Lamar v. D.A. Knoxville Criminal Court

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DEWAYNE EMMANUEL LAMAR, )

)

Plaintiff, )

)

v. ) No. 3:23-cv-00120

) Judge Trauger

KNOXVILLE CRIMINAL )

COURT D.A., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the court is plaintiff DeWayne Emmanuel Lamar’s third amended complaint against

Knoxville Criminal Court D.A., Knox County District Attorney General Charme P. Allen, William

Dossett, and Governor Bill Lee.1 (Doc. No. 12.) The Court must conduct an initial review and

dismiss any complaint filed in forma pauperis if it is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2)(B); see also Ongori v. Hawkins, No. 16-2781, 2017 WL

6759020, at *1 (6th Cir. Nov. 15, 2017) (“[N]on-prisoners proceeding in forma pauperis are still

subject to the screening requirements of § 1915(e).”).

A. Standard of Review

“Pro se complaints are to be held to less stringent standards than formal pleadings drafted

by lawyers and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383

(6th Cir. 2011); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Estelle v. Gamble, 429

1 As a threshold matter, Defendant Dossett is deceased, and “Knoxville Criminal Court D.A.” is duplicative

of defendant Allen, the Knox County District Attorney General. (Doc. No. 12 at 2-3.) These defendants

will therefore be dismissed.

U.S. 97 (1976)). Even under this lenient standard, however, pro se plaintiffs must meet basic

pleading requirements and are not exempted from the requirements of the Federal Rules of Civil

Procedure. Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). During initial review, the court

applies the standard for Rule 12(b)(6), Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010), by

viewing the complaint in the light most favorable to plaintiff and taking all well-pleaded factual

allegations as true. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)

(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). The court then determines if the

allegations “plausibly suggest an entitlement to relief,” Ashcroft v. Iqbal, 556 U.S. 662, 681

(2009)), that rises “above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). “[A] formulaic recitation of the elements of a cause of action will not do,” id. (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)), and Plaintiff may not rely on unwarranted factual

inferences or legal conclusions couched as factual allegations. Eidson v. Tenn. Dep’t of Children’s

Servs., 510 F.3d 631, 634 (6th Cir. 2007); DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.

2007).

B. Factual Allegations

In 1991, the plaintiff accepted a plea bargain in Knoxville criminal court that contained no

sex offender registry requirements. (Doc. No. 12 at 3-5.) The plaintiff had no knowledge of a sex

offender registry in order to “agree or disagree with the terms.” Id. at 4. After his release from

incarceration in 2005, however, the plaintiff was placed on Tennessee’s sex offender registry

(“SOR”). Since that time, the plaintiff has been punished for failure to register and, on three

occasions, has been “harassed by white officers and beaten” for living in neighborhoods under

SOR residency restrictions. Id. at 5. The SOR restrictions have also caused the plaintiff stress and

depression. Id.

C. Analysis

The Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification,

and Tracking Act (“SORA”), Tenn. Code Ann. § 40-39-201 et seq., requires individuals convicted

of certain offenses to be included on the state’s SOR and comply with a number of (often quite

severe) restrictions on their behavior, including restrictions on where they can live, work, or even

be present. Santini v. Rausch, No. 3:20-CV-00661, 2021 WL 2043083, at *2 (M.D. Tenn. May 21,

2021) (citing Reid v. Lee, 476 F. Supp. 3d 684, 689-93 (M.D. Tenn. 2020)). The plaintiff brings

official-capacity claims under 42 U.S.C. § 1983 that constitute as-applied federal constitutional

challenges to the SORA.2 Section 1983 creates a cause of action against any person who, acting

under color of state law, deprives an individual of any right, privilege or immunity secured by the

Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012).

Thus, to state a Section 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights

secured by the Constitution or laws of the United States, and (2) that the deprivation was caused

by a person acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir.

2014).3

2 “In an as-applied challenge, the plaintiff contends that application of the statute in the particular context

in which he has acted, or in which he proposes to act, would be unconstitutional.” Women’s Med. Prof’l

Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997) (citation omitted). By contrast, a plaintiff that

challenges a law “on its face” attempts “to invalidate the law in each of its applications, to take the law off

the books completely.” Green Party of Tenn. v. Hargett, 791 F.3d 684, 691 (6th Cir. 2015) (quoting Speet

v. Schuette, 726 F.3d 867, 871 (6th Cir. 2013)). Here, the gravamen of the complaint is that the SORA is

invalid in the context of its application to the plaintiff, and the plaintiff seeks injunctive relief pertaining

only to himself. (See Doc. No. 12 at 5.) That is, the plaintiff does not suggest that he seeks to “challenge all

retroactive applications of [the SORA].” Doe #1 v. Lee, 518 F. Supp. 3d 1157, 1180 (M.D. Tenn. 2021).

Accordingly, the court does not construe the complaint as asserting that the SORA is facially

unconstitutional. See Warshak v. United States, 532 F.3d 521, 529 (6th Cir. 2008).

3 Because the plaintiff seeks prospective injunctive relief, these claims are properly brought against

defendant Lee. Doe v. Haslam, Nos. 3:16-cv-02862, 3:17-cv-00264, 2017 WL 5187117, at *9-10 (M.D.

Tenn. Nov. 9, 2017); see also Ernst v. Rising, 427 F.3d 351, 358-59 (6th Cir. 2005) (citing Ex Parte Young,

209 U.S. 123, 155-56 (1908)). To the extent that these claims are also for money damages (see Doc. No.

12 at 5), however, defendant Lee is protected by Tennessee’s sovereign immunity from suit in federal court.

The plaintiff first challenges the SORA under the Ex Post Facto Clause of the United States

Constitution. (Doc. No. 1 at 5.) The Ex Post Facto Clause “forbids the [legislature] . . . to enact

any law which imposes a punishment for an act which was not punishable at the time it was

committed; or imposes additional punishment to that then prescribed.” United States v. Kruger,

838 F.3d 786, 790 (6th Cir. 2016). Two elements must be present for a law to fall within the ex

post facto prohibition: (1) “it must apply to events occurring before its enactment”; and (2) “it

must disadvantage the offender affected by it . . . by altering the definition of criminal conduct or

increasing the punishment for the crime[.]” Doe #1, 518 F. Supp. 3d at 1182 (quoting Lynce v.

Mathis, 519 U.S. 433, 441 (1997) (internal citation and quotation marks omitted)); see also Hill v.

Snyder, 900 F.3d 260, 266 (6th Cir. 2018).

Here, the plaintiff alleges that he was placed on Tennessee’s SOR for a conviction that

occurred before the SORA became law. He further alleges that the SORA is an ongoing imposition

of increased punishment that has significantly affected his quality of life. Finally, the plaintiff’s

allegation that he has been actively prosecuted under the SORA plausibly suggests that state

officials refuse to remove him from the registry. The plaintiff has, therefore, stated a colorable

Section 1983 claim based on alleged violation of the Ex Post Facto Clause. See, e.g., Brown, 2020

WL 7864252, at *8 (concluding plaintiff “plausibly alleged that his placement on the [SORA

registry] violates the Ex Post Facto Clause”); Haslam, 2017 WL 5187117, at *13-14 (denying

motion to dismiss as-applied Ex Post Facto Clause constitutional challenges to the SORA).

See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Boler v. Earley, 865 F.3d 391, 409-10

(6th Cir. 2017) (citing Ernst, 427 F.3d at 358). Plaintiff’s official-capacity Section 1983 claims for money

damages will therefore be dismissed without prejudice for lack of subject-matter jurisdiction. See Brown v.

Lee, No. 3:20-cv-00916, 2020 WL 7864252, at *6 (M.D. Tenn. Dec. 30, 2020) (dismissing SORA-

registrant’s official-capacity claims for money damages based on sovereign immunity).

The plaintiff has also stated a colorable claim under the Eighth Amendment. The Eighth

Amendment protects incarcerated persons from the imposition of cruel and unusual punishment.

Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1093 (6th Cir. 2019). Relying on Doe v. Snyder, 834

F.3d 696, 703-05 (6th Cir. 2016), courts in this circuit have found that the SORA may be

characterized as punitive. Doe #1, 518 F. Supp. at 1183-1204 (concluding that, as applied, SORA’s

classification and reporting obligations are “punitive” and “resemble[ ] traditional forms of

punishment”); Reid, 476 F. Supp. 3d at 705; Doe v. Gwyn, No. 3:17-cv-504, 2018 WL 1957788,

at *8 (E.D. Tenn. Apr. 25, 2018); Haslam, 2017 WL 5187117, at *20. Here, the plaintiff alleges

that he has suffered harm—including physical violence—in connection with the enforcement of

SOR requirements. Because SORA may be deemed punitive, the plaintiff is entitled to pursue

discovery in an attempt to establish that Tennessee’s system is impermissibly faulty. Doe v. Lee,

No. 221CV02156SHLATC, 2023 WL 2001051, at *6 (W.D. Tenn. Jan. 25, 2023), report and

recommendation adopted, No. 221CV02156SHLATC, 2023 WL 1997128 (W.D. Tenn. Feb. 14,

2023) (citing Reid, 476 F. Supp. 3d at 706; Haslam, 2017 WL 5187117, at *20).

The plaintiff’s Fifth Amendment claim, however, is inadequately pled. The complaint

merely mentions the Fifth Amendment in passing and contains no explanation of the nature of this

claim or related supporting factual allegations. The court is therefore unable to discern, for

example, whether the plaintiff may seek to assert a procedural due process claim (which has been

foreclosed by the Supreme Court), Brown, 2020 WL 7864252, at *7 (citing Conn. Dep’t of Pub.

Safety v. Doe, 538 U.S. 1 (2003)), or a takings claim rooted in notions of government contracts,

Lynch v. United States, 292 U.S. 571, 579 (1934). Because the court “cannot create a claim which

[the plaintiff] has not spelled out in [his] pleading,” Plaintiff’s Fifth Amendment claim will be

dismissed. Brown v. Mastauszak, 415 F. App’x 608, 613 (6th Cir. 2011); see also Young Bok Song

v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (explaining the role of courts is not “to ferret out

the strongest cause of action on behalf of pro se litigants” or to “advis[e] litigants as to what legal

theories they should pursue”).

Finally, the complaint brings a state law claim for interference with contract. (Doc. No. 12

at 4) (citing Tenn. Code Ann. § 47-50-90). “In Tennessee, the common law action for tortious

interference with contract and the statutory action for unlawful procurement of breach of contract

have the same elements and operate as alternative theories of recovery.” Johnson v. Univ. Hosps.

Health Sys., Inc., No. 3:21-cv-00656, 2023 WL 5538980, at *1 n.2 (M.D. Tenn. Aug. 28, 2023)

(quoting Hauck Mfg. Co. v. Astec Indus., Inc., 376 F. Supp. 2d 808, 832 (E.D. Tenn. 2005)). The

elements for either cause of action are: (1) a legal contract existed; (2) the defendants knew the

contract existed; (3) the defendants intended to induce a breach of that contract; (4) the defendants

acted with malice; (5) the contract was breached; (6) the defendants’ actions were the proximate

cause of the breach; and (7) the plaintiff suffered damages. Id. (citing Robinson v. City of

Clarksville, 2023 WL 1230159, at *10 (Tenn. Ct. App. Jan. 31, 2023)). In this context, “malice is

‘the willful violation of a known right.’” Prime Co. v. Wilkinson & Snowden, Inc., No. W2003-

00696-COA-R3CV, 2004 WL 2218574, at *4 (Tenn. Ct. App. Sept. 30, 2004) (quoting Crye-Leike

Realtors, Inc. v. WDM, Inc., No. 02A01-9711-CH-00287, 1998 WL 651623, at *6 (Tenn. Ct. App.

Sept. 24, 1998)).

Read broadly, the complaint alleges that the plaintiff signed a negotiated plea agreement

and the state induced a breach of that agreement by imposing requirements pursuant to SORA.

(See Doc. No. 12.) However, the complaint does not allege that defendants Lee or Charme had any

involvement in either the plaintiff’s 1991 plea agreement or the 2005 imposition of SOR

requirements. Nor does the complaint allege that Lee or Charme acted “intentionally and without

legal justification” towards the plaintiff, Prime Co., 2004 WL 2218574, at *4, or that those actions

proximately caused the plaintiff’s alleged harm. Accordingly, the plaintiff fails to state a colorable

claim for interference with contract.

D. Conclusion

For these reasons, the court concludes that the plaintiff has stated non-frivolous Section

1983 official-capacity claims for prospective injunctive relief against defendant Lee, bringing as-

applied constitutional challenges based upon the Ex Post Facto Clause and the Eighth Amendment.

The plaintiff’s official-capacity claims for money damages are DISMISSED WITHOUT

PREJUDICE. All other claims are DISMISSED. The court’s determination that the complaint

states colorable claims for purposes of this initial screening does not preclude the court from

dismissing any claim at any time for the reasons set forth in 28 U.S.C. § 1915(e)(2), nor does it

preclude the defendant from filing a motion to dismiss any claim under Federal Rule of Civil

Procedure 12.

The court will direct the U.S. Marshals Service to serve the third amended complaint (Doc.

No. 12) on defendant Lee at no cost to the plaintiff. However, in order for the U.S. Marshals

Service to serve the defendant, the plaintiff must complete and return two forms: “Process Receipt

and Return” (AO 285) and “Summons in a Civil Action” (AO 440). These forms are together

referred to as a “service packet.” The Clerk is DIRECTED to send the plaintiff one service packet.

The plaintiff MUST complete the service packet for defendant Lee, and then return the completed

service packet to the Clerk’s Office within 21 DAYS of the date this order is entered on the docket.

Upon return of the completed service packet, PROCESS SHALL ISSUE. The plaintiff is warned

that failure to return the completed service packet within the required time period could jeopardize

his prosecution of this action.

This action is REFERRED to the Magistrate Judge to oversee service of process, enter a

scheduling order for the management of the case, to dispose or recommend disposition of any

pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if

necessary, under Rule 72 of the Federal Rules of Civil Procedure and the Local Rules of Court.

The plaintiff is cautioned that he must keep the court informed of his current address or face

dismissal for want of prosecution. Fed. R. Civ. P. 41(b); Local Rule 41.01(b).

It is so ORDERED.

Mibil beg —

United States District Judge