United States District Court, E.D. Tennessee, Chattanooga
SHERNARD C. STEWART, SR. Plaintiff,
TN DEPARTMENT OF SAFETY AND HOMELAND SECURITY Defendant.
REPORT AND RECOMMENDATION
K. LEE, UNITED STATES MAGISTRATE JUDGE.
the Court is an application to proceed in forma
pauperis (“IFP”) filed by pro se Plaintiff
Shernard C. Stewart (“Plaintiff”) [Doc. 1]. This
matter comes before the undersigned pursuant to 28 U.S.C.
§ 636(b), 28 U.S.C. § 1915, and the rules of this
Court. I do not reach the question of whether Plaintiff is
indigent, because I RECOMMEND this action be
dismissed for the reasons explained below.
litigant may commence a civil action in federal court without
paying the administrative costs of the lawsuit when the
litigant shows by affidavit that he is unable to pay court
costs and fees. 28 U.S.C. § 1915(a). A district court
may, however, dismiss a complaint as to which an IFP
application has been filed if the complaint is frivolous, if
it fails to state a claim upon which relief can be granted,
or if the plaintiff seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2).
A district court also has the authority to dismiss a
complaint on its own initiative for lack of subject matter
jurisdiction. West v. Adecco Emp't Agency, 124
Fed.Appx. 991, 992 (6th Cir. 2005) (citing Douglas v.
E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
otherwise it is subject to dismissal under Rule 12(b)(6) for
“failure to state a claim upon which relief can be
granted.” A complaint need not state “detailed
factual allegations.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
However, it must contain more than mere “labels and
conclusions, . . . a formulaic recitation of the elements,
” or “naked assertions . . . without further
factual enhancement.” Id. at 555, 557
(citations omitted). To survive a motion to dismiss, a
complaint must contain sufficient facts to “state a
claim to relief that is plausible on its face.”
Id. at 570. “The plausibility standard is not
akin to a ‘probability requirement,' but it asks
for more than a sheer possibility that defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). Stated
differently, “the court must be able to draw a
‘reasonable inference that the defendant is liable for
the misconduct alleged.'” KSR Int'l Co. v.
Delphi Auto. Sys., 523 Fed.Appx. 357, 358-59 (6th Cir.
2013) (quoting Iqbal, 556 U.S. at 678).
pleadings of pro se litigants must be liberally construed and
“held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). Nevertheless, pro se plaintiffs must
abide by “basic pleading standards, ” and the
role of the court is not to “conjure allegations on a
litigant's behalf.” Martin v. Overton, 391
F.3d 710, 714 (6th Cir. 2004) (internal quotation marks and
case, Plaintiff claims his “handgun permit” was
wrongfully revoked in June 2018. He cites the Civil Rights
Act of 1964 and the Second Amendment to the United States
Constitution. He also claims he was defamed. He seeks $1,
000, 000 in damages and asks the Court to order that his
handgun permit be restored. Plaintiff fails to specify which
provision of the Civil Rights Act of 1964 he believes applies
to his claims; however, given that he cites the Second
Amendment, I conclude that he is asserting deprivation of his
constitutional rights pursuant to 42 U.S.C. §
only defendant Plaintiff names is the Tennessee Department of
Safety and Homeland Security (“TDOS”). The
Eleventh Amendment to the United States Constitution
“bars an action in federal court against a State or a
state agency unless Congress has abrogated its sovereign
immunity or the State has expressly waived it.”
Hill v. License, No. 3:18-CV-149-JRG-HBG, 2018 WL
1787295, at *2 (E.D. Tenn. Apr. 13, 2018) (citing Welch
v. Tex. Dep't of Highways & Public Transp., 483
U.S. 468, 472-73 (1987); Mosley v. Hairston, 920
F.2d 409, 415 (6th Cir. 1990); Berndt v. Tennessee,
796 F.2d 879, 881 (6th Cir. 1986)). This immunity applies to
claims for monetary or injunctive relief. Id.
(citing Lawson v. Shelby Cty., 211 F.3d 331, 335
(6th Cir. 2000) (the Eleventh Amendment “prohibits
suits against a ‘state' in federal court whether
for injunctive, declaratory or monetary relief”)).
Congress did not abrogate Eleventh Amendment immunity by
passing § 1983. Id. (citing Quern v.
Jordan, 440 U.S. 332 (1979)). Also, “Tennessee has
not expressly waived its right to sovereign immunity.”
Id. (citing Gross v. Univ. of Tenn., 620
F.2d 109, 110 (6th Cir. 1980); Anderson v. Univ. of
Tenn., No. 3:15-CV-00513, 2017 WL 499981, at *2 (E.D.
Tenn. Feb. 7, 2017)) (other citation omitted).
a state agency of Tennessee, and I therefore
FIND it is entitled to immunity from suit
under the Eleventh Amendment to the United States
Constitution. See Id. (“The Tennessee
Department of Safety & Homeland Security, a state agency
. . ., is entitled to immunity under the Eleventh
Amendment.” (citing Eckerman v. Tenn. Dep't of
Safety, 636 F.3d 202, 210 (6th Cir. 2010); Thikol
Corp. v. Mich. Dep't of Treasury, 987 F.2d 376, 381
(6th Cir. 1993); Hazelwood v. Tenn. Dep't of
Safety, No. 3:05-CV-356, 2006 WL 752588, at *1 (E.D.
Tenn. Mar. 22, 2006))). Because TDOS is immune under the
Eleventh Amendment, I FIND the Court lacks
jurisdiction over Plaintiff's claims against it, and
RECOMMEND they be dismissed. Id. (citing Cady v.
Arenac Cty., 574 F.3d 334, 355-45 (6th Cir. 2009)).
Moreover, I FIND Plaintiff's claims are
frivolous, and that Plaintiff seeks monetary relief against a
defendant who is immune from such relief, which are both
grounds mandating dismissal under 28 U.S.C. §
reasons stated herein, I
RECOMMEND this action be
DISMISSED in its entirety.