United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
H. LIPMAN, UNITED STATES DISTRICT JUDGE
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.
STATEMENT OF THE CASE
September 12, 2014, pro se Plaintiffs Pamela Moses
and Taj' Moses 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.
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 ...