Kiner

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

________________________________________________________________

GERALD KINER, individually and )

on behalf of all similarly )

situated MLGW ratepayers, )

)

Plaintiff, )

)

v. ) No. 25-cv-02987-BCL-tmp

)

CITY OF MEMPHIS, MEMPHIS )

LIGHT, GAS & WATER DIVISION )

(MLGW), JOHN DOES (1-10), )

)

Defendants. )

)

________________________________________________________________

REPORT AND RECOMMENDATION

________________________________________________________________

Before the court are pro se Plaintiff Gerald Kiner’s

“Emergency Ex Parte Motion for Temporary Restraining Order” (“TRO

Motion”) (ECF No. 13) and Motion for Summary Judgment (ECF No.

26), and Defendants City of Memphis (“City”) and Memphis Light,

Gas & Water Division’s (“MLGW”) Motions to Dismiss (ECF Nos. 34,

79).1 For the following reasons, the undersigned recommends

granting the Defendants’ Motions to Dismiss as to all federal law

claims and declining supplemental jurisdiction over the remaining

1Pursuant to Administrative Order No. 2013-05, this case has been

referred to the United States magistrate judge for management of

all pretrial matters for determination or report and

recommendation, as appropriate.

state law claims. It is further recommended that Kiner’s motions

be denied.

I. PROPOSED FINDINGS OF FACT

The instant complaint was filed by Gerald Kiner pro se on

October 29, 2025. (ECF No. 1.) The complaint is over 36 pages long

and includes another 100-plus pages of exhibits. (Id.) The

complaint is difficult to understand, but as best as the court can

tell, Kiner is attempting to bring a class action on behalf of all

Memphis and Shelby County ratepayers and taxpayers “who have

suffered financial injury from Defendants’ ongoing fraudulent and

unconstitutional conduct, including systematic overbilling, misuse

of public funds, and concealment of fiscal irregularities within

the City of Memphis and its division, Memphis Light, Gas & Water

(MLGW).”2 (ECF No. 10 at PageID 155.) The primary action being

challenged by Kiner is MLGW’s alleged overpayment for tree trimming

services that Kiner claims caused the Memphis City Council to

approve a 12% rate increase in December 2023. (ECF No. 1 at PageID

13-14). Kiner alleges that, “[a]s a direct result of Defendants’

conduct, ratepayers began paying higher bills in January 2024

without commensurate service benefit.” (Id. at PageID 15.) His

claims are based on alleged violations of federal law involving

2The undersigned, in a separate report and recommendation,

recommended denying Kiner’s Motion for Class Certification, which

the presiding district judge adopted. (ECF Nos. 95, 102.)

Wire Fraud (Count 1), Mail Fraud (Count 2), False Claims Act

(“FCA”) (Count 3), Theft or Bribery Concerning Programs Receiving

Federal Funds (Count 4), Deprivation of Due Process under 42 U.S.C.

§ 1983 (Count 5), Conspiracy to Defraud the United States (Count

6), Bid Rigging and Price Fixing (Count 7), False Statements

(Counts 8 and 17), Money Laundering (Count 9), Honest Services

Fraud (Counts 10 and 18), civil violations of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”) (Count 16),

“Misuse of Federal Transit Funds” (Count 17), and “Fraudulent

Certification of Legislative Records” (Count 19), as well as

violations of various state laws (Counts 11 through 15). Kiner

seeks, among other forms of relief, damages of “One Billion

Dollars.” (Id. at PageID 30.) He also asks that the court establish

a “Ratepayer Restorative Utility Fund,” and that his organization,

the Daughters of Zion, be appointed as administrator of this fund.

(Id. at PageID 31.)

Contemporaneous with the filing of his complaint, Kiner filed

a TRO Motion and a Motion for Summary Judgment. On November 19,

2025, MLGW filed a Motion to Dismiss, and on December 17, 2026,

the City filed its own Motion to Dismiss. On May 6, 2026, the

undersigned granted Kiner leave to amend his complaint. (ECF No.

