Maher

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

PETER MAHER, )

)

Plaintiff )

)

v. ) 1:25-cv-02842-STA-jay

)

HAYWOOD COUNTY, TENNESSEE, )

)

Defendant. )

ORDER GRANTING MOTION TO DISMISS

Plaintiff Peter Maher filed suit against Haywood County, Tennessee, pursuant to 42 U.S.C.

§ 1983, for the alleged violation of his First Amendment rights, as well as a supplemental state law

claim under the Tennessee Open Meetings Act, Tenn. Code Ann. § 8-44-101, et seq. (Amd. Cmplt.

ECF No. 40.) Defendant Haywood County has filed a motion to dismiss (ECF No. 41); Plaintiff

has filed a response to the motion (ECF No. 45); and Defendant has filed a reply to the response.

(ECF No. 46.) For the reasons set forth below, Defendant’s motion is GRANTED.

Standard of Review

A complaint need only contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although this standard does not require

“detailed factual allegations,” it does require more than “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When considering a Rule 12(b)(6)

motion, the Court must treat all of the well-pleaded allegations of the pleadings as true and construe

all of the allegations in the light most favorable to the non-moving party. Scheuer v. Rhodes, 416

U.S. 232, 236 (1974); Saylor v. Parker Seal Co., 975 F.2d 252, 254 (6th Cir. 1992). Under Twombly

and Iqbal, Rule 8(a)’s liberal “notice pleading” standard requires a complaint to contain more than

allege facts that, if accepted as true, are sufficient “to raise a right to relief above the speculative

level” and to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570.

“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.” Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 556).

Background/Analysis

The complaint alleges as follows. In February 2025, Plaintiff asked Haywood County

Mayor David Livingston, Haywood County Attorney Sarah Levy, and “other designated officials”

to be allowed to speak at a meeting of the Haywood County Commission. (Amd. Cmplt. at ¶ 5).

According to Plaintiff, he informed “officials that his comments would be limited to a 60-to-80-

second response to a matter germane to the items on the agenda for the meeting or germane to

matters within the jurisdiction of the Commission.” (Id.)

On February 27, 2025, Mayor Livingston responded via email, stating that “‘the public is

always welcome to speak…[but] must be addressing the business on the agenda’ and only after

‘proper procedures are complied with by the proper committees’ and further that a motion or

resolution is before the County Commission.” (Id.)

Plaintiff alleges that Mayor Livingston’s email “failed to provide any confirmation of

whether Plaintiff would be permitted to speak.” (Id.). Instead, the email restricted Plaintiff’s

“public comments strictly to agenda items and only after internal governmental processes – without

providing any mechanism for Plaintiff to be placed on the agenda.” (Id.). While Mayor Livingston

did not tell Plaintiff he could not speak, Plaintiff alleges that his request to speak at a County

Commission meeting was denied “by omission.” (Id.) “The response therefore denied the request

by omission and substituted a general policy statement for a decision based on the specific request.”

(Id.)

Despite the alleged denial, Plaintiff was placed on the Haywood County Public Records

(“PRC”) agenda. (Id. at ¶ 7.) On March 5, 2025, the PRC Chair Linda Hayes emailed Plaintiff that

he would be placed on the agenda. (Id.) However, she informed him that his public comments were

limited to three minutes and must “adhere to the agenda topics.” (Id.) According to Plaintiff,

Hayes’s directive that he limit his comments to the agenda topics for a limited amount of time

constituted “a content-based restriction on public comment . . . [that] places substantive control

over the permissible subject matter of the speech in the hands of the governing body.” (Id.)

Plaintiff further alleges that the action of denying him “a meaningful opportunity to present

public comment to the Haywood County Commission” and subjecting him “to unconstitutional

restrictions on protected speech” violated his First Amendment rights under the United States

Constitution and the Tennessee Open Meetings Act. (Id. at ¶¶ 9-11.) The alleged unconstitutional

restrictions were Plaintiff’s having to limit his comments to agenda items (rather than those

“germane” to the jurisdiction of the County) and being allowed to speak for only three minutes.

Plaintiff alleges that his allegations “establish a consistent pattern” of (1) permitting public

comment “only after “internal governmental processes;” (2) limiting public participation to

“agenda approved topics”; and (3) failing to provide a “clear or independent mechanism for

member of the public to obtain agenda placement.” (Id. at ¶ 8). Plaintiff does not allege that he

actually attended a Haywood County meeting and was prevented from offering public comment.

