Hollie Annette v. Haslam

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HOLLIE ANNETTE, )

)

Plaintiff, ) NO. 3:18-cv-1299

) JUDGE RICHARDSON

v. )

)

WILLIAM EDWARD HASLAM, et al., )

)

Defendants. )

ORDER AND MEMORANDUM OPINION

Pending before the Court are five Motions for Review (Doc. Nos. 158, 169, 174, 186, 189)

of the Magistrate Judge’s Orders. Also pending before the Court is a Report and Recommendation

of the Magistrate Judge (Doc. No. 185), to which Plaintiff has filed Objections (Doc. No. 190), to

which Defendants Tatum and Gwin have in turn filed a response (Doc. No. 195).

BACKGROUND

Plaintiff filed this action pro se in the U.S. District Court for the District of Columbia, and

that court transferred it here (Doc. No. 1).1 Plaintiff alleges claims against 23 named and two “John

Doe” Defendants. Her Complaint alleges the “theft and holding hostage” of her sons and daughter

and “ongoing and continuing malicious prosecution” against her. Defendants are the State of

Tennessee,2 the City of Lebanon, the City of Franklin, the City of Dickson, Benton County, the

1 In that regard, Plaintiff should note that the caption of this case on documents filed in this Court

should no longer indicate the D.C. District Court but, rather, should reflect that the matter is before

the United States District Court for the Middle District of Tennessee.

2 Plaintiff argues that the State of Tennessee is a privately held corporation. It is not. The State of

Tennessee is a governmental entity, admitted to the Union as the 16th state on June 1, 1796.

Tennessee Department of Children’s Services (“DCS”), and various state and local officials.

Plaintiff seeks recompense for wrongdoings she alleges she and her children have suffered at the

hands of Defendants and asks for declaratory judgment, injunctive relief, and damages for alleged

violations of state and federal constitutional rights and malicious prosecution.

MOTIONS FOR REVIEW

Pursuant to Fed. R. Civ. P. 72(a), the Court may modify or set aside any part of a Magistrate

Judge’s Order that is clearly erroneous or is contrary to law. The “clearly erroneous” standard

applies only to factual findings, while legal conclusions are reviewed under the “contrary to law”

standard. Norfolk Cty Retirement Sys. v. Community Health Sys., Inc., No. 3:11-cv-00433, 2019

WL 3003647, at * 1 (M.D. Tenn. Apr. 19, 2019); Equal Emp’t Opportunity Comm'n v. Burlington

Northern & Santa Fe Ry. Co., 621 F. Supp. 2d 603, 605 (W.D. Tenn. 2009). This standard is

deferential, and mere disagreement with the Magistrate Judge and/or an assertion that the

Magistrate Judge should have ruled differently does not rise to a clear error of fact or a decision

contrary to law. See Shabazz v. Schofield, No. 3:13-CV-00091, 2014 WL 6605504, at *1 (M.D.

Tenn. Nov. 19, 2014) (“The Court is not empowered to reverse the magistrate judge’s finding

simply because this Court would have decided the issue differently.”).

ANALYSIS

Docket No. 163

Plaintiff asks the Court to review the Order of the Magistrate Judge dated June 28, 2019

(Doc. No. 161). That Order denied Plaintiff’s Notice (Doc. No. 130), which was construed as a

motion for recusal of Magistrate Judge Holmes. Under 28 U.S.C. § 144, whenever a party to any

proceeding in a district court makes and files a timely and sufficient affidavit that the judge before

whom the matter is pending has a personal bias or prejudice either against him or in favor of any

adverse party, such judge shall proceed no further therein, but another judge shall be assigned to

hear such proceeding. Plaintiff did not file such an affidavit.

Under 28 U.S.C. § 455, a judge shall disqualify herself in any proceeding in which her

impartiality might reasonably be questioned or in five other specific situations.3 The Magistrate

Judge’s service with or appearances before the juvenile court and her involvement on a Tennessee

Bar Commission, matters asserted by Plaintiff as grounds for disqualification, were years ago. The

Magistrate Judge refuted Plaintiff’s suggestion that she (Judge Holmes) has worked with one or

more of the Defendants or has been paid monetary compensation by one or more of the Defendants,

and the Court sees no basis to credit Plaintiff’s suggestion. Plaintiff has offered nothing more than

conclusory allegations and suppositions to argue that the Magistrate Judge is biased or has a

conflict of interest. Plaintiff has not presented a sufficient affidavit or other factual basis for

concluding that the impartiality of the Magistrate Judge might reasonably be questioned.

