Opinion

McNeil v. Community Probation Services, LLC

Court: District Court, M.D. Tennessee
Filed: Feb 3, 2021
Cited by: 0 cases
Authority: More cited than 29.6%

In cases involving the use of economic fear, “a defendant is not guilty of extortion if he has a lawful claim to the property obtained.”

How later courts described this case

In cases involving the use of economic fear, “a defendant is not guilty of extortion if he has a lawful claim to the property obtained.”
holding that revoking probation for failure to pay a fine or restitution without inquiring into the reasons for the failure to pay violates due process and equal protection
“Moreover, the decision to enforce—or not to enforce—may itself result in significant burdens on a defendant or a statutory beneficiary, even if he is ultimately vindicated in an adjudication.”
denying motion to dismiss the plaintiffs’ due process claim where city’s law enforcement personnel were subject to partisan influence by city council that depended heavily on revenues from fines, fees, and forfeitures

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

KAREN MCNEIL, et al., )

)

Plaintiffs, )

)

v. ) NO. 1:18-cv-00033

)

COMMUNITY PROBATION ) JUDGE CAMPBELL

SERVICES, LLC, et al., ) MAGISTRATE JUDGE FRENSLEY

)

Defendants. )

MEMORANDUM

I. INTRODUCTION

Pending before the Court are the PSI Defendants’ (Progressive Sentencing, Inc., PSI-

Probation II, LLC, PSI-Probation, L.L.C., Tennessee Correctional Services, LLC, Timothy Cook,

Markeyta Bledsoe, and Harriet Thompson) Renewed Motion for Summary Judgment (Doc. No.

363);1 Plaintiffs’ Amended Response (Doc. No. 388); and the PSI Defendants’ Reply (Doc. No.

392).2

For the reasons set forth below, the PSI Defendants’ Renewed Motion (Doc. No. 363) is

GRANTED in part, and DENIED in part. The Court grants summary judgment to the PSI

Defendants on the following claims: Counts 2, 3, and 4 (the RICO claims); Counts 11 and 12 (the

equal protection claims); and Count 21 (an abuse of process claim, as to Defendants Bledsoe and

1 Through the Renewed Motion, the PSI Defendants incorporate by reference the additional briefs and

pleadings filed as Docket Nos. 300, 301, 301-1 to 301-26, 343, and 344.

2 The CPS Defendants have not joined in the Renewed Motion for Summary Judgment. (Doc. No. 383).

Giles County and Kyle Helton have not moved for summary judgment either. Consequently, the Court does

not address the validity of the claims against these defendants herein.

Thompson only). The other claims against the PSI Defendants – Counts 7 and 8 (the due process

claims); Counts 17 and 18 (the unjust enrichment claims); Count 21 (an abuse of process claim, as

to the remaining defendants); Count 22 (an abuse of process claim); and Count 23 (a civil

conspiracy claim) – remain for trial.

The Joint Motion to Set Oral Argument (Doc. No. 395) is DENIED, as the Court finds oral

argument unnecessary, given the thoroughness of the written legal and factual material filed by the

parties to support their arguments.

The PSI Defendants’ Motion to Ascertain Status of Case (Doc. No. 411) is DENIED, as

moot, given the Court’s resolution of their pending motion herein.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Karen McNeil, Lesley Johnson, Tanya Mitchell,3 Indya Hilfort, and Lucinda

Brandon allege they are indigent individuals who have been placed on probation for misdemeanor

offenses by the Giles County courts, and that their probation is supervised by one of the two named

private probation companies. (Doc. Nos. 41, 256). Plaintiffs McNeil, Johnson, and Hilfort allege

they have been supervised by the “CPS Defendants” or “CPS” (Community Probation Services,

LLC, Community Probation Services, L.L.C., Community Probation Services, and Patricia

McNair). Plaintiffs Mitchell and Brandon allege they have been supervised by “the PSI

Defendants” or “PSI” (Progressive Sentencing, Inc., PSI-Probation II, LLC, PSI-Probation,

L.L.C., Tennessee Correctional Services, LLC, Timothy Cook, Markeyta Bledsoe, and Harriet

Thompson). Plaintiffs assert constitutional claims, claims brought under the Racketeer Influenced

3 During the pendency of this litigation, Plaintiff Tanya Mitchell passed away, and Plaintiffs have filed a

pending motion to substitute her estate as a party. (Doc. No. 410). The Court’s resolution of the claims

herein does not address the effect of Ms. Mitchell’s death on this litigation, as that issue has not been

addressed by the parties.

and Corrupt Organizations Act (“RICO”), and state law claims against the CPS Defendants and

the PSI Defendants. Plaintiffs assert constitutional and state law claims against Giles County and

Sheriff Kyle Helton. The named Plaintiffs seek to represent a class to obtain damages and

injunctive relief on their claims. The claims are summarized below:

Count Claim Plaintiffs Defendants Relief

1 RICO Karen McNeil & Lesley CPS corporate Damages

Johnson defendants & Patricia

McNair

2 RICO Tanya Mitchell PSI corporate Damages

defendants & Markeyta

Bledsoe

3 RICO Lucinda Brandon PSI corporate Damages

defendants & Harriet

Thompson

4 RICO Tanya Mitchell PSI corporate Equitable

defendants R e lief

& Markeyta Bledsoe

5 42 U.S.C § 1983 Karen McNeil, Lesley CPS corporate Damages

(Due Process) Johnson, & Indya defendants & Giles

Hilfort County

6 42 U.S.C. § 1983 Indya Hilfort CPS corporate Equitable

(Due Process) defendants & Giles Relief

County

7 42 U.S.C. § 1983 Lucinda Brandon & PSI corporate Damages

(Due Process) Tanya Mitchell defendants & Giles

County

8 42 U.S.C. § 1983 Tanya Mitchell PSI corporate Equitable

(Due Process) defendants & Giles Relief

County

9 42 U.S.C. § 1983 Karen McNeil, Lesley CPS corporate Damages

(Equal Protection) Johnson, & Indya defendants

Hilfort

10 42 U.S.C. § 1983 Indya Hilfort CPS corporate Equitable

(Equal Protection) defendants & Giles Relief

County

11 42 U.S.C. § 1983 Lucinda Brandon & PSI corporate Damages

(Equal Protection) Tanya Mitchell defendants & Giles

County

12 42 U.S.C. § 1983 Tanya Mitchell PSI corporate Equitable

(Equal Protection) defendants & Giles Relief

County

13 42 U.S.C. § 1983 Karen McNeil, Lesley CPS corporate Damages

(Equal Protection Johnson, & Indya defendants & Giles

and Due Process) Hilfort County

14 42 U.S.C. § 1983 Indya Hilfort CPS corporate Equitable

(Equal Protection defendants & Giles Relief

and Due Process) County

15 42 U.S.C. § 1983 Indya Hilfort Giles County & Sheriff Equitable

(Equal Protection Kyle Helton Relief

and Due Process)

16 Unjust Enrichment Karen McNeil & Lesley CPS corporate Damages

Johnson defendants

17 Unjust Enrichment Lucinda Brandon & PSI corporate Damages

Tanya Mitchell defendants

18 Unjust Enrichment Tanya Mitchell PSI corporate Equitable

defendants Relief

19 Abuse of Process Karen McNeil, Lesley Giles County, CPS Damages

Johnson, & Indya corporate defendants, &

Hilfort Patricia McNair

20 Abuse of Process Indya Hilfort Giles County, CPS Equitable

defendants, & Patricia Relief

McNair

21 Abuse of Process Lucinda Brandon & Giles County, PSI Damages

Tanya Mitchell corporate defendants,

Markeyta Bledsoe, &

Harriet Thompson

22 Abuse of Process Tanya Mitchell Giles County, PSI Equitable

corporate defendants, & Relief

Markeyta Bledsoe

23 Civil Conspiracy Lucinda Brandon & PSI corporate Damages

Tanya Mitchell defendants & Timothy

Cook

24 Civil Conspiracy Karen McNeil, Lesley CPS corporate Damages

Johnson, & Indya defendants

Hilfort

(Doc. No. 256).

On December 15, 2011, Giles County and PSI entered into an agreement through which

PSI provides probation supervision services to the County for individuals convicted of

misdemeanors. (PSI Defendants’ Response to Plaintiffs’ Counter-Statement of Undisputed

Material Facts ¶ 2 (hereinafter “PSI’s Response to Facts) (Doc. No. 344); (Doc. No. 329-2)). The

one-page document does not state explicitly how PSI is to be paid, but the parties agree the County

pays PSI nothing for its services. (PSI’s Response to Facts ¶ 3). The County has entered into a

similar arrangement with CPS. (Id. ¶¶ 1, 4). Through the agreements, any misdemeanor offender

who is sentenced to probation in Giles County must be assigned to supervision with CPS or PSI.

(Id.) The PSI agreement authorizes the company to “[m]onitor all scheduled time payments for

fines, courts costs and restitution.” (Doc. No. 329-2). The agreement also provides that PSI “shall

not attempt to profit from any fines, restitution or court costs collected from the Clients.” (Id.)

In addition to fines, restitution and court costs, the courts in Giles County also impose, as

a condition of probation, “supervision fees,” which are paid to PSI. (Id. ¶¶ 6-8). These fees and

costs are reflected in the Order of Probation (Doc. No. 301-4) for Plaintiff Brandon, dated

September 24, 2015, which requires her to pay $25 per week for “court costs/fines/restitution

and/or administrative and attorney fees for court appointed attorney in addition to probation and

lawful administrative fees associated with probation.” The Order also imposes a fee of $45 per

month “as a probation supervision fee as allowed by law (TCA 40-35-303 and 40-35-313);” a $35

“administrative fee;” and a $15 fee for “missed appointments without calling to reschedule.” (Id.)

