Petty v. Department of Children Services

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

AN JANI PETTY, J.P., and R.P.,

Plaintiffs, Case No. 3:19-cv-01085

v. Judge Aleta A. Trauger

Magistrate Judge Alistair E. Newbern

TENNESSEE DEPARTMENT OF

CHILDREN=S SERVICES, et al.,

Defendants.

To: The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

This civil rights action under 42 U.S.C. ' 1983 arises out of the removal of pro se

Plaintiff An Jani Petty=s children from her custody by Defendant the Tennessee Department of

Children’s Services (DCS) based on statements made by Defendant Knokeya Johnson, a DCS

employee. (Doc. No. 1.) Petty alleges violations of her civil and constitutional rights.1 DCS and

1 It appears that Petty, who does not allege that she is an attorney, also intends to

bring this action on behalf of her two minor children. While 28 U.S.C. ' 1654 permits

individuals to Aplead and conduct their own cases personally,@ without an attorney, this provision

does not authorize a non-attorney to bring suit on behalf of a third person. See Coleman v.

Indymac Venture, LLC, 966 F. Supp. 2d 759, 767 (W.D. Tenn. 2013) (adopting report &

recommendation) (AThe federal courts have long held that Section 1654 preserves a party=s right

to proceed pro se, but only on his own claims; only a licensed attorney may represent other

persons.@). Thus, although a parent may bring suit on behalf of a minor child, he or she may not

do so pro se—that is, the parent can only bring suit on behalf of the minor child through an

attorney. See Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (A[P]arents cannot appear

pro se on behalf of their minor children because a minor=s personal cause of action is her own

and does not belong to her parent or representative.@). Therefore, Petty may not bring claims on

behalf of her minor children unless they are represented by an attorney. Because no attorney has

appeared on the children’s behalf, their claims will be dismissed without prejudice.

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Johnson have filed a motion to dismiss Petty=s complaint under Federal Rules of Civil Procedure

12(b)(1), 12(b)(5) and 12(b)(6). (Doc. No. 5.) The defendants argue that Petty=s complaint should

be dismissed because (1) the Court lacks subject matter jurisdiction under the Eleventh

Amendment, (2) Petty failed to effect service of process within ninety days of filing her

complaint in violation of Fed. R. Civ. P. 4(m), and (3) Petty=s claims are untimely and fail to

state any claims for which relief can be granted. (Doc. Nos. 5–6.) Petty has responded in

opposition to the motion to dismiss. (Doc. No. 9.) For the reasons that follow, the Magistrate

Judge will recommend that the defendants= motion to dismiss be granted and this action be

dismissed with prejudice.

I. Factual and Procedural Background2

Petty filed this action on December 6, 2019, bringing claims under § 1983 arising out of

her children being taken into custody by DCS on October 17, 2018. (Doc. No. 1.) Petty=s

complaint alleges that Knokeya Johnson, a DCS employee, Astereotyped@ her and made Afalse

statements@ in order to justify taking custody of her children. (Id.) Specifically, Petty alleges that

Johnson Alied in the petition@ for custody that Petty Awas under the influence of alcohol@ in order

to get her children Ainto custody due to their big bonus of taking children in.@ (Id.) Petty sues

Johnson in her official capacity and seeks $150,000.00 in damages. (Id.)

On May 8, 2020, DCS and Johnson filed a motion to dismiss, arguing that the Court lacks

subject matter jurisdiction over Petty=s claims under Rule 12(b)(1) because the Eleventh

Amendment bars suits for money damages against a state, its agencies, and its officials sued in

their official capacities, and that Petty=s claims should also be dismissed under Rule 12(b)(6)

2 The facts in this section are drawn from Petty=s complaint (Doc. No. 1) and taken

as true for purposes of resolving the pending motion to dismiss.

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because her claims are barred by the applicable the statute of limitations and do not allege

sufficient facts to be found plausible. (Doc. No. 6.) DCS and Johnson further assert under Rule

12(b)(5) that Petty=s complaint should be dismissed without prejudice for failure to effect timely

service of process. (Id.)

On May 26, 2020, Petty filed a response in the form of a letter. (Doc. No. 9.) In her

response, Petty restates that, in October 2018, her children Awere taken into custody due to

Knokeya Johnson stating in [a] petition that she smelled >alcohol= on my person, accusing me of

drinking alcohol.@ (Id.) Petty states that Ait took [her] a while to file suit@ because she had been

demoted and eventually fired from her job and that Amoney was less and shifting.@ (Id.) As to

service of process, Petty states that Athe green card is still in Nashville at the mailing distribution

center,@ and that she has Anothing to do with how things are mailed.@ (Id.)

