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Bush v. Godwin

United States District Court, E.D. Tennessee

January 26, 2018

THOMAS K. BUSH, Plaintiff,
ROBERT W. GODWIN, et al., Defendants.



         Before the Court are numerous motions filed by various parties in this civil action. All parties are proceeding pro se, though three defendants-Robert Godwin, Scott Hurley, and Rylan Shamblin-are licensed attorneys. These motions are: (1) plaintiff's motion for relief from the Court's past orders [Doc. 51]; (2) defendants Hurley and Shamblin's motion to dismiss or for a more definite statement [Doc. 61]; (3) plaintiff's motion to add parties pursuant to Federal Rule of Civil Procedure 19 [Doc. 66]; (4) plaintiff's motion to suspend the Federal Rules of Civil Procedure [Doc. 68]; (5) plaintiff's motion concerning the Federal Rules of Civil Procedure and 18 U.S.C. § 4 [Doc. 74]; (6) plaintiff's first motion for sanctions under Federal Rule of Civil Procedure 11 [Doc. 77]; (7) plaintiff's motion to amend his complaint [Doc. 85]; (8) defendant Godwin's motion to dismiss [Doc. 91]; (9) the motion of defendants John R. Bush, Nancy Bush, John J. Bush, and Rebecca Bush (the “Bush defendants”) to join Hurley and Shamblin's motion to dismiss [Doc. 92]; (10) plaintiff's second motion for sanctions under Rule 11 [Doc. 97]; and (11) plaintiff's motion for sanctions under Federal Rule of Civil Procedure 37 [Doc. 100].

         Many of the responses to these motions were filed past the deadlines set forth in Eastern District of Tennessee Local Rule 7.1(a). Nevertheless, given the parties' pro se statuses-as well as the many issues with proper service of process and other pleadings that have arisen in this case-the Court finds it appropriate to excuse the apparent tardiness of these filings. Such an outcome is consistent with the “overall policy in [the Sixth] Circuit of resolving disputes on their merits, ” rather than on the minutia of procedural rules. Vergis v. Grand Victoria Casino & Resort, 199 F.R.D. 216, 218 (S.D. Ohio 2000). The Court also finds that good cause supports the Bush defendants' motion [Doc. 92] to join Hurley and Shamblin's motion to dismiss [Doc. 61], and thus will grant the former motion. Finally, for the reasons explained throughout this opinion, the Court will grant defendants' motions to dismiss and deny plaintiff's various pending motions.

         I. Background

         A. Factual History

         This case arises out of a will contest in the Probate Division of the Knox County Chancery Court (the “Probate Court”) concerning the estate of plaintiff's father, J.D. Bush (the “Estate”).[1] Plaintiff alleges that the named defendants-his former attorneys, Hurley and Shamblin; the executor of the Estate, John R. Bush; the executor's attorney, Godwin; and his relatives, the Bush defendants-conspired to deprive plaintiff of his fair share of the Estate [Doc. 37]. Plaintiff asserts that Godwin and John R. Bush exerted an undue influence on the decedent to produce a will that left plaintiff no share of the decedent's bank accounts or of a trust he allegedly created [Id. at 3]. Plaintiff alleges that the decedent was particularly dependent on John R. Bush due to illness and frailty, and that Godwin and John R. Bush substituted a will of their own creation [Id. at 4]. Plaintiff also asserts that, on September 24, 2017, these individuals submitted a memorial letter stating the decedent was only a distant relative of the Bush brothers (of Bush Brothers & Company (“Bush Brothers”)), [2] while he was in fact a close relative [Id. at 5].

         Plaintiff next alleges that, since the decedent's death on February 5, 2008, Godwin, John R. Bush, and Nancy Bush have conspired to defraud the Internal Revenue Service (“IRS”) and United States government [Id. at 5-6]. Plaintiff also asserts these defendants have defrauded John J. Bush and Rebecca Bush concerning the decedent's will and the probate proceedings, possibly causing them to file false income tax returns [Id. at 6-7]. Furthermore, plaintiff alleges that Godwin and John R. Bush violated an agreement regarding the appraisal of a house at 2104 Belcaro Drive, Knoxville, Tennessee 37918, and later rented out this house without paying any proceeds to plaintiff [Id. at 7]. Plaintiff asserts that, in 2009, defendants attempted to coerce plaintiff into signing his share of this house over to John R. Bush, Nancy Bush, and Home Federal Bank without a written offer [Id. at 7-8]. Plaintiff alleges that, at a July 2009 hearing before the Probate Court, the Special Master scolded him for raising this attempted fraud, after which Godwin stood up laughing and said, “I wouldn't have signed that either” [Id. at 8].

         According to plaintiff, nothing more occurred in the probate proceedings until 2011, when Godwin submitted another appraisal of the house, as well as of cemetery plots of which plaintiff was unaware [Id. at 9]. Plaintiff asserts that Godwin misled plaintiff about the subject of the 2011 hearing, which plaintiff had wanted to reschedule [Id. at 9-10]. Plaintiff next alleges that, in April 2012, he received $80, 700 for the house and plots at Landmark Title & Closing in Canton, Georgia, and shortly thereafter received family photos and other belongings from John R. Bush via U.S. mail [Id. at 10-11].

         Plaintiff asserts that he heard nothing more about the case until an August 2013 hearing before the Probate Court, which resulted from plaintiff filing a petition for settlement of accounts [Id. at 12]. Plaintiff avers that he then received income tax forms from John R. Bush in October 2013 beyond the time permitted by IRS regulations [Id. at 12-13]. Plaintiff also alleges that John R. Bush committed multiple breaches of his fiduciary duties as executor, including (1) failing to maintain a profitable estate, (2) acting in his own self-interest, (3) misappropriating Estate assets, (4) failing to respond to plaintiff's requests, (5) failing to keep proper records, and (6) failing to comply with unspecified Tennessee laws regarding estate administration [Id. at 13-14].

         Plaintiff next turns to Hurley and his law partner Shamblin, whom plaintiff hired to represent him after the August 2013 hearing [Id. at 15]. Plaintiff alleges that Hurley kept delaying taking John R. Bush's deposition, failed to appear at an October 2013 hearing, and told plaintiff not to worry about John R. Bush's IRS filings [Id. at 15-16]. Plaintiff asserts that he almost fired Hurley in December 2013, but that Hurley finally took John R. Bush's deposition in March 2014 [Id. at 16-17]. Plaintiff alleges that John R. Bush committed perjury at multiple points during this deposition in regard to the following matters: (1) the person who prepared the Estate's federal tax returns (plaintiff believes that Godwin and John R. Bush switched tax preparers to conceal Estate assets from plaintiff); (2) John R. Bush's knowledge of the decedent's past wills; (3) the decedent's receipt of income from and involvement with Bush Brothers; (4) whether the decedent signed the September 24, 2017, memorial letter; and (5) plaintiff's receipt of a written confirmation of the money he would receive for the house [Id. at 17-24]. Plaintiff also asserts that Godwin and John R. Bush failed to respond adequately to interrogatories concerning any financial relationships with Bush Brothers [Id. at 24]. As a result of these transgressions, plaintiff claims that John R. Bush and Godwin violated various federal and state criminal laws, which the Court discusses more fully in Section II.D below [Id. at 25].

         Plaintiff further alleges that John R. Bush and Godwin conspired with Hurley and Shamblin to not submit plaintiff's deposition to the Probate Court, though plaintiff notes he eventually did so himself in late 2015 [Id. at 25-26]. Plaintiff asserts that he wanted Hurley to take the deposition of many other parties-including the other Bush defendants, Home Federal Bank manager Jennifer Collier, and Bush Brothers-but that Hurley repeatedly delayed doing so [Id. at 26-28]. Hurley allegedly blamed these delays on personal issues affecting Godwin and promised that Godwin would repay plaintiff's travel expenses, though he never did [Id. at 28]. Plaintiff states that he fired Hurley in late 2015, but the Probate Court still would not let him file his own documents [Id. at 29]. Finally, plaintiff avers that Hurley appeared at a December 2015 Probate Court hearing and offered to represent plaintiff again, and that plaintiff agreed because he feared the case would otherwise be dismissed [Id. at 30]. The hearing was then canceled, and plaintiff asserts he had no other contact with Hurley until a December 2016 hearing, when the Probate Court dismissed Hurley and Shamblin as plaintiff's attorneys [Id. at 30-31].

         As a result of these allegations, plaintiff seeks millions of dollars in compensatory and punitive damages from defendants-as well as injunctive relief against various parties and non-parties-for an assortment of federal and state criminal and civil wrongs [Id. at 34-48]. Defendants have denied any wrongdoing and assert that plaintiff's claims to relief are frivolous [See Docs. 55, 61, 67, 71, 91].

         B. Procedural History

         The procedural history of this case is complex, and the Court will describe it here only to the extent necessary to provide background. On November 24, 2015, plaintiff filed his initial complaint against the Probate Court and the Estate [Doc. 1]. Magistrate Judge C. Clifford Shirley, Jr., later denied plaintiff's motion for appointment of counsel [Doc. 6], upon referral from this Court [Doc. 5]. Then, on May 2, 2016, the Court ordered plaintiff to show cause why this action should not be dismissed as a result of his failure to serve process on the Probate Court [Doc. 11]. Plaintiff responded [Docs. 12-13], and the Court ordered plaintiff to properly serve the Probate Court within thirty days [Doc. 14].

         The Probate Court then moved for dismissal under Federal Rule of Civil Procedure 12(b)(6), arguing that it lacks legal capacity to sue or be sued [Doc. 20]. At that same time, plaintiff filed multiple motions to amend his complaint and add new parties [Docs. 15-16, 30, 34], as well as a motion for a contempt hearing as to various defendants [Doc. 24]. On January 5, 2017, the Court entered an order granting plaintiff's motion to file an amended complaint, but denying his motions to add new parties and for a contempt hearing [Doc. 36]. The Court also denied the Probate Court's motion to dismiss as moot with leave to refile, given that plaintiff would be filing a new complaint [Id.]. Plaintiff then filed his first amended complaint [Doc. 37], which joined the parties who are currently defendants to this action and seemed to consent to dismissal of the Probate Court [id. at 42]. The Probate Court accordingly renewed its motion to dismiss [Doc. 39], which the Court granted on April 6 in light of the parties' apparent agreement [Doc. 47].

         On May 8, plaintiff filed a motion for relief [Doc. 51] from the Court's January 5 and April 6 orders [Docs. 36, 47]. The parties filed various responses and replies to this motion [Docs. 56-59]. Then, on May 30, defendants Hurley and Shamblin filed a motion to dismiss under Rule 12(b)(6) or, alternatively, for a more definite statement under Rule 12(e) [Doc. 61], to which plaintiff responded [Docs. 63-65]. Plaintiff subsequently filed a motion to add new parties [Doc. 66] and two motions concerning the applicability of the Federal Rules of Civil Procedure and other matters [Docs. 68, 74]. Then, on August 17, the Court dismissed the Estate, Knox County Probate No. P-08-67241, and “other unnamed defendants” in light of plaintiff's failure to serve those parties [Doc. 75].

         Plaintiff next filed a motion for sanctions under Federal Rule of Civil Procedure 11 [Doc. 77] and a fourth motion to amend his complaint [Doc. 85]. Defendant Godwin later responded in opposition to plaintiff's motion to amend and moved for dismissal [Doc. 91], having informed the Court that he had not received service of plaintiff's motion despite plaintiff's certificate of service [Doc. 85 pp. 6-7]. The Bush defendants then filed a motion to join in Hurley and Shamblin's motion to dismiss [Doc. 92], and Hurley and Shamblin responded in opposition to plaintiff's motion to amend [Doc. 93]. Finally, plaintiff filed a response to Godwin and the Bush defendants' motions [Doc. 94], as well as two additional motions for sanctions [Docs. 97, 100]. Hurley and Shamblin have responded to one of these motions [Doc. 99], and plaintiff replied [Doc. 102].

         II. Analysis

         The Court will first consider plaintiff's motion for relief from the Court's past orders [Doc. 51]. Next, the Court will address plaintiff's motion to amend his complaint [Doc. 85], followed by his motions concerning the Federal Rules of Civil Procedure [Docs. 68, 74]. After that, the Court will consider defendants' motions to dismiss the complaint for failure to state a claim [Docs. 61, 91-92]. Finally, the Court will address plaintiff's motions to add new parties [Doc. 66] and for sanctions [Docs. 77, 97, 100].

         A. Plaintiff's Motion for Relief from the Court's Past Orders

         First, plaintiff seeks relief [Doc. 51] from the Court's January 5, 2017, and April 6, 2017, orders addressing a variety of issues in this litigation [Docs. 36, 47]. Defendant Godwin and former defendant the Probate Court filed responses in opposition [Docs. 56- 57], to which plaintiff filed two reply briefs [Docs. 58-59]. For the reasons explained below, the Court will deny plaintiff's motion for relief.

