Tong v. Daly

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

ROBIN W. TONG, )

)

Plaintiff, )

)

v. ) No. 2:21-cv-02784-JPM-cgc

)

GEOFFREY A. DALY, )

In his personal capacity, )

)

Defendant. )

ORDER ADOPTING REPORT AND RECOMMENDATION AND

DENYING IN PART PLAINTIFF PRO SE’S MOTION FOR LEAVE TO AMEND AND

GRANTING DEFENDANT’S MOTION TO DISMISS

Before the Court is the Report and Recommendation of United States Magistrate Judge

Charmiane G. Claxton filed on May 20, 2022 (ECF No. 17) with respect to pro se Plaintiff Robin

W. Tong’s (“Tong”) Motion for Leave to Amend, filed on February 22, 2022 (ECF No. 15) and

Defendant Geoffrey A. Daly’s (“Daly”) Motion to Dismiss, filed on January 7, 2022 (ECF No. 9.)

The Magistrate Judge recommends that the Court grant Defendant’s Motion to Dismiss and deny

Plaintiff’s Motion for Leave to Amend. (ECF No. 17 at PageID 236.) Plaintiff filed timely

Objections to the Magistrate Judge’s Report on June 21, 2022.1 (ECF No. 22.) Defendant filed a

Response to Plaintiff’s Objections on July 5, 2022. (ECF No. 23.)

Upon de novo review, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge, DENIES IN PART Plaintiff’s Motion for Leave to Amend and GRANTS

Defendant’s Motion to Dismiss.

1 Plaintiff moved for and was granted two extensions of time in which to file his objections. (See ECF Nos. 18–21.)

I. BACKGROUND

Plaintiff alleges that he was pulled over by Defendant Geoffrey Daly, a “Munford

municipal police officer.” (ECF No. 2-1 ¶ 13.) Plaintiff “flipped [Sergeant] Daly the bird as

[Plaintiff] passed him in traffic.” (Id. at ¶ 16.) Plaintiff characterizes this gesture as a “symbolic

representation of [his] political beliefs,” “[p]eacefully…advocating for political change.” (Id. at

¶¶ 18–19.) Plaintiff alleges that Sergeant Daly then began “following” him. (Id. at ¶ 30.)

Plaintiff’s response was to “continuously flip[] [Defendant] the bird.” (Id.) Plaintiff alleges that

Defendant eventually “activated his blue emergency lights” and “subject[ed]” Plaintiff to the

traffic stop from which the case arises. (Id. at ¶ 34.)

Plaintiff filed a pro se Complaint Seeking Injunctive and Declaratory Relief for

Vindication of Civil Rights in the Chancery Court for Tipton County, Tennessee at Covington on

November 12, 2021. (ECF No. 1-1.) Plaintiff filed a pro se First Amended Complaint Seeking

Injunctive Relief and Declaratory Relief for the Vindication of Civil Rights in the Chancery Court

for Tipton County, Tennessee at Covington on November 29, 2021. (ECF No. 2-1.)

Plaintiff’s First Amended Complaint designates eleven claims with each numbered claim

enumerating multiple alleged violations of a range of federal and state laws. (Id. at ¶¶ 138–206.)

Reviewing the First Amended Complaint as a whole, the Magistrate Judge summarized Plaintiff’s

allegation as encompassing the following causes of action: “(1) violations of the First, Fourth, and

Fourteenth Amendments to the United States Constitution, which are brought pursuant to 42

U.S.C. § 1983 . . . ; (2) a civil claim of malicious harassment in violation of the Tennessee Human

Rights Act [(“THRA”)], Tennessee Code Annotated § 4-21-701 . . . ; (3) violations of Article I,

Sections 7 and 19 of the Tennessee Constitution; and, (4) violations of Tennessee criminal law.”

(ECF No. 17 at PageID 237.)

On December 16, 2021, Defendant filed a Notice of Removal pursuant to 28 U.S.C.

§§ 1441 and 1446. (ECF No. 1). Defendant stated that this action is one in which Plaintiff alleges,

inter alia, a cause of action pursuant to 42 U.S.C. § 1983 (“Section 1983”), which affords this

Court original jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at ¶ 2.)