II. Legal Standards

A. Dismissal for Lack of Subject Matter Jurisdiction

Federal courts are Acourts of limited jurisdiction@ possessing Aonly that power authorized

by Constitution and statute.@ Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a court=s

constitutional or statutory power to hear the case before it. Fed. R. Civ. P. 12(b)(1); Tallon v.

Lloyd & McDaniel, 497 F. Supp. 2d 847, 851 (W.D. Ky. 2007). Such a challenge can come in

two forms. A facial attack accepts the material allegations of the complaint as true but insists

nonetheless that the court lacks subject matter jurisdiction to hear the case. DLX, Inc. v.

Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A factual attack claims that the court lacks subject

matter jurisdiction irrespective of what the plaintiff has pleaded, and requires the trial court to

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weigh the evidence before it in determining whether that is the case. Id. AA state=s assertion of

sovereign immunity constitutes a factual attack.@ Hornberger v. Tennessee, 782 F. Supp. 2d 561,

564 (M.D. Tenn. 2011). In response to such an attack, the plaintiff bears the burden of

establishing the existence of subject matter jurisdiction. DLX, Inc., 381 F.3d at 516. In ruling on

a factual attack, the trial court may rely on materials outside the pleadings without converting the

12(b)(1) motion into one for summary judgment. Cline v. United States, 13 F. Supp. 3d 868, 871

(M.D. Tenn. 2014).

B. Dismissal for Failure to State a Claim

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

must Aconstrue the complaint in the light most favorable to the plaintiff, accept all well-pleaded

factual allegations in the complaint as true, and draw all reasonable inferences in favor of the

plaintiff.@ Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Federal Rule of

Civil Procedure 8(a)(2) requires only that a complaint contain Aa short and plain statement of the

claim[.]@ Fed. R. Civ. P. 8(a)(2). However, A[t]he factual allegations in the complaint need to be

sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must

plead >sufficient factual matter= to render the legal claim plausible, i.e., more than merely

possible.@ Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).

AThe plausibility standard 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

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A plaintiff must plead more than Alabels

and conclusions,@ Aa formulaic recitation of the elements of a cause of action,@ or Anaked

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assertions devoid of further factual enhancement.@ Id. (third alteration in original) (quoting

Twombly, 550 U.S. at 555, 557). AA 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.@ Id.

Because Petty proceeds pro se, the Court construes her filings Aliberally@ and holds her

complaint A>to less stringent standards than formal pleadings drafted by lawyers[.]=@ Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). There are

limits to liberal construction, however, and Acourts are not required to conjure up unpleaded

allegations or guess at the nature of an argument.@ Brown v. Cracker Barrel Rest., 22 F. App=x

577, 578 (6th Cir. 2001) (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

C. Dismissal for Insufficient Service of Process

Service of process must comply with Federal Rule of Civil Procedure 4. Fed. R. Civ. P. 4.

When it does not, a defendant may move to dismiss based on insufficient service of process

under Federal Rule of Civil Procedure 12(b)(5). Fed. R. Civ. P. 12(b)(5). A[T]he requirement of

proper service of process >is not some mindless technicality[,]=@ Friedman v. Est. of Presser, 929

F.2d 1151, 1156 (6th Cir. 1991) (quoting Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir.

1987)), nor is it Ameant to be a game or obstacle course for plaintiffs[,]@ Ace Am. Ins. Co. v.

Meadowlands Dev. Ltd. Pship, 140 F. Supp. 3d 450, 455 (E.D. Pa. 2015). Rather, it goes to the

very heart of a court=s ability to hear a case. A[W]ithout proper service of process, consent,

waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant.@

King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012); see also Mann v. Castiel, 681 F.3d 368, 372

(D.C. Cir. 2012) (explaining that A[s]ervice is . . . not only a means of >notifying a defendant of

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the commencement of an action against him,= but >a ritual that marks the court=s assertion of

jurisdiction over the lawsuit=@ (citation omitted)). Where personal jurisdiction is not properly

established, a court cannot exercise its authority consistent with due process of law. See

Friedman, 929 F.2d at 1156–57.

Federal Rule of Civil Procedure 4(m) provides that, A[i]f a defendant is not served within

90 days after the complaint is filed, the court—on motion or on its own after notice to the

plaintiff—must dismiss the action without prejudice against that defendant or order that service

be made within a specified time.@ Fed. R. Civ. P. 4(m). The Court must extend the time for

service upon a showing of good cause, and the Court may exercise its discretion to permit late

service even where a plaintiff has not shown good cause. Fed. R. Civ. P. 4(m) advisory

committee=s note to 1993 amendment (explaining that Rule 4(m) Aexplicitly provides that the

court shall allow additional time if there is good cause for the plaintiff=s failure to effect

service . . . and authorizes the court to [grant relief] . . . even if there is no good cause shown@);

see also Henderson v. United States, 517 U.S. 654, 662B63 (1996); DeVane v. Hannah, No.

3:11-cv-00389, 2011 WL 5916433, at *2 (M.D. Tenn. Nov. 28, 2011). Otherwise, the language

of Rule 4(m) mandates dismissal, either on motion or sua sponte. Fed. R. Civ. P. 4(m); see also

Byrd v. Stone, 94 F.3d 217, 219 & n.3 (6th Cir. 1996). In light of this plain language, it is well

established that Rule 4(m) empowers a court to dismiss complaints without prejudice Aupon the

court=s own initiative with notice to the plaintiff.@ Hason v. Med. Bd. of Cal., 279 F.3d 1167,

1174 (9th Cir. 2002); see also Friedman, 929 F.2d at 1155 n.4 (noting that Athe issue of

ineffective service of process may be raised sua sponte@).

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III. Analysis

A. Eleventh Amendment

An analysis of a Rule 12(b)(6) motion to dismiss for failure to state a claim is only

properly undertaken when the court is satisfied that it has jurisdiction over the action. Bell v.

Hood, 327 U.S. 678, 682 (1946). DCS and Johnson state that Petty=s claims against them are

barred by sovereign immunity under the Eleventh Amendment. Because the Eleventh

Amendment is Aa true jurisdictional bar,@ the defendants= sovereign immunity defense must be

analyzed before their Rule 12(b)(6) motion. Russell v. Lundergran, 784 F.3d 1037, 1046 (6th

Cir. 2015).

AThe Eleventh Amendment to the United States Constitution bars suits by private

individuals against nonconsenting states in federal court, unless Congress has validly abrogated

the state=s immunity, or the state has waived its immunity.@ Henderson v. Sw. Tenn. Cmty. Coll.,

282 F. Supp. 2d 804, 806 (W.D. Tenn. 2003) (footnote omitted). It is well established that

Congress did not intend to abrogate Eleventh Amendment immunity for suits under 42 U.S.C. '

1983. See Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017) (citing Will v. Mich. Dept of State

Police, 491 U.S. 58, 66 (1989)); Berndt v. Tennessee, 796 F.2d 879, 881 (6th Cir. 1986)

(collecting cases). Nor has Tennessee consented to suit under Section 1983, either Aexpressly or

by implication.@ Berndt, 796 F.2d at 881; Tenn. Code. Ann. ' 20-13-102(a). An entity that is an

Aarm of the state,@ rather than a Apolitical subdivision@ (like a city), is treated as an extension of

the state and can therefore invoke the defense of sovereign immunity. Mt. Health City Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). So, too, can a state official who is sued in her

official capacity, because such a suit Ais not a suit against the official but rather is a suit against

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the official=s office@ and therefore Ano different from a suit against the State itself.@ Will, 491 U.S.

at 71 (internal citations omitted); see also Brandon v. Holt, 469 U.S. 464, 471–72 (1985)

(explaining that, typically, a Ajudgment against a public servant >in [her] official capacity=

imposes liability on the entity that [she] represents . . .@). Thus, neither a State, nor a state official

sued in her official capacity for damages, is a Aperson@ subject to suit under ' 1983. 42 U.S.C. '

1983 (AEvery person who, under color of@ law, violates another=s federal rights, Ashall be liable to

the party injured in an action at law . . .@) (emphasis added); Will, 491 U.S. at 64, 71.

DCS is an agency of the State of Tennessee, see Gean v. Hattaway, 330 F.3d 758, 766

(6th Cir. 2003) (finding that Athe Tennessee Department of Children=s Services@ is Athe State@ for

purposes of the sovereign immunity analysis); therefore, any claims against DCS and its

employees in their official capacities for monetary damages are claims against the State and are

barred by the Eleventh Amendment. Accordingly, Petty=s claims under Section 1983 for

monetary damages against DCS and Johnson in her official capacity are barred by the Eleventh

Amendment.

B. Statute of Limitations

Where a statute of limitations defense is established by the allegations of the complaint,

dismissal for failure to state a claim is appropriate. As the Sixth Circuit has explained,

The statute of limitations is an affirmative defense, see Fed. R. Civ. P. 8(c), and a

plaintiff generally need not plead the lack of affirmative defenses to state a valid

claim, see Fed. R. Civ. P. 8(a) (requiring Aa short and plain statement of the claim@

(emphasis added)); Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L.Ed.2d

798 (2007). For this reason, a motion under Rule 12(b)(6), which considers only

the allegations in the complaint, is generally an inappropriate vehicle for

dismissing a claim based upon the statute of limitations. But, sometimes the

allegations in the complaint affirmatively show that the claim is time-barred.

