McCurry v. Wright (TV1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

ETHA JONES and )

AGNESS McCURRY, )

)

Plaintiffs, )

)

v. ) No.: 2:23-CV-29-TAV-CRW

)

JUDGE THOMAS WRIGHT, )

ABBY WALLACE, )

AMY BRIGGS, )

JUDGE JAMES LAUDERBACK, )

JEFFREY WARD, )

JUDGE JOHN RAMBO, )

JUDGE JONATHAN MINGA, )

JOSEPH SHULTZ, )

KELLY McCURRY, )

JUDGE LISA RICE, )

MARK HARRIS, )

JUDGE STACY STREET, )

STEVE FINNEY, )

JUDGE SUZANNE COOK, )

BENJAMIN McCURRY, and )

SANDY PHILLIPS, )

)

Defendants. )

MEMORANDUM OPINION

This civil matter is before the Court on three pending report and recommendations

(“R&Rs”) issued by United States Magistrate Judge Cynthia R. Wyrick [Docs. 67 (as

amended by Doc. 95), 102, 108], plaintiffs’ motion to strike an amended R&R [Doc. 96],

plaintiffs’ motions to amend the complaint [Docs. 109, 114], several appeals of Judge

Wyrick’s orders [Docs. 33, 45, 89, 104], several motions by plaintiffs seeking final

disposition of their pending motions [Docs. 101, 105, 126, 131], a motion for a

preliminary injunction [Doc. 106], and a motion to recuse [Doc. 128]. These matters are

now ripe for the Court’s review.

I. Background

Plaintiff McCurry and defendant Benjamin McCurry (“Benjamin”) were married

on September 24, 2016, and one child was born to the marriage, in July 2017. McCurry

v. McCurry, No. E2022-00635-COA-R3-CV, 2022 WL 17347397, at *1 (Tenn. Ct. App.

Dec. 1, 2022). [Doc. 24-19, p. 6 (incorporating the background set forth in McCurry)].

The parties separated in August 2018, and were divorced on March 5, 2019, by order of

the Circuit Court for Washington County. Id. On October 9, 2019, the trial court entered

a permanent parenting plan naming Benjamin the primary residential parent but

permitting plaintiff McCurry visitation and some joint decision-making authority. Id.

Since then, both plaintiff McCurry and Benjamin have filed numerous motions

regarding changing the child custody arrangement and seeking to hold the other parent in

contempt of the parenting plan. Id. [See e.g., Doc. 24-1, pp. 7–10, 15–20; Doc. 24-10,

pp. 1–6]. While it would be impossible for the Court to set forth an all-encompassing

record of the litigation between the parties in this action, the Court will provide some

brief background of the relevant events in 2022 and 2023, as set forth in the amended

complaint [Doc. 24] and relevant attachments.

Petitions for Restraining Orders

On July 7, 2022, Benjamin and his then-fiancée, defendant Kelly McCurry (then,

Kelly Wray) (“Kelly”) filed petitions for orders of protection against plaintiff McCurry

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[Doc. 24-27; Doc. 24-32, pp. 1–6]. Both Benjamin and Kelly asserted in their petitions

that the night prior, July 6, 2022, plaintiff McCurry arrived at Kelly’s home and began

forcefully banging on the door at 9:00 or 9:30 p.m. because Benjamin did not respond to

her text messages [Doc. 24-27, p. 3; Doc. 24-32, p. 4]. Plaintiff McCurry refused to

leave, and the police were called [Id.]. A judicial officer found good cause for Kelly’s

petition and issued a temporary order of protection, setting a hearing for July 29, 2022

[Doc. 24-27, p. 6]. However, Judge James Edgar Lauderback denied Benjamin’s request

for a temporary order of protection and set the matter for a hearing on July 14, 2022

[Doc. 24-32, p. 7].

At the July 14, 2022, hearing, Judge Lauderback dismissed Benjamin’s request for

an order of protection [Doc. 24-16, p. 59; Doc. 24-32, pp. 11–12]. However, Judge

Lauderback sua sponte entered a joint mutual restraining order, limiting communication

between Benjamin and plaintiff McCurry to text messages or emails, except for

emergency situations involving their son, and limiting contact between the parties to

meeting to exchange the child [Doc. 24-16, pp. 60–61; Doc. 24-15].

On August 5, 2022, a hearing was held on Kelly’s petition for a restraining order

before Judge Robert G. Lincoln [Doc. 24-29]. Judge Lincoln denied the petition because

there was no relationship between Kelly and plaintiff McCurry at the time of the July 6

incident, and the one-time incident did not constitute “stalking” for purposes of obtaining

a restraining order [Doc. 24-29, pp. 89–92; Doc. 24-28].

Emergency Ex Parte Motion

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In September 2022, Benjamin filed an “Emergency Ex Parte Motion to Suspend

Mother’s Parenting Time and Motion for a Psychological Evaluation,” (“Emergency

Motion”), through his counsel, Sandy Phillips [Doc. 24, p. 11; Doc. 24-1, pp. 1–5]. In

that motion, Benjamin accused plaintiff McCurry of suffering from mental health issues,

tending to lash out and lose physical control when frustrated, and displaying delusional

thinking [Doc. 24-1, pp. 1–5]. The motion argues that this tendency “is also evidenced

by the behavior she elicited at the circuit court clerk’s window, resulting in a warning to

everyone who comes to the window to conduct themselves appropriately” [Id. at 1].

Plaintiffs contend that the Emergency Motion contained claims of “aggravated perjury

and other falsehoods” regarding plaintiff McCurry [Doc. 24, p. 35].

On September 29, 2022, Judge Lauderback found that, based on the Emergency

Motion, probable cause existed that the subject child may be at risk of immediate harm,

and therefore, granted Benjamin sole custody of the child until a hearing could be held on

the Emergency Motion [Id. at 12; Doc. 24-1, p. 24]. Judge Lauderback set a hearing on

the matter for October 12, 2022 [Doc. 24-1, p. 24]. However, on October 12, 2022,

Judge Lauderback entered an Order of Recusal based on plaintiff McCurry’s naming him

as a defendant in a lawsuit filed in Washington County Chancery Court [Doc. 24, p. 12;

Doc. 24-1, p. 30].

Subsequently, Senior Judge Thomas J. Wright was assigned to the case and reset

the hearing on the Emergency Motion for February 7, 2023 [Doc. 24-1, pp. 27–29]. It is

at this February 7, hearing that many of the events detailed in the amended complaint

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occurred. According to plaintiffs, at the start of the hearing, Judge Wright swore all

witnesses except plaintiff Jones, who appeared via WebEx [Doc. 24, p. 13]. Judge

Wright then permitted Attorney Phillips to proceed with her opening statement

uninterrupted. However, when plaintiff McCurry began her opening statement, Judge

Wright interrupted her “to debate her lawful permanent residency under the federal

Violence Against Women Act” (“VAWA”) [Id.]. Plaintiff McCurry alleges that Judge

Wright then called a recess and incarcerated her because of the approval of her VAWA

petition but provided no reason for the incarceration at the time [Id. at 14]. Plaintiff

McCurry states that she was “forced to call her witness,” plaintiff Jones “who was

waiting on hold to testify via Webex” but the arresting officers grabbed her phone and

ended the communication, which resulted in plaintiff McCurry being charged with

resisting arrest and assault on a first responder [Id. at 14–15; Doc. 24-2, pp. 52–53].

During the recess, Judge Wright filed a contempt order [Doc. 24, p. 15]. This

order stated that, during opening statements, plaintiff McCurry made multiple references

to her “VAWA” and Judge Wright requested a copy of the VAWA petition [Doc. 24-2, p.

2]. During this discussion, Judge Wright addressed a question to Attorney Phillips and

plaintiff McCurry began talking again, at which point Judge Wright “sternly told her to

stop” [Id.]. Thereafter, plaintiff McCurry continued talking despite repeated commands

to stop, at which point Judge Wright recessed the proceeding and ordered plaintiff

McCurry taken into custody for contempt of court [Id. at 3]. This contempt order

indicates that it was hand delivered to plaintiff McCurry on February 7, 2023 [Id.].

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After approximately three hours, Judge Wright returned to the courtroom and

ordered plaintiff McCurry be released from custody [Doc. 24, p. 16]. The hearing

proceeded, although plaintiff McCurry claims she was afraid to object to the proceedings

for fear of retaliation from Judge Wright [Id. at 17]. When plaintiff Jones testified, Judge

Wright did not swear her in, and also attacked plaintiff Jones by stating that she was not

“an immigration expert” [Id.].

According to plaintiff, she was incarcerated a second time during the course of this

hearing “because she objected to the use of her federal lawsuit citing the Tennessee Court

of Appeals Eastern Division 3:22-CV-00380” [Id. at 18]. A second contempt order was

issued stating that “at approximately 6:30 pm, Ms. McCurry’s inability to control herself

and comply with court orders to stop talking reached a peak again” when she interrupted

the judge and opposing counsel repeatedly [Doc. 24-2, p. 7]. Judge Wright sentenced

plaintiff McCurry to 24 hours in jail for contempt [Id.].

After having plaintiff McCurry taken into custody a second time, Judge Wright

resumed the hearing without plaintiff McCurry and a date of March 24, 2023, was set for

continuing the hearing [Doc. 24, p. 18; Doc. 24-2, pp. 55–58].

Plaintiff McCurry claims that she suffered injuries from force used by the officers

at the detention center as a result of Judge Wright ordering her incarceration, and she

required a financial loan from plaintiff Jones because she had to take time off work to

recover from her injuries [Doc. 24, pp. 18–19, 22]. Plaintiff Jones claims that she

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suffered severe emotional distress from overhearing plaintiff McCurry being taken into

custody [Id. at 30–34].

Ultimately, on April 26, 2023, Judge Wright granted the Emergency Motion and

awarded sole custody to Benjamin, determining that plaintiff McCurry suffered from

“paranoia” and “delusional thinking” [Id. at 25; Doc. 24-19]. Judge Wright cited plaintiff

McCurry’s filings in both state and federal court and stated that “[r]ather than accept any

rejection, she has decided that everyone involved with her cases or complaints is in a

giant conspiracy. This is delusional thinking” [Doc. 24-19, p. 12].

Briggs Lawsuit

On October 5, 2022, plaintiff McCurry filed suit against Clerk of Court Amy

Briggs in the Chancery Court for Washington County alleging defamation [Doc. 24-6,

pp. 1–4]. In her complaint, plaintiff McCurry explained that an incident occurred on

September 21, 2020, at the clerk’s office, in which plaintiff McCurry was alleged to have

conducted herself in a manner that was “boisterous, unruly, loud, yelling and vulgar” [Id.

at 2–3]. Plaintiff McCurry alleged that, as a result of that incident, an order was filed and

posted on the clerk’s office window on October 5, 2020, setting forth expectations for

public behavior at the clerk’s office [Id. at 3]. Plaintiff McCurry further alleged that

Attorney Phillips used this incident and the subsequent order as evidence of plaintiff

McCurry’s mental health issues in the Emergency Motion, and “[i]t appeared that

Counsel Phillips possibly spoke with [Briggs] about the order to obtain such specific

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details relating to [plaintiff McCurry] that is not stated directly from the order” [Id.]. The

order specifically stated:

All persons entering the George Jaynes Justice Center are expected to

conduct themselves in an appropriate manner at all times. Any person

seeking help or assistance at any clerk’s window who exhibits disorderly

conduct of any kind shall be immediately escorted from the building by the

Washington County Sheriff’s Department. Disorderly conduct includes,

but is not limited to, boisterous, unruly behavior, loud yelling, vulgar

language, and any conduct disrespectful to the clerks or other courthouse

personnel.

[Doc. 24-7, p. 1].

Briggs filed a motion to dismiss the complaint [Id. at 2]. Judge Wright presided

over this matter and set a hearing date on a pending motion to dismiss “without regard for

[plaintiff McCurry’s] schedule [Doc. 24, p. 26]. Plaintiff McCurry appears to claim that

Judge Wright and Jeffrey Ward, counsel for Briggs, ignored her motion to continue the

hearing date, but that she also “refused to attend the [hearing] because Judge Wright

made a mockery of the entire judiciary at Washington County Tennessee” [Id. at 26–27].

At a hearing on May 16, 2023, Judge Wright stated that the case was set for a

hearing on the motion to dismiss, but, after close of business the day prior, plaintiff

McCurry had filed a motion to dismiss/cancel trial [Doc. 24-8, p. 4]. However, Judge

Wright found that there was nothing new in the motion and no basis for cancelling the

hearing. Judge Wright further found that plaintiff McCurry was aware there was a

hearing scheduled for that day, but she was not present, and therefore, the hearing would

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proceed without her [Id.].1 Ultimately, Judge Wright granted Briggs’s motion to dismiss

[Doc. 24-23].

Criminal Proceedings

As noted supra, plaintiff McCurry was charged with resisting arrest and assault

against a first responder, based on the events surrounding her being taken into custody for

the first time on February 7, 2023 [Doc. 24-33, p. 34]. Although not entirely clear from

the record before this Court, it appears that plaintiff McCurry was ultimately indicted on

the charge of resisting arrest only [Id. at 57–58]. Plaintiff McCurry filed numerous

motions, including a “Motion to Dismiss Charges,” “Motion for Discovery,” “Motion in

Limine to Exclude Testimony from Arresting officers in the Affidavit of Complaint,” and

“Motion Requesting Presiding Judge Hardin to Address the Conduct of Law Clerk

Christie that Indicate a Conspiracy to Miscarry Justice Against Defendant,” all of which

were denied by Judge Johnathan Minga in March 2023 [Id. at 1]. It appears that at the

time of the filing of the amended complaint in the instant case, this criminal proceeding

remained pending [See Doc. 24-33, p. 60 (email dated May 16, 2023, from a Washington

County District Attorney answering questions about plaintiff McCurry’s upcoming June

5, 2023, hearing; Doc. 24 (amended complaint, filed May 24, 2023)].

1 In the motion, plaintiff McCurry sought to have the hearing cancelled based on the

instant federal lawsuit against Judge Wright [Doc. 24-21, pp. 1–6].

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II. Pending Motions

A. Second Motion to Recuse

The Court first addresses plaintiffs’ second motion for recusal [Doc. 128]. As will

be discussed in more detail infra, on September 11, 2023, this Court issued a show cause

order, noting that it appeared plaintiffs had not properly served defendants Senior Judge

Thomas Wright, Judge James Lauderback, Judge Suzanne Cook, Chancellor John

Rambo, Judge Lisa Rice, Judge Stacy Street, District Attorney General Steve Finney,

Assistant District Attorney Mark Harris, Assistant District Attorney Joseph Shults, and

Assistant District Attorney Abby Wallace (collectively the “State Defendants”) [Doc.

110]. The Court thus ordered plaintiffs to provide evidence that they had properly served

these defendants or otherwise show cause why service had not been made [Id.].

The next day, plaintiffs moved for recusal of the undersigned, claiming that the

timing and content of the show cause order demonstrated that the undersigned had a

personal bias against plaintiffs and a desire to dismiss their case [Doc. 112]. The Court

denied the motion for recusal, explaining that the show cause order was properly entered

to ascertain whether service had been properly effectuated, and plaintiffs’ grounds for

recusal were simply dissatisfaction with the Court’s rulings [Doc. 117]. Plaintiffs

appealed this order, denying recusal, to the Sixth Circuit [Doc. 120], and the Sixth Circuit

subsequently dismissed the appeal for lack of jurisdiction [Doc. 124].

Upon the dismissal of the appeal, the Court again took up this matter, and issued a

second show cause order, reiterating that it appeared plaintiffs had not properly served

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the State Defendants [Doc. 127]. Plaintiffs promptly filed this second motion for recusal

[Doc. 128]. Plaintiffs assert that the second show cause order was intended to “harass”

them and “has established new grounds for mandatory recusal” of the undersigned [Id. at

2]. Plaintiffs state that they submitted proof of service, citing documents 28 and 29, and

claim that the undersigned is “threatening dismissal” despite having viewed those

documents [Id.]. Plaintiffs also reiterate their prior arguments that the issuance of a

scheduling order in this case prior to the show cause order “misled Plaintiffs into

believing that [the undersigned] accepted [plaintiffs] arguments” [Id. at 8]. Finally,

plaintiffs note that they have sued the undersigned in a separate federal action [Id. at 10].

