Moses v. Shelby Cnty. Gov't

• Decision Date: 21 June 2016
• Docket Number: No. 16-2253-JDT-dkv,16-2253-JDT-dkv
• Parties: PAMELA MOSES, Plaintiff, v. SHELBY COUNTY GOVERNMENT, ALLIED BARTON, BRYCE PHILLIPS, MAYOR MARK LUTTRELL, SHERIFF BILL OLDHAM, and DEBRA FESSENDEN, Defendants.
• Court: U.S. District Court — Western District of Tennessee

PAMELA MOSES, Plaintiff, v. SHELBY COUNTY GOVERNMENT, ALLIED BARTON,BRYCE PHILLIPS, MAYOR MARK LUTTRELL, SHERIFF BILL OLDHAM,and DEBRA FESSENDEN, Defendants.

No. 16-2253-JDT-dkv

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

June 21, 2016

REPORT AND RECOMMENDATION FOR SUA SPONTE DISMISSAL

On April 18, 2016, the plaintiff, Pamela Moses ("Moses"), proceeding pro se, filed a complaint entitled "Emergency Complaint for Declaratory Judgment and Preliminary and Permanent Injunction" naming as defendants Shelby County Government, Allied Barton, Bryce Phillips, Mayor Mark Luttrell, Sheriff Bill Oldham, and Debra Fessenden (collectively "the Defendants), and alleging denial of her right to access public buildings "including but not limited to courts, the Shelby County law library and public meetings, county building bathrooms without an escort." (Compl. 1, ECF No. 1.) Moses seeks declaratory and injunctive relief, attorney fees, and costs. (Id. at 10.) On April 20, 2016, the court issued an order granting Moses leave to proceed in forma pauperis. (ECF No. 4.) This case has been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (Admin. Order 2013-05, Apr. 29, 2013.)

For the reasons that follow, it is recommended that the court abstain from exercising jurisdiction over Moses's claims against the Shelby County Government, Mayor Mark Luttrell, Sheriff Bill Oldham, and Debra Fessenden ("Fessenden") in her official capacity (collectively "the County Defendants") and Allied Barton, or, in the alternative, that Moses's claims against the these defendants be dismissed sua sponte for failure to state a claim. It is further recommended that Moses's claims against Bryce Phillips ("Phillips") and Fessenden in her personal capacity be dismissed sua sponte for failure to state a claim.

I. PROPOSED FINDINGS OF FACT

Although it is not entirely clear what causes of action Moses is pursuing in this case, Moses does reference 42 U.S.C. § 1983 as a basis for jurisdiction in this case. (Compl. 4, ECF No. 1.) Although it is the only time in her 10-page complaint that she references the statute itself, the court will assume Moses is bringing this lawsuit pursuant to 42 U.S.C. § 1983 for violations of her constitutional rights.

In her complaint, Moses alleges that "the unlawful and unconstitutional actions of the Defendants . . . began when Shelby County [Attorney] Debra Fessenden made unfounded allegations, rumors, and circulated memos that Pamela Jeanine Moses also known as P. Moses . . . was . . . a dangerous 'Sovereign Citizen, who squats in houses.'" (Compl. 2, ECF No. 1.) Moses further states:

Assistant District Attorney Bryce Phillips initiated bogus arrest warrants for Plaintiff's arrest stating she was entering a building unescorted. These warrants led to the SCSO [Shelby County Sheriff's Office] kicking down Plaintiff's family home. By subjecting Ms. Moses to an [sic] illegal searches and seizures, prolonged and unauthorized detention by Allied Barton upon entry of buildings, Defendants violated Plaintiff's right under the Fourth Amendment.

(Id.)

Moses further claims that, at some point in time not specified in her complaint, her family residence was "broken into [and] ransacked twice by defendant Shelby County Sheriff absent a valid search warrant or legal justification." (Id. at 4.) Moses also claims that "Defendant Shelby County Sheriff" at some point in time surveilled her residence with no legal justification, solely to intimidate and harass her, and that "Defendant Shelby County Sheriff has tampered with [her] mailbox and placed envelopes and notices inside [it]." (Id.)

Moses alleges that the court has jurisdiction under "28 U.S.C. § 1331 and 5 U.S.C. § 702, 42 U.S.C. section 1983."(Id.) In the body of her complaint, Moses identifies the defendants as Mark Luttrell ("Luttrell"), the mayor of Shelby County, Tennessee, who "is aware of all actions that have occurred against Plaintiff;" Allied Barton, the company that provides internal checkpoint security for all county buildings; Phillips, an assistant District Attorney for the State of Tennessee; Fessenden, legal advisor to the Shelby County Sheriff; and Shelby County Sheriff's Office ("SCSO"). (Id. at 4.) The style of her complaint, however, lists the defendants as Sheriff Bill Oldham and the Shelby County Government; the SCSO is not listed as a defendant in the style of the complaint. (Id. at 1.) "All defendants are sued in their official capacity," except defendant Fessenden who "is sued in her personal and official capacity." (Id. at 4.)

In her complaint, Moses specifically alleges that in December 2015, Allied Barton stopped her as she tried to enter the county building at 201 Poplar and told her she needed to wait for an escort to enter the building. (Id. at 5.) She alleges that "[i]t was determined" that defendant Fessenden, at some point in time not specified in the complaint, "instructed different high-ranking officers to mistreat her . . . and to pass the orders to other low ranking officers." (Id.)

Moses further alleges that on March 8, 2016, she entered the Shelby County Juvenile Court in Memphis, TN to filedocuments in the clerk's office and was "seized" by two SCSO deputy sheriffs to escort her. (Id. at 6.) Moses states she "was not free to move about without their permission" and that they were "instructed to harass Plaintiff by Debra Fessenden, the same attorney who spread untrue terrorist rumors and circulated internal memos that Plaintiff was also a sovereign citizen who squats in houses." (Id.)

Moses asserts seven separate "claims for relief" against all the defendants collectively: (1) violation of her First Amendment right to freedom of speech; (2) violation of the Fourth Amendment for wrongful search and seizure; (3) violation of the Fifth Amendment by depriving her of life, liberty, or property without due process; (4) violation of the Eighth Amendment by inflicting cruel and unusual punishment on her; (5) violation of the Ninth Amendment by denying and disparaging her rights; (6) violation of the Tenth Amendment for unlawful exercise of agency authority; and (7) violation of the Fourteenth Amendment for discriminatory practices. (Id. at 9.)

In her prayer for relief, Moses requests that the Court:

a. Declare the actions of Defendants and agents described in [the] Complaint violated Plaintiffs rights under the . . . Amendment[s] to the United States Constitution and exceeded her statutory authority;

b. Permanently enjoin Defendant, her officers, agents, servants, employees, and all persons in active concert or participation with her who receive actual notice of the injunction, fromauthorizing or conducting escorts, following, harassing, the intimidating behavior of Plaintiff. This includes any SCSO coming within 50 feet of Plaintiff or family residence without legal justification or business that would justify any written or verbal communication.

c. Permanently enjoin Defendant, her officers, agents, servants, employees, and all person in active convert or participation searches of property without a valid search warrant, written notice must be given to the owner of the property and he must be present prior to any searches, and to prohibit SCSO from tampering with the mailbox.

d. Require Allied Barton to turn over their book with any photos or likeness of Plaintiff because there may be others being targeted and discriminated against because of their race, and political beliefs.

e. Award to Plaintiff his reasonable attorneys' fees, costs, and expenses of litigation; and

f. Order such other relief as the Court may deem just and proper.

(Id. at 10.)

On September 2, 2014, prior to filing the instant lawsuit in federal court, Moses filed a complaint in the Chancery Court of Tennessee for the Thirtieth Judicial District Memphis, Shelby County, Tennessee ("Chancery Court") entitled "Petition for a Temporary Restraining Order and Injunctive Relief Denial of Access to the Court, Public Buildings & Due Process Violations under Equal Protection Clauses." Original Complaint, Moses v. Shelby County Sheriff Bill Oldham & Officer, Shelby County Homeland Security, and Allied Barton Security Services LLC, Docket No. CH-14-1316-3 (Tenn. Ch. Ct. Sept. 2, 2014). Named asdefendants in that lawsuit were Shelby County Sheriff Bill Oldham and Officers, Shelby County Homeland Security, and Allied Barton Security Services, LLC. Id. at 1. In her Chancery Court complaint, Moses alleged that the defendants denied her access to county government buildings and required her to have an escort each time she enters the building. Id. at 1-2. While the allegations in her original Chancery Court complaint are not entirely clear, it appears that Moses is asserting claims for violations of her civil and constitutional rights. She claims that the defendants have posted her pictures throughout County buildings as if she were a terrorist and that she has been late for court appearances because of the tactics that Allied Barton implemented under the instruction of Sheriff Bill Oldham. Id. at 2-3. For relief, she seeks "an Injunction (sic) restraining order preventing the Defendants from prohibiting Pamela Moses from entering Shelby County Buildings and requiring an escort upon entry," "an injunction against all SCSO to not make any arbitrary contact, communication, or conversation with Petitioner," and damages "in the amount of $100,000 for each due process violation and each instance of unwanted, humiliating incidents." Id. at 13.

Shortly after filing the complaint in Chancery Court, Moses attempted to remove the Chancery Court case to this court, the U.S. District Court for the Western District of Tennessee.Notice of Removal, Moses v. Bill Oldham, et al., Case No. 14-02715-SHL-dkv (W.D. Tenn. Sept. 15, 2014), ECF No. 1. On March 2, 2015, this court remanded...