NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 11a0789n.06 No. 10-5591 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

J OHN PARTEE and F ANNI E PARTEE, husband and w ife, Plaintiffs-Appellants,

v. CI TY OF MEMPHI S, TENNESSEE, Def endant- Appellee

.

______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATE S DI STRI CT COURT FOR THE WE S TERN DI STRI CT OF TENNESSEE OPI NI ON

Before: G ILMAN and KETHLE DG E, Circuit Judges; and L UDING TON, District Judge. * RONALD LEE GILMA N, Circuit Judge. Jo h n Pa r tee was arr ested by Tommy L

. Callahan,

an off- duty City of Memphis police office r, afte r the vehicle that Partee was driving alleg edly came into contact with a tra iler that Callahan was t owing

. Partee and his wife F annie sue d Callahan a nd the City of Memphis for violating 42 U.S.C. § 1983 and for committing sever al state-law torts during the ar rest that alleg edly

cause d injury

to Partee. The district court g rante d the City ’s pretria l motion to dismiss all of the Partee s’ state-law tort claims ag ainst the municipality , holding that t h e C i t y reta ined immunit y from such claims under Tenne ssee’ s Gover

nmental Tort L i ab i l i t y Act (GTL A). But the district court allowed the Partee s’

The Honora

ble Thomas L

. L udington, United States District J udg e for the Easter n District * of Michig an, sitting by

desig nation.§ 1983 claims ag ainst both defe ndants and their state-law tort claims ag ainst Callahan to proce ed to

trial befor e a jury

. A verdic t was rende red by the jury in favor of Callahan and the City afte r the court direc ted a ve rdict in favor of Callahan on the nonintentional tort claims. The Part ee s have limit ed their appea l to the issue of whether the district court err ed in dismiss ing the Partee s’ GTL A claims ag ainst the City under Rule 12(b)( 6) of the Fe dera l R ules of Civil Procedur e. F or the re asons set for th below, we AF F IRM the judg ment of the district cour t. I. BACKG ROUND On April 5, 2007, Partee and Callahan wer e both trave ling southbound on Plo ug h Road in Memphis, Tenne ssee when Partee ’s vehicle alleg edly came into contac t with the trailer that Callahan

was towing. Partee continued driving

. Callahan believed that Partee had committed a misdemeanor offe nse by failing to stop. As part of his training with the City of M emphi s Police Depa rtment, Callahan beg an following Partee ’s vehicle with his own and contac ted the police department’s dispatcher to repor

t the allege d crime. Callahan ide n t i fi ed h i m self to the di spatche r as an off-duty office r and pr ovided his badg e number

. I n addition to rec ounting the details of t he mi sdemea nor, C allahan i n fo rm ed the dispatcher that Partee appea

red to be driving under the influen ce o f al co hol. Callahan said that he would continue to follow Partee

. The dispatcher broadc ast th i s information to local law-e nforc ement office rs. Callahan followed Partee for sever al miles, providing periodic updates on Partee ’s location and driving behavior

. Partee ultimately arr ived at his h o m e o n Aquar ius Avenue in southeast Memphis. When Partee pulled into the drivewa y , Callahan stopped his own vehicle in front of the residenc e and exit ed. Callahan’s Memphis Police Depa rtment badg e was clipped conspicuously onto his belt. The Partee s’

-2-complaint alleg es that C allahan drew his officia l service wea pon as he approa ched Partee ’s car , identified himself as an office r with the Memphis Police Depa rtment, and order ed Partee to step out of the car . Wit hout w aiting for Partee to c omply , Callahan alleg edly opened the driver’ s side door, unbuckled Partee ’s seatbe lt, struck Partee in the fac e with the handg un, and threw Partee to the g round. Callahan, a ccor ding to the c omplaint, then lifted Partee’ s head and slammed his fac e onto the drivewa

y . He alleg edly held Partee there until two on-duty Memphis police office rs arr ived with

a patrol car to transport Partee to the police station. Partee was issued a misdemeanor citation—under Callahan’s badg e number—for leaving the scene of an acc ident, driving under the influence , rec kless driving , and public intox ication. Some time there after, t h e Memphis Police Depa rtment’s I nspectional Service s Bur eau

commence d an investiga

tion into the events surrounding Partee ’s arr est. I t deter mined that Callahan had violated de p a

r tm e n ta l disciplinary policies conce rning compliance with reg ulations, truthfulness, and excessive forc e/abuse

. The City of Memphis later held a disciplinary hear ing on the same topic, finding that Callahan violated only the excessive for ce/a

buse re g ulation. Acc ording to the Partee s, the City failed to consider Callahan’s full disciplinary rec ord when it imposed a punishment limit ed to three months of suspended insurance benef its and three extra service day s per month for th ree months. The Partee s’ complaint was orig inally filed in state court, but it was remove d to fede ral court by the City

. As amende d, it se ts f orth claims ag ainst Callahan and the City under 42 U.S.C. § 1983 and alleg es that the City ’s immunit y is waived by the GTL A. See Tenn. Code Ann. § 29-20-205. I t

asser ts violations of Partee ’s Four th and Four

teenth Amendment rig hts, as well as the state-law torts of assault and battery , neg lige nce, neg lige nt infliction of emotional distress, and intentional infliction

-3-of emotional distress/outrag eous conduc t. The complaint spec ifically alleg es t hat t he C ity is liable both for Callahan’s tortious conduct and for the City ’s own acts in “neg lige ntly scre en[ing], hir[ing], train[ing], monitor[ ing], supervis[ing], controll[ ing], assig n[i ng ], i nvestig at[ing] and disciplin[ ing] De fe n dant Callahan and other office rs of the MPD which made the misconduct

. . . a for es ee ab l e result of the MPD’s wide sprea d and sy stemic defic iencies.” The City filed a motion to dismis s the P arte es’ complaint. I n partially g ranting the motion, the district court conclude d that the state-law tort claims did not fall within the City ’s waiver of immunit y as set forth in the GTL A. The GTL A, the court not ed , ex p l i ci t ly excludes civil rig hts violations from the statute’s otherwise blanket waiver of immunit y for suits arising out of neg lige nt conduct by g overnme nt employ ees. Desc ribing the Partee s’ suit as “funda mentally a civil rig hts suit” that fell within the GTL A’s express rese rvation of immunit y , the court dismiss ed all of the state-law claims ag ainst the City

. Trial commence d in November 2009 on the Partee s’ § 1983 claims ag ainst both Callahan and the C ity , and on the s tate-la w t ort claims ag ainst Callahan only

. During the t rial, t he court g rante d

a direc ted verdic t f

or Callahan on the state-la w neg lige nce c laims, determining that the Partee s had prese nted insufficient evidenc e to support a jury verdic t in their favor on these counts. But the court allowed the intentional tort claims to proce ed. The jury subsequently returne d a verdic t finding that Callahan had not used excessive forc e or comm itted any of the alleg ed intentional torts. After deny ing the Partee s’ motion for a new trial, the district c ourt enter ed judgme nt f or both defe ndants. The Partee s now appea l from the district court’s pretria l order dismiss ing their state-law tort claims ag ainst the City

. They do not appea l from the jury ’s verdic t in favor of both defe ndants on the

-4-§ 1983 claims and in f avor of Callahan on the state-law intentional tor t c laims, or from the direc ted verdic t in favor of

Callahan on the state -law ne g lige nce c laims.

II. ANALYSIS A. Stand ard of review We revie w de novo the district court’s decision to g rant a motion to dismiss for failure to state

a claim under Rule 12(b)( 6) of the Fe dera l Rules of Civil Procedur e. Lambert v. Hartman , 517 F.3d 433, 438-39 (6th Cir. 2008)

. When de ciding such a motion, a court must c onstrue the complaint in the light most favor able to the plaintiff and acc ept all fac tual alleg ations as true. Id. But “[t] o survive a motion to dism iss, a complaint must contain sufficient fac tual matter, acc epted as true, ‘ to state a claim to relief that is plausible on its fac e.’” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 570 (2007)). B. Gove rnm ental Tort Liabili ty Ac t The GTL A waives the i mmunity of st ate e n t i t i es fr o m suit and permits litigants t o sue “for injury proxi mately cause d by a neg lige nt act or omission of any employ ee within the scope of his employ ment.” Tenn. Code Ann. § 29-20-205. “When i mmunity is remove d by this chapter[,] any claim for damag es must be broug ht in strict compliance with the terms of this chapte r.” Tenn. Code Ann. § 29-20-201( c); see also Ezell v. C ockre ll , 902 S.W .2d 394, 399 (Tenn. 1995) (“[S ] t atutes i n derog ation of the c ommon law are to be st rictly construed and confined to their ex press terms, and that rule of construction has been expressly incorporated into the [GTL A]

. . . .” (interna l citation omitted)). The GTL A permits the Partee s to bring suit direc tly ag ainst the City “for injury proxi mately

cause d by

. . . neg lige nt act[s] or omission[ s]” that might have been committed by Offic er Callahan

-5-while arr esting Partee , provided that the Partee s’ claim avoids any of the statutory exceptions under

which the City reta ins immunit y . See Tenn. Code Ann. § 29-20-205; McKenna v. City of Mem phis , 544 F. Supp. 415, 4 1 9 (W

. D. Tenn. 1982) (conc luding that the GTL A “only restore s municipal immunit y for civil rig hts claims as such, not those for neg lige nce as a matter of common law”) , aff’d , 785 F.2d 560 ( 6th Cir. 1986). There is no cause of action set forth in the GTL A to hold the City direc tly liable for Callahan’s alleg ed intentional conduct during Partee’s ar rest. See Tenn. Code Ann. § 29-20-205 (re moving i m m u n i t y o nly for neg lige ntly cause d injuries). On the other hand, the neg lige nt act of any cit y employ ee wh o h i re d , supervised, or disciplined Callahan can be attributed t o the C ity and serve as

a permissible basis under the GTL A for liability ag ainst the City

. See Limbaugh v. Coffee Med. Ctr. , 59 S.W .3d 73, 76 (Tenn. 2001) (holding that an em p l o y er wa s not entitled to immunit y under the GTL A “where the i njuries at issue wer e proximately cause d by

its neg lige nce in failing to exercise

rea sonable car e to protec t [t he plaintiff] from the fore seea ble risk of an employ ee’ s intentional assault and battery ”); see also Baines v. W ilson Cnty. , 8 6 S

. W

. 3d 575, 580-81 (Tenn. Ct. App. 2002) (dec lining to g rant immunit y for the County ’s acts o f “n egl ige ntly allowing an employ ee . . . to intentionally cause [t he plaintiff’s] injury ,” but noting that the claim failed in any event beca use the plaintiff had “made no claim that W i l s o n C o u n ty was neg lige nt in hiring , training , supervising , or reta i n i n g [ i t s employ ee]”). This would allow rec overy from the City even though the immediate

source of Partee ’s alleg ed injuries was the purported intentional conduct by Callahan. See Nolan v. Mem phis City Schs. , 589 F.3d 257, 271 (6th Cir. 2009) (ac knowledg ing the GTL A-ba sed cause of action that could hold a c ity liable for a

n employ ee’ s intentional conduct).

-6-I n order to withstand the City ’s motion to dismiss , the Partee s’ complaint must plead eac h

element of a neg lige nce claim: duty , brea ch, causa tion in fac t, proxi mate causa tion, a nd harm. See Morrison v. Allen , 338 S.W .3d 417, 437 (Tenn. 2011) (set t i n g o u t t he elements of a neg lige nce claim). The Partee s must also alleg e that the City was on notice of the fore seea ble risk of harm that Callahan prese nt ed t o t h e public. See Limbaugh , 59 S.W .3d at 84 (noting that the assault was a fore seea ble conseque nce of the employ er’ s failure to take rea sonable prec autions to protec t residents in its nursing home); Moore v . Houston Cnty. B d. of E duc. , No. M2010-02166-COA- R3-CV, 2011 WL 3715125, at *5-6 (Tenn. Ct

. Ap p. Aug

. 23, 2011) (discussing t he foresee ability require ment). But any independe nt neg lige nt act by the City will not be a source of liability if it fa l l s wi t h i n t h e exceptions to suit listed in S ection 29-20- 205 of the Te nnessee Code. The exception rele vant to the p re s ent case —colloquially ref err ed to as the “intentional tort exception,” see Limbaugh , 59 S.W .3d at 79—func tions to preserve g overnme ntal immunit y “if the injury arises out of

. . . civil rig hts.” Tenn. Code Ann. § 29-20-205( 2). This ref ere nce to “civil rig hts” has been interpre ted to include claims arising under the U. S

. Constit ution and 42 U.S.C. § 1983. Johnson v. City of

Mem phis , 617 F.3d 864, 872 (6th Cir. 2010). A neg lige nce claim falls within this exception wher e “the same circ umstances g iv[ e] rise” to both the neg lige nce and civil rig hts claims. Id. Stated another way , the GTL A “pre serve s immunit y for suits claiming neg lige nt injuries arising from civil rig hts violations.” Id. C. District

court’ s disp osition of

the G TLA claim s against the City As an in i tial matter, the Partee s arg ue that the City waived its immunit y from suit when it

remove d this matter to fede ral court. They support their arg ument with an analog y to a state’s waiver of Eleventh Amendment immunit y when it voluntarily remove s a state-c ourt case to a fede ral forum.

-7-See Lapides v. Bd. of Regents of Univ. Sy s. of Ga. , 535 U.S. 613, 623 (2002) (holding that a state’ s

re moval of a state-c ourt lawsuit to fede ral court constitutes a waiver of the state’ s E l ev en t h Amendment immunity ). B ut cities do not r ece ive protec tion unde r the Eleventh Amendment as do states, and the Partee s have failed to ex plain how the constitutional principles animating sovere ign immunit y might apply to a city ’s asser tion of state-law statutory immunit y . We the ref ore reje ct the Partee s’ waive r-by -re moval arg ument. Wit h respe ct to the merits of the appea l, we aff irm the district court’s decision to dismiss the

n egl i gen ce claims ag ainst the City that wer e based direc tly on Callahan’s conduct while arr estin g Partee

. T h e d i s trict court corr ectly conclude d that these claims arise out of exactly the same circ umstances as the Partee s’ civil rig hts claims , thus falling within the exception to the waiver of immunit y set forth in the GTL A. See Johnson , 617 F.3d at 872; Tenn. Code Ann. §§ 29-20-205( 2), 29-20-310( a). We also aff

irm the district court’s dismiss al of the Partee s’ claim ag ainst the City for neg lige nt hiring , supervision, and discipline (the neg lige nt-hiring claim), albeit on a differ ent g round than that articula ted by the court below

. The basis for the district court’s decision on this issue was that the Partee s’ action was “funda mentally a civil rig hts suit” that fell within the GTL A’s express rese rvation of immunit y for the City

. See Tenn. Code Ann. § 29-20-205. As suppor t for its decision, the court relied on three unrepor

ted district court opinions, none of which cite a Tenne ssee state-c ourt opinion

so interpre ting the GTL A. See Uhuru v. City of Mem phis , No. 08-2150-V, 2008 WL 4646156 (W.D. Tenn. Oct. 17, 2008) (unpublished opinion); Rhodes v. City o f Ch a tt a n o o g a, Tenn. , No. 1:04-CV-045, 2005 WL 2647921 (E.D. Tenn. Oct. 14, 2005) (unpublished opinion); Hale v. Randolph , No. 1:02- CV-334, 2004 WL 1854179 (E.D. Te nn. J an. 30, 2004) ( unpublished opinion).