         Plaintiff's motion specifies Federal Rule of Civil Procedure 60(b) as the basis for the relief he seeks. But that rule authorizes the Court to “relieve a party . . . from a final judgment, order, or proceeding.” Fed.R.Civ.P. 60(b) (emphasis added). Instead, the orders at issue are interlocutory in character because they “adjudicate[d] fewer than all the claims or the rights and liabilities of fewer than all the parties” in this action. Fed.R.Civ.P. 54(b). The Sixth Circuit Court of Appeals has recognized that “[d]istrict courts have authority both under [federal] common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). Reconsideration of an interlocutory order is proper when the movant shows either: “(1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.” Louisville/Jefferson Cty. Metro Gov't v., L.P., 590 F.3d 381, 389 (6th Cir. 2009) (quoting Rodriguez, 89 F. App'x at 959). However, a motion for reconsideration is not a means by which “to re-litigate issues previously considered by the Court or to present evidence that could have been raised earlier.” Ne. Ohio Coal. for the Homeless v. Brunner, 652 F.Supp.2d 871, 877 (S.D. Ohio 2009).

         First, plaintiff seeks relief from the Court's April 6 order dismissing the Probate Court from this action [Doc. 47]. Plaintiff argues that he did not understand the meaning of the phrase sui juris as used in the Probate Court's briefs [Docs. 20, 39], though he now cites to the Black's Law Dictionary definition of this phrase as “indicat[ing] legal competence, the capacity to manage one's affairs” [Doc. 51 p. 2]. Plaintiff next states that, at a July 2009 hearing before the Probate Court, defendant Godwin laughed and said, “I wouldn't have signed that document either, ” which plaintiff found highly disrespectful and possibly indicative of a “health issue” [Id. at 3-5]. Plaintiff also alleges that he was prevented from filing papers with the Probate Court and that the December 14, 2016, Special Master's report was partially fraudulent. Plaintiff explains that he withdrew his claims against the Probate Court because he did not know how to raise the issue that “one of the probate parties may be suffering from a deteriorative health condition, dementia, [or] Alzheimer's, ” and because he feared his complaint would be dismissed in its entirety if he did not [Id. at 6-7]. Plaintiff further alleges that the Probate Court committed a variety of discovery violations-specifically, of Federal Rules of Civil Procedure 26, 36, and 37- by failing to provide detailed responses to plaintiff's filings.

         Plaintiff next turns to the Court's January 5 order [Doc. 36] granting in part and denying in part leave for plaintiff to amend his complaint, denying his motion for a contempt citation and hearing, and denying his motions to reopen proceedings in Bush v. United States District Court, 472 F. App'x 889 (11th Cir. 2012), an action previously before the Northern District of Georgia and the Eleventh Circuit Court of Appeals.[3] First, the Court denied plaintiff leave to amend to join new parties and assert various violations of federal criminal law against them, finding that these statutes did not confer any private right of action on plaintiff. Plaintiff now claims that he should have cited to the Special Master's report as a fraud on this Court, the Tennessee Court of Appeals, and other courts, and should have argued that “the[se] defendants were being contemptuous to a pending action in a high court” [Doc. 51 p. 11]. Plaintiff further argues that he was not asserting a private right of action, but was rather seeking to vindicate the public's interest in an injunction. Next, plaintiff argues that the Tennessee and Federal Rules of Civil Procedure violate the separation of powers by failing to specify that the Probate Court and this Court are distinct branches of government from the federal and Tennessee executive branches, and that it was unconstitutional for the Knox County Law Director's office to represent the Probate Court.[4] Plaintiff asks that this Court reopen proceedings against the Probate Court but have “the Chancellor” represent that party instead [Id. at 15].

         Plaintiff also asks the Court to issue a temporary restraining order or preliminary injunction to prevent the Probate Court from entering any final order regarding the Estate. Plaintiff states that such an order would cause him immediate and irreparable injury.

