Hicks v. City of Millersville

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MASON ROBERT JAMES HICKS,

Plaintiff, Case No. 3:21-cv-00837

v. Judge Aleta A. Trauger

Magistrate Judge Alistair E. Newbern

CITY OF MILLERSVILLE et al.,

Defendants.

To: The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

This civil rights action brought under 42 U.S.C. § 1983 arises from pro se Plaintiff Mason

Robert James Hicks’s arrest and prosecution for mailbox tampering. (Doc. No. 1.) Hicks brings

claims of false arrest and malicious prosecution under the Fourth Amendment to the United States

Constitution and Tennessee common law against Defendants Judge Dee David Gay; the State of

Tennessee; the City of Millersville, Tennessee; Millersville Police Officers Melissa Pearce and

Blake Riley; and Millersville Assistant Police Chief Dustin Carr. (Id.)

Now before the Court are the State and Gay’s motion to dismiss under Federal Rule of

Civil Procedure 12(b)(1) and 12(b)(6) (Doc. No. 18), to which Hicks has not responded, and

Pearce and Riley’s motion to dismiss under Rule 12(b)(6) (Doc. No. 24), to which Hicks has

responded in opposition (Doc. No. 39). Pearce and Riley have filed a reply in support of their

motion (Doc. No. 40).1

1 The City of Millersville and Carr have answered Hicks’s complaint. (Doc. Nos. 27, 28.)

For the reasons that follow, the Magistrate Judge will recommend that the State and Gay’s

motion to dismiss be granted and Pearce and Riley’s motion to dismiss be granted in part and

denied in part.

I. Background

A. Factual Background2

On March 18, 2019, the Millersville Police Department received a report that a suspicious

person was looking into mailboxes in a residential neighborhood. (Doc. No. 1.) Pearce was

dispatched to investigate and spoke to a police officer who lived in the neighborhood. (Id.) Pearce

then informed other Millersville officers that there had been “a black Mercedes in the

neighborhood that should not be there.” (Id. at PageID# 4, ¶ 5.3.)

Pearce also spoke to witness Allison Absher, who told her that “the suspicious person was

a white male, approx[imately]” five feet and eleven inches tall, with a “slender build and wearing

a light grey hoodie that was covering his face.” (Id. at PageID# 5, ¶ 5.5.) Absher reported that the

individual had looked into three mailboxes and opened a car door. (Doc. No. 1.) The car and one

of the mailboxes that Absher identified were located in front of Hicks’s home. (Id.)

Riley, acting at Carr’s direction, stopped a black Mercedes in another neighborhood. (Id.)

Riley identified the driver, a five-foot-ten white male, then allowed him to leave. (Id.) Pearce later

testified that the driver of the Mercedes did not match Absher’s description of the suspect. (Id.)

Hicks noticed the police officers in his neighborhood and came outside to see what was

happening. (Id.) Pearce took several pictures of Hicks, who was wearing a tan hooded sweatshirt,

and showed them to Absher. (Id.) Absher told Pearce that she was “‘pretty sure’” that Hicks “was

2 The facts in this Report and Recommendation are taken from Hicks’s complaint (Doc.

No. 1) and are presumed to be true for purposes of resolving the defendants’ motions to dismiss.

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

the person she saw[,]” and Pearce informed the other officers that Absher believed Hicks was the

individual they were looking for. (Id. at PageID# 6, ¶ 5.9.) Hicks alleges that Pearce later stated

that she went to each of the homes where mailbox tampering had been reported and told the

residents that Hicks had been looking in their mailboxes, and that all of the residents told her they

wanted to press charges. (Doc. No. 1.)

When Hicks started to cross the street to speak to a neighbor, Pearce yelled for him to stop

so that she could talk to him. (Id.) Hicks responded that “he doesn’t talk to Millersville Police

without a lawyer.” (Id. at PageID# 6–7, ¶ 5.12.) Pearce then arrested and handcuffed Hicks, and

did not respond when Hicks asked why he was being arrested. (Doc. No. 1.) Hicks’s cell phone

began to ring, and Hicks told Pearce that his mother was calling and asked if he could answer. (Id.)

Pearce said no and “made fun of him . . . .” (Id. at PageID# 7, ¶ 5.13.)

