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Annette v. Haslam

United States District Court, M.D. Tennessee, Nashville Division

September 30, 2019

HOLLIE ANNETTE, Plaintiff,
v.
WILLIAM EDWARD HASLAM, et al., Defendants.

          ORDER AND MEMORANDUM OPINION

          ELI RICHARDSON, UNITED STATES DISTRICT JUDGE.

         Pending before the Court are five Motions for Review (Doc. Nos. 158, 169, 174, 186, 189) of the Magistrate Judge’s Orders. Also pending before the Court is a Report and Recommendation of the Magistrate Judge (Doc. No. 185), to which Plaintiff has filed Objections (Doc. No. 190), to which Defendants Tatum and Gwin have in turn filed a response (Doc. No. 195).

         BACKGROUND

         Plaintiff filed this action pro se in the U.S. District Court for the District of Columbia, and that court transferred it here (Doc. No. 1).[1] Plaintiff alleges claims against 23 named and two “John Doe” Defendants. Her Complaint alleges the “theft and holding hostage” of her sons and daughter and “ongoing and continuing malicious prosecution” against her. Defendants are the State of Tennessee, [2] the City of Lebanon, the City of Franklin, the City of Dickson, Benton County, the Tennessee Department of Children’s Services (“DCS”), and various state and local officials. Plaintiff seeks recompense for wrongdoings she alleges she and her children have suffered at the hands of Defendants and asks for declaratory judgment, injunctive relief, and damages for alleged violations of state and federal constitutional rights and malicious prosecution.

         MOTIONS FOR REVIEW

         Pursuant to Fed.R.Civ.P. 72(a), the Court may modify or set aside any part of a Magistrate Judge’s Order that is clearly erroneous or is contrary to law. The “clearly erroneous” standard applies only to factual findings, while legal conclusions are reviewed under the “contrary to law” standard. Norfolk Cty Retirement Sys. v. Community Health Sys., Inc., No. 3:11-cv-00433, 2019 WL 3003647, at * 1 (M.D. Tenn. Apr. 19, 2019); Equal Emp’t Opportunity Comm'n v. Burlington Northern & Santa Fe Ry. Co., 621 F.Supp.2d 603, 605 (W.D. Tenn. 2009). This standard is deferential, and mere disagreement with the Magistrate Judge and/or an assertion that the Magistrate Judge should have ruled differently does not rise to a clear error of fact or a decision contrary to law. See Shabazz v. Schofield, No. 3:13-CV-00091, 2014 WL 6605504, at *1 (M.D. Tenn. Nov. 19, 2014) (“The Court is not empowered to reverse the magistrate judge’s finding simply because this Court would have decided the issue differently.”).

         ANALYSIS

         Docket No. 163

         Plaintiff asks the Court to review the Order of the Magistrate Judge dated June 28, 2019 (Doc. No. 161). That Order denied Plaintiff’s Notice (Doc. No. 130), which was construed as a motion for recusal of Magistrate Judge Holmes. Under 28 U.S.C. § 144, whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. Plaintiff did not file such an affidavit.

         Under 28 U.S.C. § 455, a judge shall disqualify herself in any proceeding in which her impartiality might reasonably be questioned or in five other specific situations.[3] The Magistrate Judge’s service with or appearances before the juvenile court and her involvement on a Tennessee Bar Commission, matters asserted by Plaintiff as grounds for disqualification, were years ago. The Magistrate Judge refuted Plaintiff’s suggestion that she (Judge Holmes) has worked with one or more of the Defendants or has been paid monetary compensation by one or more of the Defendants, and the Court sees no basis to credit Plaintiff’s suggestion. Plaintiff has offered nothing more than conclusory allegations and suppositions to argue that the Magistrate Judge is biased or has a conflict of interest. Plaintiff has not presented a sufficient affidavit or other factual basis for concluding that the impartiality of the Magistrate Judge might reasonably be questioned.

         Upon consideration of Plaintiff’s Motion for Review (Doc. No. 163), the Court finds that the Order of the Magistrate Judge (Doc. No. 161) is neither clearly erroneous nor contrary to law and that Order is affirmed.

         Docket No. 164

         Plaintiff also asks the Court to review the Magistrate Judge’s Order of June 28, 2019 (Doc. No. 158), in which she granted the State Defendants’ motion to amend their motion to dismiss and denied Plaintiff’s motion to strike the State Defendants’ defenses. The Magistrate Judge held that Rule 12(f) permits a court to strike only material that is contained in pleadings, and the motion to dismiss is not a pleading. (Doc. No. 158 at 1).[4] Plaintiff argues that the motion to dismiss is a “pleading” because it includes affirmative defenses. Plaintiff’s argument has no merit.

         Fed. R. Civ. P. 7(a) sets forth the specific “pleadings” that are allowed, and a motion to dismiss is not listed. Plaintiff has not pointed to any rule that prohibits parties from asserting affirmative defenses in a motion to dismiss. Indeed, Fed.R.Civ.P. 12(b) provides that a motion asserting affirmative defenses must be made before pleading if a responsive pleading is allowed, and no defense is waived by joining it with one or more other defenses in a responsive pleading or motion. In short, a motion to dismiss is distinguishable from a pleading and is not converted into a pleading by including affirmative defenses.

         Plaintiff claims that the State Defendants’ Motion to Dismiss is untimely because it was not filed within 21 days after service of process. That argument is rejected because, as discussed below in connection with Plaintiff’s Motion for Review found at Doc. No. 186, the Magistrate Judge properly extended the 21-day deadline. Finally, arguing the validity of her claims, Plaintiff contends that the Defendants’ motion to dismiss has no merit. The proper place for such assertions is in response to the motion to dismiss or a Report and Recommendation recommending the granting of the Motion to Dismiss, not on a Motion for Review.

         Upon consideration of Plaintiff’s Motion for Review (Doc. No. 164), the Court finds that the Magistrate Judge’s Order (Doc. No. 158) is neither clearly erroneous nor contrary to law and that Order is affirmed.

         Docket No. 166

         Plaintiff asks the Court to review the Magistrate Judge’s Order of July 1, 2019 (Doc. No. 162), in which she denied Plaintiff’s motion to disqualify Tennessee Assistant Attorney General Matt D. Cloutier and the Tennessee Attorney General’s Office (together “Attorney General”) from representing several Defendants in this case. Plaintiff argues that the Attorney General is not authorized to represent “private corporations such as Children’s Services and private individuals.”

         DCS is not a private corporation. It is a state agency. Tenn. Code Ann. §§ 37-5-101 & 102. Moreover, Tennessee law provides that the Attorney General is charged with the duty of the “trial and direction of all civil litigated matters and administrative proceedings in which the state or any officer, department, agency, board, commission or instrumentality of the state may be interested.” Tenn. Code Ann. § 8-6-109(b)(1). As Plaintiff herself notes (Doc. No. 166-1 at 2), the Attorney General shall represent all offices, departments, agencies, boards, commissions or instrumentalities of the state. Tenn. Code Ann. § 8-6-301(a).

         In addition, when a civil action for damages is brought against a state employee for any acts or omissions of the state employee within the scope of that employee’s employment (except for willful, malicious, or criminal acts or acts done for personal gain[5]), the Attorney General has the discretion to provide representation to the employee. Tenn. Code Ann. § 8-42-103(a). Plaintiff’s argument that the Attorney General has no authority to represent the Department of Children’s Services or individual state employees is entirely without merit.

         Plaintiff also contends that the Attorney General has failed to perform his duty by allowing non-attorneys, Defendants Bradley and Reed, to file petitions as authorized representatives of DCS. Plaintiff argues that the Attorney General has thus “aided and defended the unauthorized practice of law.” In objecting to the Magistrate Judge’s Order, Plaintiff cites no authority or factual basis for this assertion, but the Court notes that DCS is permitted to file a petition in state court to terminate parental rights. Tenn. Code Ann. § 36-1-113(a). In addition, DCS is authorized, among other things, to make investigations and furnish reports to the Juvenile Court. Tenn. Code Ann. § 37-1-128. Plaintiff provides no basis to conclude that Defendants Bradley and Reed cannot carry out these authorized actions of DCS on DCS’s behalf or that their so doing constitutes the unauthorized practice of law.

         Plaintiff claims that it is a conflict of interest for the Attorney General to represent Defendant Bonnyman herein, because he represented Bonnyman in another case filed by Plaintiff. There is (to say the least) no per se conflict of interest in representing the same party in more than one action, and there is no allegation that Bonnyman’s interests in these two cases are in conflict. There conceivably could be a ...


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