# Montgomery v. Whidbee

> District Court, M.D. Tennessee · March 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10437013

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** March 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10437013

## How later opinions describe it (automated extraction)

- finding no constitutional violation where pretrial detainees were denied absentee ballots but “there [was] nothing in the record to show that [they we]re in fact absolutely prohibited from voting by the State . . .”
- finding a constitutional violation where, among other things, hours of delay resulting from long lines and broken voting machines caused some voters to leave without voting and poll workers did not provide provisional ballots to eligible voters, effectively denying them the ri…
- holding “that it is ‘generally inappropriate for a district court to grant a Rule 12(b)(6
- holding that the voting rights of pretrial detainees otherwise entitled to vote are protected by the Equal Protection Clause of the Fourteenth Amendment

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GARY MONTGOMERY,

Plaintiff, Case No. 3:19-cv-00747

v. Chief Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Alistair E. Newbern
KENDRA WHIDBEE et al.,

Defendants.

To: The Honorable Waverly D. Crenshaw, Jr., Chief District Judge
REPORT AND RECOMMENDATION
This civil rights action arises out of pro se Plaintiff Gary Montgomery’s pretrial detention
in the custody of the Davidson County Sheriff’s Office. Defendants Kinya Jamison and Granvisse
Earl have moved to dismiss the claims against them under Federal Rule of Civil
Procedure 12(b)(6). (Doc. No. 15.) Montgomery has responded in opposition (Doc. No. 26) and
Earl and Jamison have replied (Doc. No. 27). For the following reasons, the Magistrate Judge will
recommend that the motion to dismiss be denied as to Montgomery’s claims against Jamison and
granted as to Montgomery’s claims against Earl.
I. Factual and Procedural Background1
Montgomery initiated this action by filing a complaint on August 26, 2019. (Doc. No. 1.)
The Court granted Montgomery’s application to proceed in forma pauperis and screened the
complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A, finding that he had stated colorable claims

1 The facts in this section are drawn from Montgomery’s complaint (Doc. No. 1) and
accepted as true for purposes of resolving the pending motion to dismiss.
under federal and state law against Jamison and Earl in their individual capacities. (Doc. No. 9.)
The factual allegations underlying those claims are as follows:
Montgomery, who has been a pretrial detainee in the custody of the Davidson County
Sheriff’s Office since 2016, states that he has repeatedly tried to obtain absentee ballots to vote

from jail officials without success. In July 2016, Montgomery asked to register for an absentee
ballot and, after initially being told he would be given an application, was later told by a case
manager that it was “not [her] job to obtain ballots.” (Doc. No. 1, ¶ 16.) Montgomery was not able
to vote in the 2016 presidential election. (Id.) In August 2018, Montgomery asked for help getting
an absentee ballot by submitting a written request on a services sign-up sheet. (Id. at ¶ 18.) He
received no response to that request and made “numerous complaints” about not being able to get
a ballot. (Id. at ¶¶ 18–19.)
In September 2018, Montgomery was moved to the A2 housing pod, where Jamison
became his case manager. (Id. at ¶ 19.) Montgomery told Jamison that he believed he had been
moved because he “expressed [his] personal opinion” that jail officials were “intentionally not

providing” him with absentee ballots. (Id. at ¶ 20.) On October 8, 2018,2 Jamison gave
Montgomery an application to register to vote and to request an absentee ballot, which was “clearly
marked” at the top with a submission deadline of October 16, 2018. (Id.) Montgomery promptly
completed the application and returned it to Jamison “in a few minutes.” informing her that the
application needed to be notarized. (Id.) Jamison assured Montgomery that she would have the
document notarized by Program Director Earl, but did not return the notarized application until

2 This date is recited in the complaint as “August 8, 2018.” (Doc. No. 1.) When screening
Montgomery’s complaint, the Court presumed that, given the surrounding sequence of events,
Montgomery erroneously printed “August” when he intended “October.” (Doc. No. 8.) That
presumption continues to apply.
four days later on October 12, 2018. (Id.) When Jamison returned the application to Montgomery,
he placed it in the prison mail “within an hour.” (Id.) After two weeks, Montgomery received a
letter from the Election Commission stating that his application had been filed late. (Id. at ¶ 21.)
His application was denied, and he was unable to vote in the 2018 midterm elections. (Id.)

