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Case No: 15-6085

In the

United States Court of Appeals

For the Sixth Circuit
_________________
KEVIN CARNETT
Plaintiff - Appellant
v.
WBBJ-TV, ET AL.
Defendants - Appellees
On Appeal from the United States District Court Western District of Tennessee
Case No. 14-cv-01309
________________________________________________________________

BRIEF OF APPELLEES
SHERIFF BLAIR WEAVER, CHESTER COUNTY, TENNESSEE,
MADISON COUNTY, TENNESSEE, DAVID LEE WOOLFORK,
AND JEFF FITZGERALD
________________________________________________________________

JON A. YORK (#23106)

KIRSTIN E. HARPER (#33256)
PENTECOST & GLENN, PLLC
106 Stonebridge Blvd, Jackson, TN 38305
Telephone: (731) 668-5995 Facsimile: (731) 668-7163
Counsel for Defendants Appellees

ORAL ARGUMENT WAIVED

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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................. i
TABLE OF AUTHORITIES .......................................................................... ii
STATEMENT OF JURISDICTION ............................................................. 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .................. 1
STATEMENT OF THE CASE ...................................................................... 1
STATEMENT OF FACTS ............................................................................ 4
STANDARD OF REVIEW ........................................................................... 5
SUMMARY OF THE ARGUMENT ............................................................ 6
ARGUMENT ................................................................................................. 8
CONCLUSION ............................................................................................. 18
CERTIFICATE OF COMPLIANCE ............................................................ 19
CERTIFICATE OF SERVICE ..................................................................... 20
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ... 21

i.

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TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ......................................5, 6
Asher v. Unarco Material Holding, Inc., 596 F.3d 313 (6th Cir. 2010) ....................9
Banks v. City of Whitehall, 344 F.3d 550 (6th Cir. 2003) ........................................8
Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Servs., 481 F.3d
337 (6th Cir. 2007 ...................................................................................................8
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................6
Bessent v. Dyersburg State Cmty. College, 415 F. Supp. 2d 874 (W.D. Tenn. 2006)
..............................................................................................................................12
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995) .......................6
Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008) ......................................................12
Fox v. DeSoto, 489 F.3d 227 (6th Cir. 2007) ..........................................................14
Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009) ...................................................6
Hughes v. Vanderbilt Univ., 215 F.3d 543 (6th Cir. 2000) .......................................8
In re Kent Holland Die Casting & Planting, Inc., 928 F.2d 1448 (6th Cir. 1991) ....9
Matthews v. Jones, 35 F.3d 1046 (6th Cir. 1994)....................................................11
Moore v. Lafayette Life Ins. Co., 458 F.3d 416 (6th Cir. 2006) ...............................8
Robinson v. Tenn., 399 F.3d 792 (6th Cir. 2005) ......................................................8
Spurlock v. Satterfield, 167 F.ed 995, 1000 (6th Cir. 1999) .....................................5
ii.

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Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010) ...................................................13

Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478 (6th Cir. 2009) ...................6
Turner v. City of Taylor, 412 F.3d 629 (6th Cir. 2005) ..........................................12
United States v. Walters, 638 F.2d 947 (6th Cir. 1981) ................................... 10, 17
Will v. Mich. Dept of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45
(1989) ....................................................................................................................11
Wolfe v. Perry, 412 F.ed 707 (6th Cir. 2005) ............................................................8
Statutes
28 U.S.C. 1291 ........................................................................................................1
42 U.S.C. 1983 ............................................................................. 1, 7, 8, 11, 12, 13
Tennessee Code Annotated 28-3-104 .....................................................................8
Rules
Fed. R. Civ. P. 15 ................................................................................................ 9, 10
Fed. R. Civ. P. 12 ...................................................................................... 5, 7, 11, 18

Other Authorities
Fourth Amendment, U.S. Constitution .1, 7, 13, 14

iii.

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STATEMENT OF JURISDICTION
Appellant-Plaintiff Kevin Lee Carnett filed this appeal on September 29,
2015, from the final judgment of the United States District Court for the Western
District of Tennessee entered on September 25, 2015. (R.E. 90, Judgment, Page ID
#820; R.E. 91, Notice of Appeal, Page ID #821). The district courts subject matter
jurisdiction arose from 42 U.S.C. 1983. This Court has jurisdiction on appeal
under 28 U.S.C. 1291.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1.

Whether the district courts sua sponte dismissal of Chester County

Chief Deputy Mark Griffin was proper when Mr. Carnett sought to name him as a
defendant after the statute of limitations had expired.
2.

Whether the district court correctly found that Mr. Carnett failed to

state any claims against Sheriff Blair Weaver, Sheriff David Lee Woolfork,
Captain Jeff Fitzgerald, Chester County, Tennessee, and Madison County,
Tennessee.
STATEMENT OF THE CASE
On November 13, 2014, Kevin Lee Carnett, proceeding pro se, filed this 42
U.S.C. 1983 action alleging that his Fourth Amendment rights had been violated
as a result of his arrest for being a felon in possession of a firearm following
Chester County deputies discovering firearms in his possession while investigating
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Mr. Carnetts posting of threatening comments on Facebook directed toward

Madison County Sheriff David Woolfork. (See generally R.E. 1, Compl., Page ID
#1). In addition to his constitutional deprivation claims, Mr. Carnett asserted
various torts arising under Tennessee common law. (Id.) Appellees-Defendants
Chester County Sheriff Blair Weaver, Madison County Sheriff David Lee
Woolfork, Captain Jeff Fitzgerald, Chester County, Tennessee, and Madison
County, Tennessee (collectively the Law Enforcement defendants) moved to
dismiss Mr. Carnetts Complaint. (R.E. 12, 12-1, Mot. to Dismiss, Page ID #7596). While the motion to dismiss was pending before the district court, Mr. Carnett
sought leave to amend his Complaint to include, inter alia, Chester County Chief
Deputy Mark Griffin as a Law Enforcement defendant. (R.E. 30, Mot. for Leave,
Page ID #372-76; R.E. 31, Amend. Compl., Page ID #377-446). The Law
Enforcement defendants opposed Mr. Carnetts Motion to Amend to the extent he
sought to add Mark Griffin as a Defendant on the ground that any claims Mr.
Carnett attempted to allege against him were barred by the statute of limitations.
(R.E. 32, Resp. in Opp. to Mot., Page ID #454-58). The magistrate judge issued a
Report and Recommendation recommending Mr. Carnetts Motion to Amend be
granted, but that Mark Griffin should be dismissed from the Amended Complaint.
(R.E. 39, Report and Rec., Page ID #477-80). After no objections to the Report and
Recommendation were filed by the parties, the district court adopted the Report
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and Recommendation, including the dismissal of Mark Griffin from the Amended
Complaint. (R.E. 47, Order, Page ID #503-04).
The Law Enforcement defendants then moved to dismiss the Amended
Complaint on the ground that Mr. Carnett failed to state a claim upon which relief
may be granted. (R.E. 50, 50-1, Mot. to Dismiss Law Enforcement Defendants,
Page ID #522-42). The magistrate judge issued a Report and Recommendation
recommending that the Law Enforcement defendants motions to dismiss be
granted, but that Mr. Carnetts false arrest and malicious prosecution claims
against Chester County, Tennessee should be permitted to proceed. (R.E. 82,
Report and Rec., Page ID #778-89). Mr. Carnett filed an objection to the Report
and Recommendation to the extent it recommended dismissal of his claims against
Sheriff Blair Weaver, and Chester County filed an objection concerning whether
the false arrest and malicious prosecution claims be allowed to proceed. (R.E. 83,
Pl.s Object., Page ID #790-93; R.E. 86 Def.s Object., Page ID #800-03). The
district court adopted the Report and Recommendation in part, rejecting the
recommendation to deny the dismissal of the false arrest and malicious prosecution
claims against Chester County, and granted the Law Enforcement defendants
motion to dismiss in its entirety. (R.E. 89, Order, Page ID #813-19). The district
court also found that an appeal would not be taken in good faith. (Id., Page ID

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#819). Judgment was entered, and Mr. Carnett timely filed a notice of appeal. (R.E.
90, Judgment, Page ID #820; R.E. 91, Not. of Appeal, Page ID #821-25).
STATEMENT OF THE FACTS1
Mr. Carnett posted a threatening comment on a local television stations
Facebook page regarding allegations of misconduct against Sheriff Woolfork.
(R.E. 31, Amend. Compl., Page ID #386). Sheriff Woolfork became aware of the
comment and referred the matter for investigation to Captain Jeff Fitzgerald of the
Madison County Sheriffs Department. (Id. at Page ID #6). Captain Fitzgerald
determined that Mr. Carnett resided in neighboring Chester County, and referred
the matter to the Chester County Sheriffs Department. (Id). Chester County
deputies Mark Griffin and Jason Crouse went to where they believed was Mr.
Carnetts residence to question him about the Facebook comment. (Id. at Page ID
#387). While speaking with the deputies, Mr. Carnett admitted to making a
comment on Facebook about Woolfork, but informed them that the Facebook
comment was not intended to be threatening. (Id). Mr. Carnett also informed the
deputies of animosity toward Woolfork because of a past incident involving his

Mr. Carnett stated in his Brief that the trial court incorrectly decided the facts in this case.
However, because the trial courts decision came after the Defendants Motions to Dismiss, no
findings of fact were made as the facts set forth by Mr. Carnett were taken as true for the
purposes of deciding those Motions. Accordingly, the Law Enforcement defendants recite Mr.
Carnetts version of the facts as best as possible considering the vast nature of Mr. Carnetts
Amended Complaint, and concede for the purposes of this Brief only that the facts stated in Mr.
Carnetts Amended Complaint should be taken as true and viewed in a light most favorable to
him pursuant to the motion to dismiss standard.

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mothers incarceration. (Id. at Page ID #387-88). During this encounter with Mr.
Carnett, the deputies observed rifles in the kitchen. (Id).
After observing the rifles, the deputies became aware that Mr. Carnett was a
convicted felon and arrested him for unlawful possession of a firearm. (Id. at Page
ID #389). Mr. Carnett was taken to the Chester County Jail and placed in a holding
cell. (Id. at Page ID #390). While being held at the Chester County Jail, Mr.
Carnett allegedly spoke with Sheriff Weaver and asked him to keep the news of his
arrest out of the newspaper, but Sheriff Weaver provided information to a local
news station when it was requested. (Id. at Page ID #391).
The following day Mr. Carnett was taken to court and received a $10,000.00
bond, and later posted his bond that day and was released from jail. (Id. at Page ID
#393-94). The criminal charges against Mr. Carnett were presented to a grand jury
which returned a no true bill. (Id. at Page ID #402).
STANDARD OF REVIEW
The district courts ruling on a Rule 12(b)(6) motion to dismiss is a
question of law subject to de novo review. Spurlock v. Satterfield, 167 F.ed 995,
1000 (6th Cir. 1999) (citations omitted). In order to survive dismissal for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)
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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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. (citing Twombly, 550 U.S. at 556). [A] district court must (1) view
the complaint in the light most favorable to the plaintiff and (2) take all wellpleaded factual allegations as true. Tackett v. M & G Polymers, USA, LLC, 561
F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009) (citations omitted). But the district court need not accept a bare
assertion of legal conclusions. Tacket, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause
of action will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement. Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 555, 557).
SUMMARY OF THE ARGUMENT
This Court should affirm the dismissal of Mark Griffin because the
applicable one-year statute of limitations on Mr. Carnetts claims against Griffin
had expired, and Mr. Carnetts claims do not fall under any relation back rules that
would allow the addition of Griffin as a defendant as Mr. Carnett was aware of
Griffins identity at the time he filed his original Complaint but chose not to name
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him as a party. In addition, Mr. Carnett did not object to the Report and
Recommendation that Griffin be dismissed thus waiving any appellate review of
the dismissal.
The Court should also affirm the dismissal of Mr. Carnetts Amended
Complaint against the Law Enforcement defendants, pursuant to Federal Rule of
Civil Procedure 12(b)(6) as Mr. Carnett failed to state a claim against the Law
Enforcement defendants upon which relief may be granted. Mr. Carnetts claims
against the Law Enforcement defendants were properly dismissed because (1) the
official capacity claims against Sheriff David Woolfork and Sheriff Blair Weaver
are redundant, (2) Mr. Carnett failed to allege any constitutional deprivation of his
rights by Woolfork, Fitzgerald, and Weaver under the Fourth Amendment of the
United States Constitution, (3) Mr. Carnett failed to plead facts sufficient to
establish municipal liability for Madison and Chester Counties and there is no
respondeat superior liability allowed in 1983 claims, and (4) Mr. Carnett failed
to set forth any facts sufficient to support any of his alleged causes of action
against the Law Enforcement defendants.2

Mr. Carnett alleged several other claims in his Amended Compliant, such as,
claims for an Eighth Amendment violation, intentional infliction of mental
anguish, embarrassment, loss of money, change of residence, depression, weight
loss, emotional stress, and other claims including intentional torts, intentional
infliction of emotional distress, and negligent infliction of mental and emotional
distress. However, although those claims were argued against in the Law
Enforcement defendants motion to dismiss, because Mr. Carnett does not argue
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ARGUMENT
I.

THE DISTRICT COURT PROPERLY DISMISSED MR. CARNETTS

CLAIMS AGAINST MARK GRIFFIN AS THEY WERE UNTIMELY.
A.

Mr. Carnetts claims against Mark Griffin are time barred by the
applicable one year statute of limitations.

The Court should affirm the district courts dismissal of Mark Griffin
because Mr. Carnetts claims against Mark Griffin are time barred by the statute of
limitations. Because there is no applicable statute of limitations governing 1983
actions, federal courts must borrow the statute of limitations governing personal
injury actions in the state in which the section 1983 action was brought. Wolfe v.
Perry, 412 F.ed 707, 713-14 (6th Cir. 2005) (quoting Banks v. City of Whitehall,
344 F.3d 550, 553 (6th Cir. 2003)). Tennessee Code Annotated 28-3-104(a) sets
forth a one year statute of limitations period for personal injury actions in
Tennessee. Robinson v. Tenn., 399 F.3d 792, 794 (6th Cir. 2005); Hughes v.
Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000).
Mr. Carnetts original Complaint was filed on November 13, 2014
complaining of events that occurred on November 20, 2013. (See generally R.E. 1,
Compl., Page ID #1-36). Mr. Carnett filed his Amended Complaint on January 12,
2015, in which, inter alia, he added Mark Griffin as a defendant. (See generally

those claims on appeal, those claims are waived. See Baptist Physician Hosp. Org.,
Inc. v. Humana Military Healthcare Servs., 481 F.3d 337, 355 (6th Cir. 2007); see
also Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 448 (6th Cir. 2006).
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R.E. 31, Amend. Compl., Page ID #377-446). Accordingly, as Mr. Carnetts

Amended Complaint was not filed within one year of the events about which he
complained, the claims alleged against Mark Griffin were barred by the expiration
of the statute of limitations. For this reason, the Court should affirm the dismissal
of Mark Griffin from Mr. Carnetts Amended Complaint.
B.

Mr. Carnett is not permitted to add Mark Griffin as a Defendant

under Federal Rule of Civil Procedure 15(c)(1)(C).

The Court should further affirm the dismissal of Mark Griffin from Mr.
Carnetts Amended Complaint because Rule 15(c)(1)(C) of the Federal Rules of
Civil Procedure also does not permit Mr. Carnett to add Mark Griffin as a
Defendant. Rule 15(c)(1)(C) states, in pertinent part,
. . . [a]n amendment to a pleading relates back to the date of the
original pleading when the amendment changes the party or the
naming of the party against whom a claim is asserted . . . [if] the party
to be brought in by the amendment received such notice of the action
that it will not be prejudiced in defending on the merits; and knew or
should have known that the action would have been brought against it,
but for a mistake concerning the proper partys identity.
Fed. R. Civ. P. 15. (emphasis added). [A]n amendment which adds a new party
creates a new cause of action and there is no relation back to the original filing for
the purposes of limitations. Asher v. Unarco Material Holding, Inc., 596 F.3d
313, 318 (6th Cir. 2010) (quoting In re Kent Holland Die Casting & Planting, Inc.,
928 F.2d 1448, 1449 (6th Cir. 1991)).

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Here, Mr. Carnett cannot claim relation back under Rule 15(c)(1)(C)
because there was no mistake concerning the proper partys identity. Mr. Carnett
clearly knew Griffins identity, and even made reference to Griffin, by name,
several times in his original complaint. (R.E. 1, Compl., Page ID #8, 22; Page ID
#9, 23, Page ID #10, 24-7; Page ID #21, 56; Page ID #34, 97). Clearly there
was no mistake as to Griffins identity. Therefore, the Court should affirm Mark
Griffins dismissal from Mr. Carnetts Amended Complaint.
C.

Mr. Carnett failed to object to the Report and Recommendation

that Mark Griffin be dismissed and has waived appellate review.

Additionally, Mr. Carnett did not file an objection to the Report and
Recommendation that Mark Griffin be dismissed. (See R.E. 47, Order, Page ID
#503). It is well settled that a partys failure to object to a report and
recommendation functions as a waiver of any future appeal of that issue. See
United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981) (holding that a party
shall file objections [to a report and recommendation] with the district court or else
waive right to appeal). As Mr. Carnett filed no objection to the Report and
Recommendation that Mark Griffin be dismissed, Mr. Carnett has waived his right
to appeal Griffins dismissal.
II.

THE TRIAL COURT DID NOT ERR IN GRANTING THE LAW

ENFORCEMENT DEFENDANTS MOTION TO DISMISS.

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Mr. Carnett failed to state a claim upon which relief may be granted against
the Law Enforcement defendants pursuant to the Federal Rules of Civil Procedure
12(b)(6). For the following reasons, this Court should affirm the district courts
dismissal of the Law Enforcement defendants.
A.

Defendants Woolfork, Fitzgerald, and Weaver are entitled to

dismissal of Mr. Carnetts official capacity claims as those
claims are redundant.

It is well-settled that [a] suit against an individual in his official capacity is

the equivalent of a suit against the governmental entity. Matthews v. Jones, 35
F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Mich. Dept of State Police, 491
U.S. 58, 68, 109 S. Ct. 2304, 2310-311, 105 L. Ed. 2d 45 (1989)). Among the Law
Enforcement defendants in this matter are Chester County, Tennessee, and
Madison County, Tennessee. Therefore, the official capacity claims against Sheriff
Woolfork and Captain Fitzgerald are in essence claims against Madison County,
Tennessee, and the claims against Sheriff Weaver are in essence claims against
Chester County, Tennessee. Accordingly, the trial courts dismissal of the official
capacity claims against Woolfork, Fitzgerald, and Weaver should be affirmed.
B.

This Court should affirm dismissal of the claims brought under 42

U.S.C. 1983 as Mr. Carnett failed to allege facts sufficient to
support such claims.

Section 1983 provides that [e]very person who . . . subjects, or causes to be

subjected any citizen of the United States or other person within the jurisdiction
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thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in the action at law . . . .
42 U.S.C. 1983. In order to prevail on such a claim, a plaintiff must establish
that a person acting under color of state law deprived [him] of a right secured by
the Constitution or laws of the United States. Dorsey v. Barber, 517 F.3d 389, 394
(6th Cir. 2008). Section 1983 is not the source of any substantive right, but merely
provides a method for vindicating federal rights elsewhere conferred. Bessent v.
Dyersburg State Cmty. College, 415 F. Supp. 2d 874, 877 (W.D. Tenn. 2006)
(internal punctuation omitted), affd, 224 Fed. Appx 476 (6th Cir. 2007).
i.

Mr. Carnett failed to plead facts sufficient to establish

municipal liability against Chester County, Tennessee, and
Madison County, Tennessee.

In order to state a claim against a county under 42 U.S.C. 1983, the

plaintiff must identify a policy or custom of the municipality, connect the policy to
the governmental entity, and show that his injury was incurred because of that
policy. See Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005).
Accordingly, a plaintiff must sufficiently allege that his injury resulted from the
implementation or execution of any policy or custom of the municipality. See id.
Mr. Carnett failed to make any allegations that a policy, practice, or custom
of either County cause his alleged injuries. For example, in his Amended
Complaint, Mr. Carnett alleged that Defendant MADISON COUNTY officials
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joined and acted in CIVIL conspiracy with CHESTER COUNTY officials and the
STATE OF TENNESSEE officials. (sic as to all). (R.E. 31, Amend. Compl., Page
ID #383). This conclusory allegation, along with all other allegations in the
Amended Complaint against Chester and Madison Counties, fails to allege any
facts sufficient to establish municipal liability. Therefore, as Mr. Carnett
completely failed to make any allegations against Chester or Madison County
establishing municipal liability, this Court should affirm the dismissal of all of the
claims against Chester County, Tennessee, and Madison County, Tennessee.
ii.

The Court should affirm the dismissal of Fitzgerald because

Mr. Carnett failed to set forth sufficient factual allegations
that any of Fitzgerald acts or omissions deprived him of any
constitutional rights.

In order to establish a colorable claim of malicious prosecution under the

Fourth Amendment of the United States Constitution, a plaintiff must make
sufficient factual allegations satisfying the elements of such a claim. The elements
of a malicious prosecution claim under 1983 are: (1) a prosecution was initiated
against the plaintiff and the defendant participated in the decision; (2) there was a
lack of probable cause for the criminal prosecution; (3) the plaintiff suffered a
deprivation of liberty as a consequence of the legal proceeding apart from the
initial seizure; and (4) the criminal proceeding was resolved in the plaintiffs favor.
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010). A malicious prosecution

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claim fails when there was probable cause to prosecute. Fox v. DeSoto, 489 F.3d
227, 237 (6th Cir. 2007).
Mr. Carnett failed to allege a claim of malicious prosecution against Captain
Fitzgerald. Mr. Carnett alleged that Captain Fitzgerald personally had
involvement in the arrest of Plaintiff, and is one of the individuals who initiated
the investigation of him. (R.E. 31, Amend. Compl., Page ID #4; Page ID #6; Page
ID #398). Mr. Carnett further alleged that Captain Fitzgerald referred the case to
law enforcement in the proper jurisdiction for follow-up on the investigation after
investigating the alleged threats Mr. Carnett made against Woolfork. (See id).
Neither of those allegations satisfy any of the elements to establish a colorable
claim of malicious prosecution under the Fourth Amendment. Accordingly, Mr.
Carnett failed to state a claim of malicious prosecution against Captain Fitzgerald,
and this Court should affirm the district courts dismissal of Captain Fitzgerald
from this action.
iii.

Woolforks dismissal should be affirmed by this Court

because Mr. Carnett failed to allege any set of facts against
him giving rise to a cause of action.

Mr. Carnetts amended complaint contains very few factual allegations

against Sheriff Woolfork, and, even when viewed in a light most favorable to Mr.
Carnett, those allegations fall short of establishing any cause of action against
Woolfork. Mr. Carnett alleged that Sheriff Woolfork: has a vendetta against him,
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reported the alleged threats Mr. Carnett made against him, influenced the order of
in house arrest given to Mr. Carnett as a condition of his bond, and that was
outside the county jail in his vehicle when Mr. Carnett was released from jail on
bond. (R.E. 31, Amend Compl., Page ID #382; Page ID #388; Page ID #395; Page
ID #402-03; Page ID #421). None of these allegations establish a cause of action
against Sheriff Woolfork, even when viewed in a light most favorable to Mr.
Carnett. Therefore, this Court should affirm the trial courts dismissal of Sheriff
Woolfork in his entirety from this action.
iv.

The Court should affirm the dismissal of Weaver because Mr.

Carnett failed to allege facts sufficient to establish a claim for
deprivation of constitutional rights.

Likewise, Mr. Carnett made few factual allegations against Sheriff Weaver,
and those that he made, even when viewed in a light most favorable to Mr. Carnett,
do not amount to a deprivation of constitutional rights or give rise to an actionable
claim. Mr. Carnett alleged that despite his request to keep the incident out of the
newspaper, Sheriff Weaver provided news media with information about his arrest.
(R.E. 31, Amend. Compl., Page ID #384; Page ID #392). Mr. Carnett further
alleged that Weaver spoke to him multiple times while he was being held at the
Chester County Jail, and that during those interactions Weaver told Mr. Carnett
that you cannot be within 300 yards of an empty shotgun shell, that Weaver
spoke to Woolfork who alleged said he was gonna [sic] take care of you, that
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Mr. Carnett was being charged with a felony, and that we are going to keep you
here till [sic] the District Attorney decides what to charge you with. (Id. at Page
ID #385-87; Page ID #390-91). Mr. Carnett further alleged that Weaver told him
that a news media outlet asked about his arrest, that Weaver spoke to him after his
bond hearing, and that Weaver was outside of the jail in his vehicle when Mr.
Carnett was released from jail. (Id. at Page ID #392; Page ID #394-95). Other
specific allegations against Weaver include that Weaver allegedly received a call
from Fitzgerald regarding the threats Mr. Carnett made, that Weavers decisions
influenced the order of in house arrest against Mr. Carnett, and that Weaver
directed other officers to investigate the Facebook comment. (Id. at Page ID #399;
Page ID #402-03; Page ID #421). These allegations in no way establish any
deprivation of Mr. Carnetts constitutional rights. This Court should affirm the
dismissal of Weaver in his entirety from this action.
C.

The Court should affirm the dismissal of Mr. Carnetts

defamation and invasion of privacy claims because Mr. Carnett
failed to allege any facts to support such claims.

The district court found that Mr. Carnetts allegations that Sheriff Weaver
merely released his arrest report, criminal record, and details of his past lawsuit
against Sheriff Woolfork to the media simply did not constitute defamation or
invasion of privacy. (R.E. 89, Order, Page ID #816). On appeal, Mr. Carnett offers
no legal basis as to why the district courts ruling was erroneous. Accordingly, this
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Court should affirm the district courts dismissal of the defamation and invasion of
privacy claims brought against Sheriff Weaver.
D.

Mr. Carnetts remaining state tort claims are waived as he failed

to object to the Report and Recommendation that those claims be
dismissed.

In his Amended Complaint, Mr. Carnett asserts a myriad of tort claims

arising under Tennessee state law (See generally R.E. 31, Amend. Compl., Page ID
#377-446). In the Report and Recommendation, the magistrate judge
recommended dismissal of those claims on the ground that those claims are
entirely deficient, have minimal to no factual support, [and] fail to state a claim.
(R.E. 82, Report and Recom., Page ID #789, fn. 2). Other than objecting to the
recommendation that the defamation and false light claims against Sheriff Weaver
be dismissed, Mr. Carnett did not pose any objections to those claims being
dismissed prior to the district courts adoption and modification of the Report and
Recommendation. (See R.E. 83, Pl.s Obj., Page ID #790-91). As stated above, a
partys failure to object to a report and recommendation functions as a waiver of
any future appeal of that issue. Walters, 638 F.2d at 950. As Mr. Carnett filed no
objection to the Report and Recommendation that his state law claims be
dismissed, Mr. Carnett has waived his right to appeal the dismissal of those claims.

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CONCLUSION
This Court should affirm the trial courts dismissal of Mark Griffin from Mr.
Carnetts amended complaint because the statute of limitations bars Mark Griffin
from being added to this claim, and relation back does not apply because Mr.
Carnett was not mistaken with regard to the identity of Mark Griffin. Further, this
Court should affirm the dismissal of all of Mr. Carnetts claims against the Law
Enforcement defendants because Mr. Carnett failed to state a claim upon which
relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

Respectfully submitted,
PENTECOST & GLENN, PLLC
By:

18

s/Jon A. York
Jon A. York, BPR #023106
Kirstin E. Harper, BPR #033256
106 Stonebridge Blvd.
Jackson, TN 38305
Phone: (731) 668-5995
Fax: (731) 668-7163
jyork@pgandr.com
kharper@pgandr.com

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CERTIFICATE OF COMPLIANCE WITH RULE 32

Pursuant to Rule 32 of the FEDERAL RULES OF APPELLATE PROCEDURE, the
undersigned hereby certifies that
1. This brief complies with the type-volume requirement of Rule
32(a)(7)(B) in that it contains 4,322 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word in Times New Roman font in fourteen (14) point.

Pentecost & Glenn, PLLC

s/Jon A. York

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CERTIFICATE OF SERVICE
This is to certify that I have served a copy of this pleading or paper personal
or by mail upon each attorney or firm of attorneys appearing of record for each
adverse party or each pro se party on or before the filing date thereof.
DATED: This the 17TH day of December, 2015.
PENTECOST & GLENN, PLLC
By:

SERVED ON:
Kevin Lee Carnett
P.O. Box 294
Henderson, TN 38340
Mary M. Bers
Civil Rights and Claims Division
Office of the Attorney General
P.O. Box 20207
Nashville, TN 37202

20

s/Jon A. York
Jon A. York

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IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
KEVIN CARNETT,
v.

No. 15-6085

WBBJ-TV, et al.,
__________________________________________________________________
APPELLEES DESIGNATION OF
RELEVANT DISTRICT COURT DOCUMENTS
__________________________________________________________________
Pursuant to Sixth Circuit Rule 28(a), Appellees hereby designate the
following relevant District Courts documents:
DESIGNATION OF CONTENTS
Description of Entry
Date
Record Entry #
Complaint
Mot.to Dismiss

11-13-14

Mot. For Leave

Amend. Compl.
Resp. in Opp. to Mot.
Report and Rec
Order
Mot. to Dismiss Law Enforcement
Defendants
Report and Rec
Pls Object
Defs Object.
Order
Judgment
Notice of Appeal

1-12-15
1-12-15
1-19-15
3-2-15
3-24-15

12-4-14

4-7-15
9-8-15
9-10-15
9-18-15
9-25-15
9-25-15
9-29-15

21

1
12
12-1
30
31
32
39
47
50
50-1
82
83
86
89
90
91

Page ID #
1-36
75-96
372-376
377-446
454-458
477-480
503-504
522-542
778-789
790-793
800-803
813-819
820
821-825