The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DOUGLAS MARTINEZ, )
)
Plaintiff, )
)
v. ) No. 2:18-cv-02766-JTF-dkv
)
TENNESSEE BOARD OF REGENTS, )
TRACY HALL, )
JACQUELINE FAULKNER, )
LEZLY WEBB, PHOENIX WORTHY, )
and TONY PARKER, )
)
Defendants. )
)
______________________________________________________________________________
ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND
RECOMMENDATION AND ORDERING SERVICE OF PROCESS TO ISSUE
______________________________________________________________________________
On November 2, 2018, Plaintiff Douglas Martinez filed a pro se Complaint against the
Defendants alleging violations of 42 U.S.C. § 1983. (ECF No. 1.) The motion was referred to
the Chief United States Magistrate Judge for management of all pretrial matters pursuant to 28
U.S.C. § 636(b)(1)(A) and West Tenn. L.R. 4.1(b)(1). On November 5, 2018, Martinez was
granted leave to proceed in forma pauperis. (ECF Nos. 2 & 7.) The Chief Magistrate Judge
screened the Complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), recommending that the
Court dismiss with prejudice the case sua sponte with prejudice for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). (ECF No. 8.) On April 1, 2019, Plaintiff filed Objections to the Chief
Magistrate Judge’s Report and Recommendation. (ECF No. 12.) For the reasons below, the
Court Adopts in Part the Chief Magistrate Judge’s Report and Recommendation and Orders
Service of Process by the U.S. Marshal to issue.
I. STANDARD OF REVIEW
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 F. App’x 308, 311 (6th Cir. 2003) and Fed. R. Civ. P. 72(a). When a Magistrate
Judge submits proposed findings of fact and recommendations to the District Judge, either party
may serve and file written objections to such proposed findings and recommendations in
accordance with the rules of court. 28 U.S.C. §§ 636(b)(1)(B)–(C). After reviewing the
evidence, the Court may accept, reject, or modify, in whole or in part, any findings or
recommendations made by a Magistrate Judge. Id. A Court need not review any portion of the
recommendation to which a Plaintiff does not specifically object. Therefore, it may adopt the
findings and rulings of a Magistrate Judge to which a specific objection is not filed. Thomas v.
Arn, 474 U.S. 140, 149–52 (1985). “Pro se litigants . . . are not exempt from the requirements
of the Federal Rules of Civil Procedure.” Payne v. Lucite International, No. 13-2948-STA-tmp,
2014 WL 2826343, at *4 (W.D. Tenn. June 23, 2014) (citing Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989)).
II. STATEMENT OF THE FACTS
The Chief Magistrate Judge’s Report and Recommendation includes proposed findings of
fact that Martinez is a former student at Southwest Community College in Memphis, Tennessee.
Martinez alleges that college officials knowingly and purposefully denied him the right to attend
classes, slandered, harassed, detained and subjected him to cruel and unusual punishment by
removing and banning him from campus, in violation of his due process and civil rights under 42
U.S.C. § 1983. (ECF No. 1, 2–3 ¶ IV & ECF No. 8, 2–3.) Martinez filed objections pursuant to
28 U.S.C. § 636(b)(1)(C), adding that university officials conspired to prosecute and expelled
him from the campus for violating Tenn. Code Ann. § 40-39-211(d).1 Martinez alleges that the
administrators’ actions not only caused him and his roommate personal injuries, but that the
college officials refused his request for an appeal, to wit, a due process violation. (ECF No. 12,
2–3.) Based on his pro se status, Martinez requests leave to amend his original Complaint, filing
the proposed Amended Complaint as an attachment to his Objections. (ECF No. 12, 2 & ECF
No. 12-3). The Objections to the Report and Recommendation do not significantly pertain to the
Chief Magistrate Judge’s proposed findings of fact. As such, those factual findings are fully
adopted by the Court.
III. ANALYSIS
The Chief Magistrate Judge construed Martinez’s federal law claims against the named
college officials Hall, Faulkner, Webb, and Worthy as well as those against Parker, an alleged
employee of the Tennessee Department of Corrections as § 1983 claims based on the alleged
violations of the Fourth, Fifth, Eighth and Fourteenth Amendments. (ECF No. 8-1, 7.) Although
the Chief Magistrate Judge noted that the factual allegations in the initial Complaint were scant
and conclusory, the Chief Magistrate Judge examined the claims against the named parties in
both their official and individual capacities, recommending sua sponte dismissal under Fed. R.
1 The relevant provisions of Tenn. Code Ann. §§ 40-39-211(d)(1) and (d)(2) provide :
Residential and work restrictions –
(d)(1) No sexual offender, as defined in 40-39-202, or violent sexual offender , as defined in 40-39-202,
shall knowingly,
(A) Be upon or remain on the premises of any building or grounds of any public school, private or
parochial school, licensed day care center, other child care facility, public park, playground, recreation
center or public athletic field available for use by the general public in this state when the offender has
reason to believe children under eighteen (18) years of age are present:
. . .
(2) Subsection (d)(1) shall not apply when the offender:
(A) Is a student in attendance at the school;
. . .
See Tenn. Code Ann. §§ Justice 40-39-211(d)(1) & (2).
Civ. P. 12(b)(6). (ECF No. 8-1, 7–14.)
Martinez objects to the legal findings of the Report and Recommendation, asserting that the
Chief Magistrate Judge did not state a legal basis for her decision and that she did not have
jurisdiction to recommend dismissal of the case without the parties’ consent. Martinez also
objects that the PLRA does not apply because he was not and is not a prisoner. He urges that
because sua sponte dismissals are unfavorably viewed, a sua sponte dismissal in this case would
be premature without an opportunity for him to be heard. (ECF No. 12, 3–6.) Included in
Martínez’s Objections is his request to amend the original Complaint, a copy of which is
attached. (ECF No. 12-3.)
First, Martinez objects that the Chief Magistrate Judge failed to provide any legal authority
for her recommendation of dismissal. This objection is simply without merit. As noted above,
the Chief Magistrate Judge considered each of Martinez’s allegations and provided legal
authority and analyses regarding the purported claims, finding no liability under § 1983 for the
state-run entities or their employees for 4th and 5th Amendments violations based on the
insufficient factual allegations. She also explained that the 8th Amendment does not apply as
Martinez was not incarcerated at the time of his expulsion. Accordingly, the Chief Magistrate
Judge found that none of the limited factual allegations plausibly state a claim for relief in this
case. See Fed. Rule Civ. P 12(b)(6); Iqbal, 556 U.S. at 677–79; Twombly, 550 U.S. at 555–57;
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010).
Martinez next objects that the Chief Magistrate Judge did not have jurisdiction to render a
recommendation of dismissal. This argument is also incorrect. Pursuant to 28 U.S.C. §
636(b)(1)(A), a judge may designate a magistrate judge to hear and determine any pretrial matter
pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or quash an indictment or information made by the defendant,
inter alia. Thereafter, the magistrate judge will submit her recommendations to the district court
for de novo review of the report and recommendation and portions of the report and
recommendation to which any timely objections are raised. Cobb v. Fed Ex Exp., Inc., No. 11-
2274-STA-cgc, 2013 WL 3070839, at *1 (W.D. Tenn. June 17, 2013).
Martinez also objects that the PLRA does not apply to his case because he is not a prisoner.
This argument is also incorrect. The district court must still screen the complaint under §
1915(e)(2). Even if a non-prisoner pays the filing fee and/or is represented by counsel, the
complaint must be screened under § 1915(e)(2). The language of § 1915(e)(2) does not
differentiate between cases filed by prisoners and cases filed by non-prisoners. See McGore v.
Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by, Jones v.
Bock, 549 U.S. 199 (2007). “The screening must occur even before process is served or the
individual has had an opportunity to amend the complaint. The moment the complaint is filed, it
is subject to review under § 1915(e)(2).” Id. at 608–09. Accordingly, this objection is also
overruled.
As noted above, Martinez requests leave to amend the complaint based on his pro se status
and to avoid dismissal of the case sua sponte. Pro se complaints are held to a less stringent
standard than those drafted by attorneys. 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). 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)). 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)).
The Court agrees with the Chief Magistrate Judge that the initial Complaint lacks factual
detail surrounding Martinez’s expulsion from Southwest Community College. Martinez names
employees of the college to which he attributes the alleged 4th and 14th Amendment
constitutional violations. (ECF No. 1, 2 ¶ III C.) He goes on to state that these parties under the
direction of the Tennessee Board of Regents and the Tennessee Department of Corrections and
its employee, Tony Parker, knowingly and purposefully violated his constitutional rights of
“freedom of security,” which the Court construes as a 4th Amendment claim against unlawful
searches, seizures and detention. (Id. at III & IV.) Martinez states that Tracy Hall ordered his
removal from classes and banned him from the campus without due process in violation of his
14th Amendment rights. (Id. at IV.) He asserts that Lezly Webb detained him for several hours
and threatened to have him incarcerated while ordering Officer Payne to harass his friend,
ultimately, removing him as student at the college. Martinez also alleges that Phoenix Worthy
deprived him of his property and due process rights in removing him from his classes. (Id. at 3,
IV–VI.)
Within his objections, Martinez requests leave to amend the initial Complaint. (ECF No. 12,
6 & ECF No. 12-3.) The federal rules instruct courts to freely grant leave to amend when justice
so requires. See Fed. R. Civ. P. 15(a). The Chief Magistrate Judge correctly recommends sua
sponte dismissal of all claims in the original Complaint. However, the Court finds that
Martinez’s request for leave to amend should be Granted. In granting leave to amend his
Complaint, the Court is not doing so to allow Plaintiff to avoid sua sponte dismissal, in
contradiction of McGore. See McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997).2
Instead, the Court is granting leave to amend in order to avoid potential injustice in accordance
with Rule 15(a). The Defendants will not be prejudiced by allowing Plaintiff to amend the
Complaint since service of process has not yet been issued. Accordingly, the Court orders
Plaintiff to file the proposed Amended Complaint into the record within seven (7) days of the
date of this Order.
Once the Amended Complaint is filed, the Clerk of Court is directed to deliver a copy of the
summonses issued for the named Defendants along with a copy of the Amended Complaint to
the United States Marshal for service of process pursuant to Fed. R. Civ. P. 4 (c)(3) and Fed. R.
Civ. P. 4(h)(1)(B).
2 Under the Prison Litigation Act, courts have no discretion in permitting a plaintiff to amend a complaint to avoid
a sua sponte dismissal. Benson v. O’Brian, 179 F.3d 1014, 1016 (6th Cir. 1999). If a complaint falls within the
requirements of § 1915(e)(2) when filed, the district court should sua sponte dismiss the complaint. Section 1915A
also provides for such sua sponte dismissals. See McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). As such, a district court may dismiss a
complaint sua sponte for failure to state a claim. Smith v. Boyd, 945 F.2d 1041, 1042–43 (8th Cir.1991).
CONCLUSION
After a de novo review of the Chief Magistrate Judge’s Report and Recommendation and
the Objections thereto, the undersigned Court adopts the Report and Recommendation with
regard to the original Complaint, but Grants Plaintiff Leave to file an Amended Complaint and
Orders service of the Amended Complaint to each of the named Defendants by the U.S. Marshal
as directed.
IT IS SO ORDERED on this 7th day of June, 2019.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE