Anders v. Shelby County, et al.
ORDER overruling Plaintiff's objections; adopting the Magistrate Judges First and Second Reports; denying Plaintiffs motion to amend complaint; and denying Plaintiff's motion for hearing is as moot. The case is DISMISSED with prejudice.. Signed by Judge Samuel H. Mays, Jr on 9/12/2017. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
JONAH PAUL ANDERS,
SHELBY COUNTY, CARY C. WOODS,
MAYOR MARK H. LUTTRELL, JR.,
SHELBY COUNTY BOARD OF
COMMISSIONERS, SHAYLA N.
PURIFOY, MEMPHIS AREA LEGAL
SERVICES, ANUMEHA TANYA,
EDWIN LENOW, KEVIN REED,
TERITA HEWLETT, THERESA
CHILDRESS, AND MAYLA C.
Before the Court are objections (ECF Nos. 33-34) to the
Magistrate Judge’s April 6, 2017 Order and Recommendation (ECF
Nos. 32), an objection (ECF No. 61) to the Magistrate Judge’s
July 31, 2017 Report and Recommendation (ECF No. 60), a motion
to amend complaint (ECF No. 35), and a motion for hearing (ECF
No. 24) filed by Plaintiff Jonah Paul Anders.
For the reasons
stated below, the Court OVERRULES Plaintiff’s objections,
ADOPTS the Magistrate Judge’s Reports, and DENIES Plaintiff’s
motion to amend complaint and his motion for hearing.
On May 2, 2016, Plaintiff filed a complaint against
Defendant Mayla Anders alleging that she had presented false
documents to United States agencies to obtain citizenship.
Anders v. Anders, 16-cv-2299-SHL-tmp (W.D. Tenn.).
States Magistrate Judge Tu M. Pham recommended that the
complaint be dismissed for failure to state a claim for which
relief could be granted and for lack of subject matter
(16-2299, ECF No. 5.)
United States District
Judge Sheryl H. Lipman adopted the report and recommendation in
its entirety and dismissed Plaintiff’s complaint without
(16-2299, ECF No. 7.)
On May 9, 2016, Plaintiff filed a complaint against Shayla
Purifoy, Mayla Anders, Tennessee Circuit Court Judge Gina
Higgins, Anumeha Tayna, and Memphis Area Legal Services
(“MALS”) alleging violations of Plaintiff’s due process rights
in two state court cases in conjunction with Plaintiff’s
divorce from Mayla Anders.
JDT-tmp (W.D. Tenn.).
Anders v. Purifoy, et al, 16-2321-
Plaintiff claimed that Shayla Purifoy,
an attorney with MALS, had lied to and misled the state court
judge in the cases at issue.
Plaintiff alleged that another
MALS attorney, Anumeha Tanya, had “assisted in getting [an]
order changed without notice ex parte.”
(16-2321, ECF No. 4 at
Plaintiff alleged that Mayla Anders had presented false
documents and statements during the state court proceedings.
Plaintiff alleged that Judge Higgins “abused her authority” by
refusing to “hear his appeal,” by issuing a divorce rather than
an annulment, by awarding excessive child support and alimony,
and by failing to issue a final judgment so that he could
appeal her rulings.
(Id. at 6.)
Magistrate Judge Pham entered
a Report and Recommendation recommending that the complaint be
dismissed for failure to state a claim for which relief may be
granted, lack of subject matter jurisdiction and, as to Judge
Higgins, judicial immunity.
(16-2321, ECF No. 6.)
States District Judge James D. Todd adopted the report and
dismissed the case.
(16-2321, ECF No. 8.)
On August 19, 2016, Plaintiff filed a pro se Complaint for
Fourteenth Amendment violations under 42 U.S.C. § 1983 and
negligence in the Circuit Court of Tennessee for the Thirtieth
Judicial District at Memphis.
(ECF No. 1-3, 10-12.) 1
August 29, 2016, Plaintiff filed a pro se Amended Complaint in
the Circuit Court.
(ECF No. 1-3 at 13-32.)
Amended Complaint makes claims for Fourteenth Amendment
violations under 42 U.S.C. § 1983, negligence, and intentional
infliction of emotional distress.
The Defendants are
Shelby County Government, Shelby County Mayor Mark Luttrell,
Unless otherwise noted, all in-cite page numbers to this case refer
to the PageID number.
Jr., Divorce Referee Cary C. Woods, Judicial Commissioner Kevin
Reed, Shelby County Board of Commissioners, MALS, Shayla
Purifoy, Anumeha Tanya, Edwin Lenow, Terita Hewlett, Theresa
Childress, and Mayla Anders.
On September 27, 2016,
Defendants Shelby County, Mayor Mark Luttrell, Jr., Divorce
Referee Cary Woods, Judicial Commissioner Kevin Reed, and the
Shelby County Board of Commissioners (collectively the “Shelby
County Defendants”) filed a Notice of Removal to this Court.
(ECF No. 1.)
On September 30, 2016, Plaintiff filed a “Notice of
Potential Motion Filed in State Court,” asserting that
Defendant Edwin Lenow’s motion to dismiss, filed in state
court, must be refiled in this Court.
(ECF No. 9.)
On October 3, 2016, the Shelby County Defendants and
Defendant Terita Hewlett filed motions to dismiss the Amended
(ECF Nos. 10 and 11.)
On October 4, 2016,
Defendants MALS, Shayla Purifoy, and Amumeha Tanya filed a
motion to dismiss the Amended Complaint.
(ECF No. 13)
October 11, 2016, Defendant Theresa Childress filed a motion to
dismiss the Amended Complaint.
(ECF No. 16.)
On February 2,
2017, Defendant Mayla Anders filed a motion to dismiss the
(ECF No. 31.)
Plaintiff filed no responses to any of the motions to
Plaintiff did file a November 10, 2016 motion for
hearing (ECF No. 24), and an April 27, 2017 motion for leave of
court to amend complaint (ECF No. 35).
Plaintiff also filed a “Motion to Squash and Set Aside
Motion to Dismiss” on October 21, 2016, seeking to set aside
Defendants’ motions to dismiss and leave to amend the
(ECF No. 18.)
Plaintiff subsequently filed a
second amended complaint without obtaining leave of court or
consent of the opposing parties.
(ECF No. 19.)
The Shelby County Defendants and Defendants MALS, Purifoy,
Hewlett, and Tanya have moved to strike Plaintiff’s Second
(ECF Nos. 20, 21, 23.)
On April 6, 2017, United States Magistrate Judge Charmiane
G. Claxton entered an Order Denying Plaintiff’s Motion to
Squash and Set Aside Motion to Dismiss, Order Granting Shelby
County Defendants’ Motion to Strike Second Amended Complaint,
Order Granting Terita Hewlett’s Motion to Strike Second Amended
Complaint, Order Granting Memphis Area Legal Services, Shayla
Purifoy, and Anumeha Tanya’s Motion to Strike Second Amended
Complaint, and Report and Recommendation on Defendant Edwin
Lenow’s Motion to Dismiss (the “First Report”).
(ECF No. 32.)
The Magistrate Judge recommends that Defendant Edwin Lenow’s
motion to dismiss be granted.
(Id. at 465.)
until April 20, 2017, to object.
(See Docket Entry, ECF No.
Plaintiff filed his objections on April 27, 2017.
Nos. 33-34.) 2
On May 9, 2017, Plaintiff filed twelve motions for entry
of default judgment against Defendants.
(ECF Nos. 42-56.)
Clerk of Court denied entry of default against each Defendant.
(ECF Nos. 43, 53-57, 59.)
On July 31, 2017, Magistrate Judge Claxton filed a Report
and Recommendation (the “Second Report”) addressing the
following motions to dismiss: Motion to Dismiss of Defendants
Cary C. Woods, Mark H. Luttrell, Jr., Shelby County, Shelby
County Board of Commissioners, and Kevin Reed
Defendant Terita Hewlett’s Motion to Dismiss
(ECF No. 10);
(ECF No. 11);
Motion to Dismiss of Defendants Memphis Area Legal Services,
Shayla Purifoy, and Anumeha Tanya (ECF No. 13); Defendant
Theresa Childress’s Motion to Dismiss (ECF No. 16); and
Defendant Mayla C. Anders’ Motion to Dismiss (ECF No. 31).
(ECF No. 60.)
The Report recommends granting each of the
motions to dismiss.
Plaintiff styles his objections as a motion to set aside (ECF No.
33) and a motion to reconsider (ECF No. 34). The Court construes those
motions as objections to the Magistrate Judge’s First Report.
Plaintiff filed an objection to the Second Report on
August 14, 2017.
(ECF No. 61.) Defendants filed responses in
support of the Magistrate Judge’s Report on August 21, 2017.
(ECF Nos. 62-63.)
Motion to Amend Complaint (ECF No. 35)
Plaintiff moves to amend his complaint.
(ECF No. 35.)
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,
leave to amend shall be freely granted when justice so
Leave should be granted under Rule 15(a) unless
there is “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility of
Foman v. Davis, 371 U.S. 178, 182 (1962).
To determine whether leave to amend is appropriate, the
Court “must have before it the substance of the proposed
Roskam Baking Co., Inc. v. Lanham Mach. Co., Inc.,
288 F.3d 895, 906 (6th Cir. 2002).
“Thus, a court may properly
deny a motion to amend when the moving party fails to provide
the court the substance of the proposed amendment.”
Abushmaies, No. 1:16-CV-1412, 2017 WL 3284879, at *3 (W.D.
Mich. Aug. 2, 2017); accord Lancaster v. United States, No. CV
6: 16-175-DCR, 2017 WL 937950, at *3 (E.D. Ky. Mar. 9, 2017);
Gilliam v. Crowe, No. 3:16-CV-147, 2016 WL 3434026, at *3 (S.D.
Ohio June 22, 2016); see also Kostyu v. Ford Motor Co., 798
F.2d 1414 (6th Cir. 1986)(finding district court did not abuse
its discretion in not permitting the plaintiff to amend his
complaint because the plaintiff did not submit a proposed
amended complaint and failed to disclose the amendments he
intended to make).
The Court cannot grant leave to amend because Plaintiff
has not provided a proposed amended complaint or otherwise
described new allegations he would include in a proposed
Plaintiff’s motion for leave to amend is DENIED.
Objections to Magistrate Judge’s Findings and Conclusions
Standard of Review
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
See United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v.
United States, 490 U.S. 858, 869-70 (1989)); see also Baker v.
Peterson, 67 F. App'x 308, 310 (6th Cir. 2003).
dispositive matters, including motions to involuntarily dismiss
an action, “[t]he district judge must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.”
Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §
On de novo review, after reviewing the evidence,
the court is free to accept, reject, or modify the magistrate
judge's proposed findings or recommendations.
28 U.S.C. §
For nondispositive pretrial matters, the district
judge may reconsider the magistrate judge's disposition if it
is “‘clearly erroneous or contrary to law.’”
Curtis, 237 F.3d
at 603 (quoting 28 U.S.C. § 636(b)(1)(A)).
Objection (ECF No. 33) to Magistrate Judge’s First
Report (ECF No. 32)
On April 6, 2017, Magistrate Judge Claxton filed her First
(ECF No. 32.)
Plaintiff had until April 20, 2017 to
(See Docket Entry, ECF No. 32.)
untimely objections on April 27, 2017.
(ECF Nos. 33-34.)
The district court is not required to review -- under a de
novo or any other standard -- those aspects of the magistrate
judge’s report and recommendation to which no objection or no
timely objection is made.
Thomas v. Arn, 474 U.S. 140, 150
(1985);see Jones v. Smith, 46 F.3d 1131 (6th Cir. 1995)
(affirming district court’s adoption of magistrate judge’s
report and recommendation where parties submitted objection a
day after the prescribed period).
Although the district court
is not required to review untimely objections, it may exercise
its discretion to do so.
See Estate of Smithers ex rel. Norris
v. City of Flint, 602 F.3d 758, 761 n.2 (6th Cir. 2010).
Court exercises that discretion to consider Plaintiff’s
Plaintiff objects to the Magistrate Judge’s striking
Plaintiff’s second amended complaint because Plaintiff should
have been allowed to amend as a matter of course.
(ECF No. 33
Plaintiff’s August 29, 2016 Amended Complaint (ECF
No. 1-3 at 13-32), filed in state court, exhausted his right to
amend “once as a matter of course.”
Fed. R. Civ. P.
15(a)(1)(“A party may amend its pleading once as a matter of
course. . . .” (emphasis added)); see Freeman v. Bee Machine
Co., 319 U.S. 448, 454 (1943)(noting “Congress has directed the
District Court after a case has been removed to proceed therein
as if the suit had been originally commenced in said district
court.”)(internal quotations omitted).
amendments required the opposing parties’ written consent or
the court’s leave.
Fed. R. Civ. P. 15(a)(2).
his second amended complaint without consent of the opposing
parties or leave of court.
The Magistrate Judge did not
clearly err in striking Plaintiff’s second amended complaint.
Plaintiff’s objection to the Magistrate Judge’s striking his
second amended complaint is OVERRULED. 3
Plaintiff also objects to the Magistrate Judge’s denial of
Plaintiff’s motion to quash and set aside Defendants’ motions
(ECF No. 34.)
Plaintiff asks the Court to deny
Defendants’ motions to dismiss based on the filing of
Plaintiff’s second amended complaint.
(ECF No. 18 at 264.)
The Magistrate Judge denied Plaintiff’s motion after striking
Plaintiff’s second amended complaint.
The Magistrate Judge did
not err in denying Plaintiff’s motion to quash and set aside
Defendants’ motions to dismiss.
Plaintiff’s objection to the
Magistrate Judge’s denial of his motion to quash and set aside
Defendants’ motions to dismiss is OVERRULED.
Plaintiff has not objected to the Magistrate Judge’s
recommendation that the Court grant Defendant Edwin Lenow’s
motion to dismiss.
That motion is GRANTED.
The First Report (ECF No. 32) is AFFIRMED and ADOPTED.
Plaintiff argues that Defendants’ motions to dismiss should be
denied as moot following entry of Plaintiff’s second amended complaint.
(ECF No. 33 at 475-76.) Because Plaintiff’s objection to the striking of
his second amended complaint is overruled, Plaintiff’s request to deny
Defendants’ motions as moot is DENIED as MOOT.
Objection (ECF No. 61) to Magistrate Judge’s Second
Report (ECF No. 60)
On July 31, 2017, the Magistrate Judge filed her Second
(ECF No. 60.)
the motions to dismiss.
That Report recommends granting each of
The Magistrate Judge recommends that the motions to
dismiss filed by Defendants Memphis Area Legal Services, Shayla
Purifoy, Anumeha Tanya, and Mayla C. Anders be granted on res
(Id. at 576-77.)
The Magistrate Judge
recommends that the motions to dismiss filed by Defendants
Terita Hewlett and Theresa Childress be granted on Plaintiff’s
§ 1983 claim because Plaintiff has failed to plead that Hewlett
and Childress acted under color of state law and on Plaintiff’s
negligence claim because that claim is time-barred.
The Magistrate Judge recommends that the motion to
dismiss filed by Defendants Woods, Reed, Shelby County Mayor
Luttrell, Shelby County Government, and the Shelby County Board
of Commissioners be granted because Plaintiff has failed to
specify an official policy or custom or a link between a policy
or custom and his alleged constitutional injury and because
Defendants Woods and Reed are protected by judicial immunity.
(Id. at 581.)
The Magistrate Judge also recommends that
Plaintiff’s negligence and intentional infliction of emotional
distress claims be dismissed under Federal Rule of Civil
Procedure 8(a)(2) for failure to provide “a short and plain
statement of the claim showing that the pleader is entitled to
(Id. at 581.)
Plaintiff objects that the Magistrate Judge should have
applied a more lenient pleading standard to Plaintiff’s Amended
(ECF No. 61 at 585 (citing Conley v. Gibson, 355
U.S. 41 (1957) abrogated by Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007)).) 4
Plaintiff does not object to the
Magistrate Judge’s res judicata, statute of limitations, or
judicial immunity determinations.
Those determinations are
AFFIRMED and ADOPTED.
Under Federal Rule of Civil Procedure 72(b), 28 U.S.C.
§ 636(b)(1), and Local Rule 72.1(g)(2), the Court conducts a de
novo review of those portions of a magistrate judge's report to
which a party has filed “specific written objections.”
general or overly broad objection, or one that merely restates
Plaintiff also seeks a default judgment. (ECF No. 61 at 586-90.)
default judgment may be appropriate when a party has failed to plead or
defend. Fed. R. Civ. P. 55. Federal Rule 55 establishes a two-step
process. Id. First, an entry of default must be made under Rule 55(a).
Second, a party must move for a default judgment under Rule 55(b). The
clerk may enter a default judgment pursuant to Rule 55(b)(1) if the
plaintiff presents the clerk with an affidavit showing the amount due for
claims that have a sum certain. In all other cases, the party seeking
default judgment must apply to the court. Id.
A court may properly deny a motion for default judgment if an entry
of default has not been obtained. Reed-bey v. Pramstaller, 607 Fed.Appx.
445, 449 (6th Cir. 2015). In this case, Plaintiff seeks a default
judgment, but has failed to obtain an entry of default. Plaintiff's
request for default judgment is DENIED.
the arguments previously presented, does not sufficiently
identify errors on the part of the magistrate judge.
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); Spencer v.
Bouchard, 449 F.3d 721, 725 (6th Cir. 2006) abrogated on other
grounds by Jones v. Bock, 549 U.S. 199 (2007).
that does nothing more than disagree with a magistrate judge's
determination, “without explaining the source of the error,” is
not a valid objection.
Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
conclusory objections amount to a complete failure to object
because they are not sufficient to identify the portions of the
record that are in contention.
Mira v. Marshall, 806 F.2d 636,
637 (6th Cir. 1986) (per curiam).
Plaintiff’s objection cites no portion of the Second
Report in which the Magistrate Judge failed to apply the
The Report correctly states that
“[p]leadings and documents filed by pro se litigants are to be
‘liberally construed,’ and a ‘pro se complaint, however
inartfully pleaded, must be held to a less stringent standard
than formal pleadings drafted by lawyers.’”
(ECF No. 60 at
Plaintiff fails to specify any recommendation in which
the Magistrate Judge should have applied a more lenient
standard or what that standard should have been.
The Court has
no obligation to conduct a de novo review of the Magistrate
Notwithstanding the insufficiency of Plaintiff’s
objection, the Court has considered the entire record de novo
and finds that the Magistrate Judge applied the correct legal
standard and that her conclusions should be affirmed.
Plaintiff’s objection is OVERRULED, and the Magistrate
Judge’s Second Report is ADOPTED.
Plaintiff’s Motion for Hearing (ECF No. 24)
Because the Magistrate Judge’s Reports have been adopted,
Plaintiff’s Motion for Hearing (ECF No. 24) is DENIED as MOOT.
For the foregoing reasons, Plaintiff’s objections are
OVERRULED; the Magistrate Judge’s First and Second Reports are
ADOPTED; Plaintiff’s motion to amend complaint is DENIED; his
motion for hearing is DENIED as MOOT.
The case is DISMISSED
So ordered this 12th day of September, 2017.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE
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