Montgomery claims that Jamison and Earl violated the Equal Protection Clause of the
Fourteenth Amendment and the First Amendment by denying him the right to vote and breached
a common law duty of care by preventing him from getting his application for a ballot in on time.
(Doc. No. 1.) Jamison and Earl moved to dismiss Montgomery’s complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc.
No. 15.) They argue that they are entitled to qualified immunity from Montgomery’s § 1983 claim
and that the Tennessee Governmental Tort Liability Act grants them statutory immunity from
Montgomery’s negligence claim. (Id.) Montgomery responds that (1) qualified immunity does not
bar his constitutional claims because a reasonable officer in Jamison’s and Earl’s positions would
have recognized that delaying the mailing of Montgomery’s ballot application would deny him his

right to vote and (2) the Tennessee Governmental Tort Liability Act does not grant immunity to
public employees for negligence claims that, like Montgomery’s, arise out of civil rights
violations. (Doc. No. 26.) Jamison and Earl reply that a delay in furnishing and notarizing a pretrial
detainee’s absentee ballot application is not a “clearly established” violation of the right to vote.
(Doc. No. 27.) They also argue that, if the Court finds that qualified immunity bars Montgomery’s
federal claims, it should either extend qualified immunity to the state claims or decline to exercise
supplemental jurisdiction over them. (Id.)
II. Legal Standard
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court
must “construe 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 “a short and plain statement of the
claim[.]” Fed. R. Civ. P. 8(a)(2). However, “[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, 678 (2009)).
“The 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 “‘labels
and conclusions[,]’” “‘a formulaic recitation of the elements of a cause of action[,]’” or “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (third alteration in original) (quoting
Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Because Montgomery proceeds pro se, the Court construes his filings “‘liberally’” and
holds his complaint “‘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 “courts 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)).
III. Analysis
A. Montgomery’s Claims Under 42 U.S.C. § 1983
“Section 1983 provides a civil enforcement mechanism for all inmates [and pretrial
detainees] who suffer constitutional injuries at the hands of ‘[a]ny person acting under color of

state law.’” Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 494 (6th Cir. 2008) (second alteration
in original) (quoting 42 U.S.C. § 1983). A plaintiff alleging claims under § 1983 must make two
showings to survive a motion to dismiss: “one, ‘a plaintiff must allege that a defendant acted under
color of state law’; and two, ‘a plaintiff must allege that the defendant’s conduct deprived the
plaintiff of rights secured under federal law.’”3 Bright v. Gallia Cnty., 753 F.3d 639, 653 (6th Cir.
2014) (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012)).
The qualified immunity doctrine shields government officials performing discretionary
functions from liability for civil damages when their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of qualified immunity is to “‘balance[ ] two
important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.’” Richko v. Wayne Cnty., 819 F.3d 907, 914 (6th Cir. 2016)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Because the qualified immunity analysis
is fact-intensive and the precise factual basis for a plaintiff’s claims may be hard to identify at the

3 The defendants do not contest that they were acting under color of state law during the
alleged events.
pleading stage, courts typically resolve qualified immunity defenses in the context of a motion for
summary judgment. See Cahoo v. SAS Analytics Inc., 912 F.3d 887, 907 (6th Cir. 2019)
(“[A]lthough an officer’s entitlement to qualified immunity is a threshold question to be resolved
at the earliest possible point, that point is usually summary judgment and not dismissal under

Rule 12.” (alteration in original) (quoting Osberry v. Slusher, 750 F. App’x 385, 391 (6th Cir.
2018))); Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017) (holding “that it is ‘generally
inappropriate for a district court to grant a Rule 12(b)(6) motion to dismiss on the basis of qualified
immunity’ because “[w]hen qualified immunity is asserted at the pleading stage, the precise factual
basis for the plaintiff’s claim or claims may be hard to identify” (alteration in original) (citations
omitted)). Overcoming the qualified immunity defense at the motion to dismiss stage is a “low
bar,” and courts “generally den[y] qualified immunity at the motion to dismiss stage in order for
the case to proceed to discovery, so long as the plaintiff states a plausible claim for relief.” Marvaso
v. Sanchez, 971 F.3d 599, 605–06 (6th Cir. 2020).
To overcome the defendants’ claim of qualified immunity in this case, Montgomery must

allege facts that “plausibly mak[e] out a claim that the defendant[s’] conduct violated a
constitutional right that was clearly established law at the time, such that a reasonable officer would
have known that his conduct violated that right.” Cahoo, 912 F.3d at 898 (alteration in original)
(quoting Courtright, 839 F.3d at 518). This test can be broken into two inquiries. “First, taken in
the light most favorable to [Montgomery], do the facts alleged show that [each] officer’s conduct
violated a constitutional right?” Id. at 897; see also Heyne v. Metro. Nashville Pub. Schs., 655 F.3d
556, 564 (6th Cir. 2011) (“We must analyze separately whether [the plaintiff] has stated a plausible
constitutional violation by each individual defendant, and we cannot ascribe the acts of all
Individual Defendants to each individual defendant.”). “Second, is the right clearly established?”
Cahoo, 912 F.3d at 897. A constitutional right is clearly established where existing precedent has
placed the constitutionality of the challenged conduct “beyond debate,” such that “every
‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011) (alteration in original) (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)).
1. Whether Montgomery Plausibly Alleged Violation of His
Constitutional Rights
“Undeniably the Constitution of the United States protects the right of all qualified citizens
to vote, in state as well as in federal elections.” Reynolds v. Sims, 377 U.S. 533, 561–62 (1964).
Voting is a “fundamental political right.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). “Other
rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders,
376 U.S. 1, 17 (1964). Further, “[t]he right to vote is protected in more than the initial allocation
of the franchise. Equal protection applies as well to the manner of its exercise.” League of Women
Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (quoting Bush v. Gore, 531 U.S. 98, 104
(2000)). “Especially since the right to exercise the franchise in a free and unimpaired manner is
preservative of other basic civil and political rights, any alleged infringement of the right of citizens
to vote must be carefully and meticulously scrutinized.” Reynolds, 377 U.S. at 561–62.
Individuals who are otherwise entitled to vote do not lose that right because they are subject
to pretrial detention. O’Brien v. Skinner, 414 U.S. 524, 529–30 (1974) (holding that the voting
rights of pretrial detainees otherwise entitled to vote are protected by the Equal Protection Clause

of the Fourteenth Amendment). As this Court stated in screening Montgomery’s complaint, “a
detainee alleging that jail officials—rather than the operation of state law—prevented him from
voting . . . must allege that those officials were deliberately indifferent to the detainee’s loss of his
only available means of exercising his voting rights.” (Doc. No. 8 (citing Whitaker v. Gusman,
Civil Action No. 09-3710, 2010 WL 3528618, at *3 (E.D. La. Aug. 10, 2010).) A claim of
deliberate indifference requires proof that an “actor disregarded a known or obvious consequence
of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997).
Montgomery states a plausible claim that Jamison was deliberately indifferent to

Montgomery’s right to vote and prevented him from using the only means of voting available to
him. Pretrial detainees “are not disabled from voting except by reason of not being able
physically—in the very literal sense—to go to the polls on election day . . . .” O’Brien, 414 U.S.
at 528. Montgomery can only vote by absentee ballot while he is detained pending trial. Submitting
a completed application to get an absentee ballot is a necessary prerequisite to casting his vote.
Montgomery alleges that, after unsuccessful attempts over several years to obtain an
absentee ballot from jail officials, he began to believe that those officials were intentionally
preventing him from voting. On or around September 18, 2018, Montgomery expressed that belief
to Jamison. Montgomery alleges that Jamison did not provide Montgomery with an application
until October 8, twenty days after he requested it; knew that the application had to be submitted to

the Election Commission by October 16; knew that the application had to be notarized; assured
Montgomery that she would get his application notarized by Earl; and, after Montgomery gave her
his completed application immediately after receiving it on October 8, did not return the notarized
application until October 12, four days before the October 16 deadline.4 Taking these allegations
as true and construing them liberally in the light most favorable to Montgomery, as the Court must
at this stage of the proceedings, Montgomery has plausibly alleged that Jamison disregarded the
consequence of her delay and was deliberately indifferent to his right to vote by depriving him of

4 The Court takes judicial notice that October 12, 2018, fell on a Friday; October 16, 2018,
was a Tuesday.
his only means of voting in the 2018 election. See Long v. Pierce, No. 2:14-cv-00244-LJM-MJD,
2016 WL 912685, at *5 (S.D. Ind. Mar. 10, 2016) (finding allegations that jail official told pretrial
detainee he would “figure out” how to get him an absentee ballot “but never did” to state a claim
against the jail official, but finding claim that official “fail[ed] to provide a means for detainees to

vote in an election other than an absentee ballot, which the detainee may acquire for himself” not
clearly established under controlling precedent); Post v. Du Page Cty., Ill., No. 91 C 447,
1993 WL 101823, at *8 (N.D. Ill. Apr. 1, 1993) (finding allegations that pretrial detainee informed
social worker of his intention to vote and made multiple requests to other jail officials for access
to a ballot sufficient to allege conspiracy among defendants to deprive him of right to vote).
However, Montgomery has not made sufficient allegations to support a similar claim
against Earl. In fact, Montgomery does not allege any conduct by Earl at all. Montgomery states
only that Jamison said she would take his application to Earl to be notarized and that Jamison
returned with the notarized application four days later. Montgomery does not allege that Earl
delayed notarizing the application or that Earl knew any of the circumstances Montgomery alleges

surrounding the receipt and mailing of his application. Montgomery therefore does not plausibly
allege that Earl acted with deliberate indifference to his right to vote. His claims against Earl should
be dismissed for this reason.
2. Whether Montgomery’s Constitutional Rights Were Clearly
Established
A right is “clearly established” for purposes of qualified immunity “if ‘[t]he contours of
the right [are] sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Cahoo, 912 F.3d at 898 (alterations in original) (quoting Baynes v. Cleland,
799 F.3d 600, 610 (6th Cir. 2015)). To determine if a right is clearly established, courts “look
principally to the law of this circuit and to the Supreme Court.” Perez v. Oakland Cnty., 466 F.3d
416, 427 (6th Cir. 2006). “The operative inquiry is not whether a previous court faced perfectly
analogous facts—it is ‘whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’” Cahoo, 912 F.3d at 904 (quoting Baynes, 799 F.3d at
610).

The defendants argue that the right at issue here is not clearly established because there is
no Supreme Court or Sixth Circuit precedent finding a constitutional violation in the “precise
circumstances” of this case—that is, “provision of an absentee ballot in a less than expeditious
manner but in advance of the submission deadline.” (Doc. No. 16.) But that argument misreads
the precedent on which it depends, Ashford v. Raby, 951 F.3d 798, 801 (6th Cir. 2020). Instead of
requiring that a court identify “precise circumstances” in prior precedent that mirror those in the
case before it, Ashford states that reasonable officers in a defendant’s circumstances must have
been able to recognize that their actions violated a constitutional right “not just in the abstract but
in the precise situation” they faced. Id. That finding need only be supported by “precedent finding
a [constitutional] violation in similar circumstances.” Id. (emphasis added). Indeed, the Sixth

Circuit has explicitly held that, under Supreme Court precedent, “neither a ‘materially similar,’
‘fundamentally similar,’ or ‘case directly on point’—let alone a factually identical case—is
required, and that the specific acts or conduct at issue need not previously have been found
unconstitutional for a right to be clearly established law.” Baynes v. Cleland, 799 F.3d 600, 614
(6th Cir. 2015) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002); Ashcroft v. al-Kidd, 563 U.S.
731, 740 (2011)).
Prior Supreme Court and Sixth Circuit opinions establish that a reasonable official in
Jamison’s position would have recognized that actions preventing Montgomery from obtaining an
absentee ballot—and, thus, from voting—were unlawful. A state violates the “fundamental” right
to vote, Yick Wo, 118 U.S. at 370, when it imposes “an absolute bar to voting” upon otherwise
qualified pretrial detainees. O’Brien, 414 U.S. at 529–30; see also Obama for Am. v. Husted, 697
F.3d 423, 430 (6th Cir. 2012) (applying heightened scrutiny to a voting restriction that left
“burdened voters [with] few alternative means of access to the ballot”). While there is no

constitutional right to vote by absentee ballot, state action that prevents a pretrial detainee from
receiving an absentee ballot is a constitutional violation when that is his only available means of
voting. Compare McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 808 (1968)
(finding no constitutional violation where pretrial detainees were denied absentee ballots but “there
[was] nothing in the record to show that [they we]re in fact absolutely prohibited from voting by
the State . . .”) with O’Brien, 414 U.S. at 529–30 (holding that a statutory scheme that did not
permit pretrial detainees to vote by absentee ballot was unconstitutional where inmates were
denied alternative means of voting (citing Goosby v. Osser, 409 U.S. 512 (1973))).5 A
constitutional violation may also occur when the actions of public officials “deny or severely
burden [a person’s] fundamental right to vote,” including by imposing delay. League of Women

Voters, 548 F.3d at 478 (finding a constitutional violation where, among other things, hours of
delay resulting from long lines and broken voting machines caused some voters to leave without
voting and poll workers did not provide provisional ballots to eligible voters, effectively denying
them the right to vote). Based on this established authority, a reasonable official in Jamison’s

