Stark v. City of Memphis et al
ORDER ADOPTING 62 - 64 REPORTS AND RECOMMENDATIONS granting in part and denying part Defendants' Motions to Dismiss signed by Judge John T. Fowlkes, Jr. on 2/16/21. (Fowlkes, J.)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
PAMELA DIANE STARK,
CITY OF MEMPHIS, et al.
Case No. 2:19-cv-02396-JTF-tmp
ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORTS AND RECOMMENDATIONS
AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS TO DISMISS
Before the Court is Plaintiff Pamela Diane Stark’s pro se complaint against Defendants City
of Memphis, Mayor Jim Strickland, MPD Director Michael Rallings, MPD Deputy Chief Don
Crowe, MPD Lt. Stephen Roach, MPD Sgt. Daniel Cordero, MPD Officer Ervin, Memphis City
Attorney Bruce McMullen, Assistant City Attorney Zayid Saleem, District Attorney General Amy
Weirich, Deputy District Attorney General Raymond Lepone, Joe Stark and his lawyers Melissa
Berry and Michelle Crawford, and MPD Officers John Doe 1-2 that was filed on June 19, 2019.
(ECF No. 1). 1 The matter was referred to the United States Magistrate Judge for management of
all pretrial matters pursuant to West Tenn. L. R. 4.1(b)(1) and Administrative Order No. 2013-05.
The record reflects that Notices of Appearance were filed by Attorneys Brice Moffatt Timmons, Craig
Edgington and Bryce Simmons on behalf of Plaintiff Pamela Stark on January 11, 2021. (ECF Nos. 74–
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The Magistrate Judge has issued three Reports and Recommendations, ECF Nos. 62–64,
regarding Motions to Dismiss separately filed by (1) Defendants Melissa Berry and Michelle
Crawford; (2) Defendants District Attorney General Amy Weirich and Deputy District Attorney
General Raymond Lepone; and (3) the remaining Defendants - City of Memphis, Daniel Cordero,
Don Crowe, John Does 1–2, MPD Officer Ervin, City Attorney Bruce McMullen, MPD Director
Michael Rallings, Stephen Roach, Zayid Saleem, Joe Stark and Mayor Jim Strickland. (ECF Nos.
36, 39 and 42.)
On February 13, 2020, the Magistrate Judge recommended granting Defendants Amy
Weirich and Raymond J. Lepone’ s Rule 12(b)(1) and Rule (12)(b)(6) Motion to Dismiss, ECF
No. 39, to which Plaintiff filed objections on February 27, 2020 and March 17, 2020; and
Defendants responded. (ECF No. 62, ECF No. 66, ECF No. 69, and ECF No. 71.) Also, on
February 13, 2020, the Magistrate Judge issued a second Report and Recommendation that the
Court grant Defendants Melissa Berry and Michelle Crawford’s Motion to Dismiss to which
Plaintiff filed objections and Defendants responded. (ECF No. 63, ECF No. 65, ECF No. 67 and
ECF No. 70.) And last, the Magistrate Judge provided a Report and Recommendation that the
Court grant in part and deny in part the Defendants City of Memphis, Mayor Jim Strickland,
Michael Rallings, Don Crowe, Stephen Roach, Daniel Cordero, Officer Ervin, Bruce McMullen,
Zayid Saleem, Joe Stark, and two John Does’ Motion to Dismiss on February 18, 2020. (ECF No.
64.) The respective parties filed objections and responses. (ECF Nos. 72–74.)
II. FINDINGS OF FACT
In all three Reports and Recommendations, the Magistrate Judge provides proposed findings
of fact with a summary of the underlying facts in this case. (ECF No. 62, 1–7, ECF No. 63, 1–7,
and ECF No. 64, 1–7.) The Magistrate Judge surmised that Plaintiff’s claims resulted from an
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alleged assault against her by her husband, Defendant Joe Stark, wherein she suffered injuries at
her home on June 17, 2018. At the time, Plaintiff was employed by Defendant Weirich as an
Assistant District Attorney General who directly reported to Defendant Deputy Attorney General
Lepone. Her husband worked as a Sergeant with the Memphis Police Department. After reporting
the assault, Plaintiff filed for divorce from her husband who was represented by Defendants
Melissa Berry and Michelle Crawford. Plaintiff subsequently became disgruntled by the manner
in which the incident was reported, investigated, and ultimately handled by the various named
defendants. Plaintiff specifically alleges that her supervisor, Lepone, encouraged her not to report
the assault. Ultimately, the Shelby County District Attorney General’s Office recused itself and
the matter was assigned to another District Attorney General in August 2018. Plaintiff felt that her
concerns and charges were not being addressed or investigated in any meaningful way. Thus,
Plaintiff’s claims against her husband and her subsequent criticism of the manner in which MPD
handled the alleged assault, as well as her attempts to communicate her concerns to the Mayor of
the City of Memphis, were publicly displayed on her Facebook account. As a result, Plaintiff
asserts that she was enjoined by a State Circuit Court Judge from voicing her criticism of the MPD
on social media and banned from police premises. Also, certain MPD officers refused to cooperate
and testify in one of her criminal cases. Consequently, Plaintiff submits that as a result of these
events, she was harassed, intimidated, and eventually constructively forced to resign her position
as an Assistant District Attorney General. In her complaint, Plaintiff alleges that these Defendants
conspired to dissuade her from reporting the June 17th incident against her husband, thereby
depriving her of the ability to exercise her federal constitutional rights in violation of 42 U.S.C. §§
1983 and 1985, free speech, equal protection, substantive and procedural due process, and the
Tennessee Constitution. Plaintiff seeks injunctive and monetary relief for her claims.
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Despite Plaintiff’s attempts to supplement the factual allegations of her complaint within her
objections to the reports and recommendations, the Court adopts the factual history as described
in all of the reports and recommendations. (ECF No. 62, 1–7, ECF No. 63, 1–5, ECF No. 64, 1–7,
65, 1–3, ECF No. 72, 6–15.)
III. LEGAL STANDARDS
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.” See e.g. Baker v.
Peterson, 67 Fed. App’x. 308, 311, 2003 WL 21321184 (6th Cir. 2003) and Fed. R. Civ. P. 72(a).
A district court judge must review dispositive motions under the de novo standard. See Matthews
v. Weber, 423 U.S. 261, 275 (1976); Baker, 67 Fed. App’x. at 311 and 28 U.S.C. § 636 (b)(1)(B).
After review, the district court is free to accept, reject or modify the proposed findings or
recommendations of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 150 (1985).
Any party who disagrees with a magistrate judge’s recommendation may file written
objections to the report and recommendation. See Thomas, 474 U.S. at 142; Fed. R. Civ. P. 72(b),
28 U.S.C. § 636(b)(1)(c) and LR 72.1(g)(2). A district judge must determine de novo any part of
the magistrate judge’s recommendation to which proper objections are raised. 28 U.S.C. §
636(b)(1)(c). However, objections to any part of a magistrate judge's report and recommended
disposition “must be clear enough to enable the district court to discern those issues that are
dispositive and contentious.” See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) and Thomas,
474 U.S. at 147 (the purpose of the rule is to “focus attention on those issues ... that are at the heart
of the parties' dispute.”). “‘[O]bjections disput[ing] the correctness of the magistrate's
recommendation but fail[ing] to specify the findings ... believed [to be] in error’ are too general.”
Spencer v. Bouchard, 449 F.3d 712, 725 (6th Cir. 2006) quoting Miller, 50 F.3d at 380. A
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plaintiff’s failure to file a specific objection to a magistrate judge’s report or one which fails to
specifically identify the issues of contention does not satisfy the requirement that an objection was
filed at all. Howard, 932 F.2d at 509; McCready v. Kamminga, 113 Fed. App’x. 47, 49 (6th Cir.
