Moore v. Skrmetti (TV3)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

REX A. MOORE, )

)

Plaintiff, )

)

v. ) No.: 3:24-CV-197-TAV-DCP

)

JONATHAN SKRMETTI, State of )

Tennessee Attorney General, in his official )

capacity, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This civil matter is before the Court on a Report and Recommendation (“R&R”)

issued by United States Magistrate Judge Debra C. Poplin on September 9, 2024 [Doc.

17]. In the R&R, Judge Poplin granted plaintiff’s application to proceed in forma

pauperis [Doc. 8]. And after screening the complaint, Judge Poplin recommends that the

Court dismiss the State of Tennessee; the Tennessee Attorney General Jonathan Skrmetti,

Lisa Hilton, and Frank Strada, in their official capacities; Johnny Caldwell, in his official

capacity; and Lindsay Delorge, in her individual capacity. Further, Judge Poplin

recommends allowing plaintiff’s false arrest claim against defendant Caldwell in his

individual capacity to proceed beyond the initial screening phase. Plaintiff, proceeding

pro se in this matter, filed his objections to the R&R on September 25, 2024 [Doc. 19].

In addition, plaintiff has filed two motions to set aside judgment [Docs. 21, 22], which

the Court construes as further objections to the R&R.1 For the reasons that follow,

plaintiff’s objections [Docs. 19, 21, 22] are OVERRULED, and the Court ACCEPTS

and ADOPTS the R&R [Doc. 17] in whole.

I. Standard of Review

This Court reviews de novo those portions of the 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)(3); Smith v. Detroit Fed’n of

Tchrs., 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 (internal

quotation marks omitted) (citation omitted). A general objection, in contrast to a specific

objection, “has the same effect[ ] as would a failure to object.” Howard v. Sec’y of

Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). In other words, a litigant

must identify each issue in the report and recommendation to which the litigant objects

with sufficient clarity such that the Court can identify it, or else that issue is deemed

waived. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“The objections must be

clear enough to enable the district court to discern those issues that are dispositive and

contentious.”); see also Thomas v. Arn, 474 U.S. 140, 147 (1985) (stating that objections

must go to “factual and legal” issues “at the heart of the parties’ dispute”). Furthermore,

1 The Court notes that it construes these motions as objections to the R&R because, as of

the date of their filing, no judgment had been entered in this case. See Hunter v. Hamilton Cnty.,

No. 1:15CV540, 2016 WL 4836810, at *4 (S.D. Ohio Sept. 15, 2016) (“A report and

recommendation is not a final judgment, order, or proceeding.”).

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each objection to a magistrate judge’s recommendation should explain the source of the

error. Howard, 932 F. 2d at 509.

The Court is mindful that because plaintiff is proceeding pro se, his pleadings

should be liberally construed and held to a less stringent standard than formal pleadings

drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

But plaintiff’s pro se status does not exempt him from the requirement of complying with

relevant rules of procedural and substantive law. See Felts v. Cleveland Hous. Auth., 821

F. Supp. 2d 968, 970 (E.D. Tenn. 2011) (citation omitted).

II. Analysis

In examining plaintiff’s objections to the R&R [Docs. 19, 21, 22], the Court

concludes that these objections are not valid, as they lack the specificity required to

trigger de novo review of the issue. See Howard, 932 F.2d at 509; see also Aldrich v.

Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004) (“An ‘objection’ that does nothing

more than state a disagreement with a magistrate’s suggested resolution . . . is not an

‘objection’ as that term is used in this context.”). In his first objection, plaintiff states

that all of his claims are “clearly drafted[,]” “legably [sic] readable[,]” and “true” [Doc.

19, p. 1]. Further, plaintiff states that he objects to the dismissal of the State of

Tennessee; Jonathan Skrmetti, Lisa Hilton, Frank Strada, and Johnny Caldwell, in their

official capacities; and “to the [S]tate’s qualified immunity from citizen plaintiff[’]s

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lawsuit[]” [Id.].2 Lastly, plaintiff requests the appointment of counsel [Id.].3 In his

second objection, plaintiff states that he tried to “comply[] pro[ ]se” but the conditions of

his confinement, as well as his age, mental health, physical condition, and lack of

education, have prevented him from doing so [Doc. 21, p. 1]. Plaintiff then asserts that

“[a]ll of [his] claims are fact” [Id.]. Finally, in his third objection, plaintiff requests that

the “prosecution” of defendants listed in his second amended complaint continue [Doc.

22, p. 1]. Plaintiff again discusses the conditions of his confinement, stating he does not

have adequate access to legal materials, and the law library clerk “knows nothing of case

law” or the federal rules [Id.]. Given these objections are general and do not point to a

source of error, they are OVERRULED.4 See Mira, 806 F.2d at 637.

2 To the extent plaintiff’s objection to the State’s immunity can be deemed a specific

objection, he provides no authority in support of his position, and it is well established that, via

the Eleventh Amendment, the State of Tennessee is immune from suits under § 1983. See

Morgan v. Bd. of Pro. Resp. of the Supreme Ct. of Tenn., 63 F.4th 510, 518 (6th Cir. 2023).

3 The Court notes that plaintiff filed a motion to appoint counsel [Doc. 20], and Judge

Poplin subsequently denied his request [Doc. 23]. Thus, the issue of the appointment of counsel

has already been addressed and denied by Judge Poplin, and her decision did not form part of her

recommendations in the R&R. Thus, the Court finds it inappropriate to reconsider plaintiff’s

request within the context of plaintiff’s objections to the R&R.

4 The Court acknowledges that plaintiff cites to 33 U.S.C. § 1365 in support of his

objection to the dismissal of his “citizen suit” against the State of Tennessee [Doc. 19, p. 1].

However, this statute has no application to plaintiff’s claims because it covers citizen suits in

relation to the Clean Water Act.

The Court also notes that plaintiff states that evidence of his religious grievance claims

are on a thumb drive filed in another of his cases [Doc. 19, p. 1 (citing “cv-196”)]. Looking at

Case No. 3:24-cv-196, which includes plaintiff, the Court can discern no record of any filed

thumb drive. The Court also emphasizes that efforts to raise new evidence “not before the

Magistrate Judge are generally disfavored, particularly where the objecting party could have

submitted this evidence much sooner.” Tomlinson v. Collins, No. 2:09-CV-125, 2011 WL

478835, at *7 (S.D. Ohio Feb. 7, 2011) (citation omitted); accord Hughes v. Core Civic, Inc.,

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The Court notes that in plaintiff’s first objection, he appears to request the addition

of Judge Green as a defendant, and he states that he “now seek[s] prospective injunctive

relief” from excessive bail, retaliation, and “continued p[e]rjured (arrest)” [Doc. 19, p. 1].

Taking into consideration plaintiff’s pro se status, the Court construes plaintiff’s

statements to be a request to amend his complaint. The Court, however, finds plaintiff’s

request to be improper given it is contained within his objection to the R&R rather than a

separately filed motion seeking leave to amend. See Fed. R. Civ. P. 15(a)(2).

Nonetheless, even if the Court were to consider plaintiff’s request, the Court declines to

allow plaintiff to amend his complaint for the reasons stated infra.

Regarding the addition of Judge Green as a defendant, the Court recites a portion

of the R&R:

Throughout the [Second Amended Complaint], Plaintiff states that he is

making a claim for excessive bail. “Excessive bond is prohibited by the

Eighth Amendment of the United States Constitution.” Marsh v. Randolph,

No. 1:09-CV-13, 2012 WL 397778, at *5 (E.D. Tenn. Feb. 7, 2012). Even

so, “the Eighth Amendment does not mandate bail in all cases.” Fields v.

Henry Cnty., 701 F.3d 180, 183–84 (6th Cir. 2012). Although he does not

name Judge Green as a Defendant, it appears he is making this claim

against him. Regardless, Plaintiff includes no facts in support of his claim.

And any claim against Judge Green is barred. Marsh, 2012 WL 397778, at

*6 (“Judge Randolph and Judge Reedy made a determination of bond and

any alleged claim arising from the exercise of that judicial function is

barred by absolute immunity.”).

[Doc. 17, p. 7 n.2 (internal citations omitted)]. The Court agrees with the R&R that

plaintiff’s apparent claim against Judge Green, relating to the determination of bond, is

No. 3:19-CV-00924, 2021 WL 2411342, at *3 (M.D. Tenn. June 11, 2021) (stating that the

plaintiff’s “newly presented evidence was not before the Magistrate Judge and cannot serve as

grounds for objection to his recommendations”).

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barred. Therefore, the Court does not find it proper to allow plaintiff to amend his

complaint to include Judge Green as a defendant.

Turning to plaintiff’s statement that he now is seeking prospective injunctive

relief, the Court finds this declaration to be an indication that plaintiff is using the R&R

as an advisory opinion. Specifically, in the R&R, Judge Poplin recommends that the

state employees sued in their official capacity—Skrmetti, Hilton, Strada, and Caldwell—

be dismissed because plaintiff cannot seek money damages against state employees in

their official capacities [Doc. 17, pp. 6–7 (citations omitted)]. Plaintiff can however, as

the R&R explains, seek prospective injunctive relief against such employees, but upon

screening the complaint, Judge Poplin found that no such prospective injunctive relief

claims were made [Id.]. Now, plaintiff claims he is seeking such relief [Doc. 19, p. 1].

“Plaintiffs [are] not entitled to an advisory opinion from the Court informing them

of the deficiencies of the complaint and then an opportunity to cure those deficiencies.”

Culy Constr. & Excavating, Inc. v. Laney Directional Drilling Co., No. 2:12-cv-4, 2012

WL 12942602, at *3 (emphasis omitted) (quoting Begala v. PNC Bank, Ohio, N.A., 214

F.3d 776, 784 (6th Cir. 2000)); accord Glazer v. Chase Home Fin. LLC, No.

1:09CV1262, 2010 WL 1391318, at *1 (N.D. Ohio Mar. 31, 2010), aff’d, 704 F.3d 453

(6th Cir. 2013) (finding that permitting a plaintiff “to amend upon the review of a

Magistrate Judge’s Report and Recommendation impermissibly places the Magistrate

Judge in a position of rendering an advisory opinion”).

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Nonetheless, Federal Rule of Civil Procedure 15(a)(2) provides that a party may

amend its pleading with “the court’s leave[,]” which should be “freely give[n] . . . when

justice requires.” Specifically, “[i]n the absence of any apparent or declared reason—

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

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

opposing party by virtue of allowance of the amendment, futility of the amendment,” or

other unjust reason, leave of court should be granted. Foman v. Davis, 371 U.S. 178, 182

(1962). Here, Judge Poplin already considered allowing plaintiff to amend his complaint

and ultimately declined to do so because plaintiff “has already filed three Complaints and

many of his claims are barred as a matter of law” [See Doc. 17, p. 9]. Even disregarding

plaintiff’s failure to cure deficiencies in his complaint,5 the Court finds that plaintiff’s

proposed amendment, to add requests for prospective injunctive relief, would be futile.

See Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005).

“Amendment of a complaint is futile when the proposed amendment would not

permit the complaint to survive a motion to dismiss.” Id. (citing Neighborhood Dev.

Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980)). As stated

previously, plaintiff’s proposed amendment is to add, in relation to his 42 U.S.C. § 1983

claims, a request for “prospective injunctive relief” from excessive bail, retaliation, and

“continued p[e]rjured (arrest)” [Doc. 19, p. 1]. However, the mere addition of this type

5 Notably, in the Court’s Order allowing plaintiff to file a second amended complaint,

the Court instructed that “the amended complaint should provide, to the extent applicable . . .

what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or

declaratory relief” [See Doc. 13, p. 4 (emphasis added)].

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of relief does not cure the other deficiencies that lie with plaintiff’s § 1983 claims against

Skrmetti, Hilton, Strada, and Caldwell in their official capacities.

To state a claim under § 1983, a plaintiff must allege (1) a deprivation of rights

secured by the “Constitution and laws” of the United States and (2) that a defendant

caused harm while acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S.

144, 150 (1970). “[T]he Eleventh Amendment permits prospective injunctive relief, but

not damage awards, for suits against individuals in their official capacities under 42

U.S.C. § 1983.” McKay v. Thompson, 226 F.3d 752, 757 (6th Cir. 2000).

Turning first to “excessive bail,” the Court re-emphasizes the R&R’s statement

that plaintiff appears to make an excessive bail claim against Judge Green, but plaintiff

did not include Judge Green as a defendant in his second amended complaint [See Doc.

17, p. 7 n. 2]. Furthermore, the Court determined supra that it would not be proper to

allow plaintiff to amend his complaint to add Judge Green. See also Marsh, 2012 WL

397778, at *4 (dismissing the plaintiff’s claims against state judges in their official

capacity because “suing a state official in his official capacity for acts performed within

the scope of his authority is equivalent to suing the state itself[,]” which is precluded by

the Eleventh Amendment). Aside from any specific defendant, the R&R also concluded

that plaintiff “include[d] no facts in support of his claim” for excessive bail [Id.]. To

survive initial review, a complaint “must contain sufficient factual matter, accepted as

true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Therefore,

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without sufficient factual matter, a claim for excessive bail, and in turn, a request for

relief from such excessive bail, cannot survive. See Marsh, 2012 WL 397778, at *5

(finding that the plaintiff did not raise a sufficient claim for excessive bail, and therefore,

to the extent the plaintiff requested prospective relief, he was not entitled to such relief).

Furthermore, the Court fails to see how Skrmetti, as the State of Tennessee Attorney

General, Hilton or Strada, as current or former Tennessee Department of Correction

Commissioners, or Caldwell, as a State of Tennessee probation officer, could have

violated plaintiff’s rights by setting excessive bail. See id. at *6 (“Presiding over bond

hearings and setting bonds are judicial acts.”).

Moving to plaintiff’s request for prospective injunctive relief from retaliation, it

appears to the Court that plaintiff is referencing his allegations that Caldwell and

Delorge6 retaliated against him when he filed a religious grievance [See Doc. 17, p. 7].

Similarly to above, the R&R found, and the Court here agrees, that “there are no factual

allegations supporting [plaintiff’s] conclusory assertions” of retaliation [Id. (citation

omitted)]. Therefore, such claim, and related relief, would not survive a motion to

dismiss, meaning an amendment here to include a request for prospective injunctive relief

would be futile. See Miller, 408 F.3d at 817 (citation omitted); Iqbal, 556 U.S. at 678

(citation omitted).

6 Notably, however, plaintiff sued Delorge only in her individual capacity, and therefore,

she was not included in the R&R’s discussion of prospective injunctive relief [See Doc. 17, pp.

6–7].

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Lastly, turning to plaintiff’s request for prospective injunctive relief from

“continued p[e]rjury (arrest),” it appears that this request stems from plaintiff’s

allegations in his complaint that the affidavit, presumably attached to the warrant for

plaintiff’s arrest, is perjury [See Doc. 16, pp. 3–4]. As stated in the R&R, “it appears

Defendant Caldwell is responsible for seeking the warrant” [see Doc. 17, p. 9], and thus,

it would follow that Caldwell is also responsible for the supportive affidavit at issue,

though this is not definitive from the complaint allegations. While not entirely clear, and

despite the use of the word “continued,” plaintiff’s request for relief here appears to be

premised on a past injury, specifically, the alleged perjury in the affidavit used in

conjunction with the warrant for his arrest. Such relief is retrospective, not prospective,

and therefore, it is barred by the Eleventh Amendment. See Brown v. Strickland, No.

2:10-CV-166, 2010 WL 2629878, at *4 (S.D. Ohio June 28, 2010) (stating that the

plaintiff’s “request to seal his conviction record is premised on a past injury, and as a

result, is retrospective and barred by the Eleventh Amendment”); see also Greene v.

Middle Tenn. Mental Health Inst., No. 3:19-CV-00738, 2020 WL 1865187, at *4 (M.D.

Tenn. Apr. 14, 2020) (citation omitted) (describing prospective relief as that which aims

“to prevent future federal constitutional or statutory violations”); United States v. Barker,

No. 3:13-CV-15, 2014 WL 1365951, at *2 (S.D. Ohio Apr. 7, 2014) (citations omitted)

(noting that the “purpose of an injunction is to prevent future wrong violations”).

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Given all the above, the Court finds that plaintiff’s proposed amendment would be

futile, and thus, the Court declines to allow plaintiff leave to amend. Foman, 371 U.S. at

182.

III. Conclusion

For the reasons set forth above, plaintiff’s objections [Docs. 19, 21, 22] are

OVERRULED, and the Court ACCEPTS and ADOPTS the R&R [Doc. 17] in whole.

Plaintiff’s claim pursuant to 42 U.S.C. § 1983 for false arrest against Johnny Caldwell, in

his individual capacity, SHALL PROCEED. Plaintiff’s remaining claims are dismissed.

The Clerk of Court is directed to send plaintiff a service packet (a blank summons

and Form USM-285) for the remaining defendant, and plaintiff is ORDERED to

complete the service packet and return it to the Clerk’s Office within twenty (20) days of

receipt of this Memorandum Opinion and Order, to be signed and sealed by the Clerk and

forwarded to the U.S. Marshal for service. Plaintiff is ON NOTICE that failure to timely

return the completed service packet will result in dismissal of his entire suit.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

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