Farmer v. Upchurch (TV1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

BENJAMIN BRILEY FARMER, )

)

Plaintiff, )

)

v. ) No.: 1:21-CV-153-TAV-SKL

)

HOWARD L. UPCHURCH, )

J. CURTIS SMITH, )

DANIEL H. RADER IV, and )

STACY H. FARMER, )

)

Defendants. )

MEMORANDUM OPINION

This matter is before the Court on the motions to dismiss filed by defendants

Attorney Daniel H. Rader, IV [Doc. 24], Judge J. Curtis Smith [Doc. 28], Judge Howard

L. Upchurch [Doc. 34], and Stacey H. Farmer [Doc. 36]. Also before the Court is

Attorney Rader’s motion to withdraw the portion of his motion to dismiss that relies on

Federal Rule of Civil Procedure 12(b)(5) [Doc. 55]. Plaintiff has not responded to any of

these motions, and the time for doing so has expired. See E.D. Tenn. L.R. 7.1(a). For the

reasons stated below, the Court will GRANT defendants’ motions to dismiss [Docs. 24,

28, 34, 36], and this action will be DISMISSED. Because the Court finds dismissal

appropriate under Federal Rule of Civil Procedure 12(b)(6), Attorney Radar’s motion to

withdraw his service-of-process argument [Doc. 55] is DENIED as moot.

I. Background

In his complaint, Plaintiff states that he seeks to bring an action pursuant to

42 U.S.C. § 1983 for deprivation of his civil rights based on the “deliberate indifference”

to his needs, in violation of the Eighth and Fourteenth Amendments, and under state law

for conspiracy and fraud [Doc. 1 ¶ 1]. Plaintiff alleges that Stacey Farmer and Attorney

Rader “committed an act of fraud by presenting false and/or misleading information to the

Court in an effort to deprive Plaintiff [] of real property and to damage his relationship with

his three minor children by limiting the Plaintiff’s parenting time” in violation of state law

[Id. ¶ 6]. Additionally, plaintiff states that Judge Upchurch and Judge Smith “conspired in

this action due to their inappropriate communications and ultimate Order of the 12th Circuit

Court of Tennessee depriving Plaintiff [] of his residence and parenting time with his three

minor children” [Id. ¶¶ 5–6]. Plaintiff asserts, without further detail, that all defendants

acted under color of state law [Id. ¶ 9].

Plaintiff contends that “the conduct of each defendant was pursuant to and in

execution of a conspiracy by the Defendants to financially harm the Plaintiff and to

hurt him mentally and emotionally” and all defendants “exhibited deliberate indifference

to Plaintiff’s financial well-being and his relationship with his minor children”

[Id. ¶¶ 12–13]. Plaintiff alleges that Judge Upchurch was engaged in an extra-marital affair

with Stacey Farmer, plaintiff’s then-wife, at the time of the alleged conspiracy [Id. ¶ 15].

Plaintiff also asserts state law claims based on his allegations that Attorney Radar

and Judge Upchurch “misrepresented to [Judge] Smith the factual allegations regarding the

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Plaintiff’s marital situation . . . in an effort to dispose Plaintiff of his residence and to restrict

his parenting time . . . to curry favor with the Plaintiff’s wife and to cause mental harm to

the Plaintiff and to hurt his standing in the community” [Id. ¶ 20]. Plaintiff states that these

representations constitute fraud in violation of state law [Id. ¶ 21]. Plaintiff alleges that he

did not learn of the defendant’s fraudulent actions and conspiracy until August 2020

[Id. ¶ 26].

Defendants Judge Upchurch, Judge Smith, Attorney Radar, and Stacey Farmer,

have all filed separate motions to dismiss this case, on numerous grounds [Docs. 24, 28,

34, 36].1 As noted supra, plaintiff has not responded to any of the pending motions to

dismiss.

II. Standard of Review

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) permits a party to seek dismissal based on

a lack of subject matter jurisdiction. Rule 12(b)(1) motions fall into two categories: “facial

attacks and factual attacks.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “A

facial attack is a challenge to the sufficiency of the pleading itself.” Id. In considering

whether jurisdiction has been established on the face of the pleading, “the court must take

1 These defendants constitute all of the named defendants in this case. Notably, plaintiff

previously filed an amended complaint [Doc. 40] without leave of Court, naming Bledsoe County

as a defendant. In response, attorney B. Thomas Hickey entered a notice of appearance on behalf

of Bledsoe County [Doc. 49]. Thereafter, the Court granted defendants’ motions to strike the

amended complaint [Doc. 52]. Accordingly, the original complaint [Doc. 1] remains the operative

complaint, and Bledsoe County is not a defendant in this action.