As the Court previously explained [Doc. 117], § 455(a) requires disqualification

when a judge’s “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).

Plaintiff bears the burden of establishing that bias exists. Rhodes v. McDannel, 945 F.2d

117, 120 (6th Cir. 1991). The question under § 455(a) is objective: whether the judge’s

impartiality might be questioned from the perspective of a reasonable person. See Burley

v. Gagacki, 834 F.3d 606, 615–16 (6th Cir. 2016); United States v. Nelson, 922 F.2d 311,

319 (6th Cir. 1990). “A bias sufficient to justify recusal must be a personal bias as

distinguished from a judicial one, arising out of the judge’s background and association

and not from the judge’s view of the law.” Id. (internal quotation marks omitted). As a

result, “judicial rulings alone almost never constitute a valid basis for a bias or partiality

motion.” See Liteky v. United States, 510 U.S. 540, 555 (1994).

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The Sixth Circuit has cautioned that “[t]here is as much obligation upon a judge

not to recuse himself when there is no occasion as there is for him to do so when there

is.” Easley v. Univ. of Mich. Bd. of Regents, 853 F.2d 1351, 1356 (6th Cir. 1988)

(alteration in original) (citation omitted); see also United States v. Angelus, 258 F. App’x

840, 842 (6th Cir. 2007) (“Although a judge is obliged to disqualify himself where there

is a close question concerning his impartiality, he has an equally strong duty to sit where

disqualification is not required” (citation omitted)). In short, unnecessary recusals waste

judicial resources. City of Cleveland v. Krupansky, 619 F.2d 576, 579 (6th Cir. 1980).

Likewise, granting groundless disqualification motions encourages judge-shopping.

Birchfield v. Deutsche Bank Nat’l Trust Co., No. 2:19-cv-5, 2020 WL 735870, at *2

(E.D. Tenn. Feb. 13, 2020).

To the extent that plaintiffs reiterate their grounds for recusal set forth in their first

motion, the Court again finds that recusal is not appropriate for the reasons previously set

forth [Doc. 117].

To the extent that plaintiffs’ motion is based on the second show cause order, once

again, plaintiffs’ grounds for recusal are simply dissatisfaction with the content of the

order, and no reasonable person could conclude that the undersigned’s impartiality could

be questioned or that any personal bias against plaintiffs exists. See Liteky, 510 U.S. at

555; Lattanzio v. Brunacini, No. CV 5:16-171, 2018 WL 1865164, at *2 (E.D. Ky. Apr.

18, 2018) (“[Plaintiff’s] arguments that the Court does not ‘hear’ the plaintiff and

‘sidesteps any negative motion issues brought before [it] by [the] plaintiff’ are baseless

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and clearly stem from his dissatisfaction with the Court’s previous rulings.”). Indeed, the

Court notes that, based on plaintiffs’ failure to appropriately respond to the first show

cause order, the Court could have dismissed plaintiffs’ claims against the State

Defendants, without issuing the second show cause order. However, in deference to

plaintiffs’ pro se status, the Court provided plaintiffs with another opportunity to cure the

defect, discussed in further detail infra, in their service of the State Defendants. The

Court’s provision of additional opportunities for plaintiffs to properly proceed in their

claims against the State Defendants in no way shows bias against plaintiffs.

Finally, to the extent that plaintiffs contend that recusal is warranted based on the

undersigned’s “refusal to issue Orders to dispose of the Magistrate’s reports” [Doc. 128,

pp. 3–4], the Court notes that the most recent R&R [Doc. 108] was issued on September

6, 2023, and only became ripe for this Court’s review October 2, 2023, 14 days after

plaintiffs filed their objections [Doc. 113]. See E.D. Tenn. L.R. 7.1(a) (providing 14 days

for an opposing party to file a response to objections). By that time, plaintiffs had sought

recusal of the undersigned [Doc. 112], which the Court needed to address prior to ruling

on the pending R&Rs. See Church of Jesus Christ v. U.S. Federal Gov’t, No.

1:14-cv-163, 2015 WL 852370, at *1 (W.D. Mich. Feb. 26, 2015) (“Before turning to the

substantive issues in this matter, the Court must first address Plaintiff’s motion for

recusal”). And when the undersigned ruled on plaintiffs’ first recusal motion [Doc. 117]

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plaintiffs immediately filed a notice of appeal,2 on the same day as the order was issued

[Doc. 118]. Accordingly, there has been no unreasonable delay in the undersigned

addressing the pending R&Rs in this case. Instead, the delays have been caused by

plaintiffs’ own motions and appeals.

For all of these reasons, the Court finds that recusal is not warranted, and

plaintiffs’ second motion for recusal [Doc. 128] is DENIED.

B. R&R on Motion for Preliminary Injunction

In May 2023, plaintiffs filed a motion for an injunction or restraining order against

Judge Wright, in which they also ask the Court to find Judge Wright in criminal contempt

[Doc. 27]. Specifically, plaintiffs alleged that Judge Wright challenged the authority of

this Court in an order dated May 16, 2023, in which he denied a “Motion to

Dismiss/Cancel Trial Scheduled for Tomorrow” filed by plaintiff McCurry, stating:

After careful review, the undersigned saw no reason for delaying the

hearing that had been scheduled since May 2. The only real allegation in

plaintiff’s motion is that the Federal Court lawsuit McCurry has filed

against the undersigned is going to be amended by her with approval of the

District Court. As has been explained in previous rulings, this lawsuit is of

no effect with regard to the undersigned’s ability to fairly and impartially

preside over Ms. McCurry’s cases. The Federal lawsuit is clearly Ms.

2 “As a general rule, the district court loses jurisdiction over an action once a party files a

notice of appeal, and jurisdiction transfers to the appellate court.” Lewis v. Alexander, 987 F.2d

392, 394 (6th Cir. 1993). However, “the district court retains jurisdiction over an action where

an appeal is untimely, is an appeal from a non-appealable, non-final order, or raises only issues

that were previously ruled upon in that case by the appellate court.” Id. at 394–95 (internal

quotation marks omitted). Although this Court technically retained jurisdiction during the

pendency of plaintiffs’ appeal, which was from a non-appealable, non-final order denying

recusal, in deference to plaintiffs’ pro se status, and given that recusal was the subject matter of

the appeal, the Court did not issue any orders in this case until the Sixth Circuit dismissed

plaintiffs’ appeal.

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McCurry’s attempt to obtain a new judge because she is dissatisfied with

the rulings, to this point, of the undersigned.

[Doc. 27, pp. 3–4; Doc. 24-22, pp. 1–2]. Plaintiffs further contend that Judge Wright

“disrespected” this Court in ordering plaintiff McCurry to provide a copy of her lawsuit

filed in Case Number 3:22-cv-380, which is under the jurisdiction of the Sixth Circuit

Court of Appeals and had no relevance to the best interests of plaintiff McCurry’s son

[Doc. 27, p. 4; Doc. 24-20, p. 2].3 Plaintiffs further reiterated many of the allegations in

the amended complaint and argued that plaintiff McCurry was suffering irreparable harm

due to the separation from her son [Doc. 27, pp. 8–9]. Plaintiffs specifically asked the

Court to “GRANT a Restraining Order or Injunction against all the Orders of Judge

Wright issued in all of Agness [sic] cases while this lawsuit is pending” [Id. at 9]. The

Court referred this motion to Judge Wyrick for an R&R [Doc. 30].

3 The relevant order set the hearing on the Emergency Motion, which was heard in part

on February 7, 2023, to be continued on March 24, 2023 [Doc. 24-20]. Within the order, Judge

Wright stated:

At some point during the proceedings on February 7, 2023, attorney Phillips made

reference to a Federal Court lawsuit filed by Ms. McCurry against the Tennessee

Court of Appeals. Because there are no documents in the record relating to the

Federal Court lawsuit, or any appeal therefrom, and because those allegations

may be relevant to this Court’s determination on Father’s Emergency Ex Parte

Motion to Suspend Mother’s Parenting Time and Motion for a Psychological

Evaluation, the parties are DIRECTED to bring copies of any documents filed in

Federal Court or any other Courts by Ms. McCurry that may, in any way, relate to

the substance or procedure of this case and the appeals that have been taken from

this case by Ms. McCurry. At minimum, the Complaint filed in Federal Court

and any dispositive order or judgment entered by the U.S. District Court as well

as any appellate brief filed by Ms. McCurry and any dispositive order, opinion, or

judgment of the Sixth Circuit Court of Appeals should be presented for review by

the undersigned at the continued hearing on March 24, 2023.

[Id. at 2].

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1. Summary of R&R

In the R&R, Judge Wyrick recommended that the Court deny plaintiffs’ motion

[Doc. 67]. As to the request for a preliminary injunction, Judge Wyrick first stated that

the Court lacks authority to issue an injunction under the Rooker-Feldman doctrine, as a

federal district court lacks jurisdiction to reject state court judgments or decrees [Id. at 7].

And, even if the Court had jurisdiction over plaintiffs’ request for a preliminary

injunction, Judge Wyrick found that plaintiffs had not established a “substantial

likelihood of success on the merits” [Id. at 10]. Judge Wyrick noted that “[w]hile

plaintiffs claim that Judge Wright has mistreated them through the state court process by

denying them due process, treating them disrespectfully, and improperly incarcerating

[Plaintiff] McCurry, the record before the Court tells a different story” [Id.]. Judge

Wyrick stated that Judge Wright issued an order denying a motion to recuse, setting forth

clear, appropriate, and non-prejudicial reasons for having found plaintiff McCurry in

contempt [Id. at 11]. And, on the other hand, plaintiffs “have provided nothing more than

bald assertions in support of their contentions that Judge Wright has deprived them of due

process and has ruled against Plaintiff McCurry due to her nationality/status under the

VAWA” [Id. at 12]. Judge Wyrick further noted that plaintiff McCurry has been turned

away on several occasions by both the Tennessee Court of Appeals and Tennessee

Supreme Court, and stated that, to grant plaintiffs injunctive relief, the Court would have

to assume that the decisions rendered by those courts, apparently upholding Judge

Wright’s rulings, were incorrect [Id. at 15].

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As to plaintiffs’ request for criminal contempt sanctions, Judge Wyrick found that

they had not established that Judge Wright disobeyed any order or command of this Court

[Id. at 16]. To the extent that plaintiffs contend that Judge Wright exhibited disrespect

toward this Court, Judge Wyrick found that none of Judge Wright’s statements are

disrespectful, but simply explain that plaintiff McCurry’s filing of a lawsuit against him

did not render him unable to fairly and impartially adjudicate cases in which she was a

party [Id.].

Plaintiffs objected to the R&R [Doc. 68]. Subsequently, Judge Wyrick issued an

amended R&R [Doc. 95]. In a footnote, she stated that the amended R&R was

substantively identical to the prior document, except that the prior R&R erroneously

stated that plaintiffs were suing Judge Wright in his “official” capacity rather than his

“individual capacity” [Id. at 1, n.1]. The amended R&R corrected this typographical

error, but the typographical error did not impact the magistrate judge’s analysis or

conclusion [Id.].

Plaintiffs then filed a motion to strike the amended R&R, arguing that it was

obvious on the face of their complaint that they were suing Judge Wright in his individual

capacity, and the amended R&R was being filed for an “improper purpose,” namely to

“harass” plaintiffs and “cause needless increase in delay of final disposition” [Doc. 96,

pp. 1–2]. Plaintiffs stated that they did not want to respond to a “frivolous amended

report” and asked the Court to remove Judge Wyrick from this case [Id. at 2].

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2. Standard of Review4

This Court reviews de novo those portions of a magistrate judge’s report and

recommendation to which a party objects, unless the objections are frivolous, conclusive,

or general. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Smith v. Detroit Fed’n

of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Mira v. Marshall,

806 F.2d 636, 637 (6th Cir. 1986). “The parties have ‘the duty to pinpoint those portions

of the magistrate’s report that the district court must specially consider.’” Mira, 806 F.2d

at 637 (quoting Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)).

3. Analysis of Objections and Motion to Strike

Initially, the Court will address plaintiffs’ request to strike the amended R&R.

Plaintiffs have cited no authority indicating that it is improper for a magistrate judge to

submit an amended R&R to correct a typographical error prior to the Court’s ruling on

the original R&R. And, contrary to plaintiffs’ assertion, the amended R&R did not cause

any delay in the final disposition of this matter, as the amendment to the R&R simply

corrected a typographical error, and therefore, had no impact on this Court’s analysis of

the substantive issues addressed in the R&R. Similarly, the Court notes that plaintiffs did

not, and were not required to, file any amended objections to the amended R&R.

Accordingly, the Court finds no error in the magistrate judge’s submission of an amended

R&R, and plaintiffs’ request to strike the amended R&R [Doc. 96] is DENIED.

4 The following standard of review applies to each of the R&Rs before the Court. The

Court has applied this same standard of review in addressing the R&Rs and objections in

sections II.C and II.H, although it does not repeat this case law in those sections.

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Turning to the substance of the R&R, plaintiffs filed numerous objections which

are largely rambling complaints about the alleged actions of Judge Wright and plaintiffs’

belief that Judge Wyrick is biased against them [Doc. 68]. To the extent any specific

objections can be gleaned from plaintiffs’ filing, the Court will address those objections

in turn.

First, plaintiffs object that the factual background of Judge Wyrick’s R&R

“completely eliminates the basis of jurisdiction in this Court: Agness [sic] VAWA” [Doc.

68, p. 2]. It is unclear how plaintiffs believe any discussion of the basis for jurisdiction or

the VAWA in the R&R’s factual background, would alter the ultimate recommendation

on the pending motions. Moreover, plaintiff McCurry’s alleged VAWA petition is not

the basis for this Court’s jurisdiction over this matter. Instead, this Court has jurisdiction

under 28 U.S.C. § 1331 because plaintiffs have raised a federal question by suing under

federal law, namely 42 U.S.C. § 1983. See 28 U.S.C. § 1331 (“The district courts shall

have original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States”). Accordingly, this objection is OVERRULED.

Second, plaintiffs assert that Judge Wyrick overlooked the fact that counsel for

Judge Wright failed to timely refile his motion to dismiss after they filed an amended

complaint [Doc. 68, p. 2]. But, despite the opportunity to refile such motion, there was

no requirement that Judge Wright refile.5 And, again, it is unclear how this fact would

5 Rule 12 requires that a defendant either answer or file a motion to dismiss “within 21

days after being served with the summons and complaint[.]” Fed. R. Civ. P. 12(a)(1)(A)(i),

12(b). But, as explained infra, the Court finds that Judge Wright has not yet been served in his

19

have any impact on the recommendation in the R&R. Therefore, this objection is

OVERRULED.

Third, plaintiffs contend that Judge Wyrick overlooked significant filings because

she did not summarize plaintiffs’ motion for sanctions and the order denying this request

[Doc. 68, p. 3]. But that motion and order are again irrelevant to the motions at issue in

the R&R. And the R&R is not required to summarize all of the procedural history of a

particular case, including irrelevant matters. Indeed, to fully summarize all of the

procedural history of this case, without regard to its relevance to a particular order, would

be a significant endeavor that would unnecessarily waste judicial time and resources.

This objection is therefore OVERRULED.

Fourth, plaintiffs object that Judge Wyrick stated that plaintiffs sued Judge Wright

in his official capacity, when the amended complaint clearly stated that all defendants

were sued in their individual capacities [Doc. 68, p. 3]. This objection has been rendered

moot by the filing of the amended R&R, which corrects this typographical error [Doc.

95].

Fifth, plaintiffs object to Judge Wyrick’s statement that plaintiff McCurry went to

trial “to determine the custody of her child” [Doc. 68, p. 4]. Plaintiffs argue that a

custody order was in place with plaintiff McCurry having visitation, but Benjamin

individual capacity. Accordingly, this 21-day timeframe has not yet started. Moreover, a

defendant is not required to file a motion to dismiss for a case to be properly dismissed for lack

of service. See Fed. R. Civ. P. 4(m) (stating that “the court—on motion or on its own after notice

to the plaintiff—must dismiss the action without prejudice” after 90 days elapses and a defendant

has not been served).

20

“requested them to be suspended for nefarious reasons” [Id.]. The record clearly reflects

that the purpose of the Emergency Motion and the subsequent hearing was to determine

whether a change should be made to the custody arrangement between plaintiff McCurry

and Benjamin. Plaintiffs’ objection on this ground is simply mincing words, and is

therefore, OVERRULED.

Sixth, plaintiffs object that Judge Wyrick claimed to listen to the audio recording

of the February 7, 2023, hearing, but ignored the fact that Judge Wright “harassed Agness

over the authenticity of her VAWA” [Doc. 68, p. 6]. Plaintiffs further claim that there

was no evidence plaintiff McCurry was in contempt of court, beyond Judge Wright’s

orders which contradict the audio evidence [Id. at 22]. Plaintiffs argue that Judge Wright

made plaintiff McCurry’s opening statement argumentative for no reason but to harass

her and then incarcerate her [Id.].

This Court has reviewed the audio recordings. The record reflects that plaintiff

McCurry was permitted to present seven uninterrupted minutes of opening statement, at

which point she proclaimed “that answers any question you might have about this case,

just look at the VAWA” [Ex. H at 20:05]. Judge Wright then asked to see a copy of the

VAWA [Id. at 20:07]. After plaintiff McCurry could not produce a hard copy of the

document, Attorney Phillips offered up a copy of a version that had expired in 2019, but

plaintiff McCurry claimed there was an approval document [Id. at 21:28]. In further

conversation about whether an approved VAWA was in the record, plaintiff McCurry

began to raise her voice [Id. at 26:35], and Judge Wright eventually yelled “STOP

21

TALKING” [Id. at 26:39]. Judge Wright explained that, when he addressed a question to

Attorney Phillips, he wanted an answer from Attorney Phillips, not plaintiff McCurry,

and he expected plaintiff McCurry not to talk when he was talking [Id. at 26:44].

Plaintiff McCurry then accused Judge Wright of being hostile and continued talking

while Judge Wright repeatedly stated “stop, stop, stop, stop” [Id. at 27:04]. At that point,

Judge Wright called a recess and ordered plaintiff McCurry be taken into custody [Id. at

27:12]. Nothing about Judge Wright’s asking for a copy of plaintiff’s VAWA

documentation, and then seeking clarification about its status, particularly in light of her

opening statement, was “harassing.” And, contrary to plaintiffs’ assertion, the record is

clear that Judge Wright had sufficient grounds to have plaintiff McCurry taken into

custody for contempt of court after repeated requests for plaintiff McCurry to stop talking

went ignored [See id. at 26:35–27:12]. See In re Brown, 470 S.W.3d 433, 444 (Tenn. Ct.

App. 2015) (“Tennessee courts have held that direct acts of contempt include acts

committed in the presence of the court that are disrespectful, unreasonable, or

contemptuous; use of violent or loud language or noises; or ‘turbulent’ conduct that

disrupts the proceedings.” (internal quotation marks omitted)). Accordingly, the Court

finds that the audio recording supports Judge Wyrick’s findings, and this objection is

OVERRULED.

Seventh, plaintiffs allege that Judge Wyrick ignored the Tennessee Rules of

Criminal Procedure which require a judge to recuse when a contempt charge relates to

disrespect or criticism of a judge [Doc. 68, p. 7]. Plaintiffs appear to argue that Judge

22

Wright was required to recuse himself from plaintiff McCurry’s case after holding her in

contempt because the contempt charge was based on disrespect to Judge Wright [Id.].

Initially, this argument appears to simply be a new claim against Judge Wright not

contained in the amended complaint, and therefore, it is not properly raised in plaintiffs’

objections to the R&R. Moreover, the rule plaintiffs cite appears inapplicable, as it is a

rule of criminal procedure, and plaintiffs refer to events occurring in a civil proceeding.

Accordingly, the objection is OVERRULED.

Eighth, plaintiffs argue that Judge Wyrick “minimized the trauma that Plaintiff

Etha Jones endured hearing the incarceration of Agness over the phone” because the

R&R simply “stated the facts and ‘moved on’ to her next points” [Doc. 68, p. 8]. It is

unclear how plaintiffs believe that “stat[ing] the facts” “minimized” plaintiff Jones’s

claims, as well as how such supposedly impacted the magistrate judge’s recommendation

on the motions for preliminary injunction and criminal contempt. To the extent that

plaintiffs believe Judge Wyrick should have advocated for plaintiff Jones, such would be

inappropriate. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)

(“Courts are essentially passive instruments of government. They do not, or should not,

sally forth each day looking for wrongs to right. They wait for cases to come to them,

and when cases arise, courts normally decide only questions presented by the parties.”

(internal citations, quotation marks, and alterations omitted)). Accordingly, this objection

is OVERRULED.

23

Ninth, plaintiffs complain that the R&R states that plaintiff McCurry lost custody

of her son as a result of the Emergency Motion in July of 2022, citing page 35 of the

amended complaint [Doc. 68, p. 8]. However, plaintiffs argue that the amended

complaint did not contain this information on page 35, but instead, stated that the

Emergency Motion was filed on September 29, 2022 [Id. at 8–9]. Contrary to this

assertion, the only reference to July of 2022 in the R&R states:

In their Amended Complaint, Plaintiffs add claims against Benjamin

McCurry, Kelly McCurry, and Sandy Phillips for conspiring to ‘unlawfully

strip [Plaintiff McCurry] of her parental rights and custody [of] her son,”

presenting false evidence in an official proceeding, and conspiring to

defraud the United States. Id. at p. 35. Plaintiffs allege these defendants

did so during a trial in front of Judge James Lauderback in July of 2022.

Id. at p. 39-42.

[Doc. 67, p. 3]. A review of the amended complaint confirms that on page 35, plaintiffs

alleged that plaintiff McCurry was seeking damages from Benjamin, Kelly, and Attorney

Phillips for “[c]onspiring to unlawfully strip Agness of her parental rights and custody to

her son 18 U.S. Code § 241 through the ‘Sole Emergency Custody Petition’ filed on

September 29th, 2022,” “[i]ntentionally and maliciously presenting false testimony and

evidence in an official proceeding,” and “[c]onspiring to defraud the United States 18

U.S.C. § 371 by usurping the authority of the Courts to promote child abuse and strip

Agness unlawfully of her parental rights” [Doc. 24, p. 35]. Additionally, beginning on

page 39 of the amended complaint, plaintiffs allege facts relating to a “July 14th 2022

trial” before Judge Lauderback [Id. at 39 (“Kelly Mccurry suborned perjury for Benjamin

Mccurry at the July 14th 2022 trial”); 41 (“Counsel Phillips . . . coached Benjamin and

24

Kelly to provide false testimony regarding their willful contempt of the Parenting Plan

and May 6th 2022 Order at the July 14th 2022 trial”)]. The Court finds that the R&R’s

summary of the amended complaint and citations thereto are accurate, and plaintiffs’

objection is OVERRULED.

Tenth, plaintiffs argue that Judge Wyrick “missed the point” that orders entered by

Judges Lauderback, Rice, Street, and Rambo affected the general public in Washington

County, because they undermine the public’s confidence in the judiciary [Doc. 68, p. 10].

The motion at issue in the R&R was plaintiffs’ Motion for Preliminary Injunction and

Criminal Contempt Against Judge Thomas Wright [Doc. 27; see Doc. 67, p. 1]. It is

unclear how any claims plaintiffs may have against Judges Lauderback, Rice, Street,

and/or Rambo would affect whether a preliminary injunction should be issued against

Judge Wright, and whether the Court should find Judge Wright in criminal contempt.

This objection is therefore OVERRULED.

Eleventh, plaintiffs allege that the R&R is proof that Judge Wyrick is in a

conspiracy with the state defendants to unlawfully incarcerate plaintiff McCurry [Doc.

68, p. 12]. To the extent that plaintiffs seek to raise claims against Judge Wyrick for

allegedly conspiring against plaintiff McCurry, such claims are more appropriately raised

in a new complaint.6 The objection is OVERRULED.

6 The Court notes that plaintiff McCurry has already filed a civil complaint in this district

raising claims against Judge Wyrick related to her rulings in this matter, which remains pending.

See Case No. 2:23-cv-130-DCLC-JEM.

25

Twelfth, plaintiffs claim that Judge Wyrick incorrectly determined that their

motion for an injunction asked the Court to reverse a state judge’s orders in a pending

state case [Doc. 68, p. 13]. Plaintiffs state this is “100% false” and instead they “request

injunctive relief from all the unconstitutional Orders entered by Judge Wright that are

clearly treasonous and violate federal law.” Plaintiffs contend that injunctive relief is

available to them under Ex Parte Young, 209 U.S. 123, 155–56 (1908) [Id.]. Once again,

plaintiffs’ objection merely minces words. However worded, plaintiffs’ ultimate request

in their motion for a preliminary injunction is to reverse and/or enjoin execution of Judge

Wright’s orders in plaintiff McCurry’s state court proceedings. Further, plaintiffs’

reliance on Ex Parte Young is misplaced. In that case, the Supreme Court held that

individuals who are tasked with enforcing state laws, and who threaten and are about to

commence proceedings to enforce an unconstitutional law, may be enjoined by a federal

court from engaging in such action. 209 U.S. at 155–56. But in the instant case,

plaintiffs do not allege there is any unconstitutional law threatened to be enforced against

them—rather, they allege that the actions of various individuals during state court

proceedings were unconstitutional. This distinction renders Ex Parte Young inapplicable.

And even if Ex Parte Young stood for the proposition that injunctive relief could be

available under these circumstances, as the R&R correctly states, plaintiffs have not

established that injunctive relief is appropriate under the specific facts of this case. This

objection is OVERRULED.

26

Thirteenth, plaintiffs summarily allege that Judge Wyrick misapplied the

Rooker-Feldman doctrine [Doc. 68, p. 15]. It appears that this objection ties to plaintiffs’

prior objection regarding the relief they seek, as Judge Wyrick held that, because

plaintiffs seek to enjoin enforcement of all orders entered by Judge Wright in the state

court actions, granting the requested relief “would necessarily be interfering with the

‘day-to-day conduct of state hearings and trials.’” [Doc. 67, p. 8]. As noted supra,

plaintiffs’ attempts to recharacterize the relief they seek with regard to Judge Wright’s

orders is merely mincing words. And plaintiffs provide no argument as to how Judge

Wyrick’s application of the Rooker-Feldman doctrine was erroneous. Accordingly, this

objection is OVERRULED.

Fourteenth, plaintiffs contend that Judge Wyrick ignored the federal lawsuit

plaintiff McCurry has against the Tennessee Court of Appeals by relying on that court’s

dismissal of plaintiff McCurry’s appeals [Doc. 68, p. 15]. In the R&R, Judge Wyrick

stated:

Additionally, the Court cannot overlook the fact that Plaintiff McCurry has

been turned away on several occasions by the Tennessee Court of Appeals

and on at least two by the Tennessee Supreme Court. To grant Plaintiffs

the injunctive relief they seek, this Court would have to assume that the

decisions rendered by those courts, which apparently upheld Judge

Wright’s rulings and/or refusal to recuse, were incorrect.

[Doc. 67, p. 15]. Plaintiffs appear to refer to the lawsuit plaintiff McCurry filed against

the Tennessee Court of Appeals, challenging the handling of her appeal(s) in her

divorce/custody case [See Case No. 3:22-cv-380]. That case is now pending appeal

before the Sixth Circuit, after another district judge dismissed the case without prejudice

27

[Id., Docs. 15, 32]. Ultimately, Judge Wyrick was not required to give deference to

plaintiffs’ allegations regarding the Tennessee Court of Appeals which have been

dismissed by the district court. And, notably, even if Judge Wyrick had ignored prior

Tennessee Court of Appeals decisions in light of plaintiff McCurry’s pending appeal, this

would have no bearing on the prior decisions of the Tennessee Supreme Court, which

Judge Wyrick also cited. Further, this statement in the R&R amounts to dicta that does

not impact the ultimate recommendation on the motions for a preliminary injunction and

criminal contempt. Accordingly, this objection is OVERRULED.

Fifteenth, plaintiffs claim that Judge Wyrick’s R&R violates the abstention

doctrine because it permits defendants to continue with the ongoing state court

proceedings while this federal case is pending [Doc. 68, p. 16]. But the “Younger

abstention [doctrine] derives from a desire to prevent federal courts from interfering with

the functions of state criminal prosecutions[.]” Doe v. Univ. of Kentucky, 860 F.3d 365,

368 (6th Cir. 2017) (emphasis added). In other words, Younger warrants abstention by

the federal court in certain circumstances. It does not give the federal court authority to

order the state courts to dismiss or hold in abeyance their proceedings. Accordingly, this

objection is OVERRULED.

Sixteenth, plaintiffs claim that, like Judge Wright, Judge Wyrick has refused to

accept the authority of the United States government regarding plaintiff McCurry’s

VAWA [Doc. 68, p. 23]. But, as discussed supra, the existence of plaintiff’s alleged

VAWA has no impact on the magistrate judge’s recommendation, or this Court’s order,

28

on the motion for preliminary hearing and criminal contempt at issue. The objection is

OVERRULED.

Seventeenth, plaintiffs argue that the magistrate judge failed to review the

disparaging remarks made by Judge Wright [Doc. 68, p. 25]. Specifically, plaintiffs

contend that Judge Wright made disparaging remarks about the United States government

in his April 26, 2023, order challenging United States Customs and Immigration

Services’s (“USCIS”) approval of plaintiff McCurry’s VAWA [Id. at 25]. Additionally,

he made disparaging remarks that the amended complaint in this action had “no effect”

on him [Id. at 25–26].

Plaintiffs’ first claim of disparaging remarks references Judge Wright’s order

granting the Emergency Petition, wherein he discussed plaintiff McCurry’s reliance on

her alleged VAWA [Doc. 24-19, pp. 12–15]. Specifically, Judge Wright explained that

plaintiff McCurry’s self-petition under the VAWA with USCIS and her resulting

adjustment of immigration status was irrelevant to the custody dispute, as the proceeding

involved plaintiff McCurry and USCIS, and did not involve Benjamin, and therefore, no

determination in that proceeding would be res judicata [Id. at 13–14]. Judge Wright

went on to conclude that the evidence presented indicated that plaintiff McCurry, not

Benjamin, was abusive [Id. at 15]. Nothing in Judge Wright’s order addressing plaintiff

McCurry’s alleged VAWA is “disparaging” about the United States government. Judge

Wright simply explained how the VAWA procedure rendered it inapplicable to the

custody dispute before him and then made findings based on the evidence presented

29

before him, rather than relying on plaintiff McCurry’s alleged VAWA. And, as Judge

Wyrick thoroughly explained [Doc. 67, p. 16], even if this statement could somehow be

construed as disparaging to the United States government, it does not violate an order of

this Court, and therefore, contempt is not warranted.

Plaintiffs also point to Judge Wright’s order denying plaintiff McCurry’s motion

to cancel the hearing on the motion to dismiss in the Briggs action, in which he states:

The only real allegation in plaintiff’s motion is that the Federal Court

lawsuit McCurry has filed against the undersigned is going to be amended

by her with approval of the District Court. As has been explained in

previous rulings, this lawsuit is of no effect with regard to the

undersigned’s ability to fairly and impartially preside over Ms. McCurry’s

cases. The Federal lawsuit is clearly Ms. McCurry’s attempt to obtain a

new judge because she is dissatisfied with the rulings, to this point, of the

undersigned.

[Doc. 24-22, pp. 1–2 (emphasis added)]. Plaintiffs attempt to take a portion of the quote,

that the “lawsuit is of no effect,” out of context, excluding the next phrase “with regard to

the undersigned’s ability to fairly and impartially preside” over the case. Judge Wright’s

statement is not disparaging of this Court or the federal government; it merely explains

why, as the undersigned has also previously explained, recusal is not warranted solely on

the basis that the litigant filed a lawsuit against the presiding judge. And, once again,

even if the Court were somehow to construe Judge Wright’s comment as disparaging, it

does not violate an order of this Court, and therefore, is not a ground for contempt. This

objection is OVERRULED.

