Whiting v. City Of Athens

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

GLENN WHITING, )

) Case No. 3:23-cv-220

Plaintiff, )

) Judge Travis R. McDonough

v. )

) Magistrate Judge Debra C. Poplin

CITY OF ATHENS, MIKE KEITH, and )

BRANDON AINSWORTH )

)

Defendants.

MEMORANDUM OPINION

Before the Court is Defendants Brandon Ainsworth, City of Athens, and Mike Keith’s

joint motion to dismiss (Doc. 10) all claims against them. For the reasons that follow, the Court

will GRANT the motion (id.). Because no more claims remain against any parties, this matter

will be DISMISSED. The dismissal of this action renders Whiting’s pending motion for leave

to file an interlocutory appeal (Doc. 25) MOOT.

I. BACKGROUND

Every Fourth of July, the City of Athens, Tennessee (“City”) puts on a fireworks show

for the public to enjoy. (Doc. 1, at 2–3.) But when the City elected to limit the show’s (“Event”)

attendance to City employees and guests in 2022, Glenn Whiting set out to “video record the

event so that [] excluded [] citizens could know what their City employees were doing in the

closed park.” (Id. at 6.) Whiting’s presence at the Event did not go unnoticed; at least half a

dozen City employees or guests confronted him and asked him to stop filming children at the

Event. (Id. at 7–11.) On January 3, 2023, Whiting filed suit against the City and various City

employees (including firefighters), alleging multiple causes of action relating to his experience at

the Event. That matter is still pending before this Court. (See Case No. 3:23-cv-2.)

Over four months after Whiting filed the lawsuit and nearly a year after the Event, local

news outlets reported that the City would not be holding its annual fireworks show in 2023 due

to Whiting’s pending case. (Id. at 4.) Specifically, ABC Channel 9 News (“ABC”) reported:

There won’t be any fireworks at the Athens Regional Park on July 4th this year,

and we now know the reason why. A man’s pending lawsuit against several city

officials over what happened at last year’s event is cited as the reason. We

obtained that lawsuit on Wednesday, which you can read in full below.

(Id.) The online article (“Announcement’) features a link to the original complaint filed in Case

No. 3:23-cv-2. (Id.)

According to Whiting, ABC obtained this information on May 18, 2023, from Defendant

Mike Keith, who served as interim City Manager at the time. (Id. at 1, 3–4.) Before speaking

with ABC, Keith had met with Defendant Brandon Ainsworth, then the City Fire Chief, who

allegedly “informed Keith that he did not want to . . . order [City] firefighters to provided [sic]

emergency protection at the 2023 Independence Day event.” (Id. at 2, 4.) Whiting’s suit over

the Event included City firefighters as defendants. (See Case No. 3:23-cv-2.)

The Announcement drew increased public attention to Whiting. (Id. at 4–5.) After the

Announcement, “[n]umerous members of the public [] contacted Whiting” urging him to drop

his lawsuit to allow for the City fireworks display to go on. (Id. at 5.) For instance, a

representative of the company that has historically provided liability insurance to the City for the

fireworks display phoned Whiting and asked him to dismiss all suits pending against the City.

(Id.) City community members also posted comments on social-media sites “both blaming

Whiting for the cancellation and urging him to dismiss his cases.” (Id.) Despite this attention,

Whiting “informed all individuals who contacted him that he would not be extorted by public

pressure from the City to dismiss his legitimate petitions to the government for redress of

grievances.” (Id.) Nonetheless, Whiting attests he has “suffered impairment of reputation and

standing in the community, personal humiliation, and mental anguish” due to the Announcement.

(Id. at 19.)

On June 22, 2023, Whiting brought another action—this one—asserting claims for First

Amendment retaliation against the City, Keith, and Ainsworth (“Defendants”) and for state-law

defamation against the City and Keith.1 (Doc. 1, at 16–20.) At the same time, Whiting filed yet

another case, which also remains pending before this Court, alleging First Amendment retaliation

and state-law defamation against the City and City Mayor Steve Sherlin for comments Sherlin

made regarding settlement negotiations between Whiting and the City.2 (See Doc. 1 in Case No.

3:23-cv-221.) On July 20, 2023, Defendants collectively moved to dismiss all claims against

them in this case. (Doc. 10.) The motion is ripe for the Court’s review.

II. STANDARD OF LAW

According to Rule 8 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). Though the statement need not contain detailed factual allegations, it

must contain “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

1 Whiting also brings a “cause of action” for injunctive and declaratory relief. (Doc. 1, at 20.)

Because this is a form of a relief requested rather than a separate cause of action, the Court does

not include it in this list.

2 According to Defendants, Whiting has filed nine total lawsuits against the City or City

employees since 2020. (Doc. 11, at 1.)

Id.

A defendant may obtain dismissal of a claim that fails to satisfy Rule 8 by filing a motion

pursuant to Rule 12(c). A Rule 12(c) motion for judgment on the pleadings is analyzed using the

same standards that apply to 12(b)(6) motions for failure to state a claim. Lindsay v. Yates, 498

F.3d 434, 438 (6th Cir. 2007). Thus, on a Rule 12(c) motion, the Court considers not whether

the plaintiff will ultimately prevail, but whether the facts permit the court to infer “more than the

mere possibility of misconduct.” Iqbal, 556 U.S. at 679. For purposes of this determination, “all

well-pleaded material allegations of the pleadings of the opposing party must be taken as true,

and the motion may be granted only if the moving party is nevertheless clearly entitled to

judgment.” Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (quoting

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)). This assumption of

veracity, however, does not extend to bare assertions of legal conclusions, Iqbal, 556 U.S. at 679,

nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

After sorting the factual allegations from the legal conclusions, the Court next considers

whether the factual allegations, if true, would support a claim entitling the plaintiff to relief.

Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). This factual matter must “state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550

U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader

is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “A motion brought pursuant to

Rule 12(c) is appropriately granted ‘when no material issue of fact exists and the party making

the motion is entitled to judgment as a matter of law.’” Tucker, 539 F.3d at 549.

III. ANALYSIS

Whiting asserts claims for First Amendment retaliation against all Defendants and for

state-law defamation against Keith and the City. (Doc. 1, at 16–20.) Defendants argue that the

entirety of Whiting’s complaint should be dismissed because it fails to sufficiently allege either

claim; Defendants also claim they are entitled to reimbursement of attorney’s fees and costs

pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, and Tennessee Code Annotated § 29-20-113.

(Doc. 11, at 3, 15.)

A. First Amendment Retaliation

i. Official-Capacity Claims

Whiting’s First Amendment retaliation claim is brought pursuant to 42 U.S.C. § 1983,

which provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . , subjects, or causes to be subjected, any . . . person . . . to

the deprivation of any rights . . . secured by the Constitution and laws [of the

United States], shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress[.]

To succeed on a claim under § 1983, a plaintiff must show: (1) “that he or she was deprived of a

right secured by the Constitution or laws of the United States” and (2) “that the deprivation was

caused by a person acting under color of law.”3 Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir.

2014) (citations omitted).

3 Only the first element is at issue in this case, as Defendants do not appear to dispute that they

were acting under color of law when participating in the alleged adverse actions. (See generally

Doc. 11.)

Though Whiting brings claims against Defendants in their official and individual

capacities, the Court will DISMISS all official-capacity claims against them as redundant of

those brought against the City. See Graham, 473 U.S. at 165 (“[A]n official-capacity suit is, in

all respects other than name, to be treated as a suit against the [governmental] entity.”); Scott,

2011 WL 2515976, at *3 (observing that courts within the Sixth Circuit typically dismiss

official-capacity claims as redundant where the relevant local-governmental entity is also a

party) (collecting cases); see also Jackson v. Shelby Cty. Gov’t, No. 07-6356, 2008 WL 4915434,

at *2 (6th Cir. Nov. 10, 2008) (“[T]he district court properly granted summary judgment to the

defendants on the claims against the sheriff in his official capacity because those claims mirror

the claims against the County, and are therefore redundant.”); White v. Washington Cty., Tenn.,

85 F. Supp. 3d 955, 959 (E.D. Tenn. 2015); Newby v. Sharp, No. 3:11-cv-534, 2012 WL

1230764, at *4 (E.D. Tenn. Apr. 12, 2012).

ii. Individual-Capacity Claims

Whiting argues that Defendants illegally retaliated against him for engaging in

“constitutionally protected conduct [of] filing numerous legitimate lawsuits against the City” by

“making false public statements about Whiting for the purpose of turning public opinion against

[him],” pressuring him to dismiss said lawsuits, and discouraging him from “filing similar

petitions.” (Doc. 1, at 17.) The allegedly false statements—that Whiting’s suits were the reason

the City cancelled the annual fireworks display—were “motivated by [the City Manager’s] desire

to pressure Whiting into voluntarily giving up a fundamental right” to petition the government.

(Id. at 17–18.)

Defendants move to dismiss Whiting’s First Amendment retaliation claims against them,

arguing that Ainsworth and Keith’s actions were not sufficiently adverse or motivated by

Whiting’s litigation against the City. (Doc. 11, at 4–10.) And because neither Ainsworth nor

Keith committed a constitutional violation, Defendants argue, the City also cannot be held liable

for First Amendment retaliation. (Id. at 10.)

“[R]etaliation for the exercise of constitutional rights is itself a violation of the

Constitution.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (quoting Allen v.

Wright, 468 U.S. 737, 751 (1984)); see also Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997)

(“[T]he injury asserted is the retaliatory accusation’s chilling effect on [Plaintiff’s] First

Amendment rights . . . We hold that [his] failure to demonstrate a more substantial injury does

not nullify his retaliation claim.”), cert. denied, 524 U.S. 936 (1998). In order to prevail on a

retaliation claim, a plaintiff must establish that: (1) he was engaged in constitutionally protected

conduct; (2) the defendant’s adverse action caused him to suffer “an injury that would likely chill

a person of ordinary firmness from continuing to engage in that conduct”; and (3) that the

adverse action “was motivated at least in part as a response to the exercise of [the plaintiff’s]

constitutional rights.” Lucas v. Monroe Cnty., 203 F.3d 964, 973 (6th Cir. 2000). The

satisfaction of some elements is context-dependent and requires consideration of the encounter’s

unique setting. Thaddeus-X, at 388–89 (“Although the elements of a First Amendment

retaliation claim remain constant, the underlying concepts that they signify will vary with the

setting—whether the activity is ‘protected’ or an action is ‘adverse’ will depend on the

context.”).

The Court will first address whether Whiting’s conduct was constitutionally protected,

but its First-Amendment-retaliation analysis will center on whether Defendants’ statements were

sufficiently adverse.

a. Whether Whiting was Engaged in Constitutionally Protected Conduct

To allege a First Amendment retaliation claim, a plaintiff must first establish that he was

engaged in conduct protected by the First Amendment. Thaddeus-X, 175 F.3d at 394–95. Here,

Whiting argues he was engaged in the protected activity of “filing numerous legitimate lawsuits

against the City.” (Doc. 1, at 17.) For the sake of the present motion, Defendants do not contest

that Whiting has sufficiently alleged he was engaged in constitutionally protected activity when

he filed suit against the City. (Doc. 11, at 5.)

A citizen’s right to petition the government is a well-worn constitutional freedom. See

McDonald v. Smith, 472 U.S. 479 (1985); Prof’l Real Estate Investors, Inc. v. Columbia Pictures

Industries, Inc., 508 U.S. 49, 60–61 (1993). Therefore, Whiting has plausibly alleged that he

engaged in behavior insulated by the First Amendment.

b. Whether Defendants’ Conduct was Sufficiently Adverse

To survive a 12(b)(6) motion on his First Amendment retaliation claim, Whiting must

also plausibly allege that he suffered an adverse action “that would deter a person of ordinary

firmness from continuing to engage in [the constitutionally protected] conduct.” Thaddeus-X,

175 F.3d at 394; Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). “Whether an alleged adverse

action is sufficient to deter a person of ordinary firmness is generally a question of fact.”

Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583–84 (6th Cir. 2012) (citing Bell v. Johnson, 308

F.3d 594, 603 (6th Cir. 2002). But if a “plaintiff’s alleged adverse action is ‘inconsequential,’

resulting in nothing more than a ‘de minimis injury,’ the claim is properly dismissed as a matter

of law.” Id. at 584 (citing Bell, 308 F.3d at 603, 606). After all, “[t]here is, of course, a de

minimus level of imposition with which the Constitution is not concerned,” and courts must take

care “to ensure that real injury is involved” so as to not “trivialize the First Amendment by

sanctioning a retaliation claim even if it is unlikely that the exercise of . . . rights was actually

deterred.” Ingraham v. Wright, 430 U.S. 651, 674 (1977); see also Thaddeus-X, 175 F.3d at 396

(“It is not necessarily true . . . that every action, no matter how small, is constitutionally

cognizable.”); Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005) (quoting Thaddeus-X, 175

F.3d at 397). Because the test is an objective one, “the issue is whether a person or ordinary

firmness would be deterred, not whether the [plaintiff] himself actually was deterred.’”

Holzemer, 621 F.3d at 525 (citing Harris, 513 F.3d at 519). However, the fact that a plaintiff

was not in fact deterred by the adverse action can support the conclusion that a person of

ordinary firmness would not be deterred or chilled by the conduct. See Wurzelbacher v. Jones-

Kelley, 675 F.3d 580, 585 (6th Cir. 2012) (“Our conclusion [that a person of ordinary firmness

would not be deterred by the adverse conduct] is supported by the fact that [the plaintiff] was not

deterred or chilled in the exercise of his First Amendment rights as the result of defendants’

wrongful conduct.”).

