NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0077n.06

Case No. 16-5558

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN JONES,

Plaintiff-Appellant,

v.

CITY OF FRANKLIN; WILLIAMSON

MEDICAL CENTER; MARC SWAIN;

CARLOS CORDERO; JEFF CARSON;

RYAN FRAZIER; NICK GRANDY; CORY

KROEGER; DAVID JENKINS; SHAWNA

M. DANIEL; JON ANDREW RUSSELL,

M.D.,

Appellees-Defendants. )

)

)

)

)

)

)

)

)

)

)

)

)

)

) ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF

TENNESSEE

BEFORE: GIBBONS, COOK, and KETHLEDGE, Circuit Judges.

PER CURIAM. Tennessee law imposes a one-y ear statute of limitations for personalinjury suits. Tenn. Code. Ann. § 28-3-104(a)(1)(A). But “[i]f th e person entitled to commence

an action is, at the time the cause of action accrue d . . . adjudicated incompetent, such person . . .

may commence the action, after legal rights are re stored, within the time of limitation for the

particular cause of action.” Tenn. Code Ann. § 28-1-106. Plaintiff John Jones commenced this

action beyond one year. He argues for applicati on of this Tennessee “adjudicated incompetent”

tolling provision based on an emergency-room physician’s assessment that Jones exhibited signsCase No. 16-5558

John Jones v. City of Franklin, et al.

- 2 - of “mental illness” and posed an “immediate s ubstantial likelihood of serious harm” on the day

his cause of action accrued. As explained in the appended opinion, the district court rejected this

argument, reasoning that the “term ‘adjudicated incompetent,’ by any reasonable interpretation,

means that the person must have been the subject of judicial declaration that he was incompetent

to handle his own affairs as a matter of law.” Like the district court, a prior panel of this court,

and the Tennessee Court of Appeals, we reject this argument in favor of according “adjudicated”

its ordinary, natural, dictionary meaning. We adopt the district co urt’s sound, persuasive

reasoning and affirm its judgment.APPENDIX

I N THE U N I TED STATES D I STR I CT COURT

FOR THE M I DD L E D I STR I CT OF TE N NESSEE

CO L UMB I A D I V I S I ON

J OHN JONES )

)

v. ) Case No. 1:14

- 0114

) Ma g istrate Judge H olmes

C I TY OF FRAN K LI N, TENN E SSEE, et. al. )

MEMORA N DUM O P INION

This civil action is befo r e the undersi g ned for all further proc e edin g s, pursuant to the consent

of the parties and the order of the District J ud g e. Dock e t E ntry No. (“ D E”) 30. Currently pending

are two amend e d motions for summary judgm e nt, one filed by De f endants Shawna Daniel and

Wi l liamson M e dical Center (colle c tively re f err ed to a s “D e fend a nt WMC”) (DE 65) and one filed

by De f endants J eff Carson, Carlos Cordero, R y an F r azier, Nick Gr a nd y

, David J enkins, Cory

Kro eg er, Marc Swain, and the City of Franklin, Tennessee (collectively re f er r ed to as “Def e ndant

City of F r anklin”) (DE 68). Also pending i s a m o t io n for judgm e nt on the pleadin g s filed by

De f endant J on Andr e w Russell M.D. (“ D ef e ndant Russ ell ”) ( D E 75). For the re a sons below, all

three motions are GRANT E D.

STANDARD OF REVIEW

A motion for summary judgm e nt is r eview e d under the standard that summary judgm e nt is

a p p r o p r i a t e if “the movant shows that there is no g enuine dispute as to any materi a l fa c t and the

movant is entitled to judgment as a matter of l a w.” Fed. R. Civ. P. 56(a )

. See also Celotex Corp.

v. Catrett

, 477 U.S. 317, 322

- 23, 106 S. Ct. 2548, 91 L

. Ed. 2d 265 (1986). A “ g enuine issue of

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materi a l fa c t” is a fact which, if proven at trial, could l ead a reasonable ju r y to return a verdi c t for

the non

- moving part y

. Anderson v. Liberty Lobby, Inc

. , 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L

.

Ed. 2d 202 (1986). When considering whether summary judgm e nt is approp r iate, the Court must

“look be y ond the p l eadin g s and assess the proof to dete r mine whether there is a gen ui n e n e e d f o r

trial.” Sowards v. Loudon Cnty.

, 203 F.3d 426, 431 (6th Cir.), cert. denie d

, 531 U.S. 875, 121 S. Ct.

179, 148 L

. Ed. 2d 123 (2000). I n revi e wing a motion for summary judgm e nt, the Court must view

the eviden c e and a ll inferen c es dr a wn from the underl y ing fa c ts “ in the light most f a vorable to the

party opposing the motion.” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd

. , 475 U.S.

574, 587, 106 S. C t . 1348, 89 L . Ed. 2d 538 (1986); Gribche c k v. Runyo n

, 245 F.3d 547, 550 ( 6th

Cir.), cert. d e nied, 534 U.S. 896, 122 S. C t. 217, 151 L . Ed. 2d 155 (2001).

The mov i ng party has t he burden of showing the abs e nce of g enuine f actu a l disputes from

w h ich a re a sonable jury could return a verdi c t for the non

- moving part y

. Anderso n

, 477 U. S

. at

249

- 50. Howev e r, “[t ] he moving party need not support its motion with eviden c e disp rov i n g the

non

- moving part y ’s claim, but ne e d only show that ‘the r e is an absen c e of eviden c e to suppo r t the

non

- moving part y ’s cas e .’” Hay e s v. Equitable Energy Res. Co

. , 266 F.3d 560, 566 (6th Cir. 2001)

(quoting Celotex Corp

. , 477 U.S. at 325). “On c e the moving party has pres e nted eviden c e suffici e nt

to support a mo t ion for sum m ary judgm e nt, the non m oving party is not entitled t o t rial m er e ly on

the basis of alle g ations; signifi c ant probative eviden c e must be pres e nted to support the complaint.”

Goins v. Clorox Co

. , 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary

judgm e nt may no t r el y s olely on the pleadin g s but must pres e nt eviden c e supporting the claims

asse r ted by the part y

. Banks v. W olfe Cnty. Bd. of Educ

. , 330 F

. 3 d 888

, 89 2 (6th Cir. 2003).

Additionall y

, conclusory alle g ations, specul a tion, a nd unsubstantiated asse r tions are not e videnc e

,

2

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and are n o t s u f fi c i ent to def e at a well

- support e d motion for summary judgm e nt. See Lujan v.

National W ildli f

e Fed’ n

, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L

. Ed. 2d 695 (1990). Ther e for e

,

in order to def e at summary judgm e nt, t h e party opposing the motion must pres e nt af f irmative

eviden c e to support its position; a mere “scintilla of eviden c e” is insufficient. B e l l v. O h i o State

Univ

. , 351 F.3d 240, 247 ( 6th Cir. 2003) (quoting Anderso n

, 477 U.S. at 252).

The applicable standard of revi e w for a motion for judgm e nt on the pleadin g s made pursuant

to Rule 12(c) is that for a motion to d ismis s f o r failure to state a claim upon which relief can be

g rant e d made pursuant to Rule 12(b) ( 6). EEOC v. J.H. Routh Pac k ing Co

. , 246 F.3d 850, 851 (6th

Ci r. 2001); Grindstaff v. Gre e n

, 133 F.3d 416, 421 (6th Cir. 1998). A motion to d i smis s und er

Rule 12(c) is dire c ted s olely to the p l eadin g s, and is approp r iately g rant e d when no material i ssue

of fa c t exi s ts and the moving party is entitled to judgm e nt as a matter of law. Tucker v. Middleburg

Legacy Plac e

, 539 F.3d 545, 549 (6th Cir. 2008). Consideration of a motion to dismiss requir e s the

Court to ac c ept the complaint’s well

- ple a ded fa c tual alle g ations as true and construe the complaint

liberally in the lig h t most favo r able to the plaintiff. Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009);

Perry v

. Am. Tobacco Co., In c

. , 324 F.3d 845, 848 ( 6th Cir. 2003).

P ROCEDURAL HISTORY AND F ACTS

Plaintiff J ohn J ones (“Plaintiff”) filed this a c tion on August 22, 2014, se e king r elief und e r

42 U.S.C. § 1983 and the common and statutory laws of Tenn e ssee to red r ess alle g ed violations of

Plaintiff’s constitutional ri g hts. Ori g inall y

, the named def e ndants we r e the Cit y of F r anklin,

Tenn e ssee and Wi l liamson Medic a l Center. DE 1. Plaintiff also named: J ohn Does 1

- 6, identified

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as police offic e rs of the City of F r anklin Police Dep a rtment (DE 1 at ¶ 7); J ane Does 1

- 2, identified

as nurses emplo yed either by Wi l liamson Medic a l Center or an entity contr a c t e d th r ou g h Wi l liamson

Medic a l C e nter (DE 1 at ¶ 8); and J ack D oe, M.D., identified a s a medic a l doctor emplo yed either

by Wi l liamson Medic a l Center or by an entity contr a cted throu g h Wi l liamson Medic a l Center (DE 1

at ¶ 9).

I n the complaint Plaintiff alle g es that the J ohn Doe def e ndants are individuals acting under

color of l a w in the cou r se and s c ope of th e ir emplo y ment as police offic e rs of the City of F ranklin

Police Dep a rtment. DE 1 at ¶¶ 10

- 23, 4 1

- 4 3

. Plaintiff alle g es that on or about Au g ust 21, 2013,

offic e rs with the F r anklin Police Dep a rtment detained him without probable cause in the parking lot

of t he Marriott Court y ard H otel in the Cool S prin g s ar e a and questioned him about what dru g s he

was on in order to g et him medical tre a tment. DE 1 at ¶¶ 10

- 12. Plaintiff further alle g es that, despite

his insistence that he was not on any d r u g s and not in need of medical assistanc e

, the J oe Doe

def e ndants had him transport e d to the Wi l liamson Medical Center by ambulanc e

. I d

.

Once Plaintiff was admitted to the Wi l liamson Medic a l Center eme rg ency room, the police

offic e rs instructed Plaintiff to provide a urine sample and a blood sample, to which Plaintiff alle g es

he did not g ive consent, in t h e p r es e n ce o f the eme rg ency room doctor, the J ack Doe, M.D.

def e ndant. DE 1 at ¶¶ 1 4

- 1 7. Plaintiff alle g es that when he was unable to urinate in a cup in the

pres e nce of medical personn e l and police offic e rs, the police offic e rs restr a ined Plaintiff so that the

J ane Doe def e ndants, who are nurses, could for c efully insert a cath e ter into Plaintiff’s penis to obtain

a urine sample. I d . at ¶¶ 18

- 20.

On De c ember 22, 2014, Plaintiff filed a First Amended Complaint, and in place of the J ohn

Doe, J ane Doe, and J ack Doe, M.D. def e nda n ts named the following individuals: Marc Swain,

4

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Carlos C o r d e r o

, J eff Carson, R y an F r azier, Nick Gr a nd y

, Cory Kro eg er, and David J enkins, all

police offic e rs of the City o f F r a n k lin Police Dep a rtment and emplo yed by the City of F r anklin

(DE 10 at ¶ 7); Shawna M. Daniel, a re g istered nurse emplo yed by either Wi l liamson Medic a l Center

or by an entity contr a cted throu g h Wi l liamson Medic a l Center (DE 10 at ¶ 8 ); a n d

, J on Andr e w

Russell, M.D., a medical doctor e m p l o y ed by either Wi l liamson Medic a l Center or by an entity

contr a cted throu g h Wi l liamson Medic a l Center (DE 10 at ¶ 9). Of note, De f endant Russell alle g ed

in his answ e r to the amend e d complaint that Plaintiff pres e nted at Wi l liamson Medic a l Center “with

an alte r ed mental status.” D E 52 at ¶ 17.

Ea c h of the pending motions contends that Plaintiff’s claims must be dismis s ed bec a use both

the ori g inal complaint and the amend e d complaint we r e untimely filed and are bar red by the statute

of limi t ations. Ea c h def e ndant contends that Plaintiff’s ori g inal complaint was filed more than one

y ear aft e r the date that Plai nti f f ’s c a u s e of action arose and is ther e fore time

- barr ed. De f endant

Russell additionally contends that even if Plaintiff’s ori g inal complaint is deem e d timel y

, the claims

a g ainst him in the amend e d complaint are bar r ed by the statute of limi t ations, and would not rel a te

back to the ori g inal complaint under R ul e 15 (c) of the F e der a l Rules of Civil Procedu r e bec a use

there was no mistake in naming the J ack D oe, M.D. d e fend a nt.

On t he evening befo r e oral ar g uments we r e conducted, P laintiff fi l ed a supplemental br i ef

that included exhib i ts pert a ining to SB0850, which is the bill that amend e d the Tenn e ssee statute at

issue in this m a t t e r

, Tenn. Code. Ann. § 28

- 1

- 106. DE 107. I n light of this last minute filing,

De f endants we r e permitted to file respons e s to Plaintif f ’s s upp l e m ental brief. DE 116, 120, 121.

Plaintiff filed a subsequ e nt reply that addr e ssed all three of these r esponses. DE 124.

5

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Plaint i ff advan c es s t ate law ar g uments in maintaining that there are materi a l issues of fact

about when the incident g iving rise to his claims occu r red and when the cause of action accr u ed.

Plaintiff further maintains that, simi l arl y

, the application of Rule 15(c) depends on a fa c tual inquiry

that is not appropriate for a motion for judgm e nt on the pleadin g s in this case.

ANALYSIS

Statute of Limita t ions

For § 1983 claims, the g overning statute of limi t ations is provided by the law of the state in

which the suit is brou g ht. Roberson v. Tennesse e

, 399 F.3d 792, 794 (6th Cir. 2005); see also W ilson

v. Garci a

, 471 U.S. 261, 275

- 76 (1985 ) . Tenn e ssee law provides a on e

- y ear statute of l imitations

for civil actions brou g ht under fed e ral ri g hts statutes. Tenn. Code Ann. § 28

- 3

- 104 ( a) ( 3); Roberso n

,

399 F.3d at 794; see also Hughes v. Vanderbilt Univ

. , 215 F.3d 543, 547 (6th Cir. 2000); Berndt v.

Tennesse e

, 796 F.2d 879, 883 ( 6th Cir. 1986).

Howev e r, for a § 1983 cl a im, the d a te on which the statute of limitations begins to run is a

question of fed e ral law. Kuhnle Bros., Inc. v. County of Geaug a

, 103 F.3d 516, 520 (6th Cir. 1997).

Under fed e ral law, the statute of limi t ations ac c rues when the plaintiff knows or has re a son to know

of the injury that forms the basis of his a ction. I d

. This inquiry is objective, and the court looks to

what event sho ul d h ave ale r ted the t y pical or ave r a g e lay person to prote c t his ri g hts. Hughes v.

Vanderbilt Universit y

, 215 F.3d 543, 548 ( 6th Cir. 2000).

Objectivel y

, the events desc r ibed in Plaintiff’s complaint would have ale r ted the t y pical lay

person that he had a cause of action. P l a i n ti ff a r g ues that this does not end the inquiry in this

particul a r cas e

, howev e r, bec a use his amend e d complaint states that the events occu r red on or about

6

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Au g ust 21, 2013. DE 10 at ¶ 10. Despite this alle g ation, Plaintiff later admitted in response to

De f endant City of F r anklin’s motion for summary judgm e nt that the re c ords indicate that the events

g iving rise to the complaint occu r red exactly on Au g ust 2 1

, 2013. De f endant City of F r anklin’s

statement of undisputed mater i al f a cts submits that the rel e vant medical re c ords indicate that

Plaintiff was admitted to and dischar g ed from Wi l liams o n M edical Center on Au g ust 21, 2013.

DE 73 at ¶¶ 29, 37

- 38. I nstead of responding to ea c h asse r ted statement of undisputed materi a l fa c t,

Plaintiff respond e d g ene r ally that “all statements in [Defend a nt C i ty of F r anklin’s] ‘Statement of

F a cts’, althou g h not ‘mate r ial’, are undisputed for purposes of ru li ng on the motion for summary

judgm e nt onl y .” DE 92 at 1. Plaintiff also conc e ded in his response to De f endant City of F r anklin’s

motion that the “incident alle g ed in his complaint occu r red on Au g ust 21

, 2013 .” DE 89 at 2.

A d d itionall y

, seve r al of the answ e rs filed on behalf of the City of F r anklin def e ndants st a t e t h a t

,

“[t ] his De f endant admits [Franklin Police Dep a rtment] Offi c ers encountered the Plaintiff on

Au g ust 21, 2013

. . . .” DE 31 at ¶ 10; DE 32 at ¶ 10; D E 34 at ¶ 10; D E 37 at ¶ 10; D E 38 at ¶ 10;

DE 39 at ¶ 10.

De f endant WM C ’s statement of undisputed mat e rial f a ct similarly states that Plaintiff was

taken to Wi l liamson Medic a l Center on Au g ust 21, and dischar g ed shortly ther e aft e r on Au g ust 21.

DE 63 at ¶¶ 1, 3. B e cause this document and other documents subm i tt ed b y D e f e nd ant City of

F r anklin we r e either red a cted or filed under seal, Plaintiff filed a motion requ e sting that, among other

things, these def e ndants “prop e rly serve all documents to the plaintiff, in uns e aled and unr e dact e d

form

. . . .” DE 79 at 1. The Court g rant e d this motion “to the extent that the def e ndants shall serve

plaintiff’s counsel with unred a cted versions of all filings filed under seal or filed with portions

7

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red a cted.” DE 87 at 2. Howev e r, even befo r e this order was ente r ed, counsel for De f endant WMC

provided counsel for Plaintiff with a copy of its statement of undisputed materi a l fa c ts. 1 There we r e

no red a cted po r tions in t his document. DE 63.

Nev e rtheless, Plaintiff appa r ently f ail ed to provide a response to De f endant WM C ’s

statement of undisputed materi a l fa c ts, in violation of L ocal Rule 56.01(c )

. The Court ther e fore

admits the statements contained ther e in, including the afo r ementioned statements that Plaintiff was

taken to and dischar g ed from Wi l liamson M e d i c a l C e n t er on Au g ust 21, 2013, as undisputed

materi a l fa c ts. See Simpson v. Bredes e n

, No. 2:10

- CV

- 02950

- J P M, 2015 WL 5655999, at *4 (W.D.

Tenn. Sept. 24, 2015), appeal dismissed (D e c. 14, 2015) (intern a l citations omitted) (“When a

nonmoving party fails to respond to a summary judgm e nt motion in the time fr a me set by the local

rules, district courts in the Si x th Circuit have la rg ely ‘conside r [ed] the [mov i ng part y ’s] statement

of mate r ial fa c ts to be undisputed for purpos e s of the instant motion of summary judgm e nt.’”).

Additionall y

, it is undisputed that Plaintiff called an attorney from the eme rg ency room aft e r

he had been transport e d there by police offic e rs to “ explain [ ] wh a t w as happenin g ” with resp e ct to

the blood a nd urine samples. DE 10 a t ¶ 15; DE 73 at ¶ 10; D E 92

. 2 By calling an attorney while

1 Plaintiff conc e ded that counsel for De f endant WMC provided this statement of undisputed

materi a l fa c t on J une 16, 2015 (DE 80 at 2), which was over one month befo r e the Court’s order was

ente r ed. DE 87.

2 Rec e ntly held oral ar g uments su gg est that most, if not all, of the parties to this lawsuit have

pivoted from their ori g inal positions re g arding Plaintiff’s competen c y on the date in question. I n his

amend e d complaint, Plaintiff claims that he “stron g ly denied being on any dru g s and cle a rly re f uted

any notion that he was i n n eed of medical tre a tment” to the offic e rs who detained him. DE 10 at

¶ 11. Plaintiff now cl a ims, however, th a t he “could not have known he was injured nor been a ble

to distinguish truth from fiction[. ] ” DE 91 at 8. As noted infr a

, the Court finds that, at a minimu m

, Plaintiff’s own desc r iptions in his amend e d complaint of first asking for an attorney and then calling

an attorney to explain “wh a t was happenin g ” (DE 1 0 at ¶) are objective indications that Plaintiff

r e co g nized the need to seek advice re g arding his ri g hts, notwithstanding any other fa c ts o r

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detained in the eme rg ency room, Plaintiff demonstrated (both objectively and subjectivel y ) that he

felt the need to prote c t his ri g hts. Finall y

, counsel for Plaintiff conc e ded during oral ar g uments that

there was no dispute that the events in question occu r red on Au g ust 21, 2013. The Court ther e fore

finds that there is no g enuine dispute that Plaintiff knew or had re a son to know of the alle g ed injury

forming the basis of this action on Au g ust 21, 2013. 3

cause of a c tion acc r ued on Au g ust 21, 2013

. 4 Ac c ordin g l y , the Court finds that Plaintiff’s

I n light of this findin g

, the Court turns to the crux of Plaintiff’s def e nse to both motions for

summary jud g ment and the motion for judgm e nt on the pleadin g s, which ar g ues that Plaintiff’s cause

of action was tolled until the following da y

, Au g ust 22, 2013, ther e by making his Au g ust 22, 2014

filing of the complaint a t i mely commenc e ment of t his action. The parties do not disp u te t hat t he

applicable statute of limi t ations for this action is o n e y e a r. DE 89 at 4, n.4. Plaintiff asse r ts,

howev e r, that bec a use he was initially deem e d incompetent upon admission to Wi l liamson Medic a l

Center on Au g ust 21, 2013 (DE 91 at 7

- 8), the statute of limi t ations is tolled until the following da y

.

cir c umstances surrounding Plaintiff’s admission to a n d t r e at m ent at Wi l liamson County Medic a l

Center. The Court finds that Plaintiff’s cur r ent position that there is no way of knowing if Plaintiff

even called an attorney or what Plaintiff m ay have discussed with an attorney is tortured be y ond

cr e dibili t y

.

3 For purposes of the motion for judgm e nt on the pleadin g s, the Court m a k es this finding

from Plaintiff’s amend e d complaint. See DE 10 at ¶ 15. For purposes of the motions for summary

judgm e nt, the Court makes this finding additionally from the undisputed fa c ts. See DE 73 at ¶ 10;

DE 92.

4 As noted, the Court makes this finding for purposes of both its consider a tion of the motion

on the pleadin g s and of the motions for summary judgm e nt. Nev e rtheless, to the extent that any of

the fa c ts discussed he r e i n are based on information outside the pleadin g s, which may ar g uably

oper a te to make De f endant Russell’s motion one f o r s u m m ar y judgm e nt rath e r than one for judgm e nt

on the pleadin g s, the Court notes that all parties had ample opportunity to pres e nt pertinent materi a ls.

See Northville Downs v. Granhol m

, 622 F.3d 579, 585 ( 6th Cir. 2010).

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Plaintiff corr ectly re c ites the rule that application of a state’s tolling statute is approp r iate in

a § 1983 cas e

, unless it would be inconsistent w ith the fed e ral policy underl y ing the § 1983 claim.

Bishop v. Children’s Center for De v elopment Enrichments

, 618 F.3d 533, 537 (6th Cir. 2010) (citing

Bd. of Regents v

. Tomani o

, 446 U.S. 478, 485 (1980)). The Supreme Court has h e ld that a state’s

decision to toll the statute of limi t ations during the period of a plaintiff’s disability does not frustr a te,

but instead enh a nces, the g oals of § 1983. Hardin v. Staub , 490 U.S. 536, 543 (1989).

Tenn e ssee law provides the following with resp e ct to the tolling of the statute of limi t ations

due to incompeten c y :

I f the person entitled to commence an action i s

, at t he time the cause of action

ac c rued

... adjudicat e d incompetent, such person

... may commence the action, aft e r

le g al ri g hts are restor ed

, within the time of limi t ation for the particul a r cause of

action, unless it exceeds three (3) y ea r s, and in that case within three (3) y ea r s from

restor a tion of le g al ri g hts.

Tenn. Code Ann. § 28

- 1

- 106. The individual must ther e fore have been “adjudic a ted incompetent”

at the time the c a use of a ction ac c rued in ord e r to toll the statute of limi t ations. 5

The phrase “adjudic a ted incompetent” in the cur r ent version of Tenn. Code Ann. §28

- 1

- 106

was added by amendment ef f

ective J uly 1, 2011, which repl a ced the phrase “of unsound mind” with

“adjudic a ted incompetent.” See 2011 Tenn. Pub. Act 47 § 17. By the same amendment, the phras e s

“le g al ri g hts are restor e d” repl a ced “the remov a l of such disabilit y ” and “r e storation of le g al ri g hts”

repl a c e d “ r e m o val of such disabilit y .” I d

. Plaintiff ar g ues that this amendment ef f

ect e d no

substantive chan g e in the law, and that the test for dete r mining whether an individual is incompetent

for purposes of tolling the statute of limitations remains the same a s under the p r ior version of the

5 Tenn. Code Ann. § 28

- 1

- 108 states that no person can claim use of a “disabilit y ” unless it

exi s ted when the ri g ht of a c tion acc r ued.

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statute; namel y , “wh e ther that individual was unable to m a na g e his or her da y

- to

- day af f

airs at the

time the cause of action ac c rued.” Sherrill v. Soude r

, 325 S. W .3d 584, 601 (Tenn. 2010). Plaintiff

contends that neither summary judgm e nt nor judgm e nt on the pleadin g s is approp r iate bec a use a

g enuine dispute exi s ts as to Plaintiff’s ability to mana g e his da y

- to

- day af f

airs on Au g ust 21, 2013.

The Tenn e ssee Supreme Court has established cle a r and p l a i n methods for interpr e ting

Tenn e ssee statutes:

When we interpr e t a statute, we must asc e rtain and g ive fu l l e f f

e ct t o the Gen e ral

Assembl y ’s i n t e n t

. W alker v. Sunrise Pontiac

- G M C Truck, Inc.

, 249 S. W .3d 301,

309 (Te n n

. 2008 ). Our primary conc e rn is to ca rry out this intent without unduly

expanding or restri c ting the lan g ua g e of the statute be y ond the le g islature’s intended

scope. Premium Fin. Corp. of Am. V. Crump Ins. Servs. of Me m p h i s

, I n c

. , 97 8

S. W .2d 91, 93 (Tenn. 1998). Fu r thermor e

, “[w]e presume that eve r y word in a

statute has meaning and purpose and should be g iven full ef f ect if so doing does not

violate the le g islature’s obvious intent.” State v. Casper

, 297 S. W .3d 676, 6 83

(Tenn. 2009 )

.

When the statutory lan g ua g e is cle a r and unambi g uous, we apply the plain meaning

of the statute. Eastman Chem. Co. v

. Johnso n

, 151 S. W .3d 503, 507 (Tenn. 2004).

When the lan g ua g e is ambi g uous, howev e r, we look to the “broa d er s t a t u tory

schem e

, t h e h istory of the le g islation, or other sourc e s to discern its meanin g .”

Casper

, 297 S. W .3d at 683. I n doing so, we must also presume t h at the Gen e ral

Assembly was aw a re of the state of the law at the time it ena c ted the statute at issue.

Id

. Finall y

, statutes rel a ting to the same subject or having a common purpose should

be construed tog e ther. Graham v. Caples

, 325 S. W .3d 578, 58 2 ( T e n n

. 2010)

(intern a l quotation marks omitted).

W

estgate Smoky Mountains at Gatlinburg v. Phillip s

, 426 S. W .3d 743, 478, No. E2011

- 02538

- SC

R

- 11

- CV, 2013 WL 6800368, at *4 (Tenn. De c

. 23, 2013). See al s o Ab e l s ex rel. Hunt v. Genie

Indus.

, 202 S. W .3d 99, 102 (Tenn. 2006) (“[E] x ceptions to a limi t ations statute in favor of persons

under disability should be strictly construed a nd never extended be y ond their plain import.”).

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The revised lan g ua g e in the tolling statute is cle a r and unambi g uous. The term “adjudic a ted

incompetent,” by any re a sonable in t erp r etation, m eans that the person must have been the s u b j ect

of judicial decl a ration that he was incompetent to handle his own af f

airs as a matter of law. See

Black ’ s Law Dictionary (9 t h ed. 2009) (“ a djudicate” means to “rule upon judiciall y ”). The

le g islature’s use of past tense and the phr a se “ a t the time the cause of action ac c rued” also cle a rly

requir e s that incompeten c y be decl a red prior to the injur y

- c a using event. See Amos v. Metro Gov ’ t

of Nashville a n d Davidson Cnty.

, 259 S. W .3d 705, 713 (Tenn. 2008) (“This Court re c o g nizes the

importance of verb tense in a [s t atutor y ] phras e .”). L ikewise, the use of th e ph r a s es “ a f t er le g al

ri g hts are restor e d” and “r e storation of le g al ri g hts” instead of “r e moval of such disabilit y ” evinc e s

a shift from a subjective standard to an objective one. See Casper

, 297 S. W .3d at 683 (ev e ry word

is presumed to have a me a ning a nd purpose )

.

Notwithstanding Plaintiff’s detailed and well

- r e asoned ar g uments, b o th t h e S i xth Circuit and

the Tenn e ssee Court of Appea l s h a v e dete r mined that the “adjudic a ted incompetent” lan g ua g e

contained in Tenn. Code Ann. § 28

- 1

- 106 requir e s a judicial decl a ration of incompeten c e to toll the

statute of l imitation s

. I n an unr e ported d e cision, the Si x th Circuit noted that the plain meaning of

“adjudic a te” means to “rule upon judiciall y ,” and thus found that the Tenn e ssee le g islature intended

to require a judicial dete r mination of incompeten c y and a subsequent “r e storation of le g al ri g hts”

befo r e the statute of limi t ations be g ins to run. Cobb v. Tennessee Valley Auth.

, 595 F. App’x 458,

459 (6th Cir. 2 014 ) ( c i t in g Black ’ s Law Dictionary (9th ed. 2009)). The Si x th Circuit ther e fore

af

f irmed the district court’s holding that, under Tenn e ssee law, the one

- y ear limi t ations period could

not be tolled without a judicial decl a ration of the subj e ct plaintiff’s incomp e tenc e

. I d

. at 460.

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I n a more re c ent decision, the Tenn e ssee Court of Appe a ls simi l arly found that a j ud i c i al

dete r mination is requir e d to toll the statute of limi t ations under Tenn. Code Ann. § 28

- 1

- 106 based

on a cont e x tual anal y sis of the statute:

[O ] ur revi e w of the statute at issue demonstrates that the mean i n g o f the phrase

“adjudic a ted incompetent” is cla r ified by th e surrounding lan g ua g e in the statute.

Specific a ll y

, the s tatute provides that the p l aintiff may commence the action “a f ter

le g al ri g hts are restor e d” within the applicable statute of limi t ations unless that time

ex c e e d s three yea r s and, in that cas e

, within three y ea r s “f r om restor a tion of le g al

ri g hts.” Tenn. Code Ann. § 28

- 1

- 106. Pursuant to nosicur [s i c] a soc i is

, the term

“adjudic a ted i n c o m p e t ent” must be re a d in conjunction with the other parts of the

statute that cle a rly contemplate a loss and restor a tion of “le g al ri g hts.” Undoubtedl y

, it is the courts, rath e r than ph y sicians, who can adjudicate an individual’s le g al ri g hts.

Johnson v. Uhs of Lakesid e

, LL C

, No. W2015

- 01022

- COA

- R3

- CV, 2015 WL 9426034, at *6 (Tenn.

Ct. App. De c

. 23, 2015). Additionall y

, and signifi c antl y

, the Court of Appe a ls dete r mined that this

re a soning was s uppo r t ed by a prior decision in which it held that the term “adjudic a tion of

incompeten c y ” re f er r ed to an order appointing a con s e r v a t o r s h ip, which “impl [ ied] that this term

denotes judicial action.” I d

. (citing Foster v. Allbrigh t

, 631 S. W .2d 147, 150 (Tenn. Ct. App. 1982)).

See also Efferson v. Stephen s

, No. M2014

- 00326

- COA

- R3

- CV, 2015 WL 544849, at *2, n.2 (Tenn.

App. F e b. 9, 2015) (“The curr ent version o f Tenn. Code Ann. § 28

- 1

- 106, ef f ective J uly 1, 2011,

requir e s an adjudication of i ncompeten c e to toll the s tatute of limi t ations. The 2007 version does

not.”).

Whi l e the Court finds that the lan g ua g e of the statute is cle a r, t o the extent any ambi g uity

exi s ts, the C o u rt ag r e e s with the Tenn e ssee Court of Appe a ls’ application of noscitur a sociis in

dete r mining the me a n i n g o f “adjudic a ted incompetent.” Tenn e ssee courts have fr e quently emplo yed

the interpr e tive max i m noscitur a sociis

– a word is known by the company it keeps

– to dete r mine

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the meaning of “questionable or doubtful” terms. City of G ood lettsville, Tenn. v. Priceline. c om, Inc

. ,

844 F. Supp. 2d 897, 905 (M.D. Tenn. 2012) (citing Sallee v. B ar r e t t

, 17 1 S. W .3d 822, 828

- 29

(Tenn. 2005)). See also Steppach v. Thoma s

, 346 S. W .3d 488, 507 (Tenn. Ct. App. 2011); Mahoney

v. Mahone y

, 186 F. Supp. 636, 638 (E.D. Tenn. 1960); State v. Be e ler

, 387 S. W .3d 511, 524 (Tenn.

2012) ( “[ W] o r d s a r e known by the company they keep. ” ) (citation omitted). For this additional

r e a s on

, t o toll the statute of limi t ations, Tenn. Code Ann. § 28

- 1

- 106 requir e s that “a plaintiff’s

mental incompeten c y must have been judicially adjudicat e d at the time his cause of action ac c rued.”

Johnso n

, 2015 WL 9426034, at *7.

I n his reply brief, Plaintiff ar g ues that this re a soning is flaw e d based on discussions that took

place befo r e the Tenn e ssee Gen e ral Assembl y

. Plaintiff quotes the statements of multip l e state

senators and rep r esent a tives in support of his contention that the purpose of the amendment to Tenn.

Code Ann. § 28

- 1

- 106, which introduced the terms “ a djudicated incomp e tent” and “ restor a tion of

le g al ri g hts” to the statute, was “me r ely to chan g e lan g ua g e” that was off e nsive to ce r tain g roups of

people. DE 124 at 2. This includes statements that the a mendment was intend e d only to “r e place

outdated l an g ua g e with person

- cent e red lan g ua g e,” and that the amendment “has no chan g e of

polic y .” I d

.

Plaintiff finds merit for his ar g uments bec a use the statements made by various members of

the Tenn e ssee Gen e ral Assembly re g arding the subject amendment are at best confusing in light of

the decision to use the term “adjudic a ted” in the amendment, which cle a rly su gg ests the involvement

of the judicia r y

. Howev e r, as noted by the Si x th Cir c uit, the plain meaning of “adjudic a te” me a ns

to “rule upon judiciall y .” Cob b

, 595 F. App’x at 458 (citing Black ’ s Law Dictionary (9th ed. 2009)).

The Court also notes that Webster’s New World College Dictionary holds “adjudic a te” to mean “to

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hear or decide a case” or “to serve as a judg e

. ” 6 Sim i larl y

, Oxford En g lish Dictionar y

, which the

Supreme Court of the U nited States has identified as “one of the most authoritative” dictionaries

, 7

def i n es “adjudicate” in the fol l owing wa y : “[t ] o pronounce or decree by judicial senten c e, or by a

simi l ar le g al or offici a l rulin g

. ” 8 These definitions are signifi c ant bec a use, as noted by the Tenn e ssee

Court of Appe a ls, the term “adj u d i cat e d incompetent” is not defin e d in Title 28 of the Tenn e ssee

code. Johnso n

, 2015 WL 9426034, at *5.

That “adjudic a ted incompetent” is le g ally distinct from “unsound mind” is further supported

by the le g islature’s shift from “a f ter t h e remov a l of such disabilit y ” to “a f ter le g al ri g hts are

restor e d.” One can be of unsound mind or “incompet e nt” y et never have lost any le g al ri g hts subject

to restor a tion.

Finall y

, Plaintiff’s contention that comments by members of the Gen e ral Assembly

demonstrate that the amendm e n t m erely rev a mped terminolo g y without re c asting le g al ri g hts is

unavailing bec a use, as noted by the Tenn e ssee Court of A ppeals:

We must be cautious about consulting le g islative histor y

. A statute’s meaning must

be g rounded in its tex t

. Thus, comments made during the G e n e r al Assembl y ’s

debat e s cannot provide a basis for a construction that i s no t rooted in the statute’s

tex t

. W hen a statute’s t e x t and the comm e nts made during a legislative debate

diverg e , the text c ontrol s

.

Midwestern Gas Transmiss i on Co. v. Bak e r

, No. M 2005

- 00802

- COA

- R3

- CV, 2006 WL 461042,

at *4 (Tenn. Ct. App. F e b. 24, 2006) (emph a sis added )

. 9 Considering the plain lan g ua g e and entire

(2012). 6 W ebster’s New W orld Col l ege D ictionary 18 (5th ed. 2014).

7 Taniguchi v. Kan Pac. Saipan, Ltd

. , U.S.

, 132 S. Ct. 1997, 2003, 182 L

. Ed. 2d 903

8 “adjudic a te, v.” OED Onlin e . Oxford University Press, Mar c h 2016.

9 Notabl y

, the T e n n e ss ee C o urt of Appe a ls in Johnson held that the plain lan g ua g e of the

statu t e s upp li es t he answ e r to the question of whether a judicial adjudication of incompeten c y is

requir e d under the revised lan g ua g e of the tolling statute, despite the invitation of the plaintiff in that

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context of the toll i ng statute, and the dire c tives of Tenn e ssee c ourts for c onstruction of Tenn e ssee

statutes, the C ourt declines to rely on the l eg i sl a t i v e h i story of Tenn. Code Ann. § 28

- 1

- 106, and

finds that Plaintiff’s ar g ument must therefo r e f a il.

Reading Tenn. Code Ann. § 28

- 1

- 108 in conjunction with the cur r ent version of Tenn. Code

Ann. § 28

- 1

- 106, Plaintiff’s mental incompeten c y must have been judicially adjudicat e d at the time

his cause of action ac c rued. Plaintiff was not “adjudic a ted incompetent” for purposes of the tolling

statute at the time of ac c rual of his c ause of action, and thus had one year from Au g ust 21, 2013 in

which to file su i t

. 1 0 Bec a use P laintiff failed to do so, this case is untimely and mu s t be di s missed.

De f endants a re th e re f ore e ntitled to judgment as a matter of l a w.

Ce r tification to Ten n essee Su p re m e Court

Plaintiff in this matter has also requ e sted that the Court ce r tify the question of whether a

judicial dete r mination is requir e d for an individual to have be e n “adjudic a ted i ncompetent” under

Tenn. Code Ann. § 28

- 1

- 106. “The decision whether or not to utili z e a ce r tification proc e dure lies

case to look to the legislative histor y

. Johnso n

, 2015 WL 9426034, at *6.

1 0 Plainti f f additionally ar g ues in his response to De f endant City of F r anklin’s motion for

summary judgm e nt that bec a use De f endant Russell “ adjudicat e d [ P laintiff] a s incompetent

. . . the

tolling of the statute of limi t ations was tolled f or at least 24 hours.” DE 91 at 9. Wi t hout c iting to

a specific statute, he ar g ues that this twent y

- four hour period dela y ed the running or commenc e ment

of the statute of limi t ations until the following da y

, Au g ust 22, 201 3. I d

. Notabl y

, the Tenn e ssee

Court of Appe a ls expressly admonished that adjudication of incompeten c y is for the courts, not

ph y sicians. Johnson v. Uhs of Lakesid e

, LL C

, 2015 WL 9426034, at *6 (“ U ndoubtedl y

, it is the

courts, rath e r than ph y sicians, who can adjudicate an individual’s le g al ri g hts.”). Moreov e r, Tenn.

Code Ann. § 33

- 6

- 414, which appe a rs to be the statute upon wh i ch Plaintiff relies, states that an

admitting medical fa c ility may hold the individual in question for “not more than twent y

- four (24)

hours

. . . .” He r e, Plaintiff was dischar g ed shortly aft e r being admitted on Au g ust 21, 2013. DE 60

at 3

- 4; DE 63 at ¶ 3; DE 69 at 2

- 3. The C ou rt f i n d s n o s u pport in either the tolling statute or the

involuntary admissions statute for P l aintiff’s posi t ion that the running of the statute of l imitations

was tolled until the following d a y

.

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within the sound discretion of the district court.” Transamerica Ins. Co. v. Duro Bag Mfg. Co

. , 50

F.3d 370, 372 (6th Cir. 1995). F e der a l courts will not g ene r ally “trouble our sister state courts eve r y

time an ar g uably unsettled question of state law comes ac r oss our desks.” Pennington v. State Farm

Mut. Auto. Ins. Co.

, 553 F.3d 447, 450 (6th Cir. 2009) (citation omitted). He r e, the Court’s decision

is based on well

- e stablished principles of statutory construction as well as consistent opinions from

both the Si x th Circuit and the Tenn e ssee Court of A ppeals. The qu e stion is not unsettled, and the

Court there f ore d e clines to c e rtify this question to t he T e nnessee Supreme Court.

CONCLUSION

The Court understands the seemin g ly harsh nature of this rulin g

, and is not without s y mpathy

that it leav e s Plaintiff without a rem e dy for the brutal indignities he suff e red bec a use of a limi t ations

period missed by one da y

. Howev e r, the Court is not p e rmitted to a llow s y mpathy to e nter into its

decisions on matters of law. Johnson v. U.S. Postal S e rv

. , 863 F.2d 48 (Tabl e ), 1988 WL 122962,

at *3 (6th Cir. Nov. 16, 1988) (“ I f courts we r e to toll the limi t ation period when e ver a plaintiff was

on e d ay late, the ef f ect would be to cr e ate a [one

- year and one da y ] limi t ation period. ” ). See al s o

Baldwin C ty. W elcome Ctr. v. Brow n

, 466 U.S. 147, 152, 104 S. Ct. 1723, 1726, 80 L . Ed. 2d 196

(1984) (“Pro c edur a l requir e ments

... for g aining ac c ess to the fed e ral courts are not to be disre g ard e d

by courts out of a va g ue s y mpathy for p a rticular liti g ants.”).

B a sed on the for eg oing, the motions for summary judgm e nt filed by De f endants WMC

(DE 65) and City of F r a n k li n (DE 68) are GRANTED. B e cause the Court has found no materi a l

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issue as t o when the statute of l imi t a t ions be g an to run, Defend a nt Russell’s motion for judgment

on the pleadin g s (DE 75) is a lso GRANTED.

An app r opriate O rder will follow

. 1 1

B A RBARA D. H O L MES

United States Ma g istrate Judge

1 1 The Court declines to a d d r es s De f endants’ ar g ument that Plaintiff was requir e d to

af

f irmatively plead an exception to the limi t ations statute, except to say there is su p p ort for that

position in this cas e

. See e.g. Reid v. Bak e r

, 832 F.2d 354, 356 (6th Cir. 1987) (wh e n the court can

dete r mi n e f r o m t h e complaint that the period for brin g ing an action has expired, a plaintiff must

af

f

i r m a t i vely plead an exception to the l imitations statute). Fu r ther, because De f endant Rus s ell’s

motion for judgm e nt on the pleadin g s is g rant e d based on the untimeliness of t hi s action, it is

unnec e ssary to re a ch the F ed. R. Civ. P. 15(c) issues rais e d by De f endant Russell.

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