Moore v. Shelby County Government

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

______________________________________________________________________________

ESTER MOORE, )

)

Plaintiff, )

)

v. ) No. 2:24-cv-02600-MSN-atc

)

SHELBY COUNTY GOVERNMENT, )

WANDA HALBERT, BOBBY )

GRANDBERRY, and EDWARD BOWDEN, )

)

Defendants. )

______________________________________________________________________________

REPORT AND RECOMMENDATION FOR SUA SPONTE DISMSSAL

______________________________________________________________________________

On August 22, 2024, Plaintiff Ester Moore, a resident of Memphis, Tennessee, filed a pro

se Complaint, along with a motion to proceed in forma pauperis. (ECF Nos. 1, 3.) On

September 27, 2024, the Court granted Moore’s motion to proceed in forma pauperis. (ECF No.

9.) Pursuant to Administrative Order No. 2013-05, this case has been referred to the United

States Magistrate Judge for management and for all pretrial matters for determination and/or

report and recommendation as appropriate.

For the reasons discussed below, the Court recommends that Moore’s complaint be

dismissed sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon

which relief may be granted.

PROPOSED FINDINGS OF FACT

On August 22, 2024, Moore filed the Complaint alleging claims against her employer, the

Shelby County Government (“Shelby County”); Wanda Halbert, Shelby County Clerk; Bobby

Grandberry, Deputy Administrator and Facility Manager; and Edward Bowden, Human

Resources Administrator, for violations of the Occupational Safety and Health Act, 29 U.S.C.

§ 651, et seq. (“OSHA”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq. (“Title VII”),1 and for negligent infliction of emotional distress. (ECF No. 1.) Moore’s

claims arise from what she describes as her allergy to “pork grease and its smell.” (Id. at ¶ 9.)

As alleged in her Complaint, in May and August of 2023, Moore notified Defendants of her

allergy in person and via email, indicating “that it was also offensive to me religiously.” (Id. at

¶¶ 9, 10.) Nonetheless, she alleges that, on October 20, 2023, “pork was cooked in an unsafe

manner at Plaintiff’s workplace, causing her to become extremely ill, requiring medical

attention, and resulting in ongoing health issues, depression and emotional distress.” (Id. ¶ 11.)

She alleges that “the spread of pork grease throughout the building[] creat[ed] an unsafe,

hazardous, and hostile work environment.” (Id. ¶ 12.)

PROPOSED CONLUSIONS OF LAW

I. 28 U.S.C. § 1915(e)(2) Screening

Under Local Rule 4.1(b)(2), the Clerk of the Court will only issue summonses in cases

with non-prisoner pro se plaintiffs who are proceeding in forma pauperis at the Court’s direction

after the Court conducts a screening under 28 U.S.C. § 1915(e)(2)(B). Under that provision, the

Court shall dismiss the case at any time if it determines that the action “(i) is frivolous or

malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

1 To bring a lawsuit in federal court under Title VII, a party must first obtain a right-to-sue letter

from the Equal Employment Opportunity Commission. Rivers v. Barberton Bd. of Educ., 143

F.3d 1029, 1032 (6th Cir. 1998). Moore did not attach a right-to-sue letter to her Complaint,

and, on November 18, 2024, the Court ordered Moore to file a copy of the letter by December 2,

2024. (ECF No. 11.) When Moore failed to do so, District Judge Mark S. Norris entered an

order on January 3, 2025, dismissing Moore’s Title VII claim without prejudice for failure to

prosecute pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 12.)

against a defendant who is immune from such relief.” This Report and Recommendation

constitutes the Court’s screening.

II. Standard of Review for Failure to State a Claim

To determine whether Moore’s Complaint states a claim for which relief may be granted,

the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as articulated in

Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal citations

and quotations omitted). The Court “construes the complaint in a light most favorable to [the]

plaintiff” and “accepts all factual allegations as true” to determine whether they plausibly

suggest an entitlement to relief. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir.

2012).

Pleadings provide facial plausibility when they present “factual content that allows the

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

Iqbal, 556 U.S. at 678. However, “pleadings that . . . are no more than conclusions[] are not

entitled to the assumption of truth. While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also

Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket

assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to

see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature

of the claim, but also ‘grounds’ on which the claim rests.”).

