Taylor v. Taylor

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

DARRELL TAYLOR, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-02298-JTF-cgc

)

ABON TAYLOR, JR. and )

DYLA DRAKE TAYLOR, )

)

Defendants. )

ORDER ADOPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION AND DISMISSING CASE

Before the Court is Plaintiff Darrell Taylor’s pro se complaint, against Defendants Abon

Taylor, Jr. and Dyla Drake Taylor (“Plaintiffs”) filed on May 8, 2019. (ECF No. 1.) Plaintiff also

filed a Motion seeking leave to proceed in forma pauperis (ECF No. 2), which was granted on

May 23, 2019. (ECF No. 7.) The Magistrate Judge, upon screening Plaintiff’s complaint, entered

a Report and Recommendation (“R. & R.”) suggesting dismissal of the complaint for failure to

state a claim. (ECF No. 7.) No objections were filed by either party. For the reasons below, the

Court ADOPTS the Magistrate Judge’s recommendation to DISMISS Plaintiff’s complaint

FACTUAL HISTORY

In the R. & R., the Magistrate Judge provides, and this Court adopts and incorporates,

proposed findings of fact in this case. (ECF No. 7, 2.)

LEGAL STANDARD

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.” United States v. Curtis,

237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear and

determine any pretrial matter pending before the Court, except various dispositive motions. 28

U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “the magistrate judge must enter a

recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R. Civ. P.

72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party who

disagrees with a magistrate’s proposed findings and recommendation may file written objections

to the report and recommendation. Fed. R. Civ. P. 72(b)(2).

The district court reviews a magistrate judge’s proposed findings and recommendation.

The standard of review that is applied depends on the nature of the matter considered by the

magistrate judge. See Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003) (citations omitted)

(“A district court normally applies a ‘clearly erroneous or contrary to law’ standard of review for

nondispositive preliminary measures. A district court must review dispositive motions under the

de novo standard.”). Upon review of the evidence, the district court may accept, reject, or modify

the proposed findings or recommendations of the magistrate judge. Brown v. Board of Educ., 47

F. Supp. 3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court “may also

receive further evidence or recommit the matter to the [m]agistrate [j]udge with instructions.”

Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn.

Mar. 11, 2015). “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.

28 U.S.C. § 1915(e)(2) Screening

Pursuant to Local Rule 4.1, service will not issue in a pro se case where the pro se plaintiff

has been granted leave to proceed in forma pauperis until the complaint has been screened under

28 U.S.C. § 1915(e)(2)(B); LR 4.1(b). Specifically, courts are required to screen in forma pauperis

complaints and dismiss any complaint, or portion thereof, if the allegation of poverty is untrue or

if the action (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted,

or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §

1915(e)(2).

Standard of Review for Failure to State a Claim

In assessing whether Plaintiff’s Complaint states a claim upon which relief may be granted,

the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v.

Iqbal, 556 U.S. 662, 678–79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57

(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). “Accepting all well-pleaded

allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint

to determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380,

383 (6th Cir. 2011) (alteration in original) (quoting Iqbal, 556 U.S. at 681). Additionally, although

not free from basic pleading requirements, pro se pleadings are “held ‘to less stringent standards

than formal pleadings drafted by lawyers,’ and should therefore be liberally construed.” Curtin,

631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Even so, pro so

litigants must adhere to the Federal Rules of Civil Procedure, and the Court cannot create a claim

that has not been spelled out in a pleading. Falkner v. United States, No. 11-2982-STA-cgc, 2012

U.S. Dist. LEXIS 93372, at *16 (W.D. Tenn. July 6, 2012).

ANALYSIS

The Court agrees with and adopts the Magistrate Judge’s recommendation to dismiss

Plaintiff’s Complaint for failure to state a claim. As found by the Magistrate Judge, the Court does

not have jurisdiction over Plaintiff’s claims. (ECF No. 7.) Although Plaintiff alleges that the Court

has federal question jurisdiction over his claims under 28 U.S.C. § 1331, the complaint is void of

any reference to the United States Constitution, federal law, or treaty. (Id.) As a result, the Court

lacks federal question jurisdiction over Plaintiff’s complaint. See Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986) (“Federal courts are not courts of general jurisdiction; they have

only the power that is authorized by Article III of the Constitution and the statutes enacted by

Congress pursuant thereto.”).

The Magistrate Judge also found a lack of diversity jurisdiction because Plaintiff and

Defendants are all residents of Tennessee and the complaint does not allege citizenship for any of

the parties. (Id.) See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (“[C]omplete diversity

between all plaintiffs and all defendants” is a jurisdiction requirement under 28 U.S.C. § 1332.).

Even viewing Plaintiff’s complaint in a favorable light with less stringent standards, the Court is

unable to find that it has subject-matter jurisdiction or diversity jurisdiction over Plaintiff’s

complaint. Accordingly, dismissal for failure to state a claim is appropriate.

The Court also agrees with the Magistrate Judge’s recommendation that the Court certify,

pursuant to 28 U.S.C. § 1915(a)(3), that Plaintiff may not appeal in forma pauperis because such

an appeal would not be taken in good faith. (ECF No. 7.) Plaintiff did not object to the Report

and Recommendation. Under 28 U.S.C. § 1915(a)(3), “An appeal may not be taken in forma

pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. §

1915(a)(3). “The good faith standard is an objective one” and considers whether the litigant seeks

appellate review of any nonfrivolous issue. Beard v. Memphis, TN Crim. & Judicial Sys., No. 17-

2184-STA-cgc, 2017 U.S. Dist. LEXIS 100175, at *8 (W.D. Tenn. June 16, 2017). Additionally,

courts hold that it would be inconsistent for a district court to determine that a complaint should

be dismissed prior to service on the defendant, while simultaneously finding that the claim has

sufficient merit to support an appeal in forma pauperis. Id. at *8. Accordingly, this Court certifies,

pursuant to 28 U.S.C. § 1915(a), that an in forma pauperis appeal in this case by Plaintiff would

not be taken in good faith, and thus, may not be taken.

CONCLUSION

In the absence of any party objections and having satisfied itself that there is no clear error

on the face of the record, the Court hereby ADOPTS the Magistrate Judge’s Report and

Recommendation to DISMISS Plaintiff’s claim for lack of jurisdiction. The Court CERTIFIES

that Plaintiff may not appeal the determination herein in forma pauperis.

IT IS SO ORDERED this 11th day of August 2020.

s/John T. Fowlkes, Jr.

JOHN T. FOWLKES, JR.

United States District Judge