1. Mike Keith

Defendants argue Whiting’s First Amendment retaliation claim fails because Keith’s

statements to news outlets regarding the effect of Whiting’s litigation on the City’s firework

display were not sufficiently adverse to satisfy the second element. (Doc. 11, at 5–6.)

In Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 585 (6th Cir. 2012), the Sixth Circuit

distinguished between adverse actions causing substantial harm versus having only a de minimis

impact. The adverse action at issue in that case was the defendants’ performance of several

online database searches under the plaintiff’s name without his knowledge. Id. at 584. In

comparison to Sixth Circuit cases in which a defendant did take sufficiently adverse action, the

court observed that the database searches did not cause the plaintiff to “suffer a threat to his

economic livelihood,” subject him to defamation, require him to “endure a search or seizure of

property,” or force him to “experience the public disclosure of intimate or embarrassing

information.” Id. (citations omitted). Though the plaintiff alleged that the searches caused him

to suffer “emotional distress, harassment, personal humiliation, and embarrassment,” the court

found these allegations to be “too generalized to withstand judgment on the pleadings.” Id.

(internal quotation marks omitted) (first citing Mezibov, 411 F. 3d at 722; and then citing Mattox

v. City of Forest Park, 183 F. 3d 515, 523 (6th Cir. 1999)). For good measure, the court

acknowledged it has once before “held that embarrassment and humiliation may be sufficient to

establish a First Amendment retaliation claim,” but cabined that holding to the circumstances of

the case, in which there was a public disclosure of intimate information regarding a rape. Id.

(citing Bloch v. Ribar, 156 F.3d 673, 683 (6th Cir. 1998)). Given this circumscribed context, the

Sixth Circuit has since declined to recognize even the public disclosure of a private report

detailing a “traumatic childhood incident” as sufficiently adverse, despite acknowledging the

plaintiff might have suffered embarrassment as a result. Id. (citing Mattox v. City of Forest Park,

183 F. 3d 515, 522 (6th Cir. 1999)).

In this case, Keith’s statement attributing the City’s fireworks-cancellation decision to

Whiting’s pending litigation does not rise to level of adversity needed to state a claim for First

Amendment retaliation. Keith merely informed news outlets of the reason the City was no

longer planning to host a fireworks display, which appeared to be an inability to staff the event

for fear of ending up on the other side of another of Whiting’s lawsuits.4 Any embarrassment or

4 Keith’s actions have not deterred Whiting from plunging forward in his litigation against the

City and its agents. Despite Whiting’s insistence that he is “NOT an ordinary citizen,” his

persistence in and ability to litigate these actions supports the Court’s conclusion that a person of

ordinary firmness would not be deterred by Defendants’ communications. See Wurzelbacher,

discomfort stemming from such an announcement is de minimis. Cf. McComas v. Board of

Educ., Rock Hill Local Sch. Dist., 422 F. App’x 462, 469 (6th Cir. 2011) (observing that a public

statement characterizing a plaintiff as the “initial aggressor” was “not sufficiently embarrassing

to constitute an adverse action” for First Amendment retaliation purposes). The fallout from that

public announcement—an influx of phone calls and social-media posts urging Whiting to drop

the suits in hopes the display could take place—did not cause Whiting to “suffer a threat to his

economic livelihood,” subject him to defamation,5 or require him to “endure a search or seizure

of property.” See Wurzelbacher, 675 F.3d at 584. Rather, Whiting generally alleges he has

“suffered impairment of reputation and standing in the community, personal humiliation, and

mental anguish” due to the Announcement. (Id. at 19.) While the negative attention may have

caused him emotional stress, that stress did not arise from the disclosure of intimate or

embarrassing private information; the filing of a lawsuit is public information, as evidenced by

ABC’s inclusion of the complaint in its Announcement. See Kutchinski v. Cairy, No. 22-10045,

2022 WL 17540157, at *6 (E.D. Mich. Dec. 8, 2022) (noting that a federal case is a “matter of

public record”); contra. Bloch, 156 F.3d at 683 (finding the public disclosure of a report

including details of a rape to be a sufficiently adverse action). And Whiting’s broad gesture to

reputational damage is not enough to shoulder an adverse-action showing. See Mattox, 183 F. 3d

at 522 (noting that the plaintiff “offers only generalized statements about the effect [of the

alleged adverse action] on her character and reputation, about being held up to ‘ridicule,

contempt, shame, and disgrace,’ and about the effect on her respectability, comfort, and position

675 F.3d at 585 (“Our conclusion [that a person of ordinary firmness would not be deterred by

the adverse conduct] is supported by the fact that [the plaintiff] was not deterred or chilled in the

exercise of his First Amendment rights as the result of defendants’ wrongful conduct.”); (Doc.

16, at 9 (emphasis in original).)

5 See infra Section III.B.

in society”); Kutchinski, 2022 WL 17540157, at *6 (finding that a plaintiff failed to state a viable

First Amendment retaliation claim where the alleged adverse action was the public

communication of a pending federal suit). As a result, Whiting has not plausibly alleged that

Keith’s statements constituted an adverse action with more than a de minimis impact.

2. Brandon Ainsworth

Defendants similarly argue that Ainsworth’s alleged conversation with Keith cannot rise

to an adverse action for First Amendment retaliation purposes. (Doc. 11, at 9–10.) They also

note the dearth of allegations against Ainsworth in the Complaint, which they argue underscores

Whiting’s failure to comply with federal pleading standards. (Id.)

Even giving Whiting the benefit of the doubt and assuming he actually directed a First

Amendment retaliation claim towards Ainsworth, the alleged conversation between Ainsworth

and Keith is not an adverse action. If Keith’s statements could result in, at most, de minimis

harm, Ainsworth’s are capable of even less damage. From Whiting’s telling, Ainsworth’s

statement was not made to various media outlets, but to a single individual. He explained that,

reasonably so, he did not want to order City firefighters to staff the annual fireworks event after

the previous Event’s drama and resulting litigation. As with Keith’s statement, Ainsworth’s

words did not cause Whiting to “suffer a threat to his economic livelihood,” subject him to

defamation,6 or require him to “endure a search or seizure of property.” See Wurzelbacher, 675

F.3d at 584. Because the statement cannot qualify as an adverse action, Whiting fails to

plausibly allege a First Amendment retaliation claim against Ainsworth.

6 Whiting did not assert a defamation claim against Ainsworth. (See generally Doc. 1.)

3. The City

To state a claim for municipal liability, a plaintiff must adequately plead an underlying

constitutional violation. Sensabaugh v. Halliburton, 937 F.3d 621, 630 (6th Cir. 2019) (citing

Robertson v. Lucas, 753 F. 3d 606, 622 (6th Cir. 2014)). Because Keith and Ainsworth’s actions

were not sufficiently adverse to allege a First Amendment retaliation claim, Whiting’s claim

against the City must also fail.7 8

7 Because the Court finds Whiting’s First Amendment retaliation claims fail based on its analysis

of the second element, it need not evaluate whether Whiting has plausibly alleged that

Defendants’ conduct was motivated by Whiting’s protected behavior.

8 In litigating the three cases currently pending before this Court (Case Nos. 3:23-cv-2, 3:23-cv-

220, 3:23-cv-221), Whiting has insisted that he is entitled to the Court’s collective consideration

of the facts underlying each case as part of the City’s “ongoing campaign of harassment” against

him. (See, e.g., Doc. 69, at 4 in Case No. 3:23-cv-2 (urging the Court to allow amendment of his

complaint in his initial filing to include the details underlying the present case because the

proposed and original claims “all constitute an entire campaign of harassment”).) As the Court

stated when overruling Whiting’s objections to Magistrate Judge Poplin’s order denying leave to

amend, “Whiting has no such ‘right.’” (Doc. 81, at 10 (explaining why Bart v. Teleford, 677 F.

2d 622, 625 (7th Cir. 1982), a case cited by Whiting for the proposition that a plaintiff has a right

to present evidence of a campaign of harassment, does not entitle him to have all claims heard

together).)

Whiting attempts to weave a thread between three discrete events: (1) City officials’ actions

towards him at the Event last year; (2) Keith’s and Ainsworth’s communication about cancelling

the 2023 fireworks display; and (3) Mayor Sherlin’s public remarks about settlement

negotiations with Whiting. But the latter two events occurred nearly a year after the first and

were allegedly in retaliation for different protected behavior. See Meeks v. Schofield, 10 F. Supp.

3d 774, 786 (M.D. Tenn. 2014), aff’d, 625 F. App’x 697 (6th Cir. 2015) (finding it

“inappropriate to consider all the allegations as supporting one retaliation claim” when “the

events occurred in some cases many months separately from each other, and in retaliation,

allegedly, for different events”); (Compare Doc. 44-1, at 23 (alleging that Mayor Sherlin

retaliated against Whiting for “speaking with individuals and Council Members at the Athens

City Council’s regular public monthly meeting”), with Doc. 44-1, at 16 (alleging that the City

retaliated against Whiting for “recording and reporting events [at the Picnic], and by speaking

with individuals at the [Picnic]”).) The Court is thus not required to collectively consider facts at

the heart of the three separate lawsuits currently pending before it. Furthermore, the Court has

allowed Whiting’s First Amendment retaliation claims related to the Event proceed. (See Doc.

113 in Case No. 3:23-cv-2.) To again consider the allegedly adverse actions at issue in that case

in conjunction with those now before the Court would be needlessly duplicative and would

change nothing about the Court’s analysis of the instant motion.

B. State-Law Defamation

Whiting also brings state-law defamation claims against the City and Keith, alleging that

“Keith, acting on behalf of the City, communicated . . . that Whiting’s lawsuits forced the City

of Athens to cancel its annual fireworks display.” (Doc. 1, at 19.) Defendants argue that the

City is immune from suit for defamation under Tennessee law and that Keith’s statement is

neither defamatory nor capable of conveying defamatory meaning. (Doc. 11, at 11–13.)

Under Tennessee law, a plaintiff pursuing a defamation claim must show that: “(1) a

party published a statement; (2) with knowledge that the statement is false and defaming to the

other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to

ascertain the truth of the statement.” Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571-72

(Tenn. 1999). “A claim for common law defamation may be based upon written (libel) or

spoken (slander) words.” Battle v. A & E Television Networks, LLC, 837 F. Supp. 2d 767, 770

(M.D. Tenn. 2011) (citing Quality Auto Parts Co., Inc. v. Bluff City Buick Co., 876 S.W.2d 818,

820 (Tenn. 1994)). “Whatever the method utilized, ‘the basis for an action for defamation . . . is

that the defamation has resulted in an injury to the person’s character and reputation.’” Finley v.

Kelly, 384 F. Supp. 3d 898, 906 (M.D. Tenn. 2019) (quoting Davis v. The Tennessean, 83

S.W.3d 125, 128 (Tenn. Ct. App. 2001)). It is a question of law for a court whether a

communication has the capacity to be understood as defamatory. Pate v. Service Merch. Co.,

Inc., 959 S.W.2d 569 (Tenn. Ct. App. 1996).

In determining whether a communication is capable of being understood as defamatory,

Tennessee courts “have consistently followed the prevailing common-law practice of construing

the allegedly libelous words in their ‘plain and natural’ import.” McWhorter v. Barre, 132

S.W.3d 354, 364 (Tenn. Ct. App. 2003) (quoting Memphis Pub. Co. v. Nichols, 569 S.W.2d 412,

419 n.7 (Tenn. 1978)). Rather than merely cause annoyance, offense, or embarrassment,

defamatory remarks “must be reasonably construable as holding the plaintiff up to public hatred,

contempt, or ridicule. They must carry with them an element of disgrace.” Id. (internal

quotation marks omitted) (quoting Stones River Motors, Inc. v. Mid-S. Pub. Co., 651 S.W.2d

713, 719 (Tenn. Ct. App. 1983), abrogated on other grounds as recognized by Zius v. Shelton,

No. E1999-01157-COA-R3-CV, 2000 WL 739466, at *3 (Tenn. Ct. App. June 6, 2000)).

i. Mike Keith

Taking the facts as pled, Whiting has not plausibly alleged that Keith’s statements to

local media are defamatory. Communicating that the City would not be hosting the same event

that precipitated Whiting’s suit against it is not “reasonably construable as holding the plaintiff

up to public hatred, contempt, or ridicule,” nor does it bring with it any “element of disgrace.”

See McWhorter, 132 S.W.3d at 364 (citations omitted). As Defendants note, the statement is

merely one of “cause and effect”: the events of the prior year’s fireworks display, with Whiting

at their center, led the City to conclude that the risks of rehosting the event outweighed the

benefits. (Doc. 11, at 14.) Taken at their “plain and natural import,” Keith’s words provide an

innocuous explanation to the public for why the City will not be hosting a fireworks display this

year. Just because the statement was communicated to the public and mentioned Whiting by

name does not mean it is defamatory in nature; nor does his expressed discomfort with the

statement and the publicity it attracted make it so. See Davis v. Covenant Presbyterian Church

of Nashville, No. M2014-02400-COA-R9-CV, 2015 WL 5766685, at *4 (Tenn. Ct. App. Sept.

30, 2015) (finding that the fact a plaintiff understood a particular communication discussing

lawsuits he filed to be defamatory did not mean it could be “reasonably construed as

defamatory”). Because Keith’s communication to local media cannot be construed as

defamatory, Whiting has not pled a state-law defamation claim against him.

ii. The City

Whiting also brings a state-law defamation claim against the City. (Doc. 1, at 19.)

Defendants contend that Tennessee Code Annotated § 29-20-201—the Tennessee Governmental

Tort Liability Act (“TGTLA”)—protects the City from liability. (Doc. 11, at 11.)