Upon consideration of Plaintiff’s Motion for Review (Doc. No. 163), the Court finds that

the Order of the Magistrate Judge (Doc. No. 161) is neither clearly erroneous nor contrary to law

and that Order is affirmed.

3 Those additional situations are: (1) where the judge has a personal bias or prejudice concerning

a party or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) where

the judge, in private practice, had some involvement with the matter or worked with another lawyer

who had such involvement; (3) where the judge served in governmental employment as counsel,

adviser, or a material witness concerning the proceeding; (4) where the judge knows that she or

her family has a financial interest in the subject matter of the proceeding; or (5) where the judge

or a member of her family is a party (including officer, director or trustee of a party), a lawyer, has

an interest that is likely to be affected by, or is likely to be a material witness to the proceeding.

28 U.S.C. § 455(b).

Docket No. 164

Plaintiff also asks the Court to review the Magistrate Judge’s Order of June 28, 2019 (Doc.

No. 158), in which she granted the State Defendants’ motion to amend their motion to dismiss and

denied Plaintiff’s motion to strike the State Defendants’ defenses. The Magistrate Judge held that

Rule 12(f) permits a court to strike only material that is contained in pleadings, and the motion to

dismiss is not a pleading. (Doc. No. 158 at 1).4 Plaintiff argues that the motion to dismiss is a

“pleading” because it includes affirmative defenses. Plaintiff’s argument has no merit.

Fed. R. Civ. P. 7(a) sets forth the specific “pleadings” that are allowed, and a motion to

dismiss is not listed. Plaintiff has not pointed to any rule that prohibits parties from asserting

affirmative defenses in a motion to dismiss. Indeed, Fed. R. Civ. P. 12(b) provides that a motion

asserting affirmative defenses must be made before pleading if a responsive pleading is allowed,

and no defense is waived by joining it with one or more other defenses in a responsive pleading or

motion. In short, a motion to dismiss is distinguishable from a pleading and is not converted into

a pleading by including affirmative defenses.

Plaintiff claims that the State Defendants’ Motion to Dismiss is untimely because it was

not filed within 21 days after service of process. That argument is rejected because, as discussed

below in connection with Plaintiff’s Motion for Review found at Doc. No. 186, the Magistrate

Judge properly extended the 21-day deadline. Finally, arguing the validity of her claims, Plaintiff

contends that the Defendants’ motion to dismiss has no merit. The proper place for such assertions

is in response to the motion to dismiss or a Report and Recommendation recommending the

granting of the Motion to Dismiss, not on a Motion for Review.

4 In her Order (Doc. No. 158), the Magistrate Judge also granted Plaintiff’s motion for extension

of time (Doc. No. 136), but Plaintiff does not seek review of that ruling.

Upon consideration of Plaintiff’s Motion for Review (Doc. No. 164), the Court finds that

the Magistrate Judge’s Order (Doc. No. 158) is neither clearly erroneous nor contrary to law and

that Order is affirmed.

Docket No. 166

Plaintiff asks the Court to review the Magistrate Judge’s Order of July 1, 2019 (Doc. No.

162), in which she denied Plaintiff’s motion to disqualify Tennessee Assistant Attorney General

Matt D. Cloutier and the Tennessee Attorney General’s Office (together “Attorney General”) from

representing several Defendants in this case. Plaintiff argues that the Attorney General is not

authorized to represent “private corporations such as Children’s Services and private individuals.”

DCS is not a private corporation. It is a state agency. Tenn. Code Ann. §§ 37-5-101 & 102.

Moreover, Tennessee law provides that the Attorney General is charged with the duty of the “trial

and direction of all civil litigated matters and administrative proceedings in which the state or any

officer, department, agency, board, commission or instrumentality of the state may be interested.”

Tenn. Code Ann. § 8-6-109(b)(1). As Plaintiff herself notes (Doc. No. 166-1 at 2), the Attorney

General shall represent all offices, departments, agencies, boards, commissions or

instrumentalities of the state. Tenn. Code Ann. § 8-6-301(a).