2004). The district judge should adopt the findings and rulings of the magistrate judge to which no
specific objection is filed. Brown v. Board of Educ. of Shelby County Schools, 47 F.Supp.3d 665,
674 (W.D. Tenn. 2014).
Generally, pro se complaints are held to a less stringent standard than those drafted by
attorneys. 2 As such, these complaints must only plead facts sufficient to show a legal wrong has
been committed from which a plaintiff may be granted relief. See Mullins v. Smith, 14 F. Supp.2d
1009, 1011 (E.D. Mich. July 27, 1998); Haines v. Kerner, 404 U.S. 519 (1972). However, pro se
civil rights complaints must allege some facts in support of the claim that are more than conclusory
allegations. “Unless there is indisputably absent any factual or legal basis for the wrong asserted
in the complaint, the trial court, [i]n a close case, should permit the claim to proceed at least to the
point where responsive pleadings are required.” Neitzke v. Williams, 409 U.S. 319, 323 (1989)
(internal quotations omitted.) Without some factual allegations, the fair notice requirement of the
nature of the complaint is not satisfied. Id. at 325, 328–29. Although a district court is not required
to extract the strongest cause of action on behalf of a pro se litigant or to create a claim that is not
asserted within the complaint, pro se complaints must be liberally construed. See Johnson v.
Biden, No. 13-2375-JDT-dkv, 2013 WL 3153774, at * 3 (W.D. Tenn. 2013) (citing Payne v. Sec’y
of Treas., 73 F. App’x 836, 837 (6th Cir. 2003)).
It should be noted that the pro se Plaintiff in this case is a licensed attorney who was employed by the
District Attorney General’s office at the time of the occurrences leading up to this lawsuit. The Court
assumes she is still an attorney in good standing in the state of Tennessee. Moreover, since filing her lawsuit
and objections to the Reports and Recommendations, Plaintiff has recently retained counsel. (ECF Nos.
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A party may move to dismiss a claim for lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1). A Rule 12(b)(1) motion challenges the court’s statutory or constitutional power
to adjudicate the case. AdismissalunderRule12(b)(1)is not a judgment on the merits of plaintiff’s
case but instead, a dismissal because the court lacks authority to hear the case. Wilkins v. Jakeway,
183 F.3d 528, 33-534 (6th Cir. 1999). The lack of subject matter jurisdiction may not be waived.
2 Moore’s Federal Practice §12.30(3rd Ed. 2010). When a Rule 12(b)(1) motion attacks the
factual basis for subject matter jurisdiction, “the trial court must weigh the evidence and the
plaintiff bears the burden of proving that
jurisdiction exists.” DLX, Inc. v. Kentucky, 381 F.3d
511, 516 (6th Cir. 2004) citing RMI Titanium Co. v. Westinghouse Elec. Corp, 78 F.3d 1125, 113335 (6th Cir. 1996). If a court determines that it lacks subject matter jurisdiction, the action must be
Federal R. Civ. P. 12(b)(6) allows dismissal of a complaint that fails to state a claim upon
which relief may be granted. As such, a Rule 12(b)(6) motion permits the “defendant to test
whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the
complaint is true.” Mayer v. Mylod, 988 F.2d 635, 838 (6th Cir. 1993) (citing Nishiyama v.
Dickson Cnty., 814 F.2d 277, 279 (6th Cir. 1987)). A motion to dismiss only tests whether the
plaintiff has pleaded a cognizable claim and allows the court to dismiss meritless cases which
would waste judicial resources and result in unnecessary discovery. Brown v. City of Memphis,
440 F. Supp.2d 868, 872 (W.D. Tenn. 2006.) When evaluating a motion to dismiss under Fed. R.
Civ. P. 12(b)(6), the Court must determine whether the complaint alleges sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Conley v. Gibson,
355 U.S. 41, 45–46 (1957). A complaint must contain either direct or inferential allegations
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respecting all of the material elements necessary to sustain recovery under some viable legal
theory. Id. at 562. The factual allegations must be definite enough to “raise a right to relief above
the speculative level.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548
(6th Cir. 2007) (quoting Twombly, 550 U.S. at 555.) However, a complaint need not provide
detailed factual allegations in order to survive dismissal. Id.
IV. LEGAL ANALYSIS
A. Dismissal of the Claims against Weirich and Lepone
Plaintiff raises claims against the Shelby County District Attorney General Amy Weirich and
Deputy District Attorney General Raymond Lepone, in their individual capacities pursuant to 42
U.S.C. § 1983 and § 1985 for conspiring with others to commit violations of her rights to free
speech, equal protection, substantive and procedural due process, rights under the Tennessee
Constitution and for intentional infliction of emotional distress. (ECF No. 1.) Plaintiff primarily
alleges, inter alia, that these Defendants violated her rights by prohibiting her from listing her
husband as a suspect in a reported domestic violence assault on June 17, 2018 and by continuing
to enforce a restraining order that was entered against her by a Circuit Court Judge.
The Magistrate Judge recommends that the undersigned Court dismiss all of Plaintiff’s claims
against both Weirich and Lepone. (ECF No. 62.) The Magistrate Judge determined that injunctive
relief against these parties is unavailable and therefore, this request for relief should be denied. 3
Regarding the Defendants’ Rule 12(b)(1) arguments regarding lack of jurisdiction, the Magistrate
Judge indicates that the domestic relations exception and the Younger abstention doctrine should
not prevent the Court from exercising jurisdiction in this case. The Magistrate Judge considered
Plaintiff concedes that her request for injunctive relief against these parties in their official capacities is
barred resulting in the Magistrate Judge also finding that said relief is also unavailable to Plaintiff against
these parties in their individual capacities. (ECF No. 62, 8–10.)
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Weirich’s and Lapone’s alleged actions as administrative decisions as opposed to prosecutorial
decisions or acts; and therefore, found these claims unprotected by prosecutorial immunity.
Accordingly, the Magistrate Judge concludes that Defendants’ motion to dismiss the state law and
federal claims on these grounds should be denied. 4 (ECF No. 62, 11–15.) However, the Magistrate
Judge’s report also concludes that Plaintiff failed to sufficiently allege the existence of a
conspiracy. Although Plaintiff alleged the conspiracy was motivated by animus against her
personally, a class of one claim is not the kind of group that receives “special protection” under
the Equal Protection Clause. Thus, in the Sixth Circuit, such a claim is not cognizable. (Id. at 15–
18.) The Magistrate Judge found that Defendants’ motion to dismiss Plaintiff’s § 1983 and § 1985
conspiracy claims should be Granted. 5 (Id.) The Court agrees.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a deprivation
of rights secured by the “Constitution and laws” of the United States (2) committed by a defendant
acting under color of state law. See York v. Tennessee, No. 2:14-cv-2525-JDT-dkv, 2015 WL
4459081 at *3 (W.D. Tenn. July 21, 2015) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,
150 (1970)). In this regard, the Magistrate Judge determined that Plaintiff has failed to assert a
plausible substantive due process claim because: (a) the alleged denial of redress or protection
from domestic violence does not comprise a fundamental interest, and (b) the defendants’ alleged
conduct does not meet the “shock the conscience” standard so as to establish a substantive due
process right. (ECF No. 62, 18–21.) Further, the Magistrate Judge determined that Plaintiff has
also failed to establish a procedural due process claim because (a) criminal laws do not afford
victims an entitlement to a particular property interest or a right to the enforcement of certain
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) and Chevalier v. Estate of Barnhart, 803
F.3d 789, 798 (6th Cir. 2015), Younger v. Harris, 401 U.S. 37, 44 (1971).
Volunteer Med. Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 224 (6th Cir. 1991) and Royal Oak Entm’t., LLC v.
City of Royal Oak, Michigan, 205 F. App’x 389, 399 (6th Cir. 2006).
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criminal provisions; 6 and (b) she has not sufficiently pled how Weirich and Lepone prevented her
from filing a formal criminal complaint. (Id. at 22–25.)
