Appellee Reply Brief for LAW enforcement

Case No: 15-6085

In the

United States Court of Appeals For the Sixth Circuit

_________________

KEVIN CARNETT Plaintiff - Appellant

v.

WBBJ-TV, ET AL. Defendants - Appellees

On Appeal from the United States District Court – Western District of Tennessee

Case No. 14-cv-01309 ________________________________________________________________

BRIEF OF APPELLEES

SHERIFF BLAIR WEAVER, CHESTER COUNTY, TENNESSEE, MADISON COUNTY, TENNESSEE, DAVID LEE WOOLFORK,

AND JEFF FITZGERALD ________________________________________________________________

JON A. YORK (#23106) KIRSTIN E. HARPER (#33256) PENTECOST & GLENN, PLLC

106 Stonebridge Blvd, Jackson, TN 38305 Telephone: (731) 668-5995 Facsimile: (731) 668-7163

Counsel for Defendants – Appellees

ORAL ARGUMENT WAIVED

Case: 15-6085 Document: 23 Filed: 12/17/2015 Page: 1

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................. i

TABLE OF AUTHORITIES .......................................................................... ii

STATEMENT OF JURISDICTION ............................................................. 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .................. 1

STATEMENT OF THE CASE ...................................................................... 1

STATEMENT OF FACTS ............................................................................ 4

STANDARD OF REVIEW ........................................................................... 5

SUMMARY OF THE ARGUMENT ............................................................ 6

ARGUMENT ................................................................................................. 8

CONCLUSION ............................................................................................. 18

CERTIFICATE OF COMPLIANCE ............................................................ 19

CERTIFICATE OF SERVICE ..................................................................... 20

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ... 21

i.


TABLE OF AUTHORITIES

Cases Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ......................................5, 6 Asher v. Unarco Material Holding, Inc., 596 F.3d 313 (6th Cir. 2010) .................... 9 Banks v. City of Whitehall, 344 F.3d 550 (6th Cir. 2003) ........................................ 8 Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Servs., 481 F.3d

337 (6th Cir. 2007 ................................................................................................... 8 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................... 6 Bessent v. Dyersburg State Cmty. College, 415 F. Supp. 2d 874 (W.D. Tenn. 2006)

.............................................................................................................................. 12 Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995) ....................... 6 Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008) ...................................................... 12 Fox v. DeSoto, 489 F.3d 227 (6th Cir. 2007) .......................................................... 14 Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009) ................................................... 6 Hughes v. Vanderbilt Univ., 215 F.3d 543 (6th Cir. 2000) ....................................... 8 In re Kent Holland Die Casting & Planting, Inc., 928 F.2d 1448 (6th Cir. 1991) .... 9 Matthews v. Jones, 35 F.3d 1046 (6th Cir. 1994) .................................................... 11 Moore v. Lafayette Life Ins. Co., 458 F.3d 416 (6th Cir. 2006) ............................... 8 Robinson v. Tenn., 399 F.3d 792 (6th Cir. 2005) ...................................................... 8 Spurlock v. Satterfield, 167 F.ed 995, 1000 (6th Cir. 1999) ..................................... 5

ii.


Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010) ................................................... 13 Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478 (6th Cir. 2009) ................... 6 Turner v. City of Taylor, 412 F.3d 629 (6th Cir. 2005) .......................................... 12 United States v. Walters, 638 F.2d 947 (6th Cir. 1981) ................................... 10, 17 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45

(1989) .................................................................................................................... 11 Wolfe v. Perry, 412 F.ed 707 (6th Cir. 2005) ............................................................ 8

Statutes 28 U.S.C. § 1291 ........................................................................................................ 1 42 U.S.C. § 1983 ............................................................................. 1, 7, 8, 11, 12, 13 Tennessee Code Annotated § 28-3-104 ..................................................................... 8

Rules Fed. R. Civ. P. 15 ................................................................................................ 9, 10 Fed. R. Civ. P. 12 ...................................................................................... 5, 7, 11, 18 Other Authorities Fourth Amendment, U.S. Constitution ………………………………….1, 7, 13, 14

iii.


1

STATEMENT OF JURISDICTION

Appellant-Plaintiff Kevin Lee Carnett filed this appeal on September 29,

2015, from the final judgment of the United States District Court for the Western

District of Tennessee entered on September 25, 2015. (R.E. 90, Judgment, Page ID

#820; R.E. 91, Notice of Appeal, Page ID #821). The district court’s subject matter

jurisdiction arose from 42 U.S.C. § 1983. This Court has jurisdiction on appeal

under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Whether the district court’s sua sponte dismissal of Chester County

Chief Deputy Mark Griffin was proper when Mr. Carnett sought to name him as a

defendant after the statute of limitations had expired.

2. Whether the district court correctly found that Mr. Carnett failed to

state any claims against Sheriff Blair Weaver, Sheriff David Lee Woolfork,

Captain Jeff Fitzgerald, Chester County, Tennessee, and Madison County,

Tennessee.

STATEMENT OF THE CASE

On November 13, 2014, Kevin Lee Carnett, proceeding pro se, filed this 42

U.S.C. § 1983 action alleging that his Fourth Amendment rights had been violated

as a result of his arrest for being a felon in possession of a firearm following

Chester County deputies discovering firearms in his possession while investigating


2

Mr. Carnett’s posting of threatening comments on Facebook directed toward

Madison County Sheriff David Woolfork. (See generally R.E. 1, Compl., Page ID

#1). In addition to his constitutional deprivation claims, Mr. Carnett asserted

various torts arising under Tennessee common law. (Id.) Appellees-Defendants

Chester County Sheriff Blair Weaver, Madison County Sheriff David Lee

Woolfork, Captain Jeff Fitzgerald, Chester County, Tennessee, and Madison

County, Tennessee (collectively “the Law Enforcement defendants”) moved to

dismiss Mr. Carnett’s Complaint. (R.E. 12, 12-1, Mot. to Dismiss, Page ID #75-

96). While the motion to dismiss was pending before the district court, Mr. Carnett

sought leave to amend his Complaint to include, inter alia, Chester County Chief

Deputy Mark Griffin as a Law Enforcement defendant. (R.E. 30, Mot. for Leave,

Page ID #372-76; R.E. 31, Amend. Compl., Page ID #377-446). The Law

Enforcement defendants opposed Mr. Carnett’s Motion to Amend to the extent he

sought to add Mark Griffin as a Defendant on the ground that any claims Mr.

Carnett attempted to allege against him were barred by the statute of limitations.

(R.E. 32, Resp. in Opp. to Mot., Page ID #454-58). The magistrate judge issued a

Report and Recommendation recommending Mr. Carnett’s Motion to Amend be

granted, but that Mark Griffin should be dismissed from the Amended Complaint.

(R.E. 39, Report and Rec., Page ID #477-80). After no objections to the Report and

Recommendation were filed by the parties, the district court adopted the Report


3

and Recommendation, including the dismissal of Mark Griffin from the Amended

Complaint. (R.E. 47, Order, Page ID #503-04).

The Law Enforcement defendants then moved to dismiss the Amended

Complaint on the ground that Mr. Carnett failed to state a claim upon which relief

may be granted. (R.E. 50, 50-1, Mot. to Dismiss Law Enforcement Defendants,

Page ID #522-42). The magistrate judge issued a Report and Recommendation

recommending that the Law Enforcement defendants’ motions to dismiss be

granted, but that Mr. Carnett’s false arrest and malicious prosecution claims

against Chester County, Tennessee should be permitted to proceed. (R.E. 82,

Report and Rec., Page ID #778-89). Mr. Carnett filed an objection to the Report

and Recommendation to the extent it recommended dismissal of his claims against

Sheriff Blair Weaver, and Chester County filed an objection concerning whether

the false arrest and malicious prosecution claims be allowed to proceed. (R.E. 83,

Pl.’s Object., Page ID #790-93; R.E. 86 Def.’s Object., Page ID #800-03). The

district court adopted the Report and Recommendation in part, rejecting the

recommendation to deny the dismissal of the false arrest and malicious prosecution

claims against Chester County, and granted the Law Enforcement defendants’

motion to dismiss in its entirety. (R.E. 89, Order, Page ID #813-19). The district

court also found that an appeal would not be taken in good faith. (Id., Page ID


4

#819). Judgment was entered, and Mr. Carnett timely filed a notice of appeal. (R.E.

90, Judgment, Page ID #820; R.E. 91, Not. of Appeal, Page ID #821-25).

STATEMENT OF THE FACTS1

Mr. Carnett posted a threatening comment on a local television station’s

Facebook page regarding allegations of misconduct against Sheriff Woolfork.

(R.E. 31, Amend. Compl., Page ID #386). Sheriff Woolfork became aware of the

comment and referred the matter for investigation to Captain Jeff Fitzgerald of the

Madison County Sheriff’s Department. (Id. at Page ID #6). Captain Fitzgerald

determined that Mr. Carnett resided in neighboring Chester County, and referred

the matter to the Chester County Sheriff’s Department. (Id). Chester County

deputies Mark Griffin and Jason Crouse went to where they believed was Mr.

Carnett’s residence to question him about the Facebook comment. (Id. at Page ID

#387). While speaking with the deputies, Mr. Carnett admitted to making a

comment on Facebook about Woolfork, but informed them that the Facebook

comment was not intended to be threatening. (Id). Mr. Carnett also informed the

deputies of animosity toward Woolfork because of a past incident involving his

1 Mr. Carnett stated in his Brief that the trial court incorrectly decided the facts in this case. However, because the trial court’s decision came after the Defendants’ Motions to Dismiss, no findings of fact were made as the facts set forth by Mr. Carnett were taken as true for the purposes of deciding those Motions. Accordingly, the Law Enforcement defendants recite Mr. Carnett’s version of the facts as best as possible considering the vast nature of Mr. Carnett’s Amended Complaint, and concede for the purposes of this Brief only that the facts stated in Mr. Carnett’s Amended Complaint should be taken as true and viewed in a light most favorable to him pursuant to the motion to dismiss standard.


5

mother’s incarceration. (Id. at Page ID #387-88). During this encounter with Mr.

Carnett, the deputies observed rifles in the kitchen. (Id).

After observing the rifles, the deputies became aware that Mr. Carnett was a

convicted felon and arrested him for unlawful possession of a firearm. (Id. at Page

ID #389). Mr. Carnett was taken to the Chester County Jail and placed in a holding

cell. (Id. at Page ID #390). While being held at the Chester County Jail, Mr.

Carnett allegedly spoke with Sheriff Weaver and asked him to keep the news of his

arrest out of the newspaper, but Sheriff Weaver provided information to a local

news station when it was requested. (Id. at Page ID #391).

The following day Mr. Carnett was taken to court and received a $10,000.00

bond, and later posted his bond that day and was released from jail. (Id. at Page ID

#393-94). The criminal charges against Mr. Carnett were presented to a grand jury

which returned a “no true bill”. (Id. at Page ID #402).

STANDARD OF REVIEW

“The district court’s ruling on a Rule 12(b)(6) motion to dismiss is a

question of law subject to de novo review. Spurlock v. Satterfield, 167 F.ed 995,

1000 (6th Cir. 1999) (citations omitted). In order to survive dismissal for failure to

state a claim pursuant to Fed. R. Civ. P. 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)


6

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view

the complaint in the light most favorable to the plaintiff and (2) take 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) (citations omitted). “But the district court need not accept a ‘bare

assertion of legal conclusions.’” Tacket, 561 F.3d at 488 (quoting Columbia

Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do.’ Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of further factual enhancement.’” Iqbal, 129 S. Ct. at 1949

(quoting Twombly, 550 U.S. at 555, 557).

SUMMARY OF THE ARGUMENT

This Court should affirm the dismissal of Mark Griffin because the

applicable one-year statute of limitations on Mr. Carnett’s claims against Griffin

had expired, and Mr. Carnett’s claims do not fall under any relation back rules that

would allow the addition of Griffin as a defendant as Mr. Carnett was aware of

Griffin’s identity at the time he filed his original Complaint but chose not to name


7

him as a party. In addition, Mr. Carnett did not object to the Report and

Recommendation that Griffin be dismissed thus waiving any appellate review of

the dismissal.

The Court should also affirm the dismissal of Mr. Carnett’s Amended

Complaint against the Law Enforcement defendants, pursuant to Federal Rule of

Civil Procedure 12(b)(6) as Mr. Carnett failed to state a claim against the Law

Enforcement defendants upon which relief may be granted. Mr. Carnett’s claims

against the Law Enforcement defendants were properly dismissed because (1) the

official capacity claims against Sheriff David Woolfork and Sheriff Blair Weaver

are redundant, (2) Mr. Carnett failed to allege any constitutional deprivation of his

rights by Woolfork, Fitzgerald, and Weaver under the Fourth Amendment of the

United States Constitution, (3) Mr. Carnett failed to plead facts sufficient to

establish municipal liability for Madison and Chester Counties and there is no

respondeat superior liability allowed in § 1983 claims, and (4) Mr. Carnett failed

to set forth any facts sufficient to support any of his alleged causes of action

against the Law Enforcement defendants.2

2 Mr. Carnett alleged several other claims in his Amended Compliant, such as, claims for an Eighth Amendment violation, intentional infliction of mental anguish, embarrassment, loss of money, change of residence, depression, weight loss, emotional stress, and other claims including intentional torts, intentional infliction of emotional distress, and negligent infliction of mental and emotional distress. However, although those claims were argued against in the Law Enforcement defendants’ motion to dismiss, because Mr. Carnett does not argue


8

ARGUMENT

I. THE DISTRICT COURT PROPERLY DISMISSED MR. CARNETT’S CLAIMS AGAINST MARK GRIFFIN AS THEY WERE UNTIMELY.

A. Mr. Carnett’s claims against Mark Griffin are time barred by the

applicable one year statute of limitations.

The Court should affirm the district court’s dismissal of Mark Griffin

because Mr. Carnett’s claims against Mark Griffin are time barred by the statute of

limitations. Because there is no applicable “statute of limitations governing § 1983

actions, ‘federal courts must borrow the statute of limitations governing personal

injury actions in the state in which the section 1983 action was brought.” Wolfe v.

Perry, 412 F.ed 707, 713-14 (6th Cir. 2005) (quoting Banks v. City of Whitehall,

344 F.3d 550, 553 (6th Cir. 2003)). Tennessee Code Annotated § 28-3-104(a) sets

forth a one year statute of limitations period for personal injury actions in

Tennessee. Robinson v. Tenn., 399 F.3d 792, 794 (6th Cir. 2005); Hughes v.

Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000).

Mr. Carnett’s original Complaint was filed on November 13, 2014

complaining of events that occurred on November 20, 2013. (See generally R.E. 1,

Compl., Page ID #1-36). Mr. Carnett filed his Amended Complaint on January 12,

2015, in which, inter alia, he added Mark Griffin as a defendant. (See generally

those claims on appeal, those claims are waived. See Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Servs., 481 F.3d 337, 355 (6th Cir. 2007); see also Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 448 (6th Cir. 2006).


9

R.E. 31, Amend. Compl., Page ID #377-446). Accordingly, as Mr. Carnett’s

Amended Complaint was not filed within one year of the events about which he

complained, the claims alleged against Mark Griffin were barred by the expiration

of the statute of limitations. For this reason, the Court should affirm the dismissal

of Mark Griffin from Mr. Carnett’s Amended Complaint.

