Powers v. City of Middleton, TN

Filing 20

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ORDER GRANTING PLAINTIFF LEAVE TO AMEND. Signed by Judge S. Thomas Anderson on 11/25/2024. (gkp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
_____________________________________________________________________________
JOHNNY RICHARD POWERS, JR.,

)
)
Plaintiff,
)
v.
)
No. 1:24-cv-01121-STA-jay
)
CITY OF MIDDLESON,
)
)
Defendant.
)
_____________________________________________________________________________
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
ORDER GRANTING PLAINTIFF LEAVE TO AMEND
_____________________________________________________________________________
Before the Court is the United States Magistrate Judge’s report and recommendation (ECF
No. 17) that the Court grant Defendant City of Middleton’s Motion to Dismiss (ECF No. 10).
Plaintiff Johnny Richard Powers, Jr. has filed timely objections (ECF No. 18) to the report and
recommendation. For the reasons set forth below, the Magistrate Judge’s report and
recommendation is ADOPTED. However, the Court will grant Plaintiff leave to amend his
pleadings.
BACKGROUND
On June 7, 2024, Plaintiff filed a Pro Se Complaint using the form for complaints for the
violation of civil rights based on 42 U.S.C. § 1983. The Pro Se Complaint named the City of
Middleton, Tennessee as the only Defendant. Plaintiff paid the civil filing fee and caused
summons to issue. Pursuant to Administrative Order 2013-05, the case was assigned to the
Magistrate Judge for the management of all pretrial matters, including the determination of nondispositive matters and the issuance of reports and recommendations on all dispositive matters. As

part of his report and recommendation on Defendant’s Motion to Dismiss, the Magistrate Judge
has described the allegations of the Pro Se Complaint as follows.
The Pro Se Complaint consists of sparse allegations. In the “Statement of Claim” portion
of his Complaint, Powers states: “[c]ompensation of stolen property, compensation of damaged
property. Due to the actions of the Police they reinjured previous knee injury from past car wreck.”
Pro Se Complaint 2, ¶ IV. Powers repeated verbatim his Statement of Claim in the “Relief” section
of his Complaint. Id. at 3, ¶V. Powers submitted three exhibits in support of his Pro Se Complaint.
The first exhibit is a letter sent to him from Jimmy Simpson, the City Administrator, dated June
30, 2023, which states:
Mr. Powers,
Enclosed are invoices submitted to the City of Middleton for the costs
incurred by the City in remedying the condition of your property as noted in the
multiple written letters sent to you since September 2019. Demand is made that
payment by you to the City of the total sum of these invoices, that is $4,589.06, be
made within thirty (30) days of the date of this letter. Failure to reimburse the City
this sum will result in the filing of a Notice of Lien on your property in favor of the
City and assessed as a special assessment on your 2023 property tax bill. If you
have any questions, you may call City Hall.
ECF No. 1-1.
The second exhibit (ECF No. 1-2) is two invoices addressed to the City of Middleton. The
first invoice is from CNP Waste Company in the amount $2,689.06. CNP Waste Company
invoiced a “Delivery fee” corresponding to “POWERS HOUSE”, and several entries for
transportation fees for open top containers and landfill fees. The second invoice is from Grantham
Backhoe in the amount of $1,900.00. This invoice states “Clean up at 376 N. Main St., Middleton,
TN ‘Powers’ included man hr.”

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The third exhibit (ECF No. 1-3) is a probation order issued by the General Sessions Court
of Hardeman County, Tennessee, in State of Tennessee v. Johnny Powers, docket number 23CR641, entered on June 20, 2023. The order indicates that Powers was convicted of two counts of
“Resisting,” and sentenced to a term of supervised probation for eleven (11) months and twentynine (29) days. The probation order outlines the terms and conditions of Powers’ probation and
states that he will remain under supervised probation until court costs and fines in the amount of
$847.50 are paid.
The final exhibit (ECF No. 1-4) consists of four pages of copies of receipts where Powers
made payments to the Corrections Management Corporation Misdemeanor Probation. There are
sixteen receipts ranging between the dates of June 23, 2023, and May 24, 2024, and totaling
$190.00 in payments.
In its Motion to Dismiss, the City of Middleton argues that the Pro Se Complaint lacks
enough factual material to state a plausible claim for relief. Powers has responded in opposition
and asserts what seem to be additional facts about his claims. For example, Powers states that his
real property was damaged and that personal property was lost or destroyed by their “big
machines” and “equipment.” Powers also appears to state that he tried to stop the big machines
and equipment from being on his property and had an altercation with the police. Powers seems to
allege in his response that he was injured by the police during his altercation and was held in jail
for two weeks on charges of resisting arrest.
The Magistrate Judge has recommended that the Court grant the Motion to Dismiss, for
largely the reasons argued by Defendant.

In the alternative, the Magistrate Judge has

recommended that the Court grant Powers leave to amend his pleadings to include the additional
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facts raised in his response brief. Plaintiff’s timely objections followed, in which Powers again
states what seem to be new or additional facts in support of his claims.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b), a district court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1)(C). After reviewing the evidence, the Court “may accept, reject,
or modify, in whole or in part, the findings or recommendations made” by the United States
Magistrate Judge. Id. However, the Court need not review any portion of the recommendation to
which Plaintiff did not specifically object. Thomas v. Arn, 474 U.S. 140, 149–52 (1985). The
Court may adopt the findings and rulings of the Magistrate Judge to which no specific objection
is filed. Id.
ANALYSIS
The Court holds that Plaintiff has failed to raise any specific objection to the Magistrate
Judge’s recommendation that the Pro Se Complaint fails to state a claim for relief. Plaintiff has
argued that facts other than those alleged in his pleading make dismissal improper. However, in
deciding a Motion to Dismiss like the one filed by Defendant, the Court is confined to the facts
actually alleged in the pleading. The Court therefore adopts the Magistrate Judge’s
recommendation and GRANTS the Motion to Dismiss.
The Court further adopts the Magistrate Judge’s recommendation to grant Plaintiff leave
to amend. In both his response to the Motion to Dismiss and in his objections to the report and
recommendation, Plaintiff has raised what seem to be facts other than those he included in his
original pleading. Under the circumstances, the Court finds good cause to grant Plaintiff leave to
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file an amended pleading. Plaintiff will have 21 days from the service of this order in which to
file his amended pleading.
CONCLUSION
For the foregoing reasons, the Report and Recommendation of the United States Magistrate
Judge is adopted. Defendant’s Motion to Dismiss is GRANTED. The Court will grant Plaintiff
an opportunity to cure the defects in his Pro Se Complaint by filing an amended pleading, including
any and all of the facts supporting his claim under 42 U.S.C. § 1983. Plaintiff is cautioned that
the failure to file an amended pleading or to request an extension of time within the deadline set
by the Court will result in the dismissal of his case without further notice. This matter is
recommitted to the Magistrate Judge for the management of all further pretrial matters.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: November 25, 2024

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