Elmore v. Memphis & Shelby Cnty. Film Comm'n

• Docket Number: 2:21-cv-02330-JTF-cgc
• Decision Date: 03 June 2022
• Parties: ANTHONY ELMORE, Plaintiff, v. MEMPHIS AND SHELBY COUNTY FILM COMMISSION, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

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ANTHONY ELMORE, Plaintiff, v. MEMPHIS AND SHELBY COUNTY FILM COMMISSION, et al., Defendants.

No. 2:21-cv-02330-JTF-cgc

United States District Court, W.D. Tennessee, Western Division

June 3, 2022

ORDER ADOPTING THE UNITED STATES MAGISTRATE JUDGE'S REPORTS AND RECOMMENDATIONS (ECF NOS. 50, 52, 53 AND 54) AND DISMISSING THIS CASE WITH PREJUDICE

JOHN T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE

On May 21, 2021, Plaintiff Anthony “Amp” Elmore filed a pro se Complaint raising due process violations and equal protection claims under 42 U.S.C. § 1981 and § 1983 against various Defendants- the State of Tennessee; Governor Bill Lee, unnamed State Representatives and State Senators (a/k/a the “State Defendants”); the City of Memphis, Memphis City Council and Mayor Jim Strickland (a/k/a the “City Defendants”); Shelby County Mayor Lee Harris, Memphis and Shelby County Film Commission, Shelby County Commission Shelby County Government, and Shelby County Film Commissioner Linn Sitler (a/k/a the “Shelby County Defendants”); the Memphis Convention and Visitors Bureau and Kevin Kane (the “MCVB Defendants”) and the Economic Development Growth Engine (“EDGE”). (ECF No. 1.) On October 26, 2021, Elmore filed an Amended Complaint to add individual capacity claims against Mayor Jim Strickland and to include new Defendants Shelby County Historian Jimmie Rout, III and the Historic Commission; but omitted the City Council, the MCVB Defendants; EDGE; the Shelby County Commission, and the State Defendants. (ECF No. 34.) The Amended Complaint includes new claims pursuant to 42 U.S.C §§ 1981, 1982 and 1985 and refers to 42 U.S.C § 1988 and § 2000(d), et seq., as he states the remaining Defendants have individually or collectively caused him to suffer, inter alia, damages, loss of reputation, assets, “financial, cultural, emotional and professional harm, ” for which Plaintiff requests a jury trial, compensatory and pecuniary damages for past, present and future economic losses, a declaratory judgment and a preliminary and permanent injunction. (ECF No. 34, at 1-2, 24, 21 ¶ 68, 22-30 ¶¶ 70-79, 80 ¶¶ a-f.)

The Defendants, separately and collectively, filed Motions and Renewed Motions to Dismiss which were referred to the assigned United States Magistrate Judge for Reports and Recommendations pursuant to 28 U.S.C. § 636(b) and Admin. Order 2013-15. (ECF Nos. 18, 25, 28, 29, 31, 45 and 49.) The Magistrate Judge issued Reports and Recommendations regarding the Defendants' Motions to Dismiss, ECF Nos. 50, 52, 53 and 54, to which Plaintiff filed Objections and the Shelby County Defendants and City Defendants filed corresponding Replies. (ECF Nos. 56-57, 60-61 and 63; ECF No. 58 and ECF No. 59.)

Initially, it is undisputed that Mr. Elmore is a five-time world-renown karate/kickboxing Champion, with over 750 videos on You Tube. He submits that he is the first independent black documentarian and 35mm film maker from the City of Memphis. Elmore extols many of his other accomplishments including proclaiming he is the first black Memphian to document 200 years of Memphis black history and sought to promote his grassroots movie production in 1988, titled “Rock and Roll a Black Legacy, ” with local talent from the Orange Mound community. It appears Elmore was not able to garner sufficient local support from the business or political communities. This has resulted in Elmore's accusations that the racist undercurrent of the City of Memphis, and others, have discriminated against him by choosing instead to support other filmmakers like Craig Brewer or prominent minority celebrities like Tyler Perry, in violation of his constitutional rights. Consequently, Elmore has proceeded to file numerous pleadings that contain unsubstantiated, exaggerated and denigrating statements about local community leaders, politicians and attorneys. He even verbally attacks the assigned United States Magistrate Judge. In his filings, including his objections to the Reports and Recommendations filed by the Magistrate Judge, Elmore, in no uncertain terms, blames several City and County officials and community-based entities for his unfulfilled endeavors and missed opportunities.

