                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0885n.06

                                           No. 13-5184

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                  Oct 10, 2013
RICHARD JEFFREY LAUDE,                                    )                  DEBORAH S. HUNT, Clerk
                                                          )
       Plaintiff-Appellant,                               )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
JIMMY D. KNOWLES,                                         )   THE MIDDLE DISTRICT OF
                                                          )   TENNESSEE
       Defendant-Appellee.                                )
                                                          )
                                                          )



       Before: COLE, KETHLEDGE, and STRANCH, Circuit Judges.

       KETHLEDGE, Circuit Judge. Richard Laude filed a civil rights suit against Jimmy D.

Knowles for allegedly violating Laude’s Fourth Amendment rights during a traffic stop. The district

court held that Laude waived his federal claim by filing a related claim with the Tennessee Claims

Commission. We affirm.

                                              I.

       Knowles, a Tennessee State Trooper, stopped Laude because Knowles mistakenly believed

that Laude was a member of a speeding group of motorcyclists that had passed Knowles moments

before. Laude alleges that Knowles pulled Laude off his motorcycle, hit him several times, and held

him to the ground even though Laude’s clothing and motorcycle were different from the speeding

motorcyclists. Knowles soon realized his mistake, but wrote Laude misdemeanor citations for

reckless driving, improper tags, and failure to carry a license. The county court later dismissed the
No. 13-5184
Laude v. Knowles

charges for lack of probable cause.

       Laude thereafter filed a claim with the Tennessee Claims Commission, which has “exclusive

jurisdiction to determine all monetary claims against the state” involving the alleged negligence of

state employees. See Tenn. Code § 9–8–307(a)(1)(E). Laude later filed suit in federal court under

42 U.S.C. § 1983. Under Tennessee Code § 9-8-307(b), however, claims filed with the Commission

“operate as a waiver of any cause of action, based on the same act or omission” against any state

employee, unless the employee was acting outside the scope of his employment. The district court

dismissed Laude’s case pursuant to § 9-8-307(b), but informed Laude that he could re-file his suit

if the Commission determined that Knowles was acting outside the scope of his employment.

       The Commission determined the contrary, however, finding that Knowles acted within the

scope of his employment, and reasoning that “Trooper Knowles was in his trooper uniform, in his

patrol car, and was on his regular shift at the time the events at issue occurred.” The Commission

also found that Knowles was not negligent. Laude appealed. The Tennessee Court of Appeals held

that the Commission lacked jurisdiction because Laude’s “claims against the State were intentional

torts” and were not, as the Commission had assumed, for the “[n]egligent care, custody and control

of persons” or personal property. Laude v. State, M2011-01584-COA-R3CV, 2012 WL 1066501,

at *2–3 (Tenn. Ct. App. Mar. 27, 2012). The court of appeals therefore reversed the Commission’s

judgment and dismissed Laude’s case.

       Laude then filed a new § 1983 suit in federal court. The district court granted summary

judgment to Knowles, reasoning that Laude waived his federal cause of action when he filed his

claim with the Commission. This appeal followed.

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                                                 II.

       We review the district court’s grant of summary judgment de novo. See Asher v. Unarco

Material Handling, Inc., 596 F.3d 313, 317 (6th Cir. 2010) (citation omitted).

       Section 9-8-307 allows prospective plaintiffs to obtain a waiver of state sovereign immunity

in exchange for waiving their claims against individual state employees (such as Knowles here).

See Haley v. Univ. of Tennessee-Knoxville, 188 S.W.3d 518, 523–24 (Tenn. 2006). The sole

exception to this waiver occurs “if the commission determines that the act or omission was not

within the scope of the officer’s or employee’s office or employment.”             See Tenn. Code

§ 9-8-307(b).

       The Commission made no such determination here. Neither did the court of appeals, whose

conclusion that the Commission lacked subject matter jurisdiction was instead based on the court’s

determination that Laude accused Knowles of intentional torts. An employee can commit an

intentional tort in the scope of his employment. See, e.g., Hughes v. Metro. Gov’t of Nashville &

Davidson Cnty., 340 S.W.3d 352, 372 (Tenn. 2011). Laude’s decision to file his claim with the

Commission, therefore, has the effect that the statute says it has: “a waiver of any cause of action,

based on the same act or omission, which the claimant has against any state officer or employee.”

Tenn. Code § 9-8-307(b).

       In response, Laude points out that the court of appeals’ decision has the same effect on his

claim as a decision that the state employee acted outside the scope of his employment: both

determinations divest the Commission of subject-matter jurisdiction. Thus, Laude contends,

enforcement of the waiver in his case, but not where the Commission finds that the employee acted

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Laude v. Knowles

outside the scope of his employment, would “create a distinction without a difference.” Laude Br.

at 10.

         This distinction, however, is one spelled out in the statute itself. Section 9-8-307(b) lists

only one exception to the waiver provision: a determination that the state employee acted outside

the scope of his employment. The statute makes clear that, in all other cases, a plaintiff’s decision

to file a claim with the Commission waives any corresponding federal claim. Consequently, the

Tennessee Supreme Court has held that a plaintiff’s decision to file a claim with the Commission

“activates the waiver, regardless of the [claim’s] subsequent disposition.” Haley, 188 S.W.3d at

524. Moreover, “once the claim has been filed and the waiver has been activated, it cannot be

undone.” Id. (internal quotation marks omitted). In Haley itself, for example, the court enforced

the waiver where a plaintiff had withdrawn her claim voluntarily. Id. And our court has already

held that dismissal for lack of subject-matter jurisdiction—the ground for dismissal here—does not

undo a plaintiff’s waiver under § 9-8-307(b). Mullins v. Hall, 470 F. App’x 476, 477 (6th

Cir. 2012).

         Laude otherwise argues that enforcement of the waiver as the statute prescribes would be

fundamentally unfair—thus implying, it appears, that the statute as applied here would violate the

Due Process Clause. But no one forced Laude to file his claim with the Commission. And the

statute’s terms allow a plaintiff to sue “an otherwise unavailable deep-pocket defendant”—namely,

the state—only if the plaintiff “voluntarily elect[s] to waive suit against the employees[.]” Leaman

v. Ohio Dep’t of Mental Retardation & Dev. Disabilities, 825 F.2d 946, 953 (6th Cir. 1987)

(en banc). It is not unfair in any constitutional sense to hold Laude to that statutory bargain.

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Laude v. Knowles

      The district court’s judgment is affirmed.




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       JANE B. STRANCH, Circuit Judge, concurring in the judgment. Based upon Tenn. Code

Ann. § 9-8-307(b), we have held that the filing of a claim for damages against the State with the

Tennessee Claims Commission automatically and irrevocably waives a plaintiff’s right to file any

other legal action arising out of the same facts, including a suit in federal court under 42 U.S.C.

§ 1983 to recover damages for the violation of federal constitutional rights. See White v. Gerbitz,

860 F.2d 661 (6th Cir. 1988); Mullins v. Hall, 470 F. App’x 476 (6th Cir. 2012). White followed

Leaman v. Ohio Dep’t of Mental Retardation & Dev. Disabilities, 825 F.2d 946 (6th Cir. 1987) (en

banc), where a majority of the judges on this court held that a similar Ohio statute effectuated a

waiver of federal rights.

       Although I am required to follow the law of our circuit, I do not have to agree with all of it.

The Supremacy Clause does not permit subordination of federal constitutional rights—and the

means to enforce them in federal court through a § 1983 action—to a state claims commission

lacking “jurisdiction over any intentional torts.” See Shell v. State, 893 S.W.2d 416, 421 (Tenn.

1995). My views align with the dissenting opinions in Leaman, White, and Drew v. U.T. Reg’l Med.

Ctr. Hosp., 121 F.3d 707, 1997 WL 441752 (6th Cir. 1997) (per curiam), and the unanimous

opinions in Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453 (6th Cir. 1998), and Kajfasz v.

Haviland, 55 F. App’x 719 (6th Cir. 2003).

       Because I cannot agree with the reasoning in the majority opinion, I concur in the judgment

only. Were we writing on a clean slate, I would vote to reverse the decision below and remand the

case for further proceedings on the constitutional claims Laude sought to raise in federal court.




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