Hayes v. Shelby Cnty. Tr.

• Decision Date: 05 September 2013
• Docket Number: No. 12–2665–JDT–dkv.,12–2665–JDT–dkv.
• Citation: 971 F.Supp.2d 717
• Parties: Anthony D. HAYES, Sr., Plaintiff, v. SHELBY COUNTY TRUSTEE, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

971 F.Supp.2d 717

Anthony D. HAYES, Sr., Plaintiff,
v.
SHELBY COUNTY TRUSTEE, et al., Defendants.

No. 12–2665–JDT–dkv.

United States District Court,
W.D. Tennessee.

Sept. 5, 2013.

[971 F.Supp.2d 720]

Anthony D. Hayes, Sr., Memphis, TN, pro se.

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE FOR SUA SPONTE DISMISSAL AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTICE OF APPELLATE FILING FEE
JAMES D. TODD, District Judge.

On August 14, 2013, Magistrate Judge Diane K. Vescovo issued a report and recommendation that the pro se complaint that was filed in this matter be dismissed for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and Local Rule 4.1.(a).

No objection has been filed. Consequently, the report and recommendation for sua sponte dismissal of this matter is ADOPTED, and the case is hereby DISMISSED.

The Court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis, should he seek to do so. Pursuant to the Federal Rules of Appellate Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must obtain pauper status under Fed. R.App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800, 803–04 (6th Cir.1999). Rule 24(a)(3) provides that if a party was permitted to proceed in forma pauperis in the district court, he may also proceed on appeal in forma pauperis without further authorization unless the district court “certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis.” If the district court denies pauper status, the party may file a motion to proceed in forma pauperis in the Court of Appeals. Fed. R.App. P. 24(a)(4, 5).

[971 F.Supp.2d 721]

The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It would be inconsistent for a district court to determine that a complaint should be dismissed prior to service on the defendants, but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir.1983). The same considerations that lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an appeal would not be taken in good faith.

It is CERTIFIED, pursuant to Fed. R.App. P. 24(a), that any appeal in this matter by Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay the full $455 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.¹

IT IS SO ORDERED.

REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL DIANE K. VESCOVO, United States Magistrate Judge.

On July 27, 2012, the plaintiff, Anthony D. Hayes, Sr., a resident of Shelby County, Tennessee, filed a pro se “Complaint for Constitution Statutory Violations: Fraud, RICO, Right of Action Violation of Fair Credit Billing Act, 15 U.S.C. § 1601, Breech [sic] of Fiduciary Responsibility, Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., Right of Discussion, Right of Relief” and “Estoppel,” (D.E. 1), accompanied by a motion seeking leave to proceed in forma pauperis, (D.E. 2). On July 30, 2012, the court issued an order granting Hayes leave to proceed in forma pauperis, (D.E. 3), and referred the case to the pro se staff attorney for screening pursuant to Local Rule 4.1. Thereafter, on January 7, 2013, Hayes filed an amended complaint that added defendants and claims to the original complaint. (Am. Compl., D.E. 4.) This case has now been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (Order of Reference, D.E. 5.) For the reasons that follow, it is recommended that this case be dismissed for lack of subject-matter jurisdiction and/or for failure to state a claim.

I. PROPOSED FINDINGS OF FACT

This is primarily an action to prohibit a tax sale of real property located at 4554 Tammy Cove, Memphis, Tennessee 38116, which was scheduled September 13, 2012, and to discharge certain debts.¹ Hayes named twelve defendants in the original complaint: (1) Shelby County Trustee; (2) David Lenoir (the Shelby County Trustee); (3) MLG & W Division; (4) Royal Furniture Company; (5) First Tennessee Bank; (6) GE Capital Retail Bank; (7) Bruce B.

[971 F.Supp.2d 722]

Hopkins; (8) Jerry Collins; (9) Nicole Bedford; (10) Shelby County Register Office; (11) Tom Leatherwood (the Shelby County Register); and (12) Joe Reeves. (Compl., D.E. 1 ¶¶ 6–16.) In his amended complaint, Hayes renames David Lenoir, Memphis Light Gas and Water Division, and Jerry Collins as defendants and adds three additional defendants: (1) City of Memphis; (2) Mayor A C Wharton; and (3) unnamed Agents of MLG & W.² (Am. Compl., D.E. 4 ¶¶ 1–2, 4–5.) In his amended complaint, Hayes also provides information concerning defendant GE Capital Retail Bank named in the original complaint. ( Id. ¶ 3.)

The original complaint alleges that Hayes attempted to satisfy his debt owed to each defendant named in this lawsuit on various dates during the months of May through July of 2012, by electronic funds transfers (“EFT”) sent by certified mail and that he received no credit for the EFT payments. (Compl., D.E. 1 ¶ 17). Specifically, Hayes contends that he sent an EFT payment in the amount of $14,048.45 to the Shelby County Trustee by certified mail on June 14, 2012, that the payment was received and accepted for discharge of the debt and that no debt therefore exists for the County Trustee but that Lenoir did not respond to a notification or certify a financial report request from Hayes. ( Id. ¶¶ 18–19.) Hayes further states that prior to sending the EFT payment, the Shelby County Trustee filed a delinquent tax lawsuit in the Chancery Court of Shelby County and did not properly serve Hayes. ( Id. ¶ 20.) Thereafter, Hayes filed a counterclaim, and the Trustee did not respond, and the presiding chancellor refused to hear him on several occasions. Hayes states this constitutes a denial of due process. ( Id.)

Hayes states that on May 29, 2012, June 23, 2012, and July 18, 2012, he made EFT payments in the amounts of $610.37, $815.20, and $1,110.08, respectively, by certified mail to MLG & W, that the payments were accepted for discharge of his debt, and that no debt exists. ( Id., ¶ 21.) He further states that MLG & W continued to send bills with conflicting balances and due dates or cut-off notices and that MLG & W did not respond to his “lawful notification mailed to MLG & W President, [Jerry Collins].” ( Id.) He claims he filed a “proper Uniform Commercial Code UCC–3 State of Tennessee filing to satisfy Utilities.” ( Id. ¶ 22.) In his amended complaint, Hayes states MLG & W unlawfully disconnected his utility service at 4554 Tammy Cove, Memphis, Tennessee, on November 29, 2012, after having accepted EFT payments for nine months. (Am. Compl., D.E. 4 ¶ 8.)

Hayes alleges that on May 19, 2012, he made an EFT payment by certified mail in the amount of $874.60 to Royal Furniture Company for payment of his debt, that Royal Furniture accepted the payment, and that no debt exists. (Compl., D.E. 1 ¶ 23.) Royal Furniture did not return the EFT instrument and continued to send bills to Hayes without responding to a notification he mailed to the Account Manager, Nicole Bedford. ( Id.)

Hayes states that he made a payment by EFT instrument by certified mail in the amount of $572.11 to GE Capital Retail Bank, that the payment was accepted to

[971 F.Supp.2d 723]

discharge the debt, and that GE Capital continued to send bills to Hayes. ( Id. ¶ 24).

Hayes states he sent a “Lawful Notification as a final step in due process” to Bruce H. Hopkins, President of First Tennessee Bank, for him to respond whether a payment pursuant to UCC–3–603 had been processed, but no response was received from Hopkins. ( Id. ¶ 25.)

The complaint states that Hayes went to the Shelby County Register's Office to record a Uniform Commercial Code (“UCC”) filing he received from the State of Tennessee. The documents had already been filed and recorded by the Secretary of State, and Hayes states he had paid the fees required. Hayes claims the receptionist told him that her supervisor had to review all UCC documents before they could be filed. She advised that the fee was $50 to file the documents as a miscellaneous record. Hayes asserts that Tom Leatherwood, Register, and Joe Reeves, Deputy Director, have shown prejudice and indifference by charging excessive rates and incorrectly filing his documents. ( Id. ¶¶ 26–31.)

The complaint sets forth three separate counts consisting of the following causes of action: (1) Count I—violation of the Uniform Commercial Code, violation of the Tennessee Consumer Protection Act of 1977, Tenn.Code Ann. § 47–18–101 et seq., violation of the Fair Credit Billing Act, 15 U.S.C. § 1601, violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq., violation of 42 U.S.C. § 1983 et. seq. for Due Process, in particular violations of the First, Fourth, Fifth, Seventh and Ninth Amendments and the Tennessee State Constitution, ( Id. ¶¶ 32–37); (2) Count Two—violation of the Fair Credit Billing Act, 15 U.S.C. § 1601, violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, violation of 42 U.S.C. § 1983 Due Process, and violation of Uniform Commercial Code, Act of Congress, ( Id. ¶¶ 38–41); and (3) Count Three—breach of fiduciary responsibility, bank fraud in violation of 18 U.S.C. § 1344; conspiracy in violation of 18 U.S.C. § 1349; scheme or...