Kiner v. Shelby County Health Department et al

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
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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).
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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).
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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
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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).
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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
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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.
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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.
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