# Billiards and Brews, LLC v. Tennessee Alcohol Beverage Commission

> District Court, E.D. Tennessee · August 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11130290

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** August 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

BILLIARDS AND BREWS, LLC, and )
RICHARD LAWHORN, )
)
Plaintiffs, )
) Case No. 3:23-cv-181
v. )
) Judge Curtis L. Collier
CITY OF KNOXVILLE, TENNESSEE, ) Magistrate Judge Debra C. Poplin
et. al., )
)
Defendants. )

M E M O R A N D U M

Before the Court is Plaintiffs’ motion for leave to file a second amended complaint. (Doc.
77.) Plaintiffs move to add the City of Knoxville’s Police Chief, Paul Noel, as a defendant and to
assert two claims of retaliation in violation of the First Amendment brought under 42 U.S.C. §
1983 against the City of Knoxville, Tennessee, (the “City”) and Chief Noel. Defendants responded
to the motion (Doc. 86), and Plaintiffs replied (Doc. 89).
I. BACKGROUND
During the COVID-19 pandemic, the City adopted by ordinance a Knox County Health
regulation requiring restaurants and bars serving food and alcohol to close in-house service after
10 p.m. This action arises from disputes over the City’s efforts to enforce the 10 p.m. curfew on
Plaintiff Billiards and Brews, LLC (“B&B”), a sports bar owned by Plaintiff Richard Lawhorn in
Knoxville, Tennessee.
On May 23, 2023, B&B and Lawhorn filed this action against the City, the Tennessee
Alcohol Beverage Commission (“TABC”), and Sergeant John Coward of the Knoxville Police
Department. (Doc. 1.) Plaintiffs asserted the following claims against Defendants: (1) violations
of their rights under the First Amendment brought under 42 U.S.C. § 1983 (Doc. 1 ¶¶ 102–12), (2)
violations of their rights under the Equal Protection Clause (id. ¶¶ 113–18), (3) conspiracy to
violate their civil rights brought under 42 U.S.C. § 1985 (id. ¶¶ 123–28), and (4) claims for loss of
property in violation of state law (id. ¶¶ 119–21). The Court discussed the allegations of the
original complaint in detail in the Court’s Memorandum addressing defendant Coward’s motion

to dismiss. (Doc. 54.) The Court will not repeat them here except to note that the original
complaint included an allegation that “the conspirators . . . joined together to unlawful [sic] take
down the Plaintiff once and for all with the July 2022 raid, in part to silence him.” (Doc. 1 ¶ 100,
see also id. ¶ 92.)
By Order dated November 13, 2023 (Doc. 39), the Court granted Plaintiffs’ first motion to
amend the complaint (Doc. 30). In the First Amended Complaint, Plaintiffs removed TABC as a
defendant and added TABC agent Steven Grooms as a defendant. (Doc. 40 ¶ 3.) The First
Amended Complaint also added averments concerning an arrest warrant Defendants issued for
Plaintiff Lawhorn after he announced he was running for mayor of the City in May 2023, thereby

“silencing his campaign.” (Id. ¶ 110.)
On December 27, 2024, Plaintiffs filed their motion to amend (Doc. 77), attaching a
proposed second amended complaint (“the Proposed Complaint”) (Doc. 77-1). The Proposed
Complaint adds Chief Noel as a defendant and keeps the City as a defendant. (Doc. 77-1 ¶¶ 1–4.)
The Proposed Complaint also abandons the claims for (1) violations of the First Amendment
brought under § 1983 arising from Defendants’ alleged conduct occurring more than one year
before May 23, 2023, (2) conspiracy to violate civil rights brought under § 1985, (3) violations of
the Equal Protection Clause, and (4) loss of property in violation of state law. The Proposed
Complaint asserts only two claims, both brought under 42 U.S.C. § 1983, for retaliation for
exercising First Amendment rights based on events occurring less than one year before Plaintiffs
filed their original complaint on May 23, 2023.
The first claim, Count I, arises from the execution of a search warrant on B&B in July
2022. (Doc. 77-1 ¶¶ 49–55.) The second claim, Count II, arises from Plaintiff Lawhorn’s arrest
sometime during or after May 2023. (Id. ¶¶ 39–40, 56–63.) According to the Proposed Complaint:

• Lawhorn spoke out against the COVID-19 curfew and Mayor Indya Kincannon and
announced he would be running for mayor against Mayor Kincannon. (Id. ¶¶ 22–23.)

