Malone et al v. Shelby County et al

Filing 105

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION (ECF No. 72 ), GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF MEMPHIS' MOTION TO DISMISS (ECF No. 50 ), AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO AMEND COMPLAINT (ECF No. 74 ). Signed by Judge Mark S. Norris on 8/8/19. (Norris, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DISTRICT

APRIL MALONE and
CELITRIA WATSON,
Plaintiffs,
v.

No. 2:18-cv-02201-MSN-tmp

SHELBY COUNTY; PAUL HAGERMAN,
Assistant District Attorney, Individually
and in his Official Capacity; AUSTIN
SCOFIELD, Individually and in his
Official Capacity; CHRIS SCRUGGS,
Individually and in his Official Capacity;
CITY OF MEMPHIS; OFFICER
THURMOND RICHARDSON,
Individually and in his Official Capacity;
OFFICER JONATHAN OVERLY,
Individually and in his Official Capacity;
and OFFICER WILLIAM ACRED,
Individually and in his Official Capacity,
Defendants.

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, GRANTING IN
PART AND DENYING IN PART DEFENDANT CITY OF MEMPHIS’ MOTION TO
DISMISS, AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION TO AMEND COMPLAINT

Before the Court is the Magistrate Judge’s Report and Recommendation (the “Report”),
filed February 21, 2019. (ECF No. 72) The Report recommends that Defendant City of Memphis’
Motion to Dismiss for Failure to State a Claim (ECF No. 50) be granted. (ECF No. 72 at Page ID
227.) Plaintiffs filed their “Appeal of Magistrate Judge Decision” on March 1, 2019. (ECF No.
75.) Although not labeled as an objection to the Magistrate Judge’s Report, the Court will treat it
as such and refer to the response as an objection. Plaintiffs also filed a “Motion to Amend

Complaint and Stay Ruling on Motion to Dismiss City of Memphis [sic] Until After Amended
Complaint,” filed on March 1, 2019. (ECF No. 74.)
For the following reasons, the Report is ADOPTED IN PART. Defendant City of
Memphis’ Motion to Dismiss is GRANTED as to the claims arising under the Tennessee
Government Tort Liability Act (“TGTLA”) and Tennessee Human Rights Act (“THRA”) and
DENIED without prejudice as to the claims arising under 42 U.S.C. § 1983 (“§ 1983 claims”).
Plaintiffs’ Motion to Amend Complaint is GRANTED to allow Plaintiffs to amend their § 1983
claims to add facts that “Plaintiffs have become aware of . . . which would clarify the City of
Memphis’ conduct,” (ECF No. 74 at PageID 253), but DENIED as to the claims arising under the
TGTLA and THRA.
STANDARD OF REVIEW
Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by
permitting the assignment of district court 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). For dispositive matters, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §636(b)(1). 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. § 636(b)(1). The district court is not required to review—under a de
novo or any other standard—those aspects of the report and recommendation to which no objection
is made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the
magistrate judge’s findings and rulings to which no specific objection is filed. See id. at 151.
Objections to any part of a magistrate judge's disposition “must be clear enough to enable the

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district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at 147 (stating that the purpose of the rule is to
“focus attention on those issues . . . that are at the heart of the parties' dispute.”). Each objection
to the Magistrate Judge's recommendation should include how the analysis is wrong, why it was
wrong and how de novo review will obtain a different result on that particular issue. Howard v.
Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
A general objection, or one that merely restates the arguments previously presented and
addressed by the magistrate judge, does not sufficiently identify alleged errors in the report and
recommendation. Id. When an objection reiterates the arguments presented to the magistrate
judge, the report and recommendation should be reviewed for clear error. Verdone v. Comm'r of
Soc. Sec., No. 16-CV-14178, 2018 WL 1516918, at *2 (E.D. Mich. Mar. 28, 2018) (citing Ramirez
v. United States, 898 F. Supp. 2d 659, 663 (S.D.N.Y. 2012)); accord Equal Employment
Opportunity Comm'n v. Dolgencorp, LLC, 277 F. Supp. 3d 932, 965 (E.D. Tenn. 2017).
ANALYSIS
Plaintiffs’ objection to the Report does not explain how the Report’s analysis is wrong,
why it was wrong, or how de novo review would result in a different conclusion. See Howard,
932 F.2d at 509. In their objection, Plaintiffs reiterate the standard for motions to dismiss and
“make[] an appeal of the [Report] . . . and ask this Court to allow Plaintiffs to amend their
complaint before ruling on the Motion to Dismiss by the City of Memphis.” 1 (ECF No. 75 at
PageID 256.)

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This request to amend their complaint in their objection to the Magistrate Judge’s Report is in
addition to Plaintiffs’ motion to amend complaint, filed on the same day as their objection. (See
ECF No. 74.)
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Rule 15(a) declares that leave to amend “shall be freely given when justice so requires.”
The Supreme Court has held that leave to amend should normally be granted unless there is some
“apparent or declared reason” not to allow the amendment. Foman v. Davis, 371 U.S. 178, 182
(1962). One reason for not allowing an amendment is that the amendment would be futile. Id. “A
proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to
dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing Thiokol
Corp. v. Dep't of Treasury, State of Michigan, Revenue Div., 987 F.2d 376, 382–83 (6th Cir.
1993)).
The Report found that Plaintiffs’ § 1983 claims lacked sufficient facts to state claims that
are plausible on their face and recommended that Defendant City of Memphis’ motion be granted,
dismissing any §1983 claims against Defendant City of Memphis. (ECF No. 72 at PageID 245–
46.) Here, it is unknown whether Plaintiffs’ amendment to their complaint would be futile because
they did not go into detail about what facts will be added. Defendant City of Memphis has not
responded to Plaintiffs’ motion. Federal Rule of Civil Procedure 15 states that “[t]he court should
freely give leave when justice so requires.” Additionally, the Scheduling Order lists March 27,
2019, as the deadline for motions to amend pleadings, and Plaintiffs did seek to amend their
complaint with this Court prior to that deadline. As such, the Court will give Plaintiffs a chance
to add factual support to their § 1983 claims because a lack of factual support is why the Report
recommends dismissing these claims.

Defendant City of Memphis’ Motion to Dismiss is

DENIED without prejudice as to the § 1983 claims at this time. Defendant City of Memphis may
move to dismiss these claims after the amended complaint is filed if the claims’ newly-added facts
do not state a claim on which relief may be granted.

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In reading the complaint in the light most favorable to Plaintiffs, the Magistrate Judge was
unable to identify any plausible tort claims against Defendant City of Memphis for which the
TGTLA exemptions would not apply and found that Defendant City of Memphis was immune
from suit for the negligence claims under the TGTLA. (Id. at PageID 247–48.) As to the THRA
claim, the Report found that Plaintiffs failed to state a claim for relief because there was no
indication that Plaintiffs are or were employed by the City. (Id. at PageID 248–49.) Plaintiffs
failed to respond to the Report’s recommendation that the TGTLA and THRA claims be dismissed,
see Verdone, 2018 WL 1516918, at *2, other than seeking to add additional facts to the complaint;
however, any amendment with additional facts would be futile for the claims arising under
TGTLA. Plaintiffs also fail to mention any THRA claim in their motion seeking to amend their
complaint and do not address the THRA at all in their objection.
Because Plaintiffs do not raise any legal objection for the claims arising under the TGTLA
and THRA, the Court reviews the Report for clear error. The Court has reviewed the report for
clear error and finds none. Accordingly, Plaintiffs’ objection as to the claims arising under the
TGTLA and THRA is OVERRULED and Plaintiffs’ Motion to Amend Complaint is DENIED
for those claims. The Court ADOPTS the Magistrate Judge’s Report as to the claims arising under
the TGTLA and THRA and GRANTS Defendant City of Memphis’ Motion to Dismiss as to those
claims.
The Court GRANTS IN PART Plaintiffs’ Motion to Amend Complaint to allow additional
facts to be added to the claims arising under § 1983. It is ORDERED:
1. Plaintiffs shall file their First Amended Complaint on or before August 16, 2018.

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2. Plaintiffs shall only be allowed to add facts regarding Defendant City of Memphis and
regarding the § 1983 claims. Plaintiffs have not sought to add any additional facts
addressing any other Defendants.
3. Defendant City of Memphis may file another motion to dismiss addressing the § 1983
claims after the complaint is amended.
CONCLUSION
For the foregoing reasons, the Magistrate Judge’s report and recommendation is
ADOPTED IN PART. Plaintiffs’ objection is OVERRULED and their Motion to Amend
Complaint is GRANTED IN PART to only allow additional facts to be added to the claims arising
under § 1983. Defendant City of Memphis’ Motion to Dismiss is DENIED at this time as to the
§ 1983 claims and GRANTED as to the claims arising under the TGTLA and THRA. Plaintiff’s
claims arising under the TGTLA and THRA in this matter are DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED this 8th day of August, 2019.
s/ Mark S. Norris
MARK S. NORRIS
UNITED STATE DISTRICT JUDGE

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