Wattenbarger v. City of Crossville, Tennessee et al

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
WALLACE SHANE
WATTENBARGER,
Plaintiff,
v.
CITY OF CROSSVILLE,
TENNESSEE,
Defendant.
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No. 2:24-cv-00041
MEMORANDUM OPINION AND ORDER
“Queers stay away from our children. You’re ruining America.” That was one of several
messages Wattenbarger displayed on banners affixed to his truck and horse trailer as he drove
through a pride festival in Crossville, Tennessee in June 2023. Others included “Stop Sexualizing
Our Children,” “What is a Woman,” and “Make Noise For A Queer Free America.” Whatever
one thinks of that sentiment, the First Amendment protects speech on matters of public concern.
Wattenbarger had the right to express it. The question under the City’s motion to dismiss (Doc.
No. 27) is whether the City violated that right when it arrested Wattenbarger, not for that
expression, but for parallel parking his pickup truck and horse trailer across multiple spaces in
front of the courthouse where the festival was being held. The motion under Rules 12(b)(5) and
12(b)(6) is ripe for decision.
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I. 	FACTUAL BACKGROUND1
In June 2023, the City of Crossville permitted a nonprofit organization to hold a pride
festival on the public square surrounding the Cumberland County courthouse. 	(FAC ¶¶ 6-10).
During the festival, Wattenbarger drove his pickup truck and horse trailer around the courthouse
square, displaying the banners described above. (Id. ¶¶ 11-12). Police stopped him for impeding
traffic, and noted his taillights were malfunctioning, but did not issue a citation. (Id. ¶¶ 13-14).
Wattenbarger left, repaired the taillights, affixed new banners to the trailer, and drove back. (Id.
¶¶ 15-16). This time, he parallel parked the truck and horse trailer across multiple spaces directly
in front of the courthouse where the festival was being held. (Id. ¶ 16). Officers told him to move;
he complied. (Id.). Shortly after, officers stopped him again, arrested him, and charged him with
disrupting a meeting.2 	(Id. ¶¶ 17-21). 	The state later dropped the charge on its own motion.
(Id. ¶ 23).
II. 	LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Venema v. West, 133 F.4th
625, 632 (6th Cir. 2025) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 	“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. (quoting Iqbal,
556 U.S. at 678). When determining whether the complaint meets this standard, the Court must
1 Unless noted otherwise, the Court draws the facts in this section from the First Amended
Complaint (“FAC”) (Doc. No. 22) and assumes the truth of the allegations for purposes of ruling
on the motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2 Tenn. Code Ann. § 39-17-306(a) makes it a misdemeanor offense for a person to “substantially
obstruct[] or interfere[]” with a lawful “meeting, procession, or gathering by physical action or
verbal utterance.”
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accept the complaint’s factual allegations as true, draw all reasonable inferences in the plaintiff’s
favor, and “take all of those facts and inferences and determine whether they plausibly give rise to
an entitlement to relief.” Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018).
III. 	ANALYSIS
Wattenbarger sues the City under Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.
658 (1978) seeking $2 million for his arrest that he contends was based on some unidentified
“unwritten policy and practice” of the City to allow its officers “broad power to discriminate
against speech on the basis of the content and viewpoints expressed.” (FAC ¶¶ 22, 31). The City
moves to dismiss on two grounds: that the statute of limitations bars the claim, and that the FAC
fails to state a Monell claim. (Doc. No. 28). In response Wattenbarger addressed only the statute
of limitations issue. (Doc. No. 34). Because Wattenbarger failed to respond to the City’s Monell
argument, the Court treats that point as conceded. See Doe v. Bredesen, 507 F.3d 998, 1007-08
(6th Cir. 2007) (affirming the district court’s conclusion that the plaintiff abandoned certain claims
by failing to raise them in his brief opposing motion to dismiss); Fudge v. Love’s Travel Stops &
Country Stores, Inc., 745 F. Supp. 3d 622, 625 (M.D. Tenn. 2024) (“Plaintiffs make no reference
to . . . the crux of [d]efendants’ argument . . . and, by failing to do so, doom their claim.”).
Even setting that aside, the Court finds Wattenbarger’s allegations woefully insufficient to
state a Monell claim. “A municipality is only liable under § 1983 if the plaintiff demonstrates that
the injury suffered was a direct result of the city’s official policy or custom.” Wiley v. City of
Columbus, Ohio, 36 F.4th 661, 670 (6th Cir. 2022) (internal quotations and citation omitted). Read
generously, the FAC does not allege an unconstitutional policy. It does not even allege that the
City has a custom of selectively enforcing neutral statutes to impair free speech. It alleges that the
City has an “unwritten policy and practice” that “vests” its officers with “broad power” that the
officers then use “to discriminate against speech on the basis of the content and viewpoints
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expressed.” 	(FAC ¶¶ 22, 31). 	That allegation amounts to little more than an assertion that the
City’s officers have discretion to enforce the code. Of course they do. That’s their job. From that
unremarkable position, Wattenbarger asks the reader to infer a broader municipal custom of using
enforcement authority to suppress disfavored expression, when there are no allegations that the
statute here was selectively used against him. Suffice it to say, that inference is not plausible.
Dismissal with prejudice is warranted. Wattenbarger has already amended once. The City
put him on notice of the Monell deficiency, and he chose not to respond. And more to the point,
further amendment would be futile. The Court cannot conceive of any set of facts that could link
the officers’ enforcement of a neutral statute against Wattenbarger—unrelated to his expression—
to some broader custom or practice of the officers to selectively enforce the law to impair free
speech rights, based on nothing more than the authority they are vested with. Cline v. Rogers, 87
F.3d 176, 179 (6th Cir. 1996) (finding that dismissal with prejudice is warranted where the plaintiff
can “prove no set of facts that would entitle him to relief”).
Because the Court dismisses on Monell grounds, the Court need not reach the parties’
dispute over the statute of limitations.
IV. 	CONCLUSION
“As a Nation we have chosen a different course—to protect even hurtful speech on public
issues to ensure that we do not stifle public debate.” 	Snyder v. Phelps, 562 U.S. 443, 461 (2011).
That principle applies to Wattenbarger with full force. But his allegations simply do not amount
to a municipal custom of selectively enforcing the code to impair speech, let alone his.
The motion to dismiss (Doc. No. 27) is GRANTED. This case is DISMISSED WITH
PREJUDICE. The clerk shall close the file.
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IT IS SO ORDERED.
____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
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