Petty v. Tenn. Dep't of Children's Servs.

• Decision Date: 03 February 2021
• Docket Number: Case No. 3:19-cv-01085
• Parties: AN JANI PETTY, J.P., and R.P., Plaintiffs, v. TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

AN JANI PETTY, J.P., and R.P., Plaintiffs, v. TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, et al., Defendants.

Case No. 3:19-cv-01085

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

February 3, 2021

Judge Aleta A. Trauger

Magistrate Judge Alistair E. Newbern

To: The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

This civil rights action under 42 U.S.C. § 1983 arises out of the removal of pro se Plaintiff An Jani Petty's children from her custody by Defendant the Tennessee Department of Children's Services (DCS) based on statements made by Defendant Knokeya Johnson, a DCS employee. (Doc. No. 1.) Petty alleges violations of her civil and constitutional rights.¹ DCS andJohnson have filed a motion to dismiss Petty's complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(5) and 12(b)(6). (Doc. No. 5.) The defendants argue that Petty's complaint should be dismissed because (1) the Court lacks subject matter jurisdiction under the Eleventh Amendment, (2) Petty failed to effect service of process within ninety days of filing her complaint in violation of Fed. R. Civ. P. 4(m), and (3) Petty's claims are untimely and fail to state any claims for which relief can be granted. (Doc. Nos. 5-6.) Petty has responded in opposition to the motion to dismiss. (Doc. No. 9.) For the reasons that follow, the Magistrate Judge will recommend that the defendants' motion to dismiss be granted and this action be dismissed with prejudice.

I. Factual and Procedural Background²

Petty filed this action on December 6, 2019, bringing claims under § 1983 arising out of her children being taken into custody by DCS on October 17, 2018. (Doc. No. 1.) Petty's complaint alleges that Knokeya Johnson, a DCS employee, "stereotyped" her and made "false statements" in order to justify taking custody of her children. (Id.) Specifically, Petty alleges that Johnson "lied in the petition" for custody that Petty "was under the influence of alcohol" in order to get her children "into custody due to their big bonus of taking children in." (Id.) Petty sues Johnson in her official capacity and seeks $150,000.00 in damages. (Id.)

On May 8, 2020, DCS and Johnson filed a motion to dismiss, arguing that the Court lacks subject matter jurisdiction over Petty's claims under Rule 12(b)(1) because the Eleventh Amendment bars suits for money damages against a state, its agencies, and its officials sued in their official capacities, and that Petty's claims should also be dismissed under Rule 12(b)(6)because her claims are barred by the applicable the statute of limitations and do not allege sufficient facts to be found plausible. (Doc. No. 6.) DCS and Johnson further assert under Rule 12(b)(5) that Petty's complaint should be dismissed without prejudice for failure to effect timely service of process. (Id.)

On May 26, 2020, Petty filed a response in the form of a letter. (Doc. No. 9.) In her response, Petty restates that, in October 2018, her children "were taken into custody due to Knokeya Johnson stating in [a] petition that she smelled 'alcohol' on my person, accusing me of drinking alcohol." (Id.) Petty states that "it took [her] a while to file suit" because she had been demoted and eventually fired from her job and that "money was less and shifting." (Id.) As to service of process, Petty states that "the green card is still in Nashville at the mailing distribution center," and that she has "nothing to do with how things are mailed." (Id.)

II. Legal Standards

A. Dismissal for Lack of Subject Matter Jurisdiction

Federal courts are "courts of limited jurisdiction" possessing "only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a court's constitutional or statutory power to hear the case before it. Fed. R. Civ. P. 12(b)(1); Tallon v. Lloyd & McDaniel, 497 F. Supp. 2d 847, 851 (W.D. Ky. 2007). Such a challenge can come in two forms. A facial attack accepts the material allegations of the complaint as true but insists nonetheless that the court lacks subject matter jurisdiction to hear the case. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A factual attack claims that the court lacks subject matter jurisdiction irrespective of what the plaintiff has pleaded, and requires the trial court toweigh the evidence before it in determining whether that is the case. Id. "A state's assertion of sovereign immunity constitutes a factual attack." Hornberger v. Tennessee, 782 F. Supp. 2d 561, 564 (M.D. Tenn. 2011). In response to such an attack, the plaintiff bears the burden of establishing the existence of subject matter jurisdiction. DLX, Inc., 381 F.3d at 516. In ruling on a factual attack, the trial court may rely on materials outside the pleadings without converting the 12(b)(1) motion into one for summary judgment. Cline v. United States, 13 F. Supp. 3d 868, 871 (M.D. Tenn. 2014).

B. Dismissal for Failure to State a Claim

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must "construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff." Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint contain "a short and plain statement of the claim[.]" Fed. R. Civ. P. 8(a)(2). However, "[t]he factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead 'sufficient factual matter' to render the legal claim plausible, i.e., more than merely possible." Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).

"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A plaintiff must plead more than "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "nakedassertions devoid of further factual enhancement." Id. (third alteration in original) (quoting Twombly, 550 U.S. at 555, 557). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

Because Petty proceeds pro se, the Court construes her filings "liberally" and holds her complaint "'to less stringent standards than formal pleadings drafted by lawyers[.]'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). There are limits to liberal construction, however, and "courts are not required to conjure up unpleaded allegations or guess at the nature of an argument." Brown v. Cracker Barrel Rest., 22 F. App'x 577, 578 (6th Cir. 2001) (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

C. Dismissal for Insufficient Service of Process

Service of process must comply with Federal Rule of Civil Procedure 4. Fed. R. Civ. P. 4. When it does not, a defendant may move to dismiss based on insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). Fed. R. Civ. P. 12(b)(5). "[T]he requirement of proper service of process 'is not some mindless technicality[,]'" Friedman v. Est. of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (quoting Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir. 1987)), nor is it "meant to be a game or obstacle course for plaintiffs[,]" Ace Am. Ins. Co. v. Meadowlands Dev. Ltd. P'ship, 140 F. Supp. 3d 450, 455 (E.D. Pa. 2015). Rather, it goes to the very heart of a court's ability to hear a case. "[W]ithout proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012); see also Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (explaining that "[s]ervice is . . . not only a means of 'notifying a defendant ofthe commencement of an action against him,' but 'a ritual that marks the court's assertion of jurisdiction over the lawsuit'" (citation omitted)). Where personal jurisdiction is not properly established, a court cannot exercise its authority consistent with due process of law. See Friedman, 929 F.2d at 1156-57.

Federal Rule of Civil Procedure 4(m) provides that, "[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). The Court must extend the time for service upon a showing of good cause, and the Court may exercise its discretion to permit late service even where a plaintiff has not shown good cause. Fed. R. Civ. P. 4(m) advisory committee's note to 1993 amendment (explaining that Rule 4(m) "explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service . . . and authorizes the court to [grant relief] . . . even if there is no good cause shown"); see also Henderson v. United States, 517 U.S. 654, 662-63 (1996); DeVane v. Hannah, No. 3:11-cv-00389, 2011 WL 5916433, at *2 (M.D. Tenn. Nov. 28, 2011). Otherwise, the language of Rule 4(m) mandates dismissal, either on motion or sua sponte. Fed. R. Civ. P. 4(m); see also Byrd v. Stone, 94 F.3d 217, 219 & n.3 (6th Cir. 1996). In light of this plain language, it is well established that Rule 4(m) empowers a court to dismiss complaints without prejudice "upon the court's own initiative with notice to the plaintiff....