In addition, when a civil action for damages is brought against a state employee for any

acts or omissions of the state employee within the scope of that employee’s employment (except

for willful, malicious, or criminal acts or acts done for personal gain5), the Attorney General has

the discretion to provide representation to the employee. Tenn. Code Ann. § 8-42-103(a).

5 Although Plaintiff alleges acts by state employee Defendants that might fall within this exception,

these allegations have not been substantiated so as to trigger the exception.

Plaintiff’s argument that the Attorney General has no authority to represent the Department of

Children’s Services or individual state employees is entirely without merit.

Plaintiff also contends that the Attorney General has failed to perform his duty by allowing

non-attorneys, Defendants Bradley and Reed, to file petitions as authorized representatives of

DCS. Plaintiff argues that the Attorney General has thus “aided and defended the unauthorized

practice of law.” In objecting to the Magistrate Judge’s Order, Plaintiff cites no authority or factual

basis for this assertion, but the Court notes that DCS is permitted to file a petition in state court to

terminate parental rights. Tenn. Code Ann. § 36-1-113(a). In addition, DCS is authorized, among

other things, to make investigations and furnish reports to the Juvenile Court. Tenn. Code Ann.

§ 37-1-128. Plaintiff provides no basis to conclude that Defendants Bradley and Reed cannot carry

out these authorized actions of DCS on DCS’s behalf or that their so doing constitutes the

unauthorized practice of law.

Plaintiff claims that it is a conflict of interest for the Attorney General to represent

Defendant Bonnyman herein, because he represented Bonnyman in another case filed by Plaintiff.

There is (to say the least) no per se conflict of interest in representing the same party in more than

one action, and there is no allegation that Bonnyman’s interests in these two cases are in conflict.

There conceivably could be a conflict if the Attorney General had somehow represented Plaintiff

in a prior action, but that is not the situation here.

Next, Plaintiff asserts that Defendants have committed criminal acts against her and that

the Attorney General’s continued representation of those Defendants, therefore, is not in the best

interest of his clients and the State of Tennessee. However, as noted, there has been no

determination that the State Defendants have committed criminal acts. Plaintiff has cited no

authority to support an allegation that counsel may be disqualified when a plaintiff merely asserts

that defense counsel’s representation is not in the best interest of the defendants or the State of

Tennessee, and the Court knows of no such authority. Finally, Plaintiff argues that the Attorney

General has “shown the appearance of professional impropriety” by “setting the stage” (whatever

that means) to misrepresent her complaint in his motion to dismiss. There is no reason to disqualify

an attorney simply for defending his clients.

Upon consideration of Plaintiff’s Motion for Review (Doc. No. 166), the Court finds that

the Order of the Magistrate Judge (Doc. No. 162) is neither clearly erroneous nor contrary to law,

and that Order is affirmed.

Docket No. 186

Plaintiff challenges the Order of the Magistrate Judge dated July 19, 2019 (Doc. No. 168),

in which she ordered Defendants Tatum and Gwin to file an appropriate motion with

accompanying memorandum of law seeking appropriate leave under Fed. R. Civ. P. 6(b)(1)(B) to

excuse the untimely filing of their motion to dismiss. Plaintiff contends that the Magistrate Judge,

inappropriately and showing favoritism, gave Defendants legal advice about how to cure their late

filing. Plaintiff claims that, without the Magistrate Judge’s “advice,” the Court would have had to

deny Defendants’ motion to dismiss as untimely.

Defendants challenge Plaintiff’s objection as untimely, having been filed more than 14

days after service of the subject Order, which was filed on July 19, 2019. Plaintiff has admitted

that this untimeliness argument is correct.

In any event, the Court need not rely on the untimeliness of Plaintiff’s objections. The

Order of the Magistrate Judge is neither clearly erroneous nor contrary to law. The Magistrate

Judge ordered Defendants to take certain actions before she would allow their Motion to Dismiss

to be considered on the merits. Her Order was clearly within the discretion and authority of a

Magistrate Judge. Extensions of time may be granted for good cause shown if the party failed to

act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B).

The Magistrate Judge is permitted to effectively order parties to demonstrate (if they can)

good cause for a late filing in order to determine whether to allow the filing. As indicated below,

having considered these Defendants’ demonstrations, the Magistrate Judge found that these

Defendants had shown good cause for the untimeliness of their filing. (Doc. No. 184).