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the material allegations of the [pleading] as true and construed in the light most favorable

to the nonmoving party.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)). “A

factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's

allegations, but a challenge to the factual existence of subject matter jurisdiction.” Id.

Here, the parties’ Rule 12(b)(1) arguments are properly construed as a factual attack, as

they contend that the Court lacks subject matter jurisdiction based on the domestic relations

exception to federal jurisdiction and the Rooker-Feldman doctrine. Notably, unlike a

motion to dismiss for failure to state a claim under Rule 12(b)(6), “where subject matter

jurisdiction is challenged under Rule 12(b)(1)[,] . . . the plaintiff has the burden of proving

jurisdiction in order to survive the motion.” RMI Titanium Co. v. Westinghouse Elec.

Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting Rogers v. Stratton Indus., 798 F.2d

913, 915 (6th Cir. 1986)).

B. Rule 12(b)(6)

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may

be dismissed for failure to state a claim if a plaintiff fails to proffer “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). When considering a Rule 12(b)(6) motion, a court must treat all of the

well-pleaded allegations of the complaint as true and construe all of the allegations in the

light most favorable to the non-moving party. DIRECTTV, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007). However, the Court “need not accept as true legal conclusions or

unwarranted factual inferences, and [c]onclusory allegations or legal conclusions

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masquerading as factual allegations will not suffice.” In re Travel Agent Comm’n Antitrust

Litig., 583 F.3d 896, 903 (6th Cir. 2009) (internal citations and quotation marks omitted).

Dismissal under Rule 12(b)(6) “is proper when there is no set of facts that would allow the

plaintiff to recover.” Carter by Carter v. Cornwell, 983 F.2d 52, 54 (6th Cir. 1993); see

also Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005) (“To survive a motion to dismiss

under Rule 12(b)(6), a complaint must contain either direct or inferential allegations

respecting all the material elements to sustain a recovery under some viable legal theory.”).

III. Discussion

A. Jurisdiction

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994). In other words, federal courts “have only the power

that is authorized by Article III of the Constitution and the statutes enacted by Congress

pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). As

such, subject matter jurisdiction is a threshold issue that the Court must address and resolve

prior to reaching the merits of the case. Steel Co. v. Citizens for a Better Env't, 523 U.S.

83, 94–95 (1998); see also Fed. R. Civ. P. 12(h)(3) (providing that, “[i]f the court

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action”). Because defendants Judge Upchurch and Stacey Farmer allege that the Court

lacks subject matter jurisdiction over this case [Doc. 35, p. 3; Doc. 37, pp. 2–3], the Court

will first address this threshold matter.

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1. Domestic Relations Exception

Judge Upchurch appears to contend that this Court lacks subject matter jurisdiction

over this case because the allegations involve a divorce case—a domestic relations matter

[Doc. 35, p. 3]. Generally, federal courts lack jurisdiction over domestic relations matters,

because state courts have exclusive jurisdiction over these matters. Danforth v. Celebrezze,

76 F. App’x 615, 616 (6th Cir. 2003). Although this exception to federal jurisdiction does

not apply to a civil action that “merely ha[ve] domestic relations overtones,” federal courts

“lack jurisdiction where the action is a mere pretense and the suit is actually concerned

with domestic relations issues.” Id. (citing Drewes v. Ilnicki, 863 F.2d 469, 471 (6th Cir.

1988)).

Typically, the federal courts refrain from entering domestic relations cases. “Even

when brought under the guise of a federal question action, a suit whose substance is

domestic relations generally will not be entertained in a federal court.” Denman v. Leedy,

479 F.2d 1097, 1098 (6th Cir. 1973). Further, the Supreme Court has found that “[t]he

whole subject of the domestic relations of husband and wife, parent and child, belongs to

the laws of the states and not to the laws of the United States.” In re Burrus, 136 U.S. 586,

593–94 (1890). Because state courts historically have decided these matters, they have

developed a proficiency and expertise in these cases and a strong interest in disposing of

them. Solomon v. Solomon, 516 F.2d 1018, 1025 (3d Cir. 1985); Firestone v. Cleveland

Trust Co., 654 F.2d 1212, 1215 (6th Cir. 1981).

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However, the Sixth Circuit has clarified that the domestic relations exception

applies only to a narrow range of circumstances and “does not deprive federal courts of

jurisdiction to adjudicate a claim . . . unless a plaintiff positively sues in federal court for

divorce, alimony, or child custody, or seeks to modify or interpret an existing divorce,

alimony, or child custody decree.” Alexander v. Rosen, 804 F.3d 1203, 1205 (6th Cir.

2015) (quoting Chevalier v. Estate of Barnhart, 803 F.3d 789, 797 (6th Cir. 2015)). For

example, the domestic relations exception does not apply when a plaintiff requests that the

federal court apply federal law to determine whether officials conspired against him in the

course of administering a child support program, because this inquiry does not require

application of state child custody law, question the state’s calculation of child support

payments, or otherwise address the merits of the underlying dispute. Id. at 1205–06.

Accordingly, the fact that the alleged violations of federal law occurred in the course of

deciding a plaintiff’s child support obligations does not invoke the domestic relations

exception. Id. at 1206.

The ultimate inquiry in determining the applicability of the domestic relations

exception focuses on the remedy that the plaintiff seeks: “Does the plaintiff seek an

issuance or modification of enforcement of a divorce, alimony, or child-custody decree.”

Chevalier, 803 F.3d at 797.

Here, the Court does not find that it lacks subject matter jurisdiction under the

domestic relations exception to federal jurisdiction. Plaintiff has not positively sued in this

Court for divorce, child custody, or alimony, and is not seeking modification or

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interpretation of any such orders. See Alexander, 804 F.3d at 1205. Instead, plaintiff seeks

monetary damages [Doc. 1, p. 7], which are an appropriate remedy in a § 1983 cause of

action, if a plaintiff proves his claim. Ultimately, as in Alexander, plaintiff’s request for

review of the defendants’ alleged conduct in the underlying divorce proceeding does not

fall under the domestic relations exception because it does not require this Court to apply

state divorce law, question the state’s divorce orders, or otherwise address the merits of the

underlying divorce dispute. See 804 F.3d at 1205–06. Accordingly, the Court finds that

the domestic relations exception does not divest the Court of subject matter jurisdiction

over this case.

2. Rooker-Feldman Doctrine

Defendants Stacey Farmer and Attorney Radar also argue that this Court lacks

subject matter jurisdiction under the Rooker-Feldman doctrine [Doc. 25, pp. 15–17;

Doc. 37, pp. 2–3].

The Rooker-Feldman doctrine arises out of two Supreme Court cases, Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983). The Rooker-Feldman doctrine specifically precludes

district courts from exercising appellate jurisdiction over final state court judgments.

Persley v. Lee, 794 F. Supp. 2d 728, 731 (E.D. Ky. 2011) (quoting Lance v. Dennis,

546 U.S. 459, 463 (2006)). The Supreme Court has clarified that the Rooker-Feldman

doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases

brought by state-court losers complaining of injuries caused by state-court judgments

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rendered before the district court proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon Mobile Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005). Both the plaintiffs in Rooker and Feldman requested the district

court “overturn an injurious state-court judgment” but only the Supreme Court has

jurisdiction to review a state court’s judgment. Id. at 292.

The Court must look at the source of the plaintiff’s injury alleged in the federal

complaint to determine whether a claim is one that attacks a state court judgment, and thus

is within the scope of the Rooker-Feldman doctrine, or an independent claim over which a

district court may assert jurisdiction. McCormick v. Braverman, 451 F.3d 382, 393

(6th Cir. 2006). “If the source of the injury is the state court decision, then the Rooker–

Feldman doctrine would prevent the district court from asserting jurisdiction. If there is

some other source of injury, such as a third party's actions, then the plaintiff asserts an

independent claim.” Id. For a claim to fall within the Rooker-Feldman doctrine’s scope,

“the source of the injury must be from the state court judgment itself; a claim alleging

another source of injury is an independent claim.” Id. at 394.

To determine the source of a plaintiff’s injury, the Court must look to the requested

relief. Cunningham v. Dep’t of Children’s Servs., 842 F. App’x 959, 963 (6th Cir. 2021).

