United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORTS AND
RECOMMENDATIONS; ORDER OVERRULING OBJECTIONS; ORDER OF
DISMISSAL WITH PREJUDICE; ORDER DENYING PLAINTIFF PERMISSION
TO PROCEED IN FORMA PAUPERIS ON APPEAL
T. FOWLKES, JR., UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's pro se Complaint that
was filed on November 30, 2018, against the Defendants
Standard Insurance Company (“Standard”), the City
of Memphis, the Department of Housing and Code Enforcement
for alleged civil rights violations under 42 U.S.C.
§1983. On December 11, 2018, the matter was referred to
the assigned Magistrate Judge for management of all pretrial
matters pursuant to 28 U.S.C. §§ 636 and
1915(e)(2)(B) and Fed.R.Civ.P. 73. On April 2, 2019, Standard
filed a Motion to Dismiss for insufficient service of process
pursuant to Fed.R.Civ.P. 12(b)(5) and 4(m). (ECF No. 7.) On
July 1, 2019, the Magistrate Judge entered a Report and
Recommendation, recommending that Defendant's Motion to
Dismiss for insufficient service of process should be denied.
(ECF No. 8.) On the same date, the Magistrate Judge also
issued an Order Granting Plaintiff Leave to Proceed In
Forma Pauperis and another Report and Recommendation
which recommended dismissal of the Complaint for
Plaintiff's failure to state a claim for which relief
could be granted under 28 U.S.C. § 1915(e)(2) and for
lack of subject matter jurisdiction under 28 U.S.C.
§§ 1331 and 1332. (ECF No. 9.) On July 16, 2019,
Plaintiff filed Objections. (ECF No. 10.)
FINDINGS OF FACT
1, 2019, the Magistrate Judge's first Report and
Recommendation recommended denying Defendant Standard's
Motion to Dismiss as premature. The Magistrate Judge then
decided to grant Plaintiff in forma pauperis status
and allow Plaintiff to commence this action without paying
the requisite $400 filing fee pursuant to 28 U.S.C.
§§ 1914(a) and 1915(a). (ECF No. 8.) The Magistrate
Judge proceeded to screen the Complaint. (ECF No. 9.) In
making the recommendation to dismiss the Complaint, the
Magistrate Judge provided a brief overview of the facts of
this case. (id. at 2.) The Magistrate Judge
indicated that Plaintiff's § 1983 claim for $3.7
million is based on Standard's refusal to reinstate
Plaintiff's disability payments following the expiration
of the two-year payout period. (id. & ECF No. 1,
2-4 at ¶ IV.) In his objections, Plaintiff argues that
he did not allege a claim for denial of disability benefits
under ERISA. (ECF No. 10 at 1-2.) In addressing whether
Plaintiff had raised a viable § 1983 claim or any other
claim for which the Court would have subject matter
jurisdiction, the Magistrate Judge determined that Plaintiff
had not raised a claim under ERISA, a federal statute.
However, the Magistrate Judge observed that Plaintiff's
claim would have been barred by the applicable six-year
statute of limitations period for breach of contract claims.
(ECF No. 9, 5-6 n. 3.) As such, this objection is Overruled
and the Magistrate Judge's summary of the facts of this
case are Adopted.
district judge has the discretion to refer dispositive
matters to a magistrate judge to conduct a hearing and
propose findings of fact and recommendations. 28 U.S.C.
§ 636(b)(1)(B) (“[A] judge may also designate a
magistrate judge to conduct hearings, including evidentiary
hearings, and to submit to a judge of the court proposed
findings of fact and recommendations for the disposition, by
the judge of court, of any motion excepted in subparagraph
(A) [for which a motion for summary judgment, judgment on the
pleadings, motion to dismiss, etc. are included]”). The
district court judge has the authority to review the
magistrate judge's proposed findings of fact and
recommendations under a de novo determination.
See 28 U.S.C. § 636(b)(1)(C); See e.g.
Baker v. Peterson, 67 Fed. App'x. 308, 311, 2003 WL
21321184 (6th Cir. 2003) (“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.”); U.S. v. Raddatz,
447 U.S. 667, 676 (1980) (quoting Matthews v. Weber,
423 U.S. 261, 275 (1976) (“in providing for a
‘de novo determination' Congress intended
to permit whatever reliance a district judge, in the exercise
of sound judicial discretion, chose to place on a
magistrate's proposed findings and
The First Report and Recommendation Regarding Untimely
Service of Process
noted above, the Magistrate Judge's first Report and
Recommendation recommended denial of Standard's Motion to
Dismiss for Plaintiff's failure to timely serve the
Complaint and Summons pursuant to Fed.R.Civ.P. 4(m). The
Magistrate Judge noted that in cases in which a pro
se non-prisoner plaintiff is proceeding in forma
pauperis, the time to effect service of process is
tolled until the Court has conducted a screening pursuant to
28 U.S.C. §1915(e)(2)(B) and directed the Clerk of Court
to issue summons. There were no objections by either party to
the legal findings of this report and recommendation. As
stated by the Magistrate Judge, the Court had not yet
directed the Clerk to issue any summonses for service by the
U.S. Marshal, therefore Standard's motion to dismiss the
case for lack of service within 90 days was premature.
the first Report and Recommendation, ECF No. 8, is Adopted.
Standard's Motion to Dismiss for insufficient service of
process, ECF No. 7, is Denied. See Fed. R. Civ. P.
4(c)(3), L.R. 4.1(b)(2); and 28 U.S.C. §§
1915(e)(2)(B) and (d).
The Second Report and Recommendation for Failure to State
second Report and Recommendation, the Magistrate Judge
recommends dismissal of Plaintiff's § 1983 claim for
lack of subject matter jurisdiction and failure to state a
claim for which relief may be granted. (ECF No. 9, 3-7.)
While liberally construing Plaintiff's Complaint, the
Magistrate Judge concluded that the undersigned Court does
not have subject matter jurisdiction because Plaintiff has
not alleged that Standard, while acting under color of state
law, deprived him of a right that is secured by the
Constitution in violation of 42 U.S.C. §1983. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970) and Hill v. Lappin, 630 F.3d 468, 470-71 (6th
Cir. 2010). She further elaborated that the Court is required
to screen all in forma pauperis complaints and
dismiss any complaint or any portion of those complaints that
fail to state a claim for which relief may be granted.
See 28 U.S.C. § 1915 (e)(2).
objected to the Magistrate Judge's report, asserting that
he received the last letter from Standard denying the
reinstatement of his benefits in 2012 and that he has
continued to press forward with appeals of the denial of his
benefits since that time. (ECF No. 10.) Plaintiff further
asserts that the statute of limitations period for his breach
of contract claim should not have begun until 2012, the date
in which he was notified by Standard of the final denial of
benefits. (Id. at 2.) This objection does not
address the Magistrate Judge's substantive findings that
Plaintiff has neither raised a federal claim which provides
jurisdiction in this Court or pled the elements of a §
1983 claim. As noted by the Magistrate Judge, Standard, a
private insurance company, denied paying Plaintiff any
additional benefits beyond the expiration of the term
allowed. A claim for a civil rights violation under §
1983 must be based on a deprivation of a liberty or property
interest that is protected by the United States Constitution.
Said deprivation must have been committed by the government
or a governmental agency. See Rowe v. Board of Educ. of
City of Chattanooga, 938 S.W.2d 351, 354 (Tenn. 1996).
“To have a property interest in a benefit, a person
must clearly have more than an abstract need or desire for
it. He must have more than a unilateral expectation of it. He
must, instead, have a legitimate claim of entitlement to
it... Property interests, of course, are not created by the
Constitution.” Board of Regents of State Colleges
v. Roth, 408 U.S. 564, 577 (1972). Therefore, Plaintiff
has failed to allege a viable § 1983 claim for relief
and the case must be dismissed.
reviewing de novo the Magistrate Judge's Reports
and Recommendations, Defendant's Motion to Dismiss,
Plaintiff's Objections, and the entire record, the Court
hereby ADOPTS the Magistrate's Reports ...