The Order, which appears to be a form, also states that “The Defendant . . . stated in open court

that he/she is financially capable of paying [the fees and costs associated with probation].” (Id.)

Probationers are also required to abide by twelve “PSI Probation Rules,” including the requirement

that they “[p]ay all fines and costs in a timely manner.” (PSI’s Response to Facts ¶ 24; Doc. No.

329-5, at 2).

Individuals charged with misdemeanors may be sentenced to serve up to 11 months and 29

days in jail if they are not placed on probation. (PSI’s Response to Facts, at ¶ 12). Typically,

probation terms for misdemeanor defendants in Giles County are for 6 months or for 11 months

and 29 days. (Id. ¶¶ 12, 13). Also, typically, defendants are sentenced to a minimum period of

supervised probation, after which – so long as the person has paid everything he or she owes to

the County and the probation company – the company can convert the person’s supervised

probation to unsupervised probation, or probation can be terminated altogether. (Id. ¶ 14). In other

cases, there is no required minimum period of supervised probation at all, and the person need not

be supervised during probation if the probationer can afford to pay his or her entire debt after

conviction. (Id. ¶ 15).

Plaintiffs contend that PSI is solely responsible for determining whether and when to

convert a person’s supervised probation to unsupervised, once the minimum period of supervision,

if any, has elapsed. Although the PSI Defendants deny that contention (Id. ¶¶ 16-19), Plaintiffs

have filed four “Orders” for four separate probationers converting them from supervised probation

to unsupervised probation with the signature of only the defendant and the probation officer. (Doc.

No. 388-6). The Orders are not signed by a judge. (Id.) Aside from reporting a change of address

or a new arrest, probationers on unsupervised probation are no longer required to report to the

company or pay additional fees. (Id.) Plaintiffs have submitted evidence indicating that

probationers who have not paid all costs and fees in full are not moved by PSI to unsupervised

probation. (Doc. Nos. 330-6, at 7; 330-7, at 11).

In supervising probationers, PSI typically has discretion to determine how frequently a

person must report, whether the person must report in person, and when the person must submit to

a drug test. (PSI’s Response to Facts, ¶¶ 29-31). Plaintiffs have submitted evidence that

probationers who are behind in paying fees are required to report more often. (Doc. Nos. 331-5, at

3; 331-6, at 6; 331-7, at 15; 331-8, at 25). In addition, Plaintiffs have submitted evidence that PSI

probation officers have initiated violation-of-probation proceedings solely for non-payment of

costs and fees. (Doc. No. 333-3, at 3-18) (proceedings initiated solely for non-payment of

probation supervision fee payable to PSI). When a probationer is reported to the court for a

probation violation, evidence in the record suggests that the judge is likely to revoke and extend

probation, resulting the probationer owing more fees to PSI for supervision. (Doc. No. 335-7, at

17; Doc. No. 336-4, at 3; Doc. No. 334-3; PSI’s Response to Facts ¶ 118).

III. ANALYSIS

A. The Standards Governing Motions for Summary Judgment

Summary judgment should be granted "if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a). The Supreme Court has construed Rule 56 to “mandate[] the entry of summary judgment,

after adequate time for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

2548, 91 L. Ed. 2d 265 (1986).

In considering a motion for summary judgment, a court must draw all reasonable inferences

in favor of the nonmoving party. See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp.,475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Shreve v. Franklin County,

Ohio, 743 F.3d 126, 132 (6th Cir. 2014). The court does not, however, make credibility

determinations, weigh the evidence, or determine the truth of the matter. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

In order to defeat the motion, the nonmoving party must provide evidence, beyond the

pleadings, upon which a reasonable jury could return a verdict in its favor. Celotex Corp., 477 U.S.

at 324; Shreve, 743 F.3d at 132. Ultimately, the court is to determine “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

B. The RICO Claims (Counts 2, 3, and 4)

Through their pending motion, the PSI Defendants argue they are entitled to summary

judgment on Plaintiffs’ RICO claims set forth in Counts 2, 3, and 4. In response to the Motion,

Plaintiff Mitchell indicated her intention to voluntarily dismiss her RICO claims in Counts 2 and

4 for strategic reasons. (Doc. No. 388, at 40 n. 53). Thus, the only remaining RICO claim against

the PSI Defendants is the one alleged by Plaintiff Brandon in Count 3.

Through Count 3, Plaintiff Brandon asserts a RICO claim for damages against the PSI

corporate defendants and Defendant Thompson. (Doc. No. 256 ¶ 420). Plaintiffs allege the PSI

corporate defendants, Defendant Cook, Defendant Thompson, Defendant Giles County, and other

unnamed co-conspirators, formed an “association-in-fact,” and therefore, a “RICO Enterprise,” for

the purpose of maximizing the collection of court fines, costs, and fees by PSI without

consideration of the probationer’s ability to pay. (Id. ¶ 424). Plaintiffs allege the “PSI RICO

Enterprise” was engaged in interstate commerce because federal dollars disbursed through federal

programs, such as Supplemental Security Income Disability and Supplemental Nutrition

Assistance Program, constituted a portion of the profits collected through threats of violations and

jailing. (Id. ¶ 426). Plaintiffs also allege this “extortion” occurred on a mass scale from victims

who would have otherwise spent the money on goods and services in interstate commerce. (Id.)

Plaintiffs allege the defendants used electronic communications and the United States mail to

extort payment. (Id.)

Plaintiffs further allege the PSI RICO Enterprise engaged in the following predicate acts

of “racketeering activity:” (1) extortion under the Hobbs Act, 18 U.S.C. § 1951; (2) extortion under

Tennessee Code Annotated § 39-14-112; and (3) extortion under the Travel Act, 18 U.S.C. § 1952.

(Id. ¶¶ 430-433).

The RICO statute, 18 U.S.C. § 1962, provides, in pertinent part, as follows:

enterprise engaged in, or the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity or collection of

unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions

of subsection (a), (b), or (c) of this section.

To establish a violation of the RICO statute, the plaintiff must prove: “‘(1) conduct (2) of

an enterprise (3) through a pattern (4) of racketeering.’” Heinrich v. Waiting Angels Adoption

Servs., Inc., 668 F.3d 393, 404 (6th Cir. 2012) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S.

479, 496, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985)).

“Racketeering activity” consists of acts that are indictable under state or federal law, as

listed in 18 U.S.C. § 1961(1). As noted above, Plaintiffs allege, as predicate acts of racketeering

activity, extortion under the Hobbs Act, the Travel Act, and under a Tennessee statute. Plaintiffs

argue the PSI Defendants committed extortion by threatening probationers with arrest and jailing

if they failed to make their required payments even though the defendants knew the failure to pay

was due to their indigency.

A plaintiff claiming a Hobbs Act violation based on extortion as a predicate act in a civil

RICO claim must show the defendant “obstruct[ed], delay[ed], or affect[ed] commerce or the

movement of any article or commodity in commerce, by . . . extortion or attempt[ed] or conspir[ed]

so to do, or committ[ed] or threaten[ed] physical violence to any person or property in furtherance

of a plan or purpose to do [so].” 18 U.S.C. § 1951(a); Heinrich, 668 F.3d at 406-07. Extortion is

defined as “the obtaining of property from another, with his consent, induced by wrongful use of

actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. §

1951(b)(2). Extortion can occur either through (1) the threat of force, violence, or fear; or (2) “the

color of official right.” United States v. Watson, 778 Fed. Appx. 340, 345 (6th Cir. 2019).

To establish extortion on an “under color of official right” theory, the plaintiff must show

the defendant obtained a “payment to which he was not entitled, knowing that the payment was

made in return for official acts.” United States v. Kelley, 461 F.3d 817, 826 (6th Cir. 2006) (quoting

Evans v. United States, 504 U.S. 255, 268, 112 S. Ct. 1881, 1889, 119 L. Ed. 2d 57 (1992)). This

type of extortion by a public official requires some quid pro quo: “This means that the victim gives

up her property to the public official in exchange for something else.” Watson, 778 Fed. Appx. at

345. To establish extortion based on a “threat of force, violence, or fear” theory, the plaintiff must

show: “(1) that the defendants obtained the plaintiffs’ property (2) through the wrongful use of (3)

threats or fear of physical or economic harm.” Heinrich, 668 F.3d at 407; Watson, 778 Fed. Appx.

at 346-47.

The PSI Defendants argue Plaintiffs cannot establish extortion under either theory because:

(1) Plaintiffs cannot establish the alleged extortion had a substantial effect on interstate commerce

as required by the Hobbs Act; and (2) Plaintiffs cannot establish extortion as the defendants had a

lawful “claim of right” to the property allegedly taken. Because the Court grants summary

judgment on this claim based on the second ground, it is unnecessary to address the interstate

commerce argument.