B. Mr. Carnett is not permitted to add Mark Griffin as a Defendant under Federal Rule of Civil Procedure 15(c)(1)(C).

The Court should further affirm the dismissal of Mark Griffin from Mr.

Carnett’s Amended Complaint because Rule 15(c)(1)(C) of the Federal Rules of

Civil Procedure also does not permit Mr. Carnett to add Mark Griffin as a

Defendant. Rule 15(c)(1)(C) states, in pertinent part,

. . . [a]n amendment to a pleading relates back to the date of the original pleading when the amendment changes the party or the naming of the party against whom a claim is asserted . . . [if] the party to be brought in by the amendment received such notice of the action that it will not be prejudiced in defending on the merits; and knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

Fed. R. Civ. P. 15. (emphasis added). “[A]n amendment which adds a new party

creates a new cause of action and there is no relation back to the original filing for

the purposes of limitations.” Asher v. Unarco Material Holding, Inc., 596 F.3d

313, 318 (6th Cir. 2010) (quoting In re Kent Holland Die Casting & Planting, Inc.,

928 F.2d 1448, 1449 (6th Cir. 1991)).


10

Here, Mr. Carnett cannot claim relation back under Rule 15(c)(1)(C)

because there was “no mistake concerning the proper party’s identity.” Mr. Carnett

clearly knew Griffin’s identity, and even made reference to Griffin, by name,

several times in his original complaint. (R.E. 1, Compl., Page ID #8, ¶ 22; Page ID

#9, ¶ 23, Page ID #10, ¶ 24-7; Page ID #21, ¶ 56; Page ID #34, ¶ 97). Clearly there

was no mistake as to Griffin’s identity. Therefore, the Court should affirm Mark

Griffin’s dismissal from Mr. Carnett’s Amended Complaint.

C. Mr. Carnett failed to object to the Report and Recommendation that Mark Griffin be dismissed and has waived appellate review.

Additionally, Mr. Carnett did not file an objection to the Report and

Recommendation that Mark Griffin be dismissed. (See R.E. 47, Order, Page ID

#503). It is well settled that a party’s failure to object to a report and

recommendation functions as a waiver of any future appeal of that issue. See

United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981) (holding that “a party

shall file objections [to a report and recommendation] with the district court or else

waive right to appeal”). As Mr. Carnett filed no objection to the Report and

Recommendation that Mark Griffin be dismissed, Mr. Carnett has waived his right

to appeal Griffin’s dismissal.

II. THE TRIAL COURT DID NOT ERR IN GRANTING THE LAW ENFORCEMENT DEFENDANTS’ MOTION TO DISMISS.


11

Mr. Carnett failed to state a claim upon which relief may be granted against

the Law Enforcement defendants pursuant to the Federal Rules of Civil Procedure

12(b)(6). For the following reasons, this Court should affirm the district court’s

dismissal of the Law Enforcement defendants.

A. Defendants Woolfork, Fitzgerald, and Weaver are entitled to dismissal of Mr. Carnett’s “official capacity” claims as those claims are redundant.

It is well-settled that “[a] suit against an individual in his official capacity is

the equivalent of a suit against the governmental entity.” Matthews v. Jones, 35

F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Mich. Dep’t of State Police, 491

U.S. 58, 68, 109 S. Ct. 2304, 2310-311, 105 L. Ed. 2d 45 (1989)). Among the Law

Enforcement defendants in this matter are Chester County, Tennessee, and

Madison County, Tennessee. Therefore, the official capacity claims against Sheriff

Woolfork and Captain Fitzgerald are in essence claims against Madison County,

Tennessee, and the claims against Sheriff Weaver are in essence claims against

Chester County, Tennessee. Accordingly, the trial court’s dismissal of the official

capacity claims against Woolfork, Fitzgerald, and Weaver should be affirmed.

B. This Court should affirm dismissal of the claims brought under 42 U.S.C. § 1983 as Mr. Carnett failed to allege facts sufficient to support such claims.

Section 1983 provides that “[e]very person who . . . subjects, or causes to be

subjected any citizen of the United States or other person within the jurisdiction


12

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in the action at law . . . .”

42 U.S.C. § 1983. In order to prevail on such a claim, a plaintiff “must establish

that a person acting under color of state law deprived [him] of a right secured by

the Constitution or laws of the United States.” Dorsey v. Barber, 517 F.3d 389, 394

(6th Cir. 2008). “Section 1983 is not the source of any substantive right, but merely

provides a method for vindicating federal rights elsewhere conferred.” Bessent v.

Dyersburg State Cmty. College, 415 F. Supp. 2d 874, 877 (W.D. Tenn. 2006)

(internal punctuation omitted), aff’d, 224 Fed. App’x 476 (6th Cir. 2007).

i. Mr. Carnett failed to plead facts sufficient to establish municipal liability against Chester County, Tennessee, and Madison County, Tennessee.

In order to state a claim against a county under 42 U.S.C. § 1983, the

plaintiff must identify a policy or custom of the municipality, connect the policy to

the governmental entity, and show that his injury was incurred because of that

policy.” See Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005).

Accordingly, a plaintiff must sufficiently allege that his injury resulted from the

implementation or execution of any policy or custom of the municipality. See id.

Mr. Carnett failed to make any allegations that a policy, practice, or custom

of either County cause his alleged injuries. For example, in his Amended

Complaint, Mr. Carnett alleged that “Defendant MADISON COUNTY officials


13

joined and acted in CIVIL conspiracy with CHESTER COUNTY officials and the

STATE OF TENNESSEE officials.” (sic as to all). (R.E. 31, Amend. Compl., Page

ID #383). This conclusory allegation, along with all other allegations in the

Amended Complaint against Chester and Madison Counties, fails to allege any

facts sufficient to establish municipal liability. Therefore, as Mr. Carnett

completely failed to make any allegations against Chester or Madison County

establishing municipal liability, this Court should affirm the dismissal of all of the

claims against Chester County, Tennessee, and Madison County, Tennessee.

ii. The Court should affirm the dismissal of Fitzgerald because Mr. Carnett failed to set forth sufficient factual allegations that any of Fitzgerald acts or omissions deprived him of any constitutional rights.

In order to establish a colorable claim of malicious prosecution under the

Fourth Amendment of the United States Constitution, a plaintiff must make

sufficient factual allegations satisfying the elements of such a claim. The elements

of a malicious prosecution claim under § 1983 are: (1) a prosecution was initiated

against the plaintiff and the defendant participated in the decision; (2) there was a

lack of probable cause for the criminal prosecution; (3) the plaintiff suffered a

deprivation of liberty as a consequence of the legal proceeding apart from the

initial seizure; and (4) the criminal proceeding was resolved in the plaintiff’s favor.

Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010). A malicious prosecution


14

claim fails when “there was probable cause to prosecute.” Fox v. DeSoto, 489 F.3d

227, 237 (6th Cir. 2007).

Mr. Carnett failed to allege a claim of malicious prosecution against Captain

Fitzgerald. Mr. Carnett alleged that Captain Fitzgerald “personally had

involvement in the arrest of Plaintiff,” and is one of the individuals who initiated

the investigation of him. (R.E. 31, Amend. Compl., Page ID #4; Page ID #6; Page

ID #398). Mr. Carnett further alleged that Captain Fitzgerald referred the case to

law enforcement in the proper jurisdiction for follow-up on the investigation after

investigating the alleged threats Mr. Carnett made against Woolfork. (See id).

Neither of those allegations satisfy any of the elements to establish a colorable

claim of malicious prosecution under the Fourth Amendment. Accordingly, Mr.

Carnett failed to state a claim of malicious prosecution against Captain Fitzgerald,

and this Court should affirm the district court’s dismissal of Captain Fitzgerald

from this action.

iii. Woolfork’s dismissal should be affirmed by this Court because Mr. Carnett failed to allege any set of facts against him giving rise to a cause of action.

Mr. Carnett’s amended complaint contains very few factual allegations

against Sheriff Woolfork, and, even when viewed in a light most favorable to Mr.

Carnett, those allegations fall short of establishing any cause of action against

Woolfork. Mr. Carnett alleged that Sheriff Woolfork: has a vendetta against him,


15

reported the alleged threats Mr. Carnett made against him, influenced the order of

“in house arrest” given to Mr. Carnett as a condition of his bond, and that was

outside the county jail in his vehicle when Mr. Carnett was released from jail on

bond. (R.E. 31, Amend Compl., Page ID #382; Page ID #388; Page ID #395; Page

ID #402-03; Page ID #421). None of these allegations establish a cause of action

against Sheriff Woolfork, even when viewed in a light most favorable to Mr.

Carnett. Therefore, this Court should affirm the trial court’s dismissal of Sheriff

Woolfork in his entirety from this action.

iv. The Court should affirm the dismissal of Weaver because Mr. Carnett failed to allege facts sufficient to establish a claim for deprivation of constitutional rights.

Likewise, Mr. Carnett made few factual allegations against Sheriff Weaver,

and those that he made, even when viewed in a light most favorable to Mr. Carnett,

do not amount to a deprivation of constitutional rights or give rise to an actionable

claim. Mr. Carnett alleged that despite his request to keep the incident out of the

newspaper, Sheriff Weaver provided news media with information about his arrest.

(R.E. 31, Amend. Compl., Page ID #384; Page ID #392). Mr. Carnett further

alleged that Weaver spoke to him multiple times while he was being held at the

Chester County Jail, and that during those interactions Weaver told Mr. Carnett

that “you cannot be within 300 yards of an empty shotgun shell,” that Weaver

spoke to Woolfork who alleged said he was “gonna [sic] take care of you,” that


16

Mr. Carnett was being charged with a felony, and that “we are going to keep you

here till [sic] the District Attorney decides what to charge you with.” (Id. at Page

ID #385-87; Page ID #390-91). Mr. Carnett further alleged that Weaver told him

that a news media outlet asked about his arrest, that Weaver spoke to him after his

bond hearing, and that Weaver was outside of the jail in his vehicle when Mr.

Carnett was released from jail. (Id. at Page ID #392; Page ID #394-95). Other

specific allegations against Weaver include that Weaver allegedly received a call

from Fitzgerald regarding the threats Mr. Carnett made, that Weaver’s decisions

influenced the order of “in house arrest” against Mr. Carnett, and that Weaver

directed other officers to investigate the Facebook comment. (Id. at Page ID #399;

Page ID #402-03; Page ID #421). These allegations in no way establish any

deprivation of Mr. Carnett’s constitutional rights. This Court should affirm the

dismissal of Weaver in his entirety from this action.

C. The Court should affirm the dismissal of Mr. Carnett’s defamation and invasion of privacy claims because Mr. Carnett failed to allege any facts to support such claims.

The district court found that Mr. Carnett’s allegations that Sheriff Weaver

merely released his arrest report, criminal record, and details of his past lawsuit

against Sheriff Woolfork to the media simply did not constitute defamation or

invasion of privacy. (R.E. 89, Order, Page ID #816). On appeal, Mr. Carnett offers

no legal basis as to why the district court’s ruling was erroneous. Accordingly, this


17

Court should affirm the district court’s dismissal of the defamation and invasion of

privacy claims brought against Sheriff Weaver.

D. Mr. Carnett’s remaining state tort claims are waived as he failed to object to the Report and Recommendation that those claims be dismissed.

In his Amended Complaint, Mr. Carnett asserts a myriad of tort claims

arising under Tennessee state law (See generally R.E. 31, Amend. Compl., Page ID

#377-446). In the Report and Recommendation, the magistrate judge

recommended dismissal of those claims on the ground that those claims “are

entirely deficient, have minimal to no factual support, [and] fail to state a claim.”