93.) This order was issued based on Kiner’s “Judicial Notice of

Mandatory Grant of Leave to Amend.” (ECF No. 11.) Although styled

as a “Judicial Notice,” given Kiner’s pro se status, the

undersigned construed this filing as a motion for leave to amend

his complaint.3 The court directed Kiner to file his amended

complaint within 21 days from the date of the order. The court

cautioned Kiner that his amended complaint, like any other

complaint filed with the court, would need to conform with Federal

Rule of Civil Procedure 8: “a short and plain statement of the

claim showing that the pleader is entitled to relief,” and if fraud

is pled, it must meet Rule 9(b)’s heightened pleading standard: “a

party must state with particularity the circumstances constituting

fraud[.]” (ECF No. 93 at PageID 1106-07.)

The undersigned also noted in the May 6 Order that, on March

10, 2026, Chief District Judge Sheryl H. Lipman, in a separate

action, imposed a prefiling restriction on all new actions brought

by Kiner. Kiner v. Shelby County, No. 2:25-cv-02435-SHL-atc (Mar.

10, 2026 Order Granting Defendant’s Motion for Prefiling

Restrictions). Chief Judge Lipman’s prefiling restriction order

states as follows:

Therefore, the Court IMPOSES a prefiling restriction.

Kiner is hereby BARRED from bringing new actions in this

District without a certification from a United States

magistrate judge in this District or an attorney who is

a member of this Court’s bar that the claims that Kiner

asserts are not frivolous, and that the case is not

brought for an improper purpose. Certification from a

magistrate judge shall be sought by submitting a

document titled “Motion for Magistrate Judge

3Although he attached a proposed order granting leave to amend, he

did not include a proposed amended complaint.

Certification Consistent with the Court’s March 9, 2026

Order in Case No. 25-2435” and a proposed complaint to

the Clerk’s Office.

Because the instant case was filed prior to the prefiling

restriction imposed by Chief Judge Lipman in Kiner v. Shelby

County, the undersigned did not construe that order as applying to

the instant case. However, given the concerns raised by Chief Judge

Lipman in her order, the court cautioned Kiner about the importance

of filing pleadings and other documents that conform with the

Federal Rules.

On May 28, 2026, Kiner filed a Motion for Extension of Time,

asking for an additional 21 days to file his amended complaint.

(ECF No. 96.) Kiner represented in his motion that “Plaintiff has

been diligently working to prepare an amended complaint that

complies with the Federal Rules of Civil Procedure and addresses

the issues identified by the Court.” (Id. at PageID 1115.) The

court granted this motion. (ECF No. 98.) However, on June 9, 2026,

Kiner filed a “Notice,” in which he stated that he would not be

filing an amended complaint, but instead “elect[ed] to stand on

the currently filed complaint while respectfully preserving the

ability to seek amendment later if the Court identifies specific

deficiencies warranting targeted amendment.” (Id. at PageID 1122.)

II. PROPOSED CONCLUSIONS OF LAW

A. Standard of Review

To avoid dismissal for failure to state a claim, “a complaint

must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007); Fed. R. Civ. P. 8(a), 12(b)(6). “A

claim is plausible on its face if the ‘plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.’” Ctr.

for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th

Cir. 2011) (quoting Iqbal, 556 U.S. at 678). Without factual

allegations in support, mere legal conclusions are not entitled to

the assumption of truth. Iqbal, 556 U.S. at 679.

Pro se complaints are held to less stringent standards than

formal pleadings drafted by lawyers and are thus liberally

construed. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)

(citing Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2002)).

Even so, pro se litigants must adhere to the Federal Rules of Civil

Procedure, see Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989),

and the court cannot create a claim that has not been spelled out

in a pleading, see Brown v. Matauszak, 415 F. App’x 608, 613 (6th

Cir. 2011); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th

Cir. 2003).

B. Federal Claims

1. Criminal Statutes

Most of Kiner’s federal claims are based on alleged violations

of federal criminal statutes: Counts 1, 2, 4, 6, 7, 8, 9, 10, 17,

and 18. (ECF No. 1 at PageID 18-29.) It is well established that,

unless specifically provided for in the statute, a federal criminal

statute rarely creates a private cause of action that can form the

basis for a civil claim. See Young v. Overly, No. 17-6242, 2018 WL

5311408, at *2 (6th Cir. July 2, 2018); Smith v. Thistle Farms,

No. 3:25-cv-01007, 2026 WL 1252632, at *4 (M.D. Tenn. Apr. 16,

2026). Kiner has not shown that any of the numerous federal

criminal statutes that he references in his complaint have been

found to create a private cause of action. Courts have no authority

to enforce criminal statutes or permit a civil party to act in the

role of a criminal prosecutor. See Lee v. Stewart, No. 3:19-01004,

2020 WL 6054336, at *3 (M.D. Tenn. Mar. 26, 2020). Thus, Kiner

fails to state a claim with regard to these counts.

