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Harper v. Houston

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

January 10, 2018




         Before the Court is Defendant Tina Houston's Motion to Dismiss (ECF No. 16) filed on May 24, 2017. Plaintiff Rodney Harper, proceeding pro se, has responded in opposition. Pursuant to Administrative Order 2013-05, this case is assigned to the United States Magistrate Judge for management of all pretrial matters, including the issuance of reports and recommendations on dispositive motions. On November 15, 2017, the Magistrate Judge issued a report recommending that the Court grant Houston's Motion to Dismiss. Plaintiff thereafter filed timely objections to the Magistrate Judge's report and recommendation, and Houston has answered Plaintiff's objections. For the reasons set forth below, the Court ADOPTS the Magistrate Judge's recommendation and GRANTS Houston's Motion to Dismiss.


         The Magistrate Judge has set out the following background information in her report: on February 27, 2017, Plaintiff filed a Complaint alleging violations of his constitutional rights and the intentional infliction of emotional distress under Tennessee law.[1] In support of his claims, Plaintiff alleges that Houston is employed as a receptionist in the Shelby County Attorney's Office in Memphis, Tennessee. (Compl. ¶ 2). The Complaint alleges that on or about August 23, 2016, Plaintiff came to the Shelby County Attorney's Office and presented a document to have a county official “stamp, date, and sign [it to] acknowledge that the document [had] been received.” (Id. at 4.) When Plaintiff remarked that “it would take an act of Congress to get” someone to acknowledge his document in this way, Houston pressed a panic button to request assistance from building security. (Id.) Plaintiff was escorted from the County Building and is now required to have Shelby County Sheriff's deputies accompany him whenever he enters the County Building. (Id.) From these factual premises, the Complaint alleges that Houston violated Plaintiff's First Amendment free speech rights; his freedom of movement and right to access the County Building; and his Fourteenth Amendment right to due process and equal protection under the law. (Id. at 4-6.)

         In her Motion to Dismiss, Houston argues that the Complaint fails to state a claim for the violation of any of Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983. Houston further argues that because the Complaint is devoid of a plausible claim for relief under federal law, the Court should decline supplemental jurisdiction over Plaintiff's claims under Tennessee law. The state law claims are likewise subject to dismissal for failure to state a plausible claim for relief. Defendant argues in the alternative that she is entitled to qualified immunity on any claim that she acted under color of law to deny Plaintiff his constitutional rights. For these reasons the Court should dismiss the Complaint with prejudice.

         The Magistrate Judge has recommended that the Court grant Defendant's Rule 12(b)(6) Motion. First, the Magistrate Judge concluded that the Complaint does not state an individual capacity claim under 42 U.S.C. § 1983 for the violation of any constitutional right. Plaintiff failed to state a plausible First Amendment claim against Defendant in her individual capacity. The Magistrate Judge reasoned that Plaintiff does not have a constitutional right to free speech in an otherwise non-public, government office setting. While Plaintiff denies that he was disruptive or threatening, he does not allege that Houston acted as she did in an effort to suppress Plaintiff's speech or discriminate against some particular viewpoint. The Complaint merely alleges that Houston felt unsafe when dealing with Plaintiff and pressed a panic button to request assistance from security. Next, the Magistrate Judge concluded that Plaintiff had failed to state a plausible equal protection claim against Houston in her individual capacity. There is no allegation in the Complaint that Houston treated Plaintiff differently than any other similarly situated individual. Without this essential element of the claim, Plaintiff has not shown that Houston violated his right to equal protection. Therefore, the Complaint does not state a plausible section 1983 claim against Houston in her individual capacity.

         With respect to Plaintiff's Fourteenth Amendment due process claim, the Magistrate Judge construed the claim as one against Houston in her official capacity. Plaintiff alleges that Houston's decision to summon security personnel is actually a county policy or custom and that the policy as applied to Plaintiff deprived him of his right to freedom of movement in the County Building. Plaintiff alleges that the county policy or custom implicates the Due Process Clause of the Fourteenth Amendment. The Magistrate Judge acknowledged that Plaintiff has a fundamental right to freedom of movement and travel but held that Plaintiff had no right to travel to a specific place such as the County Building. Shelby County, Tennessee may limit the access a visitor has to the County Building where as here security has previously escorted the visitor from the building. The Magistrate Judge also pointed out the inconsistency in Plaintiff's allegations that Houston failed to comply with county policy on the one hand but that the County's policy or custom was the moving force behind the alleged deprivation of Plaintiff's constitutional rights. As a result, the Complaint failed to state a plausible Fourteenth Amendment claim. The Magistrate Judge finally recommended that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims.