“[A] pleading filed pro se is to be liberally construed and held to less stringent standards

than a pleading filed by counsel.” Kondaur Cap. Corp. v. Smith, 802 F. App’x 938, 945 (6th Cir.

2020) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); see also Vandiver v. Vasbinder, 416

F. App’x 560, 562 (6th Cir. 2011) (finding the less stringent standard applies to pro se

complaints, “however inartfully pleaded”). Nevertheless, pro se litigants “are not exempt from

the requirements of the Federal Rules of Civil Procedure.” Wright v. Penguin Random House,

783 F. App’x 578, 581 (6th Cir. 2019) (citing Fox v. Mich. State Police Dep’t, 173 F. App’x 372,

376 (6th Cir. 2006)); see also Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011)

(“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf

of pro se litigants. Not only would that duty be overly burdensome, but it would also transform

the courts from neutral arbiters of disputes into advocates for a particular party. While courts are

properly charged with protecting the rights of all who come before it, that responsibility does not

encompass advising litigants as to what legal theories they should pursue.”); Brown v.

Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (“[A] court cannot ‘create a claim which a

plaintiff has not spelled out in his pleading.’”) (quoting Clark v. Nat’l Travelers Life Ins. Co.,

518 F.2d 1167, 1169 (6th Cir. 1975)). “A pro se complaint must still ‘contain sufficient factual

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

Greystar Mgmt. Servs., L.P., No. 2:17-cv-02650-SHM-cgc, 2018 WL 386647, at *2 (W.D. Tenn.

Jan. 11, 2018) (quoting Barnett v. Luttrell, 414 F. App’x. 784, 786 (6th Cir. 2011)).

III. OSHA Violations

Moore seeks to assert a claim against Defendants for violating OSHA. However, OSHA

does not create a private right of action. Ellis v. Chase Commc’ns, Inc., 63 F.3d 473, 478 (6th

Cir. 1995) (“OSHA regulations can never provide a basis for liability. The Act itself explicitly

states that it is not intended to affect the civil standard of liability.”) (citing 29 U.S.C.

§ 653(b)(4); Minichello v. U.S. Indus., Inc., 756 F.2d 26, 29 (6th Cir. 1985)). Accordingly, it is

recommended that Moore’s claim under OSHA be dismissed.

IV. Negligent Infliction of Emotional Distress

With Moore’s federal claims disposed of, her sole remaining claim is for negligent

infliction of emotional distress under Tennessee law. A federal district court may decline to

exercise supplemental jurisdiction over a state-law claim if it has “dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also § 1367(a) (providing that a

federal district court can exercise “supplemental jurisdiction over all other claims that are so

related to claims in the action within such original jurisdiction that they form part of the same

case or controversy under Article III of the United States Constitution”). “A federal court that

has dismissed all federal claims should not ordinarily reach state-law claims.” Roker v.

Twentieth Century Fox, No. 21-cv-2411-SHM-tmp, 2023 WL 121998, at *2 (W.D. Tenn. Jan. 6,

2023), appeal dismissed, No. 23-5067, 2023 WL 3467008 (6th Cir. Mar. 7, 2023) (citing Moon

v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006)).

Because Moore’s Title VII claim has been dismissed, and this Report and

Recommendation recommends dismissal of her OSHA claim, it is further recommended that the

Court decline to exercise supplemental jurisdiction over her state-law claim for negligent

infliction of emotional distress. It is therefore recommended that the Complaint be dismissed in

its entirety.

RECOMMENDATION

For the reasons set forth above, it is recommended that Moore’s Complaint be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for which relief may be

granted.

Respectfully submitted this 11th day of March, 2025.

s/Annie T. Christoff

ANNIE T. CHRISTOFF

UNITED STATES MAGISTRATE JUDGE

NOTICE

Within fourteen (14) days after being served with a copy of this report and recommendation

disposition, a party may serve and file written objections to the proposed findings and

recommendations. A party may respond to another party’s objections within fourteen (14) days

after being served with a copy. Fed. R. Civ. P. 72(b)(2). Failure to file objections within

fourteen (14) days may constitute forfeiture/waiver of objections, exceptions, and further appeal.