Eshleman v. Gannett Co.
Filing
13
ORDER DENYING OBJECTION, ADOPTING REPORT AND RECOMMENDATION TO DISMISS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 8/2/16. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
XYLIE ESHLEMAN,
Plaintiff,
VS.
GANNETT CO.,
Defendant.
)
)
)
)
)
)
)
)
)
No. 15-1123-JDT-egb
ORDER DENYING OBJECTION,
ADOPTING REPORT AND RECOMMENDATION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On May 14, 2015, the pro se Plaintiff, Xylie Eshleman, filed a civil complaint accompanied
by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) United States Magistrate Judge
Edward G. Bryant granted leave to proceed in forma pauperis on May 15, 2015. (ECF No. 5).
Plaintiff filed an amended complaint on December 28, 2015. (ECF No. 8.) On July 11, 2016,
Magistrate Judge Bryant issued a Report and Recommendation (“R&R”) in which he recommended
the Court dismiss the case sua sponte. (ECF No. 10.) Plaintiff filed a timely objection on July 25,
2016. (ECF No. 11.)
Plaintiff sues the Gannett Co., identified in the complaint as the parent company of the
Jackson Sun newspaper. Jurisdiction is based on diversity of citizenship. (ECF No. 1 at 2.) In the
original complaint, Plaintiff asserted claims against Gannett for libel per se, false light invasion of
privacy, intentional infliction of emotional distress, theft of property, fraud, fraud by inducement,
breach of contract, inciting libel, negligence and trespass. (Id. at 1, 3-4.) However, the amended
complaint is designated, at the top of each page, a “[c]laim for debt in place of original tort
complaint.” (ECF No. 8.) Thus, the amended complaint is intended to supersede the original
complaint. In that amended pleading, consisting of a fifty-four-page complaint, thirteen pages of
exhibits and a one-page affidavit, Plaintiff contends that Gannett has admitted liability for the
alleged “trespass” against her but has refused to pay the itemized bills she sent them detailing the
debt. She “requires” the court “to enforce my self-executing contract and charge Gannett
$44,000,000 for 22 unauthorized uses.” (Id. at 3.)
In the R&R, Magistrate Judge Bryant found that the amended complaint is frivolous. In her
objection, Plaintiff complains that the Magistrate Judge issued almost identical R&Rs in her pending
cases and made an inadvertent “cut and paste” error one of the other cases.1 It is stated, “[t]he
magistrates [sic] order to dismiss did not provide one statement not consistent with dishonor and was
actually vague and frivolous.” (ECF No. 11 at 1.) Plaintiff then states she is “giving notice of
dishonor and dishonoring the honorable magistrate’s presentment order to dismiss” and that he is
“dishonoring any rule against me.” (Id.)
Nothing in Plaintiff’s objection warrants rejecting Magistrate Judge Bryant’s conclusion.
The Court has reviewed the amended complaint and finds it is nonsensical and frivolous.
Accordingly, Plaintiff’s objection is DENIED. The Court ADOPTS the R&R and DISMISSES this
case as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a), the Court
CERTIFIES that an appeal by Plaintiff would not be taken in good faith and DENIES leave to
appeal in forma pauperis. Accordingly, if Plaintiff files a notice of appeal, she must also pay the
1
The R&R in this case contains no such errors.
2
entire $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit
in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?