• In July 2022, a “small paramilitary unit swarmed down on B&B purporting to have a search
warrant.” (Id. ¶ 26.)

• “Upon information and belief, said search warrant was obtained through fraud perpetrated
by Knoxville law enforcement agents.” (Id. ¶ 27.) The search warrant was unsupported
by any affidavit or declaration of facts to establish probable cause, and the judge who
signed the warrant did so without reading the application. (Id.)

• “Upon information and belief, neither the defendants, nor the City, nor other agents of the
City, had probable cause to support the raid performed on the plaintiffs in July 2022.” (Id.
¶ 28.)

• Other Knoxville bars and restaurants were subject to the curfew, but “[u]pon information
and belief, the defendants and other agents of the City knew that other Knoxville bars . . .
were violating said curfew. . . . However, upon information and belief none of these other
Knoxville bars . . . were punished as severely” as B&B or Lawhorn. (Id. ¶ 29.)

• The TABC did not have a valid search warrant for the July 2022 raid, confiscated thousands
of dollars’ worth of liquor from Plaintiffs during the search, and have never produced a
revocation order despite many requests. (Id. ¶¶ 31–33.)

• “Upon information and belief, the defendant conspirators . . . conspired together, by
communicating, planning, and acting to unlawfully retaliate against the Plaintiffs with the
specific intent to, once and for all, shut down plaintiffs’ business with the July 2022 raid.”
(Id. ¶ 34.)

• “Upon information and belief, said July 2022 raid was motivated, at least in part, to silence
plaintiff Lawhorn regarding his opposition to Mayor Kincannon.” (Id. ¶ 35.)

• “Upon information and belief, as a result of Lawhorn exercising his first amendment [sic]
rights, Mayor Kincannon retaliated and entered into a conspiracy with the other Defendants
. . . [and] conspirators not yet known to shut down B&B.” (Id. ¶ 36.)
• In May 2023, Lawhorn “threw his hat into the Knoxville City Mayoral race as a candidate.”
(Id. ¶ 39.)

• “Immediately following Lawhorn’s announcement that he was running for Mayor against
Kincannon, and in violation of Mr. Lawhorn’s First Amendment Rights, the Defendants,
in concert with then and current Mayor Kincannon and other unknown co-conspirators,
issued a warrant for Lawhorn’s arrest silencing his campaign.” (Id. ¶ 40.)

• “Upon information and belief, defendants lacked probable cause to support Lawhorn’s
arrest,” and charges were later dismissed against him on the merits. (Id. ¶¶ 41–42.)

• “Upon information and belief, Lawhorn’s arrest was motivated, at least in part, by
Kincannon’s and defendants’ desire to retaliate against Lawhorn for challenging
Kincannon in the Mayoral election.” (Id. ¶ 43.)

II. STANDARD OF REVIEW
With respect to the timing of a proposed amendment to the complaint, Rule 16 of the
Federal Rules of Civil Procedure requires the Court to include a deadline for the amendment of
pleadings in its scheduling order, and it permits modification of the scheduling order “only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(3)–(4); see also Leary v.
Daeschner, 349 F.3d 888, 906 (6th Cir. 2003).
Under Rule 15 of the Federal Rules of Civil Procedure, the “court should freely give leave
[to amend the pleadings] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Beydoun v.
Sessions, 871 F.3d 459, 469 (6th Cir. 2017). However, leave to amend a complaint “may be denied
where there is ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of amendment, etc.’” Riverview Health Inst.
LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th Cir. 2010) (emphasis omitted) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)); see also Stanley v. W. Mich. Univ., 105 F.4th 856, 867 (6th
Cir. 2024) (same).
III. DISCUSSION
The deadline to amend pleadings expired on February 21, 2025. (Doc. 82, Sch. Ord. ¶
6(a).) Plaintiffs’ motion to amend (Doc. 77) was filed on December 27, 2024, well before the
deadline. Thus, Rule 16(b) provides no impediment to Plaintiffs’ amendment.

