Douglas v. Jones et al

Filing 125

ORDER REMANDING CASE TO THE MADISON COUNTY CIRCUIT COURT. Signed by Chief Judge J. Daniel Breen on 9/3/13. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

JEFFERY GAYLON DOUGLAS,
Plaintiff,
v.

No. 12-1276

STATE OF TENNESSEE, et al.,
Defendants.

ORDER REMANDING CASE TO THE MADISON COUNTY CIRCUIT COURT

On

November

2,

2012,

Plaintiff,

Jeffery

Gaylon

Douglas,

Tennessee Department of Correction prisoner number 467106, an
inmate

at

the

Northwest

Correctional

Complex

in

Tiptonville,

Tennessee ("NCCX"), filed a pro se civil action in the Circuit
Court for Madison County, Tennessee against the Defendants, the
State of Tennessee; Judge Donald H. Allen; “Jane Doe, Juries 1-13”;
“John Doe, Juries 1-13”; Assistant District Attorney Shaun A.
Brown; Public Defender Gregory D. Gookin; Jackson Police Department
Investigator Danielle Jones, who was sued as “Daniel Jones”; Dr.
Lisa Piercey, who was sued as “Lisa Pierce”; Jennifer Plunk;
“F.S.,” a juvenile; Ralph Turner and District Attorney General
James G. Woodall.

(Docket Entry (“D.E.”) 1-2.)

On November 30,

2012, Jones removed the case to federal court and paid the civil
filing fee on December 3, 2012.
below,

the

Court

concludes

(D.E. 1.)

that

there

For the reasons stated
is

no

subject-matter

jurisdiction over the action and remands the case to the Madison
County Circuit Court.
By way of background, this action arises out of Plaintiff’s
convictions for rape and sexual battery of a thirteen-year-old
girl, which were obtained in the same state court where this
lawsuit originated.

Douglas was sentenced to concurrent terms of

imprisonment of ten years for the rape and two years for the sexual
battery. His convictions were affirmed on direct appeal. State v.
Douglas, No. W2010-00986-CCA-R3-CD, 2011 WL 915052 (Tenn. Crim.
App. Mar. 16, 2011), app. denied (May 25, 2011).

The denial of

post-conviction relief was affirmed by the Tennessee Court of
Criminal Appeals.

Douglas v. State, No. W2012-00012-CCA-R3-PC,

2013 WL 1557363 (Tenn. Crim. App. Apr. 9, 2013). The Defendants in
the instant suit include the victim (F.S.), the victim’s mother
(Plunk), the victim’s mother’s boyfriend (Turner), the trial court
judge (Allen), an expert witness at trial (Piercey), the police
investigator (Jones), the prosecutors (Brown and Woodall), and
defense counsel (Gookin).
Douglas’s

claims

wrongfully prosecuted.

are

based

on

the

premise

that

he

was

However, his complaint contains no factual

allegations and the assertions therein are difficult to decipher.
It

appears

that

Plaintiff

has

included

state-law

claims

for

malicious prosecution (D.E. 1-2 ¶ 1), “intentional infliction of
emotional distress by means of extreme and/or outrageous conduct”
(id. ¶ 2; see also id. ¶¶ 3-5 & 7-9), “deception” (id. ¶ 15), civil
conspiracy (id. ¶ 16), and, perhaps, malicious harassment (id. ¶¶
2

10 & 11).

An amendment to the complaint asserts claims for

malicious prosecution and perjury.

(D.E. 1-3.)

Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree.
It is to be presumed that a cause lies outside this
limited jurisdiction and the burden of establishing the
contrary rests upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S. Ct. 1673,
128 L. Ed 2d 391 (1994) (internal citations omitted); see also
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.
Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986) (“Federal courts are not
courts of general jurisdiction; they have only the power that is
authorized by Article III of the Constitution and the statutes
enacted by Congress pursuant thereto.”), reh’g denied, 476 U.S.
1132, 106 S. Ct. 2003, 90 L. Ed. 2d 682 (May 19, 1986); Ins. Corp.
of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
701, 102 S. Ct. 2099, 2104, 72 L. Ed. 2d 492 (1982) (“Federal
courts are courts of limited jurisdiction.

The character of the

controversies over which federal judicial authority may extend are
delineated in Art. III, § 2, cl. 1.

Jurisdiction of the lower

federal courts is further limited to those subjects encompassed
within a statutory grant of jurisdiction.”); Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 2403, 57 L. Ed.
2d 274 (1978) (same).
“A party seeking to invoke the jurisdiction of the federal
courts

.

.

.

bears

jurisdiction exists.”

the

burden

of

establishing

that

such

Ohio ex rel. Skaggs v. Brunner, 549 F.3d

3

468, 474 (6th Cir. 2008) (per curiam).

“Removing defendants bear

the burden of establishing federal subject-matter jurisdiction.”
Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453-54 (6th
Cir. 1996).

A district court may address the issue of subject-

matter jurisdiction of a removed case sua sponte.

Probus v.

Charter Commc’ns, LLC, 234 F. App’x 404, 406 (6th Cir. 2007).
Although a district court may not remand a case sua sponte because
of a procedural defect in the removal, Page v. City of Southfield,
45 F.3d 128, 133 (6th Cir. 1995), a sua sponte remand for want of
subject-matter jurisdiction is permitted, Lexington-Fayette Urban
Cnty. Gov’t Civil Serv. Comm’n v. Overstreet, 115 F. App’x 813,
816-17 (6th Cir. 2004), cert. denied, 544 U.S. 1049, 125 S. Ct.
2295, 161 L. Ed. 2d 1088 (2005).
The notice of removal states that “Douglas alleges that this
is a ‘civil rights claim action’ . . . and he bases his claims on
‘the laws of the United States’ and ‘the Federal Constitution.’”
(D.E. 1 ¶ 5 (internal footnotes omitted).)

Defendant Jones

contends that, “[b]ecause this Court has original jurisdiction over
claims arising under the laws of the United States, the Court has
jurisdiction
omitted).)

in

this

case.”

(Id.

¶

6

(internal

footnotes

Thus, she asserts that this Court has federal question

jurisdiction under 28 U.S.C. § 1331.
“Except as expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United
4

States for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a). A federal district court
has federal question jurisdiction over “all civil actions arising
under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.

“Whether a claim presents a federal question is

determined by looking to the plaintiff’s statement of his own
claim.”

Overstreet, 115 F. App’x at 816 (internal quotation marks

omitted);

see

also

Kitzmann

v.

Local

619-M

Graphic

Commc’ns

Conference of Int’l Bhd. of Teamsters, 415 F. App’x 714, 716 (6th
Cir. 2011) (“Our review of whether federal-question jurisdiction
exists is governed by the well-pleaded complaint rule, which
provides that jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s complaint.”).
In determining whether a claim arises under federal law,
[the court is to] look only to the well-pleaded
allegations of the complaint and ignore potential
defenses that the defendant may raise. . . . Although
the well-pleaded-complaint rule focuses on what the
plaintiff alleges, it allows a court to look past the
words of a complaint to determine whether the
allegations, no matter how the plaintiff casts them,
ultimately involve a federal question. In addition to
causes of action expressly created by federal law,
federal-question removal thus also reaches ostensible
state-law claims that (1) necessarily depend on a
substantial and disputed federal issue, (2) are
completely preempted by federal law or (3) are truly
federal-law claims in disguise.
Brunner, 549 F.3d at 474-75 (internal quotation marks, alterations
& citations omitted).

A state-law claim does not “arise under”

federal law “when the complaint on its face states alternate
theories supporting a state-law claim, at least one of which does

5

not involve a federal question.”

Long v. Bando Mfg. of Am., Inc.,

201 F.3d 754, 760 (6th Cir. 2000).
Douglas’s complaint, as amended, does not appear to assert any
claim arising under the Constitution or laws of the United States.
The characterization of his complaint as a “Civil Rights Claim
Action” does not, on its face, indicate an intention to assert a
federal claim.

The statements on which Jones relies are the

following:
COME NOW, the Plaintiff, Jeffery Gaylon Douglas,
pursuant to T.C.A. § 4-21-801 et seq, the Tenn. Rules of
Court, Preliminary Proceedings, Rule 3 and 4 in the above
cause and avers this action for the intentional alleged
infliction and hereby brings this Civil Rights Claim
Action in the amount of Two Million Dollars (2M) against
the here-in-named Defendants as follows:
(D.E. 1-2 at 2.)

On its face, this paragraph purports to sue under

Tennessee Code Annotated §§ 4-21-801 et seq., which is titled the
"Civil Rights Act of 1990."
The only other reference to a civil rights action appears in
paragraph fourteen of the complaint, which states:
Pro Se Litigant bring Civil Rights Suit in Forma Pauperis
is entitled to five protections:
1.

Process, Issues [sic], and Served[.]

2.

Notice thereafter made by defendants or the court
to dismiss the complaint and grounds therefor.

3.

Opportunity to submit a written
opposition to such motions[.]

4.

In the event of dismissal, a statement of the
grounds thereof.

5.

Opportunity to amend the complaint to overcome the
deficiency unless it clearly appears from the

6

memorandum

in

complaint that the deficiency cannot be overcome by
amendment.
[N]oll v. Car[l]son, 809 F.2d 1446 (9th Cir. 1987)
6.

Be allowed some degree of flexibility in pleading
Plaintiff’s action and be ensured meaningful access
to the court.
Bo[g]uslavsky v. Kaplan, 159 F.3d 715 (2d Cir.
1998)
Rand[] v. Rowland, 154 F.3d 952 (9th Cir. 1998)

7.

Pro Se prisoner Litigant’s pleadings must be
construed liberal [sic] on Motion for judgement[.]
Frost v. Symington, 197 F.3d 348 (9th Cir. 1999)

(Id. ¶ 14.)

The cases cited address procedural rules applied in

some jurisdictions to federal suits filed by pro se litigants. See
Frost v. Symington, 197 F.3d 348, 352-53 (9th Cir. 1999) (in suit
under 42 U.S.C. §§ 1983 and 1985, pro se prisoner’s claims must be
construed liberally on a motion for summary judgment); Boguslavsky
v. Kaplan, 159 F.3d 715, 718-19 (2d Cir. 1998) (in pro se suit
under the Securities Exchange Act of 1934, court noted that it
should allow "some degree of flexibility in pleading his action");
Rand v. Rowland, 154 F.3d 952, 955-58 (9th Cir. 1998) (addressing
“fair notice” of summary judgment requirements to be provided to
pro se prisoners litigating claims under § 1983), cert. denied, 527
U.S. 1035, 119 S. Ct. 2392, 144 L. Ed. 2d 793 (1999); & Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("A pro se litigant
must be given leave to amend his or her complaint unless it is
absolutely clear that the deficiencies of the complaint could not
be cured by amendment" in Bivens action).
Paragraph

fourteen

is

a

statement

of

the

procedural

protections to which Plaintiff believes he is entitled as a pro se

7

prisoner.

That some of the cases cited arose under § 1983 does not

establish that he intended to assert a § 1983 claim. The paragraph
does not assert a substantive right to relief against any Defendant
and, therefore, it cannot provide a basis for removal.
Jones also contends that Douglas “bases his claims on 'the
laws of the United States’ and ‘the Federal Constitution.’”
1 ¶ 5.)

(D.E.

In support, she cites paragraphs twenty and twenty-one of

the complaint.

(Id. at n.10.)

Those paragraphs provide as

follows:
20. Plaintiff avers that the Court GRANT any other
relief to which Plaintiff may be or is entitled thereof.
In additional [sic], the Court GRANTS any other relief
that is applicable and/or necessary to perform the
mandatory duties of the Court, Local Constitution, State
Constitution, United States Constitution, and the laws
thereof.
21. Motion in Opposition to “any Defendant’s
Motion” of Dismissing or Squashing [sic] of said Civil
action or Subpoena, the Plaintiff hereby avers, whether
or not cited here-in this action, the laws which support
this action, and that:
1.

The alternative remedies are preserved;

2.

The privileges are secured by
the constitution,

3.

Of the laws of the United States,

4.

Of the State Constitution,

5.

Of the Federal Constitution,

6.

Of the laws of the state of Tennessee,

T.C.A. § 4-21-702
See Page Five (5), Paragraph Eleven (11)
(D.E. 1-2 ¶¶ 20-21.)

8

These paragraphs do not, on their face, allege a right to
relief against any Defendant under the United States Constitution
or federal law.

To the extent these paragraphs can be deciphered,

it appears that Plaintiff is asking the Court to afford him every
appropriate procedural protection to which he may be entitled.
That Douglas’s substantive claims arise under Tennessee law is
made

clear

complaint.

by

the

citations

in

paragraph

twenty-one

of

the

Tennessee Code Annotated § 4-21-702, which is cited

therein, states the remedies for malicious harassment.

(See also

D.E. 1-2 ¶ 10 (noting that Tenn. Code Ann. § 4-21-701 provides a
cause of action for malicious harassment).)
Paragraph

twenty-one

also

contains

a

cross-reference

to

paragraph eleven of the complaint, which refers to the remedies
available on a state-law claim of malicious harassment and quotes
(or misquotes) Tennessee Code Annotated § 39-17-309, a criminal
statute which provides in pertinent part as follows:
(a) The general assembly finds and declares that it is
the right of every person regardless of race, color,
ancestry, religion or national origin, to be secure and
protected from fear, intimidation, harassment and bodily
injury caused by the activities of groups and
individuals. . . .
(b) A person commits the offense of intimidating others
from exercising civil rights who:
. . . .
(2) Injures or threatens to injure or coerces
another person with the intent to unlawfully intimidate
another because that other exercised any right or
privilege secured by the constitution or laws of the
United States or the constitution or laws of the state of
Tennessee . . . .

9

Paragraph eleven does not clearly purport to assert a claim under
§

39-17-309,

intimidation.
309.

a

criminal

statute

that

prohibits

civil

rights

There is no private right of action under § 39-17-

Davis v. Tenn. Wildlife Res. Agency, No. W2005-00406-COA-R3-

CV, 2006 WL 861352, at *7 (Tenn. Ct. App. Apr. 5, 2006), app.
denied (Oct. 2, 2006).

The Tennessee Supreme Court has held that

a civil claim for malicious harassment under § 4-21-7011 must be
read in light of § 39-17-309 and, specifically, that
a claim of malicious harassment requires not only that a
person acted maliciously, i.e., ill-will, hatred or
spite, but also that a person unlawfully intimidated
another from the free exercise or enjoyment of a
constitutional right by injuring or threatening to injure
or coercing another person or by damaging, destroying or
defacing any real or personal property of another person.
Washington v. Robertson Cnty., 29 S.W.3d 466, 473 (Tenn. 2000). As
previously noted herein, paragraphs ten and eleven of the complaint
might be construed as an attempt to assert a malicious harassment
claim.
Douglas’s state-law claim for malicious harassment arises
under

federal

law

only

if

it

“necessarily

depend[s]

on

a

substantial and disputed federal issue.” Brunner, 549 F.3d at 475.
Among the requirements for a claim for malicious harassment under

1

The statute provides:

(a) There is hereby created a civil cause of action for malicious
harassment.
(b) A person may be liable to the victim of malicious harassment for
both special and general damages, including, but not limited to,
damages for emotional distress, reasonable attorney's fees and
costs, and punitive damages.
Tenn. Code Ann. § 4-21-701.

10

Tennessee law is that the plaintiff “exercised any right or
privilege secured by the constitution or laws of the United States
or the constitution or laws of the state of Tennessee.” Tenn. Code
Ann. § 39-17-309(b)(2) (misquoted in paragraph twenty-one of the
complaint).

Jones’

theory

of

removal

appears

to

be

that

a

violation of the United States Constitution or federal law is an
essential element of Plaintiff’s claim for malicious harassment.
This analysis is flawed.

Because Plaintiff can prevail on his

malicious harassment claim if he “exercised any right of privilege
secured by the constitution or laws of the United States or the
constitution or laws of the state of Tennessee,” Tenn. Code Ann. §
39-17-309(b)(2) (emphasis added), “the resolution of federal law is
not necessary or essential to the resolution of [his] state law
claim[],” Mitchell v. Lemmie, 231 F. Supp. 2d 693, 700 (S.D. Ohio
2002).

See also Long, 201 F.3d at 760 (no federal question where

plaintiff’s complaint “offered state as well as federal policies as
evidence of his wrongful discharge").
Therefore,

Jones’

notice

of

removal

does

not

adequately

establish that Plaintiff’s complaint arises under the Constitution
or laws of the United States.

Because federal jurisdiction over

this matter is lacking, the case is REMANDED to the Madison County
Circuit Court.

All pending motions are DENIED as moot.

The Clerk

is directed to close the case without entry of a judgment.
Pursuant to 28 U.S.C. § 1447(d), orders remanding a case to
the state court from which it was removed for want of subjectmatter jurisdiction are not appealable.
11

The Clerk is DIRECTED, pursuant to 28 U.S.C. § 1447(c), to
mail a certified copy of this order to the Clerk of the Madison
County Circuit Court.
IT IS SO ORDERED this 3rd day of September 2013.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

12