Collier v. Austin Peay State University

• Decision Date: 26 March 2009
• Docket Number: Civil No. 3:08-0400.
• Citation: 616 F.Supp.2d 760
• Parties: Mariah Lee COLLIER, Plaintiff, v. AUSTIN PEAY STATE UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

616 F.Supp.2d 760

Mariah Lee COLLIER, Plaintiff, v. AUSTIN PEAY STATE UNIVERSITY, et al., Defendants.

Civil No. 3:08-0400.

United States District Court, M.D. Tennessee, Nashville Division.

March 26, 2009.

Mariah Lee Collier, Land O'Lakes, FL, pro se.

Leslie Ann Bridges, Tennessee Attorney General's Office, Nashville, TN, William Timothy Harvey, Harvey & Silvus, Clarksville, TN, for Defendants.

MEMORANDUM and ORDER

ALETA A. TRAUGER, District Judge.

On February 20, 2009, the Magistrate Judge issued two Reports and Recommendations (Docket Nos. 86, 87), to which the plaintiff filed timely Objections (Docket No. 89), to which various defendants responded (Docket Nos. 91-93), after which the plaintiff filed a "Continuation Motion of Objection to the Recommendation Report of the Court" (Docket No. 94). The Reports and Recommendations relate to dispositive matters. Therefore, pursuant to Rule 72(b), FED. R. CIV. P., and 28 U.S.C. § 636(b)(1)(C), this court must review de novo any portion of the Reports and Recommendations to which a specific objection is made. United States v. Curtis, 237 F.3d 598, 603 (6th Cir.2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir.1993).

The primary Report and Recommendation, which runs some 25 pages, (Docket No. 86) meticulously analyzes the claims made by the plaintiff in her Amended Complaint and gives the grounds for the dismissal of all claims against all defendants. Instead of specifically objecting to rulings recommended by the Magistrate Judge in this Report and Recommendation, the plaintiffs objections constitute a "general objection to the entirety of the Magistrate's Report," which has "the same effect as would a failure to object." Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.1991). In addition, in her initial objection document, the plaintiff attempts to characterize her claims in new ways, alleging causes of action that were not alleged in either the Complaint or the Amended Complaint. For example, she alleges that she has been the victim of a "hate crime"¹ and alleges violations of federal privacy laws (Docket No. 89 at 2) and federal criminal statutes (Id., at 3, 8). In addition, she seeks to invoke, for the first time, this court's diversity jurisdiction (Id. at 6)

After receiving the three responses to her objections, the plaintiff filed a document entitled "Continuation Motion of Objection to the Recommendation Report of the Court" (Docket No. 94), alleging even more additional causes of action. She alleges a violation of the Universal Declaration of Human Rights (Docket No. 94 at 1, 6) and a violation of 47 U.S.C. § 151, relating to the activation of the Emergency Alert System (Id. at 2). In addition, she alleges a criminal conspiracy between defendants Clarksville Police Department and Austin Peay State University. (Id. at 4)

An over-arching objection of the plaintiff made in both of her documents is the assertion that she made no threat that justified the actions of the defendants. (See Docket No. 89 at 4; Docket No. 94 at 3) This objection is misplaced, in that the Magistrate Judge's recommendation does not turn upon whether or not the plaintiff's comments to the Leaf Chronicle, in fact, were threats. Instead, the Magistrate Judge analyzed whether or not her comments were "protected speech," which they must be in order for a cause of action for First Amendment retaliation to arise. The Magistrate Judge observed that, if the plaintiffs comments were threats, they would not be protected speech. But he went on to find that, even if her statements were not threats, in order to be protected speech upon which a retaliation claim may depend, they must relate to a "matter of public concern." (Docket No. 86) The plaintiff herself states in the Amended Complaint: "I called the Clarksville Leaf Chronicle and expressed my concern about Virginia Tech and how Austin Peay had handled my case." (Docket No. 3 at 5) The Magistrate Judge accurately characterized the plaintiffs comments as pertaining "primarily to matters of a personal interest" (Docket No. 86 and, therefore, constituted unprotected speech. The determination of whether or not the plaintiff had adequately alleged a First Amendment retaliation cause of action did not turn upon whether or not her comments constituted threats.

Having reviewed the objections made by the plaintiff in her two filings, the court finds them without merit and hereby OVERRULES them. The Reports and Recommendations (Docket Nos. 86, 87) are ACCEPTED and made the findings of fact and conclusions of law of this court. For the reasons expressed therein and herein, the State Defendants' Motion to Dismiss (Docket No. 50) is GRANTED. In addition, all other federal and state claims lodged by the plaintiff against the remaining defendants in the Amended Complaint are DISMISSED. As recommended by Report and Recommendation (Docket No. 87), the following motions are DENIED AS MOOT:

1. Motion to Dismiss Richard Jackson in His Individual Capacity (Docket No. 52);

2. Motion to Dismiss filed by the Clarksville Police Department and the City of Clarksville (Docket No. 59);

3. Motion to Dismiss on Behalf of the Associated Press (Docket No. 65);

4. Motion to Dismiss and Motion For Summary Judgment On Behalf of Gannett, The Tennessean, The Leaf Chronicle, All State, and Christian Bottorff (Docket No. 69);

5. Request for Default Judgement (Docket No. 62);

6. "Request For Injunctive Relief Against The All State & Objection to Request For Dismissal and Summary Judgment of All Defendants" (Docket No. 76); and

7. "Request For Appointed Counsel and Request For Assistance On Summons and Complaint Bad Service Issues" (Docket No. 78).

Because the plaintiffs two objection filings can be construed as motions to amend to allege additional causes of action, this case is REFERRED back to the Magistrate Judge for further handling under the original referral Order.

It is so ORDERED.

REPORT AND RECOMMENDATION

E. CLIFTON KNOWLES, United States Magistrate Judge.

I. Introduction and Background

This matter is before the Court upon a Motion to Dismiss filed by Defendants Austin Peay State University, Tennessee Board of Regents, Richard Jackson, "Dr. Hoppe," "Chief Biles," Dennie Burke, Phil Bredesen, and Timothy Hall, in their official capacities (hereinafter "State Defendants"). Docket No. 50. State Defendants have contemporaneously filed a Memorandum of Law. Docket No. 51.

Plaintiff has filed an "Answer to the Requested of Dismisal [sic] from the State Request for Case Management Meeting" (Docket No. 63), and an "Objection to Request for Dismisal [sic] and Summary Judgment of All Defendants" (Docket No. 76), which the Court will construe as Responses to the State Defendants' Motion.

For the reasons to be discussed below, the undersigned will recommend that the State Defendants' Motion to Dismiss be GRANTED. After discussing the Motion to Dismiss, the undersigned will review Plaintiffs claims against the remaining Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B).

On April 21, 2008, Plaintiff, acting pro se, filed a 9-page Complaint, with 18 pages of attachments, against 21 Defendants. Docket No. 1. The following day, April 22, 2008, Plaintiff filed an "Amended Complaint" against 20 Defendants. Docket No. 3. Plaintiffs Amended Complaint eliminated two Defendants that had been named in her original Complaint: "New Channel 5," and "Sentinel News." Docket Nos. 1, 3. The Amended Complaint also added the "Tennessee Board of Regents" as a Defendant. Id. Because the filing of an Amended Complaint supersedes the original Complaint (see, e.g., Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.1985); Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir.1982)), the Court will focus on the allegations of the Amended Complaint.¹ The Court will, however, consider the attachments to the original Complaint, even though they were not attached to the Amended Complaint.

To say that Plaintiffs Amended Complaint is difficult to understand would be a gross understatement. Plaintiff stated the following "grounds" for filing this action in federal court:

I am not sure but I think Civil Rights Act of 1964, 1991 with the Americans with Disability Act of 1990 Libel, Slander, Negligence, Harassment, Malicious Prosecution, After notice of action was given T.C.A. 29-24-103; 29-24-104; 35-15-1001; 39-13-603 and 1st, 4th, 5th, 6th, 7th, 9th, 14th Amendment, to include 42 U.S.C.A.1983 purpose of civil rights statute is to provide protect of persons against misuse of power and the public interest with the right to be free from discrimination Ramirez vs. Fox Television stations [Station], Inc., 998 F.2d [743 (9th Cir.1993)] and Liability of Quino[n]es vs. City of Evanston, Ill., 58 F.3d 275 [ (7th Cir.1995) ] and the discussion of patterns of discrimination and reporting by the news media and Beauharnais vs. Illinois where the court concluded that libelous utterances are not within the area of constitutionally protected speech. The failure to provide congressional given power by law oversight in the investigation of complaints mandated by the United States congress in the enforcement of rule and regulation under the United States Department of Justice. Continued to use the Web site served no public interest if there was no threat timely removal from the internet. No release to uses my picture or likeness without prior consent no laws were violated. The released of personal information that was not public record. I have no violent history and did not commit a criminal act. Venue

Docket No. 3, p. 2.

As best the Court can tell, Plaintiffs Amended Complaint centers around two incidents. First, Plaintiff avers that Defendant Austin Peay State University (hereinafter sometimes referred to as "APSU") "failed to grant my Master Degree after a violation of my rights under 504 and failed to release proof of my failure of a test."...