The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
NEDRA HASTINGS, on her own behalf and )
on behalf of her minor child, N.H., )
)
Plaintiffs,
)
No. 2:17-cv-02687-SHL-cgc
v. )
)
SHELBY COUNTY GOVERNMENT et al.,
)
Defendants. )
ORDER ADOPTING REPORT AND RECOMMENDATIONS AND
DISMISSING COMPLAINT
Before the Court is Magistrate Judge Charmiane G. Claxton’s (“Magistrate Judge”)
Report and Recommendations (“R&R”), filed April 22, 2019, (ECF No. 18), and Ms. Hastings’s
Objections thereto, filed May 6, 2019, which the Court also construes as, at least in part, a
motion for leave to amend, (ECF No. 19). For the following reasons, the Court DENIES the
objections and leave to amend and ADOPTS the R&R. Accordingly, Ms. Hastings’s Complaint
is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be
granted. In addition, the Court CERTIFIES that an appeal would not be taken in good faith and
DENIES leave to appeal in forma pauperis.
A magistrate judge may submit to a judge of the court recommendations for the
determination of certain pretrial matters. 28 U.S.C. §§ 636(b)(1)(A)–(B). “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); see
also 28 U.S.C. § 636(b)(1). A district court reviews de novo only those proposed findings of fact
or conclusions of law to which a party specifically objects. Fed. R. Civ. P. 72(b)(2); see also
Fed. R. Civ. P. 72(b)(3). After reviewing objections, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations” of the magistrate judge. 28
U.S.C. § 636(b)(1)(C). “A general objection that does not identify specific issues from the
magistrate’s report,” on the other hand, “is not permitted because it renders the recommendations
of the magistrate useless, duplicates the efforts of the magistrate, and wastes judicial economy.”
Johnson v. Brown, No. 13-242-GFVT, 2016 WL 4261761, at *1 (E.D. Ky. Aug. 12, 2016)
(citing Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Ms. Hastings filed her Complaint and First Amended Complaint, respectively on
September 15, and October 16, 2017. (ECF Nos. 1, 6.) In an R&R dated October 23, 2018, the
Magistrate Judge recommended dismissal of the First Amended Complaint. (ECF No. 9.) On
January 24, 2019, the Court adopted in part and modified in part that R&R, agreeing with the
Magistrate Judge that Ms. Hastings’s 125-page, 800-plus paragraph First Amended Complaint,
purporting to sue 48 discrete Defendants, failed to state a claim upon which relief may be
granted, but allowing Ms. Hastings to amend her pleading. (ECF No. 11.) On March 14, 2019,
Ms. Hastings filed a 47-page, 133-paragraph Second Amended Complaint, purporting to sue 16
discrete Defendants, and a two-page Appendix organizing her claims by party. (ECF Nos. 14,
16.)
The R&R presently before the Court recommends dismissal of all claims in the Second
Amended Complaint, with prejudice, for several reasons. As an initial matter, the Magistrate
Judge found that, despite Ms. Hastings’s attempt to organize her claims in an Appendix, “[i]t is
unclear from the Second Amended Complaint specifically what law or laws each defendant is
alleged to have violated and what factual allegations support those claims. . . . There is no simple
way to properly ascertain the factual basis for each as to each defendant.” (ECF No. 18 at
PageID 282–83.) The Magistrate Judge concluded that the Second Amended Complaint
amounts to “a no less rambling document than the Amended Complaint” with a “largely
conclusory” narrative. (Id. at PageID 280, 283.)
Alternatively, the Magistrate Judge found that Ms. Hastings’s state-law tort claims and
federal civil-rights claims are time-barred by a one-year statute of limitations because “the acts
complained of generally occurred between June 2014 and September 2016,” “[i]n none of the
referenced [state tort counts] does Plaintiff allege acts that occurred on or after September 15,
2016,” and “[i]n none of the [federal civil rights counts] does Plaintiff allege acts . . . that
occurred on or after September 15, 2016.” (Id. at PageID 233–85.) Because Ms. Hastings filed
the original Complaint on September 15, 2017, the acts at issue must have occurred after
September 15, 2016, to be within the limitations period. (See id. at PageID 284.)
Finally, the Magistrate Judge found that Ms. Hastings’s claims for “fraudulent
investigation,” “abuse of process,” “interference with attorney-client contract,” “deficient
representation” and “failure to exercise discretionary function” are not “grounded in any
statutory or common law cause of action.” (Id. at PageID 286.)
Having found several bases for dismissal of Ms. Hastings’s claims, the R&R also
recommends certification that an appeal would not be taken in good faith and denial of leave to
appeal in forma pauperis. (Id.)
Ms. Hastings disagrees, and filed objections expressing so. First, in her objections, she
argues, for the first time in the nearly two years that this action has been pending, that “wrongful
acts continued as late as February 2018.” (ECF No. 19 at PageID 288.) Otherwise, at most, she
gainsays the R&R, contending that the allegations in the Second Amended Complaint plausibly
establish her legal claims. (Id. at PageID 288–89.) She also again seeks leave to amend to
“correct deficiencies by simplifying the organization of claims with separate counts as to each
defendant . . . [and] specifically listing dates of acts or discovery of such acts for each
defendant.” (ECF No. 19 at PageID 288.) She also argues that she is attempting to allege a legal
malpractice claim pursuant to “T.C.A. § 28-304,” which the Court construes as a claim pursuant
to Tenn. Code Ann. § 28-3-104. (Id. at PageID 289.)
The Court reviews de novo the R&R’s findings of fact and conclusions of law to which
Ms. Hastings objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2)–(3). Ms. Hastings’s
objections as to the statute of limitations are specific, and therefore warrant de novo review of
the R&R. See Fed. R. Civ. P. 72(b)(3). However, she also includes general objections as to
other aspects of the R&R, warranting clear error review as to those sections. 28 U.S.C.
§ 636(b)(1)(A)–(B).
As for the statute of limitations, the Second Amended Complaint does fail to state a claim
because, even to the extent it plausibly alleges a state or federal cause of action, it is time-barred.
Specifically, Ms. Hastings has not alleged any acts that occurred after September 15, 2016,
although she now contends that the harms have continued. The limitations period for negligence,
malicious prosecution, intentional infliction of emotional distress and invasion of privacy in
Tennessee is one year, but Ms. Hastings did not file her Complaint until September 15, 2017.
(See ECF No. 1.) See Tenn. Code Ann. § 28-3-104; Evans v. Walgreen Co., 813 F. Supp. 897,
939 (W.D. Tenn. 2011); Rutherford v. First Tenn. Bank N.A., 2008 WL 3307203, at *6 (E.D.
Tenn. Aug. 7, 2008). Similarly, the limitations period for actions under 42 U.S.C. §§ 1983, 1985
and 1986 is one year. Tenn. Code Ann. § 28-3-104(a)(1)(B).
As for her general objections related to her claims for “fraudulent investigation,” “abuse
of process,” “interference with attorney-client contract,” “deficient representation” and “failure
to exercise discretionary function,” Tennessee law does not appear to provide causes of action
for these claims, and Ms. Hastings’s Objections to the R&R provide no law to support a different
result. (See generally ECF No. 19.) Thus, her objections are insufficient to satisfy her burden in
opposing the R&R’s conclusion that the Second Amended Complaint fails to state cognizable
claims. See Johnson, 2016 WL 4261761, at *1. Therefore, the Court ADOPTS the R&R, and
Ms. Hastings’s claims are DISMISSED WITH PREJUDICE. Furthermore, the Court
CERTIFIES that an appeal would not be taken in good faith, and thus leave to appeal in forma
pauperis is DENIED.
In her Objections, Ms. Hastings does seek, in the alternative, leave to amend to allege
harms that continued to February 2018. The Court finds, however, that leave to amend should
not be granted here. Federal Rule of Civil Procedure 15 provides that, where a plaintiff has
already amended once as a matter of course, the plaintiff must obtain either written consent of
opposing parties or leave of the Court before amending, and that the Court “should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, the Court need not grant
leave to amend in cases involving “undue delay . . . [or] repeated failure to cure deficiencies by
amendments previously allowed,” or where amendment would be futile. Foman v. Davis, 371
U.S. 178, 182 (1962).
The Court has given Ms. Hastings every possible opportunity to present a cognizable
claim, having granted leave to amend in modifying in part the Magistrate Judge’s last R&R.
(ECF No. 11.) The Court even granted an extension of time within which to file the Second
Amended Complaint. (ECF No. 13.) Ms. Hastings was no doubt aware of alleged harms
continuing into February 2018 when she filed the Second Amended Complaint on March 11,
2019, but, for whatever reason, she did not include those allegations in the Second Amended
Complaint. (See generally ECF No. 14.) Moreover, Ms. Hastings has not provided any basis for
the application of the discovery rule or the continuing violation doctrine. The Court thus finds
that the purported need for amendment now is the result of “undue delay . . . [or] repeated failure
to cure deficiencies by amendments previously allowed.” Foman, 371 U.S. at 182. And it
appears that the amendment would be futile, given that more recent harm will not change the
statute of limitations analysis. See id.
The Court recognizes that dismissal of a pro se plaintiff’s claims can be “a harsh remedy
that should be utilized only in extreme situations.” Cf. Van Alexander v. City of Pontiac, No.
07-11419, 2008 U.S. Dist. LEXIS 112020, at *1 (E.D. Mich. Apr. 29, 2008) (analyzing a motion
for involuntary dismissal under Fed. R. Civ. P. 41(b)). However, the Court previously warned
Ms. Hasting that she would “be afforded one more opportunity to amend her Complaint to cure
its defects.” (ECF No. 11 at PageID 223.) That opportunity has now come and gone, but Ms.
Hastings has not cured the defects identified. Therefore, the Motion for Leave to Amend is
DENIED.
CONCLUSION
For the foregoing reasons, the Court ADOPTS the R&R by DISMISSING the Amended
Complaint, CERTIFIES that an appeal would not be taken in good faith and DENIES leave to
appeal in forma pauperis. In addition, the Court DENIES leave to amend.
IT IS SO ORDERED, this 12th day of August, 2019.
s/ Sheryl H. Lipman
SHERYL H. LIPMAN
UNITED STATES DISTRICT JUDGE