The City asserts, however, that the motion to amend should be denied on two independent
grounds: undue delay in filing the motion and futility. The Court will therefore address Plaintiffs’
amendment for undue delay and futility under Rule 15(a) in turn below.
A. Undue Delay in Moving to Amend under Rule 15(a)
The City argues that Plaintiffs have been dilatory in moving to amend the complaint once
again and allowing this amendment would cause it undue prejudice. (Doc. 86 at 7–9.) Delay in
moving to amend “by itself is not sufficient reason to deny a motion to amend. Notice and
substantial prejudice to the opposing party are critical factors in determining whether an
amendment should be granted.” Wade v. Knoxville Utils. Bd., 259 F.3d 452, 458–59 (6th Cir.

2001) (quoting Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989)); see also Duggins
v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (“[D]elay alone, regardless of its length
is not enough to bar it [amendment] if the other party is not prejudiced.”) (citation omitted).
Generally, “allowing amendment after the close of discovery creates significant prejudice.”
Duggins, 195 F.3d at 834 (citing Moore v. City of Paducah, 790 F.2d 557, 560 (6th Cir. 1986)).
Similarly, allowing an amendment after the expiration of the dispositive-motion deadline is also
substantially prejudicial where a motion for summary judgment has already been filed. Wade, 259
F.3d at 459. “When amendment is sought at a late stage in the litigation, there is an increased
burden to show justification for failing to move earlier.” Id. If denying a motion to amend on the
basis of undue delay, the court must “give reasons for its decision, and . . . nam[e] prejudice to the
opponent.” Duggins, 195 F.3d at 834 (citing Moore, 790 F.2d at 560).
Plaintiffs alleged both events from which their First Amendment retaliation claims arise,
i.e., the July 2020 search of B&B and the 2023 arrest of Richard Lawhorn, in their First Amended
Complaint. The Proposed Complaint could be viewed simply as an attempt to clarify their First

Amendment claims before the Court. Nevertheless, Plaintiffs could have moved to amend the
operative complaint months earlier for this purpose. As previously discussed, though, delay alone
will not justify denial of a motion to amend. For the Court to deny a motion to amend on the basis
of delay, the nonmoving party must suffer substantial prejudice if the amendment is allowed.
The City argues it has already filed a motion for summary judgment that will result in the
dismissal of all claims and therefore will suffer substantial prejudice if the Court allows this
amendment. (Doc. 86 at 7–9.) The City filed its motion for summary judgment on two grounds
unrelated to the merits of the case: res judicata and the statute of limitations.1 Because the parties
did not need to complete discovery for the Court to address these two grounds, the Court granted

the City’s motion for a protective order (Doc. 93) and stayed all discovery. (Doc. 98.)
In support of its contention that it would be prejudiced if Plaintiffs’ motion to amend were
granted, the City cites Wade v. Knoxville Utilities Board, 259 F.3d 452, 459 (6th Cir. 2001), a case
in which a plaintiff’s motion to amend was denied for undue delay. In Wade, the court denied a

1 Prior to filing this action, B&B had filed two other actions arising from the COVID-19
curfew. The first was filed in state court on March 29, 2021, and was removed to this Court. See
Case No. 3:21-cv-120-CLC-HBG. B&B dismissed this action voluntarily pursuant to Federal Rule
of Civil Procedure 41(a)(1)(A)(i). (Id., Doc. 15.) B&B, joined by Richard Lawhorn, filed the
second action on February 8, 2022, in this Court. See Case No. 3:22-cv-00048-TRM-JEM. They
voluntarily dismissed this action on May 23, 2022, pursuant to Rule 41(a)(1)(A)(i). (Id., Doc. 6.)
Under Rule 41(a)(1)(B), dismissal of a claim based on or including a claim the plaintiff previously
dismissed “operates as an adjudication on the merits.” Id.
motion to amend the complaint, noting that the plaintiff offered no justification for having waited
nearly a year and a half before filing the motion to amend to add disability-discrimination claims.
Id. at 459. However, the Wade court also noted delay alone was insufficient to deny a motion to
amend. Instead, it found the amendment would have significantly prejudiced the defendant since
the dispositive-motion deadline had expired, the defendant had filed a motion for summary

judgment on all claims in the original complaint, and extensive discovery, including more than
twenty depositions, had already been completed. Id.
Here, the current motion to amend was filed on December 27, 2024, and the deadline for
dispositive motions was August 13, 2025. No discovery has been completed since the Court
granted the City’s motion for a stay of the case, and the Court has authority to amend the
scheduling order to extend the discovery, dispositive-motion, and trial deadlines. Thus, the City’s
asserted grounds for undue prejudice are unavailing. The Court does not find that this amendment
would cause undue prejudice to the City.
B. Futility of the Amendment under Rule 15(a)

The City next argues the motion to amend should be denied because it is futile. (Doc. 86
at 4–7.) A proposed amendment is futile if it cannot withstand review under the standards of a
motion to dismiss filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Beydoun,
871 F.3d at 469 (citing Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)).
Rule 12(b)(6) provides for the dismissal of claims which “fail[] to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a complaint pursuant to a Rule 12(b)(6)
motion to dismiss, the Court must “construe the complaint in the light most favorable to the
plaintiff and accept the complaint’s well-pleaded factual allegations as true.” Stanley, 105 F.4th
at 867 (citing Thompson v. Bank of Am., N.A., 773 F.3d 741, 750 (6th Cir. 2014)). All reasonable
inferences are drawn in favor of the plaintiffs. Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016)
(citing Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir. 2008)). However, the court need not
accept as true “a legal conclusion couched as a factual allegation.” Id. (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). “[L]abels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555). The

complaint “must include ‘enough facts to state a claim to relief that is plausible on its face.’”
Stanley, 105 F.4th at 867 (quoting Twombly, 550 U.S. at 570). “Thus, a plaintiff must ‘plead[ ]
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The City argues that the proposed amendment is futile as to Chief Noel because it fails to
allege facts to support supervisory liability under 42 U.S.C. § 1983. The City asserts the proposed
amendment is futile as to the City because it does not allege Plaintiffs’ harm was caused by a
municipal policy, pattern, or practice. The Court will address both arguments in turn.
1. Supervisory Liability

The Proposed Complaint adds two claims against Chief Noel in his individual capacity
under 42 U.S.C. § 1983 for First Amendment retaliation arising from the July 2020 search of B&B
and the 2023 arrest of Plaintiff Lawhorn. 2 The City contends these proposed claims against Chief
Noel are futile because the Proposed Complaint does not allege any facts that indicate he
personally engaged in unconstitutional acts against Plaintiffs, and a government official cannot be

2 Section 1983 is a remedial statute which does not itself create independent, substantive legal
rights. To make a claim under 42 U.S.C. § 1983, the plaintiff is required to show that he has suffered
a deprivation of a right, privilege, or immunity secured to him by the United States Constitution or
other federal law and caused by a person acting under color of state law. Gregory v. Shelby Cnty., 220
F.3d 433, 441 (6th Cir. 2000); Baker v. Hadley, 167 F.3d 1014, 1017 (6th Cir. 1999); Valot v. Se. Loc.
Sch. l Dist. Bd. of Educ., 107 F.3d 1220, 1225 (6th Cir. 1997). The City does not dispute that Mayor
Kincannon and Chief Noel were acting under color of state law.
held vicariously liable for the actions of his subordinates under a claim alleging a constitutional
violation brought under § 1983. (Doc. 86 at 6–7.)
The First Amendment protects against retaliation for “protected conduct,” including
running for political office and political speech. Kubala v. Smith, 984 F.3d 1132, 1139 (6th Cir.
2021) (citations omitted). To make out a cognizable claim of First Amendment retaliation, a

plaintiff must show: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse
action was taken against him that would deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) there is a causal connection between elements one and two—that
is, the adverse action was motivated at least in part by his protected conduct. Id. (citations
omitted). “[A]n act taken in retaliation for the exercise of a constitutionally protected right is
actionable under § 1983 even if the act, when taken for a different reason, would have been
proper.” Bloch v. Ribar, 156 F.3d 673, 681–82 (6th Cir. 1998).
The City’s opposition to Plaintiffs’ proposed First Amendment retaliation claims against
Chief Noel focuses on the adverse-action element of the claims. To state a retaliation claim, a

plaintiff must do more than allege a supervisor is liable for the adverse actions of his subordinates:
An individual capacity claim based on supervisory liability, like all individual
capacity claims, requires an allegation of personal liability. See Peatross [v. City
of Memphis], 818 F.3d [233,] 240–41 [6th Cir. 2016]. . . . An official cannot be held
liable for the constitutional violations of subordinates under a theory of respondeat
superior, meaning that she “cannot be held liable simply because . . . she was
charged with overseeing” subordinate officers who violated the plaintiff’s
constitutional rights. Peatross, 818 F.3d at 241. The complaint must plead that the
official violated the Constitution through her own actions.

Venema v. West, 133 F.4th 625, 633 (6th Cir. 2025). For supervisory liability to attach here,
Plaintiffs must show “minimum” wrongful conduct on the part of the supervisor and a causal
connection between that conduct and the plaintiffs’ injury. Id.
First, “there must be more than an attenuated connection between the injury and the
supervisor’s alleged wrongful conduct.” Id. (citation omitted). “[T]he plaintiff[s] [must] allege
‘some active unconstitutional behavior on the part of the supervisor,’ that is ‘directly correlated
with the plaintiff[s’] injury.’” Id. (internal citations omitted). Specifically, “at a minimum, the
plaintiff[s] must show that the defendant at least implicitly authorized, approved, or knowingly

acquiesced in the unconstitutional conduct of the offending officers. A supervisory official’s
failure to supervise, control, or train an offending subordinate is not actionable without this
minimum showing.” Id. (internal citation omitted).
Second, “there also needs to be ‘a causal connection between the defendant’s wrongful
conduct and the violation alleged.’ A causal connection is established when the supervisor’s
conduct, or lack thereof, could be reasonably expected to give rise to just the sort of injuries that a
plaintiff alleges have occurred.” Id. (internal citation omitted).
The City correctly observes that the only reference to Chief Noel by name in the Proposed
Complaint is found in paragraph four, which identifies Noel as a defendant and states, “Noel . . .

has been aware of the fact of and nature of the allegations set forth herein since the filing of the
original complaint in this lawsuit.” (Doc. 77 ¶ 4.) The City argues the Proposed Complaint makes
no allegations that Chief Noel personally took any action to violate Plaintiffs’ constitutional rights,
and therefore, Plaintiffs fail to state a First Amendment claim against him in the Proposed
Complaint. (Doc. 86 at 6–7.) Plaintiffs did not address this argument in their response brief.
The Court agrees. The Proposed Complaint does not allege sufficient facts to show that
Chief Noel authorized, approved, or knowingly acquiesced in—either explicitly or implicitly—the
unconstitutional conduct of the offending officers. The motion to amend is futile as to Chief Noel.
Plaintiffs’ motion to amend (Doc. 77) is DENIED as to all claims against Chief Paul Noel.
2. Custom, Practice, or Policy to Establish Municipal Liability

The City next argues the First Amendment retaliation claims in the Proposed Complaint
are futile because Plaintiffs have not pleaded that the unconstitutional conduct occurred as a result
of a municipal custom, practice, or policy. (Doc. 86 at 5–6.)
To successfully state a claim for liability against a municipality for alleged constitutional
violations brought under § 1983, a plaintiff must “1) identify a municipal policy or custom; and 2)
connect that policy or custom to the municipality that led to the alleged violation of [the plaintiffs’]
constitutional rights.” Jarvis v. Marcum, 77 F. App’x 308, 1 (6th Cir. 2023) (citing Garner v.
Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) and Gregory v. Shelby Cnty., 220 F.3d 433,
442 (6th Cir. 2000)). A plaintiff fails to state a claim against a municipality if the plaintiff does
not identify in the complaint a policy or custom on the part of the municipality which caused the
unconstitutional conduct. Phillips v. Cassidy, No. 1:22-cv-239, 2022 WL 4390635, at *2 (E.D.
Tenn. Sept. 22, 2022) (“Because he has not adequately pled any municipal liability, Plaintiff has
likewise failed to state a claim against Defendants in their official capacities.”) (citing Pusey v.