The Sixth Circuit has held that, where a plaintiff alleged two categories of injuries, those

stemming from an ex parte order itself and those stemming from the defendants’ conduct

in the preparation and issuance of the order, Rooker-Feldman only barred consideration of

the first category of injuries, because they were based on allegations that were a direct

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result of the judicial order. Id. (citing Reguli v. Guffee, 371 F. App’x 590, 595–96 (6th Cir.

2010)). The Sixth Circuit recently reaffirmed that the Rooker-Feldman doctrine bars a

district court from considering claims when a state court’s ex parte order is the main source

of injury, but does not bar claims based on defendants’ alleged conduct leading up to the

issuance of the ex parte order or in executing the order. Id. at 963–64. Similarly, a

plaintiff’s claim that defendants committed fraud and misrepresentation in the course of

state probate proceedings does not allege an injury caused by a state court judgment, and

therefore, is not barred by Rooker-Feldman. Kovacic v. Cuyahoga Cnty. Dep’t of Children

and Family Servs., 606 F.3d 301, 310 (6th Cir. 2010) (citing McCormick, 451 F.3d at 392).

The Court concludes that plaintiff’s claims are only partially barred by the

Rooker-Feldman doctrine. Plaintiff alleges that Stacey Farmer and Attorney Radar

presented false or misleading information to the state court [Doc. 1 ¶ 6]. He further

contends that Judge Upchurch and Judge Smith are liable for both their “inappropriate

communications” and the state court’s “ultimate Order” [Id.]. Plaintiff states that he is

seeking compensation for the injuries of the loss of his residence and mental anguish from

the loss of parenting time with his three minor children [Id. ¶ 16]. It appears that plaintiff’s

claims as to Judge Upchurch and Judge Smith’s issuance of the “ultimate Order” of the

state court are barred by Rooker-Feldman, as the source of injury for such claims is clearly

the state court’s order. See McCormick, 451 F.3d at 393.

However, the Court does not find that plaintiff’s claims regarding Stacey Farmer

and Attorney Radar presenting false or misleading information to the state court or Judge

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Upchurch and Judge Smith engaging in “inappropriate communications” are barred by the

Rooker-Feldman doctrine. Specifically, these claims appear to involve these defendants’

alleged conduct leading up to the issuance of the state court order, rather than the issuance

of the order itself. See Cunningham, 842 F. App’x at 963–94. The Court finds that these

allegations in the complaint are akin to the allegations in Kovacic—that defendants

committed fraud and misrepresentation in the course of a state court proceeding—which

the Sixth Circuit held is not barred by Rooker-Feldman. See 606 F.3d at 310. Accordingly,

the Court finds that it may properly assert jurisdiction over these claims.

Accordingly, defendants’ motion to dismiss will be GRANTED IN PART and

DENIED IN PART on this ground. Plaintiff’s claims against Judge Upchurch and Judge

Smith, based on the “ultimate Order” of the divorce court will be DISMISSED for want

of jurisdiction. Plaintiff’s remaining claims survive defendants’ jurisdictional challenges.

However, as discussed infra, even if the Court has jurisdiction over all of plaintiff’s claims,

they are nonetheless subject to dismissal under Rule 12(b)(6) for several alternative

reasons.

B. Section 1983 Claim

1. Statute of Limitations

Attorney Radar and Stacey Farmer both contend that plaintiff’s claims are barred

by the applicable one-year statute of limitations for § 1983 claims, as the temporary

restraining order at issue was served upon plaintiff in August 2019 [Doc. 25, pp. 10–12;

Doc. 37, pp. 4–5].

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The statute of limitations applicable to a § 1983 action is the statute of limitations

applicable to personal injury actions under the law of the state in which the § 1983 claim

arises. Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir.

2007). Tennessee’s statute of limitations for personal injury claims and for claims brought

under federal civil rights statutes such as § 1983 is one year. See Tenn. Code Ann.

§ 28-3-104(a); Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005).

“Federal law, however, controls the determination of when a civil rights action

accrues.” Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000). The statute of

limitations generally begins to run when “the plaintiff knows or has reason to know of the

injury which is the basis of the action.” Kovacic, 606 F.3d at 307 (quoting Kuhnle Bros.,

Inc. v. Cnty. of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)). “A plaintiff has reason to

know of his injury when he should have discovered it through the exercise of reasonable

diligence.” Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984) (citations omitted). The

Court looks “to what event should have alerted the typical lay person to protect his or her

rights.” Eidson, 510 F.3d at 635 (quoting Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir.

1991)).

Notably, in his complaint, plaintiff states that he did not learn of defendants’

“fraudulent actions and conspiracy against him until August 2020” [Doc. 1 ¶ 26]. Although

he does not specify what court order allegedly harmed him, nor does he attach the order at

issue, plaintiff contends that it was the “ultimate Order of the 12th Circuit Court of

Tennessee depriving Plaintiff Farmer of his residence and parenting time with his three

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minor children” [Id. ¶ 6]. Defendants contend that the underlying order is a temporary

restraining order, which Attorney Radar provides to the Court as an attachment to his

motion to dismiss [Doc. 24-2]. The temporary restraining order, signed by Judge Smith,2

restrained and enjoined plaintiff from being around the marital home and restrained and

enjoined plaintiff from exercising visitation inconsistent with the Court’s temporary

parenting plan or removing the children from Bledsoe County, Tennessee [Id. at 2]. Judge

Smith signed this temporary restraining order on August 2, 2019, with a hearing to be held

within two weeks [Id.]. The Court finds that, given the information provided in the

complaint, this temporary restraining order is the state court order of which plaintiff now

complains.

The Court further finds that plaintiff’s § 1983 claims based on the issuance of this

temporary restraining order are barred by the applicable statute of limitations. Despite

plaintiff’s claim that he did not learn of defendants’ fraudulent actions and conspiracy until

August 2020 [Doc. 1 ¶ 26], plaintiff learned of the temporary restraining order by, at the

latest, mid-August 2019, when he received a copy of that order and a hearing was held on

the order [See Doc. 24-2]. At the time when plaintiff learned of the order, he was on notice

of his alleged injury, or at least should have exercised reasonable diligence to discover the

source of his injury. See Kovacic, 606 F.3d at 307; Sevier, 742 F.2d at 273. Accordingly,

the one-year statute of limitations for a § 1983 claim began to run in August 2019, and

2 Judge Smith is a Circuit Court Judge serving Tennessee’s 12th Judicial District.

J. Curtis Smith, http://tncourts.gov/courts/circuit-criminal-chancery-courts/judges/j-curtis-smith

(last viewed Nov. 29, 2021).

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plaintiff’s complaint, filed in July 2021, is barred by the state of limitations. Because

plaintiff’s § 1983 claims are time-barred, defendants’ motions to dismiss will be

GRANTED on this ground, and plaintiff’s § 1983 claims will be DISMISSED.

2. Judicial Immunity

Judge Smith argues that he is entitled to absolute judicial immunity in this case,

because his actions in the divorce proceeding were indisputably judicial acts [Doc. 29,

pp. 3–5]. “It is well established that judges are entitled to absolute judicial immunity from

suits for money damages for all actions taken in the judge’s judicial capacity, unless these

actions are taken in the complete absence of any jurisdiction.” Bush v. Rauch, 38 F.3d 842,

847 (6th Cir. 1994). “When a plaintiff alleges that a judge engaged in nonjudicial action,

the court must consider whether the allegedly nonjudicial act is ‘truly judicial’ or one that

simply ‘happen[ed] to have been done’ by a judge.” HLV, LLC v. Van Buren Cnty., 775 F.

App’x 204, 211 (6th Cir. 2019). But the application of judicial immunity is “simple and

non-controversial” if the act is “paradigmatically judicial, such as resolving a dispute

between two parties.” Id. (citation omitted). Moreover, the Sixth Circuit has specifically

held that a state court judge’s participation in ex parte communications, even if improper

under Tennessee law, are nonetheless related to the judge’s general judicial functions,

including “the authority to issue an ex parte restraining order[.]” Cooper v. Parrish,

203 F.3d 937, 945–46 (6th Cir. 2000).

Here, the Court finds that all of plaintiff’s federal claims against Judge Smith are

barred by judicial immunity. Plaintiff specifically alleges that Judge Smith violated his

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civil rights by: (1) engaging in “inappropriate communications” with Judge Upchurch

about plaintiff’s divorce case; and (2) issuing the temporary restraining order in that case

[Doc. 1 ¶¶ 10, 14–15]. As noted supra, a judge’s involvement in communications with

others regarding a case, even if inappropriate under Tennessee law, is nonetheless a judicial

function. See Cooper, 203 F.3d at 945–46. Moreover, the issuance of a temporary

restraining order in a divorce case is a quintessential judicial function. Accordingly, the

Court finds that all of the plaintiff’s § 1983 claims against Judge Smith are based on judicial

functions and are therefore barred by judicial immunity. Judge Smith’s motion to dismiss

will therefore be GRANTED on this alternate ground, and plaintiff’s § 1983 claim will be

DISMISSED as to Judge Smith.

3. Color of Law

Attorney Radar, Judge Upchurch, and Stacey Farmer all contend that they were not

acting under “color of state law” in the course of the actions alleged in the complaint, and

therefore, are not liable under § 1983 [Doc. 25, pp. 4–6; Doc. 35, p. 3; Doc. 37, p. 3].

Specifically, Attorney Radar contends that he served as a private attorney in the underlying

divorce action [Doc. 25, pp. 4–6], Judge Upchurch contends that he was “neither the

attorney nor the Judge involved in [the] divorce case,” and is “[a]t best . . . a witness”

[Doc. 35, p. 3], and Stacey Farmer argues that the complaint provides no indication as to

how she “clothed herself with the authority of the state” [Doc. 37, p. 3].

In order to state a claim under § 1983, plaintiff must allege violation of a right

promised by the Constitution and laws of the United States and must show that the

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deprivation was committed by a person acting under color of state law. Waters v. City of

Morristown, Tenn., 242 F.3d 353, 358–59 (6th Cir. 2001). “Section 1983 is generally not

implicated unless a state actor’s conduct occurs in the course of performing an actual or

apparent duty of his office, or unless the conduct is such that the actor could not have

behaved as he did without the authority of his office.” Id. at 359. Thus, “[t]he key

determinant is whether the actor intends to act in an official capacity or to exercise official

responsibilities pursuant to state law.” Id.

“[A]ttorneys do not become state actors by representing state or local governments.”

Horen v. Board of Educ. Of Toledo City Sch. Dist., 594 F. Supp. 2d 833, 841 (N.D. Ohio

2009). Moreover, a private attorney, even if appointed by the court, does not act under

color of state law for purposes of § 1983. Whisnant v. Stokes, No. 1:08-cv-229, 2008 WL

4763853, at *5 (E.D. Tenn. Oct. 28, 2008).

“If a private party has conspired with state officials to violate constitutional rights,

then that party qualifies as a state actor and may be held liable pursuant

to § 1983.” Cooper, 203 F.3d at 952 n.2. The Supreme Court has held that that “[p]rivate

parties who corruptly conspire with a judge in connection with such conduct are thus acting

under color of state law within the meaning of § 1983.” Dennis v. Sparks, 449 U.S. 24,

29 (1980). But “merely resorting to the courts and being on the winning side of a lawsuit

does not make a party a co-conspirator or a joint actor with the judge.” Id. at 28. Rather,

to plead a § 1983 conspiracy, plaintiffs must allege that: “(1) a single plan existed,

(2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of their

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constitutional rights, and (3) an overt act was committed.” Revis v. Meldrum, 489 F.3d

273, 290 (6th Cir. 2007). Furthermore “conspiracy claims must be pled with some degree

of specificity and [] vague and conclusory allegations . . . will not be sufficient to state such

a claim under § 1983.” Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (internal

quotation marks omitted).

Here, it is clear that Judge Upchurch, Attorney Radar, and Stacey Farmer were not

acting under color of state law during the conduct alleged in the complaint. First, although

Judge Upchurch does hold an official position as a general sessions judge in Bledsoe

County,3 the complaint does not allege that Judge Upchurch took any actions in his capacity

as a general sessions judge, such that he could be considered a state actor. The claims

against Judge Upchurch are limited to allegations that he was having an affair with

plaintiff’s then-wife, Stacey Farmer, and engaged in “inappropriate communications” with

Judge Smith, who presided over the divorce proceeding [Doc. 1]. Neither of these alleged

actions appear to be in the course of performing any duties of the office of general sessions

judge, nor is such conduct of such nature that it could not have occurred but for Judge

Upchurch’s official position. See Waters, 242 F.3d at 359.

Moreover, Attorney Radar merely acted as a private attorney for plaintiff’s

then-wife in the divorce proceedings. As the Court noted supra, even an attorney

representing the state or appointed to represent a party by the state is not a state actor for

3 See Howard L. Upchurch, https://tncourts.gov/courts/general-sessions-courts/judges/

howard-l-upchurch (last visited Nov. 29, 2021).