In response, Kiner argues that he is not bringing private

action based on criminal statutes, but rather relies on them as

predicate acts for his civil RICO claim. (ECF No. 1 at PageID 20.)

However, Kiner’s RICO claim against these defendants fails as a

matter of law. “While the Sixth Circuit has not directly ruled on

this issue, an unpublished Sixth Circuit case and district courts

within the Sixth Circuit have all held that a RICO claim cannot be

established against a [municipality] because a [municipality]

cannot form the specific intent necessary to establish a RICO

claim.” Mathis v. Ohio Dep’t of Job & Family Servs., No. 2:11-cv-

395, 2011 WL 5075824, at *2 (S.D. Ohio Oct. 25, 2011) (citing

Cargile v. Michigan, No. 10–10072, 2010 U.S. Dist. LEXIS 82993,

*17–19, 2010 WL 3222024 (E.D. Mich. June 18, 2010) (citing Call v.

Watts, No. 97–5406, 1998 U.S. App. LEXIS 6875, 1998 WL 165131, at

*2 (6th Cir. Apr. 2, 1998) (per curiam) (stating that counties

cannot form the requisite mens rea); McGee v. City of Warrensville

Hts., 16 F. Supp. 2d 837, 848 (N.D. Ohio 1998) (stating that “a

municipality is incapable of forming the specific intent

associated with the underlying predicate acts of fraud”); County

of Oakland by Kuhn v. City of Detroit, 784 F. Supp. 1275, 1283

(E.D. Mich. 1992) (“Upon the weight of authority, this court holds

that a municipal corporation cannot form the requisite criminal

intent and cannot be held liable under the civil RICO laws.”));

see also Wizinsky v. Leelanau County, No 1:19-cv-894, 2020 WL

6597637, at *11 (W.D. Mich. Aug. 20, 2020) (same). Accordingly,

the complaint fails to state a RICO claim against the City or its

municipal utility, MLGW.4

2. FCA

The undersigned further recommends that Count 3 be dismissed.

Private parties, in the capacity of a relator, may sue under the

4Because Kiner cannot bring a RICO claim against the defendants,

the undersigned need not address the defendants’ other arguments

relating to the sufficiency of the RICO claim.

FCA in so-called qui tam actions. United States ex rel. Polansky

v. Executive Health Resources, Inc., 599 U.S. 419, 424 (2023).

“Those suits are brought in the name of the Government . . . [a]nd

the injury they assert is exclusively to the Government.” Id. at

424-25 (internal quotations omitted). “Because the relator is no

ordinary civil plaintiff, he is immediately subject to special

restrictions. He must file his complaint under seal, and serve

both ‘[a] copy’ and supporting ‘material evidence’ on the

Government alone.” (Id. at 425) (citing § 3730(b)(2)). “The

Government then has 60 days . . . to decide whether to ‘intervene

and proceed with the action.’” (Id.) (citing §§ 3730(b)(2)-(3)).

“If the Government, during that so-called seal period, elects to

intervene, the relator loses control: The action then ‘shall be

conducted by the Government,’ though the relator can continue as

a party in a secondary role.” (Id.) (citing §§

3730(b)(4)(A),(c)(1)). “Only if the Government passes on

intervention does the relator ‘have the right to conduct the

action.’” (Id.) (citing § 3730(b)(4)(B)). Because Kiner has not

shown compliance with any aspect of § 3730(b), his FCA claim should

be dismissed.

3. Section 1983 Claims

With regard to his § 1983 claims, Kiner claims that “[b]y

approving and enforcing a fraudulent 12% rate increase and

diverting funds through mismanagement, Defendants deprived

Plaintiff of property (money) without due process of law.” (Id. at

PageID 20.) Defendants argue, among other grounds, that Kiner’s

claim is barred by the statute of limitations for § 1983 claims.

The statute of limitations is an affirmative defense to any claim,

and generally, a plaintiff “need not plead the lack of affirmative

defenses to state a valid claim” under Rule 12(b)(6). Cataldo v.