On January 7, 2022, Defendant filed his Motion to Dismiss. (ECF No. 9.) Defendant

argues that state law claims included in Plaintiff’s First Amended Complaint should be dismissed

for the following reasons, as summarized by the Magistrate Judge: “(1) Plaintiff fails to state a

claim for violations of the THRA because he does not allege that Defendant intentionally

intimidated him from freely exercising a constitutional right or that Defendant’s actions were

motivated by Plaintiff’s race, color, religion, ancestry, or national origin; (2) Tennessee law does

not recognize private causes of action arising from violations of the Tennessee Constitution; and,

(3) Tennessee criminal law does not provide a basis for any private civil actions.” (ECF No. 17 at

PageID 238) (citing ECF No. 9.) Defendant alternatively argues that, to the extent that Plaintiff’s

First Amended Complaint attempts to pursue violations of Tennessee statutes and the Tennessee

Constitution pursuant to Section 1983, such claims are not cognizable based upon the manner in

which he includes these allegations together within the same designated claims. (ECF No. 9.)

On February 2, 2022, Plaintiff filed his Response to Defendant’s Motion to Dismiss. (ECF

No. 14.) Plaintiff asserts that his First Amended Complaint properly sets forth a civil claim for

malicious harassment under the THRA because it alleges that Defendant’s actions were motivated

by Defendant’s religion. (Id. at ¶¶ 8–9.) The Magistrate Judge summarized Plaintiff’s response

as follows:

Plaintiff’s Response alludes to Defendant’s arguments that he may not maintain a private

cause of action pursuant to the Tennessee Constitution or Tennessee criminal law and that

he may not pursue any such claims pursuant to Section 1983; however, in essence, his

arguments continue to assert that he may pursue a claim pursuant to Tennessee Code

Annotated § 4-21-701 for the reasons already set forth above . . . [as well as] request[ing]

two alternatives rather than dismissal. First, he requests that the Court decline to exercise

supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367. Second,

he requests that he be afforded leave to amend his First Amended Complaint to correct the

errors commingling federal and state law claims that were raised by Defendant in his

Motion to Dismiss.

(ECF No. 17 at PageID 238-9) (citations omitted.)

On February 22, 2022, Plaintiff filed his Motion for Leave to Amend his First Amended

Complaint. (ECF No. 15). While his Proposed Second Amended Complaint is more factually

detailed than his First Amended Complaint, Plaintiff mostly attempts to reorganize his pleading to

more clearly differentiate between his federal and state law claims. (See generally Id.). Plaintiff’s

motion included as an exhibit his Proposed Second Amended Complaint (ECF No. 15-1.) The

Proposed Second Amended Complaint continues to assert violations of the Tennessee Constitution

and Tennessee criminal statutes within Plaintiff’s THRA claim. (Id. at ¶¶ 205–239.) Defendant

does not oppose Plaintiff’s Motion for Leave to Amend. (ECF No. 16.)

The Magistrate Judge’s Report and Recommendation was filed on May 20, 2022. (ECF

No. 17.) Plaintiff Pro Se’s Objections and Memorandum of Law was filed on June 21, 2022. (ECF

No. 22.) Defendant’s Response to Plaintiff’s Objections to Magistrate Judge Claxton’s Report and

Recommendation on Plaintiff’s Motion to Amend Complaint and Defendant’s Motion to Dismiss

First Amended Complaint was filed on July 5, 2022. (ECF No. 23.)

II. STANDARD OF REVIEW

“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.

When a timely objection has been filed, “[t]he district judge must determine de novo any

part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.

72(b)(3). The portions of a magistrate judge’s recommendation as to which no specific objections

were filed are reviewed for clear error. See Fed. R. Civ. P. 72(b) advisory committee notes;

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

a party makes a general objection, “[t]he district court’s attention is not focused on any specific

issues for review, thereby making the initial reference to the magistrate useless”). “A general

objection to the entirety of the magistrate’s report has the same effects as would a failure to object.”

Id. at 509. Moreover, the “failure to properly file objections constitutes a waiver of appeal.” See

id. at 508 (citing United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).

III. PLAINTIFF’S MOTION FOR LEAVE TO AMEND

Plaintiff asserts in his Objection that the Magistrate Judge erred in her “threshold

determination [] that the First Amended Complaint was the operative pleading—without providing

any dispositive examination whatsoever of the Proposed Second Amended Complaint’s four (4)

federal 42 U.S.C. § 1983 claims or . . . one (1) THRA § 4-21-701 state-law claim.” (ECF No. 22

¶ 60.)

Defendant responds that the Magistrate Judge “did analyze the allegations of the Proposed

Second Amended Complaint in light of the Defendant’s Motion to Dismiss and found that the

proposed allegations would not survive the already-filed Motion to Dismiss.” (ECF No. 23 at

PageID 289) (citing ECF No. 17 at PageID 243 n.4, 244 n.5.) Defendant also contends that

“Plaintiff’s focus on the § 1983 claims based on alleged violations of his federal constitutional

rights is misplaced[,] as those claims were not the subject of Defendant’s Motion to Dismiss.” (Id.

at PageID 289.)

A. Legal Standard – Amended Complaint

The Federal Rules of Civil Procedure provide that a party “may amend its pleading only

with the opposing party’s written consent or the court’s leave,” which should be “freely give[n]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In the absence of any apparent or declared

reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of the amendment,” or other unjust reason,

leave of court should be granted. Foman v. Davis, 371 U.S. 178, 182 (1962).

B. Analysis

a. With Respect to All State Law Claims

On de novo review, this court finds that amendment of Plaintiff’s state law claims would

be futile at this time, including the THRA claim. Proposed amendments are futile if they would

not permit the complaint to survive a motion to dismiss. Miller v. Calhoun County, 408 F.3d.803,

817 (6th Cir. 2005). For the reasons set forth below, this Court concurs with the determination of

the Magistrate Judge that Plaintiff’s state law claims, even as amended, will not survive the motion

to dismiss. This Court therefore adopts the Report and Recommendation as to Plaintiff’s Motion

for Leave to Amend his First Amended Complaint, and Plaintiff is DENIED leave to amend his

First Amended Complaint with respect to any state law claims.

b. With Respect to § 1983 Federal Claims

Defendant’s Motion to Dismiss does not address Plaintiff’s claims under Section 1983.

(See generally ECF No. 9.) Defendant has not objected to Plaintiff’s amendment of the

Complaint’s Section 1983 claims. (ECF No. 16.) The Magistrate Judge’s Report and

Recommendation make it clear that she believes Plaintiff’s amendment is only futile as to

Plaintiff’s “state-law claims.” (ECF No. 17, at PageID 240.) There is no “apparent reason” that

Plaintiff should not be allowed to amend the Complaint as to these claims. Foman, 371 U.S. at

182 (1962). Leave is therefore GRANTED to Plaintiff to amend his complaint only as to asserted

Section 1983 claims.

IV. DEFENDANT’S MOTION TO DISMISS

Plaintiff asserts that the Magistrate Judge “failed to dispositively examine” the Amended

Complaint’s “one (1) [Tennessee Human Rights Act] § 4-21-701 state-law claim.” (ECF No. 22

¶ 33.) Tennessee Code Annotated (“T.C.A.”) § 4-21-701 is a civil action for malicious harassment

under the THRA. See T.C.A. § 4-21-701. Plaintiff further asserts that the Magistrate Judge did

not examine whether this claim stated allegations sufficient for “recovery under a viable legal

theory.” (ECF No. 22 ¶ 35.) Plaintiff also attempts to clarify that he has “consolidat[ed]” all

previous state law claims into this single claim. (Id. ¶ 41.) This Court, for the sake of clarity, will

nonetheless address the additional Tennessee Constitutional and Criminal claims put forward by

Plaintiff in his complaint and addressed by both the Magistrate Judge and Defendant, in addition

to the malicious harassment claim.

Defendant argues that Tennessee Law provides for no private right of action for violations

of the Tennessee Constitution. (ECF No. 23 at PageID 290.) Defendant argues further that

Tennessee law offers no private right of action for violations of “any of the criminal statutes on

which Plaintiff relies.” (Id. at PageID 290.) Finally, Defendant asserts that Plaintiff has failed to

state a claim under T.C.A. § 4-21-701 because that statute “requires proof” that Plaintiff was

harassed on the basis of their “race, color, religion, ancestry or national origin.” (Id. at PageID

291.)

A. Legal Standard – 12(b)(6) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint that “fail[s] to

state a claim upon which relief can be granted.” 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, 638 (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 pled 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 for failure to state a claim, 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) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). If a court decides that the claim is not plausible, the case

may be dismissed at the pleading stage. Iqbal, 556 U.S. at 679. “[A] formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The “[f]actual allegations

must be enough to raise a right to relief above [a] 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). A claim is plausible on its face if “the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

A complaint need not contain detailed factual allegations. Twombly, 550 U.S. at 570. A

plaintiff without facts who is “armed with nothing more than conclusions,” however, cannot

“unlock the doors of discovery.” Iqbal, 556 U.S. at 678–79; Green v. Mut. of Omaha Ins. Co., No.

10-2487, 2011 WL 112735, at *3 (W.D. Tenn. Jan. 13, 2011), aff’d, 481 F. App’x 252 (6th Cir.

2012). A court “need not accept as true legal conclusions or unwarranted factual inferences.”

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556

U.S. at 679. A court is “not bound to accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555.

Pleadings and documents filed by pro se litigants are to be “liberally construed,” and a “pro

se complaint, however inartfully pleaded, must be held to a less stringent standard than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). However, “the lenient treatment generally accorded to pro se

litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v.

Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). The pleading essentials are not abrogated in pro se cases.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A pro se complaint must “contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Barnett v.

Luttrell, 414 F. App’x 784, 786 (6th Cir. 2011) (quoting Ashcroft, 556 U.S. at 678) (internal

quotations and emphasis omitted). District courts “have no obligation to act as counsel or

paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District courts are not

“required to create” a pro se litigant’s claim for him. Payne v. Secretary of Treasury, 73 F. App’x

836, 837 (6th Cir. 2003).

B. Analysis

a. THRA

Plaintiff brings one claim of malicious harassment, T.C.A. § 4-21-701, against Defendant.

(ECF No. 15-1 ¶¶ 205–9.) This cause of action has been “outlined by the Tennessee Supreme

Court.” Davidson v. Bredesen, 330 S.W.3d 876, 889 (Tenn. Ct. App. 2009). There are two

elements to a malicious harassment claim. First, a plaintiff must “demonstrate that the perpetrator

intentionally intimidated the plaintiff from freely exercising a constitutional right.” Washington

v. Robertson County, 29 S.W.3d 466 (Tenn. 2000). Second, a plaintiff must also demonstrate that

the perpetrator was motivated by the victim's race, color, religion, ancestry or national origin.

Levy v. Franks, 159 S.W.3d 66, 81 (Tenn. Ct. App. 2004) (“[T.C.A. §] 4–21–701 has consistently

been interpreted as requiring [the plaintiff to be a member of] a protected class”). In the case at

hand, Plaintiff makes no allegation that Defendant pulled Plaintiff’s car over because of Plaintiff’s

religion. Plaintiff only alleges Defendant pulled him over on the basis of Defendant’s own religious

beliefs. (ECF No. 15-1 ¶¶ 40–41.) T.C.A. § 4-21-701 may protect a victim’s exercise of their own

religious beliefs, but does not create a cause of action against another individual for exercising

their religious beliefs.

Plaintiff urges the Court to note that the Tennessee Supreme Court “require[s] a claimant

to explain how a person unlawfully intimidated them” to prevent them from exercising their rights.

(ECF No. 22 at PageID 276.) Malicious harassment does require a showing that “a person

unlawfully intimidated another from the free exercise or enjoyment of a constitutional right”

through violence or threat. Washington v. Robertson County, 29 S.W.3d 466 (Tenn.2000).

However, this does not change the fact that Plaintiff has not demonstrated that Defendant was

motivated by Plaintiff’s “race, color, religion, ancestry or national origin.” Bowman v. City of

Memphis, 329 S.W.3d 766, 768 (Tenn. Ct. App. 2010).

Reviewed de novo, this Court finds that Plaintiff has failed to “state a claim to relief that

is plausible on its face.” Twombly, 550 U.S. at 570. This Court therefore adopts the Report and

Recommendation as to the Defendant’s Motion to Dismiss Plaintiff’s THRA claims.

b. Tennessee Constitutional and Criminal Law Claims

The Magistrate Judge found that Tennessee law “does not recognize a private right of

action” to enforce violations of the Tennessee constitution. (ECF No. 17 at PageID 244.) No

objection has been made to this finding, and the Court finds no clear error upon review. This Court

therefore adopts the Report and Recommendation with respect to Defendant’s Motion to Dismiss

Plaintiff’s claims under the Tennessee Constitution.

The Magistrate Judge found that Tennessee law “does not provide a basis for a private civil

cause of action” in any of the violations of Tennessee criminal statutes alleged by Plaintiff. (ECF

No. 17 at PageID 244.) No objection has been made to this finding, and the Court finds no clear

error upon review. This court therefore adopts the Report and Recommendation with respect to

Defendant’s Motion to Dismiss Plaintiff’s claims under Tennessee criminal law.

V. CONCLUSION

The Court ADOPTS the Report and Recommendation of the Magistrate Judge in full.

Accordingly, Plaintiff’s Motion for Leave to Amend is DENIED IN PART, and Defendant’s

Motion to Dismiss is GRANTED.

IT IS SO ORDERED, this 14th day of September, 2022.

/s/ Jon P. McCalla

JON P. McCALLA

UNITED STATES DISTRICT JUDGE