The Magistrate Judge recommends dismissal of Plaintiff’s First Amendment claims against
Lepone for retaliation because the claims were not alleged with particularity. (ECF No. 62, 27.)
He also recommends dismissal of Plaintiff’s equal protection claim for failure to assert a
comparator whose domestic violence case was treated differently or more favorably than her case.
The Magistrate Judge recommends dismissal of her claims against Weirich regarding supervisor
liability for failure to supervise, train or intervene as conclusory and lacking factual support. (Id.
at 29–30.) And last, the report and recommendation provides that Plaintiff has failed to state a
claim under the Tennessee Constitution as no such private right of action exists, that her claims
against Weirich and Lepone’s conduct do not meet the high standard for an emotional distress
claim. (Id. at 32–33.)
Plaintiff objects to the recommended dismissal of the claims against these parties, asserting
that she has adequately alleged that Weirich and Lepone engaged in multiple conspiracies, even
by individual actions, to abridge (1) her equal protection rights; (2) her right to petition the
government for redress and (3) her right to freedom of speech. (ECF No. 66, 1–11.) Plaintiff
asserts that both parties acted as gatekeepers to the governmental redress process by discouraging
and denying her the right to file a police report and access to an independent investigator or
prosecutor as provided by Tennessee law; and designating her as the suspect instead of the victim
of the assault. (Id. at 4.) In her objections, Plaintiff asserts that her husband Joe Stark filed a
police report with the MPD on June 25, 2018 regarding the June 17th incident at their home in
order to prevent her from filing formal charges of domestic assault against him. (ECF No. 65, 2–
See Town of Castle Rock, Colo. V. Gonzales, 545 U.S. 748, 756 (2005).
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3.) And finally, Plaintiff contends that she is a member of a protected class, those who raise
allegations against an MPD officer and/or the MPD and therefore, objects to the determination that
she is not a member of a class for which equal protection under § 1985 exists. (ECF No. 66, 5–
The State responds that (1) Plaintiff did not allege the existence of a conspiracy among these
Defendants with specificity or that she received disparate treatment as compared to another
similarly-situated individual; (2) Plaintiff was not denied meaningful access to petition the
Government for redress in violation of substantive due process or to file a criminal complaint in
violation of procedural due process by these state defendants and (3) that she fails to state a claim
of First Amendment retaliation by these parties or a viable § 1985 conspiracy claim. (ECF No.
69, 1–12 and ECF No. 71, 10.)
The Court agrees that Plaintiff has insufficiently alleged that these Defendants denied her the
right to file a criminal complaint with the District Attorney General or to ensure that the police
report of the incident was investigated. The Complaint lacks plausibly alleged facts that these
Defendants entered into a conspiracy with various members of the MPD in order to abridge
Plaintiff’s freedom of speech— to make an official or public allegation of misconduct against the
MPD. Plaintiff’s objections to the report that these Defendants retaliated against her by banning
her from MPD property and causing her the loss of liberty associated with the restraining order are
also speculative and overruled. The Magistrate Judge’s recommendation to grant dismissal of the
claims against Weirich and Lepone is Granted.
B. Dismissal of Claims Against Berry and Crawford
Plaintiff alleges that her husband’s attorneys, Melissa Berry and Michelle Crawford, conspired
to abridge her rights to redress her §§ 1983, 1985 and First Amendment claims and infringed upon
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her rights of freedom of speech and expression under the Tennessee Constitution. Plaintiff alleges
that Berry initiated proceedings for a Restraining Order against her, communicated with the City
Attorney’s office regarding said petition and advised her that an official with the City Attorney’s
office would be present during any depositions of MPD officers. Plaintiff alleges that, as a result,
the Circuit Court Judge entered a Restraining Order ordering her to remove her Facebook posts
and to refrain from posting any future comments on social media about the MPD or her husband
Joe Stark that could affect his reputation or employment with the MPD. Plaintiff alleges that at
Berry’s request, the restraining order was amended to include the Circuit Court Judge’s precise
language from the proceedings. As such, Plaintiff asserts that the attorneys conspired with others
to violate her First Amendment rights to free speech and Article 1 of the Tennessee constitution.
(ECF No. 1, ¶¶ 103–108, ECF No. 63, 1–5.)
Similar to Plaintiff’s claims against Attorneys Weirich and Lepone, the Magistrate Judge
reasoned that (1) Plaintiff has not alleged sufficient facts to support her § 1983 conspiracy claims
against Attorneys Berry and Crawford; and (2) the § 1983 claim is not a viable claim against a
private party in either his or her individual capacity. (ECF No. 63 and ECF No. 1, ¶¶ 54 & 56.)
Because the Magistrate Judge concluded that a party must conspire with the state in order to suffer
liability under § 1983, that allegation was not alleged in this case and therefore, should be
dismissed. (ECF No. 63, 7–8.)
Plaintiff objects to the Magistrate Judge’s recommendation to dismiss her § 1985 and Equal
Protection claims against Berry and Crawford, asserting (1) that she has pled sufficient, and not
vague facts, including overt acts by the defendants in furtherance of the conspiracy based on their
communications with the City Attorney’s office, the Mayor and MPD, all which put the defendants
on notice of the claims against them; (2) the alleged conspirators’ motivation should be the focus
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of a § 1985 conspiracy claim as opposed to her membership, or lack thereof, in a protected class;
and (3) these defendants’ action should be considered conduct by state actors with the assistance
of state court authority and procedures in violation of her First Amendment rights that are subject
to § 1983 and § 1985 liability. (ECF No. 65, 3–10.)
In response, the Defendants object that Plaintiff includes facts in her objections that were not
alleged or are inconsistent with those alleged in her complaint. (ECF No. 70, 2.) Specifically, the
Defendants assert that under Browder, Plaintiff did not allege the manner in which she was
exercising a fundamental right and therefore, failed to establish membership in a protected class
entitled to equal protection. 7 Moreover, even if Plaintiff successfully established membership in a
protected class of parties who have alleged police misconduct, she failed to assert how other
comparators outside this class were treated differently. The Defendants further respond that the
City Attorney’s office did not violate Plaintiff’s constitutional rights by supporting the injunction
related to her social media posts and their appearances at depositions involving police officers.
The Defendants posit that this information does not comprise viable evidence of a conspiracy with
members of the City Attorney’s office and the MPD. In support of this argument, the Defendants
argue that the attorneys’ actions regarding the injunction were justified as Plaintiff admittedly
violated the conditions of the Restraining Order. And finally, the City contends that membership
in a class of one does not provide § 1985 relief. (ECF No. 70, 5–9.) The Court agrees and
Plaintiff’s objections are overruled.
In order to establish a §1985 conspiracy claim, the Plaintiff must allege a conspiracy for the
purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws or equal privileges and immunities under the law. Plaintiff repeatedly asserts
Browder v. Tipton, 630 F.2d 1149, 1154 (6th Cir. 1980).
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that Berry and Crawford conspired to deprive her of her First Amendment rights to pursue
misconduct claims against their client and the MPD. Plaintiff repeatedly alleges that during the
course of representing Mr. Stark, Defendants Berry and Crawford conspired against her by
communicating with others in violation of her First Amendment rights. Again, Plaintiff has not
alleged sufficient facts to support her contention, nor a comparator or membership in a protected
class of persons in her pleadings. Thomas v. City of Memphis, No. 04-2314-M1/V, 2005 WL
1921804, at *5 (W.D. Tenn. Aug. 3, 2005).
C. Dismissal In Part of the Claims against Multiple Defendants
On February 18, 2020, the Magistrate Judge issued a third Report and Recommendation
regarding the Motion to Dismiss, ECF No. 42, that was filed by Defendants—the City of Memphis,
Mayor Jim Strickland, Director Michael Rallings, Don Crowe, Stephen Roach, Daniel Cordero,
Officer Ervin, Bruce McMullen, Zayid Saleem, Joe Stark, and two John Does—a senior MPD
officer and an MPD domestic violence investigator—pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). (ECF No. 64.) On March 17, 2020, Plaintiff and Defendants the City of
Memphis, Detective Daniel Cordero, MPD Chief of Information Technology Don Crowe, John
Doe 1-2, MPD Officer Ervin, Attorney Bruce McMullen, Director Michael Rallings, MPD
Supervisor Stephen Roach, Attorney Zayid Saleem, Joe Stark, and Mayor Jim Strickland filed
objections. (ECF No. 72 and ECF No. 73.) On March 31, 2020, Defendants City of Memphis,
Daniel Cordero, Don Crowe, John Doe 1-2, Ervin, Bruce McMullen, Michael Rallings, Stephen
Roach, Zayid Saleem, Joe Stark, and Mayor Jim Strickland filed their objections. (ECF No. 74.)
The Court will address these objections below.
Within his report and recommendation, the Magistrate Judge again provides an extensive
overview of the facts of this case relative to these named Defendants and the claims against them.
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(ECF No. 64, 1–7.) Plaintiff does not object to the Magistrate Judge’s summary of the facts but
the City objects that the Magistrate Judge omitted that the initial Mandatory Injunction was issued
on June 29, 2018, ECF No. 73-1, but the petition for restraining order in reference to the divorce
proceedings was filed on January 15, 2019, almost six months later. (ECF No. 73. 4–5.) However,
the Court finds that based on the overall detailed description of the events and the Magistrate
Judge’s prior decision not to consider exhibits outside of the Complaint for purposes of a Rule
12(b)(6) ruling, the proposed findings of fact are adopted. (ECF No. 65, 1–4 and ECF No. 62, 2
Again, the Magistrate Judge concludes that federal jurisdiction exists in this matter because:
(1) the Rooker-Feldman doctrine does not bar federal jurisdiction of challenges to state court
interlocutory orders and (2) the domestic relations exception is inapplicable but (3) the request for
injunctive relief should be denied for Plaintiff’s failure to assert an exception to the Younger
doctrine in reference to the pending divorce matter. The Magistrate Judge recommends dismissal
of the § 1983 official capacity claims against the named city officials, submitting that all of these
claims should proceed against the City of Memphis instead. (ECF No. 64, 9–17.)
Aside from two exceptions, the Magistrate Judge submits that Plaintiff has failed to plausibly
allege with specificity the existence of a § 1983 or §1985 conspiracy, to wit, a single plan or
agreement in furtherance of any conspiracy to deprive her of any constitutional rights, among the
many defendants in this case. (Id. at 17.) Specifically, the Magistrate Judge noted that mere
communications amongst the parties against whose claims are recommended for dismissal does
not suggest the existence of a conspiracy. The Magistrate Judge continues that many of the actions
described in the complaint were committed by one party who acted alone. (ECF No. 64, 17–20.)
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009).
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He also concludes that Plaintiff failed to state a substantive due process claim against Defendants
Ervin, Cordero, Roach, and Crowe as lacking a fundamental interest that is protected by the due
process clause of the Fourteenth Amendment.
The Magistrate Judge determined that the
governmental actions by the parties as alleged, were possibly irresponsible and inappropriate, but
did not rise to the level of conduct that “shocks the conscience.” (ECF No. 64, 24.) Similar to the
other reports, the Magistrate Judge recommends dismissal of the “class of one” Equal Protection
Claim under the Fourteenth Amendment for lack of a named disparately treated comparator, for
failure to adequately discredit any basis for the governmental action and/or show how the action
was motivated by animus or ill will, all justification for dismissal of Plaintiff’s § 1983 and §1985
claims. The Magistrate Judge also recommends dismissal of Plaintiff’s state law claims of
intentional infliction of emotional distress or interference with business relationship against
Defendants Mayor Strickland, Director Rallings, Attorney Bruce McMullen, Officers Crowe and
Saleem be granted. (Id. at 30-50.) However, the Magistrate Judge concludes that the ban of
Plaintiff from MPD property, including the Tillman station where her office was located, and
prohibiting her from speaking on social media or to City Officials and the MPD regarding the
alleged domestic assault by her husband, established a plausible First Amendment retaliation claim
against the City and Defendant Stark and a plausible claim for intentional infliction of emotional
distress and interference with business relationships by Defendant Joe Stark. (Id. at 49–52.) And
last, the Magistrate Judge recommends dismissal of her false light and invasion of privacy claim
against Director Rallings, and City defendants Crowe, Cordero, and John Doe 2 because neither
of these defendants were alleged to have taken down a report or published the report listing her as
the suspect in the June 17th incident. (Id. at 53–54.)
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Plaintiff objects on the basis that (1) she adequately alleged deprivation of a fundamental
interest under the First Amendment to make a police report regarding the domestic abuse incident
and an inability to address these allegations with the District Attorney General; (2) she adequately
alleged an interest to be free from criminal investigation and/or a substantive and procedural due
process right violation under the First and Fourteenth Amendments; (3) based on her professional
experience with domestic violence victims, she has alleged more than unreasonable conclusions
that other victims have been treated more fairly to show disparate treatment in satisfaction of an
equal protection claim; and (4) Defendant Stark and his attorneys violated her First Amendment
rights when they filed a Petition for Restraining Order and Motion to Amend the Order during the
state court divorce proceedings. (ECF No. 72, 3–5.) These arguments are without merit.
Despite Plaintiff’s efforts to assert new allegations in her objections to this last report and
recommendation, the City responds that all of the Plaintiff’s claims should be dismissed.
Therefore, it specifically objects to the Magistrate Judge’s recommendation that Plaintiff’s First
Amendment retaliation claims against the City and Defendant Stark as well as her state law claims
for interference with business relations and intentional infliction of emotional distress against
Defendant Stark should survive the motion to dismiss. (ECF No. 74, 4–5.) The City specifically
objects to the Magistrate Judge’s finding that 1) the temporal proximity to the ban from MPD
property and Stark’s alleged interference with her prosecution of a homicide case by causing two
detectives to refuse to cooperate were retaliation for her Facebook posts and were possible First
Amendment retaliation claims; 2) that Plaintiff does not have a constitutionally protected right to
an investigation into her allegations because there is no right to petition under the First
Amendment. (ECF No. 73, 3 and ECF No. 74, 5.) The City raises a similar objection to Plaintiff’s
procedural due process claim under Castle Rock, asserting that she failed to assert membership
Case 2:19-cv-02396-JTF-tmp Document 83 Filed 02/16/21 Page 17 of 17
within a protected class that is entitled to due process protection. 9 And finally, the City argues
that because Plaintiff voluntarily resigned from her position, her claim for interference with
business relationship should be dismissed. (Id.)
The Court agrees that the Due Process clause does not require the federal government to
provide services and as such, substantive and procedural due process rights are not secured under
the Fourteenth Amendment; nor does it implicate a fundamental interest. Zuniga v. Cooper, 2015
WL 6440766, at *6 (W.D. Tenn. Sept. 17, 2015.) Therefore, Plaintiff’s claims under the
Fourteenth Amendment and her conspiracy claims under 42 U.S.C. § 1983 and § 1985 should be
dismissed against the officials in their individual capacities. However, the Court finds that Plaintiff
has sufficiently alleged claims against the City and Joe Stark for intentional interference with
business relations and emotional distress and a First Amendment claim for retaliation.
For the above stated reasons, the Court adopts in full all three of the Magistrate Judge’s
reports and recommendations in this case. (ECF Nos. 62, 63 and 64.) The parties’ objections,
ECF Nos. 65, 72, 73 and 74, are herein Overruled. Accordingly, Plaintiff’s First Amendment
retaliation claims against the City of Memphis and Defendant Joe Stark as well as the
interference with business relations and intentional infliction of emotional district against
Defendant Joe Stark will proceed as recommended.
IT IS SO ORDERED on this 16th day of February 2021.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
Town of Castle Rock, Colo., 545 U.S. at 756.
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