Rodgers v. Tennessee Department of Children Services

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

______________________________________________________________________________

CYNTHIA RODGERS.,

Plaintiff,

v. Case No. 2:21-cv-02259-MSN-tmp

TENNESSEE DEPARTMENT

OF CHILDREN SERVICES,

Defendant.

______________________________________________________________________________

ORDER ADOPTING REPORT AND RECOMMENDATION

______________________________________________________________________________

Before the Court is the Chief Magistrate Judge’s Report and Recommendation (“Report”),

(ECF No. 12), entered on December 17, 2021. The Report recommends that Defendant’s Motion

to Dismiss, (ECF No. 9), (“Motion”), be granted. (ECF No. 12 at PageID 38.) On January 3,

2022, Plaintiff filed a late Response to the Motion, (ECF No. 14), to which Defendant responded

on January 18, 2022. (ECF No. 15.) For the reasons below, the Court ADOPTS the Chief

Magistrate Judge’s Report.

BACKGROUND AND PROCEDURAL HISTORY

The Report offers Proposed Findings of Fact. (ECF No. 12 at PageID 31–33.) Plaintiff’s

January 3, 2022 filing, (ECF No. 14), does not allege new facts or offer objections to the findings

of fact articulated in the Report. Therefore, the Court ADOPTS the Report’s Proposed Findings

of Fact as its findings of fact.

Plaintiff initiated this action against Defendant Tennessee Department of Children Services

when she filed her pro se Complaint on April 26, 2021. (ECF No. 1.) Plaintiff worked for

Defendant as a senior employee tasked with working on-call shifts and “responding to after-hours

calls regarding child safety and welfare.” (ECF No. 10 at PageID 16; see ECF No. 1 at PageID

2.) Plaintiff generally alleges that Defendant discriminated against her based on two claimed

disabilities—Obstructive Sleep Disorder and Interstitial Fibrosis—in violation of her rights under

the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 et seq. (“ADA”). (ECF No. 1 at

PageID 2.)

On September 21, 2021, Defendant filed its Motion under Fed. R. Civ. P. 12(b)(1). (ECF

No. 10.) Defendant argued that it enjoys immunity from suit under the Eleventh Amendment as

an arm of the state of Tennessee. (Id. at PageID 46–51.) Plaintiff did not respond to Defendant’s

Motion during the twenty-eight (28) day period allotted by the Court’s Local Rules. See LR

12.1(b). Accordingly, on October 20, 2021, the Chief Magistrate Judge entered an Order that

directed Plaintiff to show cause on or before November 3, 2021 as to why Defendant’s Motion

should not be granted. (ECF No. 11.) No response was entered into the record and the Chief

Magistrate Judge issued his Report on December 17, 2021. (See ECF No. 12 at PageID 32.)

Although Plaintiff did not file objections to the Report, she did file a document on January

3, 2022, entitled “Pro Se Response in Opposition Re Motion to Dismiss for Lack of Jurisdiction.”

(ECF No. 14). Defendant filed its Response on January 18, 2022. (ECF No. 15.) Defendant

asserts in its Response that Plaintiff has (1) not identified any objection(s) to the Report, thus

waiving her right to object; (2) not identified specific portions of the Report, if any, she wishes the

Court to review de novo; and, (3) anything in the filing that can be construed as an objection has

been premised on a misstatement of applicable law. (ECF No. 15 at PageID 51–52.)

STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by

permitting the assignment of district court duties to magistrate judges. See United States v. Curtis,

237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869–70 (1989));

see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). For dispositive matters, “[t]he

district judge must determine de novo any part of the magistrate judge’s disposition that has been

properly objected to.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1). After reviewing the

evidence, the court is free to accept, reject, or modify the magistrate judge’s proposed findings or

recommendations. 28 U.S.C. § 636(b)(1). The district court is not required to review—under a

de novo or any other standard—those aspects of the report and recommendation to which no

objection is made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt

the magistrate judge’s findings and rulings to which no specific objection is filed. See id. at 151.

Objections to any part of a Magistrate Judge’s disposition “must be clear enough to enable

the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50

F.3d 373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at 147 (stating that the purpose of the rule is

to “focus attention on those issues . . . that are at the heart of the parties’ dispute.”). Each objection

to a Magistrate Judge’s recommendation should include how the analysis is wrong, why it was

wrong and how de novo review will obtain a different result on that particular issue. Howard v.

Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

A general objection, or one that merely restates the arguments previously presented and

addressed by the magistrate judge, does not sufficiently identify alleged errors in the report and

recommendation. Id. When an objection reiterates the arguments presented to the Magistrate

Judge, the report and recommendation should be reviewed for clear error. Verdone v. Comm’r of

Soc. Sec., No. 16-CV-14178, 2018 WL 1516918, at *2 (E.D. Mich. 2018) (citing Ramirez v. United

States, 898 F. Supp. 2d 659, 663 (S.D.N.Y. 2012)); Equal Employment Opportunity Comm’n v.

Dolgencorp, LLC, 277 F. Supp. 3d 932, 965 (E.D. Tenn. 2017). Nonetheless, the Court notes,

“[p]ro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by

lawyers,’ and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th

Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure. See Wells

v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

ANALYSIS

The Report recommends that the Court grant Defendant’s Motion. (ECF No. 12 at PageID

38.) The Chief Magistrate Judge concluded that the Eleventh Amendment bars Plaintiff’s recovery

because Defendant qualifies as “the State” for sovereign immunity purposes and exceptions to this

doctrine do not apply. See Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003). (ECF No. 12 at

PageID 36–38.) To properly challenge Defendant’s factual assertions, Plaintiff “must respond to

each fact set forth by the movant by either: (1) agreeing that the fact is undisputed; (2) agreeing

that the fact is undisputed for the purpose of ruling on the [dispositive] motion . . . only; or (3)

demonstrating that the fact is disputed.” LR 56.1(b). Disputed facts must be supported by citations

to the record, id., and comply with Federal Rule of Civil Procedure 56(c)(1).1

The Federal Rules of Civil Procedure control in pro se non-prisoner matters just as they do

in counseled matters. See Bass v. Wendy’s of Downtown, Inc., 526 F. App’x 599, 601 (6th Cir.

1 Federal Rule of Civil Procedure 56(c)(1) requires a party intending to dispute a fact

presented by a movant for summary judgment to “(A) cit[e] to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or (B) show[] that the materials cited do not establish

the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.”

2013) (“Non-prisoner pro se litigants are treated no differently than litigants who choose

representation by attorneys.”) (citations omitted). The same holds true at the dispositive motions

stage. See Viergutz v. Lucent Techs., 375 F. App’x 482, 485 (6th Cir. 2010) (“[Plaintiff]’s status

as a pro se litigant does not alter his duty on a summary judgment motion.”); see also McKinnie v.

Roadway Express, Inc., 341 F.3d 554, 558 (6th Cir. 2003) (“Ordinary civil litigants proceeding

pro se, however, are not entitled to special treatment, including assistance in regards to responding

to dispositive motions.”) In the matter sub judice, although Plaintiff did not file a timely response

to the Motion to Dismiss, the Court will nonetheless liberally construe her filing, (ECF No. 14),

as an objection to the Report that recommended adopting said Motion.2 See Curtin, 631 F.3d at

383.

Here, Plaintiff does not identify specific portions of the Report to which she objects; this

omission alone may constitute good grounds to adopt the Report. See Howard, 932 F.2d 509.

Instead, she argues generally that Defendant does not enjoy state sovereign immunity because

Congress has abrogated such immunity for ADA claims.3 To justify this assertion, Plaintiff cites

a litany of cases from other circuits decided during the mid-to-late 1990s. (See ECF No. 14 at

PageID 43, 47, 49.) However, to the extent it applies here, Plaintiff’s authority has been

2 Plaintiff avers that she did not receive Defendant’s Motion to Dismiss and, although the

record does not reflect the mailing was returned as undeliverable, the Court will consider her

Response. (ECF No. 14 at PageID 42.)

3 The Report explains that state sovereign immunity applies to Defendant Tennessee

Department of Children’s Services because that entity is “the State” for sovereign immunity

analytical purposes. See Gean, 330 F.3d at 766. It proceeds to identify the only three exceptions

to that doctrine: the Ex Parte Young doctrine, consent by the State, and congressional abrogation.

(ECF No. 12 at PageID 36–37.) Plaintiff does not challenge the first two exceptions, instead she

addresses only the third. Therefore, the Court will adopt the Report’s undisputed analysis that

concludes the first two exceptions do not apply and address only what has been disputed by

Plaintiff: whether Congress abrogated state sovereign immunity for purposes of the ADA. See

Arn, 474 U.S. 150.

superseded by a cornucopia of more recent decisions delivered by the Sixth Circuit and—as the

Chief Magistrate Judge wisely noted (ECF No. 12 at PageID 37)—the U.S. Supreme Court itself.

See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001); Al-Janabi v. Wayne State

Univ., No. 21-1399, 2021 U.S. App. LEXIS 37051, *4 (6th Cir. Dec. 15, 2021) (“And to the extent

that Al-Janabi brought his ADA claim under Title I of that statute, Wayne State was entitled to

Eleventh Amendment immunity on that claim as well.”); see Whitfield v. Tennessee, 639 F.3d 253,

257 (6th Cir. 2011) (“Because Title I did not abrogate the states’ Eleventh Amendment immunity,

individuals may not sue states for money damages under Title I.”); Cook v. Garner, Case No. 19-

5931, 2020 WL 4876309, *8 (6th Cir. 2020) (“. . . Congress has not abrogated the states’ sovereign

immunity with respect to claims arising under Title I of the ADA (failure to accommodate) or the

ADEA.”); see also Babcock v. Michigan, 812 F.3d 531, 534 (6th Cir. 2016) (collecting cases).

Defendant correctly relies on the most recent authority in its Response and Plaintiff has failed to

identify, address, or otherwise distinguish it. (ECF No. 15 at PageID 52.) Consequently, the Court

finds Plaintiff’s latest pleading, to the extent it presents any colorable objection to the Report,

legally insufficient and unresponsive to the analysis and conclusion discussed in the Report.

Therefore, the Court ADOPTS the Report in full and GRANTS Defendant’s Motion to Dismiss.

CONCLUSION

For the reasons above, the Court ADOPTS the Chief Magistrate Judge’s Report and

Recommendation and GRANTS Defendant’s Motion.

IT IS SO ORDERED, this 4th day of February, 2022.

s/ Mark S. Norris

MARK S. NORRIS

UNITED STATES DISTRICT JUDGE