Moses v. Smith et al

Filing 12

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ORDER OF SUA SPONTE DISMISSAL. Signed by Chief Judge S. Thomas Anderson on 4/21/17. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_____________________________________________________________________________
PAMELA MOSES,

)
)
Plaintiff,
)
v.
)
No. 2:16-cv-02693-STA-dkv
)
JULIUS MAURICE SMITH;
)
MEMPHIS POLICE DEPARTMENT;
)
SGT. BARBER, in his official capacity;
)
YOLANDA KIGHT, in her official capacity;
)
AMY WEIRICH, in her personal and official
)
capacity; L. HENDERSON, in his personal
)
and official capacity; and SHERIFF BILL
)
OLDHAM, in his personal and official capacity, )
)
Defendants.
)
_____________________________________________________________________________
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
ORDER OF SUA SPONTE DISMISSAL
_____________________________________________________________________________
Before the Court is the Chief United States Magistrate Judge’s report and
recommendation for the sua sponte dismissal of Plaintiff Pamela Moses’ Pro Se Complaint (ECF
No. 1) submitted October 25, 2016. Plaintiff filed timely objections (ECF No. 9) on November
8, 2016.

For the reasons set forth below, the Chief Magistrate Judge’s report and

recommendation for sua sponte dismissal is ADOPTED.

Plaintiff’s Pro Se Complaint is

DISMISSED.
BACKGROUND
On August 25, 2016, Plaintiff filed a Pro Se Complaint alleging the following claims
under 42 U.S.C. § 1983, Title VII, and Tennessee law: malicious prosecution, harassment,
discrimination, abuse of process, false arrest, false imprisonment, conspiracy to abuse of process,

and intentional infliction of emotional distress. Plaintiff also filed a motion for leave to proceed
in forma pauperis (ECF No. 2). Pursuant to Administrative Order 2013-05, the case was
assigned to the Chief Magistrate Judge for management of all pretrial matters, including the
determination of non-dispositive matters and the issuance of reports and recommendations on all
dispositive matters. In cases where a plaintiff has been granted leave to proceed in forma
pauperis, the Court is required to screen the complaint and dismiss the action if the complaint “is
frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
The Chief Magistrate Judge’s report and recommendation (ECF No. 6) constitutes the Court’s
screening.
The Chief Magistrate Judge entered an order granting Plaintiff’s motion to proceed in
forma pauperis and submitted a recommendation that the Court dismiss Plaintiff’s Pro Se
Complaint sua sponte for failure to state a claim. The Chief Magistrate Judge found that the Pro
Se Complaint failed to state a clam against any of the Defendants named therein and
recommended dismissal pursuant to 28 U.S.C. § 1915. See Ashcroft v. Iqbal, 556 U.S. 662, 678–
79 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555–57 (2007). The Chief Magistrate Judge
further recommended that the Court decline to exercise supplemental jurisdiction over Plaintiff’s
state law claims pursuant to 28 U.S.C. § 1367. Plaintiff’s timely objections followed.
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.”

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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 Chief 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 Chief Magistrate Judge to which no specific
objection is filed. Id.
ANALYSIS
I. Plaintiff’s General Objections to the Report and Recommendation
The Court holds that Plaintiff has failed to raise any specific objection to the findings of
fact or conclusions of law set out in the Chief United States Magistrate Judge’s recommendation.
Taken as a whole, Plaintiff’s filing amounts to a general objection to the Magistrate Judge’s
recommended disposition. The Sixth Circuit has opined that objections to a Magistrate Judge’s
order or recommendation must be specific “in order to focus the busy district court’s attention on
only those issues that were dispositive and contentious” and thereby to serve judicial efficiency.
Howard v. Sec’y Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
A general objection to the entirety of the magistrate’s report has the same effects
as would a failure to object. The district court’s attention is not focused on any
specific issues for review, thereby making the initial reference to the magistrate
useless. The functions of the district court are effectively duplicated as both the
magistrate and the district court perform identical tasks. This duplication of time
and effort wastes judicial resources rather than saving them, and runs contrary to
the purposes of the Magistrates Act. We would hardly countenance an appellant’s
brief simply objecting to the district court’s determination without explaining the
source of the error. We should not permit appellants to do the same to the district
court reviewing the magistrate’s report.

Id. (citing Thomas, 474 U.S. at 148).
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The Court holds that Plaintiff has not presented any specific objections to the Chief Magistrate
Judge’s legal conclusion that Plaintiff’s Pro Se Complaint has failed to state a claim over which
this Court has original jurisdiction and that the Court should decline to accept supplemental
jurisdiction over Plaintiff’s state law claims. Plaintiff has waived any objection to the Chief
Magistrate Judge’s substantive conclusions.

Therefore, the Court hereby adopts the Chief

Magistrate Judge’s recommendation.
II. Allegations of Judicial Bias
Plaintiff’s only actual objection is her contention that the Chief Magistrate Judge harbors
some bias against her. The United States Code addresses circumstances when a justice, judge, or
magistrate judge should disqualify himself or herself.

Under 28 U.S.C. § 455 provides,

disqualification is mandatory “in any proceeding in which [the judicial officer’s] impartiality
might reasonably be questioned.” and where the judicial officer “has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(a), (b)(1). Under 28 U.S.C. § 144, a party may file an affidavit
“that the judge before whom the matter is pending has a personal bias and prejudice either
against him or in favor of any adverse party” at which point the judicial officer cannot proceed in
the case. 28 U.S.C. § 144. Such an affidavit must (1) state “the facts and reasons for the belief
that bias or prejudice exists,” (2) “be filed not less than ten days before the beginning of the term
at which the proceeding is to be heard,” and (3) include “a certificate of counsel of record stating
that it is made in good faith.” Id.
The Sixth Circuit has held that disqualification under both § 455(a) and § 144 is
warranted only for extrajudicial conduct, and not judicial conduct. Green v. Nevers, 111 F.3d
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1295, 1303–04 (6th Cir. 1997). In other words, a disqualifying bias “must be a personal bias as
distinguished from a judicial one, arising out of the judge’s background and association and not
from the judge’s view of the law.” Easley v. Univ. of Mich. Bd. of Regents, 853 F.2d 1351, 1355–
1356 (6th Cir. 1988). And in order for personal bias to be disqualifying, the judge’s alleged bias
of the judge “must stem from an extrajudicial source and result in an opinion on the merits on
some basis other than what the judge learned from his participation in the case.” Parker v. Sill,
989 F.2d 500 at *2 (6th Cir.1993).
Plaintiff’s objections to the report and recommendation consist only of allegations of bias
against the Chief Magistrate Judge. Plaintiff states that the Chief Magistrate Judge “has prior
knowledge of Plaintiff from prior” litigation and that the earlier suit involved the Chief
Magistrate Judge’s “close personal friend Phyllis Gardner.” However, Plaintiff has merely
asserted that the Chief Magistrate Judge has formed an opinion about Plaintiff’s lawsuits based
on Plaintiff’s previous suits. This does not constitute the kind of personal bias that requires
disqualification.

“Personal bias is prejudice that emanates from some source other than

participation in the proceedings or prior contact with related cases.” United States v. Hatchett,
978 F.2d 1259 at *3 (6th Cir. 1992). The Chief Magistrate Judge’s report simply noted the
similarity of the claims alleged by Plaintiff in her Pro Se Complaint and the claims she alleged in
a separate suit pending before the Court in civil case no. 2:16-cv-02738-SHL-dkv. The Chief
Magistrate Judge cautioned Plaintiff about filing duplicative suits. This warning was entirely
proper.

By adopting the Chief Magistrate Judge’s report and recommendation, the Court

explicitly adopts the warning here. Plaintiff’s claims of bias are without merit.

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Having concluded that Plaintiff waived any specific objection to the Chief Magistrate
Judge’s recommendation, the report and recommendation for sua sponte dismissal is ADOPTED.
Plaintiff’s Pro Se Complaint is DISMISSED.
III. Plaintiff’s Remaining Motions
Subsequent to the filing of the Chief Magistrate Judge’s report and recommendation,
Plaintiff filed the following additional Motions: Motion to Change Venue (ECF No. 7), a Petition
for a Writ of Prohibition (ECF No. 8), and a Motion to Amend Complaint (ECF No. 10).
Plaintiff’s Motion to Change Venue argues that Plaintiff has received prejudicial publicity in this
District and therefore a change of venue would serve the ends of justice. Plaintiff’s related
Petition for a Writ of Prohibition requests that the Court take no further action in Plaintiff’s case
until the Court has first decided the Motion to Change Venue. The Court holds that these two
Motions are now moot. The Court has concluded that the Pro Se Complaint fails to state any
claim for relief under federal law. The Court has further concluded that it will not exercise
supplemental jurisdiction over Plaintiff’s state law claims.

As such, Plaintiff’s Motions

concerning venue are DENIED as moot.
Likewise, Plaintiff’s Motion to Amend is not well taken. A plaintiff proceeding in forma
pauperis may not amend her pleadings to escape sua sponte dismissal under 28 U.S.C. §
1915(e)(2). Zindler v. Rogers, 477 F. App’x 381, 382 (6th Cir. 2012) (citing Benson v.
Plaintiff’s Motion to Amend must therefore be

O'Brian,179 F.3d 1014, 1016 (6th Cir. 1999).
DENIED.

APPELLATE ISSUES
The final issue to be addressed is whether Plaintiff should be allowed to appeal this
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decision in forma pauperis. An appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith. 28 U.S.C. § 1915(a)(3). The good faith
standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal is
not taken in good faith if the issue presented is frivolous. Id. It would be inconsistent for a
district court to determine that a complaint should be dismissed prior to service on the defendant
but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722
F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this
case for failure to state a claim also compel the conclusion that an appeal would not be taken in
good faith. It is therefore CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in
this matter by Plaintiff would not be taken in good faith and Plaintiff may not proceed on appeal
in forma pauperis.
The Sixth Circuit’s decisions in McGore v. Wrigglesworth, 114 F.3d 601, 612–13 (6th
Cir. 1997) and Floyd v. United States Postal Serv., 105 F.3d 274, 276 (6th Cir. 1997) apply to
any appeal filed by Plaintiff in this case. If Plaintiff files a notice of appeal, she must pay the
entire $505 filing fee required by 28 U.S.C. §§ 1913 and 1917. The entire filing fee must be paid
within thirty (30) days of the filing of the notice of appeal. By filing a notice of appeal, Plaintiff
becomes liable for the full amount of the filing fee, regardless of the subsequent progress of the
appeal. If Plaintiff fails to comply with the above assessment of the appellate filing fee within
thirty (30) days1 of the filing of the notice of appeal or the entry of this order, whichever
occurred later, the Court will notify the Sixth Circuit, which will dismiss the appeal. If the

1

The district court may extend this deadline one time by thirty (30) days if the motion to
extend is filed before the expiration of the original deadline. McGore, 114 F.3d at 610.
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appeal is dismissed, it will not be reinstated once the fee is paid. McGore, 114 F.3d at 610.
CONCLUSION
For the foregoing reasons, the Report and Recommendation of the United States Chief
United States Magistrate Judge is adopted. Plaintiff’s Pro Se Complaint is dismissed sua sponte.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: April 21, 2017.

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