Riley transported Hicks to the Millersville Police Department, where Riley wrote an arrest

warrant affidavit under Carr’s supervision. (Doc. No. 1.) Carr told Riley to rewrite the affidavit,

stating, “‘you can’t make it sound like we are having him arrested[;] you have to say that they

wanted him arrested[.]’” (Id. at PageID# 7, ¶ 5.14.) The arrest warrant, which was based on

information provided by Pearce, “stated [that] officers had spoken to several witnesses[,]” “w[ere]

given a good description of a suspect,” and “that multiple witnesses identified . . . Hicks as the

suspect.” (Id. at ¶ 5.15.) Hicks was charged with one count of mailbox tampering and taken to the

Sumner County Jail. (Doc. No. 1.)

Hicks asserts that the arrest was actually based on “a ‘limited description’” provided by

one witness. (Id. at PageID# 11, ¶ 5.34.) Hicks alleges that he was the only person in the

photographs Pearce showed Absher, that Pearce told Absher his name while showing her the

photos, that Absher’s account of the identification contradicts Pearce’s testimony, and that “Pearce

lost, destroyed or deleted the photographic evidence that” she showed to Absher. (Id. at

PageID# 12, ¶ 5.42.) He also claims “that the Millersville Police Department does not have a

policy/training on how or when to conduct photo line ups[,]” “how or when to make [a] custodial

arrest for crimes occurring outside the officer[’]s presence[,]” and “evidence collection and

retention.” (Id. at PageID# 10, ¶¶ 5.29–5.31.)

Hicks appeared in court for a preliminary hearing on July 15, 2019. (Doc. No. 1.) Both

Absher and Pearce testified at the preliminary hearing. (Id.) The case was bound over to a Sumner

County grand jury, which returned an indictment on four counts of mailbox tampering. (Id.) All

four counts were dismissed on November 5, 2020, at the request of the Sumner County District

Attorney. (Id.)

B. Procedural History

Hicks initiated this action on November 4, 2021, by filing a complaint against the State of

Tennessee, the City of Millersville, Gay, Pearce, Riley, and Carr. (Id.) The complaint asserts false

arrest and malicious prosecution claims against Pearce, Riley, and Carr under 42 U.S.C. § 1983

and Tennessee common law and a municipal liability claim against the City of Millersville under

§ 1983 and the Tennessee Governmental Tort Liability Act (GTLA). (Id.) The complaint does not

identify what claims Hicks asserts against the State or Gay. Hicks seeks compensatory and punitive

damages, costs, and attorney’s fees. (Id.)

The State and Gay filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)

and 12(b)(6).3 (Doc. Nos. 18, 19.) The State and Gay argue that any claims against them should

be dismissed because the complaint does not contain any factual allegations against Gay, the

3 The State and Gay refiled their motion to dismiss and memorandum with corrected

certificates of service on February 14, 2022. (Doc. Nos. 21, 22.)

doctrine of judicial immunity bars any claim for money damages against Gay in his individual

capacity, and sovereign immunity bars any § 1983 claims against the State. (Doc. No. 19.)

Pearce and Riley filed a motion to dismiss Hicks’s claims against them under

Rule 12(b)(6). (Doc. Nos. 24, 25.) They argue that Hicks’s state and federal false arrest claims are

barred by the applicable statutes of limitations, that Hicks has not alleged sufficient facts to state

a malicious prosecution claim against Riley, and that the doctrine of collateral estoppel bars

Hicks’s claims that there was not probable cause for his arrest and prosecution because the state

court found probable cause to support the charges against him in a preliminary hearing. (Doc.

No. 25.)

Hicks responded in opposition to Pearce and Riley’s motion to dismiss, arguing that he has

alleged sufficient facts to state a malicious prosecution claim against Riley and that collateral

estoppel does not bar his claims against Pearce and Riley. (Doc. No. 39.) In reply, Pearce and Riley

argue that Hicks has abandoned his state-law malicious prosecution claims against Riley and his

false arrest claims against both defendants by failing to respond to their arguments regarding those

claims. (Doc. No. 40.) They also reiterate that the finding of probable cause in Hicks’s preliminary

hearing “is fatal to [his] claims” in this action. (Id. at PageID# 209.)

Hicks did not respond to the State and Gay’s motion to dismiss and, instead, moved for an

extension of time to amend the complaint. (Doc. No. 33.) The Court ordered Hicks to “file an

amended complaint or respond to Gay and the State of Tennessee’s motion to dismiss by no later

than June 21, 2022.” (Doc. No. 52, PageID# 327–28.) That deadline has passed, and Hicks has not

filed an amended complaint or a response to Gay and the State’s motion to dismiss. The Court will

therefore consider that motion to be unopposed.

II. Legal Standard

A. Federal Rule of Civil Procedure 12(b)(1)

Federal courts are courts of limited subject-matter jurisdiction and can adjudicate only

those claims authorized by the Constitution or an act of Congress. Chase Bank USA, N.A. v. City

of Cleveland, 695 F.3d 548, 553 (6th Cir. 2012). Article III of the Constitution extends the federal

judicial power “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the

United States,” and several other categories of cases not at issue here.4 U.S. Const. art. III, § 2,

cl. 1; see also 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.”). Congress has also

granted federal courts diversity jurisdiction over civil actions in which the parties are citizens of

different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332. Whether the

Court has subject-matter jurisdiction is a “threshold” question in any action. Am. Telecom Co. v.

Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007). This reflects the fundamental principle

that “‘[j]urisdiction is power to declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and dismissing the cause.’” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.)

506, 514 (1868)).

The party asserting subject-matter jurisdiction bears the burden of establishing that it exists.

Id. at 104. A motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction “may

either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.”

Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). A facial attack challenges the

4 For example, cases involving ambassadors, public ministers, and consuls and cases

between two states or in which the United States is a party. U.S. Const. art. III, § 2, cl. 1.

sufficiency of the pleading and, like a motion under Rule 12(b)(6), requires the Court to take all

factual allegations in the pleading as true. Wayside Church v. Van Buren Cnty., 847 F.3d 812, 816–

17 (6th Cir. 2017) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330

(6th Cir. 2007)). A factual attack challenges the allegations supporting jurisdiction, raising “a

factual controversy requiring the district court to ‘weigh the conflicting evidence to arrive at the

factual predicate that subject-matter does or does not exist.’” Id. at 817 (quoting Gentek Bldg.

Prods., Inc., 491 F.3d at 330). District courts reviewing factual attacks have “wide discretion to

allow affidavits, documents and even a limited evidentiary hearing to resolve disputed

jurisdictional facts.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).

B. Federal Rule of Civil Procedure 12(b)(6)

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 Hicks appears 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. The State and Gay’s Motion to Dismiss

Gay argues that, although he is identified as a defendant in the caption of Hicks’s

complaint, the complaint includes no factual allegations about him or his conduct. “Where a person

is named as a defendant without an allegation of specific conduct, the complaint is subject to

dismissal, even under the liberal construction afforded to pro se complaints.” McElyea v. Kerns,

No. 3:16-cv-3157, 2017 WL 782975, at *3 (M.D. Tenn. Mar. 1, 2017) (first citing Gilmore v. Corr.

Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004); then citing Griffin v. Montgomery No. 00-

3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000); and then citing Rodriguez v. Jabe, No. 90-

1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990)). The complaint does not contain any factual

allegations regarding Gay, much less “‘sufficient factual matter’ to render [a] legal claim

plausible[.]” Fritz, 592 F.3d at 722 (quoting Iqbal, 556 U.S. at 678). Thus, Hicks has not stated

any claim on which relief can be granted against Gay.

The State of Tennessee argues that it is entitled to sovereign immunity under the Eleventh

Amendment from Hicks’s claims for money damages. (Doc. No. 19.) The Eleventh Amendment

provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “Although by its

terms the Amendment applies only to suits against a state by citizens of another state, the Supreme

Court has extended it to suits by citizens against their own states.” Babcock v. Michigan, 812 F.3d

531, 533 (6th Cir. 2016) (citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363

(2001)). “There are three exceptions to sovereign immunity: (1) when the state has waived

immunity by consenting to the suit; (2) when Congress has expressly abrogated the states’

sovereign immunity, and (3) when the doctrine set forth in Ex parte Young, 209 U.S. 123 (1908)

applies.” Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017). None of these exceptions applies here.

The State has not consented to this suit or waived its immunity from Hicks’s claims, see Dibrell

v. State, No. E2021-00405-COA-R3-CV, 2022 WL 484563, at *5 (Tenn. Ct. App. Feb. 17, 2022)

(explaining that the State of Tennessee has not waived its immunity from common law malicious

prosecution and false imprisonment claims); “[s]ection 1983 does not abrogate Eleventh

Amendment immunity[,]” Boler, 865 F.3d at 410 (citing Will v. Mich. Dep’t of State Police, 491

U.S. 58, 66 (1989)); and the Ex parte Young doctrine applies to suits for prospective injunctive

and declaratory relief against state officials, not suits for money damages “against the state

itself[,]” Puckett v. Lexington-Fayette Urban Cnty. Gov’t, 833 F.3d 590, 598 (6th Cir. 2016) (citing

S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008)).

Accordingly, the State and Gay’s motion to dismiss should be granted.

B. Pearce and Riley’s Motion to Dismiss

1. False Arrest Claims Under § 1983 and Tennessee Law

Pearce and Riley argue that Hicks’s false arrest claims under the Fourth Amendment and

Tennessee common law are barred by the applicable statutes of limitations. “The statute of

limitations is an affirmative defense, and a plaintiff generally need not plead the lack of affirmative

defenses to state a valid claim[.]” Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012)

(first citing Fed. R. Civ. P. 8(c); then citing Fed. R. Civ. P. 8(a); and then citing Jones v. Bock, 549

U.S. 199, 216 (2007)). Accordingly, “a motion under Rule 12(b)(6), which considers only the

allegations in the complaint, is generally an inappropriate vehicle for dismissing a claim upon the

statute of limitations.” Id. There is an exception to this general rule, however, when “the allegations

in the complaint affirmatively show that the claim is time-barred. When that is the case, . . .

dismissing the claim under Rule 12(b)(6) is appropriate.” Id. (citing Jones, 549 U.S. at 215).

Because § 1983 does not specify a limitations period, courts apply “the state statute of

limitations applicable to personal injury actions under the law of the state in which the § 1983

claim arises.” Eidson v. Tenn. Dep’t of Child.’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). In

Tennessee, the applicable limitations period is one year. Id. (citing Tenn. Code Ann. § 28-3-104).

However, “[t]he date on which the statute of limitations begins to run in a § 1983 action is a

question of federal law.” Id. at 635. Generally, “the limitation period starts to run when the plaintiff

knows or has reason to know of the injury which is the basis of his action.” Id.

Pearce and Riley argue, and Hicks does not dispute, that the one-year statute of limitations

began to run on Hicks’s § 1983 false arrest claims “[a]t the very latest, . . . on the date of his

preliminary hearing—July 15, 2019[.]” (Doc. No. 25, PageID# 89.) The Supreme Court has held

that the statute of limitations for a false arrest claim under § 1983 begins to run at the time of arrest

or, if the arrest is followed by criminal proceedings, “at the time the claimant becomes detained

pursuant to legal process.” Wallace v. Kato, 549 U.S. 384, 397 (2007); see also id. at 390 (“‘If

there is a false arrest claim, damages for that claim cover the time of detention up until issuance

of process or arraignment, but not more.’” (citation omitted)).

The complaint states that Hicks appeared for a preliminary hearing on July 15, 2019, after

which the case was “bound over to the Grand Jury . . . .” (Doc. No. 1, PageID# 8, 10, ¶¶ 5.17,

5.27.) Therefore, the statute of limitations on Hicks’s § 1983 false arrest claim began to run no

later than July 15, 2019, and expired on July 15, 2020. See Wallace, 549 U.S. at 397; Freeman v.

Harris, Civ. No. 3:10-0071, 2010 WL 5279942, at *1–2 (M.D. Tenn. Dec. 17, 2010) (finding that

one-year statute of limitations for false arrest claim brought under § 1983 began to run on date of

preliminary hearing). Hicks did not initiate this action until November 4, 2021. (Doc. No. 1.)

Accordingly, his claims for false arrest under § 1983 are time-barred.

Hicks also does not contest Pearce and Riley’s argument that his state-law false arrest

claims are time-barred because the statute of limitations began to run on those claims at the time

he was arrested. Claims for false arrest under Tennessee law “accrue[ ] on the date of the false

arrest . . . .” Chase v. Funk, No. 3:16-cv-01579, at *5 n.5 (M.D. Tenn. Dec. 9, 2016) (first citing

Dirks v. Tudors, No. E2008-01384-COA-R3-CV, 2009 WL 1372180, at *1 (Tenn. Ct. App. May

18, 2009); and then citing Gray v. 26th Jud. Drug Task Force, Nos. 02A01-9609-CV-00218, C95-

279, 1997 WL 379141, at *2 (Tenn. Ct. App. July 8, 1997)). The complaint states that Hicks was

arrested on March 18, 2019, more than one year before he initiated this action. (Doc. No. 1.) His

false arrest claims under Tennessee law are also time-barred and, like his claims under § 1983,

must be dismissed.

2. Malicious Prosecution Claims Under § 1983 and Tennessee Law

In the Sixth Circuit, the elements of a malicious prosecution claim under the Fourth

Amendment are that (1) “‘a criminal prosecution was initiated against the plaintiff’”; (2) “‘the

defendant “ma[d]e, influence[d], or participate[d] in the decision to prosecute”’”; (3) “‘there was

a lack of probable cause for the criminal prosecution’”; (4) “‘“as a consequence of a legal

proceeding,” the plaintiff suffered a “deprivation of liberty” . . . apart from the initial seizure’”;

and (5) “‘the criminal proceeding must have been resolved in the plaintiff’s favor.’” Mills v.

Barnard, 869 F.3d 473, 480 (6th Cir. 2017) (alterations in original) (quoting Sykes v. Anderson,

625 F.3d 294, 308–09 (6th Cir. 2010)). A claim for malicious prosecution under Tennessee law

requires a plaintiff to show “that (1) a prior suit or judicial proceeding was instituted without

probable cause, (2) defendant brought such prior action with malice, and (3) the prior action was

finally terminated in plaintiff’s favor.” Roberts v. Fed. Express Corp., 842 S.W.2d 246, 248 (Tenn.

1992).

a. Hicks’s Allegations Against Riley

Riley argues that Hicks has not sufficiently pleaded malicious prosecution because he has

not made any “allegation that Officer Riley participated in any way in the prosecution of [Hicks]

. . . .” (Doc. No. 25, PageID# 94.) “Whether an officer influenced or participated in the decision

to prosecute hinges on the degree of the officer’s involvement and the nature of the officer’s

actions.” Sykes, 625 F.3d at 311 n.9. The officer must have “‘participate[d] in a way that aid[ed]

in the decision, as opposed to passively or neutrally participating.’” Miller v. Maddox, 866 F.3d

386, 390 (6th Cir. 2017) (quoting Sanders v. Jones, 845 F.3d 721, 731 (6th Cir. 2017)). In Sykes,

the Sixth Circuit held that this factor may be satisfied if an officer “deliberately made false or

misleading statements and omitted material information from his warrant application in order to

manufacture probable cause.” Sykes, 625 F.3d at 306; see also Miller v. Maddox, No. 3:13-1270,

2014 WL 4960961, at *1 (M.D. Tenn. Sept. 30, 2014) (denying motion to dismiss malicious

prosecution claim where plaintiff alleged that defendant officer had sworn out arrest warrant

containing false statements and a night commissioner issued an arrest warrant and detained

plaintiff based on those false statements), aff’d, No. 14-6216 (6th Cir. June 2, 2015).

Here, Hicks alleges that Riley participated in the investigation by stopping a black

Mercedes and speaking with its driver, then wrote an arrest warrant that falsely stated multiple

witnesses had provided good descriptions of the suspect and identified Hicks as the mailbox

tamperer knowing that only Absher had provided a description of the suspect and identified Hicks.

Based on Riley’s warrant, Hicks was arrested and transported to the Sumner County Jail, held on

a $500 bond for mailbox tampering, and prosecuted for that offense. (Doc. No. 1.) Liberally

construed, these allegations are sufficient to support an inference that Riley participated in the

decision to prosecute Hicks. Hicks has therefore stated a claim for malicious prosecution under

§ 1983 and Tennessee law against Riley.5 See Miller, 2014 WL 4960961, at *1; cf. Roberts, 842

S.W.2d at 247 (denying defendant employer’s motion for summary judgment on malicious

prosecution claims under Tennessee law arising from employer’s “caus[ing] an arrest warrant to

be issued charging Plaintiff with grand larceny”). Riley is not entitled to dismissal on this ground.

b. Collateral Estoppel or Issue Preclusion

Pearce and Riley argue that Hicks’s malicious prosecution claims are barred by the doctrine

of collateral estoppel because the Sumner County General Sessions Court determined that probable

cause supported the mailbox tampering charge at Hicks’s preliminary hearing. (Doc. No. 25.)

5 Riley also argues that Hicks has abandoned his state-law malicious prosecution claims by

“fail[ing] to respond to Officer Riley’s argument in Part IV.D” of the motion to dismiss. (Doc.

No. 40, PageID# 206.) While Riley is correct that Hicks’s response does not specifically cite the

section of the motion to dismiss that contains Riley’s arguments about these claims, Hicks has

addressed the substance of the argument Riley makes in that section. (Doc. No. 39.) The Court

finds that he has not abandoned his state-law claims.

The doctrine of collateral estoppel “serves to ‘relieve parties of the cost and vexation of

multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,

encourage reliance on adjudication.’” United States v. Mendoza, 464 U.S. 154, 158 (1984) (quoting

Allen v. McCurry, 449 U.S. 90, 94 (1980)). Collateral estoppel “precludes relitigation of issues of

fact or law actually litigated and decided in a prior action between the same parties and necessary

to the judgment, even if decided as part of a different claim or cause of action.” Ga.-Pac. Consumer

Prods. LP v. Four-U-Packaging, Inc., 701 F.3d 1093, 1098 (6th Cir. 2012) (quoting Gargallo v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 661 (6th Cir. 1990)). It is an affirmative

defense that may be waived if not raised by the party seeking to assert it. Gilbert v. Ferry, 413

F.3d 578, 579–80 (6th Cir. 2005). As such, the party asserting the defense bears the burden of

proving that it applies. Spilman v. Harley, 656 F.2d 224, 229 (6th Cir. 1981).

Where, as here, a party argues that a state court’s determination of an issue should be given

preclusive effect, federal courts apply that state’s law to determine whether collateral estoppel

applies. See Haring v. Prosise, 462 U.S. 306, 313 (1983) (noting that, under 28 U.S.C. § 1738,

federal courts must “‘give preclusive effect to state-court judgments whenever the courts of the

State from which the judgments emerged would do so.’” (quoting Allen, 449 U.S. at 96)). To

establish that collateral estoppel applies to the issue of probable cause in this case, Tennessee law

requires Pearce and Riley to show:

(1) that the issue to be precluded is identical to an issue decided in an earlier

proceeding, (2) that the issue to be precluded was actually raised, litigated, and

decided on the merits in the earlier proceeding, (3) that the judgment in the earlier

proceeding has become final, (4) that the party against whom collateral estoppel is

asserted was a party or is in privity with a party to the earlier proceeding, and

(5) that the party against whom collateral estoppel is asserted had a full and fair

opportunity in the earlier proceeding to contest the issue now sought to be

precluded.

Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102, 107 (Tenn. 2016) (quoting Mullins v. State, 294

S.W.3d 529, 535 (Tenn. 2009)).

Pearce and Riley argue generally that elements one through four have been satisfied

because Hicks alleges that he was represented by counsel in the state criminal proceedings; that

the arresting officer, Pearce, and complaining witness, Absher, testified at the preliminary hearing;

and that the case was ultimately bound over to the grand jury on a finding of probable cause. (Doc.

No. 25.) As for the fifth element, Pearce and Riley argue that Hicks has not alleged in the

complaint “that he was not given a full and fair opportunity to contest probable cause at the

preliminary hearing” and that Hicks’s allegations “show[ ] that [he] had a full and fair opportunity

to contest the issue of probable cause at his preliminary hearing and lost.” (Id. at PageID# 97–98.)

In response, Hicks argues that Pearce gave “intentionally false and misleading testimony” during

the preliminary hearing that was “relevant to the . . . finding of probable cause” and that the falsity

of that testimony deprived him of a full and fair opportunity to litigate the issue. (Doc. No. 39,

PageID# 203–04.) Pearce and Riley reply that Hicks had a full and fair opportunity to challenge

“Pearce’s credibility . . . at the preliminary hearing” (Doc. No. 40, PageID# 207) and cite portions

of a transcript of Hicks’s probable cause hearing that are part of the record as an exhibit to a

different filing.6 (Doc. No. 38-1).

6 Pearce and Riley filed the preliminary hearing transcript as an exhibit to their response to

Hicks’s motion for an extension of time to file an amended complaint. (Doc. No. 38.) They do not

ask the Court to consider the transcript of Hicks’s probable cause hearing in their motion to

dismiss. Instead, they assert in their reply brief that “the Court may take judicial notice of the

transcript . . . and consider it in connection with the motion to dismiss.” (Doc. No. 40,

PageID# 208).

The Court may take judicial notice of the transcript without converting Pearce and Riley’s

motion to dismiss into a motion for summary judgment. See Garton v. Crouch, No. 3:21-cv-00338,

2022 WL 275519, at *6–7 (M.D. Tenn. Jan. 28, 2022) (taking judicial notice of transcript of

plaintiff’s preliminary hearing, filed as an exhibit to a motion to dismiss, for purposes of

The purpose of a preliminary hearing is to determine whether there is enough evidence at

the initiation of a criminal case for a reasonable person to find by probable cause that a crime was

committed and the defendant committed it. Tenn. R. Crim. P. 5.1(a)(1). It is “‘not to discover the

state’s case.’” Boucher v. Johnson City Tennessee, et al., No. 2:19-cv-45, 2019 WL 4316866, at

*4 (E.D. Tenn. Sept. 11, 2019) (quoting Tenn. R. Crim. P. 5.1, Advisory Commission Comments).

The Tennessee Court of Appeals has held “that a finding of probable cause in the general sessions

court does not, in and of itself, preclude a finding of lack of probable cause in a subsequent civil

action for malicious prosecution” but that,

when testimony which, if unrefuted, would be sufficient to establish probable

cause, is tested by cross-examination in a court of law, then a trial court dealing

with a malicious prosecution is entitled to find that probable cause has been

established, and that the defendant is entitled to judgment as a matter of law.

Yant v. Arrow Exterminators, Inc., No. 01-A-01-9801-CV00004, 1999 WL 43239, at *3 (Tenn.

Ct. App. Feb. 1, 1999).

determining whether collateral estoppel barred plaintiff’s First Amendment claim). But Pearce and

Riley have not addressed why the Court should do so when the transcript was filed in the context

of a different motion, was not relied on in their motion to dismiss, and was raised for the first time

in their reply brief for that motion.

“It is well-settled that a movant cannot raise new issues for the first time in a reply brief

because consideration of such issues ‘deprives the non-moving party of its opportunity to address

the arguments.’” Malin v. JPMorgan, 860 F. Supp. 2d 574, 577 (E.D. Tenn. 2012) (quoting Cooper

v. Shelby Cnty., No. 07-2283, 2010 WL 3211677, at *3 (W.D. Tenn. Aug. 10, 2010)). “[W]hile a

district court nonetheless has the discretion to consider an issue raised in a reply brief, or new

evidence submitted with a reply, it must first give the opposing party a reasonable opportunity to

respond to the new argument or evidence. Failure to do so is an abuse of discretion.” McGruder v.

Metro. Gov’t of Nashville & Davidson Cnty., No. 3:17-cv-01547, 2020 WL 4586171, at *2 (M.D.

Tenn. Aug. 10, 2020 (citing Seay v. Tenn. Valley Auth., 339 F.3d 454, 481–82 (6th Cir. 2003)). By

waiting until their reply brief to identify specific portions of the transcript that they believe support

the application of collateral estoppel and to argue that the Court should take judicial notice of the

transcript, Pearce and Riley deprived Hicks of the opportunity to meaningfully address those

arguments. See Malin, 860 F. Supp. 2d at 577. The Court declines to consider the preliminary

hearing transcript in resolving this motion.

The Sixth Circuit recognizes the general principle “that[,] where ‘the state affords an

opportunity for an accused to contest probable cause at a preliminary hearing and the accused does

so, a finding of probable cause by the examining magistrate or state judge should foreclose

relitigation of that finding in a subsequent § 1983 action.’” Smith v. Thornburg, 136 F.3d 1070,

1077 (6th Cir. 1998) (quoting Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987)). The

Sixth Circuit also recognizes that not “every determination in a preliminary hearing should be

given preclusive effect in a subsequent section 1983 action. Some preliminary hearings are little

more than formalities.” Coogan, 820 F.2d at 175.

The Sixth Circuit has found a specific exception to the general rule of preclusion for cases

in which plaintiffs “base[ ] their malicious prosecution claim in federal court on the grounds that

the defendant-officers had knowingly supplied the magistrate with false information in order to

establish probable cause.” Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001) (citing

Josey v. Salisbury, No. 92–2093, 1993 WL 476974 (6th Cir. Nov. 18, 1993). In such cases, there

is no identity of issues between the two proceedings because the plaintiffs “[are] not attempting to

relitigate the identical issue of whether probable cause exists [in the malicious prosecution action];

rather, they [are] arguing that the officers misstated material facts in order to establish probable

cause at the state level.” Id.; see also Josey, 1993 WL 476974, at *2 (holding that, in malicious

prosecution action, “the core issue is whether the officers misstated the facts to establish probable

cause; at the preliminary hearing, the central question was whether there was probable cause.

While the two inquiries are clearly related, they are not identical.”) (citing Schertz v. Waupaca

Cnty., 875 F.2d 578, 581 (7th Cir. 1989) as “recogniz[ing] the difference between challenging the

integrity, rather than the sufficiency of the evidence presented”). This Court has therefore found

that “preclusion does not attach to an earlier probable cause determination where there are

allegations and evidence that it was influenced by falsified evidence.” York v. City of Lewisburg,

No. 1:19-cv-00098, 2022 WL 411843, at *3 (M.D. Tenn. Feb. 9, 2022) (citing Ballanger v. City

of Chattanooga, No. 1:11-CV-107, 2012 WL 3597417, at *5 (E.D. Tenn. Aug. 20, 2012) and Day

v. Ingle’s Markets, Inc., No. 2:01-CV-325, 2006 WL 239290, at *3 (E.D. Tenn. Jan. 25, 2006)).

Tennessee courts also do not apply collateral estoppel where there the two causes of action can be

distinguished in this way. Dickson v. Godfrey, 825 S.W.2d 692, 694 (Tenn. 1992) (“‘The familiar

rule is that where the two causes of action are different, the judgment in the first suit is binding as

an estoppel only as to those matters in issue, the inquiry being what point or question was actually

litigated and determined in the original action, not what might have been litigated and

determined.’”) (quoting Cline v. Cline, 270 S.W.2d 499, 502 (1954)). Hicks argues that Pearce

gave “intentionally false and misleading testimony” during the preliminary hearing that was

“relevant to the . . . finding of probable cause.” (Doc. No. 39, PageID# 203–04.) His claims in this

case are therefore related but not identical to the probable cause determination made at his

preliminary hearing. Pearce and Riley have not established the first element of collateral estoppel

under Tennessee law. Bowen, 502 S.W.3d at 107.

Hicks further argues that “[d]ispatch tapes”—which the Court assumes Hicks received in

discovery in his criminal proceedings—“later show[ed]” facts that conflict with Pearce’s

preliminary hearing testimony. (Id. at 203.) For example, Hicks alleges that Pearce testified that

the driver of the car that Riley stopped matched the suspect description police had been given

(Doc. No. 1), but that “[d]ispatch audio later showed” that testimony to be false (Doc. No. 39,

PageID# 203). Courts have also declined to apply collateral estoppel to bar a malicious prosecution

claim where the plaintiff did not have access to discovery at the preliminary hearing. See Diamond

v. Howd, 288 F.3d 932, 935–36 (6th Cir. 2002) (holding in case applying Tennessee law that, when

a party “[is] not entitled to discovery before [the] state preliminary hearing, it is not at all clear that

. . . [the] preliminary hearing would support collateral estoppel”); Golino v. City of New Haven,

950 F.2d 864, 870 (2d Cir. 1991) (finding that “state [preliminary] hearing did not provide . . . a

full and fair opportunity, for collateral estoppel purposes, to litigate the issue of probable cause”

in part because the claimant had no access to police investigative file before hearing); Whitley v.

Seibel, 676 F.2d 245, 249–50 (7th Cir. 1982) (finding that state preliminary hearing did not provide

a basis for collateral estoppel where discovery was unavailable before the hearing and preliminary

probable cause determination was not appealable); Boucher, 2019 WL 4316866, at *4 (denying

motion to dismiss based on Tennessee’s collateral estoppel standard because, among other things,

“it [was] unclear if Plaintiff had access to the state’s investigative file before the hearing to assist

in his cross examinations”).

Hicks alleges that Pearce gave false testimony at the preliminary hearing and argues that

later-obtained evidence supports that finding. Both arguments provide grounds on which to find

collateral estoppel does not bar Hicks’s malicious prosecution claims under Tennessee law. Pearce

and Riley have not met their burden at the pleading stage to show that Hicks’s claims should be

dismissed on that basis.

IV. Recommendation

For these reasons, the Magistrate Judge RECOMMENDS that Gay and the State of

Tennessee’s motion to dismiss (Doc. No. 18) be GRANTED and Pearce and Riley’s motion to

dismiss (Doc. No. 24) be GRANTED as to Hicks’s false arrest claims under § 1983 and Tennessee

law and DENIED as to his malicious prosecution claims.

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 22nd day of August, 2022.

alictoyrnolornr

ALISTAIR» NEWBERN

United States Magistrate Judge

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