Section 1983

Section 1983 authorizes an individual to bring suit against state and local officials who

deprive the individual of a federal right under color of state law. In Monell v. Department of Social

Services, 436 U.S. 658 (1978), the United States Supreme Court extended § 1983 liability to

municipalities such as Haywood County for alleged constitutional violations in a narrow set of

circumstances. “A municipality may not be held liable under § 1983 on a respondeat superior

theory – in other words, ‘solely because it employs a tortfeasor.’” D’Ambrosio v. Marino, 747 F.3d

378, 388-89 (6th Cir. 2014) (quoting Monell, 436 U.S. at 691 (emphasis in original)). Instead, a

plaintiff must show that “through its deliberate conduct” the entity was the “moving force” behind

the injury alleged. Allman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013) (quoting Bd. of Cnty.

Comm’rs v. Brown, 520 U.S. 397, 404 (1997)). That is, the plaintiff must prove that the entity had

a “policy or custom” that caused a violation of his or her rights. Monell, 436 U.S. at 694.

In Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir. 2005), the Sixth Circuit identified

four ways in which a plaintiff may prove the existence of an illegal policy or custom. The plaintiff

can point to (1) the government’s legislative enactments or official policies; (2) actions by officials

with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a

custom or practice of tolerating the violation of federal rights by its officers or agents. Id. at 429.

In this case, Plaintiff acknowledges that Haywood County “may impose reasonable

restrictions on the content of speech as long” with the proviso that “the restrictions do not result in

impermissible viewpoint discrimination in light of the purpose of the County Commission.” (Resp.

p. 4, ECF No. 45.) However, he contends that Mayor Livingston, as an official with final decision-

making authority, violated the First Amendment by instructing him that he must confine his

comments to “business on the agenda” – which he equates with “viewpoint discrimination.” He

argues that Haywood County (via Mayor Livingston) cannot “selectively deny [him] the right to

speak based on [his] opinion, [his] critical tone, or [his] political view.” (Id.)

“It is axiomatic that the government may not regulate speech based on its substantive

content or the message it conveys.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S.

819, 828 (1995) (citing Police Dep’t v. Mosley, 408 U.S. 92, 96 (1972)). “The principle that has

emerged from [Supreme Court] cases ‘is that the First Amendment forbids the government to

regulate speech in ways that favor some viewpoints or ideas at the expense of others.’” Lamb’s

Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (citing City Council of

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). “Discrimination against speech

because of its message is presumed to be unconstitutional.” Rosenberger, 515 U.S. at 828. “When

the government targets not subject matter, but particular views taken by speakers on a subject, the

violation of the First Amendment is all the more blatant.” Id. at 829.

In order to preserve the limits of a limited public forum, however, the State may

legitimately exclude speech based on subject matter when the subject matter is outside the

designated scope of the forum. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 109 (2001);

Rosenberger, 515 U.S. at 829–30. “The necessities of confining a [limited public] forum to the

limited and legitimate purposes for which it was created may justify the State in reserving it for

certain groups or for the discussion of certain topics.” Rosenberger, 515 U.S. at 829.

Thus, while it is true that a governmental entity in a limited public forum may not

discriminate against speech on the basis of viewpoint and any restrictions must be “reasonable in

light of the purposes served by the forum,” Good News Club., 533 U.S. at 106–07, there is nothing

in the amended complaint that alleges that Plaintiff intended to express critical or political views

at the County Commission meeting. In fact, the only description of Plaintiff’s intended speech is

that his comments “would be limited to a 60-to-80-second response to a matter germane to matters

on the agenda or germane to matters within the jurisdiction of the Commission.” (Amd. Cmplt. ¶

5.) There are no allegations that Haywood County (or Mayor Livingston) engaged in viewpoint

discrimination. Moreover, there are no allegations that Plaintiff was ever denied the right to speak

at the County Commission. Thus, Plaintiff has not plausibly alleged that his First Amendment

rights were violated by the restrictions imposed on his intended speech at the County Commission,

and his §1983 claim must be dismissed. See Freedom from Religion Found., Inc. v. City of Warren,

Mich., 873 F. Supp. 2d 850, 863 (E.D. Mich. 2012), aff’d, 707 F.3d 686 (6th Cir. 2013) (citing

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (“[A] speaker may properly be excluded

from a limited public forum because he wishes to address a topic not encompassed within the

purpose of the forum.”); Youkhanna v. City of Sterling Heights, 934 F.3d 508, 519 (6th Cir. 2019)

(“In a limited public forum, the government can impose reasonable restrictions based on speech

content, but it cannot engage in viewpoint discrimination.”)