U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012); see also Logan

v. Pineiroa, No. 3:25-CV-417-CHB, 2026 WL 1266346, at *3 (W.D. Ky.

May 8, 2026). However, where “the allegations in the complaint

affirmatively show that the claim is time-barred,” the court can

dismiss a complaint under Rule 12(b)(6). Logan, 2026 WL 1266346,

at 3. Congress has not adopted a statute of limitations that

governs § 1983 claims, but the Supreme Court has held that federal

courts “must borrow the statute of limitations governing personal

injury actions in the state in which [a] section 1983 action [is]

brought.” Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.

2003) (citing Wilson v. Garcia, 471 U.S. 261, 275-76 (1985)); see

also Van Aelstyn v. Sparks, No. 5:23-136-DCR, 2025 WL 77892, at *5

(E.D Ky. Jan. 8, 2025). In this case, Tennessee’s one year statute

of limitations for personal injury actions applies to Kiner’s §

1983 claims. Tenn. Code. Ann. § 28-3-104(a)(3); see Roberson v.

Tennessee, 399 F.3d 792, 794 (6th Cir. 2005); Chism v. Arnold, No.

3:22-CV-368, 2024 WL 3740306, at *4 (E.D. Tenn. May 13, 2024);

Hutson v. Gibson, No. 17-1164-JDT-cgc, 2019 WL 639024, at *1 (W.D.

Tenn. Feb. 14, 2019). This one-year clock starts running when “the

plaintiff knows or has reason to know of the injury which is the

basis of his action.” Watkins v. Columbus City Schs., No. 20-3357,

2020 WL 9073357, at *2 (6th Cir. Nov. 10, 2020) (quoting Sevier v.

Turner, 742 F.2d 262, 273 (6th Cir. 1984)).

According to Kiner’s complaint, the purported violation of

his due process rights was committed by the City and MLGW (i.e.,

the rate increase) in December 2023 and went into effect January

2024. (ECF No. 1 at PageID 14.) However, Kiner did not file his

complaint until over a year later, on October 29, 2025. (Id.) Even

assuming arguendo Kiner has alleged a violation of his

constitutional rights, his § 1983 claims against both defendants

are time-barred and must be dismissed.

4. Amended Complaint Would Be Futile

The undersigned recommends that Kiner be denied leave to amend

his complaint as to these federal claims. As an initial matter,

the court has already granted Kiner leave to amend, and after

giving him an extension of time, he declined to file an amended

complaint. While the undersigned recognizes that Kiner is

proceeding pro se, the court has no obligation to create claims

for him or provide him with legal guidance to fix the defects in

his complaint. In any event, an amended complaint would be futile,

i.e., it could not withstand a motion to dismiss. Midkiff v. Adams

Cty. Reg’l Water Dist., 409 F.3d 758, 767 (6th Cir. 2005). An

amendment would not cure the defects in the complaint, as Kiner

cannot bring (1) a private action based on violations of criminal

statutes, (2) a RICO claim against these municipal defendants, (3)

a FCA claim, or (4) an untimely § 1983 claim. Moreover, as the

court has already ruled, Kiner, as a pro se litigant, cannot

prosecute this case as a class action. (ECF Nos. 95, 102.) It is

recommended that leave to amend the complaint be denied.

C. State Law Claims

Kiner alleges violations of various state laws, including

“Fraudulent Misrepresentation and Concealment” (Count 11), “Unjust

Enrichment” (Count 12), “Breach of Fiduciary Duty/Public Trust”

(Count 13), “Gross Mismanagement and Negligence Per Se” (Count

14), and “Civil Conspiracy” (Count 15). (ECF No. 1 at PageID 21-

22.) Having recommended dismissal of Kiner’s federal law claims,

the court must now consider whether it should exercise supplemental

jurisdiction over the remaining state law claims.

Once a federal court has dismissed all claims over which it

had original jurisdiction, the court may decline to exercise

supplemental jurisdiction over a related claim if

(1) the claim raises a novel or complex issue of

State law,

(2) the claim substantially predominates over the

claim or claims over which the district court

has original jurisdiction,

(3) the district court has dismissed all claims over

which it has original jurisdiction, or

(4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction.

