2:24-cv-02412•Kiner v. Shelby County Health Department et al
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION _____________________________________________________________________________ GERALD KINER, Plaintiff, v. Case 2:24-cv-02412-TLP-cgc SHELBY COUNTY HEALTH DEPARTMENT & TRAVIS GREEN, in his official and individual capacity, Defendants. _____________________________________________________________________________ REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS _____________________________________________________________________________ Before the Court is Defendants Shelby County Health Department (“SCHD”) and Travis Green’s (“Green”) Motion to Dismiss. (Docket Entry (“D.E.”) #26). Pursuant to Administrative Order 2013-05, the instant motion has been referred to the United States Magistrate Judge for Report & Recommendation. For the reasons set forth herein, it is RECOMMENDED that Defendants’ Motion to Dismiss be GRANTED. I. Background a. Plaintiff’s Complaint On June 17, 2024, Plaintiff Gerald Kiner filed a pro se Complaint with this Court alleging violations of 42 United States Code Section 1983, defamation in violation of Tennessee state law, and violations of Tennessee’s whistleblower-protection laws. (D.E. #1). Specifically, Plaintiff Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 1 of 8 PageID <pageID>
2 alleges that he is a contractor who publicly spoke out on June 11, 20241 at a public meeting of the Shelby County Commission about SCHD’s process for awarding contracts to minority vendors, including the organization with whom he is affiliated, “Daughters of Zion.” (Compl. ¶¶ 3-22). During his speech, Plaintiff stated during his discussion of the violence prevention and intervention contract, for which his organization bid, that “there is zero minority spending dealing with a nearly 100% at-risk local minority issue.” (Id. ¶ 7). Plaintiff alleges that, following his speech, Green publicly stated that “everything was said was a lie,” which Plaintiff believes was defamatory, and that “individuals who make statements like this should be held accountable.” (Id. ¶¶ 23, 44). As causes of action, Plaintiff alleges that SCHD and Green violated Section 1983 by committing retaliation in violation of the First Amendment as well as violating his due process rights under the Fourteenth Amendment by publicly defaming him and harming his reputation and business. (Compl. ¶¶ 29-39). Plaintiff alleges that Green committed slander because his statement was made “with malicious intent or reckless disregard for the truth” and caused Plaintiff “significant reputational damage, emotional distress, and economic harm, including but not limited to the loss of business opportunities and a diminished standing in the community.” (Id. ¶¶ 40-42). Finally, Plaintiff alleges that Green violated Tennessee’s whistleblower-protection laws by stating that Plaintiff lied and should be held accountable. (Id. ¶¶ 43-45). As an exhibit, Plaintiff has provided a purported transcript of what was said by himself and Green at the public Shelby County Commission meeting. (Id. at PageID 25). 1 Defendants’ Motion to Dismiss states that the correct date is June 12, 2024. (Defs.’ Mot. to Dismiss at PageID 119). Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 2 of 8 PageID <pageID>
3 b. Defendants’ Motion to Dismiss On July 29, 2024, Defendants filed their Motion to Dismiss (D.E. #26) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, Defendants argue that Plaintiff has not sufficiently pled a factual basis for his claims, that Defendant Green should be dismissed in his official capacity because it is redundant to Plaintiff’s claims against SCHD, that Defendant Green should be dismissed in his individual capacity because he is entitled to qualified immunity, that there is no municipal liability on the part of SCHD, that SCHD cannot be held liable under for the alleged unlawful actions of Green, and that Plaintiff lacks standing to bring claims under the Tennessee Whistleblower Act, Tennessee Code Annotated Section 50-1-304. Defendants’ Motion to Dismiss further contends that this Court should take judicial notice pursuant to Rule 201 of the Federal Rules of Evidence as to what Plaintiff and Green stated during the SCHD meeting to resolve the issues presented in this motion; however, Defendants contend that Plaintiff’s purported transcript is complete and request that the Court consider the archived video recording of the meeting, of which they have provided a website link. c. Plaintiff’s Response to Defendants’ Motion to Dismiss On August 19, 2024, Plaintiff filed an “Amended Plaintiff’s Proposed Response to Defendants’ Motion to Dismiss and Request to Strike.” (D.E. #27). Therein, Plaintiff raised procedural arguments that have already been decided by this Court. (See D.E. 34 at n.2). Plaintiff did not respond to the substantive arguments in Defendants’ Motion to Dismiss. II. Legal Standard Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be dismissed for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 3 of 8 PageID <pageID>
4 In addressing a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in the light most favorable to plaintiff and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support a claim “by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare assertions of legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Any claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . .claim is and the grounds upon which it rests.” Id. (citing Twombly, 550 U.S. at 555). Nonetheless, a complaint must contain sufficient facts “state a claim to relief that is plausible on its face’” to survive a motion to dismiss. Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A plaintiff with no facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Id. at 678-79. Pleadings and documents filed by pro se litigants are to be “liberally construed,” and a “pro se complaint, however inartfully pleaded, must be held to a less stringent standard than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded to pro se litigants has Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 4 of 8 PageID <pageID>
5 limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). The basic pleading essentials are not abrogated in pro se cases. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) A pro se complaint must still “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Barnett v. Luttrell, 414 Fed. Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal quotations and emphasis omitted). District Courts “have no obligation to act as counsel or paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also not “required to create” a pro se litigant’s claim for him. Payne v. Secretary of Treasury, 73 Fed. Appx. 836, 837 (6th Cir. 2003). III. Proposed Analysis and Conclusions of Law a. Judicial Notice pursuant to Rule 201 of the Federal Rules of Evidence The parties have sought for this Court to consider evidence outside the pleadings, and Defendants have specifically asked the Court to take judicial notice of the video recording of the June 12, 2024 meeting as posted online. For the reasons set forth below, this Court has not needed to take any evidence outside the pleadings into consideration for the purposes of this motion. b. Section 1983 Claim against SCHD Section 1983 provides the vehicle to challenge an alleged deprivation of constitutional rights. Lomaz v. Hennosy, 151 F.3d 493, 500 (6th Cir. 1998). Plaintiff has raised a Section 1983 claim against SCHD as well as an official-capacity Section 1983 claim against Green, which also must be construed as a claim against the municipality. See, e.g., Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016). Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 5 of 8 PageID <pageID>
6 For a municipality to be held liable under Section 1983, the deprivation of rights must be due to the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Otherwise stated, the municipality must not merely employee a wrongdoer, Monell, 436 U.S. at 691; it must itself be the wrongdoer, Collins v. City of Harker Heights, Tex., 503 U.S. 115, 122 (1992), and its own actions must be the moving force behind the deprivation of rights, Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 400 (1997). To plead municipal liability, the plaintiff must allege one of the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; (4) the existence of a custom of tolerance of or acquiescence to federal rights violations; or, (4) a municipal hiring decision that reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Sweat v. Butler, 90 F. Supp. 3d 773, 780 (W.D. Tenn. 2015) (quoting D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014)); Brown, 520 U.S. at 441). Here, Plaintiff’s Complaint does not allege any conduct of SCHD that could give rise to SCHD’s municipal liability. Instead, Plaintiff states that SCHD, as Green’s employer “and the entity responsible for his training and oversight, bears liability for his actions, particularly as they were undertaken within the scope of his official duties and with the apparent authority of the department.” (Compl. ¶ 28). SCHD may not be held liable merely for employing Green even if he were to be found to have violated any of Plaintiff’s constitutional rights. Further, conclusorily alleging that SCHD hired and trained Plaintiff without alleging the existence of a specific policy of inadequate training and supervision is insufficient to plead municipal liability. Accordingly, it Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 6 of 8 PageID <pageID>
7 is RECOMMENDED that Plaintiff’s Section 1983 claims against SCHD and against Green in his official capacity must be DISMISSED for failure to state a claim upon which relief may be granted. c. Section 1983 Claims against Green in his Individual Capacity Plaintiff has also raised a Section 1983 claim against Green in his individual capacity. The doctrine of qualified immunity shields government officials from civil liability in the performance of their job duties when their conduct does not violate a clearly established statutory right or constitutional right of which a reasonable person would have known. See Getz v. Swoap, 833 F.3d 646, 652 (6th Cir. 2016). Here, Plaintiff has alleged that he elected to speak at a public meeting and then Green elected to do so as well. While Plaintiff characterizes Green’s speech as retaliatory and in violation of his First and Fourteenth Amendment rights, Plaintiff’s Complaint is silent on why a reasonable person in Green’s position would believe he could not speak to refute Plaintiff’s claims at a public meeting where such discourse was openly permitted and where Plaintiff himself took advantage of the forum to share his perspective. Accordingly, it is RECOMMENDED that the doctrine of qualified immunity bars Plaintiff from pursuing an individual-capacity claim under Section 1983 against Green. d. Tennessee Whistleblower Protection Act Next, Plaintiff seeks to pursue claims under the Tennessee Whistleblower Act, which states that “no employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about illegal activities.” Tenn. Code Ann. § 50-1-304; see also Skyes v. Chattanooga Housing Authority, 343 S.W.3d 18, 26 (Tenn. 2011). A claimant may not pursue a claim under this Act, however, if he does not allege that he was an employee of the defendant. Id. Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 7 of 8 PageID <pageID>
8 Here, Plaintiff does not allege that he was employed by SCHD. Accordingly, it is RECOMMENDED that Plaintiff’s claim under Tennessee’s Whistleblower Protection Act should be DISMISSED for failure to state a claim upon which relief may be granted. e. Defamation Finally, under Tennessee law, Plaintiff has stated a claim against Green for defamation and defamation per se. However, as Plaintiff’s federal law claims have been dismissed, the Court may decline to exercise supplemental jurisdiction over state-law claims. See 28 U.S.C. § 1367. Here, to the extent that Plaintiff’s Complaint may be read to raise a claim for defamation or defamation per se, which this Court is not addressing, such a claim is the essence of a state law case that would be properly determined in a state court. Accordingly, it is RECOMMENDED that this Court decline to exercise supplemental jurisdiction over this claim and that it be dismissed without prejudice. IV. Conclusion For the reasons set forth herein, it is RECOMMENDED that Defendants’ Motion to Dismiss be GRANTED. Signed this 17th day of December, 2025. s/ Charmiane G. Claxton CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28 U.S.C. § 636(b)(1)(C). FAILURE TO FILE SAID OBJECTIONS OR EXCEPTIONS WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER AND/OR FORFEITURE OF THE OPPORTUNITY TO RAISE OBJECTIONS, EXCEPTIONS, AND ANY FURTHER APPEAL. Case 2:24-cv-02412-TLP-cgc Document 45 Filed 12/17/25 Page 8 of 8 PageID <pageID>
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