MIRABELLA v. UNIVERSITY OF TENNESSEE, (E.D.Tenn. 1994)

Citation Codes

Equivalent Citations

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Docket Number

No. 3:93-cv-545

Attorney(S)

Billy J. Stokes, Fansler Williams, Knoxville, TN, Steven G. Shope, Cruze Shope, Knoxville, TN, for Plaintiffs. Beauchamp E. Brogan, Ronald C. Leadbetter, UT Office of General Counsel, Knoxville, TN, for Defendants.

Judges

James Howard Jarvis

Acts

The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights
The Public Health And Welfare — Civil Rights — Generally — Conspiracy To Interfere With Civil Rights
The Public Health And Welfare — Civil Rights — Generally — Action For Neglect To Prevent
The Public Health And Welfare — Civil Rights — Generally — Proceedings In Vindication Of Civil Rights
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Supplemental Jurisdiction
Judiciary And Judicial Procedure — Declaratory Judgments — Particular Proceedings — Creation Of Remedy

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Smart Summary

Factual and Procedural Background

Plaintiffs Sam Mirabella, Sr., and others filed suit against the University of Tennessee ("UT"), UT police officer Keith Lambert, UT's Police and Athletic Departments, and various UT officials, alleging violations of their Fourth, Fifth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. §§ 1983, 1985, 1986, and 1988. The underlying incident involved an alleged improper assault, arrest, and prosecution of plaintiffs by Officer Lambert following an altercation after the Tennessee v. Florida football game on September 19, 1992. Plaintiffs also sought to invoke pendent jurisdiction for any related state law claims.

Defendants filed a motion to dismiss, contending that plaintiffs had previously filed an identical claim for $1 million with the Tennessee Claims Commission ("TCC") under the Tennessee Claims Commission Act, which contains a waiver provision barring duplicate claims. Plaintiffs filed several motions including to strike defendants' evidence, to withhold ruling, and to amend their complaint. The court considered these motions in the context of whether it had jurisdiction to hear the case given the TCC filing.

Legal Issues Presented

Whether the court lacks jurisdiction over plaintiffs' federal claims because plaintiffs previously filed an identical claim with the Tennessee Claims Commission, triggering a statutory waiver of any other cause of action based on the same acts or omissions by state officers or employees under Tennessee Code Annotated § 9-8-307(a)(3)(B).
Whether plaintiffs’ motions to strike, to amend the complaint, or to withhold ruling should be granted in light of the waiver provision and the prior TCC filing.
Whether the waiver provision applies to claims against the University of Tennessee and its departments, given plaintiffs’ argument that these entities are not "state officers or employees" and that certain funds are not public funds.

Arguments of the Parties

Defendants' Arguments

The court lacks jurisdiction because plaintiffs filed the same cause of action with the Tennessee Claims Commission, which under the waiver provision of the Tennessee Claims Commission Act bars any other claims based on the same acts or omissions by state officers or employees.
The waiver provision was construed by the Sixth Circuit in White by Swafford v. Gerbitz to bar federal claims when a claim is filed with the TCC.
The University of Tennessee and its departments are arms of the state and thus protected by Eleventh Amendment immunity and not "persons" subject to suit under § 1983.
Judicial notice of plaintiffs’ TCC filing is proper and the court may consider it in deciding the motion to dismiss.

Plaintiffs' Arguments

Plaintiffs sought to strike defendants’ evidence of the TCC filing, arguing that the court may not consider matters outside the pleadings.
Plaintiffs moved to amend their complaint to seek a declaratory judgment regarding their rights under the waiver provision of the Act.
Plaintiffs requested the court to withhold ruling on the motion to dismiss pending a declaration of rights based on a purported contract theory with the State of Tennessee.
Plaintiffs contended that the waiver provision does not apply to UT and its departments because they are not “state officers or employees,” and argued some defendants are not protected by sovereign immunity because athletically-related income is not public funds.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
White by Swafford v. Gerbitz, 860 F.2d 661 (6th Cir. 1988), cert. denied 489 U.S. 1028 (1989)	Interpretation of Tennessee Claims Commission Act waiver provision; holding that filing with TCC waives federal claims based on the same acts or omissions.	The court relied on this precedent to conclude that plaintiffs’ federal claims are barred by the waiver provision because they filed identical claims with the TCC, requiring dismissal for lack of jurisdiction.
Land v. Dollar, 330 U.S. 731 (1947)	Permits consideration of matters outside the pleadings on a Rule 12(b)(1) jurisdictional challenge.	The court cited this authority to justify considering plaintiffs’ TCC filing, a matter of public record, in ruling on the motion to dismiss.
U.S. v. Wood, 925 F.2d 1580 (7th Cir. 1991)	Judicial notice may be taken of matters of public record in deciding motions to dismiss.	Supported the court’s decision to take judicial notice of plaintiffs’ TCC claim.
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)	States and state agencies are not “persons” under § 1983 and thus immune from monetary damages claims.	The court applied this principle to bar claims against UT and its departments under § 1983.
Gross v. UT, 448 F. Supp. 245 (W.D. Tenn. 1978), aff'd 620 F.2d 109 (6th Cir. 1980)	University of Tennessee is not a "person" under § 1983 and is entitled to Eleventh Amendment immunity.	Supported dismissal of claims against UT and its departments on immunity grounds.
UT v. USF G, 670 F. Supp. 1379 (E.D. Tenn. 1987); Carlson v. Highter, 612 F. Supp. 603 (E.D. Tenn. 1985)	UT is an arm and alter ego of the State of Tennessee and entitled to Eleventh Amendment immunity.	Reinforced the court’s holding that UT and its departments are immune from suit.
Kersavage v. UT, 731 F. Supp. 1327 (E.D. Tenn. 1989); Fireman's Fund Insurance Company v. Bell Helicopter Textron., Inc., 667 F. Supp. 583 (E.D. Tenn. 1987)	Further district court rulings affirming UT’s Eleventh Amendment immunity.	Supported the court’s ruling on immunity.
Greenhill v. Carpenter, 718 S.W.2d 268 (Tenn. Ct. App. 1986)	Tennessee sovereign immunity applies to university athletic departments as they are not separate legal entities.	Rejected plaintiffs’ argument that athletically-related income removes immunity protection from UT’s athletic department.

Court's Reasoning and Analysis

The court began by recognizing that plaintiffs filed an identical claim with the Tennessee Claims Commission under the Tennessee Claims Commission Act, which contains a waiver provision barring any other cause of action based on the same acts or omissions by state officers or employees. The Sixth Circuit’s decision in White by Swafford v. Gerbitz was determinative, holding that filing with the TCC waives cognate federal causes of action.

Plaintiffs’ attempt to exclude the TCC filing from consideration was rejected because the court may consider matters outside the pleadings on jurisdictional motions and take judicial notice of public records. The court also denied plaintiffs’ motion to amend the complaint seeking a declaratory judgment on the waiver provision, noting that such relief would be advisory and beyond the court’s jurisdiction.

The court addressed plaintiffs’ argument that the waiver provision does not apply to UT and its departments, concluding that official capacity claims against state employees are effectively claims against the state, which is immune from suit under § 1983 and the Eleventh Amendment. The court relied on established precedent confirming UT’s status as an arm of the state and its immunity.

Finally, the court rejected plaintiffs’ argument that athletic department funds are not public funds exempting them from immunity, citing Tennessee case law that sovereign immunity extends to university athletic departments.

Accordingly, the court found the waiver provision bars plaintiffs’ federal claims and that UT and its departments are immune from suit, requiring dismissal for lack of jurisdiction. However, the court allowed plaintiffs the opportunity to move to reopen the case within sixty days after final adjudication by the TCC if the waiver provision does not apply because defendants’ acts were outside the scope of their employment.

Holding and Implications

The court GRANTED defendants' motion to dismiss and DISMISSED plaintiffs’ federal claims without prejudice.

The dismissal was based on the statutory waiver provision in the Tennessee Claims Commission Act, which bars federal claims identical to those filed with the TCC, as interpreted by the Sixth Circuit. The court also affirmed the Eleventh Amendment immunity of the University of Tennessee and its departments from § 1983 claims. Plaintiffs’ motions to strike, to amend, and to withhold ruling were denied.

The court’s decision directly affects the parties by removing this case from federal court jurisdiction. No new legal precedent was established; rather, the court applied existing statutory and case law principles. Plaintiffs retain the procedural option to seek relief in federal court after final resolution by the TCC if the waiver provision is deemed inapplicable due to acts outside the scope of employment.

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Sam MIRABELLA, Sr., et al., Plaintiffs v. UNIVERSITY OF TENNESSEE, et al., Defendants.

MEMORANDUM OPINION

JAMES JARVIS, District Judge.

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, 1985, 1986 and 1988, alleging violation of their rights secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffs have also requested the court to invoke its "[p]endent jurisdiction . . . to the extent that any of the claims stated herein may be found to be properly enforceable under state rather than federal law, whether codified or pursuant to common law." [ See Doc. 1, p. 3]. The gist of this cause of action is that University of Tennessee ("UT") police officer Keith Lambert improperly assaulted, arrested, and prosecuted plaintiffs Sam and Charles Mirabella during and after an altercation following the Tennessee v. Florida football game on September 19, 1992. In addition to UT and Officer Lambert, plaintiffs have sued UT's Police Department, UT's Athletic Department, and a number of UT's officials, each of whom is described as "employed and acting as" an employee of UT or one of its administrative components.