The PSI Defendants argue they cannot be liable for extortion because they had a lawful

right to claim the money obtained from probationers, based on the “claim-of-right” defense

established in United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973). In

Emmons, the Supreme Court addressed whether the defendant union members were guilty of

extortion under the Hobbs Act based on acts of violence occurring during a legal strike called to

seek higher wages for union members. The Court concluded the conduct was not within the reach

of Hobbs Act extortion because the defendants sought to achieve legitimate collective-bargaining

demands:

The term ‘wrongful,’ which on the face of the statute modifies the use of each of

the enumerated means of obtaining property—actual or threatened force, violence,

or fear—would be superfluous if it only served to describe the means used. For it

would be redundant to speak of ‘wrongful violence’ or ‘wrongful force’ since, as

the Government acknowledges, any violence or force to obtain property is

‘wrongful.' Rather, ‘wrongful’ has meaning in the Act only if it limits the statute's

coverage to those instances where the obtaining of the property would itself

be ‘wrongful’ because the alleged extortionist has no lawful claim to that property.

410 U.S. at 399-400 (footnotes omitted).

The holding in Enmons created what has come to be called the “claim of right” defense to

charges of extortion under the Hobbs Act. United States v. Sturm, 870 F.2d 769, 772 (1st Cir.

1989). Notwithstanding creation of the defense by the Supreme Court, subsequent decisions by

federal appellate courts have largely restricted the claim of right defense to the labor context in

cases alleging the wrongful use of force or violence. Id., at 772-73; see also United States v. Castor,

937 F.2d 293, 299 (7th Cir. 1991); Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d

494, 522-23 (3rd Cir. 1998); United States v. Daane, 475 F.3d 1114, 1120 (9th Cir. 2007); United

Brotherhood of Carpenters and Joiners of America v. Building and Construction Trades Dep’t,

770 F.3d 834, 838 (9th Cir. 2014). The claim of right defense is still viable, however, in cases

where the threat produces economic fear, because “there is nothing inherently wrongful about the

use of economic fear to obtain property.” Id., at 773; see also Brokerage Concepts, 140 F.3d at

523. In such cases, “the use of legitimate economic threats to obtain property is wrongful only if

the defendant has no claim of right to that property.” Id. (footnotes omitted); Brokerage Concepts,

140 F.3d at 523 (In cases involving the use of economic fear, “a defendant is not guilty of extortion

if he has a lawful claim to the property obtained.”)

Use of economic fear is “wrongful,” however, “when employed to achieve a wrongful

purpose.” Brotherhood of Carpenters, 770 F.3d at 838. “Thus, following Enmons, using fear of

economic loss to obtain personal payoffs or payments for ‘imposed, unwanted, superfluous and

fictitious services’ may well be extortionate.” Id. (quoting Enmons, 410 U.S. at 400).

Plaintiffs argue that even if the PSI defendants had a lawful claim to the property at issue,

they cannot claim the defense because they threatened to engage in “unlawful” behavior, and

therefore, their threats were “inherently wrongful.” The threatened action, according to Plaintiffs,

was solicitation of payments from indigent probationers “who are struggling to pay for basic

necessities and who may be living off of means-tested government benefits despite the federal and

state exemptions that protect such assets.” (Doc. No. 388, at 43). Such solicitation is made

unlawful, Plaintiffs contend, by (1) equal protection jurisprudence; (2) the Supreme Court’s

decision in Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983) (holding

that revoking probation for failure to pay a fine or restitution without inquiring into the reasons for

the failure to pay violates due process and equal protection); and (3) Tennessee Code Annotated

Section 40-35-303(i)(3) (“Willful failure to pay the supervision fee . . . shall be grounds for

revocation of probation and the supervising entity shall report all instances of non payment to the

sentencing court.”) (emphasis added). Assuming the alleged solicitation is “unlawful,” however,

Plaintiffs have not cited any authority addressing whether threats to engage in “unlawful”

behavior, that is not otherwise forceful or violent, are “inherently wrongful” for purposes of the

Hobbs Act.

A review of applicable case law reveals few cases in which courts have determined threats

to be “inherently wrongful” when they did not involve force and/or violence. In one case, United

States v. Villalobos, 748 F.3d 953, 957-58 (9th Cir. 2014), the Ninth Circuit held a nonviolent threat

to be “inherently wrongful” where it involved obstruction of justice, i.e., an offer to impede an

ongoing investigation by lying to a federal grand jury. Id. Because the threat to engage in such

criminal behavior was “inherently wrongful,” the court held that the claim of right defense was

unavailable. Id., at 958.

In a subsequent decision, however, the Ninth Circuit appeared to give a narrow

construction to its holding in Villalobos:

We recently held [in Villalobos] that a lawyer's threat to a engage potential witness

to ‘do “whatever it is we need her to do,” including impeding the investigation,

lying to [an] investigating Assistant U.S. Attorney . . . , and repeating those lies to

the grand jury’ was ‘unlawful, and therefore clearly wrongful under the

circumstances.’ Villalobos did not, however, hold that conduct must be

characterized as wrongful if it involves a breach of duty derived from contract or

tort law in the course of pursuing a legitimate transaction. The proper remedy for

such a breach is a claim under state law.

United Brotherhood, 770 F.3d at 841. Having concluded that a breach of duty imposed by contract

or tort law was not “inherently wrongful,” the court explained that the plaintiffs were required to

show the defendants threatened force or violence. Id.

The conduct Plaintiffs allege is “inherently wrongful” here is not alleged to rise to the level

of a crime, like obstruction of justice. At worst, assuming Plaintiffs’ allegations are true, the

threatened conduct violates certain constitutional rights of the probationers, or otherwise violates

a duty imposed by state law. In the Court’s view, such conduct is more in the nature of a breach

of duty imposed by law, as in United Brotherhood, than it is the commission of a crime like

obstruction of justice, as in Villalobos. See Malone v. City of Decatur, Alabama, 2018 WL

4901212, at 9-10 (N.D. Ala. Oct. 9, 2018) (holding that private probation company had a lawful

claim to fines and fees for purposes of Hobbs Act extortion “claim of right defense,” even if the

plaintiffs succeeded in proving the company’s conduct in incarcerating indigent defendants

violated the constitution). Thus, the Court concludes that Plaintiffs have failed to sufficiently

establish PSI’s threats were “inherently wrongful.”4

4 The Court notes that bringing or threatening to bring wrongful litigation in order to extract money from

the target of the litigation is not considered by most courts to constitute Hobbs Act extortion. See, e.g.,

Vemco, Inc. v. Camardella, 23 F.3d 129, 134 (6th Cir. 1994); Edelson PC v. The Bandas Law Firm PC,

Plaintiffs alternatively argue the threats of arrest and/or imprisonment are “threats of force

(because they are threats to force an individual out of her community, strip her of her liberty, and

severely limit her movements, even if such force is state-sanctioned).” (Doc. No. 388, at 43 n.56).

Plaintiffs do not cite any authority defining “force” or “violence” for purposes of Hobbs Act

extortion. In defining those terms for purposes of Hobbs Act robbery, the Sixth Circuit has held

they require the use, attempted use, or threatened use of “physical force” or “violent force,” United

States v. Gooch, 850 F.3d 285, 291-92 (6th Cir. 2017), and such force must be “capable of causing

physical pain or injury to another person.” United States v. Thomas, 849 F.3d 906, 909 (10th Cir.

2017) (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 176 L. Ed. 2d 1

(2010)). Although the arrest of a person involves a loss of liberty, Plaintiffs have not cited any

authority suggesting that a facially valid arrest and/or detention carried out by duly authorized law

enforcement officers, presumably at the behest of the defendants, falls within the definition of

“force or violence” for purposes of Hobbs Act extortion. Thus, the Court is not persuaded the

threatened conduct alleged by Plaintiffs constitutes threats of force or violence.

Finally, Plaintiffs argue that even if the threats are not considered “inherently wrongful,”

the PSI Defendants do not have a legitimate claim to the supervision fees. Their claim to the

property is not legitimate, according to Plaintiffs, because state law does not permit them to

threaten probationers with revocation of probation unless the failure to pay is willful, citing the

same Tennessee statute section discussed above. But PSI’s claim to supervision fees arises by

2018 WL 723287 (Feb. 6, 2018 N.D. Ill.) (collecting cases). Those courts reason that “it is up to ‘the courts,

and their time-tested procedures’ to reliably resolve the matter, ‘separating validity from invalidity, honesty

from dishonesty.’” Edelson, 2108 WL 723287, at *6 (quoting United States v. Pendergraft, 297 F.3d 1198,

1206 (11th Cir. 2002)). Although the allegations of this case do not fit squarely into this line of cases

involving threats of wrongful litigation, the PSI Defendants are alleged to be “court-affiliated actors,” and

their conduct is arguably more appropriately governed by constitutional standards of due process, as

discussed below, as opposed to the provisions of the RICO statute.

virtue of its contract with Giles County and the court orders providing for the payment of such

fees. Plaintiffs have not alleged the fees are illegitimate because they are “personal payoffs” or

because they are for “fictitious services,” as the Enmons Court described what it considered to be

illegitimate claims to property. 410 U.S. at 400. Plaintiffs have not explained why PSI’s

compliance with state law in reporting alleged violations affects the legitimacy of its claim to

supervision fees for purposes of the claim of right defense. Thus, Plaintiffs have not established

PSI has “no lawful claim” to the property at issue.

As the Court concludes that the claim of right defense applies under both theories of Hobbs

Act extortion alleged by Plaintiffs, the PSI Defendants are entitled to summary judgment on that

aspect of Plaintiffs’ RICO claim.

