Tong v. Daly

1

ROBIN W. TONG, Plaintiff, v. GEOFFREY A. DALY, In his personal capacity, Defendant.

No. 2:21-cv-02784-JPM-cgc

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

September 14, 2022

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING IN PART PLAINTIFF PRO SE'S MOTION FOR LEAVE TO AMEND AND GRANTING DEFENDANT'S MOTION TO DISMISS

JON P MCCALLA UNITED STATES DISTRICT JUDGE

Before the Court is the Report and Recommendation of United States Magistrate Judge Charmiane G. Claxton filed on May 20, 2022 (ECF No. 17) with respect to pro se Plaintiff Robin W. Tong's (“Tong”) Motion for Leave to Amend filed on February 22, 2022 (ECF No. 15) and Defendant Geoffrey A. Daly's (“Daly”) Motion to Dismiss, filed on January 7, 2022 (ECF No. 9.) The Magistrate Judge recommends that the Court grant Defendant's Motion to Dismiss and deny Plaintiff's Motion for Leave to Amend. (ECF No. 17 at PageID 236.) Plaintiff filed timely Objections to the Magistrate Judge's Report on June 21 2022.^[1] (ECF No. 22.) Defendant filed a Response to Plaintiff's Objections on July 5, 2022. (ECF No. 23.)

Upon de novo review, the Court ADOPTS the Report and Recommendation of the Magistrate Judge, DENIES IN PART Plaintiff's Motion for Leave to Amend and GRANTS Defendant's Motion to Dismiss.

I. BACKGROUND

Plaintiff alleges that he was pulled over by Defendant Geoffrey Daly, a “Munford municipal police officer.” (ECF No. 2-1 ¶ 13.) Plaintiff “flipped [Sergeant] Daly the bird as [Plaintiff] passed him in traffic.” (Id. at ¶ 16.) Plaintiff characterizes this gesture as a “symbolic representation of [his] political beliefs,” “[p]eacefully...advocating for political change.” (Id. at ¶¶ 18-19.) Plaintiff alleges that Sergeant Daly then began “following” him. (Id. at ¶ 30.) Plaintiff's response was to “continuously flip[] [Defendant] the bird.” (Id.) Plaintiff alleges that Defendant eventually “activated his blue emergency lights” and “subject[ed]” Plaintiff to the traffic stop from which the case arises. (Id. at ¶ 34.)

Plaintiff filed a pro se Complaint Seeking Injunctive and Declaratory Relief for Vindication of Civil Rights in the Chancery Court for Tipton County, Tennessee at Covington on November 12, 2021. (ECF No. 1-1.) Plaintiff filed a pro se First Amended Complaint Seeking Injunctive Relief and Declaratory Relief for the Vindication of Civil Rights in the Chancery Court for Tipton County, Tennessee at Covington on November 29, 2021. (ECF No. 2-1.)

Plaintiff's First Amended Complaint designates eleven claims with each numbered claim enumerating multiple alleged violations of a range of federal and state laws. (Id. at ¶¶ 138-206.) Reviewing the First Amended Complaint as a whole, the Magistrate Judge summarized Plaintiff's allegation as encompassing the following causes of action: “(1) violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution, which are brought pursuant to 42 U.S.C. § 1983 . . .; (2) a civil claim of malicious harassment in violation of the Tennessee Human Rights Act [(“THRA”)], Tennessee Code Annotated § 4-21-701 . . .; (3) violations of Article I, Sections 7 and 19 of the Tennessee Constitution; and, (4) violations of Tennessee criminal law.” (ECF No. 17 at PageID 237.)

On December 16, 2021, Defendant filed a Notice of Removal pursuant to 28 U.S.C. §§ 1441 and 1446. (ECF No. 1). Defendant stated that this action is one in which Plaintiff alleges, inter alia, a cause of action pursuant to 42 U.S.C. § 1983 (“Section 1983”), which affords this Court original jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at ¶ 2.)

On January 7, 2022, Defendant filed his Motion to Dismiss. (ECF No. 9.) Defendant argues that state law claims included in Plaintiff's First Amended Complaint should be dismissed for the following reasons, as summarized by the Magistrate Judge: “(1) Plaintiff fails to state a claim for violations of the THRA because he does not allege that Defendant intentionally intimidated him from freely exercising a constitutional right or that Defendant's actions were motivated by Plaintiff's race, color, religion, ancestry, or national origin; (2) Tennessee law does not recognize private causes of action arising from violations of the Tennessee Constitution; and, (3) Tennessee criminal law does not provide a basis for any private civil actions.” (ECF No. 17 at PageID 238) (citing ECF No. 9.) Defendant alternatively argues that, to the extent that Plaintiff's First Amended Complaint attempts to pursue violations of Tennessee statutes and the Tennessee Constitution pursuant to Section 1983, such claims are not cognizable based upon the manner in which he includes these allegations together within the same designated claims. (ECF No. 9.)