Moreover, Plaintiff has not alleged any facts showing that Defendant’s policy for allowing

comment at the County Commission meeting was content-based or in any way impermissibly

restricted his right to free speech under the First Amendment sufficient to establish liability under

Monell. Instead, Defendant’s policy allowed comments to be made on agenda items, and Plaintiff

was even told that he could speak for three minutes on an agenda item. Plaintiff has cited no cases

in which a court held that an individual must be given unfettered access to speak at a County

Commission meeting. Neither has Plaintiff alleged facts showing an unconstitutional custom or

pattern of impermissibly restricting speech. “A broad assertion that an unconstitutional policy

exists is nothing more than a bare recitation of legal standards.” Osberry v. Slusher, 750 F. App’x

385, 398 (6th Cir. 2018) (citation omitted). See also Cunningham v. Cleveland Police Dep’t., 2010

WL 5636778, at *6 (N.D. Ohio Dec. 22, 2010), rep. & rec. adopted sub nom. Cunningham v.

Cleveland Police Dep’t, 2011 WL 234050 (N.D. Ohio Jan. 24, 2011) (“Although Plaintiff suggests

that he will provide convincing proof of the City’s unconstitutional policy at trial, that proffer does

not negate Plaintiff’s duty pursuant to Fed. R. Civ. P. 8 to plead facts plausibly showing that the

City acted unlawfully at the pleading stage. There are no facts in the Amended Complaint that

reasonably describe a specific policy or custom of the City of Cleveland that violated

Cunningham’s rights. Accordingly, Plaintiff’s conclusory allegations do not suffice to satisfy the

pleading standard announced in Iqbal and Twombly.”); Williams v. City of Cleveland, 2009 WL

2151778, at *4 (N.D. Ohio July 16, 2009) (“Plaintiff must allege facts, which if true, demonstrate

the City’s policy, such as examples of past situations where law enforcement officials have been

instructed to ignore evidence.”).

Because the amended complaint does not contain sufficient facts, which if accepted as true,

to state a claim to relief that is plausible on its face, Iqbal, 556 U.S. 678 (citing Twombly, 550 U.S.

at 557), the Court must dismiss Plaintiff’s § 1983 claim.

Tennessee Open Meetings Act

Plaintiff has also brought a claim under the Tennessee Open Meetings Act, Tenn. Code.

Ann. § 8–44–101. This Act provides that “[a]ll meetings of any governing body are declared to be

public meetings open to the public at all times, except as provided by the Constitution of

Tennessee.” Tenn. Code Ann. § 8–44–102(a). At the time of the relevant events (2025), the Act

provided that a “governing body . . . [must] reserve a period for public comment . . . to comment

on matters that are germane to the items on the agenda for the meeting.” Tenn. Code Ann. § 8-

44-112(a) (emphasis added). That section was revised in 2026 to mandate that:

(a)(1) A governing body shall, for each public meeting, reserve a period for public

comment to provide the public with the opportunity to comment on matters that are

germane to the items on the agenda for the meeting.

(2)(A) A local governing body shall, for each public meeting, reserve a period for

public comment to provide the public with the opportunity to comment:

(i) On matters that are germane to the items on the agenda for the meeting;

and

(ii) On any matter that is germane to the jurisdiction of the local

governing body, regardless of whether such matter is an item on the agenda

for the meeting.

Tenn. Code Ann. § 8-44-112 (emphasis added).

Plaintiff attempts to rely on the 2026 revision to establish his state law claim. However, the

amendment to the Act does not apply retroactively because doing so would attach new legal

consequences to past events, and the amendment contains no language indicating that the

Tennessee Legislature intended the amendment to apply retroactively. See Nutt v. Champion Int’l

Corp., 980 S.W.2d 365, 368 (Tenn. 1998) (“Statutes are presumed to operate prospectively unless

the legislature clearly indicates otherwise.”). Because the amended version does not apply

retroactively, the current version of the Act has no bearing on the scope of public comments

required before the Act’s revision. Haywood County was under no obligation to allow public

comment on any topics outside those included in its agenda at the time Plaintiff allegedly intended

to offer public comment, Tenn. Code Ann. § 8-44-112(a) (2025). Consequently, Plaintiff’s state

law claim must be dismissed.

Accordingly, Defendant’s motion to dismiss is GRANTED. The Clerk of the Court is

DIRECTED to enter judgment accordingly.

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. Thomas Anderson

United States District Judge

Date: September 14, 2026.