NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0513n.06 No. 11-5928 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
CANDACE MUL L I

NS, natura l mother and surviving next of kin of Carly le Mullins, a dece ased minor c hild, Plaintiff-Appellant,

v. STEPHANI E HAL L ; MANDY L EWI S, Individually , Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE MI DDL E DI STRI CT OF TEN NESSEE

Be fore : GI BB ONS, ROGERS, and COOK, Circuit J udg es. COOK, Circuit Judge
. Candac e Mullins appea ls the district court’s dismiss al of her § 1983 claims ag ainst defe ndants Stephanie Ha ll and Mandy L ewis. We aff

irm.
This is Mullins’s second lawsuit stemming from the death of her five-year old son, Carlyle. She filed her first lawsuit with the Tenne ssee Claims Commi ssion ag ainst the State of T ennesse e, claiming that the neg lige nt conduct of social worke rs from the Tenne ssee Depa rtment of Children’s Service s (“D CS”) led to Carlyle’s death. The state court dismiss ed that case for lack of subject matter jurisdiction, as detailed below. Mullins now asser ts § 1983 claims ag ainst the social worke rs in their individual capac ities, claiming that their neg lige nt conduct violated Car lyle’s civil rig hts.No. 11-5928

Mullins v. Hall
Acc ording to the Tenne ssee Court of Appea ls opinion from her first lawsuit, Mullins’s “thre e sons, including Carlyle, wer e remove d from their home and place d in foster car e on April 18, 2005.” Mullins v. State , No. M2008-01674-COA- R3-CV, 2009 WL 1372209, at *1 (Tenn. Ct. App. May 15, 2009). Shortly there afte r, DCS approve d place ment of t he ch i l d re n wi th L olitha Crook, Mullins’s aunt. Id. Crook’s developmenta lly disabled daughter, L atar a Wil liams, lived with Crook at the time. Id. Approxim ately three wee ks afte r the place ment of the children with Crook, Carlyle died afte r being “admitted to Vande rbilt’s Children’s Hospital, wher e he was diag nosed with a rig ht-sided subdural hemorrha g e due to head trauma.” Id. at *4. Acc ording to the Tenne ssee court, “[t] he rec ord
reve als that the Medica l Ex aminer deter mined the cause of death was inflicted head trauma and that the manner of death was homicide. Three months later, Ms. Wil liams was arr ested and char g ed with first-degree murder and aggravated child abuse.” Id. In a footnote, t h e co u rt noted t hat t he record contained no inf

ormation reg ardingthe disposition of the charg es ag ainst Wi lliams. Id. at n.5.
Mullins filed a wrong ful death suit with the Tenne ssee Claims Commi ssion under Tenne ssee Code Annotated § 9-8-307( a)( 1)(E) , which provides the Claims Com m i s s i on with “exclusive jurisdiction to deter

mine all monetary claims ag ainst the state based on the acts or omissions of ‘state employ ees’ ” involving the “[n] eg lige nt car e, custody and control of p er s ons.” The Claims Commi ssion held that it lacked subjec t matter jurisdiction over the c laims beca use Carly le was not in the car e, custody , or control of the state at the time of the alleg ed wrong ful death. Mullins appea led to the Tenne ssee Court of Appea ls, which aff irmed. See Mullins , 2009 W L 1 3 7 2209, at *1-*12.

2No. 11-5928

Mullins v. Hall
Mullins reque sted permission to appea l to the Tenne ssee Supreme Court, wh i ch gra n t ed her application and a ffirme d. Mullins v. State , 320 S.W .3d 273, 284 (Tenn. 2010)
. Mullins then filed her § 1983 claims with the district court. The defe ndants moved to dismiss , claiming that the filing of her suit with the Claims Commi ssion waived her rig ht to sue there afte r in any other c ourt. The r eleva

nt statutory

waiver provision states:
Claims ag ainst the s tate filed pursuant to subsection (a) [ o f T
. C
. A. § 9-8-307] shall operate as a waiver of any cause of action, based on the same act or omission, which the claimant ha s ag ainst any state off icer or employee.
Tenn. Code Ann. § 9-8-307( b). Mullins argued that beca use the Claims Commi ssion dismiss ed her suit for lack of subject matter jurisdiction, the filing of her suit with the Commi ssion should be treated
as if it never occur

red, there by removing her claims fr o m the scope of the waiver provision. The district court disag ree d and grante d the motion to dis miss. Mul lins appeale d. We ag ree with the district court and a ffirm. In Haley v . University of Tennesse e-Knoxv ille , the Tenne ssee Supre me Court reje cted a simil ar a rgument to Mulli ns’s: Haley argues . . . that a voluntary dismiss al or non-suit befor e the Claims Commi ssion leave s the situation as if the cla im had never been broug ht, eff ectively reve rsing the activation of the waiver

that occur

red upon the filing of

the claim. However , in our v iew, once the claim has been filed and the waiver has been activate d, it cannot b e “undone.” The statute pr ovides that filing the claim activate s the waive r, re g ardle ss of the subsequent dispositi on of the claim. In light of the L eg islature’s unambiguous pronounce ment in enac ting t h e C l ai ms Commi ssion Act, we hold that the waiver provision of Tenne ssee Code Annotated se ction 9–8–307(b) is activate d upon filing of the c laim, even if the claim is later voluntar ily withdrawn or

non-suited. 3No. 11-5928

Mullins v. Hall
1 8 8 S
. W.3d 518, 524 (Tenn. 2006) (citations omitted). The Haley opinion—like the statut e i t interpre ts—speaks unequivoca lly : it is the filing of a suit that trig g ers the waiver
. Dismissal for lack of subject matter jurisdiction, like entry of a non-suit, cannot era se the initial filing of the lawsuit from history . The dismissal of Mullins’s claim did not, t here fore , undo her w aiver
. For these rea sons, Mullins waived her rig ht to bring this suit when she filed her claims with the Tenne ssee Claims Commi ssion. W e af firm.

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