         Plaintiff asserts he is alieni juris, i.e., under this Court's control or direction, and thus requires the Court's help in seeking injunctive relief under Federal Rule of Civil Procedure 65. Furthermore, plaintiff asks for this Court's assistance in petitioning the Eleventh Circuit to reopen proceedings in Bush v. United States District Court, though plaintiff now recognizes the Court lacks jurisdiction to order such relief directly. Plaintiff's primary contention seems to be that the Tennessee executive branch defrauded this Court by representing the Probate Court before it and by failing to respond properly to discovery requests. Plaintiff asserts that this Court should “retrieve the judicial power it has been defrauded out of” by petitioning the Eleventh Circuit [Id. at 24]. Finally, unrelated to these other arguments-or the purpose of his motion-plaintiff seeks leave to amend his complaint to join The Hurley Law Firm, P.C., in which Hurley and Shamblin are partners. Plaintiff does not specify the claims he would assert against this defendant.

         Defendant Godwin's response argues that this Court lacks jurisdiction over this dispute, denies any wrongdoing as attorney for the Estate's executor, and requests that plaintiff's motion be denied and his complaint dismissed [Doc. 57]. The Probate Court's response also asserts a lack of jurisdiction and notes that the Rooker-Feldman doctrine[5]precludes this Court from reviewing any decision of the Probate Court [Doc. 56]. The Probate Court also argues that plaintiff's claim he did not understand the term sui juris is unavailing because, in its original motion to dismiss, it explained that “a court is not a legal entity which may sue and be sued, but is an organ of the government authorized to administer justice” [Doc. 20 p. 3 (quoting Wood v. Circuit Court of Warren Cty., 331 F.Supp. 1245, 1245 (E.D. Tenn. 1971))]. The Probate Court also argues that plaintiff's claim he only voluntarily dismissed the Probate Court because he feared the dismissal of his entire case is disingenuous and disrespectful, as this Court always affords pro se litigants great latitude in bringing suit. Finally, the Probate Court argues that relief from the Court's orders on the basis of fraud is not appropriate because (1) any claim that the Special Master's report is fraudulent is a matter for the Probate Court and Tennessee appellate courts to address, and (2) failure to respond to a discovery request is not fraud.

         Plaintiff's collective thirty-page reply [Docs. 58-59] largely raises the same points as in his numerous prior briefs. Plaintiff explains he feared his case would be dismissed if he did not dismiss the Probate Court because of a sentence in the Court's January 5 order, which plaintiff interpreted to mean the Probate Court could file a motion to dismiss his complaint. Plaintiff also asserts that the issue of fraud in the Special Master's report is properly before this Court because the United States is a potential victim of such fraud. Plaintiff further provides a lengthy diatribe regarding alleged violations of legal ethics and fiduciary duty by Godwin, Hurley, and Shamblin in proceedings before the Probate Court, though the Court is uncertain how this narrative is relevant to the instant motion.[6] Plaintiff also attempts to distinguish Wood v. Circuit Court on the ground that he is not attempting to sue any court for money damages, but rather to solicit the courts' help in preventing constitutional violations by the executive and legislative branches.

         Having reviewed the parties' submissions, the Court finds no basis on which to reconsider either of its past orders [Docs. 36, 47]. Plaintiff has suggested no “intervening change of controlling law” or “new evidence available.” Rodriguez, 89 F. App'x at 959. Moreover, plaintiff has not clearly argued that the Court committed a “clear error” of law or fact in its January 5 or April 6 orders. Id. Nevertheless, given plaintiff's pro se status, the Court construes his arguments as claims of clear error.

         Although plaintiff's briefs address a wide range of topics, the main relief he seeks is the reinstatement of proceedings against the Probate Court. Notwithstanding the litany of criminal, civil, and ethical wrongs plaintiff alleges to have occurred before that court, this Court finds no clear error in its dismissal of the Probate Court because plaintiff does not dispute that he consented to such dismissal [Doc. 37 p. 42 (“The plaintiff has removed defendant Knox County Probate Court from the list of defendants, and requests/motions to dismiss [it] at this time.”)]. While plaintiff now claims he erred in making that request, a party's inadvertence or mistake is not a proper basis for Rule 54 relief. Regardless, the Court would have granted the Probate Court's original motion to dismiss [Doc. 20] in any event because that court is not a proper party. Whether an entity is sui juris, i.e., has “[c]apacity to sue or be sued, ” is determined “by the law of the state where the court is located.” Fed.R.Civ.P. 17(b)(3). This Court has previously interpreted Tennessee law to hold that its state courts lack legal capacity to sue or be sued. Wood, 331 F.Supp. at 1245. Plaintiff has offered no persuasive reason to reconsider that finding. See Cooper v. Rapp, 702 F. App'x 328, 334 (6th Cir. 2017) (noting that Ohio state courts are not sui juris). Moreover, even assuming the Probate Court did violate various discovery rules, its dismissal would still be proper because it is not capable of being sued.