City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993)). A plaintiff can make a showing of an
illegal policy or custom for purposes of establishing municipal liability by demonstrating:
(1) the existence of an illegal official policy or legislative enactment; (2) that an
official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a
custom of tolerance or acquiescence of federal rights violations.

Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013).
Plaintiffs contend they meet the second option: ratification by an official with final
decision-making authority. Plaintiffs argue that it is “well established that the acts of an ‘ultimate
decisionmaker/final authority’ to cause the municipality to act[,] i.e., the Mayor here, are acts of
the municipality and are per se policy even if they are a one-time order by the mayor.” (Doc. 89
at 3.) Plaintiffs are correct that a “single act by a ‘decisionmaker possess[ing] final authority to
establish municipal policy with respect to the action ordered’ may suffice in demonstrating that
policy or custom.” Cady v. Arenac Cnty., 574 F.3d 334, 345 (6th Cir. 2009) (quoting Pembaur,
475 U.S. at 481). Courts look to state law to determine if a municipal official has this final
decision-making authority:

To determine whether final authority to make municipal policy is vested in a
particular official, we must resort to state law. [City of St. Louis v.] Praprotnik, 485
U.S. [112,] 125 [(1988)] (plurality opinion); Jett v. Dallas Indep. School Dist., 491
U.S. 701, 737 . . . (1989); Mandel v. Doe, 888 F.2d 783, 793 (11th Cir. 1989). This
includes “state and local positive law,” such as statutes, ordinances, and regulations,
and less formal sources of law such as local practice and custom. Jett, 491 U.S. at
737; Mandel, 888 F.2d at 793.

Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993) (internal parallel Supreme Court
citations omitted).
According to Plaintiffs, the City’s “Code of Ordinances” provides that “[t]he executive and
administrative powers and responsibilities of the city shall be vested in the mayor.” (Doc. 89 at
3.) Therefore, Plaintiffs argue Mayor Kincannon had final decision-making authority “when
having the city arrest Lawhorn and when having the police force raid B&B without probable
cause.” (Id. at 3–4.)
The City’s Charter supports Plaintiffs’ position concerning the mayor’s executive
authority. Section 104 of the Charter provides in relevant part,
The corporate and governmental authority and power of the City of Knoxville shall
be vested in:

An executive branch, headed by the mayor, who shall be the chief executive officer,
and the executive branch shall be composed of such departments . . . . as may be
provided by the general law of the State of Tennessee, this charter, or ordinance
enacted pursuant thereto . . . .
Code of Ordinances, City of Knoxville, Tennessee, Part I – The Charter § 104. Section 305 of the
City’s Charter establishes, among other departments, the Police Department. Id. § 305. Section
303 of the City’s Charter gives the mayor authority over the departments, including the ability to
appoint and remove all heads of the departments:
(A) The mayor is authorized to administer, supervise, direct and control the
executive branch of the city. Such administration shall be by and through
departmental directors and such other agencies as are prescribed in this
charter, general law or ordinance.
. . .

(L) The mayor shall be responsible to the council for the proper administration
of all city affairs and shall, to that end, have the power to appoint and
remove all directors and heads of departments, officers and other employees
except as otherwise provided for in this charter or by ordinance.

Id. § 303. Finally, the Charter cements the mayor’s ultimate authority over the City’s departments
and its department heads by providing that the city council cannot remove the mayor: “The mayor
shall be elected for a term of four (4) years and shall serve until a successor is elected and
qualified. The mayor shall not be subject to suspension, discharge or removal by the city council.”
Id. § 302.
Accordingly, the Court finds the City’s mayor has final decision-making authority in regard
to how the Police Department is managed—which would include making decisions regarding
whether a search warrant or an arrest warrant is sought. In turn, a final decision by the mayor
concerning whether to seek a warrant, if the mayor made such a decision, would constitute a
policy by the City. The dispositive issue, however, is whether Plaintiffs sufficiently pleaded facts
to show that Mayor Kincannon did in fact make the final decisions regarding the arrest of
Lawhorn and the raid of B&B. Plaintiffs “must demonstrate that a ‘deliberate choice to follow a
course of action” was made by Mayor Kincannon. See Burgess, 735 F.3d at 478 (quoting
Pembaur, 475 U.S. at 483). Importantly, this course of action “must be shown to be the moving
force behind or cause of the plaintiff[s’] harm.” Id.
Plaintiffs claim that the “Mayor has hated Lawhorn ever since Lawhorn first publicly
challenged the Mayor and her policies and abuses of authority and use of her position to retaliate
against those that did not cower to her unlawful demands of the citizens of the City of Knoxville.”

(Doc. 89 at 4.) Without citing specific examples, Plaintiffs argue the Proposed Complaint includes
factual allegations “that Mayor Kincannon acted with retaliatory intent when having the city arrest
Lawhorn, and when having the police force raid B&B without probable cause.” (Id. at 3–4.) The
Proposed Complaint makes the following allegations against the City and Mayor Kincannon:
• “Upon information and belief, the defendant conspirators . . . conspired together, by
communicating, planning, and acting to unlawfully retaliate against the Plaintiffs with the
specific intent to, once and for all, shut down plaintiffs’ business with the July 2022 raid.”
(Doc. 77-1 ¶ 34.)

• “Upon information and belief, said July 2022 raid was motivated, at least in part, to silence
plaintiff Lawhorn regarding his opposition to Mayor Kincannon.” (Id. ¶ 35.)

• “Upon information and belief, as a result of Lawhorn exercising his first amendment [sic]
rights, Mayor Kincannon retaliated and entered into a conspiracy with the other Defendants
. . . [and] conspirators not yet known to shut down B&B.” (Id. ¶ 36.)

• “Immediately following Lawhorn’s announcement that he was running for Mayor against
Kincannon, and in violation of Mr. Lawhorn’s First Amendment Rights, the Defendants,
in concert with then and current Mayor Kincannon and other unknown co-conspirators,
issued a warrant for Lawhorn’s arrest silencing his campaign.” (Id. ¶ 40.)

• “Upon information and belief, defendants lacked probable cause to support Lawhorn’s
arrest,” and charges were later dismissed against him on the merits. (Id. ¶¶ 41–42.)

• “Upon information and belief, Lawhorn’s arrest was motivated, at least in part, by
Kincannon’s and defendants’ desire to retaliate against Lawhorn for challenging
Kincannon in the Mayoral election.” (Id. ¶ 43.)

Viewing the facts in the light most favorable to Plaintiffs, Plaintiffs allege that Lawhorn’s
arrest and the search of B&B were unconstitutional acts in violation of the First Amendment.
However, Plaintiffs fail to allege any facts that demonstrate Mayor Kincannon, as the final
policymaker, was the leading force behind the unconstitutional acts. See Burgess, 735 F.3d at 478.
Plaintiffs’ conclusory allegations “upon information and belief” that Mayor Kincannon “had the
police force” arrest Lawhorn and search B&B would not withstand a motion to dismiss for failure
to state a claim. See Beydoun, 871 F.3d at 469.

The Court of Appeals for the Sixth Circuit has held that statements based on “information
and belief” are “precisely the kinds of conclusory allegations that Iqbal and Twombly condemned
and thus told us to ignore when evaluating a complaint’s sufficiency.” 16630 Southfield Ltd.
P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th Cir. 2013). Such allegations are “naked
assertions devoid of further factual enhancement,” id. (quoting Iqbal, 556 U.S. at 678), which
“contribute nothing to the sufficiency of the complaint,” id. “The mere fact that someone believes
something to be true does not create a plausible inference that it is true.” In re Darvocet, Darvon,
& Propoxyphene Prod. Liab. Litig., 756 F.3d 917, 931 (6th Cir. 2014). Because the Proposed
Complaint does not allege sufficient facts to show the connection between a policy Mayor

Kincannon ratified and the alleged violation of Plaintiffs’ constitutional rights, the motion to
amend is futile as to the City. Plaintiffs’ motion to amend (Doc. 77) is DENIED as to the claims
against the City.
IV. CONCLUSION
For the reasons stated in this Memorandum, Plaintiffs’ motion to amend the First Amended
Complaint (Doc. 77) will be DENIED. The first amended complaint (Doc. 40) remains the
operative complaint.
AN APPROPRIATE ORDER WILL ENTER.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11130290. Public record. Not legal advice.