Jones v. Brasaher, No. 1:24-cv-1265, 2025 WL 1427062, at *3

(W.D. Tenn. May 16, 2025) (citing 28 U.S.C. § 1367(c)). Here, the

undersigned has recommended dismissal of all claims the district

court had original jurisdiction over. “Generally, ‘when a federal

court dismisses all pending federal claims before trial, . . . it

is usually best to allow the state courts to decide state issues’”

by declining to exercise supplemental jurisdiction. Id.

(quoting Kowall v. Benson, 18 F.4th 542, 549 (6th Cir. 2021)). See

generally Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22,

30 (2025).

“[W]hile there is a ‘strong presumption’ that district courts

will decline to exert jurisdiction over state-law claims when they

dismiss the federal claims early on, such a decision is not

automatic.” Kiner v. City of Memphis, No. 25-5544, 2026 WL 1065014,

at *4 (6th Cir. Apr. 14, 2026) (citing Musson Theatrical, Inc. v.

Fed. Exp. Corp., 89 F.3d 1244, 1255 (6th Cir. 1996)). “Instead,

district courts must weigh several factors—including judicial

economy, fairness, and comity—when deciding whether to retain

jurisdiction over the state-law claims.” Id. (citing Gamel v. City

of Cincinnati, 625 F.3d 949, 951-52 (6th Cir. 2010) and Aschinger

v. Columbus Showcase Co., 934 F.2d 1402, 1412 (6th Cir. 1991)).

In determining whether the court should exercise supplemental

jurisdiction, the undersigned first considers judicial economy.

Kiner only filed this case in October of 2025, and it has yet to

even reach the discovery stage. Thus, it is not against the

interest of judicial economy to decline to hear Kiner’s state law

claims. There is also no issue of unfairness. Because dismissal of

the state law claims is without prejudice, Kiner can bring his

state law claims in state court and therefore has an adequate forum

in which to litigate his claims. Sampson v. Garrett, 917 F.3d 880,

883 (6th Cir. 2019); Brasaher, 2025 WL 1427062, at *3. Finally,

Kiner’s causes of action concern questions of fact and law that

are different from the federal claims, which weighs against

exercising supplemental jurisdiction. Thus, the undersigned

recommends declining the exercise of supplemental jurisdiction

over the state law claims.

D. Kiner’s Motions

Finally, Kiner’s TRO Motion and Motion for Summary Judgment

should be denied. To obtain a preliminary injunction in the Sixth

Circuit, the movant must make a “clear showing” that: (1) he is

likely to succeed on the merits; (2) he is likely to suffer

irreparable harm in the absence of preliminary relief; (3) the

balance of equities tips in his favor; and (4) an injunction is in

the public interest. See Kerwin on behalf of Natl. Lab. Rel. Bd.

v. Trinity Health Grand Haven Hosp., 174 F.4th 942, 949 (6th Cir.

2026). These factors “are not prerequisites, but [must] be balanced

against each other.” Memphis A. Philip Randolph Inst. v. Hargett,

978 F.3d 378, 385 (6th Cir. 2020) (quoting Overstreet v. Lexington-

Fayette Urb. Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002)). The

movant bears the burden of justifying injunctive relief. See

Hargett, 978 F.3d at 385 (citing Am. C.L. Union Fund of Michigan

v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015)). Here, Kiner

has failed to satisfy any of these factors.

Regarding his Motion for Summary Judgment, Rule 56(a)

provides that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). Based on the undersigned’s proposed findings

and conclusions set forth above, there is no basis to grant summary

judgment in favor of Kiner. The undersigned recommends that Kiner’s

TRO Motion and Motion for Summary Judgment be denied.

III. RECOMMENDATION

Based on the above, the undersigned recommends granting the

Defendants’ Motions to Dismiss as to all federal law claims and

declining supplemental jurisdiction over the remaining state law

claims. It is further recommended that Kiner’s motions be denied.

Respectfully submitted,

s/ Tu M. Pham

TU M. PHAM

Chief United States Magistrate Judge

July 15, 2026

Date

NOTICE

WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THIS

REPORT AND RECOMMENDED DISPOSITION, ANY PARTY MAY SERVE AND FILE

SPECIFIC WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND

RECOMMENDATIONS. ANY PARTY MAY RESPOND TO ANOTHER PARTY’S

OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A

COPY. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2); L.R.

72.1(g)(2). FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS

MAY CONSTITUTE A WAIVER AND/OR FORFEITURE OF OBJECTIONS,

EXCEPTIONS, AND FURTHER APPEAL.