The TGTLA governs tort liability for Tennessee’s governmental entities and employees

and provides, with some exceptions, that “all governmental entities shall be immune from suit

for any injury which may result from the activities of such governmental entities wherein such

governmental entities are engaged in the exercise and discharge of any of their functions,

governmental or proprietary.” Tenn. Code Ann. § 29-20-201(a). In addition to affording

immunity to governmental entities, the TGTLA also extends immunity to employees of those

entities when the TGTLA “removes” governmental-entity immunity: “No claim may be brought

against an employee . . . [when] the immunity of the governmental entity is removed by [the

TGTLA.]” Id. § 29-20-310(b). In other words, the TGTLA does not provide governmental

entities and employees with simultaneous immunity; when the TGTLA “removes” immunity for

the governmental entity, a governmental employee may be held liable. See Taylor v. Harsh, No.

M2019-01129-COA-R3-CV, 2020 WL 864989, at *4 (Tenn. Ct. App. Feb. 21, 2020); Colson v.

City of Alcoa, No. 3:16-cv-377, 2017 WL 1730911, at *12 (E.D. Tenn. May 2, 2017). One

instance in which the TGTLA “removes” governmental-entity immunity is for an “injury

proximately caused by a negligent act or omission of any employee within the scope of his

employment,” except when the injury arises out of “[f]alse imprisonment pursuant to a mittimus

from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel,

slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of

privacy, or civil rights.” Tenn. Code Ann. § 29-20-205(2).

The City is a governmental entity as defined by the TGTLA, and the statute’s provisions

specifically prohibit suits against a governmental entity for libel, slander, and other intentional

torts. See id.; see also Iles v. Metro. Gov’t of Nashville & Davidson Cnty., 500 F. Supp. 3d 711,

716 (M.D. Tenn. 2020) (noting that defamation (libel and slander) is specifically listed as

“exceptions-to-the-exception to sovereign immunity” in Tenn. Code Ann. § 29-20-205(2)); Bly v.

Keesling, No. E2002-01115-COA-R3CV, 2002 WL 31863297, at *6 (Tenn. Ct. App. Dec. 23,

2002) (“The [TGTLA] specifically prohibits claims against a governmental entity for, among

other things, libel and slander. Since Plaintiff's defamation claim actually is a claim for libel

and/or slander against the City of Kingsport, it is barred by [the TGTLA].”) (internal citations

omitted); Sides v. Cooper, No. W2011-00813-COA-R3CV, 2011 WL 6712717, at *2 (Tenn. Ct.

App. Dec. 21, 2011) (“The case at bar involves a tort claim brought against a governmental

entity, and[,] therefore, it is governed by the [T]GTLA.”) (citation omitted). Therefore, the

TGTLA insulates the City from suit.9

9 Though Whiting mounts no defense to the City’s immunity argument, there is reason to believe

the TGTLA may not apply when the relief sought is primarily declaratory or injunctive, as it is

here. See, e.g., Van Winkle v. City of Lavergne, No. M2000-01784-COA-R3-CV, 2001 WL

1141349, at *3 (Tenn. Ct. App. Sept. 27, 2001) (noting that the Tennessee Court of Appeals has

before “determined that the [T]GTLA does not provide a county immunity in an action for a

declaratory judgment” when the plaintiff sought “a declaration that certain roads were public

roads” because “the case did not contain allegations of tortious activity, nor did it seek to impose

liability”) (citing Hackett v. Smith Cnty., 807 S.W.2d 695 (Tenn. Ct. App. 2001)); Peterson v.

Putnam Cnty., No. M2005-02222-COA-R3CV, 2006 WL 3007516, at *11 (Tenn. Ct. App. Oct.

19, 2006) (acknowledging that Tennessee courts have held that “an equitable action to abate a

nuisance created by a governmental entity is permitted outside of terms of the [T]GTLA” and

that “nothing in the [TGTLA] removes the inherent power of a court of equity to abate a

nuisance created by a governmental entity”) (citation and quotation marks omitted). However,

this exception appears to be limited to circumstances in which either (1) “the case did not contain

Even if the TGTLA did not apply, Whiting failed to state a claim against the City for

state-law defamation. Whiting alleges in his complaint that “Keith, acting on behalf of the City,

communicated statements of fact about [Whiting]” that were defamatory. (Doc. 1, at 19.) But,

as analyzed above, none of Keith’s statements—the only City employee against whom Whiting

brought a defamation claim in this action—can, as a matter of law, be understood as defamatory.

See Shull v. Walgreen Co., 782 F. App’x 373, 376–77 (6th Cir. 2019) (imputing the plaintiff’s

actions to the city in the context of a Tennessee state-law defamation claim). Nor is the Court

obligated to collectively consider the defamatory nature of all statements referenced throughout

the three suits Whiting filed in this Court that are potentially attributable to the City. See supra

Section III.A.i.a.3. Therefore, Whiting’s defamation claim against the City fails.

allegations of tortious activity” or (2) the plaintiff seeks equitable relief to abate a city-caused

nuisance. See Van Winkle, 2001 WL 1141349, at *3; Peterson, 2006 WL 3007516, at *11. This

case does not fall into either limited context; defamation plainly constitutes tortious conduct, and

this is not a nuisance action. Outside those contexts, Tennessee courts have refrained from

addressing whether the TGTLA applies when a complaint seeks only equitable relief. See Smith

v. Maury Cnty., No. 01A01-9804-CH-00207, 1999 WL 675135, at *3 (Tenn. Ct. App. Sept. 1,

1999) (“We take no position on whether a plaintiff would also have to comply with the GTLA if

the complaint sought only injunctive relief.”).

Moreover, the Sixth Circuit has recognized that, barring narrow exceptions, “equity does not

enjoin a libel or slander [action] and that the only remedy for defamation is an action for

damages.” Lothschuetz v. Carpenter, 898 F.2d 1200, 1206 (6th Cir. 1990). Unless a “narrow

and limited injunction” is necessary upon a determination that the issued statements are “false

and libelous,” granting such relief “runs afoul of the First Amendment and constitutes a prior

restraint on what might otherwise be lawful speech.” Saidak v. Schmidt, 501 F. Supp. 3d 577,

596 (E.D. Tenn. 2020) (quoting Williams v. Rigg, 458 F. Supp. 3d 468, 478 (S.D. W. Va. 2020))

(internal quotation marks omitted). Here, Whiting seeks to enjoin Defendants from further

speech before the at-issue statements have been found unconstitutional. Granting such a request

would impermissibly encroach on Defendants’ own First Amendment rights, and the Court

would be loath to permit Whiting to side-step the TGTLA’s grant of immunity due to his

improper request for relief.

C. Attorney Fees and Costs

Defendants request an award of the attorney fees and costs incurred in defending this

action pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, and Tennessee Code Annotated § 29-20-

113. (Doc. 11, at 15.) However, Whiting failed to acknowledge this request in his response.

(See generally Doc. 16.) To allow opportunity for both parties to fully brief the issue,

Defendants are ORDERED to file a separate motion for attorney’s fees in accordance with the

Federal Rules of Civil Procedure.

D. Leave to Amend

Whiting devotes a few lines at the end of his response brief to requesting leave to amend

his complaint in the event the Court finds it deficient. (Doc. 16, at 15.) In support of his request,

Whiting cites a D.C. Circuit case for the proposition that “a plaintiff must be given a chance to

amend the complaint before the district court dismisses an action with prejudice” and proposes

the addition of certain factual allegations, including “that Ainsworth prompted and requested the

retaliatory announcement” made by Keith. (Id. (citing McCray v. Veneman, 298 F. Supp. 2d 13

(D.D.C. 2002).)

Whiting is not entitled to amend his complaint. The Court retains discretion as to

whether amendment is warranted and finds that, here, amendment would be futile. See Zenith

Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330–31 (1971) (holding that leave to

amend ultimately lies within a court’s discretion). The incorporation of additional detail relating

to Ainsworth’s participation in the allegedly adverse action would not change the fact that the

action is not sufficiently adverse. See supra Section III.A. Taking the proposed assertion as

true, Ainsworth, at most, instructed Keith to communicate to local media that the City’s annual

fireworks display would not take place this year due to Whiting’s pending lawsuits. (Doc. 16, at

15.) For the same reason Keith’s communication of this fact does not constitute a sufficiently

adverse action against Whiting, Ainsworth’s alleged behavior is de minimis for First Amendment

retaliation purposes. See supra Section III.A. Because amendment would be futile, the Court

DENIES Whiting’s motion. (Doc. 16, at 15.)

IV. CONCLUSION

For the reasons stated above, the Court will GRANT Defendants’ joint motion to dismiss

all claims against them (Doc. 10). The Court will also DENY Whiting’s motion to amend his

complaint (Doc. 15). Accordingly, the Court will DISMISS WITHOUT PREJUDICE all

claims in this matter. Should they wish to seek attorney’s fees, Defendants are ORDERED to

file a separate motion in accordance with the Federal Rules of Civil Procedure. The dismissal of

this action renders Whiting’s pending motion for leave to file an interlocutory appeal (Doc. 25)

MOOT.

AN APPROPRIATE JUDGMENT SHALL ENTER.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE