Moses v. Oldham et al

Filing 12

ORDER ADOPTING HE CHIEF MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS, ORDER DISMISSING CASE AND DENYING LEAVE TO PROCEED ON APPEAL IN IFP signed by Judge John T. Fowlkes, Jr. on 10/16/17. (Fowlkes, J.)

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

)
)
Plaintiff,
)
)
v.
)
No. 2:16-cv-02767-JTF-dkv
)
WILLIAM OLDHAM, in
)
his official capacity as
)
Shelby County Sheriff, and
)
MARK LUTTRELL, in his
)
official capacity as Mayor
)
of Shelby County,
)
)
Defendants.
)
______________________________________________________________________________
ORDER ADOPTING THE CHIEF UNITED STATES MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION AS TO ITS ALTERNATIVE CONCLUSION
THAT PLAINTIFF STATES NO CLAIM FOR WHICH RELIEF MAY BE GRANTED
______________________________________________________________________________
This action for damages and injunctive relief under the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution raises serious allegations against Shelby County
regarding abuse of power and a citizen’s access to vital public institutions. Before the Court is
the Report and Recommendation of the Chief United States Magistrate Judge (the “Chief
Magistrate Judge”) filed on October 17, 2016, recommending that the Court dismiss Plaintiff
Pamela Moses’ case sua sponte (ECF No. 7).

Plaintiff, proceeding pro se, filed timely

objections on October 31, 2016 (ECF Nos. 8 & 9). For the reasons set forth below, the Court
hereby ADOPTS the Chief Magistrate Judge’s Report and Recommendation and accordingly
DISMISSES Plaintiff’s pro se complaint.

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I.

BACKGROUND
On September 23, 2016, Plaintiff filed a pro se complaint “pursuant to the Equal

Protection Clause, Privileges and Immunities Clause, the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution” (ECF No. 1). Plaintiff did not cite a cause of
action but requested both injunctive and monetary relief. She also filed a motion for leave to
proceed in forma pauperis (ECF No. 2). Plaintiff claims that when she visited the Shelby
County Courthouse in Memphis, Tennessee, on September 16, 2016, she was followed, accosted,
and wrongfully arrested by deputies of the Shelby County Sheriff. 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
constitutes the Court’s screening.
The Chief Magistrate Judge, construing the Complaint as pleading an action under 42
U.S.C. § 1983, entered an order granting Plaintiff’s motion to proceed in forma pauperis and
submitted a recommendation that the Court decline to exercise jurisdiction over this case under
the Younger abstention doctrine, or, in the alternative, dismiss Plaintiff's pro se Complaint sua
sponte for failure to state a claim. Order Grant’g Motion to Proceed In Forma Pauperis and R.
& R. for Sua Sponte Dismissal, at 14–15, Oct. 17, 2016, ECF No. 7; see Younger v. Harris, 401
U.S. 37 (1971). Plaintiff’s timely objections followed.
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II.

STANDARD OF REVIEW
When a magistrate judge “submit[s] to a judge of the [district] court proposed findings of

fact and recommendations,” “any party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1)(B)–(C). 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)
(italics added). After reviewing the evidence, the Court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made” by the Chief Magistrate Judge. Id. The Court
need not, however, review any portion of the recommendation to which Plaintiff did not
specifically object, and may adopt the findings and rulings of the Chief Magistrate Judge to
which no specific objection is filed. Thomas v. Arn, 474 U.S. 140, 149–52 (1985).
III.

ANALYSIS
Liberally construing Plaintiff’s objections to the Chief Magistrate Judge’s Report and

Recommendation, the Court identifies the following objections: (1) allegations of bias against
the Chief Magistrate Judge; (2) the Chief Magistrate Judge goes beyond the Complaint in order
to determine the applicability of the Younger doctrine and that it does not state a claim for which
relief may be granted; (3) this action is based on new facts not previously adjudicated;
(4) abstention by the Court pursuant to the Younger doctrine would be inappropriate in this
instance because Plaintiff does not ask the Court interfere in a criminal matter but to prevent
future harm; (5) even if the Younger doctrine is applicable, the allegations demonstrate a
situation where the Court should still intervene; and (6) Plaintiff does state a claim for which
relief can be granted under 42 U.S.C. § 1983 by alleging the existence of a de facto policy of
discrimination, harassment, and deprivation;. The Court will now address each of the objections
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in turn.
A.

Bias Allegations

Plaintiff’s Objection to the Report and Recommendation contains several allegations of
bias and misconduct with respect to the Chief Magistrate Judge. Obj’n to the Magistrate’s R. &
R., ¶¶ 1–14, Oct. 31, 2016, ECF No. 9 [hereinafter “Pl.’s Obj’n”].

Plaintiff has made

substantially the same claims against the Chief Magistrate Judge in a previous lawsuit in this
district. See Obj’ns to R. & R., Moses v. Smith, No. 2:16-cv-02693-STA-dkv (July 5, 2016),
ECF No. 14. In an Order Adopting the Report and Recommendation in that case, another
District Court Judge in this district fully addressed these objections and found them to be without
merit. Moses v. Smith, No. 2:16-cv-02693-STA-dkv, 2017 U.S. Dist. LEXIS 60953, at *1 (W.D.
Tenn. Apr. 21, 2017). Given the striking similarities between the allegations made in that case
and this one, including the identities of both individuals, this Court rejects Plaintiff’s allegations
here and incorporates Section II of the Order in case number 2:16-cv-02693-STA-dkv by
reference. Id. at *2–3; see also Moses v. Shelby Cty., No. 2:16-cv-02253-JDT-dkv, 2016 U.S.
Dist. LEXIS 89860, at *4 (W.D. Tenn. July 12, 2016) (rejecting similar allegations of bias made
by Plaintiff against the Chief Magistrate Judge).
B.

The Report and Recommendation Goes Beyond the Complaint

Plaintiff next objects to the Chief Magistrate Judge’s references to and reliance upon
other cases involving Plaintiff. Pl.’s Obj’n, ¶¶ 15–17. The actions of the Chief Magistrate Judge
in doing so are not only appropriate but necessary in this instance. See Bailey v. City of Ann
Arbor, 860 F.3d 382, 386 (6th Cir. 2017) (quoting New Eng. Health Care Emps. Pension Fund v.
Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003)) (stating that a court ruling on Rule
12(b)(6) motion “may consider materials in addition to the complaint if such materials are public

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records or are otherwise appropriate for the taking of judicial notice”). Screening a pro se
Complaint for potential issues involving res judicata, the appropriateness of abstention, or
frivolity necessarily involves some knowledge of prior or contemporaneous actions. Therefore,
the Court finds this objection to be without merit.
C.

Res Judicata Is Inapplicable

Plaintiff then objects to the portion of the Chief Magistrate Judge’s Report and
Recommendation that discusses Plaintiff’s claim that she is barred from entering certain public
buildings without an escort. Pl.’s Obj’n, ¶¶ 33–34. The Chief Magistrate Judge has found that
Plaintiff merely repeats allegations dismissed in a prior lawsuit, Moses v. Shelby County
Government, 2:16-cv-2253-JDT-dkv. The Chief Magistrate Judge notes, that with the exception
that Plaintiff was once again told on September 16, 2016, that she must be escorted at all times
while in courthouses, Plaintiff offers no new legal theories or facts to support her claims.
Plaintiff states that this is a new case with new circumstances. With respect to her claims based
upon allegations that she cannot enter certain public buildings without an escort, Plaintiff cannot
state a claim for relief because these claims have already been adjudicated. See White v. Paint
Tech Int'l & Quality Containment Sol., 2013 U.S. Dist. LEXIS 150035, at *4 (E.D. Mich. 2013)
(citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)) (“While a dismissal under § 1915(e) is not
a dismissal on the merits, a [c]ourt’s previous determination and dismissal on frivolousness has a
res judicata effect for future in forma pauperis petitions.”). Therefore, the Court also finds this
objection to be without merit.
D.

The Younger Doctrine Is Inapplicable

The Chief Magistrate Judge adequately describes the Younger doctrine in her Report and
Recommendation, so the Court sees no reason to further do so here. The Court, however,

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ultimately disagrees with the Chief Magistrate Judge’s conclusion that the Younger doctrine
applies to this case in light of information not available at the time the Chief Magistrate Judge
filed her Report and Recommendation. First, Plaintiff expressly states that she “is not asking the
Court to interfere in the criminal case.” Pl.’s Obj’n, ¶¶ 35. Second, according to the Shelby
County Criminal Justice System’s online records, the charges against Plaintiff were all dismissed
on August 30, 2017. In light of these new circumstances, the Court agrees with Plaintiff that the
Younger doctrine is not applicable. The Court therefore presumes that Plaintiff seeks only
monetary damages for her § 1983 claims involving the arrest and that any request for injunctive
relief was tied to the allegations that Plaintiff was barred from accessing certain public buildings
without an escort.
E.

This Case Is an Exception to Younger

Having sustained Plaintiff’s objection that the Younger doctrine is inapplicable, the Court
finds no reason to discuss a possible exception to Younger.
F.

Plaintiff States a Claim for Relief

Plaintiff next objects to the Report and Recommendation on the basis that she states a
claim for which relief can be granted. Pl.’s Obj’n, ¶¶ 18–36. With respect to Plaintiff’s claims
arising from the allegations that she is barred from certain public buildings without an escort, the
Court found above that Plaintiff cannot state any such claims in light of a previous dismissal.
Having also confined the allegations stemming from the September 16, 2016 arrest to a request
for monetary damages under 42 U.S.C. § 1983, the Court will now address whether Plaintiff
states a claim in doing so.
Plaintiff does not object to the Chief Magistrate Judge’s conclusion that an action against
a county’s Sheriff and Mayor constitutes a suit against the County. Nor does Plaintiff object to

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the conclusion that she must demonstrate an “official policy or custom that actually serves to
deprive an individual of his or her constitutional rights” in order to state a claim against
Defendants. Plaintiff instead argues the existence of such a policy in the form of a retaliatory
campaign of harassment by County officials that deprives her of rights guaranteed by the United
States Constitution. The facts asserted by Plaintiff in her pro se Complaint, however, do not
support any such claim. See Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.
2003) (“To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or
inferential allegations with respect to all the material elements of the claim.”); see also Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (holding that a complaint must “raise
a right to relief above the speculative level . . . . that is plausible on its face.”). The Chief
Magistrate Judge has set forth the requirements for stating a claim under § 1983 against a
municipality or county in her Report and Recommendation. Plaintiff must allege facts tending to
show that (1) her injuries were caused by a constitutional violation and (2) Shelby County is
responsible for that violation. See Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
Further, the County’s responsibility must be established by showing (1) a policy or custom, (2) a
connection between the County and the policy or custom, and (3) that the constitutional violation
was the result of that policy or custom. See Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003).
Plaintiff alleges that deputies accosted her and then effected a warrantless arrest in
violation of the Fourth Amendment. The Court agrees with the Chief Magistrate Judge that these
allegations do not satisfy the second prong of Collins. 1 Plaintiff makes no allegations that a

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The Court finds it arguable, however, whether Plaintiff satisfied the first prong of
Collins. While it is undeniable that law enforcement officers may make an arrest without a
warrant if the arrest is supported by probable cause, it is not clear to the Court that the burden is
on Plaintiff to demonstrate that the deputies lacked probable cause. See Davis v. Rodriguez, 364
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County policy or custom caused the alleged constitutional violation. The arguments raised in
Plaintiff’s Objection deal in legal conclusions and speculation. They do not have any basis in the
facts alleged by Plaintiff in her pro se Complaint. The Court therefore finds that this objection is
also without merit.
IV.

APPELLATE FILING FEE
The final issue to be addressed is whether Plaintiff should be allowed to appeal this

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.

F.3d 424, 433 n.8 (2d Cir. 2004) (“We note that there is a difference of opinion in the federal
courts as to the burden of proof applicable to § 1983 unconstitutional false arrest claims. Not
many of our sister circuits have addressed which side carries the burden regarding probable
cause, and those that have are split.”). For example, the Sixth Circuit has held that the
government defendants invoking consent as an exception to the warrant requirement for searches
bear the burden of proof in civil cases. Andrews v. Hickman County, 700 F.3d 845, 854 (6th
Cir. 2012) (citing Bumper, 391 U.S. at 548; Tarter v. Raybuck, 742 F.2d 977, 980 (6th Cir.
1984)). While pleading requirements are not the same as a burden of proof, the Court thinks the
issue is instructive, particularly where a pro se action, as here, has not yet proceeded to the point
where the Court may hear from an opposing party.
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The Sixth Circuit’s decisions in McGore v. Wrigglesworth, 114 F.3d 601, 612–13 (6th Cir.
1997) and Floyd v. USPS, 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)
days 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 appeal is dismissed, it
will not be reinstated once the fee is paid. McGore, 114 F.3d at 610.
V.

CONCLUSION
Having reviewed the Chief Magistrate Judge’s Report and Recommendation de novo,

Plaintiff’s timely objections, and the entire record of the case, the Court finds only one of
Plaintiff’s objections to be meritorious. That objection—that abstention under the Younger
doctrine is inapplicable to this action—does not warrant, however, a rejection of the Report and
Recommendation in light of the Report and Recommendation’s alternative basis for
recommending dismissal. Plaintiff’s remaining objections are without merit. Therefore, the
Court hereby ADOPTS the Report and Recommendation as to its alternative conclusion that the
Plaintiff fails to state a claim upon which relief may be granted. The claims raised in the pro se
Complaint are accordingly DISMISSED.
IT IS SO ORDERED on this 16th day of October, 2017.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
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