Clayton v. Forrester et al

Filing 160

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 11/20/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARK CLAYTON,
Plaintiff,
v.
CHIP FORRESTER, et. al,
Defendants.

)
)
)
)
)
)
)
)
)

No. 3:13-01211
Judge Sharp

MEMORANDUM
Magistrate Judge Brown has entered a Report and Recommendation (“R & R”) (Docket No.
130), recommending that Plaintiff’s claims under the Voting Rights Act of 1965 be dismissed for
failure to state a claim, and that his state law claims be remanded to the Circuit Court for Davidson
County, Tennessee. Plaintiff has filed Objections (Docket No. 134) to the R & R, to which
Defendants have responded in opposition (Docket No. 141). Additionally, a number of other
Motions have been filed since the issuance of the R & R, all of which the Court now considers.
I. R & R (Docket No. 130), Objections (Docket No. 134) , and Response (Docket No. 140)
In the R & R, Magistrate Judge Brown recommends dismissal of the Voting Rights Act claim
for two reasons. First, Plaintiff “failed to specifically allege, or state facts sufficient to infer, that
any voter, or group of voters was prevented from voting,” and that, even liberally construed, his
complaint “is that defendants’ efforts to disavow him caused some voters that cast their ballots for
him in the primary election to cast their votes for other candidates in the general election.” (Docket
No. 130 at 5). Second, and more fundamentally, Plaintiff does not allege “facts that would infer
action by ‘any State or political subdivision thereof’” as required by 42 U.S.C. § 1973(a). (Id.).

1

With regard to Plaintiff’s state law claims, Magistrate Judge Brown concluded that “comity
and fairness weight heavily in favor of remand,” writing:
Governance of a state’s political process and control over its political parties is an
area of grave importance to the State. This is particularly so where, as here, the
legislature has dictated both the form and forum of squabbles over internal party
decisions. Of only slightly less import is fairness. As the master of his complaint,
Plaintiff initially chose “to have the cause heard in state court” and that cause is only
here based upon defendants’ removal on the basis of his claims under the Act which
should be dismissed.
(Id. at 6).
Plaintiff lists 19 objections to the R & R, some with subparts, and many that overlap. The
Court has thoroughly considered all of Plaintiff’s objections and notes the following.
Plaintiff begins by arguing that “the US [sic] District Court may not dismiss and refuse to
render judgement [sic] on the Voting Rights Act Claim unless there [sic] terminates no uncertainty
or controversy,” (Docket No. 134 at 1), citing Tenn. Code Ann. § 29-14-109 for that proposition.
That statutory provision provides:
The court may refuse to render or enter a declaratory judgment or decree where such
judgment or decree, if rendered or entered, would not terminate the uncertainty or
controversy giving rise to the proceedings.
Id. But the statute uses the term “may” and, as such, “whether to entertain a declaratory judgment
action . . . is largely discretionary with the trial judge.” State ex rel. Earhart v. City of Bristol, 790
S.W.2d 948, 954 (Tenn. 1998). Besides, “the court” in the statute is a reference to state, not federal
courts. Likewise, Tenn. Code Ann. § 29-14-102, which Plaintiff quotes in his sixth objection, and
which states that “[c]ourts of record within their respective jurisdictions have the power to declare
rights,” is a reference to state circuit and chancery courts.
Citation to state declaratory relief statutes aside, Plaintiff argues

2

The US [sic] District Court is also required, if it is to pass judgment on the Voting
Rights Act, to explain what constitutes all action necessary to make votes effective
. . . and iterate whether or not . . . Defendants and/or agents took all action to make
the votes of the 2012 Democratic US [sic] Primary effective and to describe what
that entails.
If Title 2 is not protected by the Voting Rights Act, the US [sic] District Court
should explain why. If Title 2 board members and/or their agents are not required
to take all action necessary to make votes effective in primaries, then the US [sic]
District Court should explain why. The US [sic] District Court should also explain
whether or not all efforts to make votes effective took place.
(Docket No. 134 at 2, Obj. 1 & at 2-3, Obj. 3). Plaintiff also raises a myriad of rhetorical questions
in other objections, such as whether he is “in fact a bonafide Democrat”; whether he committed
“some type of fraud by running for office”; whether there are “any squabbles in this case” and, if
so, “what is the legal definition of ‘squabbles’”?; and “what [does] disavow mean as a matter of
law and how [does] ‘disavow’ applies to the facts of this case”? (Id. at 4-5, Obj. 6; and at 9, Obj. 13).
However, answering such questions goes far beyond the scope of the issue of whether Plaintiff has
stated a claim upon which relief can be granted, and Article III of the Constitution prohibits advisory
opinions. Wheeler v. City of Lansing, 660 F.3d 931, 940 (6th Cir. 2011); Arnett v. Myers, 281 F.3d
552, 562 (6th Cir. 2002). With the decision that the Voting Rights Act claim fails and the state law
claims should be dismissed, there is no justiciable case or controversy before the Court, and no basis
upon which to answer Plaintiff’s questions.
Plaintiff, “a [C]aucasian voter,” reads the R & R as saying that the Voting Rights Act only
applies to minorities. (Docket No. 134 at 3, Obj. 5). This is an improper reading of the R & R, as
it says no such thing. See Shelby Cnty. v. Holder, ___ U.S. ___, 133 S.Ct. 2612, 1659 (2013)
(Section 2 of the Voting Rights Act “forbids any ‘standard, practice, or procedure’ that ‘results in
a denial or abridgement of the right of any citizen of the United States to vote on account of race or

3

color”).
Plaintiff also argues that the R & R should have recommended dismissal of “Defendants’
affirmative First Amendment Defense.” (Id. at 4, Obj. 5). However, no Answer has been filed
which would have contained affirmative defenses and, in any event, the question before the
Magistrate Judge and now before the Court is whether Plaintiff has stated a federal claim upon
which relief can be granted, not whether Defendants have a viable defense.
Plaintiff further contends Magistrate Judge Brown erred by failing to apply the “mandatory
doctrine of judicial estoppel, to defendants’ multiple inconsistent positions, particularly that plaintiff
is not a bona fide democrat and was not a bona fide democrat during 2012[.]” (Id. at 5, Obj. 7). But
whether Defendants have taken inconsistent positions and, for that matter, whether Plaintiff is or is
not a “bona fide” Democrat, has nothing to do with whether an action was taken by a State or
political subdivision that prevented voters from voting. Likewise, whether or not Plaintiff is upset
about losing votes, and whether he visited the Democratic Party Headquarters to demand
documentation, rather than to complain (id. at 7-8, Obj. 8 & 9) has no bearing on whether dismissal
for the reasons recommended is appropriate.
Plaintiff claims that he “pusues [sic] rights and remedy against all Defendants res ipsa
loquiter” [sic] and, therefore, Magistrate Judge Brown’s statement about “the powers that be” was
improper because if the Court “cannot yet determine who an actor is . . . it should pursue the
Defendants [sic] identity under res ipsa loquiter [sic] before ascribing a name ‘powers that be’
which make it impossible to determine the actor.” (Id. at 9, Obj. 12). The Court does not
understand what a tort doctrine relating to breach of duty and care has to do with Plaintiff’s claims,
but it was not improper for Magistrate Judge Brown to write that “the powers that be within the

4

Tennessee Democratic Party . . . began a write-in campaign to disavow and discredit Plaintiff,”
(Docket No. 130 at 1), when Plaintiff specifically alleged that “Defendants and/or their agents sent
out a communique via their official blog ‘disavowing’ the candidacy of Plaintiff” (Docket No. 34
at 6, Am. Cmp. ¶ 24).
Plaintiff further complains that Magistrate Judge Brown ignored the authorities Plaintiff cited
and, in particular, “Smith v. Allwright.” (Id. at 11, Obj. 15). Presumably this is a reference to
Smith v. Allwright, 321 U.S. 649 (1944), an inapposite case which found unconstitutional the Texas
Democratic Party’s rule limiting participation in its primary to whites. It, together with Terry v.
Adams, 345 U.S. 461 (1953), “held only that, when a State prescribes an election process that gives
a special role to political parties, it ‘endorses, adopts and enforces the discrimination against
Negroes’ that the parties . . . bring into the process—so that the parties’ discriminatory action
becomes state action under the Fifteenth Amendment.” Cal. Democratic Party v. Jones, 530 U.S.
567, 573 (2000) (quoting Allwright, 345 U.S. at 664). Those cases “do not stand for the proposition
that party affairs are public affairs, free of First Amendment protections[.]” Id. To the contrary,
“[r]epresentative democracy in any populous unit of governance is unimaginable without the ability
of citizens to band together in promoting the electorate candidates who espouse their political
views,” and “[i]n no area is the political association’s right to exclude more important than in the
process of selecting its nominee.” Id.
Plaintiff also argues that “Tenn. Code Ann. § 2-14-104(c) is irrelevant to this case as it
pertains to a removal statue which defendants did not initiate[.]” (Id. at 11, Obj. 16). The Court
finds no such statutory provision in the Tennessee Code, nor any such citation in the R & R.
Magistrate Judge Brown once cited 2-17-104(c), but that was because Judge Echols cited that

5

statutory provision in Kurita v. State Primary Bd., 2008 WL 4601574, at *7 (M.D. Tenn. Oct. 14,
2008) to support the proposition that “[t]he power to select a nominee for a political party has never
been reserved traditionally and exclusively to the State of Tennessee”; rather, “the Tennessee
General Assembly expressly disclaimed any role of state government in resolving party nomination
contests and instead reserved power exclusively to the political party to choose the nominee whose
name will appear on the general election ballot.”
Finally, Plaintiff argues it would be improper “to remand this case without direct supervision
over which judge hears this case,” because, in the absence of any direction, it will be assigned to
Judge Brothers who is allegedly the “go to judge” for Defendants’ cases. (Docket No. 132 at 10,
Obj. 14). Plaintiff then goes on to make comments about Judge Brothers and his alleged relationship
with Defendants and their counsel, and further claims his life could be in danger were the case
assigned to Judge Brothers. (Id. at 10-11, Obj.14). This objection needs only the curtest of
responses: (1) this Court has no power to direct which state judge will hear this case on remand; (2)
Plaintiff’s fear that his safety will somehow be jeopardized by the state court judge and defense
counsel is baseless; and (3) his accusations are spurious and ill-advised.
Although the Court usually finds it unnecessary to address responses to objections, the Court
does so here because Defendants have requested affirmative relief in their response.
Defendants contend that the R & R should be modified by dismissing Plaintiff’s state law
claims, instead of remanding them to state court. They argue that Plaintiff has made clear his
distrust of the state courts though his objections, and dismissing the action at this juncture will “put
this matter fully to rest” and save Defendants further expense. This latter rationale (about closure
and the reduction of costs) existed at the time the R & R was issued and, as such, Defendants should

6

have objected and sought modification within the fourteen-day limit set forth in the R & R and Rule
72(b)(2) of the Federal Rules of Civil Procedure.
Regardless, how Plaintiff feels about litigating in state court is not germane to the question
of whether the state law claims should now be remanded. District courts have “broad discretion”
under 28 U.S.C. § 1367 in determining whether to exercise supplemental jurisdiction, a discretion
which is guided by “several factors, including the ‘values of judicial economy, convenience, fairness
and comity.’” Gamel v. City of Cincinnati, 625 F.3d 949, 951-52 (6th Cir. 2010) (quoting
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
The Court agrees with Magistrate Judge Brown that it is best to remand the state law claims.
The case before the Court has proceeded only to the motion to dismiss stage, and all but one of the
remaining claims will require application of Title 2 of the Tennessee Code, which is best addressed
by a state court.
In their response, Defendants also requests sanctions pursuant to this Court’s inherent power
or pursuant to 28 U.S.C. § 1927. The requested sanctions will be denied.
Section 1927 provides:
Any attorney or other person admitted to conduct cases in any court of the United
States or any Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.
28 U.S.C. § 1927. Given that the statute refers to “[a]n attorney or other person admitted to conduct
cases,” some doubts have been expressed as to whether a party appearing pro se, like Plaintiff here,
can be sanctioned under the statute. See Feingold v. Graff, 516 F. App’x 229, n.9 (9th Cir. 2013)
(“we express doubt as to whether 28 U.S.C. § 1927 may be applied to non-lawyer, pro se litigants

7

. . . and we need not decide this difficult issue now”); Modelist v. Miller, 445 F. App’x 737, 742
(5th Cir. 2011) (“we leave open the question of whether § 1927 sanctions can be imposed against a
pro se litigant”); Hall v. Liberty Life Assur. Co., 595 F.3d 270, 275 (6th Cir. 2010) (district court
erred in looking at client’s financial ability to pay “because the statute authorizes the imposition of
sanctions only on ‘any attorney or other person admitted to conduct case’”). Regardless, whether
to award sanctions under Section 1927 rests within the discretion of the Court, and while Defendants
request sanctions because of Plaintiff’s diatribe in his objections, the Court does not believe that his
objections so multiplied the proceedings as to make an award of sanctions under Section 1927
appropriate.
Defendants’ request for sanction based on this Court’s inherent power presents a much closer
question. Given Magistrate Judge Brown’s March 13, 2014 Order (Docket No. 105) threatening
sanctions and warning all sides “to knock off the inappropriate language,” Plaintiff certainly knew
better than to cast vitriolic aspersions in his objections, such as describing a “corrupt state judicial
environment, void of justice and full of political intrigue[.]” (Docket No. 134 at 13-14).
“Nevertheless, the district court should exercise its inherent authority to impose sanctions with
restraint and discretion.” Murray v. City of Columbus, 534 F. App’x 479, 485 (6th Cir. 2013) (citing,
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)) . The Court does so here by declining to award
sanctions but reiterating Magistrate Judge Brown’s observation that Plaintiff’s assertions are “quite
frankly . . . juvenile and totally inappropriate.” (Docket No. 105 at 1).
II. Motions to Strike (Docket Nos. 148 & 150)
Plaintiff has moved to strike Defendants’ response to his objection because the response was
not filed until 28 days after the R & R issued, and “[i]f the Defendant wanted to object to the Report

8

and Recommendation that this case be remained” they should have done so within 14 days. (Docket
No. 148 at 1). Striking Defendants’ response is not the appropriate remedy and this Court has
already determined that it will remand the case, Defendants’ objection thereto, notwithstanding.
Defendants move to strike Plaintiff’s Notice of Tolling and Equitable Tolling. However, as
Defendants themselves note, the notice “does not actually request that this Court take any action.”
(Docket No. 150 at 1).
Accordingly, both Motions to Strike will be denied.
III. Motion for Service Order and Rule 83.03 Sanctions (Docket No. 153)
Plaintiff moves for sanctions based upon statements defense counsel allegedly made in
related state court proceedings, including that Plaintiff “is affiliated with a group the Southern
Poverty Law Center identifies as a ‘hate group,’ and as is clear from reading Plaintiff’s pleadings
in this and other cases, he seems to have only a loose connection with reality.” (Docket 154 at 1).
This Motion will be denied.
Even assuming counsel’s comments made in argument are sanctionable, the “Service Order”
in which Magistrate Judge Brown admonished the parties to remain civil applies to filings and
actions in this case; conduct in state court is for the state judge to police. Local Rule 83.03, upon
which Plaintiff also relies, is inapplicable because it addresses “extrajudicial” statements that might
interfere with a fair trial.
IV. Motion for De Novo Determination and Hearing (Docket No. 156)
In this Motion, Plaintiff claims that he “disagrees with and has always disagreed with the
Magistrate Judge’s finding or assertion that the Plaintiff agreed, orally, to withdraw his motion in
Dkt. 20 and 22 during a scheduling hearing on December 30, 2013.” (Docket No. 156). The

9

referenced “motion” is Plaintiff’s Motion for a Preliminary Injunction and accompanying
memorandum.
In an Order issued the same day as the scheduling hearing, Magistrate Judge Brown wrote:
After discussion with the parties the Plaintiff agreed to withdraw this motion
without prejudice to being refiled once he has had an opportunity to consider the
matters discussed in court. The Magistrate Judge did opine that, to the extent that he
had to provide a report and recommendation on the motion for preliminary
injunction, he would have great difficulty in finding that an injunction was needed
to prevent irreparable harm, given that the election was completed in 2012 and it
does not appear that the Plaintiff is involved in an active election at this point.
(Docket No. 31 at 4) (emphasis in original). If Plaintiff disagreed with the assertion that he had
withdrawn his request for preliminary relief, his objection was required to be lodged “within 14
days” and “[a] party may not assign as error a defect in the order not timely objected to.” Fed. R.
Civ. P. 72(a).
Plaintiff also argues that this Court “should have been the one to exercise authority to decide
whether or not to issue the subpoenas” requested by Plaintiff. (Docket No. 156 at 1). However, 28
U.S.C. § 636(b)(1)(A) specifically provides that a “judge may designate a magistrate judge to hear
and determine any pretrial matter pending before the court,” and this Court’s Local Rule 16.01
provides for oversight by the “case management judge.”
Finally, Plaintiff requests that a three judge panel (ostensibly pursuant to requirements of the
Voting Rights Act) “rule that Dkt. 20 and 22 are and have always been throughout the process active
and never withdrawn, and that the subpeones [sic] as requested in Dkt. 132 and 143 be issued to
Plaintiff for service of process[.]” (Docket No. 156 at 2). But determining whether a motion has
been withdrawn or subpoenas should be issued is not something for a three-judge panel, particularly
since Plaintiff has not stated a cognizable claim under the Voting Rights Act. See 28 U.S.C. § 2284

10

(requiring three judge panel where challenge is to constitutionality of congressional district or
statewide legislative body but, even then, “a single judge may conduct all proceedings except the
trial and enter all orders permitted by the rule of civil procedure”); Kreiger v. Loudon Cnty., 2014
WL 4923904, at *5 (W.D. Va. Sept. 30, 2014) (“the plain language of 52 U.S.C. § 10101” of the
Voting Rights Act which requires three judge panels “expressly limits its application to
discrimination based on ‘race, color, or previous condition of servitude’ and discrimination against
‘language minorities.’”).
V. Conclusion
The Court will enter an Order confirming the foregoing rulings.

______________________________
KEVIN H. SHARP
CHIEF UNITED STATES DISTRICT JUDGE

11