Moses v. Shelby County Government et al

Filing 15

ORDER DENYING PLAINTIFF'S OBJECTIONS, ADOPTING 13 REPORT AND RECOMMENDATION TO DISMISS CASE, 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 7/12/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PAMELA MOSES,
Plaintiff,
VS.
SHELBY COUNTY, ET AL.,
Defendants.

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No. 16-2253-JDT-dkv

ORDER DENYING PLAINTIFF’S OBJECTIONS,
ADOPTING REPORT AND RECOMMENDATION TO DISMISS CASE,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On April 18, 2016, the pro se Plaintiff, Pamela Moses, a resident of Memphis, Tennessee,
filed a complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF
Nos. 1 & 2.) United States Magistrate Judge Diane K. Vescovo granted leave to proceed in forma
pauperis on April 20, 2016. (ECF No. 4.)
On April 26, 2016, Plaintiff filed an “emergency” motion for an expedited hearing with
regard to a state-court hearing that was scheduled in Shelby County Chancery Court the next day,
April 27, 2016. (ECF No. 5.) However, the Court did not rule on Plaintiff’s motion prior to the
Chancery Court hearing. Subsequently, Plaintiff appeared before Magistrate Judge Vescovo in open
court on May 17, 2016, even though no hearing in this case was scheduled. The minutes of that
proceeding indicate Plaintiff again requested an “emergency” hearing. However, the Magistrate
Judge advised Plaintiff that she could not address the Court ex parte, that no defendant had been
served and that counsel had made no appearance on behalf of any defendant. Plaintiff was further

advised that her complaint would be screened in due course and that she should file a motion setting
out her concerns instead of attempting to make direct contact with the Court. (Minutes, ECF No.
8.)
Magistrate Judge Vescovo later issued an order denying Plaintiff’s earlier motion for an
emergency hearing as moot because the hearing in Chancery Court had already occurred. (ECF No.
9.) Plaintiff filed an objection to that ruling on June 6, 2016 (ECF No. 10), stating that the
Magistrate Judge deliberately waited until after the hearing to rule on her emergency motion.1
Plaintiff further asserted in her objection that she had future hearings scheduled in other state-court
matters and recently had been harassed by the Shelby County Sheriff’s Office (“SCSO”) at a
meeting of the Shelby County Commission; therefore, she contended the motion was not moot.
However, in the motion denied by Magistrate Judge Vescovo, Plaintiff sought to be heard only with
regard to the Chancery Court hearing scheduled for April 27th. No other hearings or proceedings
were mentioned in that motion. Therefore, the Magistrate Judge’s determination that the motion was
moot once the April 27th hearing had taken place was not clearly erroneous or contrary to law.
Plaintiff’s objection to that ruling is DENIED.
Plaintiff filed a motion on May 18, 2016, complaining that Magistrate Judge Vecovo is
biased against her and asking that her case either be reassigned to a different Magistrate Judge or
that all matters be heard by the undersigned District Judge, essentially seeking recusal of the
Magistrate Judge. (ECF No. 6.) Plaintiff also filed another motion for an “emergency” hearing

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The fact that the Magistrate Judge made no ruling on the motion prior to the hearing
was, in all likelihood, due primarily to the fact that Plaintiff waited until one day before the
hearing to file her motion. A document submitted by Plaintiff shows that she was aware of the
scheduled hearing in state court at least by April 18th. (See ECF No. 5-1.)
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concerning her treatment by the SCSO. (ECF No. 7.) Magistrate Judge Vescovo denied both
motions on June 21, 2016. (ECF Nos. 11 & 12.)
Also on June 21, 2016, Magistrate Judge Vescovo issued a Report and Recommendation
(“R&R”) in which she recommended dismissing this case sua sponte pursuant to 28 U.S.C.
§ 1915(e)(2). (ECF No. 13.) On July 5, 2016, Plaintiff filed a timely objection to the R&R and to
the denial of her motions for recusal and for an emergency hearing. (ECF No. 14.)
Plaintiff has sued Shelby County; Shelby County Mayor Mark Luttrell; Sheriff Bill Oldham;
Assistant District Attorney Bryce Phillips; SCSO Legal Advisor Debra Fessenden; and Allied
Barton, a company that provides internal security services for all Shelby County buildings.
Defendants Oldham and Phillips are sued only in their official capacities. (ECF No. 1 at 4.)
However, Defendant Fessenden is sued in both her official and individual capacities. (Id.)
Plaintiff alleges in the complaint that her trouble began when Defendant Fessenden “made
unfounded allegations, rumors, and circulated memos” that Plaintiff was “a dangerous ‘Sovereign
Citizen who squats in houses.’” (Id. at 2.) Defendant Phillips allegedly “initiated bogus arrest
warrants” against Plaintiff, pursuant to which the SCSO allegedly “kick[ed] down [her] family
home” and subjected her to illegal searches and seizures. (Id.) Plaintiff further alleges that, at an
unspecified time, her home was broken into and “ransacked” twice by the SCSO without a valid
warrant or any legal justification. (Id. at 4.) She also alleges that the SCSO has surveilled her home
without justification in order to intimidate and harass her and has tampered with her mailbox by
placing envelopes and notices inside it. (Id.)
Plaintiff alleges that Defendant Allied Barton subjected her to “prolonged and unauthorized
detention . . . upon entry of buildings,” thus violating her Fourth Amendment rights. (Id. at 2.) In

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December 2015, when she attempted to enter the Shelby County Criminal Justice Complex at 201
Poplar Avenue, Plaintiff allegedly was stopped by Allied Barton and told she needed to wait for an
escort. (Id. at 5.) On March 8, 2016, when Plaintiff entered the Shelby County Juvenile Court to
file documents, she allegedly was “seized” by two SCSO deputies who escorted her and would not
allow her “to move about without their permission.” (Id. at 6.)
Plaintiff alleges that Allied Barton and the SCSO act at the direction of Defendant Fessenden
when they escort her each time she enters a County building. (Id. at 5.) She contends that
Defendant Fessenden “acted unethically on behalf of her close friend Phyllis Gardner” by instructing
various officers to mistreat Plaintiff. (Id.)2 Fessenden allegedly “had a SCSO letter delivered to
[Plaintiff’s] family residence and placed in the mailbox to intimidate and frighten [Plaintiff’s]
family.” (Id.) Plaintiff further alleges that Defendant Fessenden instructed SCSO agents to harass
Plaintiff in retaliation for negative statements Plaintiff made about Judge Gardner on social media,
possibly during Gardner’s re-election campaign. (Id. at 6.)
In the R&R, Magistrate Judge Vescovo found that this case is subject to dismissal on various
grounds. First, she recommended that the Court abstain from exercising jurisdiction over Plaintiff’s
claims against the Shelby County defendants pursuant to Younger v. Harris, 401 U.S. 37 (1971), due
to the fact that Plaintiff filed a civil case in the Shelby County Chancery Court raising the same
issues that she raises in this Court. The Magistrate Judge stated that Plaintiff’s state-court case was
dismissed, and Plaintiff’s appeal is currently pending in the Tennessee Court of Appeals. (ECF No.
13 at 10-11.)

2

Phyllis B. Gardner is a General Sessions Court Judge in Shelby County. See
www.tncourts.gov/courts/general-sessions-courts/judges/phyllis-b-gardner.
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In the alternative and via a footnote in the R&R, Magistrate Judge Vescovo found that
Plaintiff’s claims in this case may be barred by res judicata if her appeal of the Chancery Court’s
dismissal of her state-court action is ultimately decided against her. (Id. at 22 n.1.)
Again in the alternative, Magistrate Judge Vescovo concluded that Plaintiff’s complaint fails
to state a claim against Shelby County3 because even if Plaintiff has sufficiently alleged that her
constitutional rights were violated by one or more County officials or employees, she has not alleged
that any harm she suffered was the result of an official policy or custom of Shelby County.
Likewise, assuming private contractor Allied Barton is a state actor under 42 U.S.C. § 1983,
Plaintiff has failed to allege that any violation of her constitutional rights which may have been
caused by the actions of the company’s employees in escorting her in County buildings was due to
an official policy or custom of the company.
Magistrate Judge Vescovo also found that Plaintiff failed to state a claim with regard to the
allegation that Defendant Phillips initiated “bogus” arrest warrants for Plaintiff because she entered
a County building unescorted. To the extent that Plaintiff may seek monetary damages against
Phillips,4 the claim is barred by the Eleventh Amendment’s grant of sovereign immunity. See Welch
v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987). However, even if the only
relief sought is declaratory or injunctive, Plaintiff’s allegations against Phillips are merely

3

As stated in the R&R, Plaintiff’s claims against Defendants Luttrell, Oldham and
Fessenden in their official capacities are also construed as claims against Shelby County.
4

Plaintiff does not seek specific declaratory or injunctive relief against Phillips, nor does
she expressly seek monetary damages against any Defendant. (ECF No. 1 at 10.) However, she
does include a general prayer for “such other relief as the Court may deem just and proper.”
(Id.)
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conclusory. As the Magistrate Judge stated, Plaintiff has not alleged when she was arrested,
described the circumstances of her arrest, or explained why the warrants were “bogus.”
As to the individual capacity claims against Defendant Fessenden, Magistrate Judge Vescovo
thoroughly analyzed all seven of Plaintiff’s claims and found that none of them states a claim on
which relief may be granted.5
In her objections filed on July 5, 2016 (ECF No. 14), the title of the document indicates that
Plaintiff is objecting to the denial of her second emergency motion,6 which was filed on May 18,
2016 (see ECF No. 7). However, Plaintiff actually complains of Magistrate Judge Vescovo’s refusal
to grant a hearing when Plaintiff appeared unexpectedly in open court on May 17, 2016. (See ECF
No. 14 at 1-2.) This untimely objection adds nothing to Plaintiff’s previous timely objection to that
ruling (ECF No 10), which the Court denied supra.
Plaintiff raises only two specific objections to the R&R. First, she asserts that the Magistrate
Judge erroneously found this case is barred by res judicata, based on the prior Chancery Court
action. However, Magistrate Judge Vescovo did not actually find that this action is barred by res
judicata. She merely suggested, in dicta, that res judicata would apply if the Tennessee Court of
Appeals rules against Plaintiff and upholds dismissal of the state-court lawsuit. Therefore, even if
Plaintiff is correct that this case would not be barred by res judicata because the Chancery Court
decision was not on the merits, rejection of the R&R is not warranted on that basis.

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Magistrate Judge Vescovo also noted that any claim based on the alleged unlawful entry
of Plaintiff’s home on December 18, 2014 (see ECF No. 1 at 8), is barred by the applicable oneyear statute of limitations. See Tenn. Code Ann. § 28-3-104(a)(1)(B).
6

The title of the document, in relevant part, is “Objection to Magistrate Order Denying
Emergency Motion for Hearing on Declaratory Judgement and Preliminary and Permanent
Injunction.” (Id. at 1.)
6

Plaintiff also contends that Magistrate Judge Vescovo improperly obtained records from that
prior Chancery Court action, quoting extensively from the trial court’s orders in the R&R. (ECF No.
13 at 9-11.) It is true that the Magistrate Judge did not specifically indicate in the R&R where she
obtained copies of the state-court documents, and those documents are not part of the record in this
case.7 However, Plaintiff does not dispute the accuracy of the excerpts that the Magistrate Judge
quoted from the state-court documents or her descriptions of the pleadings and motions in that
proceeding. Moreover, even if the Court does not rely on the R&R’s recommendation to refrain
from hearing this case based on the Younger abstention doctrine, Magistrate Judge Vescovo’s
additional conclusions that Plaintiff’s complaint fails to state a claim on which relief may be granted
are sound.
The bulk of Plaintiff’s objections to the denial of her motions and the R&R consist of a
lengthy diatribe against Magistrate Judge Vescovo, in which Plaintiff contends that the Magistrate
Judge is biased against her and is involved in a conspiracy with the Defendants and others, including
Judge Gardner, to violate Plaintiff’s rights. Plaintiff “challenges” Magistrate Judge Vescovo to
recuse herself “if she has nothing at stake.” (ECF No. 14 at 4.)8
Bias sufficient to justify recusal must be personal, arising out of the judge’s background, and
not based on the judge’s interpretation of the law. See Browning v. Foltz, 837 F.2d 276, 279 (6th

7

The original complaint that Plaintiff filed in the Chancery Court case is part of the
record in case number 14-2715-SHM-dkv (W.D. Tenn. Mar. 2, 2015) (remanded to Chancery
Court), which was an improper attempt by Plaintiff to remove the case to this Court.
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Plaintiff further requests de novo review of every motion decided by the Magistrate
Judge in this case. However, Plaintiff is not entitled to de novo review of non-dispositive orders
issued by the Magistrate Judge, see Fed. R. Civ. P. 72(a), and this order constitutes de novo
review of the R&R, see Fed. R. Civ. P. 72(b)(3).
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Cir. 1988). A judge’s participation in the proceedings or prior contact with related cases cannot
support a demand for recusal. See United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990).
In this case, Plaintiff has submitted no evidence whatsoever that Magistrate Judge Vescovo has any
personal bias against her. The assertions of bias and misconduct made by Plaintiff are merely
conclusory and speculative statements without any foundation or support. Plaintiff is attempting to
bootstrap her dissatisfaction with the Magistrate Judge’s rulings in this and previous cases into a
claim of personal bias, and the Court rejects that attempt.
The Court DENIES Plaintiff’s objections to the Magistrate Judge’s denial of her motions for
an emergency hearing and for recusal and DENIES her objections to the R&R. The R&R is
ADOPTED, and this case is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim on which relief may be granted.
It is CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in
this matter by Plaintiff is not taken in good faith. Leave to appeal in forma pauperis is, therefore,
DENIED.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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