Accordingly, upon consideration of Plaintiff’s Objection (which the Court has treated as a

motion for review), the Order of the Magistrate Judge (Doc. No. 168), being neither clearly

erroneous nor contrary to law, is affirmed.

Docket No. 189

In this Motion for Review, Plaintiff objects to the Magistrate Judge’s Order finding

Defendants’ Motion to Dismiss to be timely. (Doc. No. 184). The Magistrate Judge granted

Defendants’ motion to deem timely their motion to dismiss, noting that there was at least a

reasonable argument that the Defendants were not properly served and the delay did not involve

bad faith, lack of diligence, or an intent on the part of Defendants to hinder or thwart these

proceedings. As noted above, extensions of time may be granted for good cause shown if the party

failed to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B).

Plaintiff argues that service was properly completed and Defendants, therefore, waived the

right to defend against her untimeliness claim. She asserts that Defendants have not shown

excusable neglect and that Defendants failed to give her notice that they were claiming improper

service. The Magistrate Judge found at least an issue about service of process, making Defendants’

delay reasonable.6 Plaintiff’s arguments are not persuasive. As explained above, the Court’s

standard of review on a Motion for Review is deferential, and even an assertion that the Magistrate

Judge could or even arguably should have ruled differently does not suggest a clear error of fact

or a decision contrary to law. The Magistrate Judge’s determination of excusable neglect will not

be disturbed.

Upon consideration of Plaintiff’s Motion for Review (Doc. No. 189), the Court finds that

the Order of the Magistrate Judge (Doc. No. 184) is neither clearly erroneous nor contrary to law

and therefore the Magistrate Judge’s Order is affirmed.

REPORT AND RECOMMENDATION

When a magistrate judge issues a report and recommendation regarding a dispositive

pretrial matter, the district court must review de novo any portion of the report and

recommendation to which a proper objection is made. Fed. R. Civ. P. 72(b)(3). The district judge

may accept, reject, or modify the recommended disposition, review further evidence, or return the

matter to the magistrate judge with instructions. Id. Such objections must state with particularity

the specific portions of the Magistrate Judge’s report or recommendations to which an objection

is made. Local Rule 72.02(a).

6 Plaintiff argues that Defendants have failed to show that their failure to file a timely motion was

due to circumstances beyond their control. Excusable neglect under Rule 6 is not limited strictly

to omissions caused by circumstances beyond the control of the movant. Matter of Smithland

Towing & Constr., LLC, Civil Action No. 5:18-cv-113, 2019 WL 2517583, at * 1 (W.D. Ky. June

17, 2019). Excusable neglect under Rule 6(b) is a somewhat elastic concept. Id. (citing Pioneer

Inv. Serv. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392 (1993)). But the very term—obviously

suggesting neglect (albeit neglect that is excusable)—indicates that it refers to a situation where

the party was in some sense at fault, rather than absolved of all fault because it fell prey to

circumstances beyond its control.

The Report and Recommendation at issue (Doc. No. 185) considers Defendants Tatum and

Gwin’s Motion to Dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) and referenced above. The

Magistrate Judge recommends that that Motion to Dismiss (Doc. No. 17) be granted. Most of

Plaintiff’s objections7 are not objections to the specific recommendation that the claims against

these two Defendants be dismissed. Rather, Plaintiff mostly objects to things like the Magistrate

Judge’s choice of words and characterizations and names of the parties.

For example, Plaintiff states, “I object to filing this lawsuit pro se because there are more

than one definitions to pro se in the black’s law dictionary” and “I object to ‘she paid the filing

fee’ on page 1 of document 185 because I did not pay the filing fee my mother did.”8 (Doc. No.

190). Neither of these objections has anything to do with the substantive findings of the Report

and Recommendation.

Plaintiff objects to the Magistrate Judge calling “defendant Children’s Service” the

“Tennessee Department of Children’s Services,” arguing the two are not one and the same. The

Tennessee Department of Children’s Services is the name of the state agency against which

Plaintiff has asserted her allegations, and she has provided no authority suggesting otherwise. See

Tenn. Code Ann. § 57-5-101. Plaintiff objects to calling Defendant William Edward Haslam the

former Tennessee Governor, arguing he was Governor of the State of Tennessee. This protestation

is ridiculous. Similarly, Plaintiff objects to calling the Defendant cities and counties by their proper

names, asserting that they are privately held parent companies and should be addressed as “Benton,

County of,” “Lebanon, City of,” etc. This objection is absurd. Presumably, Plaintiff filed this suit

7 Plaintiff first objects for the reasons stated in her Motions for Review, which have been ruled on

above, and the Court will not address again here.