         Plaintiff has filed timely objections to the Magistrate Judge's report and recommendation. Plaintiff's brief consists of 73 pages of what appear to be extended quotations from legal treatises, though Plaintiff does not identify the treatises or otherwise provide citations to the sources. The memorandum discusses a number of topics: the authority of United States Magistrate Judges; the Federal Rule of Civil Procedure 8(a) notice pleading standards announced in Twombly and Iqbal; and the elements of 42 U.S.C. § 1983, just to name a few. None of the materials quoted, however, show why the Court should reject the Magistrate Judge's recommendation. Despite its voluminous discussion of the law, Plaintiff's brief never applies any of the law cited to the facts of Plaintiff's case. When stripped of its meandering legal boilerplate, Plaintiff's brief raises only two specific objections to the Magistrate Judge's recommendation: (1) the Magistrate Judge accepted Defendant's version of the facts without holding an evidentiary hearing; and (2) the Magistrate Judge applied inapposite law to hold that Plaintiff should not be given leave to amend his pleadings.

         In addition to his recitation of law, Plaintiff's objections also raise new factual claims about what happened during his visit to the Shelby County Attorney's Office in August 2016, primarily to demonstrate that Houston did not have “probable cause” to call for security or grounds to fear for her safety. Plaintiff states that he came to the Shelby County Attorney's Office on the date in question to see Assistant County Attorney Joe Leibovich and that he did in fact see Mr. Leibovich and completed his business there. During Plaintiff's visit to the Shelby County Attorney's Office, Plaintiff observed Houston talking to another employee at her desk. Houston gave Plaintiff no reason to believe that Houston feared for her safety or regarded Plaintiff as a threat. Plaintiff further alleges that he returned to the County Building in September 2016 and that he was not required to have an escort during this subsequent trip. Plaintiff asserts then that whatever the security protocol may be, county officials do not enforce the escort rule consistently. Plaintiff has attached as an exhibit to his objections (ECF No. 31-1) an unverified email from Assistant County Attorney Joseph Leibovich, referring to the August 23, 2016, meeting and requesting instructions from Plaintiff on how to transmit settlement funds to him.

         Houston has filed a response to Plaintiff's objections. Houston first argues that the Court should reject Plaintiff's claim that an evidentiary hearing is required before the dismissal of the Complaint. Houston points out that under Rule 12(b)(6), the Court's analysis is confined to the well pleaded allegations of the Complaint. Plaintiff has not shown with specificity why the Magistrate Judge's assessment of his pleadings was erroneous. Houston also argues that Plaintiff has not properly raised his request to amend his pleadings by making the request for the first time in his objections to the Magistrate Judge's report and recommendation. Other than a cursory statement about being granted leave to amend, Plaintiff has not shown how an amended pleading would cure the defects found in the initial pleading. Houston argues that the Court should reject the remainder of Plaintiff's “scattershot” objections because they lack particularity. Based on Plaintiff's failure to show why the Court should not adopt the Magistrate Judge's recommendation, Houston contends that her Motion to Dismiss should be granted.


         Pursuant to 28 U.S.C. § 636, the Magistrate Judge may issue a report and recommendation for any dispositive motion. 28 U.S.C. § 636(b)(1)(B). The Court must “make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made.” § 636(b)(1)(C). After reviewing the evidence, the Court is free to accept, reject, or modify the proposed findings or recommendations of the Magistrate Judge. Id. The Court need not review, under a de novo or any other standard, those aspects of the report and recommendation to which no specific objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Rather, the Court may simply adopt the findings and rulings of the Magistrate Judge to which no specific objection is filed. Id. at 151.

         A defendant may move to dismiss a claim “for failure to state a claim upon which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6). When considering a Rule 12(b)(6) motion, the Court must treat all of the well-pleaded allegations of the pleadings as true and construe all of the allegations in the light most favorable to the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Saylor v. Parker Seal Co., 975 F.2d 252, 254 (6th Cir.1992). However, legal conclusions or unwarranted factual inferences need not be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all material elements of the claim.” Wittstock v. Mark a Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).

         Under Rule 8 of the Federal Rules of Civil Procedure, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although this standard does not require “detailed factual allegations, ” it does require more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal,556 U.S. 662, 681 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012) (quoting Twombly, 550 U.S. at 555). In order to survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.” Twombly, 550 ...

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