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 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT’S

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 (“HUD”),

Memphis Area Legal Services, 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.)

HUD moved to dismiss. (ECF No. 54.) Plaintiff opposed the motion (ECF No. 82), and HUD

replied (ECF No. 87). Magistrate Judge Charmaine G. Claxton then entered a Report and

Recommendation (“R&R”) recommending that the Court dismiss the claims against HUD. (ECF

No. 116.) Plaintiff objected. (ECF No. 123.) And HUD responded to the objections. (ECF No.

124.)

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

Authority, Memphis Area Legal Services, The Baer Law Firm, and Attorney Krista Holder-

Williams in earlier orders. (See ECF Nos. 53, 69, 70, 125.)

For the reasons below, the Court ADOPTS the R&R and DISMISSES Plaintiff’s claims

against HUD WITH PREJUDICE.

BACKGROUND

Plaintiff sues HUD under 28 U.S.C. § 1983 over his eviction for failing to pay rent.

(ECF No. 1 at PageID 1, 4–5.) As to Defendant HUD, Plaintiff alleges:

Whereas HUD has oversight of its partnerships and programs, upon being advised

of University Place’s failure of compliance with HUD’s protocol (prior to any

scheduled court involvement) by verifiable mail HUD representative Michael

Craven 200 Jefferson in May of 2022 until present: HUD Secretary Marcia Fudge

has been requested since 2022 to conduct an audit of why Tenant R. Bosan was

evicted to no avail. The aforementioned parties failed to respond to or to adhere to

HUD’S own policies and guidelines which require mediation to occur between

tenant, landlord and a mediator represent the tenant in disputes.

(ECF No. 1 at PageID 4.) HUD moved to dismiss, arguing that Plaintiff has failed to state a

claim for relief. (ECF No. 54 at PageID 354–55.) It also contends that any Bivens claim fails on

immunity grounds. (Id. at PageID 355.) And Plaintiff responded with what she called a “Motion

to Deny Motion to Dismiss” that included no legal argument or relevant facts.2 (ECF No. 82.)

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

2 Plaintiff’s response cites “Rule 4, and 4.04 as well as Rule 55” and notes that he had not

received communications since March 2024. (ECF No. 82 at PageID 453.) It is unclear to what

communications, or from whom, Plaintiff refers.

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 the R&R here, and Plaintiff timely objected. (See ECF No. 116;

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 state court documents—all without identifying any errors Judge Claxton made in either

R&R or explaining why his claims should not be dismissed. (ECF No. 123.)

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

Court reviews the R&Rs 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”). Having reviewed the record here, the Court finds

that Plaintiff fails to show Judge Claxton committed any errors, let alone a clear one.

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

plaintiffs 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) (alteration in

original) (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

claim against HUD. (ECF No. 116.) Having reviewed the record here, the Court finds no clear

error in Judge Claxton’s conclusions. In fact, the Court agrees with them. 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. (See ECF No. 116.) 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).

Plaintiff fails under both prongs here. First, as Judge Claxton correctly points out,

Plaintiff has failed to allege a federal or constitutional deprivation. His Complaint alleges that

HUD “failed to respond to or to adhere to [its] own policies and guidelines.” (ECF No. 1 at

PageID 4.) But violating internal policies is not an independent deprivation of a federal or

constitutional right. And though Plaintiff cites the Fourteenth Amendment, he does not clarify

how violating the policies separately deprived him of due process or equal protection. (See id.)

Second, Plaintiff does not allege that HUD was acting under state law. Typically, federal actors

like HUD act under federal law. Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997). And

though they may act under state law in limited circumstances, Plaintiff does not allege any facts

about how HUD may have done so here. Id. (noting that the “evaluation of whether particular

conduct constitutes action taken under the color of state law[] must focus on the actual nature

and character of that action” (citation omitted)). For instance, Plaintiff’s objections3 primarily

make factual assertions about and challenge HUD’s conduct, but they do not explain why those

actions were taken under state law rather than federal law. (See generally ECF No. 123.)

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

claim against HUD. Under de novo review, the Court ADOPTS Judge Claxton’s

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

PREJUDICE.

II. Bivens

Judge Claxton also chose not to construe Plaintiff’s allegations as asserting a Bivens

claim. (ECF No. 116 at PageID 559.) Plaintiff makes general claims about HUD’s conduct.

(See generally ECF Nos. 1, 123.) But, as Judge Claxton emphasizes, “federal entities are not

proper defendants for a Bivens claim.” (ECF No. 116 at PageID 559 (citation omitted).) She is

3 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.

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 objections provide more facts related to his claims, the Court

considers them as though Plaintiff had moved to amend. (See ECF Nos. 82, 123.) Even so,

because the new allegations still fail to state a claim against HUD, the amendment is futile.

correct. Indeed, “the Supreme Court held that a plaintiff cannot bring a Bivens action against a

federal agency . . . .” Koprowski v. Baker, 822 F.3d 248, 255 (6th Cir. 2016) (citing FDIC v.

Meyer, 510 U.S. 471, 485 (1994)). But Plaintiff has sued HUD, a federal entity. For this reason,

the Court also will not construe Plaintiff’s allegations as a Bivens claim.

CONCLUSION

Having reviewed Judge Claxton’s R&Rs, the Court ADOPTS her recommendations and

DISMISSES Plaintiff’s § 1983 claim against HUD WITH PREJUDICE.

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

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE