“If the plaintiff fails to establish either element, the defendant is immune from suit.”
How later courts described this case
- “If the plaintiff fails to establish either element, the defendant is immune from suit.”
- declining to decide a constitutional question where there was some other ground to dispose of the case
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
MARCUS WASHINGTON, )
)
Plaintiff, )
)
v. ) No.: 3:21-CV-46-TAV-DCP
)
OFFICER THORNTON, )
)
Defendant. )
MEMORANDUM OPINION
Before the Court is defendant’s Second Motion to Dismiss [Doc. 39]. Defendant
moves the Court to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) on the basis of qualified immunity. Plaintiff has not responded, and
the time for doing so has long passed. See E.D. Tenn. L.R. 7.1(a). For the reasons
explained below, defendant’s motion [Doc. 39] will be GRANTED, and this case will be
DISMISSED. All pending motions [Doc. 41] will be DENIED as moot.
I. Background1
This case concerns a dispute over the constitutionality of Tenn. Code Ann.
§ 40-39-211 as applied to plaintiff and others [Doc. 1]. Plaintiff’s pro se complaint is,
respectfully, difficult for the Court to comprehend. As the Court reads the complaint,
plaintiff states that he was arrested for the promotion of prostitution [Id. at 3]. After
“fighting” the case for three years, plaintiff asserts that he signed a plea agreement for “an
1 For purposes of this opinion, the Court accepts all factual allegations in plaintiff’s
complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
extremely uncommon lesser charge and lesser sentence of [10] years with credit for almost
seven [] years” [Id.]. Plaintiff states that after winning two federal motions, he was granted
an immediate release from federal prison, and the Bureau of Prisons flew him to his
mother’s residence [Id.].
While visiting his mother, plaintiff contends that he was called by a supervisor with
the Federal Probation Office who stated that due to Tennessee law and the Tennessee Sex
Offender Registration Office, he was now homeless and could not stay at his family’s home
[Id.]. Plaintiff states that if he stayed, he was threatened to be forcefully arrested or
deprived of his liberty [Id.]. Plaintiff explains that he was interviewed by defendant and
was told that he could not live nor work anywhere that is within 1000 feet of a school,
daycare, park, or trail open to the public [Id.]. Plaintiff contends that defendant and a
federal supervisor “enforced the law . . . daily [] with threats of immediate arrest, including
calling all possible employers and places of temporary residence” [Id.].
Plaintiff filed this action on December 2, 2020 [Doc. 1]. Plaintiff asserts a claim
against defendant for willful negligence of the right to liberty pursuant to 42 U.S.C. § 1983
[Id. at 1]. In ruling on defendant’s first motion to dismiss [Doc. 27], the Court dismissed
plaintiff’s claims that defendant unlawfully interpreted and enforced Tenn. Code Ann.
§ 40-39-211 against plaintiff [Doc. 32].
However, the Court did not dismiss plaintiff’s constitutional challenges to
§ 40-39-211 [Id.]. Specifically, plaintiff argues that application of the statute as to him
2
caused a deprivation of his constitutional right of “liberty to choose his residence without
unlawful restriction by force” and “liberty to choose his employment without unlawful
restriction by force” [Doc. 1, p. 1]. He asserts that he has a “Fourth Amendment [r]ight[]
to possess the [l]iberty of choosing where he resided in Tennessee and where he could work
in Tennessee” [Id. at 6]. The Court previously adopted the Report and Recommendation
(“R&R”) entered in this case by United States Magistrate Judge Debra C. Poplin, in which
she interpreted plaintiff’s argument to be a challenge to his substantive due process rights
under the Fourteenth Amendment [Doc. 11, p. 6 n.6]. In addition, plaintiff challenges
§ 40-39-211 in its application to him and others, arguing that enforcing the statute against
him and others whose crimes did not involve minors is illegal and violates the Constitution
[Doc. 1, pp. 5–6]. Because defendant failed to address these additional arguments in his
first motion to dismiss, the Court did not dismiss the complaint on these grounds [Doc. 32].
In his second motion to dismiss, defendant argues that plaintiff’s complaint should
be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis of qualified
immunity [Doc. 39]. Specifically, defendant contends that he is entitled to qualified
immunity because plaintiff has not demonstrated that defendant violated a clearly
established constitutional right of plaintiff [Doc. 40, pp. 2, 4–7].
Plaintiff did not respond to defendant’s second motion to dismiss, and the time for
doing so has long passed. See E.D. Tenn. L.R. 7.1(a). Under this Court’s local rules,
“[f]ailure to respond to a motion may be deemed a waiver of any opposition to the relief
sought.” E.D. Tenn. L.R. 7.2. The Court notes that in addition to failing to timely respond,
3
plaintiff also failed to respond to the Court’s show cause order entered on April 5, 2023,
giving plaintiff 10 days to show cause why defendant’s motion should not be granted as
unopposed [Doc. 44].
The Court further notes that service of the show cause order was attempted on
plaintiff but was returned as undeliverable [Doc. 45]. Plaintiff was placed on notice that it
is his duty to notify the Court of any change of address, and “failure of a pro se plaintiff to
timely respond to an order or pleading addressed to the last address provided to the Clerk
may result in dismissal of the case or other appropriate action” [Doc. 3]. The notice also
cautioned that “[p]arties proceeding pro se shall be expected to be familiar with and follow
the Federal Rules of Civil Procedure and the[] [local] rules” [Id.].
However, the Sixth Circuit has held that, in the context of a motion to dismiss, a
moving party must meet its initial burden under the Federal Rules, even if an adverse party
fails to respond. See Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991). Thus, despite
plaintiff’s failure to respond, the Court will analyze whether defendant has met his burden
under Rule 12(b)(6).
II. Standard of Review
Rule 8(a)(2) sets out a liberal pleading standard. Smith v. City of Salem,
378 F.3d 566, 576 n.1 (6th Cir. 2004). Thus, a complaint filed in federal court need only
contain “‘a short and plain statement of the claim showing that the pleader is entitled to
relief,’ in order to ‘give the [opposing party] fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
4
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not
required, but a party’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions[.]” Twombly, 550 U.S. at 555. “‘[A] formulaic
recitation of the elements of a cause of action will not do’”; nor will “an unadorned, the-
defendant-unlawfully-harmed-me accusation”; nor will “‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (second
alteration in original) (quoting Twombly, 550 U.S. at 555, 557).
In deciding a Rule 12(b)(6) motion, the Court must determine whether the complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570; accord Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “A
claim has facial plausibility when 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. “Determining whether a complaint states a plausible claim for relief
will [ultimately] be a context-specific task that requires [the Court] to draw on its judicial
experience and common sense.” Id. at 679. In conducting this inquiry, the Court “must
construe the complaint in a light most favorable to plaintiff[], accept all well-pled factual
allegations as true, and determine whether plaintiff[] undoubtedly can prove no set of facts
in support of those allegations that would entitle [him] to relief.” Bishop v. Lucent Techs.,
Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575
(6th Cir. 2005)).
5
Given plaintiff’s pro se status, the Court notes that federal courts have a duty to
“liberally construe the briefs of pro se litigants and apply less stringent standards to parties
proceeding pro se than to parties represented by counsel.” Bouyer v. Simon, 22 F. App’x
611, 612 (6th Cir. 2001). At the same time, however, “the lenient treatment generally
accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). As such, courts have not typically “been willing to abrogate basic pleading
essentials in pro se suits.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III. Analysis
Plaintiff brings his claim against defendant pursuant to 42 U.S.C. § 1983. In order
to state a claim for relief under § 1983, “a plaintiff must set forth facts that, when construed
favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the
United States (2) caused by a person acting under the color of state law.” Miller v. Sanilac
Cnty., 606 F.3d 240, 247 (6th Cir. 2010).
Defendant argues in his motion [Docs. 39, 40] that plaintiff’s complaint fails to state
a claim upon which the Court could grant relief and is subject to dismissal under
Rule 12(b)(6). Specifically, defendant asserts that he is entitled to qualified immunity from
plaintiff’s § 1983 claim.