These claims are more accurately brought pursuant to the court's supplemental jurisdiction. See 28 U.S.C. § 1367.

The court notes for the record that UT won that game, 31-17, although the game was not nearly as close as the score might indicate.

Also named as defendants were the individual members of UT's Board of Trustees; however, these defendants were dismissed by stipulation of the parties filed on November 19, 1993 [ see Doc. 37].

This matter is presently before the court on the following motions:

1. Defendants' motion to dismiss [Doc. 38];

2. Plaintiffs' motion to strike [Doc. 40];

3. Plaintiffs' motion to withhold ruling [Doc. 41]; and

4. Plaintiffs' motion to amend complaint [Doc. 42].

For the reasons that follow, defendants' motion will be granted, and plaintiffs' motions will be denied.

In their motion, defendants contend that this court lacks jurisdiction because plaintiffs filed this same action with the Division of Claims Administration for the State of Tennessee under the provisions of the Tennessee Claims Commission Act, Tennessee Code Annotated §§ 9-8-301, et seq., (the "Act") against the State of Tennessee and UT. Because plaintiffs' action before the Tennessee Claims Commission ("TCC") for $1 million is identical in all material respects to the instant lawsuit, defendants maintain that plaintiffs have waived any other cause of action based on the same act or omission by any state officer or employee. Specifically, defendants rely on the following waiver provision of the Act:

Claims against the state filed pursuant to subsection (a) shall operate as a waiver of any cause of action, based on the same act or omission, which the claimant has against any state officer or employee. The waiver is void if the Commission determines that the act or omission was not within the scope of the officer's or employee's office or employment.

T.C.A. § 9-8-307(a)(3)(b) (Supp. 1993).

In White by Swafford v. Gerbitz, 860 F.2d 661 (6th Cir. 1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1160, 103 L.Ed.2d 219 (1989), the Sixth Circuit construed the waiver provision of the Act and held as follows:

We find the applicable Tennessee statute dictates that, where the plaintiff elects to sue the state before the Tennessee Claims Commission, he waives any cognate federal cause of action. Accordingly, we find the district court erred in not dismissing the plaintiff's cause of action.

860 F.2d at 662. In support of its position that the two actions relate to the same acts or omissions of Officer Lambert and/or other employees of UT, defendants have submitted a copy of plaintiffs' claim for damages filed with the TCC on September 17, 1993. A review of that claim reflects that it arises out of the same facts and circumstances at issue in this case. Based on the holding of White by Swafford, it appears that plaintiffs' claims in this court should be dismissed. Nevertheless, plaintiffs attempt to circumvent the waiver provision of the Act by several different methods. None has merit.

That is also the same day on which the instant complaint was filed.

II. A.

Plaintiffs first move to strike Appendix A to defendants' motion. In other words, plaintiffs seek to remove their TCC claim from consideration by the court, arguing that matters outside the pleadings may not be considered. It is well settled, however, that in disposing of a Rule 12(b)(1) motion contesting the district court's jurisdiction, the court may consider matters outside the pleadings. See, e.g., Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947). Moreover, in considering a Rule 12(b) motion to dismiss, a district court may take judicial notice of matters of public record. See, e.g., U.S. v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991). No one can seriously dispute that plaintiffs' filing with the TCC is a matter of public record. Additionally, the court is of the opinion that Rules 201 and 803(8), Federal Rules of Evidence, allow the court to take judicial notice of plaintiffs' filing with the TCC. The court also observes that plaintiffs have moved to amend their complaint to seek a declaration of their rights which may be in conflict because of the simultaneous filing of their claim with the TCC and this court. The merits of this motion will be discussed shortly. The court mentions the motion to amend at this juncture, however, because plaintiffs have asked the court to consider their filing with the TCC for purposes of their motion to amend; yet, plaintiffs would have the court ignore this filing for purposes of considering defendants' motion to dismiss. The court will consider plaintiffs' filing with the TCC for all purposes. Plaintiffs' motion to strike will be denied.

The court presumes "Appendix A" refers to Exhibit A to defendants' motion.

As just noted, plaintiffs have moved to amend their complaint to ask the court to declare their rights under the waiver provision of the Act vis-a-vis their action in this court. This court declines to do so, however, for two reasons. First, if this court has no jurisdiction because of the waiver provision of the Act, then the declaratory judgment statute, 28 U.S.C. § 2201, provides no independent basis for this court's jurisdiction. Second, this court need not make any declaration regarding plaintiffs' rights under the waiver provision of the Act. In view of the Sixth Circuit's decision in White by Swafford, supra, plaintiffs have already been fully apprised of their rights, at least to the extent necessary to resolve their perceived jurisdictional dilemma — their claims filed with the TCC constitute a waiver of their federal cause of action for the same act or omission of any state officer or employee. 860 F.2d at 662. Thus, plaintiffs' motion to amend will be denied because this court has no authority to issue what would be, in effect, an advisory opinion regarding a case for which this court lacks jurisdiction.

Plaintiffs next ask this court to withhold ruling on defendants' motion to dismiss until this court has declared the full rights and duties of the parties under plaintiffs' theory of a purported "contract" entered into between the State of Tennessee and plaintiffs pursuant to the waiver provision of the Act. Because, for the reasons just stated, plaintiffs' motion to amend to advance this theory will be denied and, further, because of the Sixth Circuit's holding in White by Swafford, supra, the court must dismiss this action — not withhold ruling on defendants' motion. Therefore, this motion will also be denied.

In addition to these motions, plaintiffs attempt to avoid the holding of White by Swafford by raising several other disingenuous arguments. Only one merits any discussion whatsoever. Plaintiffs claim that because the waiver provision only applies to a "state officer or employee," then it does not preclude their action against UT and its Police and Athletic Departments. However, it is well established that because a cause of action against an individual in his official capacity represents an action against the entity of which the officer is an agent, then the cause of action against these defendants constitutes an action against the state. See White by Swafford, 860 F.2d at 663 n. 2 (citations omitted). Furthermore, the only cause of action against UT and its departments is based on § 1983. It is equally well settled that neither the state nor its officials acting in their official capacities can be sued for monetary damages under § 1983 because they are not "persons" within the meaning of that statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). UT, which is a state agency, is likewise not a "person" within the meaning of § 1983. Gross v. UT, 448 F. Supp. 245, 247 (W.D.Tenn. 1978), aff'd, 620 F.2d 109 (6th Cir. 1980). Moreover, the undersigned has previously held that UT, as an arm and alter ego of the State of Tennessee, is entitled to the state's Eleventh Amendment immunity from suit. UT v. USF G, 670 F. Supp. 1379 (E.D.Tenn. 1987); Carlson v. Highter, 612 F. Supp. 603 (E.D.Tenn. 1985). Other judges in this district have ruled likewise. See Kersavage v. UT, 731 F. Supp. 1327 (E.D.Tenn. 1989) (Judge Jordan); Fireman's Fund Insurance Company v. Bell Helicopter Textron., Inc., 667 F. Supp. 583 (E.D.Tenn. 1987) (Judge Hull).

Nevertheless, plaintiffs attempt to avoid the holding of these cases by arguing that athletically-related income is not "public funds" so that some of these defendants are not protected by the state's immunity. The case law, however, is to the contrary. See Greenhill v. Carpenter, 718 S.W.2d 268 (Tenn.Ct.App. 1986) (Memphis State University's Athletic Department, which was not separate legal entity from the University, was protected by doctrine of sovereign immunity). Thus, plaintiffs' argument on this issue is unavailing.

III.

For the reasons foregoing, the court finds that this case must be dismissed. If, however, the waiver provision of the Tennessee statute is not invoked due to defendants' acts being deemed outside the scope of their employment, then plaintiffs may move to reopen this case within sixty (60) days of the final adjudication by the TCC whereby their claims can be pursued in this court. See White by Swafford, 860 F.2d at 665.

The court in White by Swafford also observed that the statute of limitations on plaintiffs' federal cause of action is tolled in the interim. 860 F.2d at 665.

Order accordingly.

ORDER

For the reasons set forth in the memorandum opinion this day passed to the Clerk for filing, it is hereby ORDERED as follows:

1. Plaintiffs' motion to strike [Doc. 40] is DENIED;

2. Plaintiffs' motion to withhold ruling [Doc. 41] is DENIED;

3. Plaintiff's motion to amend complaint [Doc. 42] is DENIED; and

4. Defendants' motion to dismiss [Doc. 38] is GRANTED whereby this case is DISMISSED; however, in the event that the waiver provision of the Tennessee Claims Commission Act is not invoked due to defendants' acts being deemed outside the scope of their employment, then plaintiffs may move to reopen this case within sixty (60) days of the final adjudication of plaintiffs' action before the Tennessee Claims Commission, whereby their claims can be pursued in this court.