See id.) Thus, Defendants
argue, there was no constitutional violation because any
property right PB&J Towing might have had never vested.
motion to dismiss stage, the court must accept as true all
well-pled factual allegations, construe the complaint in the
light most favorable to the plaintiff, and draw all
reasonable inferences in the light most favorable to the
plaintiff. Courtright v. City of Battle Creek, 839
F.3d 513, 518 (6th Cir. 2016); League of United Latin Am.
Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).
PB&J Towing has plausibly pled that its application was
approved by the City. (ECF No. 1 ¶¶ 29-34.) That
allegation is accepted as true.
immunity does not protect Hines from PB&J Towing's
due process claim because PB&J Towing plausibly alleges
that Hines violated its clearly-established due process
rights. PB&J Towing does not adequately allege that the