Stark v. City of Memphis

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

PAMELA DIANE STARK, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-02396-JTF-tmp

)

CITY OF MEMPHIS, et al. )

)

Defendants. )

ORDER ADOPTING THE MAGISTRATE JUDGE’S

REPORTS AND RECOMMENDATIONS

AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTIONS TO DISMISS

Before the Court is Plaintiff Pamela Diane Stark’s pro se complaint against Defendants City

of Memphis, Mayor Jim Strickland, MPD Director Michael Rallings, MPD Deputy Chief Don

Crowe, MPD Lt. Stephen Roach, MPD Sgt. Daniel Cordero, MPD Officer Ervin, Memphis City

Attorney Bruce McMullen, Assistant City Attorney Zayid Saleem, District Attorney General Amy

Weirich, Deputy District Attorney General Raymond Lepone, Joe Stark and his lawyers Melissa

Berry and Michelle Crawford, and MPD Officers John Doe 1-2 that was filed on June 19, 2019.

(ECF No. 1). 1 The matter was referred to the United States Magistrate Judge for management of

all pretrial matters pursuant to West Tenn. L. R. 4.1(b)(1) and Administrative Order No. 2013-05.

1 The record reflects that Notices of Appearance were filed by Attorneys Brice Moffatt Timmons, Craig

Edgington and Bryce Simmons on behalf of Plaintiff Pamela Stark on January 11, 2021. (ECF Nos. 74–

76.)

The Magistrate Judge has issued three Reports and Recommendations, ECF Nos. 62–64,

regarding Motions to Dismiss separately filed by (1) Defendants Melissa Berry and Michelle

Crawford; (2) Defendants District Attorney General Amy Weirich and Deputy District Attorney

General Raymond Lepone; and (3) the remaining Defendants - City of Memphis, Daniel Cordero,

Don Crowe, John Does 1–2, MPD Officer Ervin, City Attorney Bruce McMullen, MPD Director

Michael Rallings, Stephen Roach, Zayid Saleem, Joe Stark and Mayor Jim Strickland. (ECF Nos.

36, 39 and 42.)

On February 13, 2020, the Magistrate Judge recommended granting Defendants Amy

Weirich and Raymond J. Lepone’ s Rule 12(b)(1) and Rule (12)(b)(6) Motion to Dismiss, ECF

No. 39, to which Plaintiff filed objections on February 27, 2020 and March 17, 2020; and

Defendants responded. (ECF No. 62, ECF No. 66, ECF No. 69, and ECF No. 71.) Also, on

February 13, 2020, the Magistrate Judge issued a second Report and Recommendation that the

Court grant Defendants Melissa Berry and Michelle Crawford’s Motion to Dismiss to which

Plaintiff filed objections and Defendants responded. (ECF No. 63, ECF No. 65, ECF No. 67 and

ECF No. 70.) And last, the Magistrate Judge provided a Report and Recommendation that the

Court grant in part and deny in part the Defendants City of Memphis, Mayor Jim Strickland,

Michael Rallings, Don Crowe, Stephen Roach, Daniel Cordero, Officer Ervin, Bruce McMullen,

Zayid Saleem, Joe Stark, and two John Does’ Motion to Dismiss on February 18, 2020. (ECF No.

64.) The respective parties filed objections and responses. (ECF Nos. 72–74.)

II. FINDINGS OF FACT

In all three Reports and Recommendations, the Magistrate Judge provides proposed findings

of fact with a summary of the underlying facts in this case. (ECF No. 62, 1–7, ECF No. 63, 1–7,

and ECF No. 64, 1–7.) The Magistrate Judge surmised that Plaintiff’s claims resulted from an

alleged assault against her by her husband, Defendant Joe Stark, wherein she suffered injuries at

her home on June 17, 2018. At the time, Plaintiff was employed by Defendant Weirich as an

Assistant District Attorney General who directly reported to Defendant Deputy Attorney General

Lepone. Her husband worked as a Sergeant with the Memphis Police Department. After reporting

the assault, Plaintiff filed for divorce from her husband who was represented by Defendants

Melissa Berry and Michelle Crawford. Plaintiff subsequently became disgruntled by the manner

in which the incident was reported, investigated, and ultimately handled by the various named

defendants. Plaintiff specifically alleges that her supervisor, Lepone, encouraged her not to report

the assault. Ultimately, the Shelby County District Attorney General’s Office recused itself and

the matter was assigned to another District Attorney General in August 2018. Plaintiff felt that her

concerns and charges were not being addressed or investigated in any meaningful way. Thus,

Plaintiff’s claims against her husband and her subsequent criticism of the manner in which MPD

handled the alleged assault, as well as her attempts to communicate her concerns to the Mayor of

the City of Memphis, were publicly displayed on her Facebook account. As a result, Plaintiff

asserts that she was enjoined by a State Circuit Court Judge from voicing her criticism of the MPD

on social media and banned from police premises. Also, certain MPD officers refused to cooperate

and testify in one of her criminal cases. Consequently, Plaintiff submits that as a result of these

events, she was harassed, intimidated, and eventually constructively forced to resign her position

as an Assistant District Attorney General. In her complaint, Plaintiff alleges that these Defendants

conspired to dissuade her from reporting the June 17th incident against her husband, thereby

depriving her of the ability to exercise her federal constitutional rights in violation of 42 U.S.C. §§

1983 and 1985, free speech, equal protection, substantive and procedural due process, and the

Tennessee Constitution. Plaintiff seeks injunctive and monetary relief for her claims.

Despite Plaintiff’s attempts to supplement the factual allegations of her complaint within her

objections to the reports and recommendations, the Court adopts the factual history as described

in all of the reports and recommendations. (ECF No. 62, 1–7, ECF No. 63, 1–5, ECF No. 64, 1–7,

65, 1–3, ECF No. 72, 6–15.)

III. LEGAL STANDARDS

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 Fed. App’x. 308, 311, 2003 WL 21321184 (6th Cir. 2003) and Fed. R. Civ. P. 72(a).

A district court judge must review dispositive motions under the de novo standard. See Matthews

v. Weber, 423 U.S. 261, 275 (1976); Baker, 67 Fed. App’x. at 311 and 28 U.S.C. § 636 (b)(1)(B).

After review, the district court is free to accept, reject or modify the proposed findings or

recommendations of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 150 (1985).

Any party who disagrees with a magistrate judge’s recommendation may file written

objections to the report and recommendation. See Thomas, 474 U.S. at 142; Fed. R. Civ. P. 72(b),

28 U.S.C. § 636(b)(1)(c) and LR 72.1(g)(2). A district judge must determine de novo any part of

the magistrate judge’s recommendation to which proper objections are raised. 28 U.S.C. §

636(b)(1)(c). However, objections to any part of a magistrate judge's report and recommended

disposition “must be clear enough to enable the district court to discern those issues that are

dispositive and contentious.” See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) and Thomas,

474 U.S. at 147 (the purpose of the rule is to “focus attention on those issues ... that are at the heart

of the parties' dispute.”). “‘[O]bjections disput[ing] the correctness of the magistrate's

recommendation but fail[ing] to specify the findings ... believed [to be] in error’ are too general.”

Spencer v. Bouchard, 449 F.3d 712, 725 (6th Cir. 2006) quoting Miller, 50 F.3d at 380. A

plaintiff’s failure to file a specific objection to a magistrate judge’s report or one which fails to

specifically identify the issues of contention does not satisfy the requirement that an objection was

filed at all. Howard, 932 F.2d at 509; McCready v. Kamminga, 113 Fed. App’x. 47, 49 (6th Cir.

2004). The district judge should adopt the findings and rulings of the magistrate judge to which no

specific objection is filed. Brown v. Board of Educ. of Shelby County Schools, 47 F.Supp.3d 665,

674 (W.D. Tenn. 2014).

Generally, pro se complaints are held to a less stringent standard than those drafted by

attorneys. 2 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). However, 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)).

2 It should be noted that the pro se Plaintiff in this case is a licensed attorney who was employed by the

District Attorney General’s office at the time of the occurrences leading up to this lawsuit. The Court

assumes she is still an attorney in good standing in the state of Tennessee. Moreover, since filing her lawsuit

and objections to the Reports and Recommendations, Plaintiff has recently retained counsel. (ECF Nos.

74–76.)

A party may move to dismiss a claim for lack of subject matter jurisdiction under Fed. R. Civ.

P. 12(b)(1). A Rule 12(b)(1) motion challenges the court’s statutory or constitutional power

to adjudicate the case. A dismissal under Rule 12(b)(1) is not a judgment on the merits of plaintiff’s

case but instead, a dismissal because the court lacks authority to hear the case. Wilkins v. Jakeway,

183 F.3d 528, 33-534 (6th Cir. 1999). The lack of subject matter jurisdiction may not be waived.

2 Moore’s Federal Practice §12.30[1](3rd Ed. 2010). When a Rule 12(b)(1) motion attacks the

factual basis for subject matter jurisdiction, “the trial court must weigh the evidence and the

plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381 F.3d

511, 516 (6th Cir. 2004) citing RMI Titanium Co. v. Westinghouse Elec. Corp, 78 F.3d 1125, 1133-

35 (6th Cir. 1996). If a court determines that it lacks subject matter jurisdiction, the action must be

dismissed. Id.

Federal R. Civ. P. 12(b)(6) allows dismissal of a complaint that fails to state a claim upon

which relief may be granted. As such, a Rule 12(b)(6) motion permits the “defendant to test

whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the

complaint is true.” Mayer v. Mylod, 988 F.2d 635, 838 (6th Cir. 1993) (citing Nishiyama v.

Dickson Cnty., 814 F.2d 277, 279 (6th Cir. 1987)). A motion to dismiss only tests whether the

plaintiff has pleaded a cognizable claim and allows the court to dismiss meritless cases which

would waste judicial resources and result in unnecessary discovery. Brown v. City of Memphis,

440 F. Supp.2d 868, 872 (W.D. Tenn. 2006.) When evaluating a motion to dismiss under Fed. R.

Civ. P. 12(b)(6), the Court must determine whether the complaint alleges sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Conley v. Gibson,

355 U.S. 41, 45–46 (1957). A complaint must contain either direct or inferential allegations

respecting all of the material elements necessary to sustain recovery under some viable legal

theory. Id. at 562. The factual allegations must be definite enough to “raise a right to relief above

the speculative level.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548

(6th Cir. 2007) (quoting Twombly, 550 U.S. at 555.) However, a complaint need not provide

detailed factual allegations in order to survive dismissal. Id.

IV. LEGAL ANALYSIS

A. Dismissal of the Claims against Weirich and Lepone

Plaintiff raises claims against the Shelby County District Attorney General Amy Weirich and

Deputy District Attorney General Raymond Lepone, in their individual capacities pursuant to 42

U.S.C. § 1983 and § 1985 for conspiring with others to commit violations of her rights to free

speech, equal protection, substantive and procedural due process, rights under the Tennessee

Constitution and for intentional infliction of emotional distress. (ECF No. 1.) Plaintiff primarily

alleges, inter alia, that these Defendants violated her rights by prohibiting her from listing her

husband as a suspect in a reported domestic violence assault on June 17, 2018 and by continuing

to enforce a restraining order that was entered against her by a Circuit Court Judge.

The Magistrate Judge recommends that the undersigned Court dismiss all of Plaintiff’s claims

against both Weirich and Lepone. (ECF No. 62.) The Magistrate Judge determined that injunctive

relief against these parties is unavailable and therefore, this request for relief should be denied.3

Regarding the Defendants’ Rule 12(b)(1) arguments regarding lack of jurisdiction, the Magistrate

Judge indicates that the domestic relations exception and the Younger abstention doctrine should

not prevent the Court from exercising jurisdiction in this case. The Magistrate Judge considered

3 Plaintiff concedes that her request for injunctive relief against these parties in their official capacities is

barred resulting in the Magistrate Judge also finding that said relief is also unavailable to Plaintiff against

these parties in their individual capacities. (ECF No. 62, 8–10.)

Weirich’s and Lapone’s alleged actions as administrative decisions as opposed to prosecutorial

decisions or acts; and therefore, found these claims unprotected by prosecutorial immunity.

Accordingly, the Magistrate Judge concludes that Defendants’ motion to dismiss the state law and

federal claims on these grounds should be denied. 4 (ECF No. 62, 11–15.) However, the Magistrate

Judge’s report also concludes that Plaintiff failed to sufficiently allege the existence of a

conspiracy. Although Plaintiff alleged the conspiracy was motivated by animus against her

personally, a class of one claim is not the kind of group that receives “special protection” under

the Equal Protection Clause. Thus, in the Sixth Circuit, such a claim is not cognizable. (Id. at 15–

18.) The Magistrate Judge found that Defendants’ motion to dismiss Plaintiff’s § 1983 and § 1985

conspiracy claims should be Granted. 5 (Id.) The Court agrees.

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)). In this regard, the Magistrate Judge determined that Plaintiff has failed to assert a

plausible substantive due process claim because: (a) the alleged denial of redress or protection

from domestic violence does not comprise a fundamental interest, and (b) the defendants’ alleged

conduct does not meet the “shock the conscience” standard so as to establish a substantive due

process right. (ECF No. 62, 18–21.) Further, the Magistrate Judge determined that Plaintiff has

also failed to establish a procedural due process claim because (a) criminal laws do not afford

victims an entitlement to a particular property interest or a right to the enforcement of certain

4 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) and Chevalier v. Estate of Barnhart, 803

F.3d 789, 798 (6th Cir. 2015), Younger v. Harris, 401 U.S. 37, 44 (1971).

5 Volunteer Med. Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 224 (6th Cir. 1991) and Royal Oak Entm’t., LLC v.

City of Royal Oak, Michigan, 205 F. App’x 389, 399 (6th Cir. 2006).

criminal provisions;6 and (b) she has not sufficiently pled how Weirich and Lepone prevented her

from filing a formal criminal complaint. (Id. at 22–25.)

The Magistrate Judge recommends dismissal of Plaintiff’s First Amendment claims against

Lepone for retaliation because the claims were not alleged with particularity. (ECF No. 62, 27.)

He also recommends dismissal of Plaintiff’s equal protection claim for failure to assert a

comparator whose domestic violence case was treated differently or more favorably than her case.

The Magistrate Judge recommends dismissal of her claims against Weirich regarding supervisor

liability for failure to supervise, train or intervene as conclusory and lacking factual support. (Id.

at 29–30.) And last, the report and recommendation provides that Plaintiff has failed to state a

claim under the Tennessee Constitution as no such private right of action exists, that her claims

against Weirich and Lepone’s conduct do not meet the high standard for an emotional distress

claim. (Id. at 32–33.)

Plaintiff objects to the recommended dismissal of the claims against these parties, asserting

that she has adequately alleged that Weirich and Lepone engaged in multiple conspiracies, even

by individual actions, to abridge (1) her equal protection rights; (2) her right to petition the

government for redress and (3) her right to freedom of speech. (ECF No. 66, 1–11.) Plaintiff

asserts that both parties acted as gatekeepers to the governmental redress process by discouraging

and denying her the right to file a police report and access to an independent investigator or

prosecutor as provided by Tennessee law; and designating her as the suspect instead of the victim

of the assault. (Id. at 4.) In her objections, Plaintiff asserts that her husband Joe Stark filed a

police report with the MPD on June 25, 2018 regarding the June 17th incident at their home in

order to prevent her from filing formal charges of domestic assault against him. (ECF No. 65, 2–

6 See Town of Castle Rock, Colo. V. Gonzales, 545 U.S. 748, 756 (2005).

3.) And finally, Plaintiff contends that she is a member of a protected class, those who raise

allegations against an MPD officer and/or the MPD and therefore, objects to the determination that

she is not a member of a class for which equal protection under § 1985 exists. (ECF No. 66, 5–

10.)

The State responds that (1) Plaintiff did not allege the existence of a conspiracy among these

Defendants with specificity or that she received disparate treatment as compared to another

similarly-situated individual; (2) Plaintiff was not denied meaningful access to petition the

Government for redress in violation of substantive due process or to file a criminal complaint in

violation of procedural due process by these state defendants and (3) that she fails to state a claim

of First Amendment retaliation by these parties or a viable § 1985 conspiracy claim. (ECF No.

69, 1–12 and ECF No. 71, 10.)

The Court agrees that Plaintiff has insufficiently alleged that these Defendants denied her the

right to file a criminal complaint with the District Attorney General or to ensure that the police

report of the incident was investigated. The Complaint lacks plausibly alleged facts that these

Defendants entered into a conspiracy with various members of the MPD in order to abridge

Plaintiff’s freedom of speech— to make an official or public allegation of misconduct against the

MPD. Plaintiff’s objections to the report that these Defendants retaliated against her by banning

her from MPD property and causing her the loss of liberty associated with the restraining order are

also speculative and overruled. The Magistrate Judge’s recommendation to grant dismissal of the

claims against Weirich and Lepone is Granted.

B. Dismissal of Claims Against Berry and Crawford

Plaintiff alleges that her husband’s attorneys, Melissa Berry and Michelle Crawford, conspired

to abridge her rights to redress her §§ 1983, 1985 and First Amendment claims and infringed upon

her rights of freedom of speech and expression under the Tennessee Constitution. Plaintiff alleges

that Berry initiated proceedings for a Restraining Order against her, communicated with the City

Attorney’s office regarding said petition and advised her that an official with the City Attorney’s

office would be present during any depositions of MPD officers. Plaintiff alleges that, as a result,

the Circuit Court Judge entered a Restraining Order ordering her to remove her Facebook posts

and to refrain from posting any future comments on social media about the MPD or her husband

Joe Stark that could affect his reputation or employment with the MPD. Plaintiff alleges that at

Berry’s request, the restraining order was amended to include the Circuit Court Judge’s precise

language from the proceedings. As such, Plaintiff asserts that the attorneys conspired with others

to violate her First Amendment rights to free speech and Article 1 of the Tennessee constitution.

(ECF No. 1, ¶¶ 103–108, ECF No. 63, 1–5.)

Similar to Plaintiff’s claims against Attorneys Weirich and Lepone, the Magistrate Judge

reasoned that (1) Plaintiff has not alleged sufficient facts to support her § 1983 conspiracy claims

against Attorneys Berry and Crawford; and (2) the § 1983 claim is not a viable claim against a

private party in either his or her individual capacity. (ECF No. 63 and ECF No. 1, ¶¶ 54 & 56.)

Because the Magistrate Judge concluded that a party must conspire with the state in order to suffer

liability under § 1983, that allegation was not alleged in this case and therefore, should be

dismissed. (ECF No. 63, 7–8.)

Plaintiff objects to the Magistrate Judge’s recommendation to dismiss her § 1985 and Equal

Protection claims against Berry and Crawford, asserting (1) that she has pled sufficient, and not

vague facts, including overt acts by the defendants in furtherance of the conspiracy based on their

communications with the City Attorney’s office, the Mayor and MPD, all which put the defendants

on notice of the claims against them; (2) the alleged conspirators’ motivation should be the focus

of a § 1985 conspiracy claim as opposed to her membership, or lack thereof, in a protected class;

and (3) these defendants’ action should be considered conduct by state actors with the assistance

of state court authority and procedures in violation of her First Amendment rights that are subject

to § 1983 and § 1985 liability. (ECF No. 65, 3–10.)

In response, the Defendants object that Plaintiff includes facts in her objections that were not

alleged or are inconsistent with those alleged in her complaint. (ECF No. 70, 2.) Specifically, the

Defendants assert that under Browder, Plaintiff did not allege the manner in which she was

exercising a fundamental right and therefore, failed to establish membership in a protected class

entitled to equal protection.7 Moreover, even if Plaintiff successfully established membership in a

protected class of parties who have alleged police misconduct, she failed to assert how other

comparators outside this class were treated differently. The Defendants further respond that the

City Attorney’s office did not violate Plaintiff’s constitutional rights by supporting the injunction

related to her social media posts and their appearances at depositions involving police officers.

The Defendants posit that this information does not comprise viable evidence of a conspiracy with

members of the City Attorney’s office and the MPD. In support of this argument, the Defendants

argue that the attorneys’ actions regarding the injunction were justified as Plaintiff admittedly

violated the conditions of the Restraining Order. And finally, the City contends that membership

in a class of one does not provide § 1985 relief. (ECF No. 70, 5–9.) The Court agrees and

Plaintiff’s objections are overruled.

In order to establish a §1985 conspiracy claim, the Plaintiff must allege a conspiracy for the

purpose of depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws or equal privileges and immunities under the law. Plaintiff repeatedly asserts

7 Browder v. Tipton, 630 F.2d 1149, 1154 (6th Cir. 1980).

that Berry and Crawford conspired to deprive her of her First Amendment rights to pursue

misconduct claims against their client and the MPD. Plaintiff repeatedly alleges that during the

course of representing Mr. Stark, Defendants Berry and Crawford conspired against her by

communicating with others in violation of her First Amendment rights. Again, Plaintiff has not

alleged sufficient facts to support her contention, nor a comparator or membership in a protected

class of persons in her pleadings. Thomas v. City of Memphis, No. 04-2314-M1/V, 2005 WL

1921804, at *5 (W.D. Tenn. Aug. 3, 2005).

C. Dismissal In Part of the Claims against Multiple Defendants

On February 18, 2020, the Magistrate Judge issued a third Report and Recommendation

regarding the Motion to Dismiss, ECF No. 42, that was filed by Defendants—the City of Memphis,

Mayor Jim Strickland, Director Michael Rallings, Don Crowe, Stephen Roach, Daniel Cordero,

Officer Ervin, Bruce McMullen, Zayid Saleem, Joe Stark, and two John Does—a senior MPD

officer and an MPD domestic violence investigator—pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). (ECF No. 64.) On March 17, 2020, Plaintiff and Defendants the City of

Memphis, Detective Daniel Cordero, MPD Chief of Information Technology Don Crowe, John

Doe 1-2, MPD Officer Ervin, Attorney Bruce McMullen, Director Michael Rallings, MPD

Supervisor Stephen Roach, Attorney Zayid Saleem, Joe Stark, and Mayor Jim Strickland filed

objections. (ECF No. 72 and ECF No. 73.) On March 31, 2020, Defendants City of Memphis,

Daniel Cordero, Don Crowe, John Doe 1-2, Ervin, Bruce McMullen, Michael Rallings, Stephen

Roach, Zayid Saleem, Joe Stark, and Mayor Jim Strickland filed their objections. (ECF No. 74.)

The Court will address these objections below.

Within his report and recommendation, the Magistrate Judge again provides an extensive

overview of the facts of this case relative to these named Defendants and the claims against them.

(ECF No. 64, 1–7.) Plaintiff does not object to the Magistrate Judge’s summary of the facts but

the City objects that the Magistrate Judge omitted that the initial Mandatory Injunction was issued

on June 29, 2018, ECF No. 73-1, but the petition for restraining order in reference to the divorce

proceedings was filed on January 15, 2019, almost six months later. (ECF No. 73. 4–5.) However,

the Court finds that based on the overall detailed description of the events and the Magistrate

Judge’s prior decision not to consider exhibits outside of the Complaint for purposes of a Rule

12(b)(6) ruling, the proposed findings of fact are adopted. (ECF No. 65, 1–4 and ECF No. 62, 2

n.2). 8

Again, the Magistrate Judge concludes that federal jurisdiction exists in this matter because:

(1) the Rooker-Feldman doctrine does not bar federal jurisdiction of challenges to state court

interlocutory orders and (2) the domestic relations exception is inapplicable but (3) the request for

injunctive relief should be denied for Plaintiff’s failure to assert an exception to the Younger

doctrine in reference to the pending divorce matter. The Magistrate Judge recommends dismissal

of the § 1983 official capacity claims against the named city officials, submitting that all of these

claims should proceed against the City of Memphis instead. (ECF No. 64, 9–17.)

Aside from two exceptions, the Magistrate Judge submits that Plaintiff has failed to plausibly

allege with specificity the existence of a § 1983 or §1985 conspiracy, to wit, a single plan or

agreement in furtherance of any conspiracy to deprive her of any constitutional rights, among the

many defendants in this case. (Id. at 17.) Specifically, the Magistrate Judge noted that mere

communications amongst the parties against whose claims are recommended for dismissal does

not suggest the existence of a conspiracy. The Magistrate Judge continues that many of the actions

described in the complaint were committed by one party who acted alone. (ECF No. 64, 17–20.)

8 Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009).

He also concludes that Plaintiff failed to state a substantive due process claim against Defendants

Ervin, Cordero, Roach, and Crowe as lacking a fundamental interest that is protected by the due

process clause of the Fourteenth Amendment. The Magistrate Judge determined that the

governmental actions by the parties as alleged, were possibly irresponsible and inappropriate, but

did not rise to the level of conduct that “shocks the conscience.” (ECF No. 64, 24.) Similar to the

other reports, the Magistrate Judge recommends dismissal of the “class of one” Equal Protection

Claim under the Fourteenth Amendment for lack of a named disparately treated comparator, for

failure to adequately discredit any basis for the governmental action and/or show how the action

was motivated by animus or ill will, all justification for dismissal of Plaintiff’s § 1983 and §1985

claims. The Magistrate Judge also recommends dismissal of Plaintiff’s state law claims of

intentional infliction of emotional distress or interference with business relationship against

Defendants Mayor Strickland, Director Rallings, Attorney Bruce McMullen, Officers Crowe and

Saleem be granted. (Id. at 30-50.) However, the Magistrate Judge concludes that the ban of

Plaintiff from MPD property, including the Tillman station where her office was located, and

prohibiting her from speaking on social media or to City Officials and the MPD regarding the

alleged domestic assault by her husband, established a plausible First Amendment retaliation claim

against the City and Defendant Stark and a plausible claim for intentional infliction of emotional

distress and interference with business relationships by Defendant Joe Stark. (Id. at 49–52.) And

last, the Magistrate Judge recommends dismissal of her false light and invasion of privacy claim

against Director Rallings, and City defendants Crowe, Cordero, and John Doe 2 because neither

of these defendants were alleged to have taken down a report or published the report listing her as

the suspect in the June 17th incident. (Id. at 53–54.)

Plaintiff objects on the basis that (1) she adequately alleged deprivation of a fundamental

interest under the First Amendment to make a police report regarding the domestic abuse incident

and an inability to address these allegations with the District Attorney General; (2) she adequately

alleged an interest to be free from criminal investigation and/or a substantive and procedural due

process right violation under the First and Fourteenth Amendments; (3) based on her professional

experience with domestic violence victims, she has alleged more than unreasonable conclusions

that other victims have been treated more fairly to show disparate treatment in satisfaction of an

equal protection claim; and (4) Defendant Stark and his attorneys violated her First Amendment

rights when they filed a Petition for Restraining Order and Motion to Amend the Order during the

state court divorce proceedings. (ECF No. 72, 3–5.) These arguments are without merit.

Despite Plaintiff’s efforts to assert new allegations in her objections to this last report and

recommendation, the City responds that all of the Plaintiff’s claims should be dismissed.

Therefore, it specifically objects to the Magistrate Judge’s recommendation that Plaintiff’s First

Amendment retaliation claims against the City and Defendant Stark as well as her state law claims

for interference with business relations and intentional infliction of emotional distress against

Defendant Stark should survive the motion to dismiss. (ECF No. 74, 4–5.) The City specifically

objects to the Magistrate Judge’s finding that 1) the temporal proximity to the ban from MPD

property and Stark’s alleged interference with her prosecution of a homicide case by causing two

detectives to refuse to cooperate were retaliation for her Facebook posts and were possible First

Amendment retaliation claims; 2) that Plaintiff does not have a constitutionally protected right to

an investigation into her allegations because there is no right to petition under the First

Amendment. (ECF No. 73, 3 and ECF No. 74, 5.) The City raises a similar objection to Plaintiff’s

procedural due process claim under Castle Rock, asserting that she failed to assert membership

within a protected class that is entitled to due process protection.9 And finally, the City argues

that because Plaintiff voluntarily resigned from her position, her claim for interference with

business relationship should be dismissed. (Id.)

The Court agrees that the Due Process clause does not require the federal government to

provide services and as such, substantive and procedural due process rights are not secured under

the Fourteenth Amendment; nor does it implicate a fundamental interest. Zuniga v. Cooper, 2015

WL 6440766, at *6 (W.D. Tenn. Sept. 17, 2015.) Therefore, Plaintiff’s claims under the

Fourteenth Amendment and her conspiracy claims under 42 U.S.C. § 1983 and § 1985 should be

dismissed against the officials in their individual capacities. However, the Court finds that Plaintiff

has sufficiently alleged claims against the City and Joe Stark for intentional interference with

business relations and emotional distress and a First Amendment claim for retaliation.

CONCLUSION

For the above stated reasons, the Court adopts in full all three of the Magistrate Judge’s

reports and recommendations in this case. (ECF Nos. 62, 63 and 64.) The parties’ objections,

ECF Nos. 65, 72, 73 and 74, are herein Overruled. Accordingly, Plaintiff’s First Amendment

retaliation claims against the City of Memphis and Defendant Joe Stark as well as the

interference with business relations and intentional infliction of emotional district against

Defendant Joe Stark will proceed as recommended.

IT IS SO ORDERED on this 16th day of February 2021.

s/John T. Fowlkes, Jr.

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE

9 Town of Castle Rock, Colo., 545 U.S. at 756.