(R.E. 82, Report and Recom., Page ID #789, fn. 2). Other than objecting to the

recommendation that the defamation and false light claims against Sheriff Weaver

be dismissed, Mr. Carnett did not pose any objections to those claims being

dismissed prior to the district court’s adoption and modification of the Report and

Recommendation. (See R.E. 83, Pl.’s Obj., Page ID #790-91). As stated above, a

party’s failure to object to a report and recommendation functions as a waiver of

any future appeal of that issue. Walters, 638 F.2d at 950. As Mr. Carnett filed no

objection to the Report and Recommendation that his state law claims be

dismissed, Mr. Carnett has waived his right to appeal the dismissal of those claims.


18

CONCLUSION

This Court should affirm the trial court’s dismissal of Mark Griffin from Mr.

Carnett’s amended complaint because the statute of limitations bars Mark Griffin

from being added to this claim, and relation back does not apply because Mr.

Carnett was not mistaken with regard to the identity of Mark Griffin. Further, this

Court should affirm the dismissal of all of Mr. Carnett’s claims against the Law

Enforcement defendants because Mr. Carnett failed to state a claim upon which

relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure.

Respectfully submitted,

PENTECOST & GLENN, PLLC

By: s/Jon A. York Jon A. York, BPR #023106 Kirstin E. Harper, BPR #033256 106 Stonebridge Blvd. Jackson, TN 38305 Phone: (731) 668-5995 Fax: (731) 668-7163 [email protected] [email protected]


19

CERTIFICATE OF COMPLIANCE WITH RULE 32 Pursuant to Rule 32 of the FEDERAL RULES OF APPELLATE PROCEDURE, the

undersigned hereby certifies that

1. This brief complies with the type-volume requirement of Rule

32(a)(7)(B) in that it contains 4,322 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)

because this brief has been prepared in a proportionally spaced typeface

using Microsoft Word in Times New Roman font in fourteen (14) point.

Pentecost & Glenn, PLLC s/Jon A. York


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CERTIFICATE OF SERVICE

This is to certify that I have served a copy of this pleading or paper personal or by mail upon each attorney or firm of attorneys appearing of record for each adverse party or each pro se party on or before the filing date thereof. DATED: This the 17TH day of December, 2015. PENTECOST & GLENN, PLLC By: s/Jon A. York Jon A. York

SERVED ON:

Kevin Lee Carnett P.O. Box 294 Henderson, TN 38340 Mary M. Bers Civil Rights and Claims Division Office of the Attorney General P.O. Box 20207 Nashville, TN 37202


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IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

KEVIN CARNETT, v. No. 15-6085 WBBJ-TV, et al., __________________________________________________________________

APPELLEES’ DESIGNATION OF

RELEVANT DISTRICT COURT DOCUMENTS __________________________________________________________________

Pursuant to Sixth Circuit Rule 28(a), Appellees hereby designate the

following relevant District Court’s documents:

DESIGNATION OF CONTENTS Description of Entry Date Record Entry # Page ID #

Complaint 11-13-14 1 1-36 Mot.to Dismiss

12-4-14 12

12-1 75-96

Mot. For Leave 1-12-15 30 372-376 Amend. Compl. 1-12-15 31 377-446 Resp. in Opp. to Mot. 1-19-15 32 454-458 Report and Rec 3-2-15 39 477-480 Order 3-24-15 47 503-504 Mot. to Dismiss Law Enforcement Defendants

4-7-15 50

50-1 522-542

Report and Rec 9-8-15 82 778-789 Pl’s Object 9-10-15 83 790-793 Def’s Object. 9-18-15 86 800-803 Order 9-25-15 89 813-819 Judgment 9-25-15 90 820 Notice of Appeal 9-29-15 91 821-825


Documents

Appellee Reply Brief for LAW enforcement