Elmore v. Memphis & Shelby Cnty. Film Comm'n

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ANTHONY ELMORE, Plaintiff, v. MEMPHIS AND SHELBY COUNTY FILM COMMISSION, in its official capacity, et al., Defendant.

No. 2:20-cv-02330-JTF-cgc

United States District Court, W.D. Tennessee, Western Division

December 15, 2021

REPORT AND RECOMMENDATION ON

THE ORIGINAL SHELBY COUNTY DEFENDANTS' MOTION TO DISMISS

EDGE'S MOTION TO DISMISS

THE AMENDED SHELBY COUNTY DEFENDANTS' RENEWED MOTION TO DISMISS

CHARMIANE G. CLAXTON, UNITED STATES MAGISTRATE JUDGE

Before the Court are the following motions:

(1) the Motion to Dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure by the following Defendants: Shelby County Government (“Shelby County”); the Shelby County Commission (the “County Commission”); Memphis and Shelby County Film Commission (the “Film Commission”); Mayor Lee Harris (“Mayor Harris”); and, Linn Sitler (“Sitler”) (Docket Entry (“D.E.”) #18). These moving Defendants are named in the original Complaint and will be referred to collectively herein as the “Original Shelby County Defendants.”

(2) the Motion to Dismiss^[1] filed by EDGE (Economic Development Growth Engine (“EDGE”)^[2] pursuant to Rules 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure, which also joins in the Original Shelby County Defendants' Motion to Dismiss filed pursuant to 12(b)(6) (D.E. #25); and, (3) the Renewed Motion to Dismiss filed pursuant to Rule 12(b)(6) by Shelby County, the Film Commission, Mayor Harris, Sitler, Jimmy Rout, III (“Rout”), and the Shelby County Historical Commission (the “Historical Commission”) (D.E. #49). These moving Defendants are named in the Amended Complaint and will be referred to collectively herein as the “Amended Shelby County Defendants.”

Pursuant to Administrative Order 2013-05, the instant motions were referred to the United States Magistrate Judge for Report and Recommendation.

I. Procedural History

On May 21, 2021, Plaintiff filed a pro se Complaint in this Court alleging violations of 42 U.S.C. Section 1981 (“Section 1981”) and 42 U.S.C. Section 1983 (“Section 1983”) against the Original Shelby County Defendants, EDGE, and others. (D.E. #1 (“Compl.”)). Plaintiff claims arise from allegations that he was treated differently than other filmmakers due to his race. (Compl. ¶ 16). In the Complaint, Plaintiff named Mayor Harris and Sitler in their official capacities only.

On June 14, 2021, the Original Shelby County Defendants filed their Motion to Dismiss pursuant to Rule 12(b)(6). On June 21, 2021, EDGE filed its Motion to Dismiss joining in the Original Shelby County Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) and separately requesting dismissal pursuant to Rules 12(b)(4) and 12(b)(5).

On October 26, 2021, Plaintiff filed the Amended Complaint for Damages, Declaratory Judgment, and Injunctive Relief (the “Amended Complaint”), which contains extensive revisions and is now the operative pleading in this case. (D.E. #34). Plaintiff's Amended Complaint adds the following: individual-capacity claims against Mayor Harris and Sitler; claims against Rout, in his official and individual capacities as Shelby County Historian; and, claims against the Historical Commission. The Amended Complaint omits EDGE and the County Commission as Defendants.

With respect to the factual basis for his claims, Plaintiff's Amended Complaint alleges as follows: (1) that other White filmmakers received more “fanfare” and recognition-both at the release of their films and thereafter-despite what he characterizes as his more significant accomplishments to filmmaking (Am. Compl. ¶¶ 22-33, 42-43, 60-61, 67); (2) that he was not mentioned on a historical marker placed in downtown Memphis in April 2018 honoring achievements in Memphis filmmaking, thereby discrediting his contributions while celebrating those of White individuals (Id. ¶¶ 34-41); (3) that his documentary, Robert Hollywood Raiford Black America USA, was not supported or acknowledged (Id. ¶ 42); (4) that his film 200 Years of Black Memphis History was not selected in 2019 to be promoted during bicentennial celebrations for the City of Memphis and Shelby County despite his request to be included and his subsequent protests that his work was being excluded on racially discriminatory grounds (Id. ¶¶ 46-59); (5) that the television program Bluff City Law was “offer[ed] support” but that his project Orange Mound Black Hollywood.com, which was launched in July 2020, was not (Id. ¶ 66); (6) that, on January 20, 2021, he was invited to a Film Commission ceremony at which he was to be honored along with two White filmmakers, but that, at the ceremony, he was expected to “publicly profess a statement of belief” that gave undue credit to the White filmmakers while minimizing his achievements (Id. ¶¶ 84-85); and, (7) that he has been “black balled” within the Memphis film industry in retaliation for his 2019 complaints of discrimination and his January 2020 refusal to participate in the Film Commission ceremony (Id. ¶ 68).

With respect to the amended causes of action, Plaintiff continues to allege violations of Sections 1981 and 1983; he also adds claims for violations of 42 U.S.C. § 1982 (“Section 1982”) and § 1985 (“Section 1985”) (Am. Compl. at 1 & ¶¶ 70-98).^[3] As to his Section 1983 claims, Plaintiff alleges that the Amended Shelby County Defendants continue to violate his “First Amendment, Due Process and Equal Protection rights secured by the United States Constitution and Statutes ....” (Id.).^[4] On November 9, 2021 (D.E. #38), Plaintiff filed his Response to all pending Motions to Dismiss, which states as follows:

We ask the Court to proceed with only Defendants listed in the amended Complaint. The motion[s] to dismiss were based on the original complaint and not the amended Complaint; therefore all motions to dismiss should be denied.

(Id.) On November 24, 2021, the Amended Shelby County Defendants filed their Renewed Motion to Dismiss, which addressed the claims in the Amended Complaint as well as Plaintiff's Response.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In addressing a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in the light most favorable to plaintiff and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support a claim “by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare assertions of legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Any claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Id. (citing Twombly, 550 U.S. at 555).

Nonetheless, a complaint must contain sufficient facts “state a claim to relief that is plausible on its face'” to survive a motion to dismiss. Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A plaintiff with no facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Id. at 678-79.

Pleadings 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.” Erickson, 551 U.S. at 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). The basic pleading essentials are not abrogated in pro se cases. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A pro se complaint must still “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Barnett v. Luttrell, 414 Fed.Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal quotations and emphasis omitted). District Courts “have no obligation to act as counsel or paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also not “required to create” a pro se litigant's claim for him. Payne v. Secretary of Treasury, 73 Fed.Appx. 836, 837 (6th Cir. 2003).

III. Proposed Analysis and Conclusions of Law

A. Claims against EDGE

Defendant EDGE's Motion to Dismiss joined in the Shelby County Motion to Dismiss filed pursuant to Rule 12(b)(6) and also requested dismissal pursuant to Rule 12(b)(4) and Rule 12(b)(5). EDGE did so before Plaintiff filed the Amended Complaint; however, EDGE is no longer a named Defendant in the Amended Complaint. Additionally, Plaintiff's Response specifically states that he wishes “to proceed with only Defendants listed in the amended Complaint.” Thus in accordance with the Amended Complaint and Plaintiff's explicit...