“Public officials [] are eligible for qualified immunity if (1) they did not violate any
constitutional guarantees or (2) the guarantee, even if violated, was not clearly established
at the time of the alleged misconduct.” Citizens in Charge, Inc. v. Husted, 810 F.3d 437,
6
440 (6th Cir. 2016) (internal quotation marks omitted). The Court has the discretion to
determine which of the two prongs should be addressed first “in light of the circumstances
in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here,
defendant challenges the second prong of this test by arguing that even if he has violated
plaintiff’s constitutional rights, plaintiff cannot demonstrate that the constitutional right
was so clearly established that case law at the time of the alleged violation placed the
statutory or constitutional question beyond debate [Doc. 40, p. 6].
“[T]he Supreme Court has instructed that the district courts are ‘not to define clearly
established law at a high level of generality, . . . since doing so avoids the crucial question
whether the official acted reasonably in the particular circumstances that he or she faced.’”
New Century Found. v. Robertson, 400 F. Supp. 3d 684, 703 (M.D. Tenn. 2019) (citing
Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). Specifically, the Supreme Court has
stated:
A Government official’s conduct violates clearly established law when, at
the time of the challenged conduct, “[t]he contours of [a] right [are]
sufficiently clear” that every “reasonable official would [have understood]
that what he is doing violates that right.” We do not require a case directly
on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
Here, the Court has not been presented with any case law holding that application
of Tenn. Code Ann. § 40-39-211 deprives offenders of a constitutional right to choose
7
where they live or work. To the contrary, courts have found that the employment and
residency restrictions of the Tennessee Sexual Offender and Violent Sexual Offender
Registration, Verification and Tracking Act of 2004, Tenn. Code Ann. §§ 40-39-201 to -
218 (“SORA”) survive rational basis review under the substantive due process clause. See
Newsome v. Lee, No. 3:21-cv-00041, 2021 WL 1697039, at *7 (M.D. Tenn. Apr. 29, 2021);
Brown v. Lee, No. 3:20-cv-00916, 2020 WL 7864252, at *7 (M.D. Tenn. Dec. 30, 2020);
Burns v. Helper, No. 3:18-cv-01231, 2019 WL 5987707, at *7 (M.D. Tenn. Oct. 24, 2019).
Similarly, the Court has not been presented with any case law holding that application of
§ 40-39-211 to those offenders whose crimes did not involve minors violates the
Constitution. Cf. Burns, 2019 WL 5987707, at *8 (citing Does v. Munoz, 507 F.3d 961,
966 (6th Cir. 2007)) (finding that “sex offenders are not a suspect class” and that there is a
rational basis for treating sex offenders differently from other offenders).
The Court notes that “[p]laintiff bears the burden of showing that defendant[] [is]
not entitled to qualified immunity.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th
Cir. 2009). In the absence of a response from plaintiff, and in the absence of existing
precedent clearly establishing the constitutional guarantees of which plaintiff alleges
defendant violated, plaintiff has not met his burden as to the second prong of qualified
immunity. Thus, defendant is entitled to qualified immunity from plaintiff’s claim. See
T.S. v. Doe, 742 F.3d 632, 635 (6th Cir. 2014) (“If the plaintiff fails to establish either
element, the defendant is immune from suit.”).
8
IV. Conclusion
For the reasons explained above, defendant’s Second Motion to Dismiss [Doc. 39]
will be GRANTED, and this case will be DISMISSED. All pending motions [Doc. 41]
will be DENIED as moot.2
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
2 The Court previously allowed the Tennessee Attorney General and Reporter to intervene
in this action on behalf of the State of Tennessee to defend the constitutionality of Tenn. Code
Ann. § 40-39-211 [Doc. 38]. Subsequently, the State of Tennessee filed a motion to dismiss,
arguing that the statute is constitutional [Doc. 41]. Because the Court disposes of this case based
on defendant’s motion [Doc. 39], the Court finds it unnecessary to address the State of Tennessee’s
motion. See Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984) (declining to decide a
constitutional question where there was some other ground to dispose of the case).
9