Opinion
1:24-cv-00230-TRM-SKL
08-02-2024
CORY DUSTIN HARDIMAN, Plaintiff, v. PATRICK MURDOCK, Investigator; TAMMY MACDONALD, Investigator; DAVID HOUK, Sergeant; JOYCE MCCONNELL, Sheriff; each in their individual and official capacities, and WOODFOREST NATIONAL BANK, Defendants.
REPORT AND RECOMMENDATION
SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE
Plaintiff Cory Hardiman, an inmate at the Northeast Correctional Complex in Mountain City, Tennessee, filed this civil rights lawsuit pro se and without prepayment of fees. Currently before the Court are Plaintiff's complaint [Doc. 2] and motion to proceed in forma pauperis (“IFP”) [Doc. 1]. As set forth below, I find Plaintiff lacks sufficient financial resources to prepay the filing fee, and I therefore recommend his motion to proceed IFP be granted. As a “prisoner,” he will nevertheless be required to pay the filing fee over time. See 28 U.S.C. § 1915(b), (h). I further recommend Plaintiff be permitted to proceed on his Fifth Amendment self-incrimination claims against Investigator Macdonald and Investigator Murdock in their individual capacities, and that all other claims be dismissed, as set forth below.
I. MOTION TO PROCEED IFP
Based on the financial data provided, Plaintiff clearly lacks sufficient financial resources to pay the filing fee. Accordingly, pursuant to 28 U.S.C. § 1915, Plaintiff's IFP motion [Doc. 1] should be GRANTED. Nonetheless, Plaintiff is a prisoner so he must be ASSESSED the civil filing fee of $350.00. McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007); 28 U.S.C. § 1915(b). Plaintiff will be required to pay to the Clerk an initial partial payment equal to the greater of:
(A) twenty percent (20%) of the average monthly deposits to Plaintiff's inmate trust account; or
(B) twenty percent (20%) of the average monthly balance in his inmate trust account for the six-month period preceding the filing of the complaint.28 U.S.C. § 1915(b)(1)(A) and (B).
Thereafter, the custodian of Plaintiff's inmate trust account will be required to submit twenty percent (20%) of Plaintiff's preceding monthly income (or income credited to Plaintiff's trust account for the preceding month), but only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of $350.00, as authorized under 28 U.S.C. § 1914(a), has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
II. SCREENING THE COMPLAINT
a. Standards
A litigant may commence a civil action in federal court without paying the administrative costs of the lawsuit, when the litigant demonstrates he is unable to pay court costs and fees. 28 U.S.C. § 1915(a). A district court may, however, dismiss such a complaint if it is frivolous, it fails to state a claim upon which relief can be granted, or it seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The standard required by § 1915(e)(2) to properly state a claim for which relief can be granted is the same standard required by Federal Rule of Civil Procedure 12(b)(6). Brand v. Motley, 526 F.3d 921, 924 (6th Cir. 2008); accord Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007). To avoid dismissal under Rule 12(b)(6), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint need not state “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). However, it must contain more than mere “labels and conclusions, . . . a formulaic recitation of the elements,” or “naked assertions . . . without further factual enhancement.” Id. at 555, 557 (citations omitted). Rather, a complaint must contain sufficient facts to “state a claim to relief that is plausible on its face.” Id. at 570. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Stated differently, “the court must be able to draw a ‘reasonable inference that the defendant is liable for the misconduct alleged.'” KSR Int'l Co. v. Delphi Auto. Sys., 523 Fed.Appx. 357, 358-59 (6th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).
A “frivolous” claim, subject to dismissal under § 1915(e)(2)(B)(i), is one that is based on “an indisputably meritless legal theory,” or on allegations of “infringement of a legal interest which clearly does not exist.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Such claims are described as “clearly baseless,” “fanciful,” “fantastic,” or “delusional.” Id. at 327-28.
In applying these standards, the Court also considers that the pleadings of pro se litigants are to be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, pro se plaintiffs must abide by “basic pleading standards,” and the role of the court is not to “conjure allegations on a litigant's behalf.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (internal quotation marks and citations omitted). “[P]ro se litigants are not relieved of the duty to develop claims with an appropriate degree of specificity.” Kafele v. Lerner, Sampson, & Rothfuss, L.P.A, 161 Fed.Appx. 487, 491 (6th Cir. 2005).
Finally, federal courts are courts of limited jurisdiction. When presented with a case, federal courts “presume” they lack jurisdiction until the party asserting jurisdiction demonstrates otherwise. Renne v. Geary, 501 U.S. 312, 316 (1991) (citing Bender v. Williamsport Area School Dist., 475 U.S. 534, 546 (1986)). Further, if at any time the Court determines it lacks subject matter jurisdiction, the Court “must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
b. Analysis
1. Plaintiff's Complaint
Plaintiff's claims arise from the officer Defendants' criminal investigation of Plaintiff, which included a search of his personal belongings and subpoena of his bank records, and which eventually led to his arrest. Plaintiff drafted his complaint using a form titled, “Complaint for Violation of Civil Rights (42 U.S.C. § 1983).” [Doc. 2]. He specifically identifies his claims as arising under the Fourth and Fifth Amendments to the United States Constitution, Rule 5 of the Tennessee Rules of Criminal Procedure, the Tennessee Financial Privacy Act, and Tennessee Code Annotated §§ 39-11-707; 40-33-203(e)(1).
In the section designated for identifying Defendants, Plaintiff lists Investigator Patrick Murdock, Investigator Tammy Macdonald, Sergeant David Houk, Sheriff Joyce Mcconnell, and Woodforest National Bank [id. at Page ID # 17]. In the case caption, he indicates he is suing the officer Defendants in their individual and official capacities. For his “Statement of Claims,” Plaintiff writes:
For the sake of readability and clarity, minor corrections have been made without the use of brackets when quoting Plaintiff's complaint and other filings. None of these minor corrections affect the substance of any quoted filing.
1. On September 5, 2022, I, Cory Dustin Hardiman, was scheduled to arrive at Gatehouse Treatment in Madison, Tennessee per court order from the Lincoln County Recovery Court.
2. Before my departure to treatment, my mother Melanie Hardiman, and nephew William York, agreed to drive me to Madison, Tennessee, to acquire treatment. The agreement was my mother was to keep my vehicle and to use it while in treatment because I was not allowed to have a vehicle on the grounds of the treatment center. I was only allowed certain items of property while in treatment, so I had to leave certain items at home.
3. For the record, my mother's home was my permanent residence before and during my stay at treatment. I paid her rent, supplied food for us both, and any other need that she requested in exchange for me living with her.
4. There were some items that were in my car that I had to remove because I did not want them lost or stolen. Among these items were my laptop, printer, and locked black safe.
5. I first took my laptop and printer into my bedroom inside the house. As my deadline for treatment was closing in, I was rushed by my mother to hurry up. My safe was the last item I removed from the trunk of my car because it was heavy.
6. My nephew's truck was parked beside my car in the driveway. My mother told me to just put it in my nephew's truck and they would put it in my bedroom once they returned from taking me to treatment....I was nervous about leaving it but they assured me that it would be safe and secure once they returned and nobody even knows it is there but them. So I agreed.
7. After I placed my safe in his truck, we left for me to go to treatment in Madison, Tennessee.
8. Nobody but me had the key and combination to my safe or had the password to my laptop. I was the only one with permission to use them.
9. On September 20, 2022, I was scheduled to check in with the Recovery Court in Fayetteville, Tennessee at the Lincoln County Circuit Court. My case manager, Chrystal Kasinsky, is the person who took me to check in.
10. While waiting to go in front of the judge, I was placed under arrest for a violation of probation. Later I was booked into the Lincoln County Jail. I was not able to complete treatment due to my arrest.
11. Between September through November, 2022, I was served with 55 warrants for various charges from the illegal search and seizure of my safe, laptop, printer, and bank records.
12. While I was being served these warrants, Investigator Patrick Murdock made the statement that I would not be able to post bond because he would have it set the highest he could. My bond finally ended up being nearly $550,000 for these alleged charges.
13. On September 21, 2022, Investigator Patrick Murdock and Investigator Tammy Macdonald had me escorted to the interview room for questioning, but I would not talk because I was still within my right state of mind. It was not until 6 days later that I became very ill and not within my right state of mind that I made the incriminating statement.
14. During this time frame, Investigator Patrick Murdock came to my cell and threatened me with threats that I would have to spend the rest of my life in prison and that I was a piece of s*** numerous times.
