Bosan v. University Place Senior Living SE LP

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

RICK BOSAN, )

)

Plaintiff, )

) No. 2:24-cv-02140-TLP-cgc

v. )

) JURY DEMAND

UNIVERSITY PLACE SENIOR LIVING )

SE LP, et al., )

)

Defendants. )

ORDER ADOPTING REPORT AND RECOMMENDATION

ON MEMPHIS AREA LEGAL SERVICES’ MOTION TO DISMISS

Pro se Plaintiff Rick Bosan sued Defendants University Place Senior Living SE LP,

Memphis Housing Authority, Department of Housing and Urban Development, Memphis Area

Legal Services (“MALS”), The Baer Law Firm, Attorney Krista Holder-Williams, and Shelby

County Clerk’s Office for a civil rights violation under 42 U.S.C. § 1983.1 (ECF No. 1.)

Plaintiff also alleged malpractice against MALS. (Id.) MALS moved to dismiss. (ECF No. 47.)

Plaintiff opposed the motion (ECF Nos. 57, 78), and MALS replied (ECF No. 66, 85).

Magistrate Judge Charmaine G. Claxton then entered a Report and Recommendation (“R&R”)

recommending that the Court dismiss the claims against MALS. (ECF No. 115.) Plaintiff

objected. (ECF No. 123.)

1 The Court dismissed Defendants University Place Senior Living SE LP, Memphis Housing

Authority, The Baer Law Firm, and Attorney Krista Holder-Williams in an earlier order. (See

ECF Nos. 53, 69, 70.)

For the reasons below, the Court MODIFIES Judge Claxton’s analysis but ADOPTS the

R&R and DISMISSES Plaintiff’s claims against MALS.

BACKGROUND

Plaintiff sues MALS under 28 U.S.C. § 1983 following his eviction for failing to pay

rent. (ECF No. 1 at PageID 1, 4–5.) But the Complaint offers only confusing facts about the

basis of its claim against MALS. (Id. at PageID 4–5.) Defendant MALS moved to dismiss,

arguing that Plaintiff’s § 1983 claim fails because MALS is a private party, not a state actor.

(ECF Nos. 47–48 at PageID 325–26.) It also contends the malpractice allegation is not subject to

federal jurisdiction. (Id. at PageID 326–27.) Lastly, MALS argues both claims are time-barred.

(Id. at PageID 331–33.) And Plaintiff responded, offering little to clarify his claims or their

bases, though Plaintiff adds information about his theory. (ECF Nos. 57, 78, and 123.)

LEGAL STANDARD

A magistrate judge may submit to a district court judge proposed findings of fact and a

recommended ruling on certain dispositive pretrial matters, including motions to dismiss. 28

U.S.C. § 636(b)(1)(A)–(B). And the Court “may accept, reject, or modify, in whole or in part,

the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 636(b)(1). A

party may object to the proposed findings and recommendations “[w]ithin 14 days after being

served with a copy of the recommended disposition.” Fed. R. Civ. P. 72(b)(2); see also 28

U.S.C. § 636(b)(1). If neither party objects, then the district court reviews the R&R for clear

error. Fed. R. Civ. P. 72(b) advisory committee’s note. But if there is an objection, the district

court reviews the objected-to portions of the R&R de novo. Fed. R. Civ. P. 72(b)(3); see also 28

U.S.C. § 636(b)(1).

A party who objects must “be clear enough to enable the district court to discern those

issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)

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

“[o]verly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449

F.3d 721, 725 (6th Cir. 2006) (citing Miller, 50 F.3d at 380), abrogated on other grounds

by Jones v. Bock, 549 U.S. 199 (2007); see also Slater v. Potter, 28 F. App’x 512, 513 (6th Cir.