The PSI Defendants argue Plaintiffs cannot establish extortion under Tennessee Code

Annotated Section 39-14-112 because they are entitled to rely on an affirmative defense under

Subsection (b)(2). Section 39-14-112 provides, in pertinent part:

(a) A person commits extortion who uses coercion5 upon another person with the

intent to:

(1) Obtain property, services, any advantage or immunity;

* * *

(3)(A) Impair any entity, from the free exercise or enjoyment of any right

or privilege secured by the Constitution of Tennessee, the United States

Constitution or the laws of the state, in an effort to obtain something of

value for any entity;

5 “Coercion” is defined in Tennessee Code Annotated Section 39-11-106(4) as including threats to: “(B)

Wrongfully accuse any person of any offense;” or “(E) Take or withhold action as a public servant or cause

a public servant to take or withhold action. . .” See State v. Parris, 236 S.W.3d 173, 181 (Tenn. Crim. App.

2007) (applying this definition of “coercion” to offense of extortion in Section 29-14-112).

(b) It is an affirmative defense to prosecution for extortion that the person

reasonably claimed:

* * *

(2) Appropriate compensation for property or lawful services.

Defendants argue the affirmative defense applies here because, as discussed above, they

“reasonably claim” supervision fees, which are “[a]ppropriate compensation for . . . lawful

services.”

Plaintiffs argue the PSI Defendants are not entitled to invoke the affirmative defense

because they waived the argument by failing to raise it in their Answers (Doc. Nos. 60, 268), citing

Federal Rule of Civil Procedure 8(c). In responding to a pleading, Rule 8(c) requires a party to

“affirmatively state any avoidance or affirmative defense. . .” In their most-recently filed Answer

(Doc. No. 268), the PSI Defendants incorporated, as an affirmative defense, the RICO arguments

made in a summary judgment memorandum (Doc. No. 251) filed by the CPS Defendants. A review

of that memorandum reveals that the CPS defendants argued their alleged conduct was not

extortionate under state law because they had a lawful claim to the payments sought from

probationers. (Doc. No. 251, at 21-25). The record indicates, therefore, that the PSI Defendants

adequately pled the affirmative defense, and Plaintiffs have failed to establish the defendants

waived reliance on the affirmative defense by failing to raise it in their Answer.

Plaintiffs alternatively argue that the PSI Defendants may not rely on an affirmative

defense set forth in a state statute as a defense in a civil RICO action, citing a footnote in a

concurring opinion from the First Circuit, Roma Const. Co. v. aRusso, 96 F.3d 566, 580 n.12 (1st

Cir. 1996). In Roma Construction, a majority of the court held that, assuming without deciding

that RICO plaintiffs were required to be “innocent parties” in order to bring federal RICO claims,

the plaintiffs had sufficiently alleged they were innocent parties coerced to provide bribes. The

“innocent parties” requirement was imposed by the district court as a standing requirement. 96

F.3d at 568. In the section of the opinion referenced by Plaintiffs, a concurring judge opined that

the “innocent parties” standing requirement found in some state laws should not be incorporated

into the federal RICO statute. 96 F.3d at 579-80. Neither the court nor the concurrence, however,

addressed the issue here: whether an affirmative defense included in a state statute defining one of

the crimes alleged to be a predicate offense for purposes of the RICO claim should be available to

a defendant. The reasoning in Roma Construction does not persuade the Court that the PSI

Defendants should be barred from relying on the affirmative defense.6

Finally, Plaintiffs argue the PSI defendants are not entitled to rely on the affirmative

defense because, by threatening to report probationers for non-willful nonpayment, their actions

were unlawful. For the reasons described above, however, the Court is not persuaded the PSI

Defendants’ alleged failure to comply with a duty imposed by state law or their alleged violation

of certain constitutional rights of the probationers precludes their reliance on the state law

affirmative defense. As the affirmative defense applies here, the PSI Defendants are entitled to

summary judgment on that aspect of the RICO claim based on state law “extortion.”

The PSI Defendants argue Plaintiffs cannot show a violation of the Travel Act, 18 U.S.C.

1952, for the same reasons they have not shown a violation of the Hobbs Act, or a violation of

6 Even if the Court ignores Section 39-14-112 altogether, and instead relies on the “generic” definition of

extortion for purposes of the state law crime, the courts have recognized a “claim of right” defense to

generic extortion. See United Brotherhood, 770 F.3d at 843 (rejecting the plaintiffs’ argument that the

generic definition of extortion does not include a claim of right defense). And for the reasons discussed

above, the Court concludes the PSI defendants are entitled to rely on such a defense to generic extortion.

Tennessee Code Annotated § 39-14-112. To establish a violation of the Travel Act, Plaintiffs must

prove the use of interstate travel or the use of an interstate facility, with the intent to promote

unlawful activity. See Brokerage Concepts, 140 F.3d at 529. “Unlawful activity” is defined as

“extortion, bribery, or arson in violation of the laws of the State in which committed or the United

States.” 18 U.S.C. § 1952(b)(2). The unlawful activity alleged by Plaintiffs is extortion. Extortion

under the Travel Act is governed by the case law discussed above in connection with the Hobbs

Act. Brokerage Concepts, 140 F.3d at 529. Because the PSI Defendants are entitled to rely on the

“claim of right” defense to Hobbs Act extortion, they are entitled to rely on the same defense to

extortion under the Travel Act. Accordingly, the PSI Defendants are entitled to summary judgment

on that aspect of the RICO claim based on the Travel Act.

For the reasons set forth above, the Court concludes Plaintiffs have not created a genuine

issue of material fact (as the Court assumes the truth of their factual allegations) that the PSI

Defendants engaged in predicate acts of racketeering activity. Accordingly, the PSI Defendants

are entitled to summary judgment on Plaintiff Brandon’s RICO claim (Count 3).

C. Section 1983 Claims – Due Process and Equal Protection

1. Section 1983

Through Counts 7, 8, 11, and 12, Plaintiffs have brought claims against the PSI Defendants

and Giles County under 42 U.S.C. § 1983. In order to establish a claim for relief under Section

1983, a plaintiff must show: (1) he or she was deprived of a right secured by the Constitution or

federal law; and (2) the deprivation was committed by a person acting under color of state law.

See, e.g., Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49, 119 S. Ct. 977, 985, 143 L. Ed. 2d

130 (1999); Toth v. City of Toledo, 480 Fed. Appx. 827, 831-32 (6th Cir. 2012).

Through Count 7, Plaintiffs allege the PSI corporate defendants and Giles County violated

the Due Process Clause by using a private actor with a personal financial stake in the outcome of

judicial proceedings and probation case decisions. (Doc. No. 256 ¶¶ 502 – 511). The heading for

Count 7 states that it is brought by Plaintiffs Brandon and Mitchell and seeks damages. (Id.) The

allegations of Count 8 appear to be identical to Count 7, except the heading for the Count states

that it is brought by Plaintiff Mitchell and seeks equitable relief. (Id. ¶¶ 512-521).

Through Count 11, Plaintiffs allege the PSI corporate defendants and Giles County violated

the Equal Protection Clause by using jail, threats of jail, and an onerous probation system to collect

debts owed to the County because the system imposes unduly harsh and punitive restrictions on

debtors whose creditor is the government as compared to those who owe money to private

creditors. (Id. ¶¶ 534-539). The heading for Count 11 states that it is brought by Plaintiffs Brandon

and Mitchell and seeks damages. (Id.) The allegations of Count 12 appear to be identical to Count

11, except the heading for the Count states that it is brought by Plaintiff Mitchell and seeks

equitable relief. (Id. ¶¶ 540-545).

2. Due process claims (Counts 7 and 8)

Plaintiffs claim the contractual relationship between Giles County and PSI (and CPS)

violates procedural due process because the arrangement “vest[s] each company with vast

discretion over probationers’ fundamental liberty interests, while also requiring each company to

generate 100% of its revenue from the people it supervises.” (Doc. No. 388, at 10). Plaintiffs also

allege the evidence they have gathered shows the defendants actually carry out their duties under

the contract in a manner that allows them to maximize profits as they supervise probationers.

To support this claim, Plaintiffs rely on a line of cases addressing the due process

implications of permitting judges and quasi-judicial actors, as well as enforcement actors, to

operate under a conflict of interest in carrying out their duties. This line of cases traces back to

Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), where the Supreme Court held

that a defendant was deprived of due process when the official presiding over his case operated

under a conflict of interest. The Court found a conflict existed because the defendant was convicted

and fined by a village mayor, and a portion of the fine imposed was paid to the mayor and a portion

was paid to the village:

[I]t certainly violates the Fourteenth Amendment and deprives a defendant in a

criminal case of due process of law to subject his liberty or property to the judgment

of a court, the judge of which has a direct, personal, substantial pecuniary interest

in reaching a conclusion against him in his case.

* * *

No matter what the evidence was against [the defendant], he had the right to have

an impartial judge. He seasonably raised the objection, and was entitled to halt the

trial because of the disqualification of the judge, which existed both because of his

direct pecuniary interest in the outcome, and because of his official motive to

convict and to graduate the fine to help the financial needs of the village.

273 U.S. at 523, 535.

The next year, the Court addressed the neutrality issue again in Dugan v. Ohio, 277 U.S.

61, 48 S. Ct. 439, 72 L. Ed. 784 (1928). The defendant in Dugan had also been convicted and fined

by a mayor, and the fines imposed by the mayor provided a major part of the city’s income. Unlike

Tumey, however, the mayor did not receive a salary that was dependent on convictions. The Court

ultimately determined that the defendant’s due process rights were not violated because the

mayor’s relationship to the executive or financial policy of the city was too remote to warrant a

presumption of bias. 277 U.S. at 64.