Claim 1 - Violation of the Fifth Amendment of the U.S. Constitution
15. On September 27, 2022, I was approached by Investigator Tammy Macdonald while being housed in Special Housing due to medical/mental health issues from not having my prescribed medications and severe panic attacks along with auditory hallucinations. I was regularly consuming on a daily basis before this the prescribed medication Effexor 75 mg; Paxil 40 mg; Neurontin 1200 mg; Suboxone 16 mg; and Klonopin 3 mg daily.
16. The jail refused to give me any of my prescribed medications which caused my mental health breakdown.
17. Investigator Tammy Macdonald told me that she and Investigator Patrick Murdock would talk to the district attorney to try and help me get a decent deal worked out as long as I cooperated.
18. She also told me that Postal Inspector Casey Fincher was coming today to see if they want to pursue charges. Scared and confused by her statement, I agreed.
19. During my interview with Investigator Tammy Macdonald and Casey Fincher, I made them aware that I was sick and not feeling well due to not having my prescribed medications.
Investigator Patrick Murdock observed the interview via video from his office.
Claim 2 - Violation of Rule 5 of the Tennessee Rules of Criminal Procedure
20. I was never brought before a magistrate on these charges as required by Rule 5. There was no reason not to bring me before a magistrate or have me informed of my rights under Rule 5.
Claim 1 - Continued . . .
22. The preliminary hearing for these charges was held on November 7, 2023 and that is when I first became aware that there was no search warrant issued and exactly how the officers seized and then searched the evidence, along with the illegal tactics of my confession. I discovered who seized my property at my preliminary hearing also.
23. It was not until my preliminary hearing that I discovered that the officers involved lied about what I said during my interview. My attorney, Nicholas Utter, asked Postal Inspector Casey Fincher if he recalled me stating that I was not feeling well and that I had not had my medication? He responded in the negative and said that he would have ceased the interview until I was feeling better or in a better state of mind if he heard me say that. Either he really did not hear me say this or he blatantly ignored it. This goes for Investigator Tammy Macdonald and Investigator Patrick Murdock as well because they were listening in on this interview also. By them failing to stop the interview, they violated my Fifth Amendment right against self-incrimination.
24. They stated that I signed a Miranda waiver form, but I do not remember signing this form, however, they included a form in my motion of discovery.
25. Investigator Tammy Macdonald lied about not approaching me first the day of my interview. Plus, Investigator Patrick Murdock intentionally left out my statement about not feeling well during my interview. This interview should have been recorded along with the footage of Investigator Tammy Macdonald approaching my cell in Special Housing to tell me about the Postal Inspector and to see if I wanted to do the right thing and talk. This can be verified in my motion of discovery.
Claim 3 - Violation of the Fourth Amendment of the U.S. Constitution
26. During my preliminary hearing the officer who seized my property came to light. His name is Sergeant David Houk. He testified as to how he obtained my safe, laptop, and printer. He testified that he went to my mother's home (which was my permanent residence), he said my mother pointed out my property and he reacted by placing everything into a box without first verifying what he was seizing was actually evidence of a crime or that it was contraband. He then stated that he took my property to the Lincoln County Sheriff's Department for safekeeping, although the property sheet that was included in my motion of discovery was marked as evidence. My attorney, Nicholas Utter, asked him why he did not contact me to have it picked up? He responded because I was in treatment. My attorney asked him if it was normal procedure to go pick up someone's property when someone calls to have them come pick it up? He responded that it was not. He said that he made a report and it was forwarded to other officers.
27. Then Chief Joyce Mcconnell reviewed the report and then searched my property without a warrant and assigned Investigator Patrick Murdock to the case.
28. My mother, Melanie Hardiman, testified during my preliminary hearing that on September 5, 2022, she called the Lincoln County Sheriff's Department after breaking into my safe, which she was advised by the district attorney to look for evidence, and discovered the contents thereof. She stated that she told Sergeant David Houk that she was not able to view every document within the safe because there was so much. She also stated that she was encouraged by the district attorney to look for evidence and to notify law enforcement. Since there were documents in the safe not addressed to me she automatically assumed that they were stolen. She asked the officer he could take my property as evidence?