2002) (“The filing of vague, general, or conclusory objections does not meet the requirement of

specific objections and is tantamount to a complete failure to object.” (citing Miller, 50 F.3d at

380)). And so, when a plaintiff submits only vague, general, or conclusory objections, the

district court may review the R&R for clear error, rather than de novo. See id. And the district

court need not articulate all its reasons for rejecting a party’s objection. See Tuggle v. Seabold,

806 F.2d 87, 92 (6th Cir. 1986).

Judge Claxton entered her R&R, and Plaintiff timely objected. (See ECF No. 115; see

also ECF Nos. 120, 122 (extending time to object), and 123.) But Plaintiff’s objections are not

specific enough to meet the requirements of Federal Rule of Civil Procedure 72(b)(2). Plaintiff

generally lists legal principles, makes factual contentions related to his eviction, and attaches a

letter from HUD—all without identifying any errors Judge Claxton made in the R&R or

explaining why his claims should not be dismissed. (ECF No. 123.) In fact, Plaintiff does not

address the core issue of the R&R: whether MALS is a state actor. (Id.) Instead, the bulk of his

objection relates to another party, HUD, which is not relevant to this R&R. (Id.)

Because Plaintiff failed to identify specific errors within Judge Claxton’s report, the

Court reviews the R&R for clear error. See Miller, 50 F.3d at 380 (finding that a party’s

objections to report and recommendation were general objections when they “were summary in

nature, with no specificity at all,” “failed specifically to address the findings of the magistrate,”

“disputed the correctness of the magistrate’s recommendation but failed to specify the findings

that she believed were in error,” and “simply objected to the report and recommendation and

referred to several of the issues in the case”). Plaintiff fails to show Judge Claxton’s

recommendations have any clear errors.

DISPOSITION

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege enough facts

to “state a plausible claim to relief.” Bryant v. McDonough, 72 F.4th 149 (6th Cir. 2023); see

also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Courts must “construe the complaint in a light most

favorable to the plaintiff, accept all well-pleaded factual allegations as true, and decide whether

there is enough factual content to allow ‘the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Mich. First Credit Union v. T-Mobile USA,

Inc., 108 F.4th 421, 425 (6th Cir. 2024) (quoting Ashcroft, 556 U.S. at 678).

What is more, courts “liberally construe[]” pro se pleadings and hold them “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)). But this

“lenient treatment . . . has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)

(citation omitted); see also Orlowski v. Bates, 146 F. Supp. 3d 908, 921 (W.D. Tenn. 2015) (“Pro

se litigants, however, are not exempt from the basic pleading requirements of the Federal Rules

of Civil Procedure.” (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989))). Pro se litigants

must still plead enough “factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Barnett v. Luttrell, 414 F. App’x. 784, 786 (6th Cir. 2011) (quoting Iqbal,

556 U.S. at 678). And district courts are not “required to create” a pro se plaintiff’s claim for

him. Payne v. Sec’y of the Treasury, 73 F. App’x. 836, 837 (6th Cir. 2003).

Applying this standard, Judge Claxton recommends the Court dismiss Plaintiff’s § 1983

and malpractice claims against MALS. (ECF No. 115.) Having reviewed the record, the Court

MODIFIES the reasoning but finds no clear error in Judge Claxton’s conclusions. The Court

therefore ADOPTS the R&R’s recommendations for the reasons below.

I. 42 U.S.C. § 1983

Judge Claxton’s R&R correctly states that Plaintiff has failed to state a claim under 42

U.S.C. § 1983.2 (See ECF No. 115.) To survive dismissal, a plaintiff must allege “that [he or]

she was deprived of a right ‘secured by the Constitution or laws of the United States’ and that

such deprivation was ‘caused by a person acting under color of state law.’” Littler v. Ohio Ass’n

of Pub. Sch. Emps., 88 F.4th 1176, 1180 (6th Cir. 2023) (citations omitted). This second prong

is met when “there is a sufficiently close nexus between the government and the private party’s

conduct so that the conduct may be fairly attributed to the state itself.”3 Chapman v. Higbee Co.,

319 F.3d 825, 834 (6th Cir. 2003). This nexus requires more than receiving public funds. Brown

2 MALS moves to dismiss the § 1983 claim under both Rules 12(b)(1) for subject matter

jurisdiction and 12(b)(6) for failure to state a claim. Although some courts consider the failure to

allege a state actor as showing lack of jurisdiction, see Brown ex rel. Estate of Henry v. Hatch,

984 F. Supp. 2d 700, 707 (E.D. Mich. 2013) (citing cases to explain that the court lacks subject

matter jurisdiction over a § 1983 action if “neither Defendant is a state actor”), the better

approach is to analyze the claim under Rule 12(b)(6) because § 1983 is a federal statute that

would confer jurisdiction on this Court, 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.”). For this reason, and because MALS raised both issues and the pleadings fail

under both standards, the Court applies Rule 12(b)(6) here.

