Grose-Dowdy v. City of Memphis et al

Filing 33

ORDER ADOPTING 32 REPORT AND RECOMMENDATIONS TO GRANT 21 MOTION 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 2/2/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
LONITA GROSE-DOWDY,
Plaintiff,
VS.
CITY OF MEMPHIS, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 16-2589-JDT-cgc

ORDER ADOPTING REPORT AND RECOMMENDATION TO GRANT
MOTION TO DISMISS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN
IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On July 15, 2016, Plaintiff Lonita Grose-Dowdy, a resident of Memphis, Tennessee,
filed a pro se complaint on the form used for commencing an action pursuant to 42 U.S.C.
§ 1983 and paid the civil filing fee. (ECF Nos. 1 & 2.) She sues the City of Memphis,1
Memphis Mayor Jim Strickland and former Mayor AC Wharton, interim Police Director
Michael Rallings and former Police Director Tony Armstrong, various individuals with the
Memphis Police Department (“MPD”), and Gina Sweat, Director of the Memphis Fire
Department (“MFD”). The Defendants who have been served filed a motion to dismiss on
October 27, 2016. (ECF No. 21.) Plaintiff subsequently filed a motion to amend (ECF No.
22), a motion to extend the time to serve process (ECF No. 23), and a motion asking the

1

Plaintiff’s claims against the Memphis Police and Fire Departments are properly
construed as claims against the City of Memphis.

Court to appoint a Special Counsel or other individual to investigate the allegations in her
complaint (ECF No. 29). On January 6, 2017, U.S. Magistrate Judge Charmiane G. Claxton
issued a Report and Recommendation (“R&R”) in which she recommended the Court dismiss
the case sua sponte for lack of capacity to sue. (ECF No. 32.) Objections to the R&R were
due within fourteen days, on or before January 23, 2017. See Fed. R. Civ. P. 72(b)(2); see
also Fed. R. Civ. P. 6(d). However, Plaintiff has filed no objections.
Plaintiff alleges that she and Jefferson Grose, III are co-administrators and heirs of the
Estate of Lucille Grose (“Estate”) and that there are four additional heirs. (ECF No. 1 at 12.) Plaintiff alleges the decedent died as a result of injuries sustained in a motor vehicle
accident on July 18, 2015, in Memphis. (Id. at 4.) She alleges the MPD and MFD were
negligent in their investigation of the accident and failed to follow their own policies in not
issuing a traffic citation to or bringing criminal charges against the driver of the other vehicle
in the accident, Charles Stone. (Id. at 6-9.)
Magistrate Judge Claxton determined that under Tennessee law Plaintiff and her coadministrator would have the capacity to sue on behalf of the Estate. However, such an
action may be brought in federal court by an administrator acting pro se only if he or she is
the sole beneficiary of the estate and the estate has no creditors. See Bass v. Leatherwood,
788 F.3d 228, 230 (6th Cir. 2015); 28 U.S.C. § 1654. In this case, the complaint makes it
clear there are six heirs/beneficiaries of the Estate. Therefore, the Magistrate Judge found
that Plaintiff cannot maintain this action in federal court unless she is represented by counsel.

2

Accordingly, she recommended the motions to dismiss be granted and the pending motions
be denied as moot.
The Court finds no error in Magistrate Judge Claxton’s conclusions and ADOPTS the
R&R in its entirety. Accordingly, the Court GRANTS the Defendants’ motion to dismiss
and DENIES all pending motions as moot.
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 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