5 Mays v. LaRose was decided after the events described in Montgomery’s complaint
occurred and does not influence whether his rights were clearly established at that time. In Mays,
the Sixth Circuit upheld the application of absentee ballot deadlines to pretrial detainees who had
an opportunity to request ballots before the deadline, but noted that “[s]trict scrutiny is the standard
for cases where ‘the State totally denied the electoral franchise to a particular class of residents,
and there was no way in which the members of that class could have made themselves eligible to
vote.’” 951 F.3d 775, 786 (6th Cir. 2020) (quoting Rosario v. Rockefeller, 410 U.S. 752, 758
(1973)).
position would have been aware that Montgomery’s right to vote was guaranteed and that any
action effectively depriving him of that right entirely—as Montgomery alleges Jamison’s failure
to return his notarized application without undue delay did—was unlawful.
At this stage, the Court’s task is to determine only if Montgomery “is entitled to offer

evidence to support [his] claims[,]” not whether he “will ultimately prevail” by proving the facts
alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)). Montgomery has an uphill battle to prove that Jamison’s actions constitute
deliberate indifference. However, because Montgomery has plausibly alleged the violation of his
clearly established constitutional rights in his complaint, Jamison is not entitled to qualified
immunity against his claims based only on the pleadings.
B. Montgomery’s Negligence Claims
Jamison and Earl argue that the Tennessee Governmental Tort Liability Act (TGTLA)
grants them statutory immunity from Montgomery’s negligence claims. (Doc. Nos. 15, 16.) The
TGTLA codifies sovereign immunity for governmental entities in Tennessee, including “any
municipality, metropolitan government, [or] county.” Tenn. Code Ann. § 29-20-102(3)(A). The

statute provides that “governmental entities shall be immune from suit for any injury which may
result from the activities of such governmental entities” except as otherwise provided in the statute.
Tenn. Code Ann. § 29-20-201(a). The TGTLA also provides immunity to government employees,
but only when immunity has been removed from the government entity itself. Tenn. Code Ann.
§ 29-20-310(b) (“No claim may be brought against an employee or judgment entered against an
employee for damages for which the immunity of the governmental entity is removed by this
chapter . . .”). If the TGTLA has not removed a government entity’s immunity for a claim, its
employees remain liable for that claim in their individual capacities. Baker v. Snyder, No. 1:05-
cv-152, 2006 WL 2645163, at *10 (E.D. Tenn. Sept. 14, 2006) (citing Baines v. Wilson Cnty., 86
S.W.3d 575, 583 n.5 (Tenn. Ct. App. 2002), abrogated on other grounds by Young v. City of
LaFollette, 479 S.W.3d 785 Tenn. 2015))).
The TGTLA removes governmental immunity for “injury proximately caused by a
negligent act or omission of any employee within the scope of his employment except if the injury

arises out of . . . civil rights” violations. Tenn. Code Ann. § 29-20-205(2) (emphasis added). This
civil rights exception has been construed to include claims arising under 42 U.S.C. § 1983. See
Colson v. City of Alcoa, 458 F. Supp. 3d 887, 937 (E.D. Tenn. 2020) (“When a plaintiff’s
negligence claims arise out of the same facts and circumstances as [his] civil rights claims under
§ 1983, they fall within the civil rights exception in the TGTLA.”).
Montgomery’s negligence claims are based on his allegations that Jamison and Earl
assumed a duty of care when they undertook to help him obtain an absentee ballot and that they
breached that duty by failing to provide that assistance in a timely manner. These allegations are
based on the same facts and circumstances as Montgomery’s claim that Jamison and Earl were
deliberately indifferent to his voting rights under § 1983.6 Therefore, Montgomery’s negligence

claim falls within the TGTLA’s civil rights exception and Jamison and Earl are not immune from
suit in their individual capacities under that statute. Nor, for the same reasons stated above, are
they entitled to an extension of qualified immunity to these claims. However, because Montgomery
has not alleged sufficient facts regarding Earl’s conduct to support a finding of negligence, his
claims against her under state law also should be dismissed.

6 The defendants argue that Montgomery “must choose whether to pursue his claim as either
an intentional civil rights violation or as one where the Individual Defendants were simply
negligent.” (Doc. No. 27.) While Montgomery may not be able to prove claims under § 1983 and
the TGTLA on the same facts, he may plead them in the alternative.
IV. Recommendation
Based on the foregoing considerations, the Magistrate Judge RECOMMENDS that
Jamison and Earl’s motion to dismiss (Doc. No. 15) be GRANTED IN PART as to Montgomery’ s
claims against Earl and DENIED IN PART as to Montgomery’s claims against Jamison.
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. 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 1st day of March, 2021.
It is so ORDERED.

ALIST E. NEWBERN
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10437013. Public record. Not legal advice.