Teats v. Johnson et al

Filing 102

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that deft Gibson's 76 Motion to Dismiss be GRANTED, and that the complaint against him be DISMISSED with prejudice. Signed by Magistrate Judge John S. Bryant on 7/16/12. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JEROME M. TEATS,

)
)
Plaintiff,
)
)
v.
)
)
VICTOR S. (Torry) JOHNSON, III, )
et al.,
)
)
Defendants.
)

NO. 3:11-0753
Judge Campbell/Bryant
Jury Demand

TO: The Honorable Todd J. Campbell
REPORT AND RECOMMENDATION
Defendant Michie F. Gibson, Jr. has filed his motion to
dismiss on the grounds that (1) the state legal malpractice claim
is barred by the statute of limitations and (2) the Court lacks
subject-matter

jurisdiction

over

the

claim

against

defendant

Gibson.
The plaintiff has not responded in opposition to this
motion.
Summary of Claims Against Defendant Gibson
According to the complaint, plaintiff Teats was charged
with certain criminal offenses in the Circuit Court of Davidson
County,

Tennessee.

Defendant

appointed defense attorney.

Gibson

was

plaintiff’s

court-

The complaint alleges that following

a negotiated plea agreement, the Court on April 12, 2001, entered
final judgments imposing sentence on plaintiff. However, plaintiff
charges that the order of judgment failed to award him proper
credits for presentence jail time from August 14, 2000, when he was
arrested, until April 12, 2001, the date of his sentencing.

The

particular

allegations

against

defendant

Gibson

appear in Count 9 of the complaint (Docket Entry No. 1 at 39-41).
Plaintiff charges that defendant Gibson failed to comply with the
professional standard of care required of attorneys when he failed
to review the orders of judgment to assure that plaintiff Teats
received all benefits negotiated as part of the guilty plea,
including proper credit for jail time served prior to sentencing.
Plaintiff Teats asserts that this negligence by defendant Gibson
caused plaintiff to be confined in the custody of the Tennessee
Department of Corrections for “a minimum of one to eight months”
longer than he should have been.

Plaintiff Teats maintains that,

as a result, he has suffered negligent infliction of emotional
distress, loss of substantial income, and other injuries for which
he deserves to be compensated in damages.
Analysis
Defendant Gibson asserts that the legal malpractice claim
against him is barred by the one-year statute of limitations and
that the Court lacks subject-matter jurisdiction over the claims
asserted against him.

Although plaintiff Teats has not filed a

response in opposition, a district court cannot grant a motion to
dismiss simply because the adverse party has not responded.

The

Court is required, at a minimum, to examine the movant’s motion to
ensure that he has discharged his burden.
F.2d 451, 455 (6th Cir. 1991).

2

Carver v. Bunch, 946

In Tennessee, a claim of legal malpractice must be
commenced within one year after the cause of action accrues. Tenn.
Code Ann. § 28-3-104(2).

The cause of action accrues, and the

statute of limitations begins to run, when the plaintiff has
suffered an irremediable injury as a result of the defendant’s
negligence and the plaintiff knows or in the exercise of reasonable
diligence

should

have

known

that

this

injury

was

caused

by

defendant’s negligence. See Carvell v. Bottoms, 900 S.W. 2d 23, 28
(Tenn. 1995).
follows:

In his complaint, plaintiff Teats alleges as

“Plaintiff,

upon

learning

of

the

deficiency

in

the

judgment, on July 20, 2010, among other things, filed with the
Davidson County Criminal Court a pro se Motion to Correct-Amend
Judgment, to include the August 14, 2000-April 12, 2001 credits.”
(Docket Entry No. 1 at 6).

Therefore, it appears on the face of

the complaint that plaintiff Teats was aware at least by July 20,
2010, that the judgment entered had not properly credited him with
presentence jail time.

Moreover, he certainly knew by then that

defendant Gibson had served as his defense lawyer in this case.
Therefore, it appears that the statute of limitations for a legal
malpractice against defendant Gibson commenced to run by July 20,
2010, if not earlier.

Plaintiff’s complaint in this action was

filed on August 5, 2011.

From the foregoing, the undersigned

Magistrate Judge finds that the legal malpractice claim against the
defendant Gibson is barred on the face of the complaint.

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As a second ground for his motion, defendant Gibson
argues that this Court lacks subject-matter jurisdiction over
plaintiff’s state claim against him. As a court-appointed attorney
for plaintiff in the underlying criminal proceeding, defendant
Gibson was not a “state actor” and therefore is not subject to a
claim under Section 1983.

See West v. Atkins, 487 U.S. 42, 49

(1988); Wilkerson v. Hardesty, 2005 WL 2777038 (N.D. Ohio, Oct.
2005).

Although the doctrine of pendent jurisdiction permits

exercise of supplemental jurisdiction over state claims when the
court concludes that the state claims are so intertwined as part of
the same case or controversy as to comprise but one constitutional
case, United Mine Workers of America v. Gibbs, 383 U.S. 715, 725
(1966),

the

Court

should

not

exercise

such

supplemental

jurisdiction in a case where two separate and distinct causes of
action are alleged, only one of which is federal in character.
Hurn v. Oursler, 289 U.S. 238, 246 (1933).
As stated above, the undersigned Magistrate Judge finds
from the face of the complaint that the claims against defendant
Gibson are barred by the one-year statute of limitations.

Even if

those claims were not barred, the undersigned Magistrate Judge
finds

that

they

amount

to

a

pure

state

law

claim

of

legal

malpractice, whereas the claims against all other defendants are
civil rights claims alleging violation of plaintiff’s rights under
the U.S. Constitution.

Accordingly, even if plaintiff’s claims

were not barred by the statute of limitations, this Court should

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not exercise supplemental jurisdiction over the state law claims
against defendant Gibson.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge RECOMMENDS that the motion to dismiss (Docket Entry No. 76)
filed on behalf of defendant Gibson be GRANTED and that the
complaint against him be DISMISSED with prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from 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 from receipt of any
objections filed in this Report in which to file any responses to
said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can
constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 16th day of July 2012.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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