When that is the case, as it is here, dismissing the claim under Rule 12(b)(6) is

appropriate. See Jones, 549 U.S. at 215, 127 S. Ct. 910 (AIf the allegations . . .

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show that relief is barred by the applicable statute of limitations, the complaint is

subject to dismissal for failure to state a claim[.]@).

Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012); accord Jelletich v. Pawlawski,

No. 5:14-CV-00017, 2014 WL 5782549, at *3 (W.D. Ky. Nov. 6, 2014) (AAlthough Rule 12(b)

does not specifically address motions to dismiss based on the alleged expiration of the applicable

statute of limitations, a complaint that shows on its face that relief is barred by the affirmative

defense of the statute of limitations is properly subject to a Rule 12(b)(6) motion to dismiss[.]@).

DCS and Johnson assert, and Petty does not dispute, that all of Petty=s claims are subject

to a one-year limitations period. Actions brought under 42 U.S.C. ' 1983 Aare governed by the

state-law statute of limitations for personal-injury torts.@ City of Rancho Palos Verdes v. Abrams,

544 U.S. 113, 124 (2005); Eidson v. Tenn. Dept of Childrens Servs., 510 F.3d 631, 634 (6th Cir.

2007). In Tennessee, actions for Ainjuries to the person@ must be filed within one year after the

cause of action accrues. Tenn. Code Ann. ' 28-3-104(a)(1)(A); Howell v. Farris, 655 F. App=x

349, 351 (6th Cir. 2016). The date a claim accrues is not necessarily determined by when the

injury occurred. The question of when the cause of action accrues—and, thus, when the statute

begins to run—is Agoverned by federal rules conforming in general to common-law tort

principles.@ Wallace v. Kato, 549 U.S. 384, 388 (2007); Howell, 655 F. App=x at 351.

Under federal law, ordinarily, the statute of limitations for a ' 1983 action begins to run

Awhen the plaintiff knows or has reason to know of the injury which is the basis of his action.@

Eidson, 510 F.3d at 635; Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000). In

determining when the cause of action accrues in Section 1983 actions, the Sixth Circuit has

A>looked to what event should have alerted the typical lay person to protect his or her rights.=@ Id.

(citation omitted). AWhen a cause of action involves the wrongful removal of [a] child, the Sixth

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Circuit has stated that >[t]he precipitating event . . . [is] defendants= initial removal of [the child]

from [the parent=s] custody. . . [because] [a]t the time of the initial removal, plaintiff knew of the

injury which is the basis of [the] claim.=@ Turner v. Lowen, No. 3:18-CV-00721, 2019 WL

4820519, at *14 n.11 (M.D. Tenn. Oct. 1, 2019), affd, 823 F. App=x 311 (6th Cir. 2020) (quoting

Eidson, 510 F.3d at 635); see also Jackson v. Nix, 477 F. Supp. 2d 918, 921 (M.D. Tenn. 2007)

(AThe statute of limitations began to run . . . when the minor child was taken from Plaintiff=s

custody and Plaintiff knew or had reason to know of the alleged injuries that form[ed] the basis

of th[e] suit.@).

Here, Petty alleges that her children were removed from her custody on October 17,

2018. She filed suit in this Court on December 6, 2019, more than a year after her children were

removed from her custody. Accordingly, because the allegations in the complaint affirmatively

show that Petty=s claims are untimely, dismissal is also appropriate under Rule 12(b)(6). See

Cataldo, 676 F.3d at 547.3

IV. Recommendation

For these reasons, the Magistrate Judge RECOMMENDS that the Court GRANT

Defendant DCS and Johnson=s motion to dismiss (Doc. No. 5).

Any party has fourteen days after being served with this Report and Recommendation to

file specific written objections. Failure to file specific objections within fourteen days of receipt

of this report and recommendation can constitute a waiver of appeal of the matters decided.

Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir.

3 Given its finding of jurisdictional and statute-of-limitations bars to Petty’s claims,

the Court need not reach DCS and Johnson=s alternative arguments that Petty=s complaint should

be dismissed for failure to allege sufficient facts to state a plausible claim or that it should be

dismissed for failure to effect service of process.

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2004). A party who opposes any objections that are filed may file a response within fourteen

days after being served with the objections. Fed. R. Civ. P. 72(b)(2).

Entered this 3rd day of February, 2021.

: 1

ALIST E. NEWBERN

United States Magistrate Judge

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