-8-The district court, however, did not parse the GTL A issue on a claim-by -cla im basis, and

there fore did not consider the distinction betwee n a cause of action based on Callahan’s conduct in

arr esting Partee and one based on alleg ations o f t h e C i t y ’s independe ntly neg lige nt acts in hiring , supervising , or disciplinin g t h e office r. A claim of the former ty pe is analy

tically differ ent from a

c la im th a t th e Ci ty ’s own neg lige nce proxi mately cause d the Partee s’ harm, which ultimately occur red throug h Callahan’s alleg edly fore seea ble acts. Some of the circ umstances prec ipitating the neg lige nthiring and civil rig hts claims—specif ically Partee ’s arr est by Callahan—a re clea rly identical. But the Partee s’ neg lige nt-hiring claim nece ssarily includes other circ umstances that prec eded the arr est and

are temporally and factually distinct, including Callahan’s hiring, the training he re ceive d, and any previous disciplinary

problems he pr esente d. The Tenne ssee state courts have not expli citly deter mined whether the limit ed fac tual overla p betwee n these claims would be sufficie nt to rende r the City immune from the neg lige nt-hiring claim under the GTL A. Gene rally , in such a situation, the court should “pre d i ct h o w t he state’s highe st court would interpre t the statute.” Fed. Deposit Ins. Co. v. Stables , 573 F.3d 289, 298 (6th Cir. 2009). But wher e interpre tation of the state-law issue is not nece ssary in order to proper ly resolve the appea l,

we find it advisable not to do so. See Brown v. The Raymond Corp. , 432 F.3d 640, 650 (6th Cir. 2005) (Ry an, J ., concur

ring ) (“[I ]f a fe dera l court exercising its diversity jurisdiction can proper ly decide the case befor e it without decla ring a n ew ru l e of state law—for example, interpre ting a provision of a state st atute not previously interpre ted by the s tate’s highest c ourt—it should do so” in order to abide by “settled and familiar principles of state/fede ral judicial defe renc e” and avoid issuing an “opinion that is entirely dicta .”); see also W hite v. Olig , 56 F.3d 817, 821 (7th Cir. 1995)

-9-(dec lining to rea ch the state-law issue beca use it was “super fluous,” g iven the court’s dismiss al of other pre dicate issues)

. Her e, we have no need to decide the rea ch of the GTL A’s “intentional tort exception” to the fac ts of this case beca

use the Partee s have not disputed on appea l the direc ted verdi ct i n fa vor of Callahan on the neg lige nce claims or the jury ’s verdic t in favor of him on the intentional claims. The Partee s’ inability to prove that Callahan’s conduct, whether neg lige nt or intentional, was actionable is thus the law of the case . See Moses v. Bus. Card Ex p., Inc. , 929 F.2d 1131, 1137 (6th Cir. 1991) (explaining that, under the law-of -the-c ase doc trine, “w hen a c ourt dec ides upon a rule of l aw, that decision should continue to g overn the same issues in subsequent stag es in the same case .” (interna l quotation marks omitted)). Wit ho u t ac t i o n able harm committed by Callahan, the Partee s cannot support a claim for neg lige nce ag ainst the City

. See W illiams v. City of Grosse Pointe Park , 496 F.3d 482, 488 (6th Cir. 2007) (dec lining to hold the city liable for the office r’s conduct afte r deter mining that the conduc t was re asonable ). I n s u m, w e d e c li n e to d e te rmine whether the additional circ umstances require d for a succe ssful neg lige nt-hiring claim—circ umstances bey ond those involved in Partee ’s arr est—would remove this claim from the civil rig hts exception to suit in the GTL A. Such a deter mination is unnece ssary due to the dispositi on of the underly ing claims ag ainst Callahan at trial. Thus, whether the district court’s interpre tation of the GTL A is corr ect or not need not be de cided on this appe al. III. CONCLUSION For all the re asons set for

th above, we AF F IRM the judg ment of the district cour t.

-10-