3 Courts apply three tests to decide whether there is state action: “(1) the public function test, (2)

the state compulsion test, and (3) the symbiotic relationship or nexus test.” Chapman v. Higbee

Co., 319 F.3d 825, 833 (6th Cir. 2003). Because Plaintiff only argues “entanglement,” which

falls under the third test, the Court only addresses that analysis here. See id. at 834.

v. Cioffi, No. 24-1168, 2024 WL 5440982, at *3 (6th Cir. October 10, 2024) (“And although

Brown alleged that Calvin University is a state actor because it receives federal funding and has

agreed to follow MDOC policies, the receipt of public funding by a private entity is not

sufficient to establish a nexus between state and private actors.” (citing Rendell-Baker v. Kohn,

457 U.S. 830, 841 (1982))).

MALS is a private entity, and Plaintiff’s Complaint, briefs, and objections provide little

basis for considering it a state actor.4 Plaintiff first alleges facts about how Holder-Williams

represented him in a legal matter. (ECF No. 1 at PageID 4–5.) And his responses to the motion

to dismiss explain that Holder-Williams and Attorney Cedric Harris5 did not provide him with

the legal assistance to which Plaintiff believes he is entitled.6 (See generally ECF Nos. 57, 78,

4 Plaintiff alleged the following in his Complaint:

4) Memphis Area Legal Services

also known as (MALSI)

Attorney Williams, while acting as legal counsel for the defendant failed to do due

diligence, knew or should have known the charge of - failure to pay rent- was a

civil violation as well as criminal act since she was certainly aware it was not argued

in court on August 11th of 2022 and as well was fraudulent and therefore had to be

the product of conspiracy as there was no supportive evidence brought forth.

Attorney Williams, is therefore charged with ineffective counsel, conspiracy,

aiding and abetting an unlawful act which has and is causing harm, pain and

suffering as well significant financial loss to the former defendant, her former

client.

(ECF No. 1 at PageID 4–5.)

5 Harris is not a party to this action. The Court thus mentions him here only to the extent his

conduct could create liability for MALS.

6 On a motion to dismiss, courts generally restrict their review to the Complaint. But when a pro

se litigant provides facts to state a claim in other filings, courts hesitate to dismiss and may grant

leave to amend instead. See Brown v. Matauszak, 415 F. App’x 608, 615 (6th Cir. 2011)

(“Given the chance to amend and include the information found in his motion for relief from

judgment, Brown would have been able to demonstrate a non-frivolous underlying claim and

therefore would have properly set for a claim under 42 U.S.C. § 1983.”). After all, courts

“should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). But

courts need not permit amendment when, among other things, the amendment would be futile.

and 123.) His objections add that Harris “interfered with” his right to “an impartial and fair

hearing through trickery and misrepresentation.” (ECF No. 123 at PageID 575.) But these

allegations do not imply state action. Providing legal representation is not state action at all—let

alone action with such a “close nexus” to the government that it could “be fairly attributed to the

state itself.” (See ECF No. 1.) See also Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981) (“[A]

lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under

color of state law’ within the meaning of § 1983.”); Catz v. Chalker, 142 F.3d 279, 289 (6th Cir.

1998) (acknowledging that attorneys are not state actors for purposes of a § 1983 claim).

Plaintiff then calls MALS a “Federally funded program[].” (ECF No. 1 at PageID 4.)

And he adds in his responses that MALS “associate[es] with and assist[s]” federal agencies,

causing “Federal and State entanglement.” (ECF No. 78 at PageID 438; see also id. at PageID

440; ECF No. 57 at PageID 366.) He similarly cites the entanglement doctrine in his objections,

but he adds no facts about why it should apply here. (ECF No. 123 at PageID 574.) In any case,

receiving public funds is not enough to show state action. Brown v. Cioffi, 2024 WL 5440982, at

*3 (“[T]he receipt of public funding by a private entity is not sufficient to establish a nexus

between state and private actors.” (citing Rendell-Baker, 457 U.S. at 841)). And so, these

allegations and arguments fail.

This Court therefore agrees with Judge Claxton that Plaintiff has failed to state § 1983

claim against MALS. Under clear error review, the Court ADOPTS Judge Claxton’s

Stanley v. W. Mich. Univ., 105 F.4th 856, 867 (6th Cir. 2024) (citing Foman v. Davis, 371 U.S.

178, 182 (1962)). And an amendment is futile if the proposed changes still would not allow the

pleading to survive a motion to dismiss. Id.

Because Plaintiff’s responses and objections provide more facts supporting its claims, the

Court considers them as though Plaintiff had moved to amend. (See ECF Nos. 57, 78, 123.)

Even so, because the new allegations about Holder-Williams and Harris still fail to state a claim

against MALS, the amendment is futile.

recommendation, GRANTS the Motion to Dismiss, and DISMISSES the § 1983 claim WITH

PREJUDICE.

II. Legal Malpractice

Judge Claxton also recommends dismissing Plaintiff’s state-law claims7 for lack of

subject matter jurisdiction. (ECF No. 115 at PageID 553.) She explains that Plaintiff has alleged

that his mailing address and MALS’s home base are both in Tennessee, thereby defeating

diversity jurisdiction. (Id.; see also ECF No. 1 at PageID 3; ECF No. 8 at PageID 13.) And this

is true. See 28 U.S.C. § 1332 (granting federal courts jurisdiction over certain civil actions

between “citizens of different States”). Plaintiff’s claims for malpractice and fraud or

misrepresentation also do not invoke a federal statute to fall within the scope of federal question

jurisdiction. 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.”).

But there is a third kind of jurisdiction which neither Judge Claxton nor the Parties

address: supplemental jurisdiction. See 28 U.S.C. § 1367. (See ECF No. 115; ECF No. 48 at

PageID 328–29.) Supplemental jurisdiction arises when state-law claims “are so related to

claims in the action with [the court’s] original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.” Hucul Adver., LLC v. Charter

Twp. of Gaines, 748 F.3d 273, 280 (6th Cir. 2014) (quoting 28 U.S.C. § 1367(a)). “Claims form

part of the same case or controversy when they ‘derive from a common nucleus of operative

facts.’” Id. (citation omitted).

7 Judge Claxton construed Plaintiff’s Complaint as alleging legal malpractice under Tennessee

law. (ECF No. 115 at PageID 553.) It appears Plaintiff’s responses also try to allege fraud and

misrepresentation claims against MALS based on Harris’s conduct. (ECF Nos. 57, 78, 123.) As

before, the Court reviews these new facts under the futility standard for a motion to amend. See

Brown, 415 F. App’x at 615.

Plaintiff asserted a § 1983 claim here, which invokes a federal statute and, as a result, the

Court’s original jurisdiction. (ECF No. 1.) See 28 U.S.C. § 1331. That said, the Court may

exercise jurisdiction over Plaintiff’s state-law malpractice and fraud claims if they share a

“common nucleus of operative facts” with the facts underlying the federal § 1983 claim. The

claims here meet this standard because they depend on related factual allegations about the legal

representation Plaintiff received in his eviction proceedings. (ECF No. 1 at PageID 4–5.)

Even so, the Court declines to exercise supplemental jurisdiction here. After all, a court

may decline supplemental jurisdiction when it “has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c). In fact, “[o]nce a federal court no longer has federal

claims to resolve, it ‘should not ordinarily reach the plaintiff’s state-law claims.’” Southard v.

Newcomb Oil Co., LLC, 7 F.4th 451, 455 (6th Cir. 2021) (citation omitted). Because, as

discussed above, the Court dismisses Plaintiff’s § 1983 claim (which was the claim “over which

it has original jurisdiction”), the Court now declines to reach Plaintiff’s state-law malpractice and

fraud claims here.

The Court thus ADOPTS Judge Claxton’s recommendation to dismiss the malpractice

claim, but it DISMISSES it WITHOUT PREJUDICE because it declines to exercise

jurisdiction.

CONCLUSION

Having reviewed Judge Claxton’s R&Rs, for the reasons stated above, the Court

ADOPTS her recommendations, and DISMISSES Plaintiff’s claims against MALS.

SO ORDERED, this 8th day of September, 2025.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE