United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
AMEND COMPLAINT AND ORDERING PARTIAL SUA SPONTE
T. Fowlkes, Jr. United States District Judge
the Court is Plaintiff Pamela Moses' Objections to the
Report and Recommendation; Plaintiff filed her Objections on
October 26, 2017. (ECF No. 8.) On September 18, 2017,
Plaintiff filed her pro se Complaint titled
Complaint Damages for Malicious Prosecution, Abuse of Process
and Declaratory Relief. (ECF No. 1.) In her Complaint,
Plaintiff asserts claims under 42 U.S.C. § 1983 and
Tennessee law resulting from her warrantless arrest in
September 2016 and subsequent prosecution. (ECF Nos. 1 &
9.) Accompanying Plaintiff's Complaint is her pro
se motion seeking leave to proceed in forma
pauperis. (ECF No. 2.) In accordance with Administrative
Order 2013-05, the case was assigned to the Chief Magistrate
Judge for management of all pretrial matters, including
screening of the Complaint to determine whether or not
summons shall be issued by the Clerk pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and Local Rule 4.1(b)(2). (ECF No. 7,
1-2.) On October 10, 2017, the Chief Magistrate Judge issued
a Report and Recommendation granting Plaintiff's Motion
to Proceed In forma Pauperis and otherwise
recommending that (1) Plaintiff's claims against the
SCSO, Sheriff Oldham, and Sgt. Cunningham in his official
capacity be dismissed sua sponte for failure to
state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and Fed.R.Civ.P. 12(b)(6),
and (2) Plaintiff should be allowed to proceed on her Section
1983 and state-law claims against Sgt. Cunningham in his
personal capacity and service on the claims should be issued
accordingly. (ECF No. 7.)
October 26, 2017, Plaintiff filed her Objections to the
Report and Recommendation. (ECF No. 8.) On the same date,
Plaintiff also filed her Amended Complaint, entered as a
Motion for Leave to Amend Complaint. (See ECF No.
9.) Upon de novo review of Plaintiff's Amended
Complaint, the Court finds as follows: (1) Plaintiff's
ADA/ADDA claims, Title VII claims, equal protection claims,
and due process claims under the Fifth Amendment, should be
dismissed for failure to state a claim; (2) as to
Plaintiff's claim against the Shelby County Sheriff's
Office (“SCSO”), construed instead against Shelby
County, Plaintiff should be allowed to proceed on all of her
Section 1983 claims and on her state law harassment claim;
(3) Plaintiff's claims against Sheriff Oldham and Sgt.
Cunningham should be dismissed to the extent they are
official capacity suits and allowed to proceed to the degree
the claims allege the personal liability of each Defendant;
and (4) Plaintiff's claims against Attorney General
Herbert Slatery and District Attorney Amy Weirich should be
dismissed for failure to state a claim.
FINDINGS OF FACT
Report and Recommendation, the Chief Magistrate Judge
provides, and this Court adopts and incorporates, proposed
findings of fact in this case. (ECF No. 7, 2-6.) The Court
additionally incorporates into its analysis changes made in
Plaintiffs pleadings through her Motion for Leave to Amend
Complaint, which is also construed as her Amended Complaint.
passed 28 U.S.C. § 636(b) “to relieve some of the
burden on the federal courts by permitting the assignment of
certain district court duties to magistrates.”
United States v. Curtis, 237 F.3d 598, 602 (6th Cir.
2001). Pursuant to the provision, magistrate judges may hear
and determine any pretrial matter pending before the Court,
except various dispositive motions. 28 U.S.C. §
636(b)(1)(A). Upon hearing a pending matter, “[T]he
magistrate judge must enter a recommended disposition,
including, if appropriate, proposed findings of fact.”
Fed.R.Civ.P. 72(b)(1); see also Baker v. Peterson,
67 F. App'x 308, 310 (6th Cir. 2003). Any party who
disagrees with a magistrate's proposed findings and
recommendation may file written objections to the report and
recommendation. Fed.R.Civ.P. 72(b)(2).
standard of review that is applied by the district court
depends on the nature of the matter considered by the
magistrate judge. See Baker v. Peterson, 67 F.
App'x 308, 310 (6th Cir. 2003) (citations omitted)
(“A district court normally applies a ‘clearly
erroneous or contrary to law' standard of review for
nondispositive preliminary measures. A district court must
review dispositive motions under the de novo
standard.”). Upon review of the evidence, the district
court may accept, reject, or modify the proposed findings or
recommendations of the Magistrate Judge. Brown v. Board
of Educ, 47 F.Supp.3d 665, 674 (W.D. Tenn. 2014);
see also 28 U.S.C. § 636(b)(1). The court
“may also receive further evidence or recommit the
matter to the Magistrate Judge with instructions.”
Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015
U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015). A
district judge should adopt the findings and rulings of the
magistrate judge to which no specific objection is filed.
Brown, 47 F.Supp.3d at 674. Moreover, “Overly
general objections do not satisfy the objection
requirement.” Spencer v. Bouchard, 449 F.3d
721, 725 (6th Cir. 2006). Objections “must be clear
enough to enable the district court to discern those issues
that are dispositive and contentious.” Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Thus,
objections disputing the correctness of the magistrate's
recommendation but failing to specify the findings believed
to be in error are too general. See Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995).
28 U.S.C. § 1915(e)(2) Screening
to Local Rule 4.1, service will not issue in a pro
se case where the pro se plaintiff has been
granted leave to proceed in forma pauperis until the
complaint has been screened under 28 U.S.C. §
1915(e)(2)(B). LR 4.1(b). Specifically, courts are required
to screen in forma pauperis complaints and dismiss
any complaint, or portion thereof, if the allegation of
poverty is untrue or if the action (i) is frivolous or
malicious, (ii) fails to state a claim on which relief may be
granted, or (iii) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Standard of Review for Failure to State a Claim
assessing whether Plaintiffs Complaint states a claim upon
which relief may be granted, the standards under Rule
12(b)(6) of the Federal Rules of Civil Procedure, as stated
in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009),
and Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-57 (2007), are applied. Hill v. Lappin, 630 F.3d
468, 470 (6th Cir. 2010). “Accepting all well-pleaded
allegations in the complaint as true, the Court
‘considers] the factual allegations in [the] complaint
to determine if they plausibly suggest an entitlement to
relief.'” Williams v. Curtin, 631 F.3d
380, 383 (6th Cir. 2011) (alteration in original) (quoting
Iqbal, 556 U.S. at 681). Pleadings that are no more
than conclusions are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 679. “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.”
Id.; see also Twombly, 550 U.S. at 555 n.3.
Additionally, although not free from basic pleading
requirements, pro se pleadings are “held
‘to less stringent standards than formal pleadings
drafted by lawyers, ' and should therefore be liberally
construed.” Curtin, 631 F.3d at 383 (quoting
Martin v. Overton, 391 F.3d 710, 712 (6th Cir.
2004)); see also Brown v. Matauszak, 415 F.
App'x 608, 613 (6th Cir. 2011) (affirming that a court
cannot create a claim which a plaintiff has not spelled out
in their pleading).
preliminary matter, the Court finds Plaintiff's
Objections to the Report and Recommendation are clearly
general in nature, ambiguous and lack sufficient specificity
for this Court to render an analysis. As such, the Court
disregards these general objections. See Miller, 50
F.3d 373, 380 (6th Cir. 1995). In condemning overly-general
objections, the Sixth Circuit, in Spencer v.
Bouchard, affirmed that objections disputing the
correctness of the magistrate's recommendation but
failing to specify the findings believed to be in error are
too general. Spencer, 449 F.3d at 725 (6th Cir.
2006) (quoting Currie, 50 F.3d at 380). Here,
Plaintiff submits that the Chief Magistrate Judge generally
erred in recommending that this Court dismiss any of
Plaintiff's claims. (ECF No. 8, 1-2.) Thus,
Plaintiff's failure to specify the findings she believes
to be in error results in an overly-general objection that
does not satisfy the objection requirement. Spencer,
449 F.3d at 725.
October 26, 2017, Plaintiff filed an Amended Complaint,
entered as a Motion for Leave to Amend Complaint. (ECF No.
9.) This Court liberally construes the filing as both
Plaintiff's Motion for Leave to Amend Complaint and her
Fed.R.Civ.P. 15(a), a district court may allow a plaintiff to
amend her complaint even when the complaint is subject to
dismissal on initial screening under the Prison Litigation
Reform Act (“PLRA”). Logue v. United States
Marshals, No. 1:13-cv-348, 2013 U.S. Dist. LEXIS 108242,
at *1-2 (S.D. Ohio Aug. 1, 2013); see also LaFountain v.
Harry, 716 F.3d 944, 951 (6th Cir. 2013). Rule 15(a)
states that a party may amend its pleading once as a matter
of course within 21 days after serving it and in all other
cases, the court should freely give leave when justice so
requires. See Fed. R. Civ. P. 15(a); see also
LaFountain, 716 F.3d at 951. For example, a motion to
amend a complaint should be denied if the amendment would be
futile, would result in undue delay or prejudice to the
opposing party, is brought in bad faith or for dilatory
purposes, etcetera. Foman v. Davis, 371 U.S. 178,
182 (1962). Here, the granting of Plaintiff's Motion to
Amend Complaint would not be futile because the substance of
her Amended ...