30

4. Conclusion

For these reasons, plaintiffs’ objections [Doc. 68] are OVERRULED and

plaintiffs’ request to strike the amended R&R [Doc. 96] is DENIED. The R&R [Doc. 67

(as amended by Doc. 95)] is ACCEPTED and ADOPTED IN WHOLE and

incorporated into this memorandum opinion. Plaintiffs’ motion for a preliminary

injunction and contempt [Doc. 27] is DENIED.

C. R&R on Criminal Contempt

On July 26, 2023, plaintiffs filed a second motion for criminal contempt against

Judge Wright [Doc. 90], alleging that Judge Wright had violated this Court’s scheduling

order by initiating proceedings in plaintiff McCurry’s divorce and child custody case, as

well as her state criminal case.

Subsequently, on August 17, 2023, plaintiffs filed a motion for final judgment on

outstanding motions for criminal contempt against Judge Wright due to “new evidence”

[Doc. 101]. Plaintiffs stated that they had recently discovered that Judge Wright never

swore an oath of office as required by the Tennessee Constitution [Id. at 1]. Plaintiffs

argued that Judge Wright therefore operated unconstitutionally and unlawfully and

caused injury to plaintiff McCurry and her minor son [Id. at 2].

1. Summary of R&R

Judge Wyrick recommended that the Court deny these motions [Doc. 102]. First,

to the extent that plaintiffs ask the Court to find that Judge Wright’s arguments in

response are barred by judicial estoppel because he takes inconsistent positions, Judge

31

Wyrick noted that Judge Wright simply provided alternate grounds for denying the

requested relief, which he is permitted to do by law [Id. at 4–5]. Further, to the extent

that plaintiffs argue that Judge Wright should not be permitted to file a response because

he was engaged in a RICO conspiracy, Judge Wyrick found that plaintiffs had provided

no legal support for this argument, and therefore, it was waived [Id. at 5].

Turning to the merits of the motion, Judge Wyrick concluded that plaintiffs had

not presented facts showing that Judge Wright had disobeyed this Court’s lawful writ,

process, order, rule, decree, or command [Id. at 6]. First, Judge Wright could not have

violated the scheduling order through any actions in the state court proceeding because

those proceedings have no bearing on the deadlines and filing requirements set out in the

scheduling order nor does the scheduling order govern the schedule for state proceedings

[Id. at 6–7]. Moreover, Judge Wright did not violate any order of the Court by failing to

file a renewed motion to dismiss, because, while he was permitted to do so, he was not

required to do so [Id. at 7].

As to plaintiffs’ claims that Judge Wright initiated proceedings against plaintiff

McCurry in retaliation for filing the instant action, Judge Wyrick noted that Judge Wright

did not initiate the underlying criminal proceedings against plaintiff McCurry in the case

out of which she has now been cited for criminal contempt [Id.]. Accordingly, through

plaintiffs’ own filings, the record demonstrates that Judge Wright was properly

designated to hear the criminal case [Id. at 8]. And, even if he had not been properly

32

appointed to hear the criminal case, that would not constitute criminal contempt, because

it would not violate any order entered by this Court in this action [Id.].

Finally, as to plaintiffs’ arguments regarding Judge Wright’s oath of office, Judge

Wyrick stated that, while the Office of the Tennessee Secretary of State makes available

certain oaths of office for easy access by the public, the oaths of office for senior judges

in Tennessee are not among them [Id. at 8–9]. However, the Tennessee Administrative

Office of the Courts was able to provide a copy of Judge Wright’s oath, which Judge

Wyrick attached as Exhibit A to the R&R and took judicial notice of [Id. at 9]. Given

that the document reflects that Judge Wright timely took the required oath of office,

Judge Wyrick concluded that plaintiffs’ claim was without merit. And, even if Judge

Wright presided over plaintiff McCurry’s case without taking an oath, such would not

constitute criminal contempt of the orders of this Court [Id.].

2. Analysis of Objections

Plaintiffs filed several objections to the R&R [Doc. 104]. First, plaintiffs argue

that Judge Wright was required to take the oath of office and file it with the Tennessee

Secretary of State under Tennessee Code Annotated §§ 8-18-108 and 8-18-113 [Id. at 1].

Plaintiffs take issue with Judge Wyrick’s statement that senior judge oaths cannot be

found on the Tennessee Secretary of State’s website, arguing that the website itself states

that “[n]ewer state oaths” could be found on the website [Id. at 3]. While the Secretary of

State’s website lists the Administrative Office of the Courts (“AOC”) as a potential

source for records of oaths, “the AOC must make sure that the oaths were properly

33

administered before they file them” [Id.]. According to plaintiffs, the oath provided to

Judge Wyrick by the Administrative Office of the Courts is fraudulent because it lists

“Douglas T. Jenkins” as the administrator of the oath but does not provide Jenkins’s title

[Id. at 3–4]. Plaintiffs state that they believe Rachel Harmon, the deputy director of the

AOC, sent a fraudulent oath to Judge Wyrick to help Judge Wright, because the two are

friends [Id. at 4–5].

Regarding judicial oaths of office, Tennessee law states:

(a) In all cases in which it is not otherwise provided by law, the oaths of

office may be administered by any officer authorized to administer an oath.

Such oaths shall be written out and subscribed by the person taking them,

and shall be accompanied with the certificate of the officer administering

the oaths, specifying the day and year when taken.

(b) The governor or an active or retired supreme court justice may

administer the oath to a supreme court justice. The governor, an active or

retired supreme court justice, an active or retired inferior court judge, or an

active or retired general sessions judge may administer the oath to an

inferior court judge. Except as otherwise provided by law, the governor, an

active or retired supreme court justice, an active or retired inferior court

judge, or an active or retired general sessions judge may administer the oath

to any elected or appointed official.

Tenn. Code Ann. § 8-18-107. It further states that:

Such oaths shall, when taken by the governor, a judge of the supreme court,

a judge of the circuit court, a chancellor, the secretary of state, the

comptroller of the treasury, the state treasurer, a district attorney general, or

any other officer whose duties are not limited to one (1) county, unless it is

otherwise provided, by filed, with the certificate required by § 8-18-107, in

the office of the secretary of state.

34

Tenn. Code Ann. § 8-18-108. Additionally, “[a]ny officer . . . required by law to take and

file such oaths, who enters upon the duties of the office without first taking and filing the

same as prescribed, commits a Class C misdemeanor.” Tenn. Code. Ann. § 8-18-113.

Plaintiffs’ contention that Judge Wright was required to take an oath and file it

with the secretary of state does not appear to be in dispute. The dispute is whether Judge

Wright complied with that requirement. Plaintiffs appear to contend that Judge Wright’s

oath, a copy of which was attached to the R&R [Doc. 102-1], was not properly filed with

the secretary of state as required by § 8-18-108. But the basis for this argument is that

Judge Wright’s oath upon taking the office of senior judge was not located on the

Tennessee Secretary of State’s public database of oaths of office. And nothing in the

Tennessee Code requires that judicial oaths of office be published on the secretary of

state’s website. Plaintiffs’ assertion that Judge Wright’s oath was not filed properly with

the secretary of state is merely speculation.

Moreover, as to plaintiffs’ claim that the oath of office attached to the R&R is

invalid because it does not contain the title of the individual who administered the oath,

the Court first notes that this is a new argument not previously raised, and therefore, is

not appropriately raised in plaintiffs’ objections. See Meddaugh v. Gateway Fin. Serv.,

601 F. Supp. 3d 210, 213 (E.D. Mich. 2022) (“Parties cannot raise at the district court

stage new arguments or issues that were not presented before the magistrate judge’s final

R&R” (internal quotation marks and alterations omitted)). Regardless, the Tennessee

Code contains no requirement that the title of the official administering the oath of office

35

be included on the written oath. And the Court takes judicial notice that Douglas T.

Jenkins is currently a chancellor in the Third Judicial District Chancery Court. See

www.tncourts.gov/courts/circuit-criminal-chancery-courts/judges/douglas-t-jenkins (last

accessed Feb. 12, 2024). Furthermore, plaintiffs’ argument that Harmon created a

fraudulent oath to provide Judge Wyrick is speculation. For these reasons, plaintiffs’

objection is OVERRULED.

Plaintiffs also state that it is “unacceptable” for Judge Wyrick to say that Judge

Wright should be permitted to preside over plaintiff McCurry’s case without taking his

oath of office [Doc. 104, p. 7]. Plaintiffs contend that the Court must order incarceration

of Judge Wright because he acted as a senior judge and disrespected the authority of the

district court without his mandatory oath [Id. at 8]. Plaintiffs further argue that Judge

Wright is guilty of treason because he violated 28 U.S.C. § 453 by acting without an oath

of office [Id. at 9].

As to plaintiffs’ claim that Judge Wyrick found it permissible for Judge Wright to

preside without a valid oath of office, Judge Wyrick stated no such thing. Instead, Judge

Wyrick stated that even if Judge Wright did not have a valid oath of office, such would

not constitute contempt of this Court’s orders [Doc. 102, p. 9]. Judge Wyrick’s

recommendation in that regard is entirely accurate. Even if Judge Wright had acted

without a valid oath of office, that action is not in direct defiance of any of this Court’s

orders. Perhaps, if proven, it would entitle plaintiffs to other relief in another venue. But

it does not warrant an order of contempt in this case. Moreover, to the extent plaintiffs

36

allege that Judge Wright’s actions amounted to treason, again, even if Judge Wright acted

without a valid oath of office, plaintiffs could not seek relief under a criminal statute. See

Clark v. Williams, No. 2:23-cv-4201, 2024 WL 278171, at *2 (S.D. Ohio Jan. 25, 2024)

(“As a private citizen, Plaintiff cannot sue anyone criminally”). Accordingly, plaintiffs’

objections are OVERRULED.

Further, plaintiffs argue that the R&R should be rejected because Judge Wright is

guilty of treason and engaged in a RICO criminal conspiracy to abuse a minor child,

incarcerate plaintiff McCurry, and terminate her parental rights [Doc. 104, p. 9].

Plaintiffs state that Judge Wright initiated criminal contempt proceedings against plaintiff

McCurry for showing his corruption in the divorce/custody case, which is evidence of a

RICO conspiracy [Id. at 10–11]. Plaintiffs further contend that Judge Wright is guilty of

a Class D misdemeanor for child abuse for his April 26, 2023, order depriving the child

of seeing his mother [Id. at 12–13].

This objection consists of conclusory reiterations of the allegations in the amended

complaint without further evidence. Because they are simply conclusory statements, they

are insufficient to support a claim that an order of contempt should be issued. And, even

if these allegations were true, they would not warrant an order of contempt, as they do not

violate an order of this Court. Accordingly, this objection is OVERRULED.

3. Conclusion

For these reasons, plaintiffs’ objections [Doc. 104] are OVERRULED. The R&R

[Doc. 102] is ACCEPTED and ADOPTED IN WHOLE and incorporated into this

37

memorandum opinion. Accordingly, plaintiffs’ second motion for criminal contempt

[Doc. 90] and motion for final judgment on criminal contempt [Doc. 101] are DENIED.

D. Motion to Set Aside Denial of Sanctions

The Court now turns to plaintiffs’ “Motion to Vacate/Set Aside Doc 18 Order

Denying Motion for Sanctions Against the State of Tennessee Pursuant to FRCP 60”

[Doc. 33].

As background, on March 20, 2023, plaintiffs filed a Motion for Sanctions Against

Counsel for the State of Tennessee [Doc. 11]. Plaintiffs alleged that the State allowed

Attorney Eric William Donica, who they allege is a law clerk for Judge W. Neal

McBrayer, to represent Judge Wright [Id. at 1]. Plaintiffs submitted an affidavit in

support, asserting that they called the State on March 17, 2023, and were informed that

the State had received the summons and complaint, and it had been assigned to an

attorney with the last name Donica [Id. at 4–5]. Plaintiffs stated that they then conducted

a Google search for an attorney with the last name Donica and discovered that Attorney

Donica is a law clerk for Judge McBrayer [Id. at 5]. Plaintiffs stated that they did “not

understand why the State of Tennessee ha[s] submitted the lawsuit and summons to a law

clerk who isn’t a registered attorney with their office” and “[t]he actions of the State of

Tennessee are misconduct and fraud upon the tribunal which are grounds for sanctions”

[Id. at 5–6].

Judge Wright, through counsel, responded that Attorney Donica has been a

licensed attorney in Tennessee since January 15, 2021, and, while he clerked for Judge

38

McBrayer until August 2022, he has worked at the Tennessee Attorney General’s Office

since September 2022 [Doc. 17, p. 1]. Attorney Donica was originally assigned to

represent Judge Wright in this case, but the case was subsequently reassigned to Senior

Assistant Attorney General Joe Ahillen, because Attorney Donica’s application for

admission to the Eastern District of Tennessee was pending [Id. at 1–2]. Moreover,

Judge Wright noted that Attorney Donica never filed any documents in this case [Id. at

2]. Therefore, Judge Wright argued that plaintiffs’ motion was both legally and factually

incorrect and should be denied [Id.]. Judge Wright attached an affidavit from Attorney

Donica confirming these facts [Doc. 17-1].

On April 6, 2023, Judge Wyrick denied plaintiffs’ motion for sanctions [Doc. 18].

Judge Wyrick found that plaintiffs had not demonstrated that Attorney Donica made a

false statement or improper representation to the Court in this matter and could not do so

as Attorney Donica did not make an appearance in this matter [Id. at 2].

More than two months later, on June 13, 2023, plaintiffs filed a “Motion to

Vacate/Set Aside Doc 18 Order Denying Motion for Sanctions Against the State of

Tennessee Pursuant to FRCP 60” [Doc. 33]. Specifically, plaintiffs sought relief under

Rule 60(b)(2), (b)(3), or (b)(6) [Id. at 1]. Plaintiffs assert that Attorney Ahillen should be

sanctioned for “tolerating and representing Judge Wright” which is “fraud on the Court

and newly discovered evidence” [Id. at 2]. Plaintiffs again claim that Judge Wright made

“disrespectful and disparaging remarks about the authority of this Court” by ruling that

the instant lawsuit had no effect on his ability to fairly and impartially preside over

39

plaintiff McCurry’s domestic relations case [Id. at 6]. Plaintiffs further take issue with

the fact that Attorney Donica’s LinkedIn profile did not list the State of Tennessee as his

employer and that an employee of the State of Tennessee “engaged in unprofessional

behavior of hanging up on Agness and Ms. Jones when they pressed for more

information on Mr. Donica” [Id. at 4]. Finally, plaintiffs suggest that, if they had not

filed their motion for sanctions, the State would have allowed Attorney Donica to appear

on behalf of Judge Wright “[k]nowing that his application was pending in the Eastern

District” and therefore the State “contemplated to commit fraud upon the tribunal” [Id. at

4–5].

First, although plaintiffs label their motion as seeking relief under Rule 60(b), the

Court finds that the motion is most appropriately construed as an appeal of Judge

Wyrick’s order denying sanctions. Rule 72 of the Federal Rules of Civil Procedures

states that “[w]hen a pretrial matter not dispositive of a party’s claim or defense is

referred to the magistrate judge to hear and decide, the magistrate judge must promptly

conduct the required proceedings and, when appropriate, issue a written order stating the

decision.” Fed. R. Civ. P. 72(a). At that point “[a] party may serve and file objections to

the order within 14 days after being served with a copy” but “[a] party may not assign as

error a defect in the order not timely objected to.” Id. Plaintiffs’ motion is clearly

untimely under Rule 72, as they did not file their appeal of Judge Wyrick’s order within

14 days.

40

Nonetheless, even if plaintiffs’ motion was timely under Rule 72, they are not

entitled to relief. That rule permits the district judge to “modify or set aside any part of

the [magistrate judge’s] order that is clearly erroneous or contrary to law.” Id. Nothing

about Judge Wyrick’s denial of sanctions in this matter is clearly erroneous or contrary to

law. Rule 11(c) permits a party to move for sanctions against any attorney, law firm, or

party that has violated Rule 11(b) or is responsible for the violation. Fed. R. Civ. P.

11(c)(1). Rule 11(b) states that, by presenting a pleading or other paper to the Court, an

attorney or unrepresented party certifies that, to the best of the person’s knowledge,

information, and belief:

(1) it is not being presented for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by

existing law or by a nonfrivolous argument for extending, modifying, or

reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if

specifically so identified, are reasonably based on belief or a lack of

information.

Fed. R. Civ. P. 11(b).

But, of particular note, each section of Rule 11 relates to representations that an

attorney makes before this Court. And none of the complaints that plaintiffs raise in their

appeal of Judge Wyrick’s denial of sanctions involve pleadings or papers filed by

defendants in this case. First, even assuming that some unidentified individual working

41

for the Attorney General’s office hung up the phone on plaintiffs, such is wholly

unrelated to any parties’ representations before this Court. Additionally, there are no

legal requirements that an individual utilizing a social media account such as LinkedIn

keep their profile on such updated with their current employment information, and

plaintiffs’ dissatisfaction with the information they found on a private individual’s

LinkedIn page is entirely irrelevant to this proceeding.

To the extent that plaintiffs appear to claim that the State of Tennessee sought to

perpetrate a fraud on the court by permitting Attorney Donica to represent Judge Wright

in this matter, despite not being admitted to practice in the Eastern District of Tennessee

at that time, until they filed their motion bringing this matter to light, such is pure

speculation. Moreover, plaintiffs’ speculative situation in which Judge Wright would

have been represented by an attorney not admitted to this district is not possible. An

attorney not admitted to this district or not admitted pro hac vice would not be permitted

to register as an e-filer and file pleadings in the Court’s electronic case management

system. See E.D. Tenn. ECF Rules and Procedures, Rule 5.

Finally, to the extent plaintiffs allege that Judge Wright made disparaging

statements about this Court, as discussed supra, the Court finds that nothing about these

comments is disrespectful or disparaging of this Court, nor do these statements violate

any order of this Court.

42

Accordingly, plaintiffs’ “Motion to Vacate/Set Aside Doc 18 Order Denying

Motion for Sanctions Against the State of Tennessee Pursuant to FRCP 60” [Doc. 33] is

DENIED.

E. Motion Objecting to Extension of Time to Answer

The Court will now turn to plaintiffs’ “Motion for Leave for District Court Judge

to Review Magistrates [sic] Order Granting Extension of Time Doc 43 to Defendants

Amy Briggs and Judge Jonathan Minga” [Doc. 45].

On June 13, 2023, defendants Briggs and Judge Minga filed a motion for an

extension of time to answer plaintiffs’ amended complaint [Doc. 35].

Plaintiffs opposed the motion, alleging that all defendants had engaged in another

conspiracy to unlawfully incarcerate plaintiff McCurry, and therefore, Briggs and Judge

Minga’s responses should be barred by judicial estoppel, equitable estoppel, and the

doctrine of unclean hands [Doc. 36, p. 1].

Briggs and Judge Minga replied that their counsel was only retained on June 9,

2023, and needed time to familiarize himself with the case [Doc. 37, p. 1].

In an unauthorized sur-reply brief, plaintiffs argued that Briggs and Judge Minga’s

counsel, Arthur Knight, filed his initial motion for an extension without any justifiable

reasons stated therein [Doc. 38, p. 1]. Plaintiffs argued that the initial motion failed to

comply with Local Rule 7.1 as it was not accompanied by an “opening brief,” “affidavit,”

or “other supporting materials” [Id. at 2]. Plaintiffs stated that Briggs and Judge Minga

received the amended complaint on May 30, 2023, and Attorney Knight’s failure to

43

include this information is an attempt to deceive the Court [Id.]. Plaintiffs also contended

that counsel’s lack of familiarity with the lawsuit “is not justifiable grounds to receive an

extension,” arguing that “ignorance of the law or lack of knowledge . . . does not justify .

. . [the] motion for an extension of time” [Id. at 3–4].

Judge Wyrick granted Briggs and Judge Minga’s motion for an extension of time

to answer [Doc. 43]. Judge Wyrick noted that none of the doctrines cited by plaintiffs

prevent a defendant from being able to respond to a complaint filed against him or her

[Id. at 1]. Judge Wyrick also declined to consider plaintiffs’ sur-reply as it was

improperly filed without leave of court [Id. at 1–2]. Judge Wyrick found that Judge

Minga and Briggs stated sufficient grounds to warrant an extension and that the extension

was not requested for the purpose of delay, and therefore, granted an extension up to July

17, 2023, to respond to the amended complaint [Id. at 2].

Plaintiffs then filed the instant motion [Doc. 45]. Plaintiffs argue that Attorney

Knight’s motion failed to satisfy the Local Rules as it was not accompanied by an

“opening brief and any accompanying affidavits” [Id. at 1]. Plaintiffs also restated that

defendants’ responses should be barred by judicial estoppel, equitable estoppel, and the

doctrine of unclean hands, because they are part of an ongoing criminal conspiracy [Id. at

1–2]. Plaintiffs contend that their unauthorized sur-reply should be considered because

Attorney Knight failed to attach justifiable reasons to his initial motion for an extension

[Id. at 3].

44

Even considering the unauthorized sur-reply brief, plaintiffs have not shown that

Judge Wyrick’s order granting an extension of time to answer was clearly erroneous or

contrary to law. Although the motion for an extension of time did not set forth specific

grounds supporting the requested extension, these grounds were ultimately set forth in the

reply brief. And Rule 6(b)(1) does not even require that a motion be filed by a party if

the Court finds good cause for an extension of time. See Fed. R. Civ. P. 6(b)(1)

(permitting a court to extend a deadline “for good cause . . . with or without motion or

notice if the court acts, or if a request is made, before the original time or its extension

expires”). Accordingly, the Court will not overturn Judge Wyrick’s order on such a

technicality, especially when both parties committed technical errors in the briefing of

this motion (defendants in not setting forth the specific grounds for the requested relief in

the initial motion and plaintiffs in filing a sur-reply without leave of court).

Next, as Judge Wyrick explained, the doctrines of judicial estoppel, equitable

estoppel, and unclean hands are entirely inapplicable here [Doc. 43, p. 1]. And plaintiffs

have presented no argument as to why Judge Wyrick’s analysis of these doctrines was

clearly erroneous or contrary to law.

Finally, even if plaintiffs raised valid arguments in opposition to the request for an

extension of time to answer, the Court notes the strong preference for adjudications of

matters on the merits, after both sides have had opportunity to present their case. See

Mann v. Mohr, 802 F. App’x 871, 877 (6th Cir. 2020) (“[I]f the district court had denied

leave to file the tardy answer and default had entered instead, defendants almost certainly

45

would have been entitled to have the default set aside, given their facially meritorious

defense and the strong policy favoring adjudication on the merits.” (quotation marks

omitted)); Rose v. Social Security Administration, 202 F.3d 270 (table), No. 98-6491,

1999 WL 1253074, at *1 (6th Cir. Dec. 17, 1999) (“[T]his court prefers that claims be

adjudicated on their merits.”); Coburn v. L.J. Ross Associates, Inc., No. 14-CV-11080,

2015 WL 1926398, at *4 (E.D. Mich. April 28, 2015) (“There is a strong preference for

adjudicating cases on the merits rather than on a failure to timely file answers to requests

for admissions.”). Accordingly, the Court finds that Judge Wyrick’s grant of an

extension of time was not clearly erroneous or contrary to law. Therefore, plaintiffs’

motion [Doc. 45] is DENIED.

F. Objection to Magistrate Judge’s Order Denying Motion Barring

Defendants from Seeking Relief

On June 16, 2023, plaintiffs filed a “Motion to Bar Defendants Senior Judge

Thomas Wright, Counsel Sandy Phillips, Benjamin McCurry and Kelly McCurry From

Seeking Any Form Of Relief From This Court Due to Continued Litigation Misconduct,

Conspiracy to Violate Federal And State Law and Fraud” [Doc. 40]. Plaintiffs appear to

allege that Attorney Phillips, Benjamin, and Kelly are committing fraud because, while

Benjamin and Kelly are purportedly proceeding pro se, Attorney Phillips is assisting

them in preparing motions [Id. at 8]. They contend that the same thing occurred in the

state court and Judge Wright ignored the issue [Id.]. Plaintiffs appear to allege that these

defendants should therefore be prohibited from seeking any relief in this action under the

doctrine of equitable estoppel [Id. at 10].

46

Judge Wyrick denied the motion [Doc. 87]. Judge Wyrick noted that, while

plaintiffs cite generally to the equitable principle of estoppel, they have provided no

specific examples that are applicable [Id. at 1]. And, even if the Court refused to

consider defendants’ motions to dismiss, the Court may still dismiss an action if it

determines that a plaintiff has failed to state a claim upon which relief may be granted

[Id. at 1–2]. Therefore, Judge Wyrick found that the motions to dismiss, and plaintiffs’

responses thereto, would be considered pursuant to applicable law [Id. at 2].

Plaintiffs objected, arguing that Judge Wyrick had violated the Local Rules

multiple times and “encouraged litigation misconduct” [Doc. 89, p. 1]. Plaintiffs appear

to assert that Judge Wyrick’s order was not timely, citing to Local Rule 7.2, which states

that “[m]otions will be disposed of routinely as soon as possible after they become at

issue” [Id. at 2]. Plaintiffs further contend that Judge Wyrick is biased because she

previously stated that plaintiffs “won’t prevail on the merits” [Id. at 3 (citing Doc. 67, p.

15)]. Plaintiffs ask that Judge Wyrick’s order be vacated due to “misconduct” [Id. at 4].

Plaintiffs have not shown that Judge Wyrick’s denial of their motion was clearly

erroneous or contrary to law. Plaintiffs largely devote the instant motion to leveling

vague and inaccurate allegations that Judge Wyrick has engaged in misconduct.

Plaintiffs argue that Judge Wyrick violated Local Rule 7.2 because her order was

not “timely,” but Judge Wyrick issued her order on July 26, 2023 [Doc. 87] after the

motion became ripe on June 30, 2023. See E.D. Tenn. L.R. 7.1(a) (permitting 14 days to

respond to a non-dispositive motion). And during that 26-day timeframe, Judge Wyrick

47

issued an R&R [Doc. 67] and 4 other orders [Docs. 76, 77, 79, 88] in this case. Contrary

to plaintiffs’ opinions, the Court must devote time to other pending matters besides this

case. Judge Wyrick’s 26-day period to address the motion once it became ripe was

imminently reasonable, especially considering that, of those 26 days, 8 were weekends,

and 1 was a federal holiday, leaving only 17 business days between the motion becoming

ripe and Judge Wyrick issuing her order.

As to plaintiffs’ claim that Judge Wyrick displayed bias by stating they “won’t

prevail on the merits,” what Judge Wyrick actually stated was, at that juncture “Plaintiffs

simply have not demonstrated any likelihood of success on the merits” [Doc. 67, p. 15].

And, far from expressing bias, Judge Wyrick made this statement in the course of issuing

her R&R on plaintiffs’ request for a preliminary injunction. To obtain such relief, a

plaintiff is required to show, among other things, “a substantial likelihood or probability

of success on the merits of [their] claim.” Liberty Coins, LLC v. Goodman, 748 F.3d 682,

690 (6th Cir. 2014) (internal quotation marks omitted). Thus, rather than displaying bias,

Judge Wyrick’s statement in the R&R is simply an example of her diligent and legally

sound analysis of plaintiffs’ request for a preliminary injunction.

Accordingly, plaintiffs have not shown that Judge Wyrick’s denial of this motion

was clearly erroneous or contrary to law, and their appeal motion [Doc. 89] is DENIED.

48

G. Motion for Preliminary Injunction against Judge Lauderback’s Joint

Preliminary Restraining Order

Plaintiffs move for a preliminary injunction against the July 14, 2022, joint mutual

restraining order entered by Judge Lauderback [Doc. 106].7 Plaintiffs argue that this

order “was entered without the consent or testimony of Agness which is a Due Process

violation” [Id. at 1]. Plaintiffs appear to contend that Judge Lauderback abused his

discretion by ignoring plaintiff McCurry’s VAWA [Id. at 3]. Plaintiffs state that plaintiff

McCurry attempted to seek relief regarding Judge Lauderback’s joint mutual restraining

order, but the Court of Appeals judges “harassed” her at oral argument [Id. at 4].

Plaintiffs contend that they “will prevail on the merits because the case is set for

jury trial in August 2024” [Id. at 7]. And they argue that the public will be served by

entry of an injunction “because it will expose the RICO criminal conspiracy” [Id.].

Plaintiffs allege that the Department of Children’s Services (“DCS”) will not ensure the

safety of plaintiff McCurry’s son “due to the various Orders by Defendant Judge

Lauderback” [Id. at 7–8]. Plaintiffs claim that plaintiff McCurry will suffer irreparable

damage if the Court does not issue an injunction because “[t]here is a new criminal

conspiracy that is at work involving DCS to terminate Agness [sic] parental rights on

false allegations of ‘abandonment’ and ‘non-compliance’” [Id. at 9].

7 The vast majority of this motion is spent reiterating plaintiffs’ prior allegations about a

conspiracy, plaintiff McCurry’s mental health, VAWA, etc., and does not actually address Judge

Lauderback’s order or why its enforcement should be enjoined [See Doc. 106]. However, the

Court has summarized above the arguments relating to the relevant order, to the extent possible.

49

Under Federal Rule of Civil Procedure 65, a party may seek injunctive relief if it

believes it will suffer irreparable harm or injury during the pendency of the action. See

Fed. R. Civ. P. 65. “A preliminary injunction is an extraordinary remedy which should

be granted only if the movant carries his or her burden of proving that the circumstances

clearly demand it.” Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566,

573 (6th Cir. 2002).

In determining whether to grant a plaintiff’s request for a preliminary injunction,

the Court must consider four factors:

(1) whether the movant has shown a strong likelihood of success on the

merits; (2) whether the movant will suffer irreparable harm if the injunction

is not issued; (3) whether the issuance of the injunction would cause

substantial harm to others; and (4) whether the public interest would be

served by issuing the injunction.

Id. Although courts are to balance each of these factors in making their determination,

“even the strongest showing on the other three factors cannot eliminate the irreparable

harm requirement.” D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 326–27 (6th Cir. 2019)

(internal quotation marks omitted).

Here, the Court finds that plaintiffs have not established that a preliminary

injunction against enforcement of Judge Lauderback’s joint mutual restraining order is

warranted. First, plaintiffs have not established a substantial likelihood of success on the

merits of their claims against Judge Lauderback. As to the specific arguments8 they raise

8 The Court notes that many of these claims regarding Judge Lauderback and the entry of

the joint mutual restraining order are not contained in the amended complaint and are not

properly raised in a motion. See Tchankpa v. Ascena Retail Group, Inc., 951 F.3d 805, 817 (6th

50

in the motion for an injunction, plaintiffs first contend that plaintiff McCurry’s due

process rights were violated by issuance of the joint mutual restraining order without

hearing her testimony. The record shows that Judge Lauderback held a hearing on July

14, 2022, to address Benjamin’s petition for an order of protection against plaintiff

McCurry [Doc. 24-16]. After Attorney Phillips made an opening statement, Judge

Lauderback permitted plaintiff McCurry to make an opening statement and informed her

that she would have a chance to provide evidence later in the proceeding [Id. at 12].

Plaintiff McCurry later asked several times if she would have an opportunity to testify,

and Judge Lauderback confirmed that she would [Id. at 23, 29–30].

However, at the end of Benjamin’s direct testimony, Judge Lauderback stated that

he was not going to permit cross-examination or further evidence, because he was going

to dismiss Benjamin’s petition for an order of protection, and accordingly, there was no

need for further evidence [Id. at 59]. After Judge Lauderback announced the terms of the

joint mutual restraining order that he sua sponte issued, plaintiff McCurry stated that it

was “unfair that they’ve been allowed to testify and I haven’t,” to which Judge

Lauderback responded that it was not unfair because he was dismissing the petition [Id. at

64]. Plaintiff McCurry continued to complain that she was told she could testify, and

Judge Lauderback again explained that, in the normal course, he would hear both sides

Cir. 2020) (“Ultimately, the plaintiff’s amended complaint must contain either direct or

inferential allegations with respect to all material elements necessary to sustain a recovery under

some viable legal theory” (internal quotation marks omitted)). However, because, even if these

claims were properly raised, they would not establish entitlement to relief, the Court addresses

the merits of the arguments.

51

before granting an order of protection, but, because he was dismissing the petition, he did

not need to hear more evidence [Id. at 65]. Plaintiff McCurry also continued to raise

dissatisfaction about her child custody arrangement, and Judge Lauderback repeatedly

explained that the custody matter was not before him at that hearing, only the petition for

a restraining order [Id. at 64–67]. Despite all explanation, plaintiff McCurry continued to

assert that it was unfair that she was not permitted to testify [Id. at 67–68].

Nothing about Judge Lauderback’s decision to not hear additional evidence

regarding Benjamin’s petition for an order of protection after he had already determined

that Benjamin had not met the requirements for obtaining an order of protection violated

plaintiffs’ constitutional rights. Although Judge Lauderback initially assured plaintiff

McCurry she would be provided a chance to testify, essentially what happened was,

before plaintiff McCurry could testify, Judge Lauderback decided to rule in her favor on

the petition for an order of protection. Nothing plaintiff McCurry could have stated or

presented as evidence after that point would have changed the outcome, which, again,

was in her favor. Thus, if plaintiffs raised a claim against Judge Lauderback on this

ground, it would not have a substantial likelihood of success on the merits.

Next, plaintiffs argue that Judge Lauderback ignored plaintiff McCurry’s VAWA.

But plaintiff McCurry’s alleged VAWA had no bearing on Benjamin’s petition for an

order of protection. Moreover, plaintiffs have not explained how consideration of

plaintiff McCurry’s alleged VAWA would have altered the outcome of the hearing on the

petition for an order of protection, which was a decision in plaintiff McCurry’s favor.

52

Accordingly, if plaintiffs raised a claim against Judge Lauderback on this ground, it

would not have a substantial likelihood of success on the merits.

Additionally, plaintiffs assert that plaintiff McCurry was “harassed” by the

Tennessee Court of Appeals when she attempted to appeal this issue. However, the Court

has reviewed the video of the oral argument, which plaintiffs cite [Doc. 106, p. 5], and

finds that nothing about the oral argument was “harassing.” Plaintiff McCurry was

allowed to present her argument for several minutes, before Judge John Westley

McClarty asked what evidence she had presented of domestic violence. TNCourts,

Benjamin McCurry v. Agness McCurry, YOUTUBE (Aug. 16, 2023),

https://www.youtube.com/watch?v=jvObRnh7nDY. After plaintiff McCurry responded

that the VAWA was her evidence, Judge McClarty asked if there were any police reports

or reports made to local authorities of domestic violence. Id. Plaintiff McCurry

responded about evidence presented, and Judge McClarty noted that much of plaintiff

McCurry’s statements related to her initial divorce proceeding and questioned whether in

the emergency custody proceeding she had presented evidence of domestic violence. Id.

Judge D. Michael Swiney later asked plaintiff to clarify what arguments she raised before

the trial court regarding a change of custody, indicating that the court of appeals could

only review those issues. Id. Plaintiff McCurry was allowed to continue arguing a few

minutes beyond the 15-minute oral argument limit, at which point, Judge Swiney cut off

plaintiff McCurry’s argument. Id. Plaintiff McCurry protested that the oral argument

had been unfair. Id.

53

Absolutely nothing in this oral argument could be construed as “unfair” or

“harassing.” Plaintiff McCurry was given more than the 15 minutes that the court of

appeals initially allowed her for oral argument. To the extent that plaintiffs find it

“harassing” or “unfair” that plaintiff McCurry was asked questions during her oral

argument, it is standard practice for appellate judges to ask a party questions during the

course of oral argument. See, e.g., Supreme Court of the United States, Supreme Court

Procedures, https://www.uscourts.gov/about-federal-courts/educational-resources/about-

educational-outreach/activity-resources/supreme-1 (last accessed Feb. 20, 2024) (stating

that, at oral argument, “lawyers for each party have a half hour to make their best legal

case to the Justices. Most of this time, however, is spent answering the Justices’

questions. The Justices tend to view oral arguments not as a forum for the lawyers to

rehash the merits of the case as found in their briefs, but for answering any questions that

the Justices may have developed while reading their briefs”). Thus, even if plaintiffs had

raised a claim relating to the Tennessee Court of Appeals judges’ alleged harassment

during oral argument on appeal, they have not shown a substantial likelihood of success

on the merits of such claim.

Moreover, to the extent that plaintiffs contend that they have shown a substantial

likelihood of success on the merits because this Court entered a scheduling order setting a

trial date, the entry of the scheduling order had no relevance to the merits of plaintiffs’

claims in this case. Rather, the Court is required, by the Federal Rules of Civil

Procedure, to enter a scheduling order at a certain time in every civil case. See Fed. R.

54

Civ. P. 16(b)(1). Accordingly, the entry of the scheduling order does not provide any

evidence that plaintiffs have a substantial likelihood of succeeding on the merits of their

claims.

Furthermore, plaintiffs have not established that they will suffer irreparable harm

if a preliminary injunction is not entered. As to plaintiff Jones, it is unclear how she will

suffer any harm, much less irreparable harm, as she is not a party to the joint mutual

restraining order at issue here. As to plaintiff McCurry, she contends that she will suffer

irreparable harm because DCS has begun a new conspiracy against her to terminate her

parental rights. But it is entirely unclear how the joint mutual restraining order is

facilitating this new alleged conspiracy, or how a preliminary injunction against

enforcement of the joint mutual restraining order would stop this new conspiracy.

Accordingly, plaintiffs have not met their burden of establishing irreparable harm will

result if the Court does not issue the requested injunctive relief.

For all of these reasons, plaintiffs’ request for a preliminary injunction against the

July 14, 2022, joint mutual restraining order entered by Judge Lauderback [Doc. 106] is

DENIED.

H. R&R on Motions to Dismiss

Defendants Benjamin, Kelly, Attorney Phillips, Attorney Ward, Briggs, and Judge

Minga have filed motions to dismiss plaintiffs’ amended complaint [Docs. 41, 42, 48, 55,

81]. Plaintiffs responded [Docs. 52, 53, 54, 57, 83].

55

1. Summary of R&R

In an R&R, Judge Wyrick recommended that these motions to dismiss be granted

[Doc. 108]. First, Judge Wyrick noted that the only claims plaintiff Jones asserts are

against Judge Wright relating to her allegation of intentional infliction of emotional

distress, but to the extent that she sought to bring claims against any defendant other than

Judge Wright, such claims fail because she has only alleged facts related to her

interactions with Judge Wright [Id. at 15].

Next, Judge Wyrick stated that Attorney Phillips sought dismissal based

upon plaintiffs’ failure to effectuate proper service [Id. at 16]. Judge Wyrick also noted

that plaintiffs did not contest the actual sufficiency of service, but instead argue that

Attorney Phillips had actual knowledge of the lawsuit [Id.]. Judge Wyrick found that

plaintiffs provided no proof that the summons and complaint were sent in accordance

with Tennessee Rule of Civil Procedure 4.04(10), and nothing in the record reflected that

the documents were sent by registered return receipt or certified return receipt mail [Id. at

17]. Moreover, actual knowledge of the lawsuit is not a defense to insufficiency of

process. See Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991).

Accordingly, Judge Wyrick found that Attorney Phillips was not properly served and

recommended that plaintiffs’ amended complaint be dismissed as to Attorney Phillips for

insufficient service of process under Rule 12(b)(5) [Id.].

Regarding Briggs and Judge Minga’s motion to dismiss, Judge Wyrick first

addressed plaintiffs’ contention that the Court should decline to consider the motion

56

because defendants did not meet and confer with plaintiffs before filing the motion [Id. at

18]. Judge Wyrick noted that the requirement to meet and confer prior to filing a motion

to dismiss is akin to the local rule, and the Court has broad discretion to overlook

violations [Id.]. Additionally, the purpose of the meet and confer requirement is to

discuss whether any purported deficiencies can be cured by the filing of an amended

complaint, and defendants’ claim to immunity is not a deficiency that could be cured by

meeting and conferring; therefore, Judge Wyrick recommended the merits of the motion

be addressed [Id. at 18–19].

Judge Wyrick then found that Briggs was entitled to quasi-judicial immunity

because the actions described in plaintiffs’ amended complaint were taken while carrying

out her duties as Clerk of Court [Id. at 20–22]. Judge Wyrick noted that plaintiffs’

amended complaint refers to an incident in which Briggs allegedly “called the police” on

plaintiff McCurry, and Judge Wyrick had reviewed the recording of plaintiff McCurry’s

interaction with Clerk’s Office personnel on the day at issue, which reflects that a

member of that office called a court security officer to the window [Id. at 20]. Judge

Wyrick found that, to the extent that it was Briggs who called the court security officer to

the window to ensure a peaceful interaction between her staff and McCurry, she was

acting in her role as Clerk of Court.

Additionally, plaintiffs contend that Briggs engaged in misconduct by posting a

“defamatory” court order on the window of the Office of the Circuit Court Clerk,

addressing the manner in which members of the public should conduct themselves when

57

interacting with the Clerk’s Office [Id. at 21]. Judge Wyrick noted that it would be

impossible for this order to constitute publication of a defamatory statement, as the order

does not mention plaintiff McCurry and, on its face, there is no way to determine that

plaintiff McCurry had any connection to it. Regardless, Judge Wyrick found that Briggs

was acting in her capacity as Clerk of Court when she filed and posted the order at issue

at the clerk’s window, and therefore, she is entitled to immunity for those actions [Id.].

Moreover, Judge Wyrick rejected plaintiffs’ claims regarding Briggs and her

counsel, Attorney Ward, making “defamatory statements” regarding plaintiff McCurry in

responding to a state court lawsuit, because statements made during a judicial proceeding

that are relevant and pertinent to the issues are privileged and cannot be used as a basis

for a libel action [Id. at 21–22]. And finally, Judge Wyrick rejected plaintiffs’ claims that

Briggs was involved in a conspiracy with Judge Wright because Attorney Phillips

included information regarding the posted order discussed previously in a filing in

plaintiff McCurry’s custody case [Id. at 22]. Judge Wyrick noted that there is no

allegation that Briggs was involved in Attorney Phillips’s decision to include this

information in an argument and plaintiffs have not set forth any facts that would indicate

a conspiracy between Judge Wright and Briggs [Id.].

Turning to Judge Minga, Judge Wyrick took judicial notice of his role as General

Sessions Court Judge for Washington County, Tennessee [Id. at 23]. Judge Wyrick also

noted that plaintiff McCurry was charged with two misdemeanors and filed motions in

Judge Minga’s court. Based on this information, Judge Wyrick found that Judge Minga

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had jurisdiction over plaintiff McCurry’s criminal case and did not act in the complete

absence of all jurisdiction [Id.]. Moreover, the actions plaintiffs label as improper were

all taken in Judge Minga’s judicial capacity [Id. at 24]. Accordingly, Judge Minga is

entitled to judicial immunity [Id.].

Next, Judge Wyrick stated that plaintiffs sought to hold defendants liable under

one or more of the following statutes: 18 U.S.C. §§ 241, 242, 371, 1001, 1621, and 1623

[Id.]. However, these sections address criminal liability and penalties, and do not create a

private right of action that would allow plaintiffs to sue under them [Id. at 25].

Accordingly, Judge Wyrick recommended dismissal of any claims relying on these

criminal statutes [Id.].

Judge Wyrick stated that, while plaintiffs have only explicitly sued Judge Wright

under 42 U.S.C. § 1983, given their accusations that Benjamin, Kelly, and Attorney Ward

conspired with Judge Wright, the Court would construe plaintiffs’ claims against those

defendants as claims under § 1983 [Id. at 25–26]. Judge Wyrick noted that a § 1983

claim requires a showing that a defendant was acting under color of state law, but a

private party may be liable under § 1983 if they conspired with a state actor to violate an

individual’s constitutional rights [Id. at 26–27]. To the extent that plaintiffs assert that

Benjamin and Kelly conspired with Attorney Phillips, such alleged conspiracy could not

support a claim under § 1983 because all of these defendants are private actors [Id. at 27].

As to plaintiffs’ claims against Benjamin, Judge Wyrick noted that plaintiffs allege

Benjamin lied in pleadings before the state court [Id. at 28]. But Judge Wyrick found

59

that, even accepting this allegation as true, it does not indicate that Benjamin was

conspiring with Judge Wright. And plaintiffs provided no evidence that Judge Wright

was aware of any false information contained in these pleadings or that he conspired with

Benjamin in their filing. Regarding the other occurrences described by plaintiffs in the

amended complaint, Judge Wyrick found that such were common in litigation and did not

indicate a conspiracy or any unlawful activity [Id.].

As to plaintiffs’ claims against Kelly, Judge Wyrick found that plaintiffs provided

no facts indicating that Kelly ever interacted with Judge Wright outside of a judicial

setting [Id. at 29]. Additionally, the facts they rely upon in asserting a claim against

Kelly are largely the same as those used in attempting to assert a claim against Benjamin,

which fail for the same reasons [Id.].

As to plaintiffs’ claims against Attorney Ward, Judge Wyrick found that the facts

plaintiffs allege in support of their claim of a conspiracy between Attorney Ward and

Judge Wright are either descriptions of common occurrences in litigation or conclusory

and unsupported statements which are insufficient to demonstrate that the two ever

formed a single plan or conspiratorial objective [Id.].

As a result of the above, Judge Wyrick recommended dismissal of all claims

asserted by plaintiffs under federal law as to defendants Benjamin, Kelly, Briggs,

Attorney Ward, and Judge Minga [Id. at 32]. Further, Judge Wyrick recommended that

the Court decline to exercise supplemental jurisdiction over plaintiffs’ state law claims

for emotional distress [Id. at 33].

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2. Analysis of Objections

Plaintiffs filed a plethora of objections to the R&R [Doc. 113]. First, plaintiffs

argue that the R&R should be rejected in whole because the magistrate judge “violated

the Local Rules of this Court and the Federal Rules of Civil Procedure 72(b)” [Id. at 1].

Plaintiffs claim that Judge Wyrick committed judicial misconduct in amending the R&R

without leave from the district court [Id. at 2]. Additionally, plaintiffs appear to assert

that Judge Wyrick violated Local Rule 7.2 and Federal Rule of Civil Procedure 72(b) by

not “rul[ing] timely on pre-trial matters” [Id. at 3]. Plaintiffs contend that the Court

should reject the R&R because Judge Wyrick has “unclean hands” and on the grounds of

equitable estoppel [Id. at 4].

But, contrary to plaintiffs’ assertion, the instant R&R was not amended. And, as

the Court has previously addressed, the motions in this case have all been timely

addressed, particularly given the number and length of the motions filed and the delays

caused by requests for recusals and appeals. The Court finds no error in the timeliness of

Judge Wyrick’s rulings. Moreover, to the extent plaintiffs ask the Court to reject the

R&R on the grounds of equitable estoppel or the doctrine of unclean hands, those

doctrines only apply to parties to the litigation, not a judicial officer. See Heckler v.

Comm. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 59 (1984) (“the party

claiming the estoppel must have relied on its adversary’s conduct in such a manner as to

change his position for the worse” (internal quotation marks omitted) (emphasis added));

Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1383 (6th Cir.

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1995) (“The concept of unclean hands may be employed by a court to deny injunctive

relief where the party applying for such relief is guilty of conduct involving fraud, deceit,

unconscionability, or bad faith . . . .” (internal quotation marks omitted) (emphasis

added)). Accordingly, this objection is OVERRULED.

Second, plaintiffs argue that the R&R should be rejected due to the magistrate

judge’s “erroneous views regarding Agness [sic] mental health protected under HIPAA”

[Doc. 113, p. 4]. Plaintiffs appear to assert that Judge Lauderback suspended plaintiff

McCurry’s visitation rights with her child based on “aggravated perjury and false

allegations about her mental health” and subsequently recused himself from the custody

case due to this error [Id. at 5–6]. Plaintiffs contend that Judge Wyrick “failed to report

the truth of Judge Lauderback’s recusal” [Id. at 5]. Plaintiffs also contend that defendants

Benjamin and Attorney Phillips violated plaintiff McCurry’s right to privacy under

HIPAA by submitting a medical report under seal in the underlying custody case [Id. at

6]. Plaintiffs assert that Benjamin and Attorney Phillips fabricated evidence that plaintiff

McCurry suffered from “paranoia, psychosis and delusional thinking” and this falsehood

was accepted and furthered by Judge Wright [Id. at 8]. Moreover, plaintiffs contend that

Judge Wright’s reliance on such information is itself a HIPAA violation [Id. at 8–10].

These arguments constitute a new claim that was not raised previously, and

therefore, are not properly raised in objections to the R&R. However, even if properly

raised, the Court finds that plaintiffs’ HIPAA claims fail because there is no private right

of action under HIPAA. See Middlebrook v. Pelto, No. 2:23-cv-173, 2023 WL 7144601,

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at *3 (W.D. Mich. Oct. 31, 2023) (“HIPAA provides no private right of action” and

instead “penalties for HIPAA violations are imposed by the Secretary of Health and

Human Services” (internal quotation marks and alterations omitted)). This objection is

therefore OVERRULED.

Third, plaintiffs contend that the R&R should be rejected based on the magistrate

judge’s “erroneous views regarding Retired Judge Thomas Wright’s missing Oath with

the Tennessee Secretary of State TN Code § 8-18-108 (2021)” [Doc. 113, p. 10].

Plaintiffs claim that Judge Wright “is a fugitive from the law because he failed to take his

mandatory sworn oath and file it with the Tennessee Secretary of State” [Id. at 11].

Plaintiffs contend that by acting without his mandatory sworn oath, Judge Wright

committed a Class C misdemeanor [Id. at 13]. Plaintiffs argue that Judge Wyrick

erroneously relied on the proceedings before Judge Wright which “are void and nullified

by Tennessee law” [Id. at 13–14].

As the Court explained supra, plaintiffs have not established that Judge Wright’s

oath of office was invalid based on their speculation that it was not filed with the

Tennessee secretary of state. And Judge Wyrick provided a copy of Judge Wright’s oath

of office [Doc. 102-1] which appears valid on its face. Moreover, even if Judge Wright’s

oath of office were not valid, such has no impact on the R&R’s recommendations that

claims against other defendants should be dismissed. Contrary to plaintiffs’ assertions,

the R&R does not rely on any order of Judge Wright in recommending dismissal of their

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complaint as to Benjamin, Kelly, Briggs, Judge Minga, Attorney Ward, and Attorney

Phillips. Accordingly, this objection is OVERRULED.

Fourth, plaintiffs argue that the R&R should be rejected based on the magistrate

judge’s “erroneous views regarding Plaintiff Agness’ VAWA, violations to the Privacy

Act of 1974 regarding her ‘VAWA application’ and ‘details of the abuse’ from Benjamin

Mc[C]urry” [Doc. 113, p. 14]. Plaintiffs point to a footnote in the R&R which noted that,

despite repeated reference to it, plaintiffs had not presented plaintiff McCurry’s VAWA

application or any details of the alleged abuse in the record [Id.]. Plaintiffs argue that the

magistrate judge did not need the VAWA application or any details of the alleged abuse,

and her statements violated plaintiff McCurry’s right to privacy under 8 U.S.C. § 1367

[Id. at 15].

Judge Wyrick’s notation regarding plaintiff McCurry’s alleged VAWA in this

footnote is ultimately irrelevant to her recommendation on the motions to dismiss.

Regardless, Judge Wyrick’s point is well made that, despite plaintiff McCurry’s

insistence that Judge Wright’s rulings in her state custody proceeding ignored her

VAWA, and that her VAWA determination is conclusive as to the custody dispute,

plaintiff McCurry has yet to present this Court with actual proof of a final, approved

VAWA petition. No court could determine that error occurred in the state court

proceedings in contravention of plaintiff McCurry’s VAWA in the complete absence of

any evidence that plaintiff McCurry has a final, approved VAWA petition. But, again,

Judge Wyrick’s footnote to this effect is merely dicta, which did not impact the

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recommendation in her R&R. Moreover, Judge Wyrick’s footnote could not have

violated 8 U.S.C. § 1367, which provides for penalties for disclosure of certain

information under the VAWA, when Judge Wyrick had no information to disclose. And,

to the extent that plaintiffs allege that Judge Wyrick was somehow prohibited from even

noting the lack of evidence alleged to be contained in plaintiff McCurry’s VAWA,

§ 1367 provides no support for this argument. Accordingly, this objection is

OVERRULED.

Fifth, plaintiffs contend that the R&R should be rejected because they have filed a

motion to amend their complaint to include additional defendants and claims under

§ 1983 [Doc. 113, p. 17]. They contend that these new claims center on a new

conspiracy involving Benjamin and the DCS attempting to terminate plaintiff McCurry’s

parental rights based on false allegations about her mental health [Id. at 17–18]. For the

reasons stated infra, plaintiffs’ motions to amend are denied. Accordingly, this objection

is OVERRULED.

Sixth, plaintiffs argue that the R&R must be rejected as to Attorney Phillips,

because plaintiffs complied with Federal Rule of Civil Procedure 4 and provided proper

service [Doc. 113, p. 21]. Plaintiffs contend that Judge Wyrick “intentionally overlooked

FRCP 4(d) that describes the ‘waiver’ process” and they were not obligated to give

Attorney Phillips a waiver [Id. at 22]. Plaintiffs state that they gave the summons,

complaint, and exhibits to a process servicer that mailed it to Attorney Phillips’s place of

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business, therefore, they properly served Attorney Phillips under Rule 4(e)(1) & (2) [Id.

at 23].

As to Rule 4(d)’s waiver provision, it is unclear why plaintiffs believe that Judge

Wyrick invoked this provision. The R&R does not mention any waiver of service with

regard to Attorney Phillips. Nor does Attorney Phillips contend that she waived her right

to service of process. Accordingly, plaintiffs’ statements regarding Rule 4(d) are

irrelevant to the instant matter.

Plaintiffs also contend that they served Attorney Phillips under Rule 4(e)(1) and

(2). That rule states:

Unless federal law provides otherwise, an individual—other than a minor,

an incompetent person, or a person whose waiver has been filed—may be

served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought

in courts of general jurisdiction in the state where the district court is

located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to

the individual personally;

(B) leaving a copy of each at the individual’s dwelling or

usual place of abode with someone of suitable age and discretion

who resides there; or

(C) delivering a copy of each to an agent authorized by

appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). By plaintiffs’ own admission, they mailed a copy of the complaint

and summons to Attorney Phillips’s place of business. This clearly does not qualify as

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proper service under Rule 4(e)(2), as the complaint and summons were not personally

handed to Attorney Phillips, it was not left with a person at Attorney Phillips’s residence,

and it was not delivered to an authorized agent. See Cunningham v. Enagic USA, Inc.,

No. 3:15-0847, 2019 WL 1029551, at *4 (M.D. Tenn. Feb. 15, 2019) (“[T]he Federal

Rules do not independently authorize service of an individual by mail, and, therefore,

courts must look to state law when service by mail is attempted”).

The Tennessee Rules of Civil Procedure, however, do permit service by mail.

Tenn. R. Civ. P. 4.04(10). Specifically, the Tennessee rule states that:

Service by mail of a summons and complaint upon a defendant may be

made by the plaintiff . . . . Such person shall send, postage prepaid, a

certified copy of the summons and a copy of the complaint by registered

return receipt or certified return receipt mail to the defendant.

Tenn. R. Civ. P. 4.04(10) (emphasis added). Service in compliance with Tennessee Rule

4.04(10) would constitute compliance with Federal Rule 4(e)(1). However, as Judge

Wyrick explained, plaintiffs have not shown that they have properly served Attorney

Phillips in compliance with Tennessee Rule 4.04(10), because they have not shown, or

even alleged, that they mailed the summons and complaint “by registered return receipt

or certified return receipt mail.” Accordingly, Judge Wyrick properly found that

plaintiffs have not effectuated service of process on Attorney Phillips and the objection to

this conclusion is OVERRULED.

Seventh, plaintiffs argue that the magistrate judge’s determination regarding

Briggs’s immunity must be rejected because Briggs’s defamation was used by Attorney

Phillips to deprive plaintiff McCurry of her visitation rights with her son [Doc. 113, p.

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25]. Plaintiffs note that Attorney Phillips stated in the Emergency Motion that plaintiff

McCurry “has a tendency to lash out and lose physical control when she is frustrated”

and stated that this was “evidenced by the behavior she elicited at the circuit court clerk’s

window, resulting in a warning to everyone who comes to the window to conduct

themselves appropriately” [Id. at 26]. Plaintiffs contend that Briggs is not entitled to

immunity because her actions were beyond the scope of her official duties [Id. at 28].

Plaintiffs concede that the posted order never identified anyone by name but assert that

Judge Wright dismissed a complaint filed by plaintiff McCurry to cover up the truth that

Briggs provided Attorney Phillips with the information about the origin of the posted

order [Id. at 28–29].

The Court interprets plaintiffs’ objection as alleging that Briggs acted outside the

scope of her official duties in providing Attorney Phillips information about the

connection between plaintiff McCurry and the posted order. But ultimately, that is a

purely speculative claim. Plaintiffs seem to imply that, because Attorney Phillips knew

of the connection between plaintiff McCurry and the posted order, Briggs must have

contacted Attorney Phillips to share this information. But Attorney Phillips could have

learned of the incident at the courthouse leading to the order in any number of ways.

And, even if Briggs provided this information to Attorney Phillips, and even if it was

outside the scope of activity for which she would be immune from suit, it nevertheless

does not violate any of plaintiff’s constitutional rights, such that plaintiff could state a

claim under § 1983. Accordingly, this objection is OVERRULED.

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Eighth, plaintiffs argue that the R&R must be rejected as to claims against

Benjamin and Kelly because there is evidence of child abuse [Doc. 113, p. 30]. They

claim that Judge Wyrick “failed to assert any grounds showing that Benjamin is innocent

of the claims alleged in the complaint” and “only offered her biased and erroneous

opinion of the facts” [Id. at 31]. Plaintiffs contend that there is “plenty of evidence” to

show existing child abuse occurring [Id. at 33].

Judge Wyrick correctly found that plaintiffs could not maintain a claim of “child

abuse” against any defendant under the criminal statute, because “criminal statutes do not

give rise to a private cause of action and cannot be a basis for a private civil action.”

Brewster v. Wells Fargo Bank, N.A., No. 11-1232, 2012 WL 4024749, at *4 n.8 (W.D.

Tenn. Sept. 12, 2012). Moreover, to the extent that plaintiffs object that Judge Wyrick

failed to prove Benjamin’s innocence, it is plaintiffs’ burden to plead plausible claims,

and a judge bears no burden to prove or disprove any matter. Rather, a “judge has a

responsibility to function as a neutral, impartial arbiter and must refrain from taking on

the role of advocate for either party.” Elias v. Gonzales, 490 F.3d 444, 451 (6th Cir.

2007). This objection is therefore OVERRULED.

Ninth, plaintiffs contend that the R&R’s conclusions regarding claims against

Attorney Ward and Judge Minga should be rejected because Judge Wyrick is engaged in

“an active criminal conspiracy” with the defendants [Doc. 113, p. 33]. Plaintiffs argue

that Judge Wyrick granted Attorney Phillips’s motion to stay discovery without good

cause [Id. at 34]. Additionally, Attorney Phillips already knew her motion to dismiss

69

would be granted, based on her argument that a prior R&R had found plaintiffs had not

demonstrated any likelihood of success on the merits, which shows a conspiracy between

the judges in this case [Id.].

It appears that plaintiffs refer to Attorney Phillips’s Motion to Modify Scheduling

Order, asking the Court to delay a discovery conference until a ruling on the motions to

dismiss [Doc. 70]. In that motion, Attorney Phillips cited Judge Wyrick’s R&R on the

motion for a preliminary injunction, and her finding that plaintiffs had not demonstrated a

likelihood of success on the merits [Id. at 1]. Judge Wyrick granted the motion, finding

that a discovery conference by the parties alone would be unproductive and judicial

economy would be served by delaying a discovery conference until after the motions to

dismiss were denied [Doc. 88]. Contrary to plaintiffs’ assertions, Judge Wyrick provided

good cause for granting this motion. Moreover, nothing in the motion or order

constitutes evidence of a conspiracy between Judge Wyrick and Attorney Phillips. As

explained supra, Judge Wyrick was required to make a finding about whether plaintiffs

had shown a likelihood of success on the merits in addressing plaintiffs’ motion for a

preliminary injunction. See Goodman, 748 F.3d at 690 (stating that to obtain a

preliminary injunction, a plaintiff is required to show, among other things, “a substantial

likelihood or probability of success on the merits of [their] claim.” (internal quotation

marks omitted)). Attorney Phillips’s knowledge of that ruling does not indicate a

conspiracy. This objection is therefore OVERRULED.

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3. Conclusion

For these reasons, plaintiffs’ objections [Doc. 113] are OVERRULED. The R&R

[Doc. 108] is ACCEPTED and ADOPTED IN WHOLE and incorporated into this

memorandum opinion. Defendants Benjamin, Kelly, Attorney Phillips, Attorney Ward,

Briggs, and Judge Minga’s motions to dismiss [Docs. 41, 42, 48, 55, 81] are GRANTED

and this action will be DISMISSED as to those defendants.9

I. Motions to Amend

The Court now turns to plaintiffs’ motions to amend [Docs. 109, 114]. Plaintiffs

appear to indicate that they seek to raise new claims under § 1983 [Doc. 114, p. 2].

After a responsive pleading or Rule 12(b)(6) motion has been served, a party may

move for leave to amend a complaint by leave of the Court. Fed. R. Civ. P. 15(a). Under

Rule 15(a)(2), a “court should freely give leave [to amend] when justice so requires.” Id.

The Court, however, must balance the harm to the moving party if he is not permitted to

amend against the prejudice caused to the other party if leave to amend is granted.

Foman v. Davis, 371 U.S. 178, 182 (1962). Specifically, “[a] motion to amend a

complaint should be denied if the amendment is brought in bad faith, for dilatory

purposes, results in undue delay or prejudice to the opposing party, or would be futile.”

9 Specifically, plaintiffs’ federal claims against Benjamin, Kelly, Attorney Ward, Briggs,

and Judge Minga are dismissed with prejudice. Plaintiffs’ federal claims against Attorney

Phillips are dismissed without prejudice. See Fed. R. Civ. P. 4(m) (“[i]f a defendant is not served

within 90 days after the complaint is filed, the court . . . must dismiss the action without

prejudice”); The Court also adopts Judge Wyrick’s recommendation that the Court decline

supplemental jurisdiction over plaintiffs’ remaining state law claims, and therefore, those claims

are dismissed without prejudice.

71

Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995) (citation omitted). “If the district

court concludes that the pleading as amended could not withstand a motion to dismiss,

then the court may deny the motion to amend as futile and save the parties and the court

the expense of having to confront a claim doomed to failure from its outset.” Spigno v.

Precision Pipeline, LLC, 59 F. Supp. 3d 831, 834 (E.D. Mich. 2014).

As an initial matter, the Court notes that plaintiffs have failed to comply with the

Court’s local rules regarding motions to amend. Specifically, those rules state: “[a] party

who moves to amend a pleading shall attach a copy of the proposed amended pleading to

the motion.” E.D. Tenn. L.R. 15.1. The rule states that “failure to comply with this rule

may be grounds for denial of the motion.” Id. Accordingly, the Court finds that

plaintiffs’ motions to amend are properly denied for failure to comply with the Court’s

local rules. Nonetheless, for the reason stated infra, the Court also, and alternatively,

finds that plaintiffs’ proposed amendments to the complaint would be futile.

First, plaintiffs seek to add a new claim against Judge Wright for acting without a

valid oath of office [Doc. 109, pp. 2–3; Doc. 115, pp. 2–3]. But, as the Court addressed

supra, it appears that Judge Wright does have a valid oath of office. Accordingly,

amendment to add this claim would be futile.

Second, plaintiffs seek to add claims against all of the Tennessee Supreme Court

judges and Court of Appeals judges that presided over plaintiff McCurry’s appeals “that

were unfairly dismissed” [Doc. 109, p. 3]. Plaintiffs allege that these judges “ignored her

briefs and ruled automatically in favor of Defendant Benjamin Mc[C]urry and [J]udges

72

Lauderback and Wright” [Id. at 4–5]. The addition of this claim would be futile because

plaintiffs have not even identified the specific judges who allegedly unfairly dismissed

plaintiff McCurry’s appeals. Moreover, plaintiffs do not allege that these judges lacked

jurisdiction over plaintiff McCurry’s appeals, and dismissing appeals is “a function

normally performed by a judge,” and therefore, these prospective defendants would be

entitled to absolute judicial immunity for the alleged actions. See Mireles v. Waco, 502

U.S. 9, 11–13 (1991).

Third, plaintiffs seek to add claims against Clerk of Court James Hivner for

“destroying the records of Agness [sic] appeal on behalf of the Tennessee Supreme Court

and Court of Appeals judges” which they categorize as “spoliation of evidence” in a

separate lawsuit, Case Number 3:22-cv-380, which names the Tennessee Court of

Appeals as a defendant [Id. at 5]. But a claim that evidence in another case was spoliated

would be properly brought in that federal case, not this one, as spoliation is a sanction,

rather than a separate claim for relief. See BancorpSouth Bank v. Herter, 643 F. Supp. 2d

1041, 1059 (W.D. Tenn. 2009) (“a district court may impose various different kinds of

sanctions for spoliated evidence”). Accordingly, this proposed claim is futile.

Fourth, plaintiffs seek to add District Judge Travis McDonough for abusing his

discretion by “blocking Agness from amending her complaint indefinitely” in Case

Number 3:22-cv-380 [Id. at 6]. Plaintiffs’ proposed claim against Judge McDonough

essentially asks the undersigned to review Judge McDonough’s judgment in Case

Number 3:22-cv-380, which is currently pending appeal before the Sixth Circuit. But the

73

appropriate forum for review of a district judge’s decision is the appellate court, not a

new civil lawsuit in the district court. See About Federal Courts: Court Role and

Structure, UNITED STATES COURTS, https://uscourts.gov/about-federal-courts/court-role-

and-structure (last accessed Mar. 5, 2024). Accordingly, this claim would therefore be

futile.

Fifth, plaintiffs seek to add claims against the DCS and employees Marjorie

Quinn, Christal Lane, Samantha James, Jessica Woods, Jessica Brown, Crystal Wilcox,

Kevin Grindstaff, Kim Garland, Amy Koslick, Kristy Timmerman, Tara Thomas, and

Tyra Donald, for conspiring with Benjamin to terminate plaintiff McCurry’s parental

rights [Doc. 109, pp. 6–7; Doc. 115, p. 4]. Although largely vague, plaintiffs’ allegations

seem to relate to DCS employees contacting plaintiff McCurry about creating a

“permanency plan,” which plaintiff McCurry opposed, because a parenting plan was

already in effect. It appears that this claim stems from plaintiff McCurry’s

misunderstanding that a “parenting plan” and a DCS “permanency plan” are different

documents. As an email from DCS, which plaintiff McCurry attaches to the motion to

amend, explains, “[a]ny time the Department has an open family support services case,

we are required to create a permanency plan. This is different and unrelated to your

parenting plans” [Doc. 109-1, p. 1]. Accordingly, based on plaintiffs’ own evidence, this

claim would be futile.

Sixth, plaintiffs seek to add claims against Attorney General Jonathan Skrmetti

“for allowing his office to provide legal representation to these State employees to

74

commission a crime against Agness and her minor son,” and against Heather Ross, Wade

Barnett, and Attorney Ahillen for “provid[ing] legal representation against State and

Federal law” [Doc. 109, p. 7]. But plaintiffs do not allege how providing representation

to state defendants in various legal proceedings brought by plaintiff McCurry violates

plaintiffs’ constitutional rights, as required under § 1983. Moreover, defendants have a

due process right to retain counsel in a civil proceeding. Maness v. Meyers, 419 U.S. 449

(1975) (Stewart, J., concurring) (citing Powell v. Alabama, 287 U.S. 45, 69 (1932)).

Accordingly, plaintiffs’ prospective claims for providing legal representation in plaintiff

McCurry’s civil matters are futile.

Seventh, plaintiffs seek to add claims against Johnson City Medical Center for

declining to offer treatment to plaintiff McCurry’s son “when Defendant Benjamin

Mccurry threatened to murder [the minor child] and Agness by throwing them off a

bridge” [Id.]. But plaintiffs do not allege that plaintiff McCurry’s son suffered any

medical issues or physical or mental harm relating to this alleged threat. Moreover, and

in any event, Johnson City Medical Center is not a state actor, as required for a claim

under § 1983. See Howell v. Father Maloney’s Boys’ Haven, Inc., 976 F.3d 750, 752

(6th Cir. 2020) (“Only claims against ‘state actors’ are eligible for relief under

[§ 1983]”). Therefore, this claim would be futile.

Eighth, plaintiffs seek to add a claim against former Chief Justice Roger Page for

“assigning retired judge Thomas Wright to Agness [sic] case without swearing him to

office” [Id. at 8]. But, once again, it appears Judge Wright has a valid oath of office.

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And plaintiffs cite no support for any claim that the Chief Justice is required to swear a

senior judge’s oath of office under Tennessee law. Accordingly, this claim would be

futile.

Ninth, plaintiffs seek to add claims against Secretary of State Tre Hargett for

“refusing to take action to investigate the missing oaths of Ret. Judge Wright and Agness

[sic] recent Judge D[.] Kelly Thomas Jr[.] that replaced with him with [sic] no mandatory

sworn [sic] on file with the Tennessee Secretary of State” [Id.]. As to Judge Wright, the

Court again points to its analysis supra, finding that is appears Judge Wright has a valid

oath of office. As to Judge Thomas, the Court takes judicial notice that the Tennessee

Secretary of State’s website contains an oath for Judge Thomas, dated August 4, 2023.

See “Oaths of Office”, Tennessee Secretary of State

https://oaths.tnsos.net/sits/default/files/2023-09/Thomas%2C%20D.%20Kelly_20230804

.pdf (last accessed Feb. 15, 2024). It is unclear how failure to investigate frivolous

claims regarding these judges’ oaths of office violated plaintiffs’ constitutional rights as

required by § 1983. See 42 U.S.C. § 1983 (providing a remedy for “deprivation of any

rights, privileges, or immunities secured by the Constitution and laws” of the United

States). Accordingly, this claim would be futile.

Tenth, plaintiffs seek to add claims against “[s]ome Officers from Johnson City

Police and Washington County Sheriff’s Office” for “subjecting Agness to physical

injury starting 2018 and recently on February 7th 2023” [Doc. 109, p. 9]. Notably,

plaintiffs appear to seek to add John Doe defendants, as they have provided no names for

76

the officers they seek to add. But “[u]ntil Plaintiff files an amended complaint . . . that

identifies and adds or joins a John Doe defendant by his true name, the John Doe

allegations in the complaint are mere surplusage.” Wilson v. Delta Airlines, Inc., No.

2:09-cv-2687, 2010 WL 2836326, at *3 (W.D. Tenn. July 19, 2010) (internal quotation

marks omitted). And given the conclusion of this memorandum opinion that all of

plaintiffs’ claims should be dismissed, it would be futile for her to add claims against

John Doe defendants, which could not stand alone. Moreover, plaintiffs’ allegations that

these John Doe defendants subjected plaintiff McCurry to physical injury is simply too

vague and conclusory to state a claim for relief. Accordingly, this proposed amendment

would be futile.

Eleventh, plaintiffs seek to add claims related to injury plaintiff McCurry allegedly

received from therapist Theresa Fletcher, Altar Fellowship Pastor Mattie Montgomery

and “many more Defendants that Agness is still researching in her case” [Doc. 109, pp. 3,

9]. But plaintiffs have not alleged that Fletcher or Montgomery are state actors, as

required for a claim under § 1983. See Howell, 976 F.3d at 752 (“Only claims against

‘state actors’ are eligible for relief under [§ 1983]”). And plaintiffs’ assertion that these

prospective defendants caused some unspecified injury to plaintiff McCurry is too vague

to state a claim for relief. See Hammons v. Cuyahoga Child Enforcement Agency, 66 F.

App’x 623, 624 (6th Cir. 2003) (“The court is not required to accept non-specific factual

allegations and inferences or unwarranted legal conclusions” in addressing whether a

complaint states a claim for relief). This prospective claim is therefore futile.

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Twelfth, plaintiffs seek to add claims against Attorney Phillips, Benjamin, and

Judge Wright for violating her HIPAA rights by making “fabricated falsehoods against

her mental health alleging ‘paranoia and delusional thinking’” [Doc. 115, p. 4]. But, as

explained supra, HIPAA does not provide a private right of action. See Middlebrook,

2023 WL 7144601, at *3 (“HIPAA provides no private right of action” and instead

“penalties for HIPAA violations are imposed by the Secretary of Health and Human

Services” (internal quotation marks and alterations omitted)). Accordingly, any

amendment to add claims under HIPAA would be futile.

Thirteenth, plaintiffs seek to add claims of “defamation,” “outrageous conduct”

and “Due Process Violations” [Doc. 115, p. 5]. Plaintiffs’ assertion that they wish to add

these claims without specific factual support, or any indication as to which defendants

they wish to assert such claims against, is too vague to state a claim for relief, see

Hammons, 66 F. App’x at 624, and therefore, amendment to add these claims would be

futile.

Finally, plaintiffs also allege that they wish to add claims against Court of Appeals

clerks Becky Doyal, Terri Lomax, Joann Newsom, and Francesca Kraft and Senior Judge

D. Kelly Thomas, Jr., but do not set forth any specific allegations regarding the claims

they wish to add against these prospective defendants [Doc. 109, p. 3]. Because plaintiffs

have alleged no specific facts or injuries relating to these defendants, amendment to add

them as defendants would be futile. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“the

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pleading standard Rule 8 announces does not required ‘detailed factual allegations,’ but it

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).

For these reasons, plaintiffs’ motions to amend [Docs. 109, 114] are DENIED.

J. Failure to Serve Remaining Defendants

At this juncture, the only remaining claims are those against Judge Wright, Judge

Lauderback, Judge Suzanne Cook, Chancellor John Rambo, Judge Lisa Rice, Judge Stacy

Street, District Attorney General Steve Finney, Assistant District Attorney Mark Harris,

Assistant District Attorney Joseph Shults,10 and Assistant District Attorney Abby

Wallace, in their individual capacities (collectively, the “State Defendants”).

Upon the Court’s sua sponte review of the record, the Court previously ordered

plaintiffs to provide evidence that they served the State Defendants with process in

compliance with Federal Rule of Civil Procedure 4 and Tennessee Rule of Civil

Procedure Rule 4.04 [Doc. 110]. Plaintiffs filed a response [Doc. 111] that did not

adequately address the Court’s concerns about the validity of service to the State

Defendants. Accordingly, the Court issued a second show cause order [Doc. 127].

In response, plaintiffs allege that the State Defendants have been properly served

under Rule 4(c) [Doc. 129, p. 4]. Plaintiffs imply that Rule 4(e) does not apply because

they were not required to notify the State Defendants about waiving service under Rule

4(d) [Id. at 5]. Plaintiffs again point to the “record evidence” of service, namely Docs. 28

10 The Court notes that plaintiffs use the spelling “Shultz” in some of their filings, while

the correct spelling is Shults.

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and 29 [Id. at 9]. Plaintiffs also argue that the State Defendants should be judicially

estopped from claiming insufficient service of process because they previously

acknowledged receipt of service [Id. at 11].

As the Court previously explained [Doc. 127], service of process in a federal

action is governed by Rule 4 of the Federal Rules of Civil Procedure. Rule 4(c) sets forth

that “[i]n [g]eneral[,] [a] summons must be served with a copy of the complaint. The

plaintiff is responsible for having the summons and complaint served within the time

allowed by Rule 4(m) and must furnish the necessary copies to the person who makes

service.” Fed. R. Civ. P. 4(c)(1). Rule 4(c) continues to state that service can be

completed by “[a]ny person who is at least 18 years old and not a party.” Fed. R. Civ. P.

4(c)(2). Rule 4(c) therefore sets forth the general requirement that defendants be served

with process.

Rule 4 then explains how to properly serve defendants. See Fed. R. Civ. P. 4(e)–

(j). As appears to be relevant here, Rule 4(e) explains how to serve an individual within a

judicial district of the United States. Fed. R. Civ. P. 4(e). Specifically, Rule 4(e) permits

service upon an individual by:

(1) following state law for servicing a summons in an action brought in courts of

general jurisdiction in the state where the district court is located or where service

is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the

individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of

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abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by

law to receive service of process.

Fed. R. Civ. P. 4(e).

Rule 4 also requires that a defendant be served within 90 days after the complaint

is filed or “the court—on motion or on its own after notice to the plaintiff—must dismiss

the action without prejudice against that defendant or order that service be made within a

specified time.” Fed. R. Civ. P. 4(m). Additionally, Rule 4 requires that “[u]nless

service is waived, proof of service must be made to the court.” Fed. R. Civ. P. 4(l)(1)

(emphasis added).

As the Court previously stated [Doc. 127], to the extent that plaintiffs contend that

they properly served the State Defendants under Rule 4(c), that rule sets out the general

requirement of service of process, while Rule 4(e) sets out the specific requirements of

how to effectively serve a defendant. Plaintiffs cite to documents 28 and 29 in the record

in support of their claim of valid service [Doc. 129, p. 9]. Those documents show that

plaintiffs attempted to serve the State Defendants by mailing a summons and copy of the

amended complaint via the United States Postal Service (“USPS”), for which they

provide USPS tracking numbers [Docs. 28-1, 28-3, 28-5, 28-6, 28-7, 28-8, 28-10, 28-10,

28-15, 29]. However, none of the listed methods of service in Rule 4(e)(2) permit service

by mail. See Dortch v. First Fid. Mortg. Co. of Michigan, 8 F. App’x 542, 546 (6th Cir.

2001) (noting that the federal rules do not contemplate service by mail). Accordingly,

plaintiffs’ necessarily must claim that their attempted service is proper under Rule

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4(e)(1).

“Rule 4(e)(1) permits plaintiffs to use any method of service allowed in the state

where service is made or in the state where the district court is located.” Spencer v.

Caracal Int’l, LLC, 516 F. Supp. 3d 755, 758 (M.D. Tenn. 2021). Because this district

court is located in Tennessee, plaintiffs may use any method of service permitted by the

Tennessee Rules of Civil Procedure, as authorized by Federal Rule of Civil Procedure

4(e)(1).

Service by mail is permissible under the Tennessee Rules of Civil Procedure. See

Tenn. R. Civ. P. 4.04(10). Tennessee Rule of Civil Procedure 4.04(10) provides:

Service by mail of a summons and complaint upon a

defendant may be made by the plaintiff [ ]. After the

complaint is filed, the clerk shall, upon request, furnish the

original summons, a certified copy thereof and a copy of the

filed complaint to the plaintiff [ ]. Such person shall send,

postage prepaid, a certified copy of the summons and a copy

of the complaint by registered return receipt or certified

return receipt mail to the defendant.

Tenn. R. Civ. P. 4.04(10) (emphasis added). Additional requirements for service by mail

are discussed in Rule 4.03(2):

When process is served by mail, the original summons,

endorsed as below; an affidavit of the person making service

setting forth the person’s compliance with the requirements of

this rule; and, the return receipt shall be sent to and filed by

the clerk. The person making service shall endorse over his or

her signature on the original summons the date of mailing a

certified copy of the summons and a copy of the complaint to

the defendant and the date of receipt of the return receipt from

the defendant. If the return receipt is signed by the defendant,

or by a person designated by Rule 4.04 or by statute, service

on the defendant shall be complete. If not, service by mail

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may be attempted again or other methods authorized by these

rules or by statute may be used.

Tenn. R. Civ. P. 4.03(2) (emphasis added). “According to the plain language of Rule

4.03(2),” service is not complete unless the signatory of the return receipt was the

defendant or “a person designated by Rule 4.04.” Hall v. Haynes, 319 S.W.3d 56

This text is long and has been trimmed here. Open the source document for the complete record.