United States District Court, W.D. Tennessee, Western Division
JOHN R. HERSHBERGER, Plaintiff,
TOWN OF COLLIERVILLE; THE COLLIERVILLE POLICE DEPARTMENT, THE COLLIERVILLE CHIEF OF POLICE, LARRY GOODWIN, in his official and individual capacities, JOHN DOE SUPERVISORY OFFICERS A and B, in their official and individual capacities, and JOHN DOE POLICE OFFICERS/JAILERS 1-3, in their official and individual capacities, Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SAMUEL H. MAYS, Jr., District Judge.
On November 8, 2013, Plaintiff John R. Hershberger ("Hershberger"), an attorney proceeding pro se, filed a Complaint against Defendants, Town of Collierville ("Collierville"), Collierville Police Department, Collierville Chief of Police Larry Goodwin ("Chief Goodwin"), John Doe Supervisory Officers A and B, and John Doe Police Officers/Jailers 1-3, alleging violations of 42 U.S.C. § 1983, the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., the Tennessee Human Rights Act, Tenn. Code. Ann. §§ 4-21-101, et seq., and the Tennessee Disability Act, Tenn. Code. Ann. § 8-50-103. (Compl., ECF No. 1-1.) The Complaint was originally filed in the Circuit Court of Shelby County, Tennessee, and the case was removed to this Court on March 4, 2014. (Notice of Removal, ECF No. 1.) By standing order, the case was referred to the United States Magistrate Judge for management and pretrial matters. (Admin. Order 2013-05, Apr. 29, 2013.) On June 25, 2014, Defendants Collierville, Collierville Police Department, and Chief Goodwin (collectively, "Defendants") moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. to Dismiss, ECF No. 10.) Hershberger did not respond to the motion.
Before the Court is the Magistrate Judge's August 13, 2014 Report and Recommendation (the "Report") recommending "that the defendants' motion to dismiss be granted as to Hershberger's claims arising under federal law and that Hershberger's state law claims be remanded to state court." (Rep., ECF No. 12.) On August 27, 2014, counsel entered a notice of appearance on behalf of Hershberger. (Notice of Appearance, ECF No. 14.) On September 8, 2014, Hershberger objected to the Magistrate Judge's Report and Recommendation. (Objection, ECF No. 17.)
For the following reasons, the Magistrate Judge's Report is ADOPTED, Hershberger's federal claims are DISMISSED, and the case is REMANDED to the Circuit Court of Shelby County, Tennessee.
According to the Complaint, during a routine traffic stop on Highway 385 East, John Doe Police Officer 1 issued Hershberger a misdemeanor citation in lieu of arrest for driving on a suspended license. Hershberger alleges that he attempted to show the officer documentation establishing that Hershberger had paid the ticket for which his license had been suspended, but the officer refused to review the document and issued the citation instead. (Compl., ¶¶ 7-8.) Hershberger's court date was November 8, 2012. (Id. ¶ 11.)
On November 4, 2012, Hershberger sustained severe lacerations to his left hand in a chainsaw accident. (Id. ¶ 9.) He underwent surgery, was administered antibiotics and pain medication, was given strict guidelines about the dressing and care of his wounds, and was advised to follow up with an orthopedic surgeon. (Id. ¶¶ 9-10.)
On the morning of his court appearance, November 8, 2012, Hershberger was "somewhat sedated from pain medication" and had failed to take his ADHD medication because of possible negative drug interactions. (Id. ¶ 11.) He arrived at the courthouse at approximately 8:50 A.M. and was informed at 9:00 A.M. by a clerical employee that court had adjourned. (Id. ¶¶ 13-15.) Hershberger, an attorney, asked to speak with the judge. The clerk denied his request. The clerk then found a bench warrant for Hershberger's arrest. (Id. ¶¶ 15-16.) After a second clerk took the bench warrant to the judge to be signed, two officers arrived at the clerk's office and arrested Hershberger, placing handcuffs on his injured hand over Hershberger's objections that his hand could not sustain pressure. (Id. ¶¶ 17-19.)
After Hershberger had been processed and confined in the Collierville Jail, he was permitted to make phone calls on his personal cellphone. When John Doe Police Officer 2 discovered Hershberger had called Judge Craig Hall ("Judge Hall"), the municipal judge, Officer 2 took Hershberger's phone before Hershberger was able to complete the call. (Id. ¶¶ 20-21.) Hershberger explained that he had an orthopedic surgery appointment that afternoon and needed a dressing change and medication for his hand. John Doe Police Officer 2 said that, if and when Judge Hall called, Officer 2 would inform Hershberger. Hershberger alleges that Judge Hall called 30 minutes later, but due to a shift change, Officer 2 was no longer on duty. (Id. ¶¶ 22-24.)
John Doe Police Officers 3 and 4 were on duty after the shift change and did not appear to know of Hershberger's conversations with Officer 2. Hershberger alleges Officers 3 and 4 did not respond to his questions or concerns about his injured hand, made misleading and mocking comments to him, and informed him that he would be able to make a phone call after the shift change. (Id. ¶¶ 24-25.) The officers told Hershberger that he would be released when someone posted bond for him, and Hershberger responded that no one could post bond if he were not given an opportunity to make a phone call. (Id. ¶ 26.) Officers 3 and 4 allegedly continued to mock Hershberger and give aggravating responses. They closed the door between the office area and his cell. (Id. ¶¶ 27-28.)
Hershberger, concerned about his hand and seeking not to be ignored, began kicking at the base of the jail cell bars. An officer came out and told him to stop, and Hershberger again requested a phone call. (Id. ¶¶ 30-33.) The officer denied his request, and Hershberger began kicking the bars again. Both officers returned and said they were tired of his behavior. Hershberger asked to speak to the shift commanding officer. John Doe Police Officers 3 and 4 then placed handcuffs and shackles on Hershberger and returned him to his cell. (Id. ¶¶ 34-36.)
Hershberger, who could no longer kick the cell door effectively, began to beat the side of the metal toilet. The officers returned, opened the cell door, and sprayed Hershberger in the face with pepper spray. Hershberger ran into the cell to take cover, and John Doe Police Officers 3 and 4 pursued him, spraying him with pepper spray as he lay on the ground. (Id. ¶¶ 37-39.) A short time later, Hershberger was removed from the jail cell, his right eye swollen and his face, head, neck, and shirt covered in pepper spray. He was taken before the judge but did not have any of the supporting documentation to show that he had paid the ticket. He alleges he was not permitted to speak to the judge. (Id. ¶¶ 43-45.)
Hershberger was transported to the Shelby County Jail, where he was permitted to use the telephone to call his wife. His lawyer posted bond within an hour and a half, Hershberger was transferred back to the Collierville Jail, and he was released at 1:00 A.M. on November 9, 2012. (Id. ¶¶ 48-51.)
Hershberger alleges violations of 42 U.S.C. § 1983, the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution, and the ADA. (Compl.) The Court has federal question jurisdiction under 28 U.S.C. § 1331. The Court has supplemental jurisdiction over the Hershberger's state law claims under 28 U.S.C. § 1367 because they derive from a "common nucleus of operative fact." See 28 U.S.C. § 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).
III. Standard of Review
A. Pro Se Litigant Standard Not Applicable
"Pro se [pleadings] are [generally] to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)(internal quotation marks omitted). Where a pro se plaintiff is a licensed attorney, however, the pleadings are "not entitled to be considered on a more relaxed standard." Morrison v. Tomano, 755 F.2d 515, 517 (6th Cir. 1985); see also Harbulak v. Suffolk Cnty., 654 F.2d 194, 198 (2d Cir. 1981) (holding that, when a pro se plaintiff is a lawyer, he "cannot claim the special consideration which the courts customarily grant to pro se parties").
B. Standard for Review of Magistrate Judge's Report
Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district court duties to magistrate judges. See United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869-70 (1989)); see also Baker v. Peterson, 67 F.Appx. 308, 310 (6th Cir. 2003). "A district judge must determine de novo any part of a magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). After reviewing the evidence, the court is free to accept, reject, or modify the proposed findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district court is not required to review-under a de novo or any other standard-those aspects of the report and recommendation to which no proper objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the findings and rulings of the magistrate judge to which no specific objection is filed. Id. at 151.
C. Standard for Motion to Dismiss
In addressing a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support a claim "by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007).
This standard requires more than bare assertions of legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). "[A] formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. To survive a motion to dismiss, a complaint must contain sufficient facts "to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere ...