Deuel et al v. Dalton et al

Filing 15

REPORT AND RECOMMENDATION: Magistrate Judge Knowles recommends that Plaintiffs' claims be dismissed for failure to state a claim upon which relief can be granted. Signed by Magistrate Judge E. Clifton Knowles on 3/5/12. (xc:Pro se party by regular and certified mail.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

LORIANN DEUEL,
LORRAINE DEUEL,

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Plaintiffs,
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vs.
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FRANK T. DALTON,
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STATE OF TENNESSEE, Robert E,
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Cooper, Jr. as the attorney general of the )
State of Tennessee; TENNESSEE
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ADMINISTRATIVE OFFICE OF THE )
COURTS, John & Jane Does 1-100
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whose identities may or may not be
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known but necessary parties to these
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proceedings, ABC Corp’s 1-100 those
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entities who identities are currently
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unknown but necessary parties to these )
Proceedings,
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Defendants.
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CASE NO. 3:11-0466
JUDGE TRAUGER/KNOWLES
JURY DEMANDED

REPORT AND RECOMMENDATION
Judge Trauger has referred this action to the undersigned in part for a frivolity review
pursuant to 28 U.S.C. § 1915(e)(2)(B), which provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
court determines that –
(B) the action or appeal –
(i) is frivolous or malicious;
(ii) fails to state a claim upon which relief may be
granted; or

(iii) seeks monetary relief against a defendant who
is immune from such relief.
Docket No. 5.
This is a pro se in forma pauperis action brought by Plaintiffs against Frank T. Dalton,
“State of Tennessee, Robert E. Cooper, Jr., as the attorney general of the State of Tennessee” and
the Tennessee Administrative Office of the Courts, pursuant to 42 U.S.C. § 1983. Jurisdiction is
predicated upon 28 U.S.C. § 1343, 28 U.S.C. § 1331 (federal question jurisdiction), and 28
U.S.C. § 1332 (diversity of citizenship).
Plaintiffs’ redacted Complaint presents a lengthy narrative that essentially pertains to a
baby born to Plaintiff Loriann Ann Deuel in 1993. Plaintiffs aver that Loriann Deuel and Frank
T. Dalton were never married, and that there were no DNA tests to confirm whether or not Mr.
Dalton is the baby’s biological father. Docket No. 11, p. 3.
The Complaint avers that in May 2002, Defendant Dalton filed a Petition for visitation in
Troy, New York. Loriann Deuel went to New York to object to the visitation, but she apparently
was not heard by the Court. Thereafter, Defendant Dalton sought to register, authenticate, and
enforce the New York Order in the Juvenile Court of Rutherford Court regarding custody and
visitation from the New York Court. Loriann Deuel challenged the validity of the New York
Order. Her pleadings were ignored, and she was not allowed oral argument, and the Tennessee
Court subsequently determined that the New York Order was entitled to full faith and credit.
Loriann Deuel was also directed to address her pleadings to the New York Court.
Shortly thereafter, Mr. Dalton came to Tennessee and took the baby to New York.
Loriann Deuel attempted to file charges against Mr. Dalton for kidnaping, but the Rutherford
County Sheriff refused to allow her to do so. She filed a kidnaping complaint with police in
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New York, but, Plaintiffs aver, they refused to do anything when Defendant Dalton showed them
a copy of the Orders from New York and Tennessee.
Loriann Deuel moved to vacate the Rutherford Juvenile Court’s Order, but that Motion
was denied. She filed a second Motion to Vacate the Order, but that was also denied. She
appealed those decisions, but her appeals were essentially all denied.
Virtually all the allegations of the Complaint pertain to Plaintiff Loriann Deuel. The
Complaint identifies Loriann Deuel as the daughter of Lorraine Deuel. Docket No. 11, p. 22.
The Complaint essentially alleges that the matters complained of have affected the health of
Lorraine Deuel when the stress and mental suffering caused the medical problem that almost
resulted in her losing her life. Id., p. 21. The Complaint also avers that Lorraine Deuel “was left
stranded in New York State,” because she apparently had gone to New York with Loriann Deuel
and Mr. Dalton “had Loriann arrested.” Id., p. 22.
In the instant action, Plaintiffs seek redress for the acts of Defendant Dalton, and claim
that the State Defendants (i.e., the State, the State agency, and the Tennessee Attorney General)
violated their right to procedural and substantive due process. They also raise the following
claims against all Defendants: fraud, “fraud upon the Court,” fraudulent conspiracy, respondeat
superior, “party to the conspiracy,” “color of state law,” civil rights, obstruction of justice, and
concealing criminal conduct.
Plaintiffs sue all Defendants under 42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
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injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .”
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48 (1998) citing Parratt v. Taylor, 451 U.S. 527, 535 (1981); (overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986)); Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 155 (1978). The traditional definition of acting under color of state law requires that
the defendant in a § 1983 action have exercised power “possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 49,
quoting United States v. Classic, 313 U.S. 299, 326 (1941).
To the extent that Plaintiffs’ seek to sue Mr. Dalton under § 1983, they have failed to
state a claim upon which relief can be granted, because there is no factual basis set forth in the
Complaint to support an argument that Mr. Dalton was a state actor. Plaintiffs allege that Mr.
Dalton conspired “with a judge, and the judge is the state actor . . . .” Plaintiffs, however, offer
no factual support for the existence of such a conspiracy. See Ashcroft v. Iqbal, 556 U.S. 662
(2009).
Plaintiffs have also invoked the diversity jurisdiction of this Court, and apparently seek to
sue Mr. Dalton upon that basis as well. There is, however, a “domestic relations exception” to
the doctrine of diversity jurisdiction. As one noted authority has stated:
The federal courts do not have diversity jurisdiction to grant
divorces, determine alimony and support obligations, or resolve
the conflicting claims of divorced parents to the custody of their
children. First recognized by the Supreme Court in Barber v.
Barber [62 U.S. (21 How.) 582, 16 L. Ed. 226 (1859)], the
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exception retains its full force today. As a result federal courts
generally dismiss diversity cases involving divorce and alimony,
child custody, visitation rights, establishment of paternity, child
support, and enforcement separation or divorce decrees still
subject to state court modification.
Moore’s Federal Practice 3d § 102.91[1], p. 102-152.7 to -152.8 (footnotes omitted).
Thus, there is no basis for the Court to exercise either diversity jurisdiction or federal
question jurisdiction over Plaintiffs’ claims against Mr. Dalton.
Plaintiffs’ claims against the State of Tennessee and the Tennessee Administrative Office
of the Courts must also fail, because a state is not a person for purposes of § 1983. Will v.
Michigan Dept. of State Police, 491 U.S. 58 (1988).
Defendant Robert E. Cooper, Jr. is sued as the Attorney General of the State of
Tennessee. Docket No. 11, p. 1-2. An action suing a state officer in his official capacity is the
equivalent of an action against the State. Id. Thus, Plaintiffs’ claims against General Cooper in
his official capacity do not state a claim upon which relief can be granted under § 1983.
To the extent that Plaintiffs attempt to sue the State of Tennessee, the Tennessee
Administrative Office of the Courts, and/or General Cooper under the Court’s diversity
jurisdiction, there is no diversity of citizenship between Plaintiffs, who are citizens of Tennessee,
and Defendants, who are also citizens of Tennessee. Docket No. 11, p. 1-2.
For the foregoing reasons, the Court lacks subject matter jurisdiction of this action, and
Plaintiffs have failed to state a claim upon which relief can be granted against Defendants.
To the extent that Plaintiffs raise state law claims, those claims should be dismissed
without prejudice. United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
For the foregoing reasons, the undersigned recommends that Plaintiffs’ claims be

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dismissed for failure to state a claim upon which relief can be granted.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

E. Clifton Knowles
United States Magistrate Judge

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