8 Plaintiff also objects to having to pay a filing fee at all, but that issue is not before the Court at

this time.

because she seeks what she considers substantive justice. She therefore should not seek to, and

will not, distract the Court from its review of substantive issues with these semantic games.

Plaintiff objects to the Magistrate Judge’s characterizations and summary of facts from the

Complaint. The Magistrate Judge obviously did not quote the Complaint verbatim but rather

paraphrased it in pertinent part. To the extent her summary is inconsistent with the substantive

allegations of the Complaint, which the Court does not find, the language of the Complaint

controls. The Magistrate Judge has not substantially misrepresented Plaintiff’s allegations.

Plaintiff makes other arguments that have nothing to do with Defendants Tatum and Gwin or the

substantive recommendations of the Magistrate Judge and are, therefore, irrelevant to this Order.

Plaintiff states that she has never alleged any violation of or claimed constitutional rights.

Rather, she urges, she has alleged that Defendants have violated certain provisions of the United

States and Tennessee Constitutions. The Court cannot see the difference. Plaintiff also contends

that the substance, as described by the Magistrate Judge, of the Motion to Dismiss is hearsay and

not admissible. This argument has no merit. The allegations and arguments of a motion to dismiss

are simply that, allegations and arguments; evidentiary concepts such as hearsay and admissibility

are inapplicable to arguments in a brief.

Plaintiff objects to the standard of review followed by the Magistrate Judge. That standard

is the law concerning motions to dismiss brought under Rule 12(b)(6), and both the Magistrate

Judge and the undersigned must follow it.9

9 For purposes of a motion to dismiss, the Court must take all the factual allegations in the

complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should

Plaintiff argues that there has been no testimony that the acts of these two Defendants are

limited to June 4, 2012 and August 20, 2012. The Report and Recommendation is based upon the

allegations of Plaintiff’s Complaint, not testimony. A motion to dismiss requires a review of the

complaint to see whether it states claims for which relief may be granted; whether—and if so,

what—testimony has been adduced has nothing to do with it.

Plaintiff objects to the Magistrate Judge’s findings concerning the statutes of limitations

and argues that the statutes of limitations have not yet begun to run. A statute of limitations begins

to run when a plaintiff knows or has reason to know of the injury which is the basis of his action.

Am. Premier Underwriters, Inc. v. Nat’l R.R. Passenger Corp., 839 F.3d 458, 461 (6th Cir. 2016).

The statute of limitations for Section 1983 constitutional claims is the state statute of

limitations applicable to personal injury actions under the law of the state in which the alleged

Section 1983 claim arises. Haley v. Clarksville-Montgomery Cty. School Syst., 353 F. Supp. 3d

724, 730 (M.D. Tenn. 2018). In Tennessee, that statute prescribes a limitations period of one year.

Tenn. Code Ann. § 28-3-104(a)(3). Thus, to the extent Plaintiff claims the alleged actions by

Tatum and Gwin were violations of the U.S. Constitution,10 the time for filing a claim based upon

assume their veracity and then determine whether they plausibly give rise to an entitlement to

relief. Id. at 1950. A legal conclusion, including one couched as a factual allegation, need not be

accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of

action sufficient. Id.; Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010),

cited in Abriq v. Hall, 295 F. Supp. 3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations

that are merely consistent with the defendant’s liability do not satisfy the claimant’s burden, as

mere consistency does not establish plausibility of entitlement to relief even if it supports the

possibility of relief. Iqbal, 556 U.S. at 678.

10 Plaintiff also alleges, in her Objections, that the Magistrate’s assumption that Plaintiff brought

her claims under 42 U.S.C. § 1983 is incorrect. (Doc. No. 190 at 17-18). Plaintiff fails to realize

that this assumption inures to her benefit. To the extent Plaintiff attempts to allege violations of

the U.S. Constitution, those claims would have to be brought pursuant to 42 U.S.C. § 1983.The

statutory enactment in Section 1983 is the exclusive remedy for alleged federal constitutional

violations. Wynn v. Morgan, 861 F. Supp. 622, 630 (E.D. Tenn. 1994); Roberson v. City of

those actions is one year from the date when Plaintiff knew or had reason to know of the injury

which is the basis of her action. Am. Premier Underwriters, 839 F.3d at 461.

As for any breach-of-fiduciary duty claims (pertaining to officers and directors), the statute

prescribes a limitations period of one year. Tenn. Code Ann. § 48-18-601. The Court is not aware

of a cause of action for breach of fiduciary duty to the public, but assuming such a claim exists, it

likely also would have a one-year limitations period, and Plaintiff has not shown otherwise. With

regard to Plaintiff’s claims against Gwin for alleged unlawful incarceration, false arrest, and

malicious prosecution, those personal tort claims fall under the one-year limitations period set forth

in Tenn. Code Ann. § 28-3-104(a).11 The Court will consider the allegations of the Complaint

against these two Defendants in relation to the statute of limitations issue.

The Complaint alleges that in January of 2012, Defendant Tatum acted as an administrative

hearing officer and refused to act as a judge. (Id. at ¶ 56). It alleges that on March 15, 2012, Tatum

issued an administrative order wrongfully “rewarding” [sic] Defendants Robbins and DCS custody

of Plaintiff’s children. (Id. at ¶ 84). The Complaint further alleges that on June 4, 2012, Defendant

Tatum appointed an attorney for Plaintiff over her objections. (Id. at ¶¶ 123-125).

The Complaint also asserts that, on July 13, 2012, Defendant Gwin had Plaintiff arrested

with no warrant or probable cause and appointed an attorney for her without her knowledge in an

administrative hearing. (Doc. No. 1 at ¶¶ 126-131). The Complaint further alleges that on August

Goldboro, 564 F. Supp. 2d 526, 529 (E.D. N.C. 2008) (Section 1983 provides the exclusive federal

damages remedy for violation of federally-guaranteed rights when suit is brought against a state

actor). Therefore, if, as she claims. Plaintiff is not bringing her U.S. constitutional claims pursuant

to Section 1983, their dismissal is appropriate for that reason as well.

11 Although the Report and Recommendation references fraud, the undersigned does not read the

Complaint as setting forth a claim for fraud.

20, 2012, Defendant Gwin again had her arrested with no warrant or probable cause and had an

attorney represent her without her knowledge. (Id. at ¶¶ 131-136).

In the Eighth Cause of Action, Plaintiff contends that Defendant Tatum colluded with

another Defendant on March 13, 2012, to have Plaintiff arrested without a warrant and to

maliciously prosecute her. (Doc. No. 1 at p. 42). In her Eighteenth Cause of Action, Plaintiff

alleges that Defendant Tatum’s actions violated the Tennessee12 and United States Constitutions

and breached his fiduciary duty to the public. (Id. at p. 54), Further, in her Nineteenth Cause of

Action, Plaintiff alleges that Defendant Gwin’s actions violated the Tennessee and United States

Constitutions; amounted to unlawful incarceration, false arrest, and malicious prosecution; and

breached his fiduciary duty to the public. (Id. at 54-55).

As to the movants, Tatum and Gwin, the Complaint’s allegations based upon these alleged

actions or inactions are time-barred. Plaintiff’s Complaint, filed August 29, 2018, was more than

six years after the alleged actions taken by Tatum and Gwin in 2012.

Plaintiff argues that the evidence shows that the actions of these two Defendants were not

isolated occurrences but rather were habits or routine practices. Again, the “evidence” is not before

the Court on this motion; the Court looks instead to the allegations of the Complaint. When

considering a motion to dismiss based on a statute of limitations, the Court must decide whether it

is apparent from the face of the complaint that the deadline for bringing the claim has passed.

Vanderbilt Univ. v. Scholastic, Inc., 382 F. Supp. 3d 734, 761 (M.D. Tenn. 2019). As explained

12 To the extent Plaintiff claims the actions of Tatum and Gwin were violations of the Tennessee

Constitution, those claims must be dismissed because, as the Magistrate Judge found, there is no

private right of action under the Tennessee Constitution. Siler v. Scott, No. E2017-01112, 2019

WL 2306932, at * 11, n. 2 (Tenn. Ct. App. May 30, 2019); Irons v. City of Bolivar, 897 F. Supp.

2d 665, 669 (W.D. Tenn. 2012).

above, the time for filing a claim began to run when Plaintiff knew or had reason to know of the

injuries that are the basis of her claims against these two Defendants. Am. Premier Underwriters,

839 F.3d at 461.

Plaintiff alleges that Tatum acted as an administrative hearing officer, “reward[ed]” [sic]

Robbins and DCS custody of her children, and appointed an attorney for her over her objections,

all in 2012. Obviously, her objections were known at the time. Plaintiff also alleges that Gwin had

her arrested twice, without probable cause or a warrant, both in 2012. She had to know she had

been arrested at that time. Plaintiff also contends that Gwin appointed an attorney to represent her

in 2012. Again, she would have known at the hearing if an attorney were representing her. The

Court finds that Plaintiff knew or should have known about her alleged claims against Defendants

Tatum and Gwin in 2012, outside the limitations periods prescribed by the applicable statutes of

limitations.

Plaintiff also contends that her damages are ongoing and continuous and the statutes of

limitations therefore have not begun to run. The accrual date for a cause of action does not change,

however, as a result of continuing consequential damages. Kwas v. Intergraph Gov’t Solutions,

15-cv-5897, 2016 WL 11481724, at * 4 (E.D. N.Y. June 23, 2016). Plaintiff asserts in conclusory

fashion that Tatum and Gwin failed and continue to fail to prevent the unlawful actions, but there

are no factual allegations indicating that Tatum and Gwin have had a part in any alleged

misconduct since 2012 or any obligation to take any action since then.

Finally, Plaintiff objects to the Magistrate Judge’s alternative recommendation that

Plaintiff’s claims against Defendants Tatum and Gwin be deemed barred by absolute judicial

immunity. The Court takes judicial notice of the fact that (as claimed by Defendants, see Doc No.

18 at 1), Tatum and Gwin each was, at all relevant times, both a Wilson County General Sessions

Judge and a Juvenile Court Judge, although Plaintiff claims they were administrative law judges.13

Judicial officers are absolutely immune from civil suits brought against them based upon their

judicial actions. Leech v. DeWeese, 689 F.3d 538, 542 (6th Cir. 2012) (“State judges enjoy absolute

immunity from liability under 42 U.S.C. § 1983.”). In their positions as either judges or

administrative law judges, they are protected by judicial immunity. See Dixon v. Clem, 492 F.3d

665, 674 (6th Cir. 2007) and Bright v. Gallia Cty, Ohio, 753 F.3d 639, 648-49 (6th Cir. 2014).

Plaintiff argues that the actions by Tatum and Gwin were not judicial actions or taken in a

judicial capacity.14 She argues that these two Defendants acted absent jurisdiction because

contested cases such as hers are to be conducted by administrative hearing officers pursuant to the

Tennessee Uniform Administrative Procedures Act, not in Juvenile Court. There is no factual or

legal support for this assertion. Plaintiff’s Complaint and its allegations against these two

Defendants pertain to custody and treatment of her children, matters within the jurisdiction of the

Wilson County Juvenile Court over which both Gwin and Tatum were judges. See Tenn. Code

Ann. § 37-1-101, et seq.

In short, upon de novo review, the undersigned finds the objections to the Report and

Recommendation without merit. Defendant Tatum and Gwin’s Motion to Dismiss will be granted

as (and for the reasons) recommended by the Magistrate Judge.

CONCLUSION

Accordingly, the Orders of the Magistrate Judge (Doc. Nos. 161, 158, 162, 168, 184) are

AFFIRMED. In addition, Plaintiff’s Objections are overruled, and the Report and

13 Plaintiff also refers to Tatum and Gwin as “contractors”—a reference which she does not explain

and which makes no sense to the Court.

14 Judicial immunity exists even where a judge acts corruptly or with malice. Leech, 689 F.3d at

542.

Recommendation of the Magistrate Judge is ADOPTED and APPROVED. Accordingly, the

Motion to Dismiss of Defendants Tatum and Gwin (Doc. No. 17) is GRANTED, and Plaintiffs

claims against Tatum and Gwin are DISMISSED.

IT IS SO ORDERED.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE

17