On February 2, 2022, Plaintiff filed his Response to Defendant's Motion to Dismiss. (ECF No. 14.) Plaintiff asserts that his First Amended Complaint properly sets forth a civil claim for malicious harassment under the THRA because it alleges that Defendant's actions were motivated by Defendant's religion. (Id. at ¶¶ 8-9.) The Magistrate Judge summarized Plaintiff's response as follows:

Plaintiff's Response alludes to Defendant's arguments that he may not maintain a private cause of action pursuant to the Tennessee Constitution or Tennessee criminal law and that he may not pursue any such claims pursuant to Section 1983; however, in essence, his arguments continue to assert that he may pursue a claim pursuant to Tennessee Code Annotated § 4-21-701 for the reasons already set forth above . . . [as well as] request[ing] two alternatives rather than dismissal. First, he requests that the Court decline to exercise supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367. Second, he requests that he be afforded leave to amend his First Amended Complaint to correct the errors commingling federal and state law claims that were raised by Defendant in his Motion to Dismiss.

(ECF No. 17 at PageID 238-9) (citations omitted.)

On February 22, 2022, Plaintiff filed his Motion for Leave to Amend his First Amended Complaint. (ECF No. 15). While his Proposed Second Amended Complaint is more factually detailed than his First Amended Complaint, Plaintiff mostly attempts to reorganize his pleading to more clearly differentiate between his federal and state law claims. (See generally Id.). Plaintiff's motion included as an exhibit his Proposed Second Amended Complaint (ECF No. 15-1.) The Proposed Second Amended Complaint continues to assert violations of the Tennessee Constitution and Tennessee criminal statutes within Plaintiff's THRA claim. (Id. at ¶¶ 205-239.) Defendant does not oppose Plaintiff's Motion for Leave to Amend. (ECF No. 16.)

The Magistrate Judge's Report and Recommendation was filed on May 20, 2022. (ECF No. 17.) Plaintiff Pro Se's Objections and Memorandum of Law was filed on June 21, 2022. (ECF No. 22.) Defendant's Response to Plaintiff's Objections to Magistrate Judge Claxton's Report and Recommendation on Plaintiff's Motion to Amend Complaint and Defendant's Motion to Dismiss First Amended Complaint was filed on July 5, 2022. (ECF No. 23.)

II. STANDARD OF REVIEW

“Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b) advisory committee notes.

When a timely objection has been filed, “[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). The portions of a magistrate judge's recommendation as to which no specific objections were filed are reviewed for clear error. See Fed.R.Civ.P. 72(b) advisory committee notes; Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (noting that when a party makes a general objection, “[t]he district court's attention is not focused on any specific issues for review, thereby making the initial reference to the magistrate useless”). “A general objection to the entirety of the magistrate's report has the same effects as would a failure to object.” Id. at 509. Moreover, the “failure to properly file objections constitutes a waiver of appeal.” See id. at 508 (citing United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).

III. PLAINTIFF'S MOTION FOR LEAVE TO AMEND

Plaintiff asserts in his Objection that the Magistrate Judge erred in her “threshold determination [] that the First Amended Complaint was the operative pleading-without providing any dispositive examination whatsoever of the Proposed Second Amended Complaint's four (4) federal 42 U.S.C. § 1983 claims or . . . one (1) THRA § 4-21-701 state-law claim.” (ECF No. 22 ¶ 60.)

Defendant responds that the Magistrate Judge “did analyze the allegations of the Proposed Second Amended Complaint in light of the Defendant's Motion to Dismiss and found that the proposed allegations would not survive the already-filed Motion to Dismiss.” (ECF No. 23 at PageID 289) (citing ECF No. 17 at PageID 243 n.4, 244 n.5.) Defendant also contends that “Plaintiff's focus on the § 1983 claims based on alleged violations of his federal constitutional rights is misplaced[,] as those claims were not the subject of Defendant's Motion to Dismiss.” (Id. at PageID 289.)

A. Legal Standard - Amended Complaint

The Federal Rules of Civil Procedure provide that a party “may amend its pleading only with the opposing party's written consent or the court's leave,” which should be “freely give[n] when justice so requires.”...