         Furthermore, while seeming to recognize that this Court lacks jurisdiction to reopen proceedings before the Northern District of Georgia and the Eleventh Circuit, plaintiff nonetheless asks this Court to petition the Eleventh Circuit to represent plaintiff in this action and to reinstate Bush v. United States District Court. This Court lacks any authority to assist plaintiff in such a manner. As an Article III court, this Court holds constitutional authority only to adjudicate cases and controversies that are properly before it pursuant to a federal statute. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006). Federal courts do not, and cannot, serve as advocates for particular litigants.

         Next, the Court will deny plaintiff's motions for a preliminary injunction or temporary restraining order, to the extent such requests are proper at all in a motion for reconsideration of unrelated orders. Such temporary injunctions “are extraordinary and drastic remedies never awarded as of right. And that is why the plaintiff bears the burden to justify relief.” O'Toole v. O'Connor, 802 F.3d 783, 788 (6th Cir. 2015). The burden for both forms of relief requires the plaintiff to prove an entitlement to equitable intervention via consideration of a number of factors. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008); Sampson v. Murray, 415 U.S. 61, 88 n.59 (1974). Here, plaintiff irreparable injury absent injunctive relief. This is insufficient.[7]

         The Court also finds no error in its decision to deny plaintiff leave to amend his complaint to join new parties for the purpose of asserting violations of federal criminal law against them. As explained further below, see infra Sections II.B, II.D, one private citizen lacks a legally protectable interest in the prosecution of another, and federal criminal statutes generally do not give rise to implied rights of action. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 767 (2005). Thus, adding parties against whom plaintiff would merely be attempting to assert criminal offenses would be a futile amendment, as the Court explained in its January 5 order [Doc. 36]. Plaintiff also cites no authority-and the Court is unaware of any-for the proposition that he has standing to prosecute claims of fraud on this or other courts, whether as civil or criminal wrongs. As a private litigant, plaintiff is only empowered to sue in his own right, absent special circumstances not present here. See Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (noting that “a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties'” (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975))). Moreover, as the Court has repeatedly explained to plaintiff, it has no authority to hold a party in contempt for conduct that occurs before a different court, and the Court is unaware of any contemptuous activity by defendants in proceedings before this Court.

         Finally, as for plaintiff's theory that the Federal and Tennessee Rules of Civil Procedure violate the separation of powers by failing to make clear that the Probate Court and this Court are not part of the executive branch, the Court finds this theory nonsensical, unsupported by citation to any authority, and in any event irrelevant to the relief plaintiff seeks in his motion. Thus, the Court will not consider it further. The Court will, however, explain below why it lacks authority to suspend the Federal Rules of Civil Procedure. See infra Section II.C. Accordingly, for all of these reasons, the Court will deny plaintiff's motion for reconsideration [Doc. 51] of its past orders [Docs. 36, 47].[8]

         B. Plaintiff's Motion to Amend his Complaint

         Third, plaintiff has moved for leave to amend his complaint [Doc. 85], to which defendants Godwin, Hurley, and Shamblin have responded in opposition [Docs. 91, 93]. For the reasons explained below, the Court will deny plaintiff's motion.

         Under Federal Rule of Civil Procedure 15, a party may amend its pleading once as of right within twenty-one days of serving it, or within twenty-one days of service of a response if a response is required. Fed.R.Civ.P. 15(a)(1). But after that time expires, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. This decision rests within the district court's sound discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). Leave is generally appropriate “[i]n the absence of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995). “Amendment of a complaint is futile when the proposed amendment would not permit the complaint to survive a motion to dismiss” under Rule 12(b)(6). Miller v. Calhoun Cty., 408 F.3d 803, 807 (6th Cir. 2005).

         Federal Rule of Civil Procedure 8(a)(2) sets forth a liberal pleading standard, Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, '” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Furthermore, in ruling on a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in the plaintiff's favor, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; accord Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Detailed factual allegations are not required, but a party's “obligation to provide the ‘grounds' of [its] ‘entitle[ment] to relief' requires more than labels and conclusions, and ...

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