The Supreme Court returned to the neutrality issue in Ward v. Village of Monroeville, Ohio,

409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972), where it determined that the relationship

between the decisionmaker and the fines produced by convictions created an unconstitutional

conflict. The plaintiff in Ward had been convicted of traffic offenses and fined by a mayor who

had responsibilities for revenue production, and the fines imposed by the mayor provided a

substantial portion of the village funds:

Although ‘the mere union of the executive power and the judicial power in him

cannot be said to violate due process of law,’ id., at 534, 47 S. Ct., at 445, the test

is whether the mayor's situation is one ‘which would offer a possible temptation to

the average man as a judge to forget the burden of proof required to convict the

defendant, or which might lead him not to hold the balance nice, clear, and true

between the state and the accused . . .’ Id., at 532, 47 S. Ct., at 444. Plainly that

‘possible temptation’ may also exist when the mayor's executive responsibilities for

village finances may make him partisan to maintain the high level of contribution

from the mayor's court. This, too, is a ‘situation in which an official perforce

occupies two practically and seriously inconsistent positions, one partisan and the

other judicial, (and) necessarily involves a lack of due process of law in the trial of

defendants charged with crimes before him.’ Id., at 534, 47 S. Ct., at 445.

409 U.S. at 60 (emphasis added). In reaching its decision, the Court rejected the village’s argument

that any unfairness created by the conflict could simply be corrected on appeal of the defendant’s

conviction. Such a procedure, the Court explained, “does not guarantee a fair trial in the mayor’s

court; there is nothing to suggest that the incentive to convict would be diminished by the

possibility of reversal on appeal.” 409 U.S. at 61. In addition, such a delayed impartial adjudication

does not make the procedure constitutionally acceptable: “Petitioner is entitled to a neutral and

detached judge in the first instance.” 409 U.S. at 61-62.

The Court applied Tumey to a state optometry board in Gibson v. Berryhill, 411 U.S. 564,

578-79, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973). The Gibson Court determined that the board,

whose members were all employed in private practice, violated due process by adjudicating

hearings to determine whether to revoke the licenses of optometrists employed by corporations.

Disqualification of all optometrists employed by corporations, who accounted for nearly half of

all optometrists practicing in the state, the Court pointed out, would likely redound to the personal

benefit of optometrists employed in private practice. Id.

In Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986),

the Court held that a state supreme court judge (Judge Embry), who authored an opinion resulting

in his receipt of a recovery in his own pending litigation, violated the due process neutrality

requirement. In reaching its decision, the Court made clear that the due process violation was not

based on a finding that the judge was “in fact” influenced by his personal interest in the outcome

of the opinion, but only that his role in issuing the opinion “‘would offer a possible temptation to

the average . . . judge to . . . lead him to not hold the balance nice, clear and true.’” 475 U.S. at 825

(quoting Ward, 409 U.S. at 60). The Court found any slight pecuniary interests of the other

supreme court judges as class members in Judge Embry’s case were “too remote and insubstantial”

to violate constitutional constraints. 475 U.S. at 825-26.

In Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d

1208 (2009), the Court held that due process required recusal of a state supreme court judge in a

case in which the judge’s largest campaign contributor (donating $3 million) sought to overturn a

$50 million verdict against the corporation for which he served as board chairman and principal

officer. The Court emphasized that the judge’s subjective assessment of his own actual bias was

not the determinative factor in considering due process violations: “Due process ‘may sometimes

bar trial by judges who have no actual bias and who would do their very best to weigh the scales

of justice equally between contending parties.’” 556 U.S. at 886 (quoting In re Murchison, 349

U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955)).

More recently, the Fifth Circuit held the due process neutrality requirement was violated

when state criminal court judges required defendants to obtain surety bonds as a pretrial release

condition, and a percentage of the value of the bond was deposited into the court’s judicial expense

fund. Caliste v. Cantrell, 937 F.3d 525 (5th Cir. 2019). The fund was administered by the judges

and used to pay for court staff and other expenses. See also Cain v. White, 937 F.3d 446, 454 (5th

Cir. 2019) (holding that judges’ imposition and collection of fines and fees used to pay the salaries

of their staff and other expenses presented too great a “temptation,” and violated the Due Process

Clause).

The Eleventh Circuit recently applied the neutrality requirement to a private probation

company (“PPS”) that was compensated for its services by the individual probationers it

supervised. In Harper v. Professional Probation Services, Inc., 976 F.3d 1236, 1238-39 (11th Cir.

2020), the plaintiff probationers alleged the judges imposing their probation sentences left certain

portions of their orders blank, and that PPS filled in the blanks to extend the duration of probation,

increase the fines, and impose additional conditions. The plaintiffs alleged PPS had a financial

interest in keeping them on probation so as to continue receiving the monthly supervision fees they

were required to pay. Id., at 1239-40. The district court dismissed the plaintiffs’ due process claim,

holding that they failed to show the probation officers owed a duty of neutrality to probationers

because they did not perform adjudicatory functions. Id., at 1240.

The appeals court reversed, concluding that the plaintiffs had sufficiently alleged PPS

engaged in quasi-judicial functions, and therefore, owed a duty of neutrality to the probationers it

supervised. Id., at 1241-43. In reaching its decision, the court pointed out prior decisions holding

that probation officers perform a “judicial function” when they set terms of probation, such as

determining whether a probationary sentence should include mandatory mental health treatment,

or establishing a schedule for restitution payments. Id. The court concluded that PPS was carrying

out a judicial function when it imposed binding sentence enhancements. Id., at 1244.

The court also determined the funding arrangement implicated the company’s impartiality:

“We further hold that PPS was not impartial because its revenue depended directly and materially

on whether and how it made sentencing decisions.” Id.; see also United States v. Espalin, 350 F.3d

488, 490-96 (6th Cir. 2003) (Lawson, J. concurring) (discussing various functions of federal

probation officers, and observing the requirement of neutrality has been met when the probation

officer’s recommendation is based “fairly on the facts and dispassionately traces its way through

the law to a sensible conclusion.”)

The due process neutrality requirement has also been applied to officials who perform

prosecutorial/enforcement functions, based on language from the Supreme Court’s opinion in

Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980). In Marshall, a

restaurant owner challenged civil penalties assessed by the Employment Standards Administration

(ESA) of the Department of Labor. The owner argued that the funding mechanism whereby the

civil penalties are returned to the ESA in reimbursement for its costs created an impermissible risk

of bias in violation of the Due Process Clause. The Court rejected the argument, reasoning that

the role of the ESA was not that of a decisionmaker:

The rigid requirements of Tumey and Ward, designed for officials performing

judicial or quasi-judicial functions, are not applicable to those acting in a

prosecutorial or plaintiff-like capacity. Our legal system has traditionally accorded

wide discretion to criminal prosecutors in the enforcement process, see Linda R. S.

v. Richard D., 410 U.S. 614, 93 S. Ct. 1146, 35 L.Ed.2d 793 (1973), and similar

considerations have been found applicable to administrative prosecutors as well,

see Moog Industries, Inc. v. FTC, 355 U.S. 411, 414, 78 S. Ct. 377, 380, 2 L. Ed.

2d 370 (1958); Vaca v. Sipes, 386 U.S. 171, 182, 87 S. Ct. 903, 912, 17 L.Ed.2d

842, (1967). Prosecutors need not be entirely ‘neutral and detached,’ cf. Ward v.

Village of Monroeville, 409 U.S., at 62, 93 S. Ct., at 84. In an adversary system,

they are necessarily permitted to be zealous in their enforcement of the law. The

constitutional interests in accurate finding of facts and application of law, and in

preserving a fair and open process for decision, are not to the same degree

implicated if it is the prosecutor, and not the judge, who is offered an incentive

for securing civil penalties.

446 U.S. at 248-49.

The Court made clear, however, that administrative prosecutors were not free of any

limitations imposed by the Due Process Clause:

Prosecutors are also public officials; they too must serve the public interest. Berger

v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935). In

appropriate circumstances the Court has made clear that traditions of prosecutorial

discretion do not immunize from judicial scrutiny cases in which the enforcement

decisions of an administrator were motivated by improper factors or were otherwise

contrary to law. See Dunlop v. Bachowski, 421 U.S. 560, 567, n. 7, 568–574, 95 S.

Ct. 1851, 1858, n. 7, 1858–1861, 44 L. Ed. 2d 377 (1975); Rochester Telephone

Corp. v. United States, 307 U.S. 125, 59 S. Ct. 754, 83 L. Ed. 1147

(1939). Moreover, the decision to enforce—or not to enforce—may itself result in

significant burdens on a defendant or a statutory beneficiary, even if he is ultimately

vindicated in an adjudication. Cf. 2 K. Davis Administrative Law Treatise 215–256

(2d ed. 1979). A scheme injecting a personal interest, financial or otherwise, into

the enforcement process may bring irrelevant or impermissible factors into the

prosecutorial decision and in some contexts raise serious constitutional questions.

See Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S. Ct. 663, 669, 54 L.Ed.2d 604

(1978); cf. 28 U.S.C. § 528 (1976 ed., Supp. III) (disqualifying federal prosecutor

from participating in litigation in which he has a personal interest). But the strict

requirements of neutrality cannot be the same for administrative prosecutors as for

judges, whose duty it is to make the final decision and whose impartiality serves as

the ultimate guarantee of a fair and meaningful proceeding in our constitutional

regime.

446 U.S. at 249-50 (footnote omitted) (emphasis added). The Court ultimately determined that

“the influence alleged to impose bias is exceptionally remote,” given that no governmental official

stood to profit economically from vigorous enforcement of the child labor provisions, and the civil

penalties collected represented substantially less than 1% of the budget of the ESA. 446 U.S. at

250.

The Court found the improper influence to be more direct in Young v. United States ex rel.

Vuitton, 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987), in which counsel for a party who

was the beneficiary of a court order was appointed to undertake contempt prosecutions for alleged

violations of the order. The Court pointed out that appointment of counsel for the interested party

to bring the contempt prosecution “at a minimum created opportunities for conflicts to arise, and

created at least the appearance of impropriety.” 481 U.S. at 806 (footnote omitted). That the judge

made the ultimate decision did not allay those concerns:

As should be apparent, the fact that the judge makes the initial decision that a

contempt prosecution should proceed is not sufficient to quell concern that

prosecution by an interested party may be influenced by improper motives. A

prosecutor exercises considerable discretion in matters such as the determination of

which persons should be targets of investigation, what methods of investigation

should be used, what information will be sought as evidence, which persons should

be charged with what offenses, which persons should be utilized as witnesses,

whether to enter into plea bargains and the terms on which they will be established,

and whether any individuals should be granted immunity. These decisions, critical

to the conduct of a prosecution, are all made outside the supervision of the court.

481 U.S. at 807. The danger, the Court explained, was that injecting “‘a personal interest, financial

or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the

prosecutorial decision.’” 481 U.S. at 808 (quoting Marshall v. Jerrico, Inc., 446 U.S. at 249-250).

The Court distinguished the situation in Marshall, however, by explaining that the financial

benefits to the prosecuting agency in that case presented a potential conflict that was too remote

to be of concern. 482 U.S. at 807.

The lower courts have also applied the neutrality requirement to enforcement officials. In

Flora v. Southwest Iowa Narcotics Enforcement Task Force, 292 F. Supp. 3d 875, 903-05 (S.D.

Iowa 2018), the court denied summary judgment on the plaintiff’s claim that the defendants – a

narcotics task force, law enforcement officers, and county attorneys – violated due process by

stopping motorists and seizing their assets for forfeiture because the forfeited assets partially

funded the defendants’ departments. In reaching its decision, the court explained that under state

law, the defendants’ forfeiture share agreement was such that “with successful prosecutions of

forfeitures not deemed excessive, [the task force and the county attorney’s office] are guaranteed

to profit economically as penalties will flow to their offices.” 292 F. Supp. 3d at 904. The forfeiture

funds were not limited to expenses accrued in pursuing the forfeiture, and the fund’s balance

“which can exceed $1 million” was used to pay for a wide range of expenses. Id. The court

recognized that state courts had the final say on whether forfeiture was proper in a given case, but

a factual dispute remained as to whether the defendants “were so incentivized to enforce Iowa’s

civil forfeiture law as to distort their judgment.” Id. For purposes of summary judgment, the court

found the defendants had failed to establish that “forfeitures comprise an insignificant percentage”

of the defendants’ budgets, and that the defendants were not “financially dependent on maintaining

a large and continuing stream of forfeiture penalties.” Id., at 904-05.

The court rejected the plaintiff’s facial challenge to the state forfeiture statute that permitted

seizing agencies the authority to enter into forfeiture share agreements because the statute left the

terms of such agreements to the discretion of the seizing agencies:

Under this provision, law enforcement and county attorneys can structure

agreements that do not offend due process. For example, officers and county

attorneys could draw up a share agreement entitling seizing agents to retain only

that portion of forfeited assets reflecting expenses accrued, similar to how the

penalties were distributed to the ESA regional administrators in Marshall. 446 U.S.

238, 251, 100 S. Ct. 1610.

292 F. Supp. 3d at 905.

In Harjo v. City of Albuquerque, 326 F. Supp. 3d 1145 (D.N.M. 2018), the court held the

plaintiff was entitled to judgment on her claim that the City’s forfeiture program violated the Due

Process Clause under Marshall because it created an institutional incentive to prosecute forfeiture

cases. Under the program, officials were able to set their own budget and spend the funds raised

from forfeiture revenues without meaningful oversight. 326 F. Supp. 3d at 1193-98. Consequently,

the court reasoned: “there is a realistic possibility that the forfeiture program prosecutors’

judgment will be distorted, because in effect, the more revenues the prosecutor raises, the more

money the forfeiture program can spend.” Id., at 1195. The court reached a contrary conclusion

regarding the individual attorneys and investigators who brought forfeiture actions, finding the

connection between the personal incentives to them “too attenuated” to violate due process. Id., at

1199-1200, 1204-07; see also Brucker v. City of Doraville, 391 F. Supp. 3d 1207, 1217 (N.D. Ga.

2019) (denying motion to dismiss the plaintiffs’ due process claim where city’s law enforcement

personnel were subject to partisan influence by city council that depended heavily on revenues

from fines, fees, and forfeitures); but see Merck Sharp & Dohme Corp. v. Conway, 861 F. Supp.

2d 802 (E.D. Ky. 2012) (holding the use of private attorneys acting for the attorney general

pursuant to a contingency fee arrangement in a case seeking civil penalties did not violate the due

process neutrality requirement where the attorney general retained the authority to direct the course

of the action).

Based on this line of cases, therefore, the neutrality requirement applies to officials

performing quasi-judicial functions and those performing enforcement functions. Probation or

parole officers traditionally perform both types of functions. See Swift v. California, 384 F.3d 1184

(9th Cir. 2004) (in discussing immunity, the court explains that state parole board members

perform quasi-judicial functions when they decide to grant, deny, or revoke parole, while parole

officers perform enforcement functions when they investigate parole violations, exercise their

power to have a parolee arrested, and in recommending revocation of parole to the parole board).

And Plaintiffs have cited to evidence in the record suggesting PSI probation officers also perform

both quasi-judicial and enforcement functions.

As for quasi-judicial functions, for example, Plaintiffs have filed four “orders” with the

style of a probationer’s criminal case, converting an individual’s supervised probation to

unsupervised probation. (Doc. No. 388-6). The orders are signed only by the probationer and the

probation officer, not by a judge. (Id.) Unsupervised probation results in greater freedom and less

financial burdens for probationers, and PSI’s ability to decide whether to convert a probationer

from supervised to unsupervised probation is the performance of a quasi-judicial function. PSI

also typically has discretion to determine how frequently a person must report to his or her

probation officer, whether the person must report in person, and when the person must submit to

a drug test. (PSI’s Response to Facts, ¶¶ 29-31). These are also examples of PSI’s exercise of

quasi-judicial functions in supervising probationers.

Even if PSI did not engage in quasi-judicial functions, it retains considerable discretion in

carrying out its supervisory functions, much like the enforcement functions described in Marshall,

Young, Flora, and Harjo. For example, Plaintiffs have produced evidence indicating PSI probation

officers swear to the affidavits used to support arrest warrants for probationers alleged to have

violated their probation, including affidavits based solely on a probationer’s failure to pay court

costs and/or probation supervision fees. (Doc. Nos. 177-1 to 177-45; 333-3). The evidence also

indicates PSI probation officers make recommendations to the courts as to the disposition of cases

involving probationers. (Doc. Nos. 388-25; 335-8, at 23). Those recommendations relate to the

need for jail time, extension of probation, or other disposition. (Doc. No. 336-3, at 1) (Regarding

Christy Alexander: “Did not pay as instructed – was violated for running out of time to pay this –

does not hold employment – does pay $10.00 each week but this is just not enough – will need

extension – 1st VOP – jail time is not necessarily needed . . .”); (Regarding Layla Gowder: “Did

not pay as instructed – no payments – was violated for running out of time to pay this – does not

hold employment – will need extension or offer flattening sentence – no restitution – all other

conditions have been satisfactory – 2nd VOP – served 60d on 1st – jail time is not necessarily

needed unless you offer her a sweet deal to be off probation . . .”). There is also evidence in the

record to suggest PSI probation officers have recommended bond amounts on arrest warrants

subsequently signed by a judge. (Doc. No. 388-11) (PSI internal email about “pre-printing” a bond

amount on a violation of probation warrant: “I have used a rough formula that each Violation Rule

is about $1500 worth of bond amount, with less for technical violations and more for NOT

REPORTING or if they have a CAPIAS already.”) PSI’s discretion to decide whether to

recommend arrest, and to make other recommendations affecting probationers, implicates due

process neutrality concerns. That the courts ultimately make revocation decisions does not allay

neutrality concerns, as the Supreme Court explained in Young: “As should be apparent, the fact

that the judge makes the initial decision that a contempt prosecution should proceed is not

sufficient to quell concern that prosecution by an interested party may be influenced by improper

motives.” 481 U.S. at 807.

Having determined that the PSI Defendants perform functions implicating the neutrality

requirement, the Court considers whether its financial arrangement with Giles County “may bring

irrelevant or impermissible factors” into its decisions. Marshall, 446 U.S. at 249-50. If so, the

Court must determine if the potential conflict is “too remote” to be of concern. Young, 481 U.S. at

807.

Plaintiffs contend the 100% “user-funded” probation system established by PSI’s contract

with Giles County presents a substantial conflict of interest because it creates a financial incentive

for PSI to exercise its power over probationers in ways that result in longer periods of probation,

and in ways that maximize the collection of supervision fees from probationers. Plaintiffs cite to

evidence in the record suggesting this funding arrangement, not only has the potential to influence

PSI’s decisions in supervising probationers, but actually does influence those decisions. For

example, Plaintiffs have filed a set of PSI PowerPoint training slides in which the importance of

“collection rates” is emphasized, with one slide stating:

Collection Rates Matter

The goal of our company is to serve TN

courts, be we also must be concerned

about paying our bills.

Although making money shouldn’t be our only focus, it

is important. If your officers don’t collect, they won’t

have jobs and we won’t be able (sic) keep offices open. It is

my hope that taking time every two weeks to turn in

collection rates it (sic) will help you as a manager do (sic) stay on

top of your officers more efficiently - Charles

(Doc. No. 336-5, at 7) (emphasis added). Other slides indicate the “Collection Rate Goal” is 70%,

and that a “Scoreboard Feature” will compare collection rates for a list of PSI employees. (Id., at

5, 6); (Doc. No. 336-8, at 87) (explaining charts comparing performance in meeting 70% monthly

collection goal).

Internal emails indicate PSI employees understand the importance of collection rates and

conduct themselves accordingly. In one email, Defendant Thompson tells another PSI employee:

“I signed a violation warrant for her but a citation was placed on bond . . . we are treating it like

all our other nonpayers – cite them to court or if the warrant is enough to scare them into paying

quickly before they are served with a court date, I will dismiss . . . DA and Judge both said get our

money.” (Doc. No. 335-8, at 23) (emphasis added); see also (Doc. No. 336-6) (Internal email tying

collection rate to monthly bonus). In another internal email, Defendant Thompson writes:

“Honestly, we did think of the bonus (I gotta cut Tiff a portion of it because she is doing an

awesome job at collecting on them), but we just incorporated a new way of getting the moola out

of them . . . we tried it and it worked on some and others it didnt (sic) . . . we will try it again this

time . . . however, I did file 44 warrants this month so we will see how my numbers do for August.

. .”) (Doc. No. 336-7); see also (Doc. No. 336-9) (In another internal email, Defendant Thompson

writes: “. . . I really did my best to get some of these old balances paid up . . . I really want my

[collection] percentage to reflect what we are trying to accomplish here.”); Doc. No. 388-14 (In

internal email, PSI probation officer writes: “sometimes the sound of handcuffs inspire people to

pay. . . even though we know he will not get jail time out of it.”); (Doc. No. 334-5, at 14) (notes

indicate probation officer told probationer that “paying her rent is important but when she does not

pay, the courts will pay her rent for her at the jail.”)

In addition to exercising its supervision duties in ways that maximize the collection of fees

already owed, PSI also profits when courts extend a probationer’s term as a result of revocation

proceedings initiated by its probation officers. Evidence in the record suggests that when

probationers are reported to the court for a probation violation, the judge is likely to revoke and

extend probation, resulting in more fees being owed to PSI for supervision. For example, Plaintiff

Brandon’s probation was revoked for non-payment, and extended for another 11 months and 29

days, or until her “financial obligation to court is met.” (PSI’s Response to Facts ¶ 118). As a

result, her court debt increased from $512.50 to $618.50, and she continued to incur additional

supervision fees. (Id. ¶¶ 119, 120); see also (Doc. No. 335-7, at 17) (notes indicate probation was

revoked for Eliza Leigh Bass, then extended 11 months and 29 days, or until conditions are met);

(Doc. No. 336-4, at 3) (notes indicate probation was revoked for Marcus D’Wayne Marsh, then

extended 11 months and 29 days); (Doc. No. 334-3) (original sentence and extensions result in

John Lewis Johnson serving five years of probation for a misdemeanor offense).

The Court concludes Plaintiffs have come forward with substantial evidence creating a

genuine issue of material fact that PSI’s 100% funding arrangement with Giles County creates an

impermissible conflict of interest, and that this conflict is not “too remote” to be of concern under

the case law discussed above.7

For their part, the PSI Defendants argue they are entitled to summary judgment on

Plaintiffs’ due process claims for any of the following four reasons: (1) Plaintiffs failed to plead

the process provided by Tennessee law is inadequate; (2) Tennessee’s procedural process for

probation revocations exceeds the United States Supreme Court’s specific requirements; (3)

undisputed facts show the plaintiffs received all process that was due; and (4) Defendant Bledsoe

did not cause a deprivation pursuant to a custom or policy of PSI. (Doc. No. 301, at 42).

With regard to the first and second arguments, the defendants contend Plaintiffs are

required to plead and prove the following elements to establish their procedural due process claim:

“(1) that they have a life, liberty, or property interest protected by the Due Process Clause of the

Fourteenth Amendment to the United States Constitution, (2) that they were deprived of this

protected interest within the meaning of the Due Process Clause, and (3) that the state did not

afford them adequate procedural rights prior to depriving them of their protected interest.” Hahn

v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999). Defendants argue Plaintiffs have not pled or

proved the third element – “that the state’s procedural process is in any way inadequate as it relates

to PSI’s probation officers’ alleged lack of neutrality.” (Doc. No. 301, at 43). According to

7 Although Plaintiffs cite to additional evidence in the record supporting their due process neutrality claims,

the Court does not include an exhaustive list here. The examples cited above are sufficient to demonstrate

that summary judgment is inappropriate.

Defendants, the probation revocation procedures for misdemeanor probationers in Giles County

“is perfectly adequate.” (Doc. No. 301, at 43).

The Sixth Circuit has explained that the third element the PSI Defendants cite applies only

to procedural due process claims involving random and unauthorized deprivations, or those for

which pre-deprivation process is impractical. See, e.g., Daily Services, LLC v. Valentino, 756 F.3d

893, 904-10 (6th Cir. 2014). The third element does not apply to claims “involving a direct

challenge to an established state procedure.” Id., at 907; see also Cahoo v. SAS Analytics, Inc., 912

F.3d 887, 903 (6th Cir. 2019) (“While claimants had the opportunity to appeal a fraud

determination, ‘postdeprivation remedies alone will not satisfy due process if the deprivation

resulted from conduct pursuant to an “established state procedure,” rather than random and

unauthorized conduct.’”) Plaintiffs’ due process claims challenge the established process by which

PSI carries out its supervision duties while operating under a financial conflict of interest.

Therefore, Plaintiffs need not allege or prove the inadequacy of post-deprivation remedies in order

to sustain their claims.

This conclusion is supported by Ward, where the Supreme Court rejected the village’s

argument that any unfairness created by the mayor’s conflict of interest could simply be corrected

on appeal of the defendant’s conviction. 409 U.S. at 61. As discussed above, the Court held that a

delayed impartial adjudication does not cure the deprivation: “Petitioner is entitled to a neutral and

detached judge in the first instance.” 409 U.S. at 61-62; see also Tumey, 47 U.S. at 535 (“No matter

what the evidence was against [the defendant], he had the right to have an impartial judge.”);

Marshall, 446 U.S. at 249 (“Moreover, the decision to enforce—or not to enforce—may itself

result in significant burdens on a defendant or a statutory beneficiary, even if he is ultimately

vindicated in an adjudication.”); Flora, 292 F. Supp. 3d at 904 (explaining that, although the state

courts had the final say on forfeiture, a factual dispute remained as to whether the defendants “were

so incentivized to enforce Iowa’s civil forfeiture law as to distort their judgment.”)

Similarly, the PSI Defendants argue that Plaintiffs Mitchell and Brandon each received “all

process due” as part of their probation revocation hearings before the local court. As explained

above, however, the courts’ revocation process for these individuals does not “correct” the due

process deprivation at issue here.

As to the PSI Defendants’ fourth argument – that Defendant Bledsoe did not cause a due

process deprivation for purposes of Section 1983 – Plaintiffs point out that they have not asserted

a Section 1983 claim against Ms. Bledsoe. And the Court notes that, elsewhere in the defendants’

brief, they acknowledge the Section 1983 claims “are not pled against any individual defendants.

. .” (Doc. No. 301, at 38). Defendants do not address the issue in their reply briefs. (Doc. Nos. 343,

392). This argument is meritless.8

Finally, to the extent the PSI Defendants suggest any challenge to their contractual

arrangement with Giles County is, in effect, a challenge to Tennessee law, the Court is

unpersuaded. Although Tennessee law permits private probation companies to operate, and

permits them to collect fees from non-indigent probationers as “part payment of expenses

incurred” by the supervising agency, see Tenn. Code Ann. §§ 40-35-302, 40-35-303; McNeil v.

Cmty. Prob. Servs., LLC, 803 Fed. Appx. 846, 849 (6th Cir. 2020), it does not require the 100%

user-funded arrangement at issue here. See Flora, 292 F. Supp. 3d at 905 (“Under [forfeiture

statute], law enforcement and county attorneys can structure agreements that do not offend due

8 For this same reason, Defendants’ statute of limitations argument based on the employment dates of

Defendants Bledsoe and Thompson is also without merit. (Doc. No. 301, at 40).

process.”); Rodriguez v. Providence Community Corrections, Inc., 191 F.Supp.3d 758, 769-70

(M.D. Tenn. 2016) (constitutional allegations against user-funded private probation company

“stem not from Tennessee law qua Tennessee law but from Defendants’ failure to abide by the

Constitution when effectuating state law.”); cf. Brinson v. Providence Comm. Corr., 2016 WL

9651775 (S.D. Ga. March 31, 2016), vacated and remanded on jurisdictional grounds, 703 Fed.

Appx. 874 (11th Cir. 2017) (plaintiffs bring a facial challenge to a state statute authorizing state

courts to contract for private probation services).

For the reasons set forth above, the PSI Defendants are not entitled to summary judgment

on Plaintiffs’ due process claims (Counts 7 and 8).

3. Equal protection claims (Counts 11 and 12)

Through their equal protection claims – based on James v. Strange, 407 U.S. 128, 92 S. Ct.

2027, 32 L. Ed. 2d 600 (1972) – Plaintiffs allege that PSI and Giles County “take advantage of

their control over the machinery of the County jail, and the prosecutorial, court, and police systems,

to deny debtors the statutory protections that every other Tennessee debtor may invoke against a

private creditor.” (Doc. No. 256 ¶¶ 537, 543). Plaintiffs further allege this deprivation occurs “even

though Tennessee law explicitly states that the debts owed to the County are subject to Tennessee

law on civil judgments.” (Id.)

In James v. Strange, the Supreme Court held that a Kansas recoupment statute requiring

indigent defendants to repay legal defense fees violated the Equal Protection Clause because it

deprived those individuals of the protective exemptions (such as a limit on earnings subject to

garnishment) available to other civil judgment debtors. 407 U.S. at 2031-32. Recognizing that state

recoupment statutes may be supported by legitimate state interests, the Court, nevertheless,

concluded that such interests “are not thwarted by requiring more even treatment of indigent

criminal defendants with other classes of debtors to whom the statute itself repeatedly makes

reference.” Id., at 2035. “The statute before us,” the Court explained, “embodies elements of

punitiveness and discrimination which violate the rights of citizens to equal treatment under the

law.” Id.

In Johnson v. Bredesen, 624 F.3d 742, 746-50 (6th Cir. 2010), the Sixth Circuit discussed

James v. Strange in addressing a challenge to a Tennessee statute conditioning restoration of

felons’ voting rights on payment of court-ordered victim restitution and child support obligations.

The court initially determined that rational basis review was appropriate because the statute did

not involve a fundamental right, and “. . . contrary to Plaintiffs’ other contention, wealth-based

classifications do not discriminate against a suspect class.” Id., at 746. In distinguishing Strange

as concerning “fundamental interests subject to heightened scrutiny,” the court explained:

. . . [T]hough Strange’s text appeared to apply rational basis review, the Court,

concerned about discriminatory garnishment of the wages with which a debtor

‘supports himself and his family,’ found that the admittedly ‘legitimate’ interests

of the state paled in comparison to ‘the hopes of indigents for self-sufficiency and

self-respect.’ Strange, 407 U.S. at 135, 141–42, 92 S. Ct. 2027; see also Olson v.

James, 603 F.2d 150, 154 (10th Cir.1979) (‘[I]t was the failure of the statute to

protect the wages and the intimate personal property of the defendant from seizure

and its consequent discouraging of independence and self-sufficiency . . . that

brought the Court to the conclusion that the provisions constituted a violation of

the equal protection clause.’). Plaintiffs here assert no comparable interest

triggering a heightened standard of review, but, instead, the mere ‘statutory benefit’

of re-enfranchisement. Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010).

624 F.3d at 749.

In two more recent cases, the Sixth Circuit presents a narrower view of Strange claims. In

Fowler v. Benson, 924 F.3d 247, 260-263 (6th Cir. 2019), the court held that indigent drivers were

not likely to succeed on their equal protection challenge to a Michigan statute suspending the

driver’s licenses of those with unpaid court debt. In considering the plaintiffs’ “extraordinary debt

collection claim” based on Strange, the court appeared to limit the case to its facts:

Plaintiffs cite Strange for the proposition that Secretary Benson may not, consistent

with the Equal Protection Clause, ‘subject[ ] [Plaintiffs] to a significantly harsher

collection method than people who owe other types of debt.’ Michigan law violates

this principle, according to Plaintiffs, because their licenses are suspended due to

their court debt, while ‘people with unpaid private debt do not face license

suspension.’

The district court correctly rejected this argument under Fuller v. Oregon, 417 U.S.

40, 94 S. Ct. 2116, 40 L.Ed.2d 642 (1974). The problem that Strange identified,

according to the Fuller Court, was ‘the elimination of exemptions normally

available to judgment debtors.’ Id. at 47, 94 S. Ct. 2116. Here, there is no dispute

that the challenged Michigan statutes do not eliminate any such exemptions.

Moreover, the State is uniquely empowered to grant, suspend, or reinstate driver's

licenses. Supreme Court precedent does not require anything like exact parity

between the State and private creditors in this regard. The Court in Strange said:

‘[w]e recognize, of course, that the State's claim to reimbursement may take

precedence, under appropriate circumstances, over the claims of private creditors

and that enforcement procedures with respect to judgments need not be

identical.’ 407 U.S. at 138, 92 S. Ct. 2027. It would be passing strange indeed to

interpret Strange as putting Michigan to the choice of either giving up its right to

suspend the licenses of those with unpaid court debt or empowering private

creditors to suspend the driver's licenses of those indebted to them.

In any event, laws challenged under Strange are subject to rational basis

review. Johnson, 624 F.3d at 746. As established above, Michigan's statutory

scheme is rationally related to legitimate government interests.

924 F.3d at 263.

In a similar case decided less than a year ago, the Sixth Circuit continued to apply its narrow

interpretation of Strange. In Robinson v. Long, 814 Fed. Appx. 991 (6th Cir. 2020), the court

rejected a challenge by indigent drivers to a Tennessee statute that was “nearly identical” to the

Michigan statute considered in Fowler. Relying on its analysis in Fowler, the court held the

plaintiffs were unlikely to succeed on their claim that the Tennessee statute constitutes

“impermissible wealth discrimination” or their claim that the statute “runs afoul of the Supreme

Court’s prohibition against extraordinary debt collection as articulated in James v. Strange.” Id.,

at 994. The court also rejected the plaintiffs’ argument that wealth-based distinctions should be

analyzed with heightened scrutiny outside the criminal-justice context. Id., at 995. Explaining that

such classifications are to be reviewed under a rational basis standard, the court concluded the

license-suspension policy was rationally related to the State’s goal of encouraging payment of

court debt by heightening the incentive to pay. Id.

The Court is not persuaded that Plaintiffs’ equal protection challenge “fits the mold” of a

Strange claim, as construed by the Sixth Circuit. Plaintiffs allege that PSI and Giles County

collected funds from indigent probationers without applying the exemptions enjoyed by civil

judgment debtors. (Doc. No. 256 ¶¶ 537, 543). But Plaintiffs further allege the County is subject

to the same laws on debt collection – presumably, including the required exemptions – as are other

civil judgment creditors. (Id.); see Tenn. Code Ann. § 40-35-303(i)(1) (providing that

misdemeanor probationers must pay a fee to be used as part payment of expenses by supervising

agency “unless the defendant is found to be indigent and without anticipated future funds with

which to make the payment.”) (emphasis added). Any unequal treatment, therefore, apparently

occurs because the defendants do not advise indigent probationers that they may qualify for a

waiver or reduction of their payments. (Doc. No. 256 ¶¶ 129-34, 231, 256, 289). Plaintiffs have

not cited a case in which the courts have relied on Strange to impose a duty to inform a government

debtor of available exemptions. Heeding the admonition of the Sixth Circuit to apply Strange

narrowly, therefore, the Court concludes Plaintiffs have not stated a viable equal protection claim

based on Strange. Accordingly, the PSI Defendants are entitled to summary judgment on Counts

11 and 12.

D. State law claims (Counts 17, 18, 21, 22, 23)

PSI argues the Court should decline to exercise supplemental jurisdiction over Plaintiffs’

state law claims because, it assumes, all federal claims are dismissed. As the Court has not

dismissed all of Plaintiffs’ federal claims, this argument is without merit.

In their response brief, Plaintiffs voluntarily dismiss the abuse of process claim against

Defendants Bledsoe and Thompson for damages (Count 21). (Doc. No. 326, at 42 n.55).

Accordingly, Count 21, as to Defendants Bledsoe and Thompson only, is dismissed. The other

state law claims remain for trial.

E. Official Capacity Claims for Defendants Bledsoe and Thompson

PSI argues Plaintiffs’ claims against Defendants Bledsoe and Thompson in their “official

capacity” should be dismissed. The defendants do not reference any particular claim, but rather

cite to the paragraphs of the Second Amended Complaint describing Defendants Bledsoe and

Thompson. Paragraphs 49 and 50 each state that the defendant “is sued in her personal and official

capacities.” (Doc. No. 256 ¶¶ 49, 50). As noted above, Defendants Bledsoe and Thompson have

not been named in any Section 1983 claims, and the Court has granted summary judgment on the

RICO claims. The only remaining claim, against Defendant Bledsoe, is the abuse of process claim

(Count 22). The PSI Defendants have not addressed whether Plaintiffs may seek relief against

Defendant Bledsoe “in her official capacity” with regard to the abuse of process claim. In the

absence of adequate briefing, the Court declines to address the argument.

IV. CONCLUSION

For the reasons set forth above, the PSI Defendants’ Renewed Motion for Summary

Judgment (Doc. No. 363) is GRANTED in part, and DENIED in part. The Court grants summary

judgment to the PSI Defendants on the following claims: Counts 2, 3, and 4 (the RICO claims);

Counts 11 and 12 (the equal protection claims); and Count 21 (an abuse of process claim as to

Defendants Bledsoe and Thompson only). The other claims against the PSI Defendants — Counts

7 and 8 (the due process claims); Counts 17 and 18 (the unjust enrichment claims); Count 21 (an

abuse of process claim as to the remaining defendants); Count 22 (an abuse of process claim); and

Count 23 (a civil conspiracy claim) — remain for trial.

An appropriate Order shall enter.

WILLIAM L. CAMPBELL, JR. ,

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.