Tallent v. United States

• Docket Number: 3:23-cv-51
• Decision Date: 16 June 2023
• Parties: NANCY ABBIE TALLENT, Plaintiff, v. UNITED STATES OF AMERICA on behalf of INTERNAL REVENUE SERVICE, DEPARTMENT OF JUSTICE, and FEDERAL BUREAU OF INVESTIGATION, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

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NANCY ABBIE TALLENT, Plaintiff, v. UNITED STATES OF AMERICA on behalf of INTERNAL REVENUE SERVICE, DEPARTMENT OF JUSTICE, and FEDERAL BUREAU OF INVESTIGATION, Defendant.

No. 3:23-cv-51

United States District Court, E.D. Tennessee, Knoxville

June 16, 2023

Jill E. McCook, Magistrate Judge.

MEMORANDUM OPINION

TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE.

Before the Court are pro se Plaintiff Nancy Abbie Tallent's objections to United States Magistrate Judge Jill E McCook's report and recommendation that the Court strike Plaintiff's amended complaint (Doc. 32), motion to change venue (Doc. 28), motion for investigation (Doc. 30), motion for clarification (Doc. 37), and motion for extension of time to serve (Doc. 38).

I. BACKGROUND

Plaintiff filed the original complaint (Doc. 2) in this action on February 7, 2023, and contemporaneously filed a motion for leave to proceed in forma pauperis (Doc. 1). The original complaint alleged an overpayment-of-taxes claim against the Internal Revenue Service (“IRS”) pursuant to 26 U.S.C. § 7433. (Doc. 2, at 1-2.) Plaintiff also alleged that the IRS “knowingly and willfully sought to extort money, harass, and abuse [her,]” and that the Federal Bureau of Investigation (“FBI”) “refused numerous pleas by the Plaintiff to investigate” such extortion, harassment, and abuse. (Id. at 2, 5.) Though Plaintiff did not name the FBI as a defendant or allege a specific claim against it in the original complaint, she requested injunctive relief in the form of “an immediate order for the FBI to investigate the hundreds of crimes committed against the Plaintiff including extortion by the IRS and willfully refusing to respond to the issues laid out in this complaint.” (Id. at 6.) The remainder of Plaintiff's requests for relief in the original complaint were for monetary damages against the IRS related to her alleged overpayment. (Id. at 7.)

Under the Prison Litigation Reform Act, district courts must screen pro se complaints- even when the plaintiff is not a prisoner but seeks in forma pauperis status-and sua sponte dismiss any claims that are frivolous or malicious, fail to state a claim on which relief may be granted, or name a defendant who is immune. See 28 U.S.C. § 1915(e)(2); Baker v. Wayne Cnty. Fam. Indep. Agency, 75 Fed.Appx. 501, 502 (6th Cir. 2003) (“The statute requires courts to dismiss in forma pauperis complaints that fail to state a claim[] and applies to complaints filed by non-prisoners as well as prisoners.”) (citations omitted). Therefore, Magistrate Judge McCook screened Plaintiff's complaint prior to considering her motion to proceed in forma pauperis. On screening, Magistrate Judge McCook found that Plaintiff's claims should proceed and therefore granted Plaintiff's motion to proceed in forma pauperis. (See Doc. 5.)

Subsequently, on March 13, 2023, Plaintiff filed an amended complaint as a matter of course, pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). (Doc. 9.) The amended complaint names the Department of Justice (“DOJ”) and FBI as Defendants, in addition to the IRS. (Id. at 1, 5-6.) The amended complaint encompasses Plaintiff's prior overpayment-of-taxes claim pursuant to 26 U.S.C. § 7433, but it also asserts a claim which appears to be brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401, 2671 et seq., and the Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”), 18 U.S.C. § 96 et seq., and adds nearly one hundred new paragraphs of factual allegations related to this FTCA/RICO claim. (Id. at 1-6; see Docs. 9-1-9-11.) Plaintiff's FTCA/RICO claim against the FBI and DOJ is based on her contention that these agencies “failed in their duty owed to stop the crimes and abuse against the Plaintiff committed by the IRS, United States Courts from General Sessions to the U.S. Supreme Court, judges, magistrates, prosecutors, court clerks, the Oak Ridge Police Department, police officers, Oak Ridge Methodist Medical Center, physicians, medical record custodians, the City of Oak Ridge, city managers, city councilors, Anderson County Detention Center, jailors, administrators and many other individuals working with the aforementioned entities (organized crime).” (Doc. 9,at 1.)

Plaintiff's factual allegations span disagreements she has had with these individuals, private entities, and the executive and judicial branches of local, state, and federal government. (Id. at 6-25.) The allegations enumerate Plaintiff's disagreement with the outcomes of four federal cases she has filed in the Eastern District of Tennessee, the dismissal of her appeal of one such case to the Sixth Circuit, the denial of a writ of certiorari from that dismissed appeal, the disposition of certain motions in her state child-custody case, the dismissal of a state case she brought against Oak Ridge Police Department, the outcome of a state eviction proceeding against her and her appeal, the prosecution and state criminal court's failure to dismiss pending charges against her, and actions taken by the state criminal court in a prior criminal trial against Plaintiff. (Id.) Plaintiff's allegations also discuss the hacking of her computer and phone, her inability to access her medical records from Oak Ridge Methodist Medical Center, her accumulation of debt, assaults against her by her sister, elder abuse committed against her mother by other family members, installation of illegal surveillance equipment in her home without her consent, vandalism of her car, disputes with Oak Ridge animal control, and additional seemingly unrelated incidents. Nonetheless, Plaintiff insists that, based on these court proceedings and alleged incidents, “[i]t is readily apparent that the court personnel, law enforcement, the City of Oak Ridge, the Oak Ridge Methodist Medical Center, the computer/phone hackers and other persons are working together to abuse [Plaintiff] at will. This is the definition of organized crime which the FBI has jurisdiction over under RICO.” (Id. at 24.) After filing the amended complaint, Plaintiff moved to change venue because her amended complaint contains allegations against this Court, raising a conflict of interest. (Doc. 28.) She also filed a “motion for investigation” (Doc. 30), seeking an order from the Court “compelling the attorney general to investigate the Oak Ridge Police Department [] for a pattern of harassment, discrimination, brutality[,] and abuse of power against residents of the City of Oak Ridge.” (Doc. 30, at 1.)

The undersigned referred the amended complaint to Magistrate Judge McCook for screening, as required by 28 U.S.C. § 1915(e)(2). (Doc. 27.) Magistrate Judge McCook screened the amended complaint and recommended that the undersigned strike the amended complaint and consider the original complaint as the operative pleading in this case. (Doc. 31.) Plaintiff timely filed objections (Doc. 32).

Shortly after Magistrate Judge McCook filed her report and recommendation, counsel for Defendant United States of America moved for an extension of time to respond to the complaint on the basis that (1) it was unclear which complaint would be operative and (2) if the Court allowed the amended complaint to proceed, Defendant would require additional time to confer with the newly joined federal entities. (Doc. 33, at 1.) Plaintiff opposed the motion (Doc. 34), but Magistrate Judge McCook granted the motion over Plaintiff's objections because they were based on erroneous assertions of law, and the pending motions and report and recommendation presented good cause to extend Defendant's response time. (Doc. 35.)

After Magistrate Judge McCook granted Defendant's motion for an extension, Plaintiff filed a “motion for clarification” (Doc. 37). This motion asked the Court “[f]or an explanation of why” Defendant's motion for an extension was granted. (Id. at 2.) Further, because Plaintiff only served Defendant with the amended complaint and never served the original complaint, she moved for an extension of time to serve the original complaint in the event the report and recommendation striking the amended complaint were adopted. (Doc. 38.) These motions are ripe for the Court's review.

II. OBJECTIONS TO REPORT AND RECOMMENDATION

A. Standard of Review

A court must conduct a de novo review of those portions of a report and recommendation to which objections are made. 28 U.S.C. § 636(b)(1)(C). Although a court is required to engage in a de novo review of specific objections, if the objections merely restate the arguments asserted in a defendant's earlier motion, which were addressed by a magistrate judge's report and recommendation, a court may deem those objections waived. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004) (“An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.”); see also Cole v. Yukins, 7 Fed.Appx. 354, 356 (6th Cir. 2001) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)) (“The filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.”). The Sixth Circuit has also explained that:

A general objection to the entirety of the magistrate's report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than

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