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Cordell v. Town of Signal Mountain

United States District Court, E.D. Tennessee, Chattanooga Division

November 5, 2014

TOWN OF SIGNAL MOUNTAIN, et al., Defendants.


THOMAS W. PHILLIPS, Senior District Judge.

This civil action is before the Court on several pending motions. Plaintiff has moved for permission pursuant to Fed.R.Civ.P. 15(a)(2) for leave to file a second amended complaint [Doc. 56]. Defendants Lizetta Eitner, William Cox, Town of Signal Mountain, Signal Mountain Police Department, Barbara Wright, Susan Rothberger, and Thomas Wyatt have filed responses in opposition to the motion [Docs. 58, 59, 61, 62, 63, 64]. Additionally, all of the currently named defendants who have been served have filed motions to dismiss [Docs. 24, 38, 40, 44, 47, 49, 54, and 67]. Plaintiff filed a single response to all of the pending motions to dismiss [Doc. 69], but it was timely only as to the motion filed by Sheriff Hammond and Officers McCann, Freeman, and Wolfe [Doc. 67]. See E.D. Tenn. L.R. 7.1(a), 7.2. Thus, the pending motions are ripe for determination.

I. Plaintiff's Motion to Amend

It is worth noting that plaintiff's motion to amend contains no reasons in support of her request to amend per Fed.R.Civ.P. 15(a)(2); the pleading is simply 188 pages of her proposed second amended complaint. It is also worth noting that plaintiff's motion was filed after most of the defendants had filed motions to dismiss. The defendants oppose the proposed second amended complaint on the grounds that it fails to satisfy the "short and plain statement of the claim" requirement of Fed.R.Civ.P. 8(a) and that the amendment is futile because the claims would not survive a motion to dismiss.

Rule 8 states, in relevant part, as follows:

(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the Court's jurisdiction, unless the Court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Fed. R. Civ. P. 8. "Rule 8 serves the important purpose of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claims being asserted." Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). The statement of the claim must be "plain" because "the principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The statement should also be short because "unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Id. (quotations omitted); see also Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 775-76 (7th Cir. 1994) (noting that a complaint that is "prolix and/or confusing makes it difficult for the defendant to file a responsive pleading and makes it difficult for the trial court to conduct orderly litigation"). A court is not obligated to "stitch together cognizable claims for relief from [a] wholly deficient pleading" filed by a plaintiff. Mann, 477 F.3d at 1148; see, e.g. Plymale v. Freeman, No. 90-2202, 1991 WL 54882, at *1 (6th Cir. Apr. 12, 1991) (affirming district court's dismissal of 119 page "rambling complaint").

Plaintiff is proceeding pro se and "the allegations of a complaint drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers in the sense that a pro se complaint will be liberally construed." Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the "lenient treatment generally accorded to pro se litigants has limits." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). Courts have not been "willing to abrogate basic pleading essentials in pro se suits." Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (citing cases). Liberal federal pleading standards do not permit litigants-even those acting pro se -to proceed on pleadings that are not readily comprehensible. Cf. Becker v. Ohio State Legal Servs. Ass'n, 19 F.Appx. 321, 322 (6th Cir. 2001) (upholding district court's dismissal of pro se complaint containing "vague and conclusory allegations unsupported by material facts"); Janita Theresa Corp. v. United States Attorney, No. 96-1706, 1997 WL 211247, at *1 (6th Cir. Apr. 28, 1997) (upholding district court's dismissal of pro se complaint whose allegations were "far too muddled to serve as a basis for a proper suit").

The proposed second amended complaint [Doc. 56] is 188 pages long and over 1492 numbered paragraphs. The proposed second amended complaint contains a recitation of events beginning with plaintiff's initial move to Signal Mountain in 1993, twenty years before the initiation of this case. Many of those paragraphs are simply lists of telephone calls made to or from some of the named defendants with little or no further explanation or connection. [ See, e.g., Doc. 56 at ¶¶ 161-261, 290-614, 661-776, 778-855.] The proposed second amended complaint contains numerous lengthy paragraphs which appear to be verbatim transcriptions of letters, pleadings filed in other cases, or other "documentation" containing plaintiff's various grievances, theories, and proposals. [ See e.g., id. at ¶¶ 615, 660, 864, 896, 975, 1070-71, 1087-89, 1251, 1299, 1359, 1418, 1420.] The proposed second amended complaint contains allegations concerning former landlords who forced plaintiff to move out, neighbors who gossiped about her, former in-laws who have conspired against her, local police and school officials who have harassed her, her challenges raising three children as a single parent, theories on religion and societal ills, a "school to prison pipeline" which may be promulgated by some of the defendants, and plaintiff's proposed solution to ending said pipeline. [ See e.g., id. at ¶¶ 26, 30, 62, 110, 1161, 1360-64, 1371, 1418, 1422-24, 1431.] The proposed amended complaint also contains excerpts from statutes and legal digests. [ See e.g., id. at pp. 168-84.] The legal citations are not tied to any of the defendants or the preceding factual allegations. In short, the Court finds that the proposed amended complaint is verbose, prolix, repetitive, and confusing and fails to meet the "short and plain" requirements of Fed.R.Civ.P. 8(a). The Court also finds that the proposed second amended complaint, to the extent the claims can be discerned, is futile for the reasons discussed infra regarding the motions to dismiss. Midkiff v. Adams County Regional Water Dist., 409 F.3d 758, 767 (6th Cir. 2005) (a motion to amend may be denied for futility "if the court concludes that the pleading as amended cannot withstand a motion to dismiss.").

Accordingly, the plaintiff's motion to amend [Doc. 56] will be DENIED.

II. Defendants' Motions to Dismiss

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only "a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the [opposing party] fair notice of what the... claim is and the grounds upon which it rests, '" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's "obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions." Twombly, 550 U.S. at 555. "[A] formulaic recitation of the elements of a cause of action will not do, " nor will "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In deciding a Rule 12(b)(6) motion to dismiss[1], a court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in favor of the plaintiff, and determine whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). "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." Iqbal, 556 U.S. at 678. "Determining whether a complaint states a plausible claim for relief will [ultimately]... be a context-specific task that requires th[is Court] to draw on its judicial experience and common sense." Id. at 679.

B. Plaintiff's Statutory Claims

As noted initially, all of the defendants who have been served have filed motions to dismiss. Notably, these motions test the sufficiency of plaintiff's first amended complaint [Doc. 5]. The only legal allegations in the amended complaint are: "Under the Color of Law, as per 18 USC §§§ [sic] 241, 242, 245; Title 42 U.S.C., Section 3631, 14141; The 5th and 14th Amendments, Katherine Cordell is entitled [sic] financial restitution and criminal charges should be placed on individuals involved in the abuse of police power with intent to and causing harm." [Doc. 5 at p. 3.] The amended complaint concludes with a request for monetary judgments and "request the persons guilty of the Abuse of Police Power, whether citizens or public employees, be criminally charged to the fullest extent of the law according to their guilt. The Plaintiff request [sic] all public officials found guilty of the Abuse of Police power be relieved of their position of power as allowed by and prescribed for those in a position of authority and according to their position and oaths to their Professional Responsibility." [Doc. 5 at p. 6.]

To the extent that plaintiff alleges claims against any of the defendants under 18 U.S.C. §§ 241, 242, and 245, those are criminal statutes for violations of civil rights which do not provide a private right of action. Booth v. Henson, 290 F.Appx. 919, 920-21 (6th Cir. 2008) (a private citizen lacks standing to file an action under §§ 241 and 242); United States v. Oguaju, 76 F.Appx. 579, 581 (6th Cir. 2003) (same); Moore v. Potter, 47 F.Appx. 318, 320 (6th Cir. 2002) (no private right of action under § 242); Deal v. Polk County, Tennessee, No. 1:03-CV-385, 2007 WL 1387918, at *14 (E.D. Tenn. May 8, 2007) (§ 245 is a criminal statute "which does not give rise to any civil cause of action") (quoting Marshall v. Johnson, No. Civ. A. 3:05CV2615, 2005 WL 1214254, at *5 (W.D. Ky. May 19, 2005)). Only state or federal prosecutors may bring a complaint under these statutes. Id. Similarly, 42 U.S.C. § 3631, part of the Fair Housing Act, is also a criminal statute under which there is no private cause of action. McZeal v. Ocwen Fin. Corp., No. 00-20817, 2001 WL 422375, at *2 (5th Cir. Mar. 28, 2001); Thomas v. Miramar Lakes Homeowners Ass'n, No. 4:13-CV-1479, 2014 WL 3897809, at *6 (S.D. Tex. Aug. 6, 2014); M.F. ex rel. Branson v. Malott, No. 1:11-CV-807, 2012 WL 1950274, at *7 (S.D. Ohio May 30, 2012); Blechinger v. Sioux Falls Housing & Redevelopment Comm'n, Civ. No. 12-4004-KES, 2012 WL 174653, at *3 (D.S.D. Jan. 20, 2012). Finally, 42 U.S.C. § 14141(a) only applies to conduct by law enforcement officers or by employees of governmental agencies "with responsibility for the administration of juvenile justice or the incarceration of juveniles" and does not create a private cause of action. CP, ex rel. Powell v. Tennessee, No. 3:10-CV-126, 2010 WL 2598105, at *3 (E.D. Tenn. June 24, 2010) ("Section 14141 does not recognize a private right of action"); Hopson v. Secret Service, No. 3:12CV-770-H, 2013 WL 504921, at *2 (W.D. Ky. Feb. 8, 2013). Thus, none of the cited statutory provisions in the amended complaint give rise to a private cause of action.

C. Plaintiff's Conspiracy Claims

The Court notes that the plaintiff vaguely and generally alleges a conspiracy among some or all of the defendants [Doc. 5 at p. 5]. Although not cited in the amended complaint, 42 U.S.C. §1985 creates a "cause of action against those who conspire to obstruct justice, or to deprive any person of equal protection or the privileges and immunities provided by the Constitution." Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984) (emphasis added). To establish a claim under § 1985, plaintiff must allege "(1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States." Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994). Conspiracy claims, even those brought via § 1985, must be pleaded with specificity. Jaco, 739 F.2d at 245; Selzer v. County of Allegan, No. 99-1368, 2000 WL 658068, at *2 (6th Cir. May 9, 2000). Therefore, the complaint must set forth factual allegations to support the underlying conspiracy claim in order to survive a 12(b)(6) motion; a complaint that broadly alleges negligence with no further factual allegations is insufficient. Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). To the extent that the amended complaint could be liberally construed as asserting a claim for conspiracy under § 1985, the Court finds that any such claim fails for lack of specificity.

D. Plaintiff's Response to the Motions to Dismiss

While the Court has carefully reviewed plaintiff's response to the motions to dismiss [Doc. 69], it provides no further illumination as to the claims asserted and suffers from many of the same shortcomings as her proposed second amended complaint discussed supra. In addition to restating many of the vague and confusing allegations of the amended complaint, plaintiff's response describes an ill-defined "toxicology campaign, " a conspiracy with the TBI (Tennessee Bureau of Investigation), human trafficking, the privatization of probation in Alabama, and the privatization of Social Security. How all of this relates to cognizable claims against these defendants remains unclear. Plaintiff suggests that she is unable to comply with the rules of the Court because of her poor health. While a pro se party's pleadings will be construed liberally, as discussed supra, "she will not be relieved of the responsibility to comply with the basic rules of court." Brown v. Woodward, No. 95-5792, 1998 WL 211785, at *1 (6th Cir. 1998).

The Court will address the motions to dismiss in the order filed.[2]

E. Barbara Wright's Motion to Dismiss [Doc. 24]

Defendant Barbara Wright is plaintiff's former mother-in-law and asserts several defenses in support of her motion to dismiss. Defendant Wright notes that she was previously sued on November 2, 2012, by the plaintiff in the Circuit Court of Hamilton County, Tennessee, case number 12C1344 (hereinafter the "State Court case") [Doc. 24 at pp. 9-10]. That case was dismissed on November 26, 2012, on the grounds that it failed to state a cause of action upon which relief can be granted and was barred by the statute of limitations [Doc. 24 at p. 12]. Plaintiff appealed the case to the Tennessee Court of Appeals, case number E2012-02669-COA-R3-CV, but she failed to file a brief in support of her case despite being given an extension of time do so. Accordingly, the Court of Appeals dismissed the appeal on June 14, 2013 [Doc. 24 at p. 14].

In the State Court case, plaintiff alleged that she called the police on November 2, 2010, because Defendant Wright was in plaintiff's yard cursing her [Doc. 24 at p. 9]. Plaintiff alleged that she had requested Defendant Wright to not come back to plaintiff's residence as Defendant Wright had previously exhibited hostility through cussing the plaintiff. Further, plaintiff alleged that Defendant Wright "collaborated with the police on more than one occasion to harass the plaintiff." [ Id. ] In the present case, plaintiff alleges that 911 calls that the police must follow up on came from a friend of Defendant Wright's and that telephone records indicate "over four thousand incoming calls" into Defendant Wright's residence [Doc. 5 at p. 2]. Plaintiff alleges that Defendant Wright harassed the plaintiff and her family repeatedly from 2001 to the present [ Id. at p. 4]. She claims that "[t]he more than four thousand incoming calls into both Defendant Al Ball and Barbara Wright suggest conspiracy" [ Id. at p. 5].

Defendant Wright argues that this case is barred by the doctrine of res judicata because there are no allegations that were not contained or could have been contained in the State Court case [Doc. 24 at p. 4]. Further, Defendant Wright argues that the complaint fails to state a claim upon which relief can be granted and is barred by the one-year statute of limitations in Tenn. Code Ann. § 28-3-104 [ Id. at pp. 5-6]. Finally, Defendant Wright argues that the case should be dismissed for insufficient process and insufficient service of process due to the delay in service and that there is no diversity or federal question jurisdiction between these parties [ Id. at p. 7].

The purpose of res judicata is to promote the finality of judgments and thereby increase certainty, discourage multiple litigation, and conserve judicial resources. See Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981); James v. Gerber Prods. Co., 587 F.2d 324, 327-28 (6th Cir. 1978). A final judgment on a claim is res judicata and bars relitigation between the same parties or their privies on the same claim. See Federated Department Stores, 452 U.S. at 401; Herendeen v. Champion Int'l Corp., 525 F.2d 130, 133 (2d Cir. 1975). It bars relitigation on every issue actually litigated or which could have been raised with respect to that claim. See James, 587 F.2d at 328.

State-court judgments are given the same preclusive effect under the doctrines of res judicata and collateral estoppel as they "would receive in courts of the rendering state." ABS Indus., Inc. ex rel. ABS Litig. Trust v. Fifth Third Bank, 333 F.Appx. 994, 998 (6th Cir. 2009) (quoting Ingram v. City of Columbus, 185 F.3d 579, 593 (6th Cir. 1999)). In other words, "[i]f an individual is precluded from litigating a suit in state court by the traditional principles of res judicata, he is similarly precluded from litigating the suit in federal court.'" Id. (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1537 (6th Cir.1987)).

Res judicata requires this Court to give the same effect to the State Court judgment as would another Tennessee state court. 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). The State of Tennessee bars under res judicata "all claims that were actually litigated or could have been litigated in the first suit between the same parties." Am. Nat'l Bank & Trust Co. of Chattanooga v. Clark, 586 S.W.2d 825, 826 (Tenn. 1979). Four elements must be established before res judicata can be asserted as a defense: (1) the underlying judgment must have been rendered by a court of competent jurisdiction; (2) the same parties were involved in both suits; (3) the same cause of action was involved in both suits; and (4) the underlying judgment was on the merits. Collins v. Greene County Bank, 916 S.W.2d 941, 945 (Tenn. Ct. App. 1995) (citing Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990)).

The Court finds that plaintiff's claims against Defendant Wright are barred by the doctrine of res judicata. The State Court case involved the same parties, the same cause of action, and a judgment on the merits was rendered by a court of competent jurisdiction. There is no material difference in the allegations which indicate that they were not or could not have been litigated in the State Court case. Res judicata thus precludes the Court's review of the claims against Defendant Wright.

Moreover, the Court agrees that the amended complaint fails to state a claim against Defendant Wright upon which relief can be granted. All that plaintiff has alleged as to Defendant Wright is that she has "harassed" the plaintiff and her family for more than 12 years and that Defendant Wright is part of a vague conspiracy evidenced by the number of phone calls she has received. Even assuming, arguendo, that the alleged "harassment" and "conspiracy" constituted federal claims, plaintiff must allege more than these bare recitations to withstand a motion to dismiss. While notice pleading is certainly a liberal standard, the Supreme Court and the Sixth Circuit have made it clear that a recitation of key terms forming conclusory allegations, without more, is insufficient to survive a motion to dismiss. See Twombly, 550 U.S. at 570 ("[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." (emphasis added)); Eidson v. Tenn. Dep't of Children's ...

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