29. Investigator Patrick Murdock testified during my preliminary hearing that he did not participate in the initial seizure and that he was assigned to the case by then Chief Joyce Mcconnell. He stated that he started looking at each individual document that was in my safe without a warrant. He admitted that some of the documents were my personal property. He stated that he began to make inventory of potential victims and started to contact these individuals via telephone. He also admitted to not having any prior knowledge of any crime being committed prior to the search of my safe. An ad was put in the local paper along with a post on Facebook
about the alleged crimes. He stated that he went through hundreds of documents trying to find something incriminating.
Claim 4 - Violation of the Tennessee Financial Privacy Act
30. During my preliminary hearing, Investigator Patrick Murdock testified that on September 21, 2022, he issued a Judicial Subpoena to my bank at Woodforest National Bank and also requested video footage pursuant to the Tennessee Financial Privacy Act. I was never served with this subpoena as required by the Tennessee Financial Privacy Act.
31. On this same day, Investigator Patrick Murdock served a copy of the Judicial Subpoena to the Custodian of Records at Woodforest National Bank in the State of Texas via email.
32. On September 26, 2022, a W. Jeffrey Levi provided the requested items mentioned in the Judicial Subpoena to Investigator Patrick Murdock without complying with the Tennessee Financial Privacy Act.
Claim 5 - Violation of Tennessee Code Annotated 39-11-707; 40-33-203(e)(1)
33. I was never served with a notice of seizure of my property or with the opportunity for a hearing as required per statute.
General Information
34. My mother admitted to me via the telephone that she only did what she did because the district attorney encouraged her to. This can be verified through recorded phone calls.
35. The statements made by Sergeant David Houk and Investigator Patrick Murdock do not match up with their reports in my motion of discovery.
36. My attorney was not made aware of the search warrant issue or the confession until my preliminary hearing.
37. Sergeant David Houk was not aware of any thefts, reports, or crimes being committed prior to seizing my property. It was not until Investigator Patrick Murdock went through each individual piece of paper to even allege a crime may have been committed.
38. As a result, I now suffer from high blood pressure with frequent headaches, and I have numerous mental health breakdowns with increasing panic attacks due to the stress and worry associated with these violations.
39. I now have to take high blood pressure medication daily and I had to have my mental health medication increased to the max.
40. The officers in this complaint acted under color of state law.[Doc. 2 at Page ID # 18-21].
Plaintiff requests the following forms of relief: “Declaratory Judgment as to all claims; compensatory, nominal, and punitive damages in the amount of $100,000 as to all claims, severally as to each defendant. Any other relief the Court deems just and proper.” [Id. at Page ID # 22].
2. Official Capacity Claims
Plaintiff purports to assert claims against the officer Defendants in their individual and official capacities. “An official capacity claim filed against a public employee is equivalent to a lawsuit directed against a public entity which that agent represents.” Claybrook v. Birchwell, 199 F.3d 350, 355 n.4 (6th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). It appears all of the officer Defendants are or were employed by the Lincoln County Sheriff's Department; accordingly, Plaintiff's official capacity claims are really claims against Lincoln County. A government unit like Lincoln County “may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). A local government unit may be liable for civil damages in a § 1983 action only when the execution of a governmental policy or the toleration of a custom causes the deprivation of a constitutionally protected right. Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996) (citing Monell, 436 U.S. at 691). Plaintiff does not allege any facts whatsoever to show his rights were violated as a result of any official policy or custom. He also does not allege any failure to train or supervise, and even if he did, he does not allege any “prior instances of unconstitutional conduct demonstrating that the municipality had ignored a history of abuse and was clearly on notice that the training in this particular area was deficient and likely to cause injury.” Wright v. City of Euclid, 96 F.3d 852, 881 (6th Cir. 2020) (quotation marks and citation omitted). Similar proof is required for a “custom of tolerance” theory of municipal liability. Garretson v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir. 2005).
Accordingly, all claims against the officer Defendants in their official capacities should be dismissed.
3. Fourth Amendment Claims
Plaintiff's Fourth Amendment claims appear to relate to the seizure and search of his personal property that took place sometime between September and November 2022. He also potentially is attempting to assert Fourth Amendment claims related to his pretrial detention during that time period.
Federal courts apply state statutes for § 1983 claims. Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005). “Tennessee applies a one-year statute of limitations to § 1983 actions.” Harvey v. Tenn., No. 1:17-CV-297-CLC-CHS, 2019 WL 5075826, at *1 (E.D. Tenn. Oct. 9, 2019) (citing Zundel v. Holder, 687 F.3d 271, 281 (6th Cir. 2012); Tenn. Code Ann. § 28-3-104(a)(1)). “Although state law provides the statute of limitations to be applied in a § 1983 damages action, federal law governs the question of when that limitations period begins to run.” Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). “In cases of alleged Fourth Amendment violations brought under § 1983, the statute of limitations typically begins to run on the date that the alleged constitutional violations occurred.” Waseleski v. City of Brooklyn, No. 1:23-cv-00548, 2024 WL 1767279, at *7 (N.D. Ohio Apr. 24, 2024) (citing Wallace v. Keto, 549 U.S. 384, 388 (2007)). Courts in the Sixth Circuit “have consistently held a claim for unlawful search and seizure accrues at the time of the alleged search and seizure.” Id. (citing cases). Plaintiff asserts it was not until his November 2023 preliminary hearing that he learned the identity of the officer(s) who seized and searched his personal property and that the searches were conducted without a warrant. However, it appears Plaintiff was at least aware his personal property was seized and searched at or near the time of the searches [see Doc. 2 at Page ID # 18 (“Between September through November, 2022, I was served with 55 warrants for various charges from the illegal search and seizure of my safe, laptop, printer, and bank records.”)]. Accordingly, Plaintiff's Fourth Amendment claims related to the search and seizure of his personal property accrued at the latest by November 2022. Plaintiff filed his complaint in this case on July 11, 2024. Accordingly, these claims are time-barred under applicable the one-year statute of limitations, and should be dismissed. See Jones v. Brock, 549 U.S. 199, 215 (2007) (holding that an action may be dismissed at initial screening stage when untimeliness is apparently from the face of the complaint).
It is unclear whether Plaintiff is attempting to assert an unreasonable seizure/malicious prosecution claim based on his detention pursuant to the arrest warrants referenced above. Regardless, any such claims would be premature as Plaintiff “does not allege that the underlying criminal prosecution against him has terminated in his favor.” Fields v. Wilhite, No. 2:23-cv-3755, 2024 WL 1155983, at *2 (S.D. Ohio Mar. 18, 2024), report and recommendation adopted, 2024 WL 2268682 (S.D. Ohio May 20, 2024); Rembert v. Fishburn, No. 3:15-cv-0949, 2015 WL 5842149, at *2 (M.D. Tenn. Oct. 5, 2015) (“Plaintiff here does not allege that the underlying criminal prosecution against him has terminated at all, much less in his favor. His malicious-prosecution claims are therefore premature and, as such, subject to dismissal without prejudice[.]”). Any such claims should therefore be dismissed without prejudice.
Plaintiff also alleges violations of Tennessee law in connection with his Fourth Amendment claim. First, he attempts to allege a violation of Tennessee Rule of Criminal Procedure 5, which requires that arrestees be brought before a state magistrate “without unnecessary delay.” See Tenn. R. Crim. P. 5(a)(1). Plaintiff alleges this provision was violated because, although he was arrested pursuant to warrants and apparently at some point given the option to post a $550,000 bond, he claims he was “never brought before a magistrate on these charges” [Doc. 2 at Page ID # 19]. He does not name any particular Defendant in connection with this claim.
Plaintiff's citation to Tennessee Rule of Criminal Procedure 5 does not change the conclusion that any Fourth Amendment claim is not properly before the Court. See United States v. Mott, No. 1:09-cr-133, 2009 WL 5031321, at *1 (E.D. Tenn. Dec. 14, 2009) (holding that “when analyzing a claim of a violation of the Fourth Amendment's protection against unreasonable searches and seizures, ‘[t]he test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.'” (quoting Elkins v. United States, 364 U.S. 206, 223-24 (1960)); Paige v. Coyner, 614 F.3d 273, 278 (6th Cir. 2010) (To state a claim under § 1983, “a plaintiff must allege that [s]he was deprived of a right secured by the Federal Constitution or laws of the United States by a person acting under color of state law.” (quotation marks and citation omitted)); see also Cox v. City of Jackson, 811 Fed.Appx. 284, 286 (6th Cir. 2020) (“A person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.”); State v. Carter, 16 S.W.3d 762, 766 (Tenn. 2000) (“As noted, a valid warrant satisfies the requirement of a judicial determination of probable cause.”); State v. Stackhouse, No. E2009-1669-CCA-R3-CD, 2010 WL 4545580, at *6 (Tenn. Ct. Crim. App. Nov. 12, 2000) (rejecting Fourth Amendment claim; finding that, “as correctly noted by the State, the defendant's allegation of a Rule 5(a) error is misplaced because the defendant was arrested . . . pursuant to a warrant” (citing State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996)).
The alleged delay in being brought before a neutral magistrate is potentially relevant to Plaintiff's Fifth Amendment self-incrimination claim. See Huddleston, 924 S.W.2d at 670-72 (considering length of delay in determining whether arrestee's “statement was voluntarily given under the totality of the circumstances”).
Plaintiff also cites to two Tennessee statutes related to the seizure of his personal property: Tennessee Code Annotated §§ 39-11-707 & 40-33-203(e)(1). He asserts these statutes were violated because he “was never served with a notice of seizure of [his] property or with the opportunity for a hearing as required by statute.” [Doc. 2 at Page ID # 21].
To the extent Plaintiff is attempting to allege a Fourteenth Amendment procedural due process claim based on these statutes, such a claim would fail. The Sixth Circuit has made clear that where property is “seized as part of criminal proceedings,” any interest in the property is “protected by the Fourth (not the Fourteenth) Amendment.” King v. Montgomery Cnty., 797 Fed.Appx. 949, 956-57 (6th Cir. 2020). Moreover, none of the officer Defendants can be liable for any alleged violation of these seizure statutes under § 1983 unless, in doing so, they also “violated one of [Plaintiff's] federal constitutional rights.” Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); see also Hopkins v. Nichols, No. 1:19-cv-00059, 2021 WL 2784160, at *6 (M.D. Tenn. July 2, 2021) (“the Fourth Amendment right to be free from unreasonable seizures are not dependent on local law enforcement practices or the law of the particular State in which the seizure occurs” (citations omitted)), affirmed, 37 F. 4th 1110 (6th Cir. 2022); King, 797 Fed.Appx. at 957 58 (holding no Fourteenth Amendment procedural due process claim lies where plaintiff failed to show inadequacy of state law remedies).
It is not clear whether Plaintiff is attempting to assert independent claims based on the alleged violation of these Tennessee seizure/forfeiture statutes. Regardless, any claim based on § 40-33-203(e) is not ripe or adjudication until there is a “final decision with regard to the forfeiture of the [property],” which Plaintiff does not allege has occurred. See Holt v. Young, No. M2000-00243-COA-R3-CV, 2001 WL 1285880, at *3-4 (Tenn. Ct. App. Oct. 25, 2001). As for any claim pursuant to § 39-11-707, in the absence of any colorable due process or Fourth Amendment claim filed pursuant to 42 U.S.C. § 1983, Plaintiff's remedy lies in state court. Tennessee Code Annotated § 39-11-709(b) provides a procedure for seeking the return of seized property, including in instances where the seizing agency has failed to initiate an administrative or civil forfeiture proceeding. See also Tenn. Code Ann. § 39-11-705 (providing that jurisdiction for civil or criminal forfeiture proceedings “extends to the circuit and criminal courts of this state”). Again, Plaintiff does not allege these procedures are inadequate, only that they were not properly complied with when Plaintiff allegedly did not receive notice of the seizure of his property.
Accordingly, I find that all of Plaintiff's claims related to the search and seizure of his personal property and to the seizure/detention of his person, whether made pursuant to state or federal law, should be dismissed, except that any malicious prosecution constitutional claim, or any claim based on the violation of the state laws Plaintiff cites should be dismissed without prejudice.
4. Fifth Amendment Claims
Plaintiff also contends Investigator Tammy Macdonald and Investigator Patrick Murdock violated his Fifth Amendment right against self-incrimination. “A violation of the Self- Incrimination Clause does not arise until a coerced statement is used in a criminal case.” Atkins v. Spangler, No. 3:21-CV-075-KAC-DCP, 2021 WL 3007265, at *3 (E.D. Tenn. July 15, 2021) (citing Chavez v. Martinez, 538 U.S. 760, 766-73 (2003) (plurality opinion)). It appears the incriminating statement was relied on by prosecutors and/or law enforcement during Plaintiff's November 2023 preliminary hearing [see Doc. 2 at Page ID # 19]. Accordingly, Plaintiff's Fifth Amendment claim does not appear to be untimely.
