The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
FRED AUSTON WORTMAN, III, )
)
Plaintiff, )
) No. 3:20-cv-00156
v. )
) JUDGE RICHARDSON
STATE OF TENNESSEE BOARD OF )
PAROLE, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Pending before the Court is a pro se motion for reconsideration of the Court’s Order and
Memorandum entered on April 3, 2020 (Doc. No. 15) and a supplement to the motion (Doc. No.
17),1 both filed by Plaintiff Fred Auston Wortman, III.
I. BACKGROUND
Plaintiff, an inmate of the Morgan County Correctional Complex in Wartburg, Tennessee,
filed this pro se action under 42 U.S.C. § 1983 against the State of Tennessee Board of Parole
(“Parole Board”), Gary Faulcon, Gay Gregson, Roberta Kustoff, Richard Montgomery, Tim
Gobble, Zane Duncan, Barrett Rich, Rob Clark, Jim Purviance, Gayle Barbee, Richard O'Bryan,
Mark Edward Davidson, Paul Hagerman, and f/n/u Stewart. (Doc. No. 1). Plaintiff sued the non-
entity Defendants in their individual and official capacities.
By Order and Memorandum entered on April 3, 2020, the Court conducted the required
screening of the complaint pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§
1 The supplement serves primarily to apprise the Court of his view of the relevant standards for reviewing the
sufficiency of a complaint. Most of the authorities he cites are inapplicable because they are state court cases
discussing Tennessee law regarding this topic. In any event, the Court is well aware of the standard it is to apply in
this (federal) case and it has in fact applied it in this case.
1915(e)(2) and 1915A and dismissed all claims against all Defendants. (Doc. Nos. 8 and 9). First,
the Court found that, to the extent Plaintiff seeks damages from the Parole Board, the state of
Tennessee, or any Parole Board member in his or her official capacity, such a request is barred by
the Eleventh Amendment and does not fall within the purview of Section 1983. (Doc. No. 8 at 5).
Second, the Court found that the complaint fails to state damages claims upon which relief can be
granted under Section 1983 against Defendant Faulcon and any other Parole Board member in his
or her individual capacity. (Id. at 5-6). Third, the Court dismissed the claims against Defendants
Gregson, Kustoff, Montgomery, Gobble, Duncan, Rich, Purviance, Barbee, and O'Bryan in their
individual capacities because Plaintiff did not allege the personal involvement of these Defendants
in the facts set forth in the complaint. (Id. at 6). Fourth, the Court found that Plaintiff had no federal
due process claims based upon his parole hearing, the process leading up to his parole hearing, or
the denial of his parole; further, Plaintiff’s plea agreement does not entitle him to an earlier release.
(Id. at 7-8). Fifth, the Court dismissed Plaintiff’s claims against state prosecutors Hagerman and
Davidson because they are protected by absolute immunity. (Id. at 9). Sixth, the Court explained
that it has no jurisdiction under Section 1983 to issue a writ of certiorari finding that the Parole
Board acted illegally, fraudulently, or arbitrarily. (Id. at 10). Seventh, the Court found that, because
Plaintiff failed to state a claim against any of Defendants for a violation of his constitutional rights,
Plaintiff’s Section 1983 civil conspiracy claim against all Defendants failed. (Id. at 11).
Alternatively, the Court found that, even if there were a separate and actionable constitutional
injury, the Court would dismiss the civil conspiracy claims because Plaintiff has not alleged
sufficient facts to support them. (Id.) Finally, the Court found that, to the extent Plaintiff asked
the Court to initiate criminal charges against any Defendant on behalf of Plaintiff, the Court lacked
jurisdiction to do so. (Id. at 12).
The Court’s dismissal of this action was without any prejudice to Plaintiff’s ability to seek
any relief that may be available to him by way of a habeas corpus filing. (Id. at 12 & n.6).
II. ANALYSIS
Because there is no federal procedural rule permitting a “motion for reconsideration,” the
Court first considers Plaintiff’s motion (Doc. No. 15) as a motion to alter or amend judgment under
Rule 59(e) of the Federal Rules of Civil Procedure. Motions to alter or amend judgment may be
granted if there is a clear error of law, newly discovered evidence, an intervening change in
controlling law, or to prevent manifest injustice. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d
804, 834 (6th Cir.1999). The movant may not use Rule 59 to re-argue the case or to present
evidence that should have been before the court at the time judgment entered. See Roger Miller
Music, Inc., v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (collecting cases).
Rule 59 motions must be filed no later than 28 days after the entry of judgment. Fed. R.
Civ. P. 59(e). Here, Plaintiff’s motion was filed within 28 days after entry of judgment; thus, the
motion is timely under Rule 59.
In his Rule 59 motion to alter or amend the Court’s dismissal of his Section 1983 action,
Plaintiff does not seek to amend his complaint to add claims based on newly discovered evidence
or to add different theories of relief than those theories Plaintiff presented in his original complaint.
Plaintiff does not allege that there has been an intervening change in controlling law that would
require the Court to revisit its previous analysis. Instead, he contends that the Court erred in
dismissing this action. Plaintiff’s argument largely rests on the alleged ex parte communication
between Defendants Stewart, Sevier, and Davidson prior to Plaintiff’s parole hearing2 and on
2 Plaintiff alleges that approximately twenty-four hours prior to Plaintiff’s parole hearing, Defendant Stewart contacted
Defendant Sevier “in order to pressure and influence Mr. Sevier to negatively change a risk assessment score that had
been assigned to” Plaintiff. (Doc. No. 1 at 24). Immediately prior to the hearing, Defendant Davidson participated in
a “closed-door, private, secret ex parte meeting with one or more members of the Parole Board for the purpose of
Defendants Davidson and Hagerman’s alleged “speaking against and breaching [of]” Plaintiff’s
plea agreement (Doc. No. 1 at 21), allegations on which Plaintiff elaborated at length in his
complaint.
In asking the Court to vacate its prior decision to dismiss his complaint, Plaintiff contends
that “(i) his legal rights to a full, fair, and meaningful administrative hearing have been invaded by
the Defendants in the instant matter based upon the ex parte communications to one or more
members of the Board by Defendant Davidson and based upon the acts engaged in by other
Defendants which comprise a civil conspiracy; (ii) the federal statute 42 U.S.C. § 1983 provides
Plaintiff with a general right to sue for the invasion of Plaintiff's rights; and (iii) this federal court
is authorized to ‘use any available remedy to make good the wrong done’ by Defendants to
Plaintiff.” (Doc. No. 15 at 5). Plaintiff explains that “he is relying on the equitable powers of the
Court to form appropriate relief that may include remand to the administrative agency with
instructions.” (Id. at 15).
The Court has carefully reviewed Plaintiff’s motion to reconsider and the Court’s previous
rulings in this case. The Court is not persuaded that its prior decision is erroneous. Plaintiff
continues to seek from this Court a determination that his parole proceedings were improper or
invalid for a variety of reasons, plus resulting “equitable relief” Plaintiff assures the Court it can
fashion. However, as the Court has explained, this Court simply cannot require the Parole Board
to parole Plaintiff or re-do Plaintiff’s most recent parole proceedings.
In Tennessee, decisions regarding parole are discretionary and are vested exclusively in the
Parole Board. Doyle v. Hampton, 340 S.W.2d 891, 893 (Tenn. 1960). Therefore, the only vehicle
for obtaining limited judicial review of a Parole Board's decision to deny parole is a common law
influencing the Board to deny parole release” to Plaintiff “and to set off any review of [Plaintiff’s] release as long as
possible.” (Id. at 25).
writ of certiorari. Stone v. Tenn. Bd. of Parole, No. M201601730COAR3CV, 2017 WL 4217164,
at *4 (Tenn. Ct. App. Sept. 20, 2017), perm. app. denied (Tenn. 2017). A common law writ of
certiorari is filed in state court, not here in federal court. See Whipple v. Tenn. Bd. of Paroles, No.
1:17-CV-148-RLJ-SKL, 2018 WL 1387066, at *7 (E.D. Tenn. Mar. 19, 2018) (“To state the
obvious, this is a federal forum, not a state court. This Court has no jurisdiction under § 1983 to
issue a writ of certiorari finding that the Parole Board acted illegally, fraudulently, or arbitrarily
when it denied Plaintiff parole.”). A state court will issue a writ of certiorari where a prisoner
makes a showing, as Plaintiff here urges he can, that there was a “fundamental irregularity in the
Board's procedures” or that “the Board acted illegally, fraudulently, or arbitrarily.” Williams v.
Tenn. Bd. of Prob. & Parole, No. M2006-02336-COA-R3CV, 2007 WL 3132935, at *4 (Tenn.
Ct. App. Oct. 26, 2007). If a prisoner is dissatisfied with the ruling of the lower state court on his
request for a writ, he or she may appeal to the Tennessee Court of Appeals. This Court has no role
in that process. Wells v. Tenn. Bd. of Paroles, 909 S.W.2d 826, 827 (Tenn. Ct. App. 1995).
True, as Plaintiff insists, this Court has the power under certain circumstances to craft
equitable remedies. But Heck v. Humphrey, 512 U.S. 477 (1994), bars all claims for injunctive or
declaratory relief that would necessarily undermine the denial of parole. Id. at 486-87, 489. “[A]
state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought
(damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to
conviction or internal prison proceedings)—if success in that action would necessarily demonstrate
the invalidity of the confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)
(emphasis in original). Granting Plaintiff a new parole hearing and declaring that Defendants
violated his constitutional rights in denying him parole would implicate the validity of his
continued confinement. See Whipple, 2018 WL 1387066, at *7 (citing Butterfield v. Bail, 120 F.3d
1023, 1024 (9th Cir. 1997)). Plaintiff has not indicated that the decision to deny him parole has
been overturned or otherwise has been invalidated. Therefore, any request by Plaintiff for
injunctive or declaratory relief is precluded by Heck, and therefore cannot be entertained in this
lawsuit.
Accordingly, the Court finds no clear error of law, no newly discovered evidence, or no
intervening change in controlling law justifying the granting of Plaintiff’s motion to alter or amend
judgment under Rule 59(e), Fed. R. Civ. P.; see GenCorp, Inc., 178 F.3d 804, 834. Nor do the
circumstances alleged by Plaintiff require the Court to alter or amend its previous decision to
prevent manifest injustice. See id. Plaintiff’s motion for reconsideration, which the Court construes
as a motion to alter or amend judgment (Doc. No. 15), is hereby DENIED.
Federal Rule of Civil Procedure 60(b) allows a court to relieve a party from a final
judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, or the judgment is based on an earlier
judgment that has been reversed or vacated, or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief. Fed. R. Civ. P. 60(b)(1)-(6). A motion for relief from a
judgment or order under Rule 60 must be filed “within a reasonable time—and for reasons (1), (2),
and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”
Fed. R. Civ. P. 60(c)(1). Therefore, Plaintiff’s motion (Doc. No. 15), if construed as a Rule 60
motion, was timely filed.
None of the enumerated grounds for relief under Rule 60(b)(1)-(5) apply in this case,
however. As for Rule 60(b)(6), it is a catchall provision that provides for relief from a final
judgment for any reason justifying relief not captured in the other provisions of Rule 60(b).
McGuire v. Warden, 738 F.3d 741, 750 (6th Cir. 2013). Rule 60(b)(6) only applies in exceptional
or extraordinary circumstances where principles of equity mandate relief. Jd. “The decision to
grant Rule 60(b)(6) relief is a case-by-case inquiry that requires the trial court to intensively
balance numerous factors, including the competing policies of the finality of judgments and the
incessant command of the court’s conscience that justice be done in light of all the facts.” Blue
Diamond Coal v. Trustees of United Mine Workers, 249 F.3d 519, 529 (6th Cir. 2001); see also
Thompson vy. Bell, 580 F.3d 423, 442 (6th Cir. 2009). A district court’s discretion in deciding a
Rule 60(b)(6) motion is especially broad due to the underlying equitable principles involved. Tyler
y. Anderson, 749 F.3d 499, 509 (6th Cir. 2014).
Here, Plaintiff does not describe any exceptional or extraordinary circumstances that
mandate relief. The relief sought by Plaintiff is relief that, at this time, he must pursue in state court
by way of a writ of certiorari.
Il. CONCLUSION
Accordingly, Plaintiff's filing (Doc. No. 15), whether construed as a Rule 59(e) motion to
alter or amend judgment or a Rule 60(b) motion for relief from a judgment or order, is hereby
DENIED.
IT IS SO ORDERED.
ELIRICHARDSONss—
UNITED STATES DISTRICT JUDGE