United States District Court, E.D. Tennessee
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
civil action is before the Court on the following motions:
(1) plaintiff's Motions for Entry of Judgment by Default
[Docs. 20, 21]; (2) defendant Kris Lewallen's
(“Lewallen”) Motion for Extension of Time To
Answer or Otherwise Plead [Doc. 25]; (3) defendant Darlene
Walker's (“Walker”) Motion To Dismiss [Doc.
27]; (4) defendant Thomas Barclay's
(“Barclay”) Motion To Dismiss [Doc. 36]; (5)
defendants Bill Miller (“Miller”) and Blake
Murphy's (“Murphy”) Motion To Dismiss [Doc.
41]; (6) defendant Lewallen's Motion To Dismiss [Doc.
43]; (7) plaintiff's Proposed Motion To Supplement and or
Amend Complaint [Doc. 74]; and (8) plaintiff's Objection
to United States Magistrate Judge Order Entered 06/16/17
Granting Defendants Second Motion To Stay Discovery [Doc.
92]. The parties filed responses and replies to the pending
motions [Docs. 26, 30, 35, 38, 47-49, 51, 54, 59, 69, 75-78,
reasons that follow, the Court will: (1) deny plaintiff's
Motions for Entry of Judgment by Default; (2) grant defendant
Lewallen's Motion for Extension of Time To Answer or
Otherwise Plead; (3) grant defendant Walker's Motion To
Dismiss; (4) grant defendant Barclay's Motion To Dismiss;
(5) grant defendants Miller and Murphy's Motion To
Dismiss; (6) grant defendant Lewallen's Motion To
Dismiss; (7) deny plaintiff's Proposed Motion To
Supplement and or Amend Complaint; and (8) deny as moot
plaintiff's Objection to United States Magistrate Judge
March 7, 2014, plaintiff alleges that he was drugged by his
live-in girlfriend, Angeletta Crowley, and her son, Corbin
Crowley, by mixing Xanax with plaintiff's food [Doc. 1 p.
3]. As a result, plaintiff passed out [Id. at 4].
Angeletta and Corbin Crowley then robbed plaintiff of his
prescription medication, which included 90 Morphine Sulfate
60 milligram (“MG”) tablets and 120 Oxycodone 15
MG tablets [Id. at 4]. The next day, plaintiff filed
a police report, and defendant Miller, an Oneida City Police
Officer, was assigned to investigate plaintiff's
complaint [Id.]. During investigation, Corbin
Crowley admitted to Miller that Angeletta Crowley took
plaintiff's medication [Id.]. Angeletta Crowley
was not, however, arrested or charged with the crime
month later, plaintiff was arrested and charged with the
felony offense of sale of a schedule II narcotic, based on
information provided by a confidential informant
[Id.]. At plaintiff's arraignment, the state
court appointed defendant Walker to represent plaintiff
[Id.]. Plaintiff informed Walker that he had never
sold drugs [Id.]. Walker later presented plaintiff
with a plea bargain offer from the state, which he accepted
after learning that Walker did not file any discovery motions
or further research plaintiff's claims regarding Corbin
and Angeletta Crowley, as he had requested [Id.].
and Angeletta Crowley signed affidavits stating facts
concerning plaintiff's arrest that he claims would have
exonerated him if presented to a jury [Id. at 5].
After sending copies of these affidavits to Walker, plaintiff
requested that Walker move to withdraw his guilty plea
[Id.]. Corbin Crowley informed plaintiff that
Barclay from the District Attorney's Office called him
questioning him about the affidavits [Id.]. Barclay
told Corbin that he does not have to stick to his statements
that he made in the affidavit [Id.]. Following the
phone call, Angeletta and Corbin Crowley allegedly began
receiving daily calls from defendant Murphy, a drug agent for
the Oneida City Police Department, threatening to arrest them
for signing the affidavits [Id.]. Because of the
pressure from Murphy and Barclay, Angeletta and Corbin
Crowley changed their stories and recanted the statements in
their affidavits [Id.].
confidential informant met with drug agents Lewallen and
Murphy and stated that he could go to plaintiff's
residence and purchase Oxycodone pills from plaintiff for
$20.00 each [Id. at 6]. Murphy searched the
confidential informant's vehicle, and Lewallen searched
the informant's person [Id.]. Neither search
revealed narcotics or money [Id.]. Lewallen then
gave the informant $40.00 in cash, along with a recording
device, and the informant went to plaintiff's house to
exchange the money for the oxycodone [Id.].
the confidential informant's purchase of the two
Oxycodone pills, plaintiff was arrested for a second time on
August 4, 2014, and charged with two counts of sale of a
schedule II narcotic and one count of coercion [Id.
at 5]. Despite an objection by Barclay, the state court again
appointed Walker to represent plaintiff with regard to these
new charges [Id.]. Although plaintiff originally
intended to take the matter to trial, he chose to accept the
guilty plea offered to him [Id. at 8]. Pursuant to
the guilty plea, plaintiff was sentenced to a total of five
years' unsupervised probation and a fine of $6, 000.00
December 15, 2014, plaintiff filed a pro se Rule 28
post-conviction motion for relief from judgment and sentence,
along with a motion for appointment of counsel and for a full
evidentiary hearing [Id.]. In plaintiff's Rule
28 motion, he presented five grounds that he argued warranted
the dismissal of charges for which he was convicted: (1) the
unlawful obtainment of plaintiff's conviction and
sentence; (2) the failure of due process of law because the
prosecution withheld evidence that favored plaintiff; (3) the
violation of plaintiff's right to a fair trial by
impartial jury, confrontation, cross-examination, and to not
be a witness against himself; (4) plaintiff's counsel
actively representing conflicting interests, thereby
providing plaintiff with ineffective assistance of counsel;
and (5) plaintiff's plea of guilty being based on
coercion, manipulation, inducements, incomprehension, terror,
ignorance, and threats [Id. at 9].
Complaint before this Court, plaintiff now claims that
Walker, Barclay, Murphy, Lewallen, and Miller committed the
tortious acts of fraud upon the Court and malicious
prosecution, which in turn deprived plaintiff of life,
liberty, and property without due process of law, in
violation of 18 U.S.C. § 1983 [Id. at 6, 12].
Court will address the following pending motions in turn: (1)
plaintiff's motions for default judgment, (2)
plaintiff's motion to amend his complaint, (3)
defendants' motions to dismiss, and (4) plaintiff's
motion for reconsideration of Magistrate Judge Guyton's
Motions for Default Judgment
first Motion for Default Judgment, plaintiff asks the Court
to enter default judgment against defendant Lewallen because
Lewallen failed to respond within twenty-one days following
service of the summons, which typically entitles a plaintiff
to judgment by default [Doc. 20 pp. 1-2]. In his second
Motion for Default Judgment, plaintiff asks the Court to
enter default judgment against defendant Barclay [Doc. 21 p.
1], similarly because Barclay failed to respond with an
answer or a motion as required by Rule 12 of the Federal
Rules of Civil Procedure [Id. at 2].
of default is appropriate only where a party “has
failed to plead or otherwise defend.” Fed.R.Civ.P.
55(a). Default judgment is an “extreme sanction”
and should not be imposed absent “a clear record of
delay or contumacious conduct” by the offending party
and when “no alternate sanction would protect the
integrity of the pre-trial proceedings.” Davis v.
City of Dearborn, No. 2:09-CV-14892, 2011 WL 1060744, at
*1- 2 (E.D. Mich. Mar. 23, 2011) (internal citations
should consider four specific factors when determining
whether to impose default judgment: “(1) whether the
disobedient party acted in willful bad faith; (2) whether the
opposing party suffered prejudice; (3) whether the court
warned the disobedient party that failure to cooperate could
result in a default judgment; and (4) whether less drastic
sanctions were imposed or considered.” Grange Mut.
Cas. Co. v. Mack, 270 F. App'x 372, 376 (6th Cir.
regard to plaintiff's motion for default judgment against
defendant Lewallen [Doc. 20], it appears to the Court that
plaintiff served Pam Lawson, rather than Lewallen [Doc. 26 p.
1]. Under Federal Rule of Civil Procedure 4(e), service may
be made upon an individual by: (1) following state law for
serving a summons; (2) delivering a copy of the summons and
complaint to the individual personally; (3) leaving a copy of
the summons and complaint at the individual's dwelling or
place of abode with someone of suitable age and discretion
who resides there; or (4) delivering a copy of each to an
agent authorized by appointment to receive service of
process. Fed.R.Civ.P. 4(e). Thus, plaintiff's service
upon Pam Lawson did not properly effect service upon Lewallen
because plaintiff has offered no evidence that Pam Lawson is
Lewallen's authorized agent by appointment or operation
of law, or that Lewallen evaded or attempted to evade service
[Id. at 2]. See Tenn. R. Civ. P. 4.04
(stating that service upon an individual shall be executed by
“delivering a copy of the summons and of the complaint
to the individual personally, or if he or she evades or
attempts to evade service, by leaving copies thereof . . .
with some person of suitable age and discretion [residing at
the individual's abode]”).
because plaintiff did not properly serve Lewallen initially,
the Court finds that an entry of default judgment against
Lewallen would be inappropriate. Furthermore, plaintiff has
not provided the Court with evidence that Lewallen acted in
willful bad faith or that plaintiff has suffered prejudice
due to the minor delay. Grange Mut. Cas. Co., 270 F.
App'x at 376. Indeed, Lewallen filed his motion for an
extension of time to answer [Doc. 25] on October 26, 2016,
approximately one month after plaintiff attempted to serve
him [Doc. 6]. Consequently, the Court will deny
plaintiff's motion for default judgment against defendant
plaintiff's motion for default judgment against defendant
Barclay [Doc. 21], the Court notes that Barclay's counsel
entered a notice of appearance [Doc. 8] and filed a motion
for an extension of time to respond to plaintiff's
complaint [Doc. 16] within twenty-one days of service upon
Barclay. Thus, the Court finds that Barclay did not fail to
plead or otherwise defend, and default judgment is not,
therefore, warranted as to defendant Barclay. See
Fed. R. Civ. P. 55. Consequently, the Court will also deny
plaintiff's motion for default judgment against Barclay.
Motion To Amend Complaint
also moves the Court to grant him permission to supplement
and/or amend his complaint, pursuant to Federal Rule of Civil
Procedure 15 [Doc. 74 p. 1]. Plaintiff seeks this permission
for a number of reasons, including that he made a mistake as
to the identity of the parties, and the original complaint
should have been brought against the following additional
defendants: the Honorable E. Shayne Sexton (“Judge
Sexton”), David Pollard (“Pollard”), and
Jeffrey C. Coller (“Coller”) [Id. at
Walker and Lewallen submit that plaintiff's motion to
amend is deficient because it does not set forth which
allegations in the proposed amended complaint are new,
modified, or have been removed from the original complaint
[Doc. 75 p. 1; Doc. 76 p. 1]. However, pro se
litigants, such as plaintiff, are held to “less
stringent” standards than lawyers. See Jourdan v.
Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Consequently,
the Court will decline to deny plaintiff's motion to
amend on this ground.
also claim that the Court should deny plaintiff's motion
because the proposed amendments are futile [Doc. 75 p. 2;
Doc. 76 p. 2; Doc. 78 p. 1]. Specifically, defendant Barclay
argues that the new claims in the proposed amended complaint
would be futile due to the defense of absolute immunity [Doc.
77 p. 1]. He also argues that the proposed amended complaint
violates Federal Rule of Civil Procedure 8.01 ...