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Moses v. Gardner

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

April 12, 2017

PAMELA MOSES and TAJ' MOSES, Plaintiffs,
v.
PHYLLIS GARDNER and JANE or JOHN DOE, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          SHERYL H. LIPMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is Chief Magistrate Judge Diane K. Vescovo's (the “Chief Magistrate Judge”) Report and Recommendation for Sua Sponte Dismissal of First Amended Complaint (ECF No. 54), filed October 11, 2016. The Magistrate Judge recommends dismissing Plaintiffs' claims against Judge Phyllis Gardner (“Judge Gardner”) as barred by the doctrine of absolute immunity. (Id. at 16-28.) In the alternative, the Magistrate Judge recommends dismissing Plaintiffs' federal law claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted and declining to exercise supplemental jurisdiction over Plaintiffs' common law claims. (Id. at 29-47.) Plaintiff Pamela Moses (“Moses”) filed her Objection to the Chief Magistrate Judge's Report and Recommendation, together with accompanying exhibits, on October 28, 2016. (ECF No. 56.) For the following reasons, the Court ADOPTS the Magistrate Judge's Report and Recommendation (hereinafter, the “Report”) and DISMISSES Moses's First Amended Complaint (ECF No. 10).[1]

         I. STATEMENT OF THE CASE

         On September 12, 2014, pro se Plaintiffs Pamela Moses and Taj' Moses[2] filed a Complaint against Defendants Judge Phyllis Gardner (“Judge Gardner”) and Jane or John Doe, alleging common law claims of slander, libel, defamation, false light invasion of privacy, malicious prosecution, wrongful use of civil proceedings, invasion of privacy, conspiracy, interference with contract and economic advantage and intentional infliction of emotional distress. (Compl., ECF No. 1.) Plaintiffs' First Amended Complaint (ECF No. 10), filed October 7, 2014, added federal law claims pursuant to 28 U.S.C. § 1981 and 1983.

         Moses appears to base much of the First Amended Complaint on a September 8, 2014, Petition for Order of Protection, filed by Judge Gardner in the General Sessions Court of Shelby County, Tennessee. (ECF No. 1-1.) In support of the Petition, Judge Gardner indicated that Moses had stalked her and described seven instances of conduct that made the Judge “feel terrorized, frightened, intimidated, and threatened.” (Id.) Specifically, Judge Gardner asserted that:

1. After Respondent was held in contempt of court for impersonating someone else [on February 19, 2014], she became combative and refused to leave Petitioner's courtroom. While in police custody thereafter, Respondent escaped

         . . . .

2. Respondent started a Facebook page titled “Don't Re-Elect Judge Phyllis Gardner” on which she has a picture of Petitioner against a backdrop of individuals wearing Ku Klux Kland robes . . . . Respondent's conduct caused members of the legal community to contact Petitioner because they feared for her safety, citing Moses's prior felony conviction for aggravated assault, her mental health history, substance abuse, violent anger issues, and ready access to firearms . . . .
3. While Petitioner was campaigning during early voting, Respondent approached Petitioner and her group of supporters, got very close to Petitioner, and began yelling loudly, causing quite a disturbance. Petitioner's supporters were frightened and feared for Petitioner's safety. . . .
4. Following the creation of the above-referenced Facebook page, Respondent has repeatedly posted false statements regarding Petitioner. For example, Respondent used the Facebook page to state, “If you Vote for Re-elect Judge Phyllis Gardner you are voting for Slavery and official oppression. Please don't vote for her.” . . .
5. Respondent has been handing out flyers containing inflammatory statements on the steps of the Shelby County Courthouse . . . with the heading “Remove Phyllis Gardner from Office.” . . .
6. Respondent attempted to enter the swearing-in ceremony for recently elected judges, and she was barred from doing so due to her engaging in loud and disruptive behavior. Officer Sneed barred Respondent from the courtroom, and afterwards, Respondent began loudly proclaiming “Don't shoot me!” . . .
7. Respondent has filed multiple, groundless civil complaints against Petitioner (or naming Petitioner as a party). Respondent's efforts to attack Petitioner through her abuse of the legal system, her violent criminal background, and her ongoing belligerent behavior has caused Judge ...

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