Moses v. Sheriff William Oldham et al

Filing 10

ORDER adopting Report and Recommendations re DE 7 and granting Motion to Amend/Correct re DE 9 , signed by Judge John T. Fowlkes, Jr. on 12/08/2017. (Fowlkes, John)

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

)
)
Plaintiff,
)
v.
)
Case No. 2:17-cv-02692-JTF-dkv
)
SHERIFF WILLIAM OLDHAM, in his
)
personal and official capacity;
)
SHELBY CTY. SHERIFF OFFICE;
)
SGT. CHAD CUNNINGHAM, in his
)
personal and official capacity; STATE
)
ATTORNEY GENERAL HERBERT
)
SLATERY, in his personal and official
)
capacity; DISTRICT ATTTORNEY
)
GENERAL AMY WEIRICH, in her
)
personal and official capacity; JOHN
)
DOE; JOHN DOE; and JANE DOE,
)
)
Defendants.
)
_____________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
AND
ORDERING PARTIAL SUA SPONTE DISMISSAL
______________________________________________________________________________
Before the Court is Plaintiff Pamela Moses’ Objections to the Report and
Recommendation; Plaintiff filed her Objections on October 26, 2017.

(ECF No. 8.)

On

September 18, 2017, Plaintiff filed her pro se Complaint titled Complaint Damages for
Malicious Prosecution, Abuse of Process and Declaratory Relief.

(ECF No. 1.)

In her

Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 and Tennessee law resulting from her
warrantless arrest in September 2016 and subsequent prosecution.

(ECF Nos. 1 & 9.)

Accompanying Plaintiff’s Complaint is her pro se motion seeking leave to proceed in forma
pauperis.

(ECF No. 2.)

In accordance with Administrative Order 2013-05, the case was

assigned to the Chief Magistrate Judge for management of all pretrial matters, including
screening of the Complaint to determine whether or not summons shall be issued by the Clerk
pursuant to 28 U.S.C. § 1915(e)(2)(B) and Local Rule 4.1(b)(2). (ECF No. 7, 1–2.) On October
10, 2017, the Chief Magistrate Judge issued a Report and Recommendation granting Plaintiff’s
Motion to Proceed In forma Pauperis and otherwise recommending that (1) Plaintiff’s claims
against the SCSO, Sheriff Oldham, and Sgt. Cunningham in his official capacity be dismissed
sua sponte for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(b)(6), and (2) Plaintiff should be allowed to proceed on
her Section 1983 and state-law claims against Sgt. Cunningham in his personal capacity and
service on the claims should be issued accordingly. (ECF No. 7.)
On October 26, 2017, Plaintiff filed her Objections to the Report and Recommendation.
(ECF No. 8.) On the same date, Plaintiff also filed her Amended Complaint, entered as a Motion
for Leave to Amend Complaint. (See ECF No. 9.) Upon de novo review of Plaintiff’s Amended
Complaint, the Court finds as follows: (1) Plaintiff’s ADA/ADDA claims, Title VII claims, equal
protection claims, and due process claims under the Fifth Amendment, should be dismissed for
failure to state a claim; (2) as to Plaintiff’s claim against the Shelby County Sheriff’s Office
(“SCSO”), construed instead against Shelby County, Plaintiff should be allowed to proceed on
all of her Section 1983 claims and on her state law harassment claim; (3) Plaintiff’s claims
against Sheriff Oldham and Sgt. Cunningham should be dismissed to the extent they are official
capacity suits and allowed to proceed to the degree the claims allege the personal liability of each
Defendant; and (4) Plaintiff’s claims against Attorney General Herbert Slatery and District
Attorney Amy Weirich should be dismissed for failure to state a claim.

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I.

FINDINGS OF FACT

In her Report and Recommendation, the Chief Magistrate Judge provides, and this Court
adopts and incorporates, proposed findings of fact in this case. (ECF No. 7, 2–6.) The Court
additionally incorporates into its analysis changes made in Plaintiff’s pleadings through her
Motion for Leave to Amend Complaint, which is also construed as her Amended Complaint.
II.

LEGAL STANDARD

Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts
by permitting the assignment of certain district court duties to magistrates.” United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear
and determine any pretrial matter pending before the Court, except various dispositive motions.
28 U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “[T]he magistrate judge must enter a
recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R. Civ. P.
72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party who
disagrees with a magistrate’s proposed findings and recommendation may file written objections
to the report and recommendation. Fed. R. Civ. P. 72(b)(2).
The standard of review that is applied by the district court depends on the nature of the
matter considered by the magistrate judge. See Baker v. Peterson, 67 F. App’x 308, 310 (6th
Cir. 2003) (citations omitted) (“A district court normally applies a ‘clearly erroneous or contrary
to law’ standard of review for nondispositive preliminary measures. A district court must review
dispositive motions under the de novo standard.”). Upon review of the evidence, the district
court may accept, reject, or modify the proposed findings or recommendations of the Magistrate
Judge. Brown v. Board of Educ., 47 F. Supp. 3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C.
§ 636(b)(1).

The court “may also receive further evidence or recommit the matter to the

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Magistrate Judge with instructions.” Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S.
Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015). A district judge should adopt the
findings and rulings of the magistrate judge to which no specific objection is filed. Brown, 47 F.
Supp. 3d at 674.

Moreover, “Overly general objections do not satisfy the objection

requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Objections “must be
clear enough to enable the district court to discern those issues that are dispositive and
contentious.” Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Thus, objections disputing
the correctness of the magistrate’s recommendation but failing to specify the findings believed to
be in error are too general. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
A. 28 U.S.C. § 1915(e)(2) Screening
Pursuant to Local Rule 4.1, service will not issue in a pro se case where the pro se
plaintiff has been granted leave to proceed in forma pauperis until the complaint has been
screened under 28 U.S.C. § 1915(e)(2)(B). LR 4.1(b). Specifically, courts are required to screen
in forma pauperis complaints and dismiss any complaint, or portion thereof, if the allegation of
poverty is untrue or if the action (i) is frivolous or malicious, (ii) fails to state a claim on which
relief may be granted, or (iii) seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2).
B. Standard of Review for Failure to State a Claim
In assessing whether Plaintiff’s Complaint states a claim upon which relief may be
granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555–57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). “Accepting
all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations

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in [the] complaint to determine if they plausibly suggest an entitlement to relief.’” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (alteration in original) (quoting Iqbal, 556 U.S. at
681). Pleadings that are no more than conclusions are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 679. “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.”

Id.; see also Twombly, 550 U.S. at 555 n.3.

Additionally, although not free from basic pleading requirements, pro se pleadings are “held ‘to
less stringent standards than formal pleadings drafted by lawyers,’ and should therefore be
liberally construed.” Curtin, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th
Cir. 2004)); see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (affirming that
a court cannot create a claim which a plaintiff has not spelled out in their pleading).
III.

ANALYSIS

Objections
As a preliminary matter, the Court finds Plaintiff’s Objections to the Report and
Recommendation are clearly general in nature, ambiguous and lack sufficient specificity for this
Court to render an analysis. As such, the Court disregards these general objections. See Miller,
50 F.3d 373, 380 (6th Cir. 1995). In condemning overly-general objections, the Sixth Circuit, in
Spencer v. Bouchard, affirmed that objections disputing the correctness of the magistrate’s
recommendation but failing to specify the findings believed to be in error are too general.
Spencer, 449 F.3d at 725 (6th Cir. 2006) (quoting Currie, 50 F.3d at 380). Here, Plaintiff
submits that the Chief Magistrate Judge generally erred in recommending that this Court dismiss
any of Plaintiff’s claims. (ECF No. 8, 1–2.) Thus, Plaintiff’s failure to specify the findings she
believes to be in error results in an overly-general objection that does not satisfy the objection
requirement. Spencer, 449 F.3d at 725.

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On October 26, 2017, Plaintiff filed an Amended Complaint, entered as a Motion for
Leave to Amend Complaint. (ECF No. 9.) This Court liberally construes the filing as both
Plaintiff’s Motion for Leave to Amend Complaint and her Amended Complaint.
Under Fed. R. Civ. P. 15(a), a district court may allow a plaintiff to amend her complaint
even when the complaint is subject to dismissal on initial screening under the Prison Litigation
Reform Act (“PLRA”). Logue v. United States Marshals, No. 1:13-cv-348, 2013 U.S. Dist.
LEXIS 108242, at *1–2 (S.D. Ohio Aug. 1, 2013); see also LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013). Rule 15(a) states that a party may amend its pleading once as a matter of
course within 21 days after serving it and in all other cases, the court should freely give leave
when justice so requires. See Fed. R. Civ. P. 15(a); see also LaFountain, 716 F.3d at 951. For
example, a motion to amend a complaint should be denied if the amendment would be futile,
would result in undue delay or prejudice to the opposing party, is brought in bad faith or for
dilatory purposes, etcetera. Foman v. Davis, 371 U.S. 178, 182 (1962). Here, the granting of
Plaintiff’s Motion to Amend Complaint would not be futile because the substance of her
Amended Complaint corrects insufficiencies found in her original Complaint. Accordingly,
Plaintiff’s Motion for Leave to Amend Complaint is GRANTED; this Court will consider
Plaintiff’s Amended Complaint for purposes of its screening pursuant to 28 U.S.C. §
1915(c)(2)(B).
To screen Plaintiff’s Amended Complaint, this Court must additionally determine what
claims Plaintiff attempts to bring and against whom. Plaintiff lists the following as Defendants
in the present matter: (i) Shelby County Sheriff’s Office; (ii) Sheriff William Oldham, in his
personal and official capacity; (iii) Sergeant Chad Cunningham, in his personal and official
capacity; (iv) Officers John Doe, John Doe, and Jane Doe, presumably in their personal and

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official capacity; (v) Tennessee Attorney General Herbert Slatery, presumably in his personal
and official capacity; and (v) District Attorney Amy Weirich, presumably in her personal and
official capacity. (ECF No. 9, 1.) In her Amended Complaint, Plaintiff asserts claims pursuant
to the ADA/ADAA, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and Tennessee
state law. (ECF No. 9, 1–2.) Upon review of the Amended Complaint, it is not certain which
claims Plaintiff purports to assert under Section 1983 and which claims she purports to assert
under Tennessee law.

(See ECF No. 7, 10.)

Accordingly, the Court liberally construes

Plaintiff’s allegations to assert Section 1983 claims for malicious prosecution, false
imprisonment, abuse of process, and conspiracy of abuse of process as well as state-law claims
for the same, plus harassment and intentional infliction of emotional distress. (See id. at 10–14.)
ADA/ADDA Claims
The Court finds that Plaintiff’s ADA/ADDA claims should be dismissed because
Plaintiff fails to allege that she has a disability or an employment relationship with any
Defendant. The Americans with Disabilities Act (“ADA”) prohibits employment discrimination
by an employer against an individual with a disability, 42 U.S.C. § 12112(a), and the
Amendment Act of 2008 (“ADAA”) is intended to broaden the interpretation of disability under
the ADA. Robbins v. Saturn Corp., 532 F. App’x 623, 628 (6th Cir. 2013). Here, Plaintiff’s
Amended Complaint contains no factual allegations that Plaintiff had an actual or potential
employment relation with any Defendant here, let alone a disability. (See ECF No. 9.) Thus,
this Court finds that Plaintiff’s ADA/ADDA claims should be dismissed for failure to state a
claim upon which relief may be granted.

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Title VII Claims
Additionally, the Court finds that Plaintiff’s claims under Title VII of the Civil Rights
Act of 1964 should be dismissed for Plaintiff’s failure to allege that she has an employment
relationship with any Defendant.1 Title VII is a federal statute that prohibits employers from
discriminating against applicants or employees on the basis of sex, race, color, national origin,
and religion. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 n.4 (1973); see also 42
U.S.C.A. § 2000e, et seq. Plaintiff’s Amended Complaint, however, does not allege that she had
an actual or potential employment relationship with any Defendant to this matter. (See ECF No.
9.) Thus, this Court finds that Plaintiff’s Title VII assertions should be dismissed for failure to
state a claim upon which relief may be granted.
Equal Protection Claims
This Court also finds that Plaintiff’s claims under the Equal Protection Clause of the Fifth
and Fourteenth Amendments should be dismissed.

Plaintiff’s Fifth Amendment, equal

protection claims should be dismissed because no Defendant here acted on behalf of the federal
government. The Fifth Amendment limits the power of the federal government. Malloy v.
Hogan, 378 U.S. 1, 26 (1964). In the present matter, Plaintiff’s Amended Complaint fails to
allege that any Defendant here acted on behalf of the federal government. (See ECF No. 9.)
Thus, her Fifth Amendment equal protection claims should be dismissed for failure to state a
claim upon which relief may be granted.
Additionally, this Court finds that Plaintiff’s equal protection claims under the Fourteenth
Amendment should be dismissed because her Amended Complaint does not contain specific,
factual allegations that Defendants discriminated against Plaintiff because of her membership in
1

The Court notes that a review of Plaintiff’s claims, as correctly noted by the Chief Magistrate
Judge, reveals that what Plaintiff cites as Title VI claims are properly construed as Title VII claims.
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a protected class. (ECF No. 7, 12.) A complaint must be supported by factual allegations, Iqbal,
556 U.S. at 679, and “To state a claim under the Equal Protection Clause, a § 1983 plaintiff must
allege that a state actor intentionally discriminated against the plaintiff because of membership in
a protected class.” Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990) (quoting
Johnson v. Morel, 876 F.2d 477, 479 (5th Cir. 1989) (en banc)). Here, Plaintiff’s Amended
Complaint fails to provide specific, factual allegations that Plaintiff was intentionally
discriminated against as a result of her race or membership in a protected class. (See ECF No.
9.) Thus, Plaintiff’s equal protection claims brought pursuant to the Fourteenth Amendment
should be dismissed for failure to state a claim upon which relief may be granted.
Due Process Claims
Plaintiff also brings due process claims pursuant to the Fifth and Fourteenth
Amendments. This Court finds that Plaintiff’s due process claims under the Fifth Amendment
should be dismissed for Plaintiff’s failure to allege that any Defendant in the present matter acted
on behalf of the federal government. As previously noted, the Fifth Amendment limits the
power of the federal government. Hogan, 378 U.S. at 26. Here, Plaintiff does not allege that any
Defendant here acted on behalf of the federal government. (See ECF No. 9.) Thus, Plaintiff’s
Fifth Amendment due process claims should be dismissed for failure to state a claim upon which
relief may be granted.
Furthermore, the Court finds that Plaintiff’s due process claims for deprivation of
property, brought pursuant to the Fourteenth Amendment, should be dismissed because
Plaintiff’s Complaint alleges only “the temporary taking of her wallet, bag, and phone when she
was booked into jail.” (ECF No. 7, 11–12.) “The prevailing rule under the Fourth Amendment
that searches and seizures may not be made without a warrant is subject to various exceptions[,]”

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one exception permits searches incident to custodial arrests. United States v. Edwards, 415 U.S.
800, 802 (1974). Here, the temporary seizure of Plaintiff’s personal property took place incident
to her custodial arrest, as a matter of booking practice, and thus, was not in violation of
Plaintiff’s constitutional rights. (See ECF No. 7, 11–12.) Accordingly, this Court finds that
Plaintiff’s deprivation of property allegation under the Fourteenth Amendment should be
dismissed for failure to state a claim upon which relief may be granted.
In addition, this Court finds that Plaintiff’s Fourteenth Amendment, deprivation of liberty
allegations are properly construed as Fourth Amendment claims.

“Where a particular

Amendment ‘provides an explicit textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more generalized notion of substantive
due process,’ must be the guide for analyzing [such] claims.” Albright v. Oliver, 510 U.S. 266,
273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Here, Plaintiff presumably
brought her deprivation of liberty claims under the Fourteenth Amendment as a result of her
arrest and subsequent prosecution. The Supreme Court, however, holds that pretrial deprivations
of liberty and criminal prosecutions are addressed through the Fourth Amendment, rather than
the Fourteenth. Albright, 510 U.S. at 273–74. Indeed, in her Amended Complaint, unlike in her
original Complaint, Plaintiff expressly asserts Fourth Amendment claims. (Compare, ECF No.
1, 2 (not expressly asserting Fourth Amendment claim), with ECF No. 9, 2 (expressly asserting
Fourth Amendment claim).) Thus, in accordance with Albright, Plaintiff’s false arrest and
malicious prosecution allegations are construed as Fourth Amendment claims and considered as
such below. (ECF No. 7, 11–13.)

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Shelby County Sheriff’s Office
Plaintiff brings claims under Section 1983 and Tennessee state law against the SCSO.
Plaintiff’s Section 1983 claims against the SCSO should be dismissed for failure to state a claim
because Plaintiff cannot sue a police department under Section 1983. “Tennessee federal courts
have routinely held that police departments cannot be sued.” Moore v. Henderson Cty. Sheriff’s
Dep’t, No. 13-1243, 2014 U.S. Dist. LEXIS 59946, at *39 (W.D. Tenn. Apr. 30, 2014). For
Section 1983 purposes, a Tennessee sheriff’s department is a police department. McKinney v.
McNairy Cty., No. 1:12-cv-01101-JDB-egb, 2012 U.S. Dist. LEXIS 146305, at *12–13 (W.D.
Tenn. Oct. 11, 2012). Thus, Plaintiff cannot assert a Section 1983 claim against the SCSO.
Instead, the Court liberally construes Plaintiff’s claims against Shelby County, as the real party
in interest. Matthews v. Jones, 35 F. 3d 1046, 1049 (6th Cir. 1994).
In Monell v. Dep’t of Soc. Servs. of New York, the Supreme Court determined that a
municipality is a “person” within the meaning of Section 1983 who can be sued directly if it
causes a constitutional tort through “a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” 436 U.S. 658, 690 (1978). More
specifically, a plaintiff must demonstrate that the municipal policy has a direct causal link to the
alleged constitutional deprivation by (1) identifying the municipal policy or custom, (2)
connecting the policy to the municipality, and (3) showing that his injury was caused by the
execution of that policy. Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003).
In her Amended Complaint, Plaintiff asserts that she was injured by the SCSO’s
discriminative municipal policy “that all deputies to [sic] say that they have legislative authority
to harass [Plaintiff].”

(ECF No. 9, 3:8.)

Plaintiff further alleges that this policy was

implemented and/or promoted, at least in part, through the orders of supervisory authorities

11

within the SCSO—Sheriff Oldham and Debra Fessenden—who were contacted by and made
communications with Sgt. Cunningham during his arrest of Plaintiff. (See id. at 3:6–8.) Plaintiff
submits that this policy resulted in multiple actors participating in conduct that she claims
resulted in her arrest, humiliation, and injury otherwise. (Id. at 4–6.) If taken as true and
considered in the light most favorable to Plaintiff, these allegations serve to identify a municipal
policy or officially adopted decision, connect that policy or decision to the municipality of
Shelby County, and allege an unconstitutional arrest or harm as a result.

Thus, liberally

construing the claim against Shelby County, this Court finds that the factual allegations in
Plaintiff’s Amended Complaint plausibly suggest entitlement to relief on her Section 1983
claims. Thus, this Court finds that Plaintiff is allowed to proceed on her Section 1983 claims
against Shelby County.
Regarding Plaintiff’s state-law claims against the SCSO, which are construed against
Shelby County, the Court finds dismissal appropriate as to all claims, excluding her harassment
claim.

The Tennessee Governmental Tort Liability Act (“GTLA”) provides that “all

governmental entities shall be immune from suit for any injury which may result from the
activities of such governmental entities wherein such governmental entities are engaged in the
exercise and discharge of any of their functions, governmental or proprietary.” Tenn. Code Ann.
§ 29-20-201(a). “Governmental entity” is defined as “any political subdivision of the state of
Tennessee.” Id. § 29-20-102(3)(A). In effect, the GTLA removes immunity for an “injury
proximately caused by a negligent act or omission of any employee within the scope of his
employment.” Id. § 29-20-205. There is an exception to this removal of immunity, however,
whereby immunity is retained where injuries arise out of “false imprisonment pursuant to a
mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process,

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libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of
right of privacy, or civil rights.” Id. § 29-20-205(2). The civil-rights exception is construed to
include claims arising under Section 1983 and the United States Constitution.” Johnson v. City
of Memphis, 617 F.3d 864, 872 (6th Cir. 2010) (citation omitted). Claims arising out of the same
set of circumstances as a civil-rights Section 1983 claim also fall under this exception. See id. at
872.
Here, Plaintiff’s state-law claims against Shelby County are liberally construed to assert
claims for malicious prosecution, false imprisonment, abuse of process, conspiracy of abuse of
process, harassment, and intentional infliction of emotional distress. Nonetheless, these claims,
excluding harassment, are immune from suit under Tenn. Code Ann. § 29-20-205(2) because
they are offenses enumerated therein and/or arise out of the same circumstances giving rise to
Plaintiff’s Section 1983 civil-rights claims against Shelby County. See Tenn. Code Ann. § 2920-205(2). As to Plaintiff’s harassment allegation, Shelby County can be held liable for its
deputies’ alleged non-negligent actions—such as harassment—under Tenn. Code Ann. § 8-8302. Hunt v. Wayne Cty., No. 1-10-0035, 2012 U.S. Dist. LEXIS 11126, at *19–20 (M.D. Tenn.
Jan. 31, 2012). Even more, the conduct alleged by Plaintiff, if taken as true and considered in
the light most favorable to Plaintiff, plausibly suggests that she is entitled to relief on her
harassment claim. Thus, this Court finds that Plaintiff is allowed to proceed against Shelby
County on her state law harassment claim.
Sheriff Oldham
Plaintiff brings claims under Tennessee state law and Section 1983 against Sheriff
Oldham in both his official and personal capacities. The Court liberally construes Plaintiff’s
Complaint against Sheriff Oldham to allege Section 1983 claims for malicious prosecution, false

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imprisonment, abuse of process, and conspiracy of abuse of process as well as state-law claims
for the same, plus harassment and intentional infliction of emotional distress. To the extent
Plaintiff brings Section 1983 claims against Sheriff Oldham in his official capacity, such claims
must be dismissed because they are prohibited as a suit directly against the local government and
otherwise would be duplicative. (ECF No. 7, 15.) “A suit against an individual ‘in his official
capacity’ [is] essentially a suit directly against the local government unit and can result in that
unit’s liability to respond to the injured party for his injuries.” Leach v. Shelby Cty. Sheriff, 891
F.2d 1241, 1245 (6th 1989). As a result, Plaintiff’s Section 1983 claims against Sheriff Oldham
in his official capacity are analyzed no differently than the above analysis of Plaintiff’s Section
1983 claims against the SCSO, the claims are construed against Shelby County. Nonetheless,
because Plaintiff is already permitted to proceed on her Section 1983 claims against Shelby
County, the claims here should be dismissed as duplicative. Thus, the Court dismisses Plaintiff’s
Section 1983 claims against Sheriff Oldham in his official capacity.
This Court finds that Plaintiff should be allowed to continue on her Section 1983 claims
against Sheriff Oldham in his personal capacity. Liability under Section 1983 arises only upon a
showing of personal participation by the defendant. See Iqbal, 556 U.S. at 676. Here, Plaintiff
alleges in her Amended Complaint that Sgt. Cunningham reports directly to Sheriff Oldham;
Sheriff Oldham gave both written and verbal orders to harass Plaintiff upon sight; Sgt.
Cunningham made verbal communications to his office during the arrest via his sheriff’s radio
advising them of Plaintiff’s arrest; and, Sgt. Cunningham participated in and instructed other
officers to participate in the arrest, harassment, assault, and humiliation of plaintiff. (ECF No. 9,
3:6–9, 4:12.) Thus, accepting Plaintiff’s allegations as true and considering the evidence in a

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light most favorable to her, the Court finds that Plaintiff’s allegations plausibly suggest she is
entitled to relief on her Section 1983 claims against Sheriff Oldham in his personal capacity.
Likewise, the Court finds that Plaintiff should be permitted to proceed on her state-law
claims against Sheriff Oldham in his personal capacity.

The Court finds that Plaintiff’s

allegations, if taken as true, plausibly suggest that she is entitled to relief on her state-law claims
against Sheriff Oldham because, as outlined above, her Amended Complaint contains factual
allegations that Sheriff Oldham personally participated in the alleged constitutional violations.
(ECF No. 9, 3:6–9.) Thus, the Court finds that Plaintiff should be allowed to proceed with her
state-law claims attempting to hold Sheriff Oldham personally liable.
Sergeant Cunningham
Plaintiff brings claims under Section 1983 and Tennessee state law against Sgt.
Cunningham in both his official and personal capacities. The Court liberally construes Plaintiff’s
Complaint against Sgt. Cunningham to allege Section 1983 claims for malicious prosecution,
false imprisonment, abuse of process, and conspiracy of abuse of process as well as state-law
claims for the same, plus harassment and intentional infliction of emotional distress. To the
extent Plaintiff brings Section 1983 claims against Sgt. Cunningham in his official capacity, such
claims must be dismissed because they are prohibited as a suit directly against the local
government and if construed against Shelby County, would be duplicative. (See ECF No. 7, 15.)
Thus, this Court dismisses Plaintiff’s Section 1983 claims against Sgt. Cunningham in his
official capacity.
This Court additionally finds that Plaintiff is allowed to proceed on her Section 1983 and
state-law claims against Sgt. Cunningham in his personal capacity because her Amended
Complaint contains factual allegations that Sgt. Cunningham personally participated in the

15

alleged constitutional violations. (ECF No. 9, 3:5–7:55.) Indeed, Plaintiff alleges that Sgt.
Cunningham played an integral part in the violations alleged when he (1) followed the orders of
Sheriff Oldham or other supervisory authorities to harass and otherwise violate Plaintiff’s rights,
and (2) instructed others within the SCSO to do the same. (See id.) Thus, Plaintiff may proceed
with her Section 1983 and state-law claims against Sgt. Cunningham in his personal capacity.
Herbert Slatery and Amy Weirich
This Court finds that Plaintiff’s claims against Herbert Slatery and Amy Weirich should
be dismissed for failure to state a claim because Plaintiff failed to plead any allegations
concerning either Defendant. In Plaintiff’s Amended Complaint, she asserts claims against
Herbert Slatery, Attorney General and Reporter for the State of Tennessee, and Amy Weirich,
District Attorney General of 30th Judicial District of Tennessee. (ECF No. 9, 1.) However, the
addition of these parties is of no consequence because Plaintiff does not allege an actual or
potential employment relationship with either, that either acted on behalf of the federal
government, or any general or specific factual allegation about either. (See id.) Thus, Plaintiff’s
claims against Herbert Slatery and Amy Weirich are dismissed for failure to state a claim upon
which relief may be granted.
IV.

CONCLUSION

Upon de novo review of the above-styled case, including the Chief Magistrate Judge’s
Report and Recommendation, Plaintiff’s Amended Complaint, and Plaintiff’s Objections to the
Report and Recommendation, the Court hereby finds as follows:
(1)

The Court initially sua sponte dismisses all of the following claims brought by Plaintiff:
(i) ADA/ADDA claims, (ii) Title VII claims, (iii) equal protection claims, and (iv) Fifth

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Amendment due process claims for Plaintiff’s failure to state a claim upon which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(b)(6).
(2)

The Court additionally sua sponte dismisses Herbert Slatery and Amy Weirich from this
action for Plaintiff’s failure to state a claim upon which relief may be granted pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(b)(6).

(3)

The Court allows Plaintiff Moses to proceed on all of her Section 1983 claims and her
state law harassment claim against the SCSO (to the extent the claims are construed
against Shelby County).

(4)

The Court dismisses sua sponte all of Plaintiff’s claims against Sheriff Oldham and Sgt.
Cunningham in their official capacity for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(b)(6), but the
Court allows Plaintiff to proceed on all of her Section 1983 and state-law claims
attempting to hold the two personally liable.

(5)

Regarding Plaintiff’s permitted Section 1983 and state-law claims against Shelby County
as well as both Sheriff Oldham and Sgt. Cunningham in their personal capacities, the
Court instructs the Clerk to issue process for Shelby County, Sheriff Oldham, and Sgt.
Cunningham and deliver that process to the marshal for service; that service of the
Amended Complaint and a copy of this Order be made on Shelby County, Sheriff
Oldham, and Sgt. Cunningham pursuant to Rule 4(h)(1) of the Federal Rules of Civil
Procedure; and that all costs of service be advanced by the United States. 2

2

The Court also notes that Plaintiff purports to sue three "John Doe/Jane Doe" Defendants.
Service of process, however, cannot be made on a fictitious party. The filing of a complaint against a
"John Doe" defendant does not toll the running of the statute of limitation against that party. See Cox v.
Treadway, 75 F.3d 230, 240 (6th Cir. 1996); Bufalino v. Mich. Bell Tel. Co., 404 F.2d 1023, 1028 (6th
Cir. 1968). The Clerk is directed to terminate the reference to the John Doe/Jane Doe Defendants on the
docket.
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It is further ordered that Plaintiff serve a copy of every document filed in this case on the
attorney(s) for Shelby County, Sheriff Oldham, and Sgt. Cunningham; make a certificate
of service on every document filed; familiarize herself with the Federal Rules of Civil
Procedure and this court’s local rules; promptly notify the Clerk of any change of address
or extended absence; and be warned that failure to comply with these requirements, or
any other order of the Court, may result in the dismissal of her case without further
notice.

IT IS SO ORDERED on this 8th day of December 2017.

s/John T. Fowlkes, Jr.
John T. Fowlkes, Jr.
United States District Judge

18