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purposes of § 1983. See Horen, 594 F. Supp. 2d at 841; Whisnat, 2008 WL 4763853, at

*5. If such attorneys with some connection to the state are not acting under color of state

law for purposes of § 1983, it is not feasible that a privately retained divorce attorney could

be deemed to act under color of state law merely by practicing law in the state divorce

court. Furthermore, it appears that Stacey Farmer’s involvement in this case was merely

being the adverse party in the underlying divorce proceeding. And a private party does not

act under color of state law in merely litigating a civil matter in state court. See Sterling v.

Trotter, No. C2-01-528, 2002 WL 31409437, at *1 (S.D. Ohio Aug. 13, 2002) (noting that

“the use of state courts by private litigants and their attorneys did not, by itself, amount to

state action” for purposes of § 1983).

The Court does note that plaintiff appears to allege that Judge Upchurch, Attorney

Radar, and Stacey Farmer acted in a conspiracy with Judge Smith, who was acting in his

official capacity as general sessions judge during the divorce proceeding. However,

although acting in a conspiracy with Judge Smith in his official capacity may transform

defendants into state actors, see Cooper, 203 F.3d at 952 n.2, plaintiff must still sufficiently

plead a conspiracy under § 1983 for this rule to apply. See Revis, 489 F.3d at 290. And

here, plaintiff has not pleaded any of the elements of a § 1983 conspiracy claim with

sufficient specificity. Instead, the complaint merely alleges that the parties conspired

against him by presenting unspecified false information to the court, engaging in

unspecified communications, and issuing an unspecified order [Doc. 1 ¶ 6]. Such

allegations are insufficient to show, even at the Rule 12 stage, where plaintiff’s allegations

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are accepted as true, that defendants had a single plan, that they shared a conspiratorial

objective to deprive plaintiff of his constitutional rights, or that an overt act was committed.

See Revis, 489 F.3d at 290.

Accordingly, plaintiff has not pleaded a § 1983 conspiracy claim, and therefore,

defendants Judge Upchurch, Attorney Radar, and Stacey Farmer cannot be deemed to have

acted under color of state law for purposes of this action. Therefore, for this alternate

reasons, defendants Judge Upchurch, Attorney Radar, and Stacey Farmer’s motions to

dismiss will be GRANTED and plaintiff’s § 1983 claims against them will be

DISMISSED.

4. Deliberate Indifference

Attorney Radar, Judge Upchurch, and Stacey Farmer argue that, although the

complaint alleges that defendants showed “deliberate indifference” in violation of the

Eighth and Fourteenth Amendments to the Constitution, a claim asserting deliberate

indifference under these Amendments applies only to punishments of those convicted in

criminal proceedings [Doc. 25, pp. 6–7; Doc. 35, pp. 4–5; see also Doc. 37, p. 5 (adopting

the arguments of other defendants)]. Attorney Radar contends that there is no

constitutional obligation to act without deliberate indifference to a private litigant in a

divorce case [Doc. 25, p. 7].

The Eighth Amendment to the United States Constitution prohibits the infliction of

“cruel and unusual punishments.” U.S. Const. amend. VIII. “[T]he Cruel and Unusual

Punishments Clause has been incorporated against the states” through the Fourteenth

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Amendment. Kelly v. Shoemaker, No. 15-cv-2233, 2016 WL 2757547, at *2 (S.D. Ohio

May 12, 2016) (citing Robinson v. California, 370 U.S. 660, 666 (1962)). However,

“[b]ail, fines, and punishment traditionally have been associated with the criminal process,

and by subjecting the three to parallel limitations the text of the Amendment suggests an

intention to limit the power of those entrusted with the criminal-law function of

government.” Ingraham v. Wright, 430 U.S. 651, 664 (1977). See also Ford v. Cnty of

Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008) (“The Eighth Amendment, by its terms,

applies only to post-conviction inmates,” but pretrial detainees are “guaranteed the

equivalent right . . . by the Due Process Clause of the Fourteenth Amendment”). Eighth

Amendment cruel and unusual punishment claims “arise[] only in the context of

incarceration or other punishment meted out by the government” because “the Cruel and

Unusual Punishments Clause prohibits cruel and unusual punishments, and not mere

conditions or treatment.” Kelly, 2016 WL 2757547, at *2 (emphasis in original).

Because claims relating to deliberate indifference are claims that arise under the

Eighth Amendment’s Cruel and Unusual Punishment Clause, see generally Farmer v.

Brennan, 511 U.S. 825 (1994), it appears that, in referencing defendants’ alleged deliberate

indifference, plaintiff attempts to assert a § 1983 claim based on the alleged violation of

his Eighth Amendment rights. But, because a § 1983 claim for deliberate indifference in

violation of the Eighth Amendment can only be raised by post-conviction inmates (or

pretrial detainees under the Fourteenth Amendment), see Ingraham, 430 U.S. at 664; Ford,

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535 F.3d at 495, plaintiff’s claim, which stems from alleged losses of access to his home

and parenting time with his children do not rise to the level of Eighth Amendment

violations. Accordingly, on this alternate ground, defendants Judge Upchurch’s, Attorney

Radar’s and Stacey Farmer’s motions to dismiss will be GRANTED, and plaintiff’s § 1983

claim will be DISMISSED as to these defendants.

C. State Law Claims

Stacey Farmer argues that plaintiff has failed to plead his state law claim of fraud

with particularity, as required by Federal Rule of Civil Procedure 9(b) [Doc. 37, pp. 5–7].

She states that the complaint “utterly fails to identify the particular fraudulent statement

made to the state court and what the truth of the matter pleaded actually was,” and therefore,

plaintiff’s state law claims should be dismissed [Id. at 7].

Under Federal Rule of Civil Procedure 9(b), if a plaintiff alleges fraud or mistake,

he “must state with particularity the circumstances constituting fraud or mistake.”

Fed. R. Civ. P. 9(b). The Sixth Circuit has stated that Rule 9(b) requires a plaintiff to

“allege the time, place, and content of the alleged misrepresentations on which he or she

relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury

resulting from the fraud.” Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th

Cir. 2006) (quoting Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 563 (6th Cir. 2003))

(internal quotation marks omitted). In other words, Rule 9(b) requires a Plaintiff specify

the “who, what, when, where, and how” of the alleged fraud. Id.

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Here, plaintiff alleges a state law claim of fraud [Doc. 1 ¶ 21], and specifically states

that “Defendants Radar and Upchurch misrepresented to Defendant Smith the factual

allegations regarding the Plaintiff’s marital situation . . . in an effort to dispose Plaintiff of

his residence and to restrict his parenting time with his minor children” [Id. ¶ 20].

However, plaintiff’s complaint lacks any detail about the alleged fraud, other than

conclusory statements. For example, plaintiff alleges that defendants made false claims or

misrepresentations to Judge Smith but does not specify what statements were false or what

the true facts were. These bare bones allegations of fraud are insufficient to meet Rule

9(b)’s heightened pleading standard. Thus, defendants’ motions to dismiss will be

GRANTED as to plaintiff’s state law claim of fraud, and such claim will be DISMISSED.

Moreover, as this Court has noted, “a civil conspiracy claim is not a stand-alone

claim.” Marshall v. ITT Technical Institute, No. 3:11-cv-552, 2012 WL 1205581, at *4 n.4

(citing Campbell v. BNSF Ry. Co., 600 F.3d 667, 677 (6th Cir. 2010) (“It is well settled in

Tennessee that the tort of civil conspiracy requires underlying wrongful conduct, and that

conspiracy, standing alone, is not sufficient to support a cause of action[.] If the underlying

wrongful conduct is found to be not actionable than the conspiracy claim must also fail.”)).

Because plaintiff has not sufficiently stated a claim for fraud, to the extent that his

complaint can be construed as raising a state law claim of conspiracy, such claim cannot

stand on its own. Accordingly, because plaintiff’s fraud claim will be dismissed, plaintiff’s

conspiracy claim must also be DISMISSED.

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IV. Conclusion

The Court acknowledges that defendants have raised numerous other grounds for

dismissal, however, in light of the conclusions above, the Court finds it unnecessary to

expend further judicial time and resources addressing each ground. For the many alternate

reasons discussed above, defendants’ motions to dismiss [Docs. 24, 28, 34, and 36] are

GRANTED. Attorney Radar’s motion to withdraw the portion of his motion to dismiss

relying on service of process [Doc. 55] is DENIED as moot. This matter will be

DISMISSED. A separate order will follow.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

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