Newsome v. Lee

• Decision Date: 29 April 2021
• Docket Number: No. 3:21-cv-00041,3:21-cv-00041
• Parties: THOMAS NEWSOME, Plaintiff, v. BILL B. LEE, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

THOMAS NEWSOME, Plaintiff, v. BILL B. LEE, et al., Defendants.

No. 3:21-cv-00041

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

April 29, 2021

JUDGE RICHARDSON

MEMORANDUM OPINION

Plaintiff Thomas Newsome filed a pro se Complaint against Tennessee Governor Bill B. Lee, Tennessee Bureau of Investigation ("TBI") Director David B. Rausch, the State of Tennessee, the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro"), and John and Jane Does. (Doc. No. 1.) Plaintiff also filed an application to proceed as a pauper. (Doc. No. 6.) The case is before the Court for a ruling on the application and initial review of the Complaint.

APPLICATION FOR LEAVE TO PROCEED AS A PAUPER

The Court may authorize a person to file a civil suit without paying the filing fee. 28 U.S.C. § 1915(a). According to the application, Plaintiff is 66 years old, disabled, and receives a small monthly income that is exceeded by basic expenses. (See Doc. No. 6.) Furthermore, he reports no significant discretionary expenses, cash reserves, or assets. (Id. at 2-3.) Accordingly, the Court finds that Plaintiff cannot pay the full civil filing fee in advance without undue hardship. The application will be granted.

INITIAL REVIEW OF THE COMPLAINT

Pursuant to statute, the Court must conduct an initial review and dismiss any complaint filed in forma pauperis if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see also Ongori v. Hawkins, No. 16-2781, 2017 WL 6759020, at *1 (6th Cir. Nov. 15, 2017) ("[N]on-prisoners proceeding in forma pauperis are still subject to the screening requirements of § 1915(e).").

A. STANDARD OF REVIEW

"Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). Even under this lenient standard, however, pro se plaintiffs must meet basic pleading requirements and are not exempted from the requirements of the Federal Rules of Civil Procedure. Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004); see also Young Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir. 2011) (explaining the role of courts is not "to ferret out the strongest cause of action on behalf of pro se litigants" or to "advis[e] litigants as to what legal theories they should pursue").

In reviewing the Complaint, the Court applies the standard for Rule 12(b)(6) of the Federal Rules of Civil Procedure. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court "must (1) view the Complaint in the light most favorable to Plaintiff and (2) take all well-pleaded factual allegations as true." Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). The Court must then consider whether those factual allegations "plausibly suggest an entitlement to relief,"Williams, 631 F.3d at 383 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)), that rises "above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court need not accept as true "unwarranted factual inferences," DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (quoting Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6th Cir. 2000)), and "legal conclusions masquerading as factual allegations will not suffice." Eidson v. Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007).

B. FACTUAL ALLEGATIONS

Liberally construing the Complaint, Plaintiff makes the following factual allegations.¹ In 1988, Plaintiff, a Black man, was convicted of aggravated rape and aggravated kidnapping in Davidson County, Tennessee. (Doc. No. 1 at 4.) Despite maintaining his innocence, Plaintiff received an effective custodial sentence of 55 years. (Id.) In January 2019, Plaintiff was paroled after serving 33 years. (Id.) He was told to report to the Tennessee Department of Correction ("TDOC") to register as a sex offender. (Id.) Upon reporting, Barbara Kay of the TDOC and her husband examined Plaintiff in a hotel room. (Id. at 6.)

In February 2020, Plaintiff wrote to TBI asking to be removed from the sex offender registry ("SOR"). (Id. at 5.) In June 2020, TBI denied Plaintiff's request on the ground that Tennessee law imposes lifetime registration and monitoring requirements upon persons convicted of a sexually violent offense. (Id.) TBI informed Plaintiff that it would not respond to further requests for removal unless Plaintiff's convictions were overturned or he received exoneration. (Id.) Accordingly, Plaintiff is not eligible for removal from the SOR and must register for life while living in Tennessee. (Id.)

Plaintiff alleges that placement on the SOR has resulted in denial of employment and housing. (Id. at 6.) He also asserts that the SOR is discriminatory and that his registration resulted from systemic racial discrimination against Black men. (Id.)

C. ANALYSIS

The Court construes the Complaint to assert claims under 42 U.S.C. § 1983 and the Tennessee Constitution. The Section 1983 claims are several as-applied federal constitutional challenges to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, Tenn. Code Ann. §§ 40-39-201 - 40-39-218 ("SORA").² And the Tennessee constitutional claim is a state Ex Post Facto challenge to SORA. These claims are discussed below.

1. Other Statutes Referenced in the Complaint

As a threshold matter, the first page of the Complaint cites several statutes - 42 U.S.C. § 1985 and 38 U.S.C. §§ 511(a) and 5301 - that are not referenced again in the Complaint. That is inadequate to plausibly suggest an entitlement to relief that rises above the speculative level. Williams, 631 F.3d at 383; Twombly, 550 U.S. at 555; see also Brown v. Mastauszak, 415 F. App'x 608, 613 (6th Cir. 2011) ("[A] court cannot create a claim which [a plaintiff] has not spelled outin his pleading."). Even if Plaintiff intended to invoke these provisions, moreover, the claims are implausible. Sections 511(a) and 5301 exclusively concern veteran's benefits, and Plaintiff has made no allegations concerning that subject. See Brown v. Lee, No. 3:20-cv-00916, 2020 WL 7864252, at *2 (M.D. Tenn. Dec. 30, 2020) (dismissing claims under Sections 511(a) and 5301 because plaintiff challenging SORA did not make any allegations concerning veteran's benefits). Section 1985 concerns a conspiracy to commit racial discrimination. While Plaintiff has alleged that the SOR is discriminatory, he has not alleged that the Defendants in this case conspired with one another - i.e., acted together with the purpose of racial discrimination. See, e.g., id. at 2 (dismissing claim under Section 1985 because the plaintiff alleged that the SOR is racially discriminatory, but did not allege that the defendants "shared a common discriminatory objective") (quoting Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 367-68 (6th Cir. 2012)); Hancock v. Miller, No. 2:19-CV-00060, 2020 WL 1493609, at *5 (M.D. Tenn. Mar. 27, 2020) (dismissing Section 1985 claim because the complaint did not allege "that any [d]efendant was motivated by class-based animus . . . let alone that all [d]efendants shared that motivation"), aff'd, No. 20-5422, 2021 WL 1157843 (6th Cir. Mar. 26, 2021). Accordingly, these claims must be dismissed for failure to state a claim.

2. Section 1983 Claims

Plaintiff claims that SORA violates the Ex Post Facto Clause and the First, Fourth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution. He brings these claims, under 42 U.S.C. § 1983, against Metro, the State of Tennessee, and Governor Lee and TBI Director Rausch in their individual and official capacities.³ Section 1983 creates a cause of actionagainst any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a Section 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution or laws of the United States, and (2) that the deprivation was caused by a person acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir. 2014).

a. Metro

Metro is subject to suit under Section 1983. See Hadrick v. City of Detroit, Mich., 876 F.3d 238, 243 (6th Cir. 2017) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-92 (1978)). However, Metro does not have vicarious liability under Section 1983 for the actions of its employees. Connick v. Thompson, 563 U.S. 51, 60 (2011). Rather, Plaintiff must plausibly allege: (1) that he suffered a constitutional violation; and (2) that a policy or custom of Metro directly caused the violation. See Hadrick, 876 F.3d at 243 (citing Monell, 436 U.S. at 690-92).

Two judges of this Court have concluded that Metro may be subject to municipal liability in the context of an as-applied constitutional challenge to SORA. Brown, 2020 WL 7864252, at *4; Jordan v. William, No. 3:19-CV-00907, 2020 WL 4676477, at *11 (M.D. Tenn. Aug. 12, 2020); Reid v. Lee, No. 3:20-CV-00050, 2020 WL 4501457, at *11 (M.D. Tenn. Aug. 5, 2020). Those judges also agreed that the key question is whether a plaintiff has adequately asserted that his constitutional injury is the result of a "conscious decision of a Metro policymaker" concerning whether and how to enforce SORA. Brown, 2020 WL 7864252, at *4; Jordan, 2020 WL 4676477, at *11; Reid, 2020 WL 4501457, at *11. Here, however, the Complaint is entirely devoid ofallegations concerning Metro officials (policymakers or otherwise). Indeed, the Complaint alleges that Pla...