United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING IN PART AND REJECTING IN PART THE
REPORT AND RECOMMENDATION AND ORDERING SERVICE OF PROCESS TO
T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE.
November 2, 2018, Plaintiff Douglas Martinez filed a pro
se Complaint against the Defendants alleging violations
of 42 U.S.C. § 1983. (ECF No. 1.) The motion was
referred to the Chief United States Magistrate Judge for
management of all pretrial matters pursuant to 28 U.S.C.
§ 636(b)(1)(A) and West Tenn. L.R. 4.1(b)(1). On
November 5, 2018, Martinez was granted leave to proceed
in forma pauperis. (ECF Nos. 2 & 7.) The Chief
Magistrate Judge screened the Complaint in accordance with 28
U.S.C. § 1915(e)(2)(B), recommending that the Court
dismiss with prejudice the case sua sponte with
prejudice for failure to state a claim under Fed.R.Civ.P.
12(b)(6). (ECF No. 8.) On April 1, 2019, Plaintiff filed
Objections to the Chief Magistrate Judge's Report and
Recommendation. (ECF No. 12.) For the reasons below, the
Court Adopts in Part the Chief Magistrate Judge's Report
and Recommendation and Orders Service of Process by the U.S.
Marshal to issue.
STANDARD OF REVIEW
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.” See
e.g. Baker v. Peterson, 67 Fed.Appx. 308, 311 (6th Cir.
2003) and Fed.R.Civ.P. 72(a). When a Magistrate Judge submits
proposed findings of fact and recommendations to the District
Judge, either party may serve and file written objections to
such proposed findings and recommendations in accordance with
the rules of court. 28 U.S.C. §§ 636(b)(1)(B)-(C).
After reviewing the evidence, the Court may accept, reject,
or modify, in whole or in part, any findings or
recommendations made by a Magistrate Judge. Id. A
Court need not review any portion of the recommendation to
which a Plaintiff does not specifically object. Therefore, it
may adopt the findings and rulings of a Magistrate Judge to
which a specific objection is not filed. Thomas v.
Arn, 474 U.S. 140, 149-52 (1985). “Pro se
litigants . . . are not exempt from the requirements of the
Federal Rules of Civil Procedure.” Payne v. Lucite
International, No. 13-2948-STA-tmp, 2014 WL 2826343, at
*4 (W.D. Tenn. June 23, 2014) (citing Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
STATEMENT OF THE FACTS
Chief Magistrate Judge's Report and Recommendation
includes proposed findings of fact that Martinez is a former
student at Southwest Community College in Memphis, Tennessee.
Martinez alleges that college officials knowingly and
purposefully denied him the right to attend classes,
slandered, harassed, detained and subjected him to cruel and
unusual punishment by removing and banning him from campus,
in violation of his due process and civil rights under 42
U.S.C. § 1983. (ECF No. 1, 2-3 ¶ IV & ECF No.
8, 2-3.) Martinez filed objections pursuant to 28 U.S.C.
§ 636(b)(1)(C), adding that university officials
conspired to prosecute and expelled him from the campus for
violating Tenn. Code Ann. § 40-39-211(d). Martinez alleges
that the administrators' actions not only caused him and
his roommate personal injuries, but that the college
officials refused his request for an appeal, to wit,
a due process violation. (ECF No. 12, 2-3.) Based on his
pro se status, Martinez requests leave to amend his
original Complaint, filing the proposed Amended Complaint as
an attachment to his Objections. (ECF No. 12, 2 & ECF No.
12-3). The Objections to the Report and Recommendation do not
significantly pertain to the Chief Magistrate Judge's
proposed findings of fact. As such, those factual findings
are fully adopted by the Court.
Chief Magistrate Judge construed Martinez's federal law
claims against the named college officials Hall, Faulkner,
Webb, and Worthy as well as those against Parker, an alleged
employee of the Tennessee Department of Corrections as §
1983 claims based on the alleged violations of the Fourth,
Fifth, Eighth and Fourteenth Amendments. (ECF No. 8-1, 7.)
Although the Chief Magistrate Judge noted that the factual
allegations in the initial Complaint were scant and
conclusory, the Chief Magistrate Judge examined the claims
against the named parties in both their official and
individual capacities, recommending sua sponte
dismissal under Fed.R.Civ.P. 12(b)(6). (ECF No. 8-1, 7-14.)
objects to the legal findings of the Report and
Recommendation, asserting that the Chief Magistrate Judge did
not state a legal basis for her decision and that she did not
have jurisdiction to recommend dismissal of the case without
the parties' consent. Martinez also objects that the PLRA
does not apply because he was not and is not a prisoner. He
urges that because sua sponte dismissals are
unfavorably viewed, a sua sponte dismissal in this
case would be premature without an opportunity for him to be
heard. (ECF No. 12, 3-6.) Included in Martínez's
Objections is his request to amend the original Complaint, a
copy of which is attached. (ECF No. 12-3.)
Martinez objects that the Chief Magistrate Judge failed to
provide any legal authority for her recommendation of
dismissal. This objection is simply without merit. As noted
above, the Chief Magistrate Judge considered each of
Martinez's allegations and provided legal authority and
analyses regarding the purported claims, finding no liability
under § 1983 for the state-run entities or their
employees for 4th and 5th Amendments violations based on the
insufficient factual allegations. She also explained that the
8th Amendment does not apply as Martinez was not incarcerated
at the time of his expulsion. Accordingly, the Chief
Magistrate Judge found that none of the limited factual
allegations plausibly state a claim for relief in this case.
See Fed. Rule Civ. P 12(b)(6); Iqbal, 556
U.S. at 677-79; Twombly, 550 U.S. at 555-57;
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.
next objects that the Chief Magistrate Judge did not have
jurisdiction to render a recommendation of dismissal. This
argument is also incorrect. Pursuant to 28 U.S.C. §
636(b)(1)(A), a judge may designate a magistrate judge to
hear and determine any pretrial matter pending before the
court, except a motion for injunctive relief, for judgment on
the pleadings, for summary judgment, to dismiss or quash an
indictment or information made by the defendant, inter
alia. Thereafter, the magistrate judge will submit her
recommendations to the district court for de novo
review of the report and recommendation and portions of the
report and recommendation to which any timely objections are
raised. Cobb v. Fed Ex Exp., Inc., No.
11-2274-STA-cgc, 2013 WL 3070839, at *1 (W.D. Tenn. June 17,
also objects that the PLRA does not apply to his case because
he is not a prisoner. This argument is also incorrect. The
district court must still screen the complaint under §
1915(e)(2). Even if a non-prisoner pays the filing fee and/or
is represented by counsel, the complaint must be screened
under § 1915(e)(2). The language of § 1915(e)(2)
does not differentiate between cases filed by prisoners and
cases filed by non-prisoners. See McGore v.
Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997),
overruled on other grounds by, Jones v.
Bock, 549 U.S. 199 (2007). “The screening must
occur even before process is served or the individual has had
an opportunity to amend the complaint. The moment the
complaint is filed, it is subject to review under §
1915(e)(2).” Id. at 608-09. Accordingly, this
objection is also overruled.
noted above, Martinez requests leave to amend the complaint
based on his pro se status and to avoid dismissal of
the case sua sponte. Pro se complaints are
held to a less stringent standard than those drafted by
attorneys. As such, these complaints must only plead facts
sufficient to show a legal wrong has been committed from
which a plaintiff may be granted relief. See Mullins v.
Smith, 14 F.Supp.2d 1009, 1011 (E.D. Mich. July 27,
1998); Haines v. Kerner, 404 U.S. 519 (1972).
Pro se civil rights complaints must allege some
facts in support of the claim that are more than conclusory
allegations. “Unless there is indisputably absent any
factual or legal basis for the wrong asserted in the
complaint, the trial court, [i]n a close case, should permit
the claim to proceed at least to the point where responsive
pleadings are required.” Neitzke v. Williams,
409 U.S. 319, 323 (1989) (internal quotations omitted.)
Without some factual allegations, the fair notice requirement
of the nature of the complaint is not satisfied. Id.
at 325, 328-29. Although a district court is not required to
extract the strongest cause of action on behalf of a pro
se litigant or to create a claim that is not asserted
within the complaint, pro se complaints must be
liberally construed. See Johnson v. Biden, No.
13-2375-JDT-dkv, 2013 WL 3153774, at * 3 (W.D. Tenn. 2013)
(citing Payne v. Sec'y of Treas., 73 Fed.Appx.
836, 837 (6th Cir. 2003)). To state a claim under 42 U.S.C.
§ 1983, a plaintiff must allege two elements: (1) a
deprivation of rights secured by the “Constitution and
laws” of the United States (2) committed by a defendant
acting under color of state law. See York v.
Tennessee, No. 2:14-cv-2525-JDT-dkv, 2015 WL 4459081 at
*3 (W.D. Tenn. July 21, 2015) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 150 (1970)).
Court agrees with the Chief Magistrate Judge that the initial
Complaint lacks factual detail surrounding Martinez's
expulsion from Southwest Community College. Martinez names
employees of the college to which he attributes the alleged
4th and 14th Amendment constitutional violations. (ECF No. 1,
2 ¶ III C.) He goes on to state that these parties under
the direction of the Tennessee Board of Regents and the
Tennessee Department of Corrections and its employee, Tony
Parker, knowingly and purposefully violated his
constitutional rights of “freedom of security, ”
which the Court construes as a 4th Amendment claim against
unlawful searches, seizures and detention. (Id. at
III & IV.) Martinez states that Tracy Hall ordered his
removal from classes and banned him from the campus without
due process in violation of his 14th Amendment rights.
(Id. at IV.) He asserts that Lezly Webb detained him
for several hours and threatened to have him incarcerated