# McCurry v. Wright (TV1)

> District Court, E.D. Tennessee · March 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10669472

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** March 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10669472

## How later opinions describe it (automated extraction)

- noting that the federal rules do not contemplate service by mail
- 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)

## Opinion text

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
2
[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
3
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
4
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.].
5
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

6
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

7
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

8
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].

9
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
10
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).

11
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
12
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]

13
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.
14
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].
15
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].
16
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].

17
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.
18
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
58
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].
60
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.
61
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,
62
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

63
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
64
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

65
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
66
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.
67
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.
68
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.

70
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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10669472. Public record. Not legal advice.