In the interest of efficiency, the undersigned Court consolidated its analysis of the Magistrate Judge's Reports and Recommendations. After a de novo review, the Court adopts the Reports and Recommendations in their entirety and finds that this case should be Dismissed with Prejudice pursuant to Fed. Rules Civ. P. 12(b)(1), 12(b)(2) and (12)(b)(6).

I. LEGAL STANDARD

Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts by permitting the assignment of certain district court duties to magistrates.” United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the above referenced provision, magistrate judges may hear and determine any pretrial matter pending before the Court, except various dispositive motions. 28 U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “the magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed.R.Civ.P. 72(b)(1); See also Baker v. Peterson, 67 Fed. App'x 308, 310 (6th Cir. 2003). Any party who disagrees with a magistrate judge's proposed findings and recommendations may file written objections to the report and recommendations. Fed.R.Civ.P. 72(b)(2). A “failure to identify specific concerns with a magistrate judge's report results in treatment of a party's objection as a general objection to the entire magistrate judge's report. A general objection is considered the equivalent of failing to object entirely” or waiver. McCready v. Kamminga, 113 Fed. App'x 47, 49 (6th Cir. 2004.) In McCready, the Court noted that McCready only managed in his “rambling, 143-page objection” to, repeatedly and inappropriately, insult the magistrate judge, demand acceptance of his factual and legal conclusions as accurate, characterize the defendants as liars, and threaten the district court if his action was dismissed. (Id.) In the end, the court found that McCready's objections were general in nature and therefore amounted to a failure by McCready to object at all.

The standard of review that is applied by a district court when considering a magistrate judge's proposed findings and recommendations depends on the nature of the matter(s) considered by the magistrate judge. See Baker v. Peterson, 67 Fed. App'x 308, 310 (6th Cir. 2003) (citations omitted) (“A district court normally applies a ‘clearly erroneous or contrary to law' standard of review for non-dispositive preliminary measures. A district court must review dispositive motions under the de novo standard.”). Upon a review of the evidence, the district court may accept, reject, or modify the proposed findings or recommendations of the magistrate judge. Brown v. Board of Educ., 47 F.Supp.3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court “may also receive further evidence or recommit the matter to the [m]agistrate [j]udge with instructions.” Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015). Again, a district judge should adopt the findings and rulings of the magistrate judge to which no specific objection under Fed.R.Civ.P. 72(b) is filed. Brown, 47 F.Supp.3d at 674. An objection to a magistrate judge's report and recommendation that does nothing more than state a disagreement with the magistrate judge's suggested resolution, or simply summarizes what has been presented before, is not an objection to a magistrate judge's report and recommendation. This results in a failure to preserve the right to appeal a subsequent order of the district court adopting the report. J.A. v. Smith County School District, 364 F.Supp.3d 803, 81112 (M.D. Tenn. March 6, 2019).

A. Standard of Review for Failure to State a Claim

At the outset, 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.” Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); See also Fed.R.Civ.P. 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.'” Center 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. Ashcroft v. 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). However, Pro se litigants must adhere to the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A court cannot create a claim that has not been spelled out in a pleading. Brown v. Matauszak, 415 Fed. App'x 608, 613 (6th Cir. 2011); Payne v. Sec'y of Treas., 73 Fed. App'x 836, 837 (6th Cir. 2003).

B. Standard of Review for Lack of Subject Matter Jurisdiction

“Federal courts have a duty to consider their subject matter jurisdiction in regard to every case and may raise the issue sua sponte.” Answers in Genesis of Ky., Inc. v Creation Ministries Int'l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). When a court determines that it lacks subject matter jurisdiction, the court has an obligation to dismiss the case. Fed.R.Civ.P. 12(h)(3). The court has the discretion to refuse to accept allegations in a complaint that are “clearly baseless, ” a term encompassing claims that may be...