Montgomery v. Whidbee

• Decision Date: 27 February 2023
• Docket Number: 3:19-cv-00747
• Parties: GARY MONTGOMERY, Plaintiff, v. KENDRA WHIDBEE et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

1

GARY MONTGOMERY, Plaintiff, v. KENDRA WHIDBEE et al., Defendants.

No. 3:19-cv-00747

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

February 27, 2023

Waverly D. Crenshaw, Jr. Chief Judge

REPORT AND RECOMMENDATION

ALISTAIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE

This civil rights action arises out of pro se Plaintiff Gary Montgomery's pretrial detention in the custody of the Davidson County Sheriff's Office (DCSO). (Doc. No. 1.) Montgomery alleges that Defendant Kinya Jamison, a DCSO case manager, violated his constitutional rights and committed negligence by preventing him from submitting an absentee ballot application in time to vote in the November 2018 midterm elections. (Id.) The parties have filed cross-motions for summary judgment (Doc. Nos. 51, 60) that have been fully briefed and referred to the Magistrate Judge for report and recommendation.

For the reasons that follow, Jamison's motion for summary judgment will be granted and Montgomery's motion for summary judgment will be denied.

I. Factual and Procedural Background

A. Factual Background^[1]

The events addressed by Montgomery's claims took place in the fall of 2018 when Montgomery was a pretrial detainee in the custody of the DCSO. (Doc. No. 1.) On September 7, 2018, Jamison received an email from her supervisor Granvisse Earl (Doc. No. 62) with the subject “State & Federal General Election” (Doc. No. 60-3, PageID# 276). The email directed Jamison to “[s]ee attached documents to print for inmate absentee [b]allot and voting instructions . . . for those inmates that qualify for voting (registered voters) for the November 6, 2018 election.” (Doc. No. 60-3, PageID# 276.) The email stated that “[a]ll applications must be sent to the Election Commission by October 16, 2018[,]” which was twenty-one days before Election Day. (Id.)

Attached to the email was a two-page form titled Inmate Application For Absentee Ballot By Mail.^[2] (Doc. Nos. 60-3, PageID# 277; 62, PageID# 296, ¶ 1.) At the top of the form, in bold type, is a statement that the application must be “mailed to the county election commission where the voter is registered not more than ninety (90) days nor less than twenty-one (21) days prior to election day.” (Doc. No. 60-3, PageID# 277.)

INMATE APPLICATION FOR ABSENTEE BALLOT BY MAIL

This application must he mailed to the county election commission where the voter is registered not more than ninety (90) days nor less than twenty-one (21) days prior to election day.

(Doc. No. 60-3.)

The form requires the applicant to include criminal history information and information regarding current criminal charges. (Id.) It warns the applicant that a person who applies for a ballot and is not entitled to do so commits a felony offense. (Id.) The form must be signed under penalty of perjury and notarized. (Id.)

Jamison became Montgomery's DCSO case manager on or about September 18, 2018, when Montgomery was moved to the A2 housing pod. (Doc. No. 1.) At some point after Jamison became Montgomery's case manager, Montgomery told Jamison that he was moved to the A2 pod because he “expressed [his] personal opinion while making a call that people are intentionally not providing [him] with an absentee ballot so [he] can vote.” (Id. at PageID# 11.)

The parties disagree about when Jamison became aware that Montgomery had requested an absentee ballot application, when Montgomery received the application, and when Montgomery gave the application back to Jamison.

Jamison has provided her copy of the agenda from a community meeting held in the DCSO's A-Pod on October 10, 2018. (Doc. No. 60-4.) In the section of the agenda addressing “October Updates” and “Other Imperative Information,” an entry states:

Federal and State General Election is November 6, 2018. If your [sic] interested please let me know, however these applications are for those inmates that qualify for voting (registered voters). All applications must be sent to the Election Commission by October 16, 2018.

(Id. at PageID# 281.)

Underneath this entry is a handwritten notation: “(Montgomery, Soloman) (Pratt).” (Id.) Jamison states that she was made aware at the Community Meeting that Montgomery had asked for an absentee ballot application. (Doc. No. 62.) She states that Montgomery received the application at the Community Meeting and was told that the application had to be mailed by October 16, 2018. (Doc. No. 60-1.) Montgomery disagrees, stating that he received an application from Jamison “[o]n or about” October 8, 2018.^[3] (Doc. No. 1, PageID# 11.) Montgomery states that he completed the form on October 8, 2018, and gave the form to Jamison to be notarized on that day. (Doc. No. 1.) Jamison states that she received Montgomery's completed application on October 11, 2018, when Montgomery gave her the form and asked her to have it notarized. (Doc. No. 62.)

Jamison has provided her notes from the DCSO's case management system regarding interactions with Montgomery. A note entered on September 26, 2018, states that “CM Whidbee wanted to let me know if [Montgomery] requests to vote to give him the form. [Montgomery] has not requested at this time.” (Doc. No. 60-2, PageID# 274.) An entry on September 28, 2018, states that Jamison “rec[eived] envelope for [Montgomery] (from CM Whidbee) if he asks to vote.” (Id.) On October 11, 2018, Jamison noted that Montgomery “requested notary for [ ][i]nmate application for absentee ballot [by] mail. Request made to Supervisor [G. Earl] and document will be placed in her mailbox.” (Id. at PageID# 275.) An October 12, 2018 entry states “program manager earl notarized voters absentee ballot.” (Id.) The final provided entry, also made on October 12, 2018, states “[Montgomery] rec[eived] envelope from Elections Commission for mail (C/O stated that he requested information) - envelope was given to C/O Munos.” (Id.)

The parties agree that Earl notarized the application, that Jamison returned the application to Montgomery on October 12, 2018, and that Montgomery put the application in the mail that day. (Doc. Nos. 1, 62.) About two weeks later, Montgomery received a letter from the Election Commission stating that his application had been rejected because it was received too late. (Doc. No. 1.)

Jamison has provided the declaration of Davidson County Election Commission Administrator Jeff Roberts and a copy of Montgomery's application as it was received and processed by the Election Commission. (Doc. Nos. 60-5, 60-6.) The application shows that it was signed by Montgomery on October 12, 2018, and notarized by Earl on the same day. (Doc. No. 60-6.)

Roberts states that a note made on Montgomery's application shows that it was received on October 18, 2018. (Doc. No. 60-5.)

Oct. 18, 2018

INMATE APPLICATION FOR ABSENTEE BALLOT BY MAIL

This application must be mailed to the county election commission where the voter is registered not more than ninety (90) daps nor less than twenty-one (21) days prior to election day.

__declare that I am presently registered to vote at

(Doc. No. 60-6.)

The application is not signed by the Administrator of Elections, but is marked on the first page: “Rejected Rec[eived] too late[.]” (Id. at PageID# 283.)

Mongtomery provides a document with his opposition to Jamison's motion for summary judgment titled Information and Instructions for completing and mailing Inmate Applications and Absentee Ballots.^[4] (Doc. Nos. 79, 81.) It is an informational document, not a ballot application, and provides information specific to the Davidson County Election Commission. (Doc. No. 81.) The document instructs that an applicant must mail “the Inmate Application” to the county Election Commission office where the applicant is registered “no later than twenty-one (21) days prior to the Election Day.” (Id. at PageID# 354.) The document then states: “The deadline is Tuesday, October 16, 2018, to receive the completed application in the Election Commission office.” (Id.)

Information and Instructions for completing and mailing Inmate Applications and Absentee Ballots

Name and Date of Election: State and Federal General Election on November 6,2018

The inmate mails the Inmate Application to the Election Commission Office in the County in which the inmate is a registered voter no later than twenty-one (21} days prior to the Election Day. Davidson County residents mail the application to:

Davidson County Election Commission P.O. Box 650 Nashville, TN 37202

The deadline is Tuesday, October 16, 2018, to receive the completed application in the Election Commission office.

(Doc. No. 81.)

B. Procedural Background

Montgomery initiated this action by filing a complaint on August 16, 2019.^[5] (Doc. No. 1.) The Court granted Montgomery's application to proceed in forma pauperis and screened the complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A, finding that he had plausibly alleged that Jamison and Earl “were deliberately indifferent to [Montgomery's] loss of his only means of voting.” (Doc. No. 8, PageID# 49.) The Court also found that Montgomery plausibly alleged negligence claims against Jamison and Earl, “who allegedly undertook to provide voting assistance to [Montgomery] but did not do so in a timely fashion.” (Id. at PageID# 54.)

Jamison and Earl moved to dismiss Montgomery's complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that they were entitled to qualified immunity from Montgomery's § 1983 claim because they were not deliberately indifferent to Montgomery's right to vote and because the right to vote in the particular circumstances was not clearly established and entitled to statutory immunity from Montgomery's negligence claim under the Tennessee Governmental Tort Liability Act (TGTLA). (Doc. Nos....