Turning to the merits of this claim, it is “well established that a confession is obtained in violation of the Fifth Amendment if it is not voluntary.” United States v. Alexander, 467 Fed.Appx. 355, 364 (6th Cir. 2012). Whether a confession is voluntary depends upon the “totality of the circumstances surrounding the confession,” but courts typically consider the age, education, intelligence, and physical and emotional state of the defendant at the time of the confession, as well as “his expressed fears of violent reprisals, actual physical punishment, the proximity of the confession to a violent arrest and the inherent coerciveness of the setting in which the confession was given.” Id. (citing United States v. Murphy, 763 F.2d 202, 205 (6th Cir. 1985)). “It is difficult for a defendant to show that a confession was involuntary when he properly received advice of and waived his Miranda rights.” Id.
Plaintiff alleges he was coerced into making an “incriminating statement” after being detained for six days without his medication and was “not within [his] right state of mind.” [Doc. 2 at Page ID # 18-19]. He asserts he was assigned to Special Housing at the jail because he was experiencing hallucinations and severe panic attacks. During this time, Investigator Murdock, on numerous occasions, allegedly came to Plaintiff's cell and threatened Plaintiff by claiming Plaintiff would spend the rest of his life in prison. When Investigator Macdonald informed Plaintiff that Postal Inspector Casey Fincher would be interviewing Plaintiff and possibly pursing additional charges, Plaintiff claims he became even more “scared and confused” [id.]. Plaintiff alleges he informed Investigator Macdonald and Postal Inspector Fincher during their interview of him, and prior to making any incriminating statements, that he “was sick and not feeling well due to not having [his] prescribed medications.” [Id.]. Plaintiff concedes a Miranda waiver, signed by him, was produced during discovery in his criminal proceeding, but he claims he does not remember signing the form.
In a different lawsuit filed by Plaintiff, the Court dismissed any claims related to Plaintiff's postarrest interview as untimely. See Hardiman v. Mcconnell, Case No. 1:24-cv-00124-TAV-CHS, Doc. 4 at Page ID # 38 (E.D. Tenn. Apr. 5, 2024) (“Although Plaintiff's complaint provides a chronology of events beginning with his arrest on September 20, 2022, it does not appear that he intends to assert any constitutional claims regarding events that occurred prior to his failed drug test on August 15, 2023. But, to the extent Plaintiff does intend to assert claims relating to Investigator Murdock's interview of him upon his arrest, his placement on suicide watch and related conditions, the failure of the jail to transport him to his grandfather's funeral, etc., those claims are time barred.”). Plaintiff now is explicitly asserting claims based on the interview and his related allegedly coerced confession, pursuant to the Fifth Amendment.
Considering the totality of the circumstances and accepting Plaintiff's allegations as true, as is required, I find Plaintiff has adequately stated a claim for violation of his Fifth Amendment right against self-incrimination against Investigator Patrick Murdock and Investigator Tammy Macdonald. I further find that, accepting the facts as presented by Plaintiff, this alleged violation of the Fifth Amendment did not accrue until the allegedly incriminating statement was used against Plaintiff during his preliminary hearing in November 2023.
5. Claims Against Woodforest National Bank
In Claim 4, Plaintiff alleges his bank, Woodforest National Bank, responded to a subpoena served on it by Investigator Murdock. Plaintiff alleges the bank “provided the requested items mentioned in the Judicial Subpoena” to Investigator Murdock, including “video footage” [Doc. 2 at Page ID # 20]. Plaintiff asserts he was “never served with this subpoena as required by the Tennessee Financial Privacy Act.” [Id.]. Plaintiff alleges “a W. Jeffrey Levi provided the requested items . . . to Investigator Patrick Murdock” on September 26, 2022, “without complying with the Tennessee Financial Privacy Act.” [Id. at Page ID # 21].
The Tennessee Financial Privacy Records Act (hereafter “TFPRA”) prohibits financial institutions from disclosing a customer's “financial records” to most third parties unless the customer has authorized the disclosure or the financial records “are disclosed in response to a lawful subpoena that meets the requirements of §§ 45-10-106 and 45-10-107.” Tenn. Code Ann. § 45-10-104.
Tennessee Code Annotated § 45-10-106 provides:
A subpoena authorizing the production of financial records may be served upon a financial institution only if:
(1) A copy of the subpoena has been served upon the customer, if the customer is available for service, in the manner provided by law for the service of subpoena, or, in any judicial proceeding in which the customer is a named party, a copy of the subpoena has been served on the customer in the manner provided for the service of pleadings subsequent to the original complaint by the Tennessee Rules of Civil Procedure[.]Section -107 requires the subpoena to indicate, among other things, “that the requirements of § 45 10-106 have been met.” Tenn. Code Ann. § 45-10-107.
Section -102(4) defines “financial records” as:
any original document, any copy of an original document, or any information contained in the document, other than a customer's name, address, and account number, held by or in the custody of a financial institution, where the document, copy or information is identifiable as pertaining to one (1) or more customers of the institution[.]Tenn. Code Ann. § 45-10-102(4). Accordingly, it does not appear any video footage comes within the scope of the statute. See Wolpert v. Branch Banking Trust & Co., No. 3:19-CV-138-TRM-DCP, 2023 WL 3263487, at *3 (E.D. Tenn. Mar. 23, 2023) (“the TFRPA's prohibition is closely tethered to the contents of act ‘records' or documents, rather than all financial information involving a customer” (quoting Renasant Bank v. Ericson, 801 F. Supp' 2d 690, 703 (M.D. Tenn. 2011)). And Plaintiff only vaguely references other “items” produced in response to the subpoena, making no effort to describe how these “items” constitute “financial information.”
In addition, section -107 specifically provides that a “financial institution shall not be deemed to violate this chapter because it produces financial records in response to a subpoena containing the representation required under subdivision (a)(1),” referring to the representation that the customer has been served with the subpoena, “even if the representation is false and a claim to that effect is made to the financial institution[.]” Tenn. Code Ann. § 45-10-107(c). Plaintiff only alleges he was never served with the subpoena, and that an individual named W. Jeffrey Levi produced the “items . . . without complying with the [TFRPA].” He does not allege the subpoena lacked the required representations. See Nationwide Invs., LLC v. Pinnacle Bank, No. M2018-01180-COA-R3-CV, 2019 WL 4415188, at *4 (Tenn. Ct. App. Sept. 16, 2019) (affirming grant of summary judgment in case involving claim TFRPA was violated by bank, where subpoena to bank indicated customer had been served with subpoena). Nor does he allege the subpoena failed to comply with the delayed notice provisions of Tennessee Code Annotated § 45-10-117. See Tenn. Code Ann. § 45-10-103(8).
In short, Plaintiff's vague allegation that this statute was not complied with when unspecified “materials” were produced allegedly without his notice, is insufficient. Accordingly, I find Plaintiff's TFPRA purported claim against Woodforest National Bank should be dismissed without prejudice.
III. CONCLUSION
For the foregoing reasons, I RECOMMEND:
Any objections to this report and recommendation must be served and filed within fourteen (14) days after service of a copy of this recommended disposition on the objecting party. Such objections must conform to the requirements of Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file objections within the time specified waives the right to appeal the district court's order. Thomas v. Arn, 474 U.S. 140, 149 n.7 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive and general. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Fed'n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987).
• Plaintiff's motion to proceed IFP [Doc. 1] be GRANTED;
• all claims against the officer Defendants in their official capacities be DISMISSED;
• all Fourth Amendment claims based on the search of Plaintiff's personal property and his pretrial detention be DISMISSED;
• any malicious prosecution claim or any claim based on Tennessee Rule of Criminal Procedure 5, Tennessee Code Annotated § 39-11-707, Tennessee Code Annotated § 40-33-203(e)(1), or any related provision of state law be DISMISSED WITHOUT PREJUDICE;
• Plaintiff's claim against Woodforest National Bank based on the alleged violation of the Tennessee Financial Privacy Act be DISMISSED WITHOUT PREJUDICE;
• Plaintiff be permitted to proceed on his claims against Investigator Tammy Macdonald and Investigator Patrick Murdock, in their individual capacities only, for violation of Plaintiff's Fifth Amendment right against selfincrimination.
• In light of the foregoing recommendations, I further RECOMMEND Sergeant David Houk, Sheriff Joyce Mcconnell, and Woodforest National Bank be terminated as Defendants in this case.