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Burton v. City of Memphis

United States District Court, W.D. Tennessee, Western Division

November 7, 2014

CYNTHIA M. P. BURTON, Plaintiff,
v.
CITY OF MEMPHIS, Defendant.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT, ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND ON PLAINTIFF'S MOTION TO AMEND

CHARMIANE G. CLAXTON, Magistrate Judge.

Before the Court are the following motions: Defendant City of Memphis's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Docket Entry "D.E." #22); Plaintiff's Motion for Summary Judgment (D.E. #27); and, Plaintiff's Motion to Amend (D.E. #28). The instant motions have been referred to the United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)-(C). (D.E. #5). For the reasons set forth herein, it is recommended that Plaintiff's Motion to Amend be DENIED, that Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment be GRANTED, and that Plaintiff's Motion for Summary Judgment be deemed as MOOT.

I. INTRODUCTION

On February 1, 2013, Plaintiff filed a pro se Complaint alleging various causes of action against several defendants. (D.E. #1). Specifically, Plaintiff alleges that, in or around August, 2007 until present, she "continuously telephoned the Memphis police department [("MPD")] with numerous complaints" and attempted to explain "that she was a severely disabled paranoid schizophrenic and taking medication" and that she was "permanently and severely disabled." (Compl. ¶16). Plaintiff states that, on or about June 25, 2009, the MPD "inflicted police brutality" upon her and "escort[ed]" her to the Community Behavioral Health Hospital ("CBHH"), a mental health facility. ( Id. ) Plaintiff states that, on or about November 7, 2009, MPD again "escorted" her to CBHH. ( Id. ) Plaintiff alleges that, on or about August 7, 2012, MPD entered her home illegally, "harassing, brutalizing... and arresting" her, placed her in the Shelby County Correctional Center ("SCCC"), then placed her at "201 Poplar, " which is the Shelby County Jail facility, and then took her to "CBH CMPB." ( Id. )

On October 10, 2013, the United States Magistrate Judge entered a Report and Recommendation on In Forma Pauperis Screening Pursuant to 28 U.S.C. Section 1915, which recommended that all of Plaintiff's claims failed to state a claim upon which relief may be granted with the exception of Plaintiff's Americans with Disabilities Act ("ADA") claim against the City of Memphis. Over no objections, the United States District Judge adopted the Magistrate Judge's Report and Recommendation.

On August 29, 2014, Defendant filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment on three grounds: (1) that most of Plaintiff's factual allegations-specifically those that occurred before February 1, 2012- are time-barred by the one-year statute of limitations; (2) there is no genuine dispute of material fact as to whether Plaintiff was discriminated against solely on the basis of her disability; and, (3) that Defendant is entitled to qualified immunity because Officer Walton did not violate any clearly established law. On September 9, 2014, Plaintiff filed a Response in opposition to Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (D.E. #23). On September 29, 2014, Plaintiff filed a Motion for Summary Judgment. (D.E. #27). Also on September 29, 2014, Plaintiff filed a Motion to Amend seeking to file an Amended Complaint. (D.E. #28). Defendant responded to Plaintiff's Motion for Summary Judgment on October 13, 2014 (D.E. #30), and Plaintiff filed a second Response to Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment on October 27, 2014 (D.E. #31).

II. PROPOSED FINDINGS OF FACT

On or about August 7, 2012, Officer James A. Walton ("Officer Walton") participated in the arrest of Plaintiff. (Affidavit of James A. Walton ("Walton Aff.") ¶3). Upon being called to the home of Plaintiff and Elijah Burton, Plaintiff "pushed her door closed" on Officer Walton and "repeatedly struck [him] with open hands." ( Id. ). Based upon Plaintiff's actions, Officer Walton determined that there was probable cause to arrest Plaintiff and transported her to Jail East. ( Id. ¶¶ 3-4). At no time did Officer Walton do or say anything that was any different from the usual manner in which he conducts detentions, arrests, or transportation of arrestees, nor did Officer Walton witness any other City employee proceed in any manner that would not have been proper. ( Id. )

III. ANALYSIS

A. Plaintiff's Motion to Amend

First, the Court will consider Plaintiff's Motion to Amend, as the recommendation on which pleading is the operative pleading would affect the recommendation on any dispositive motions. Upon review, Plaintiff's Motion to Amend seeks to add the following new claims against Defendant City of Memphis: discrimination on the basis of race under the ADA, 42 U.S.C. §§ 12101, et seq.; discrimination on the basis of disability and race under Title VII, 42 U.S.C. §§ 2000e, et seq.; and, discrimination on the basis of disability and race under Section 1983, 42 U.S.C. § 1983.

Rule 15 of the Federal Rules of Civil Procedure provides the manner for amending pleadings. Before trial, Rule 15(a)(1) governs amendments as a matter of course, and Rule 15(a)(2) governs "other amendments." Plaintiff's Motion to Amend does not comply with any of Rule 15(a)(1)'s provisions to amend as a matter of course; thus, Plaintiff "may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). Unless the opposing party can show undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment, a court should grant leave to file an amended pleading. Foman v. Davis, 371 U.S. 178, 182 (1962). Futility of amendment may be demonstrated if a defendant can show that a plaintiff's proposed amendment is incapable of surviving a motion to dismiss. Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1041 (6th Cir. 1991).

First, Plaintiff's Motion to Amend was filed over one month after the August 19, 2014 deadline in the Court's Scheduling Order for all motions to amend pleadings. (D.E. #16). Thus, it is recommended that Plaintiff's Motion to Amend should be denied on that basis alone. Further, it is recommended that Plaintiff's proposed amendments create undue prejudice because they were filed after Defendant's filing-and Plaintiff's filing-of dispositive motions. Finally, it is recommended that Plaintiff's proposed amendments would be futile. As to Plaintiff's proposed amended claim of discrimination on the basis of race under the ADA, the ADA does not cover discrimination on that ground. See 42 U.S.C. § 12123 (stating that the ADA covers discrimination "by reason of such disability"). As to Plaintiff's proposed amended claims of discrimination on the basis of race and disability under Title VII, Plaintiff has not alleged that he exhausted his remedies as required under Title VII. See 42 U.S.C. § 2000e(5); Brown v. General Servs. Admin, 425 U.S. 820, 823-33 (1976); Williams v. Northwest Airlines, 53 Fed.Appx. 250, 251 (6th Cir. 2002). As to Plaintiff's proposed amended claims of discrimination on the basis of race and disability under Section 1983, Plaintiff has not alleged what deprivation of constitutional rights or federal law she has suffered but instead only generally alleged that she was "deprived of rights, privileges and immunities secured to her by the federal and state civil rights laws." See Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (concluding that the first prong of a Section 1983 action is to allege the ...


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