United States District Court, W.D. Tennessee, Eastern Division
ORDER ADOPTING REPORT AND RECOMMENDATION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
D. TODD UNITED STATES DISTRICT JUDGE
4, 2016, Plaintiff Cindy Mitchell, a resident of Paducah,
Kentucky, filed a pro se complaint pursuant to 42
U.S.C. § 1983, accompanied by a motion to proceed in
forma pauperis. (ECF Nos. 1 & 2.) United States
Magistrate Judge Edward G. Bryant granted leave to proceed
in forma pauperis on May 11, 2016. (ECF No. 5.) On
November 2, 2016, Magistrate Judge Bryant issued a Report and
Recommendation (“R&R”) in which he
recommended the Court dismiss the case sua sponte
for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). (ECF No. 7.) Plaintiff filed a document on
November 10, 2016, which the Court construes as an objection
to the R&R. (ECF No. 8.)
has sued Christy Little, a General Sessions and Juvenile
Court Judge in Madison County, Tennessee; Cynthia Herman and
Jimmy Herman, the adoptive parents of Plaintiff's minor
son; and Jessica Wolfe Schilladay, identified only as a
“caseworker, ” who the Court surmises may be
employed by the Tennessee Department of Children's
Services. Plaintiff alleges she gave birth to her
son in 2008, while she was incarcerated in the Madison County
Criminal Justice Complex, and states that her “mind had
been altered” by her abuse of crack cocaine. (ECF No. 1
at 2.) Defendant Little allegedly told Plaintiff that if she
did not surrender her parental rights they would be
terminated. However, Little also told Plaintiff her son's
adoption would be open and that if she ever changed her life
she could have contact with him and the records would never
be sealed. (Id.) Plaintiff states she is clean now
and that she wants to see her son. (Id.) She alleges
her rights have been violated and asks for a federal court
date with Defendant Little, for the other Defendants to be
subpoenaed to bring her son into court, and to be allowed
visitation with her son. (Id.) Plaintiff alleges
that she has “not been treated fair at all.”
extent Plaintiff is asking this Court to overturn or modify a
decision made by Defendant Little,  Magistrate Judge Bryant
concluded the claims are barred by the
Rooker-Feldman doctrine. “The
Rooker-Feldman doctrine applies ‘when a
plaintiff asserts before a federal district court that a
state court judgment itself was unconstitutional or in
violation of federal law.'” Davis v.
Johnson, No. 16-2499, 2016 WL 6553684, at *2 (6th Cir.
Nov. 4, 2016) (quoting McCormick v. Braverman, 451
F.3d 382, 389 (6th Cir. 2006)).
objections, Plaintiff reiterates that her mind had been
altered by drug abuse and that she should not have been
required to make such a momentous decision under those
circumstances. She adds that her appointed attorneys did not
adequately represent her and requests that this case not be
Court finds no error in Magistrate Judge Bryant's
conclusion that the Rooker-Feldman doctrine bars
Plaintiff's claims against Defendant Little. If Defendant
Little denied Plaintiff's request for visitation, the
appropriate remedy would have been to appeal that decision
through the proper procedures, not to file a federal lawsuit.
regard to any claims against the Hermans, they cannot be sued
under 42 U.S.C. § 1983 because they do not act under
color of state law. “A § 1983 plaintiff may not
sue purely private parties.” Brotherton v.
Cleveland, 173 F.3d 552, 567 (6th Cir. 1999). Thus,
“[i]n order to be subject to suit under § 1983
claim, defendant's actions must be fairly attributable to
the state.” Collyer v. Darling, 98 F.3d 211,
231-32 (6th Cir. 1997). The complaint does not allege that
the Hermans were state actors for purposes of § 1983.
complaint does not allege how Defendant Schilladay's
actions violated Plaintiff's rights. In fact, the
complaint does not describe any specific actions taken by
Schilladay whatsoever. Therefore, Plaintiff has not stated a
claim against her under § 1983.
foregoing reasons, Plaintiff's objections are overruled,
and the Court ADOPTS Magistrate Judge Bryant's R&R.
This case is DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which
relief may be granted.
to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate
Procedure 24(a), the Court CERTIFIES that an appeal by
Plaintiff would not be taken in good faith and DENIES leave
to appeal in forma pauperis. Accordingly, if
Petitioner files a notice of appeal, she must also pay the
entire $505 appellate filing fee or file a motion to proceed
in forma pauperis and supporting affidavit in the
Sixth Circuit Court of Appeals.
Clerk is directed to prepare a judgment.