Ross v. Gross et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
JOHN McCLELLAND ROSS,
Plaintiff,
v.
OFFICER GROSS, OFFICER DI
GIORGIO, and CITY OF NIOTA
POLICE DEPARTMENT,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No. 1:25-cv-248
Judge Travis R. McDonough
Magistrate Judge Michael J. Dumitru
ORDER
Before the Court is Magistrate Judge Michael J. Dumitru’s report and recommendation
that the Court permit Plaintiff John McClelland Ross to proceed on Count One and Count Three
of the amended complaint (Doc. 8) as against Defendant Officer Gross only, and that Count Two
be dismissed in its entirety (Doc. 9). Plaintiff, proceeding pro se, filed his original complaint
(Doc. 2) on August 4, 2025. On September 8, 2025, Magistrate Judge Dumitru granted
Plaintiff’s motion to proceed in forma pauperis (“IFP”), (Doc. 1), and screened the original
complaint, granting Plaintiff leave to file an amended complaint. (Doc. 7.) Plaintiff timely filed
an amended complaint on September 17, 2025. (Doc. 8.)
In his report and recommendation, Magistrate Judge Dumitru found Plaintiff adequately
stated a claim for an unlawful seizure in violation of his Fourth Amendment rights in Count One
of the amended complaint. (See Doc. 9, at 5.) In his report, Magistrate Judge Dumitru found
that “[a]ccepting as true the allegations in Plaintiff’s complaint, Defendant Gross arrested
Plaintiff and seized his property based only on uncorroborated statements, which the alleged
Case 1:25-cv-00248-TRM-MJD Document 10 Filed 01/06/26 Page 1 of 3 PageID
#: <pageID>

victim disputed, made by an individual alleged to have a ‘history’ of mental illness.” (Id. at 6.)
However, the report notes that “the only specific conduct Plaintiff attributes to defendant Di
Giorgio is ‘execut[ing] transport to the jail.” (Id. at 7 (citing Doc. 8, at 31.).) Consequently, the
Court found these allegations ‘sufficient to proceed past the initial screening stage, but only as to
Defendant Gross.” (Id.)
As to Count Three, in his report, Magistrate Judge Dumitru found that Plaintiff alleged
sufficient facts that, if true, show that Defendant Gross “participated in the decision to prosecute
Plaintiff, and that the prosecution lacked probable cause.” (Id. at 8.) Therefore, the report finds
Plaintiff sufficiently pled a claim for malicious prosecution in violation of 42 U.S.C § 1983
against Defendant Gross, but not Defendant Di Giorgio, “[f]or essentially the same reasons” as
Count One. (Id. at 8.)
However, as to Count Two, Magistrate Judge Dumitru recommended dismissal because
“no such claim is viable unless existing state remedies are inadequate to remedy the
deprivation,” and Plaintiff failed to plead such inadequacy. (See id. at 9.)
Magistrate Judge Dumitru advised the parties that any objections must be filed within
fourteen days. (See id. at 10 n.3.) No party has filed an objection, and the time for doing so has
passed.
The Court agrees with Magistrate Judge Dumitru’s well-reasoned conclusions, and it
hereby ACCEPTS and ADOPTS his report and recommendation (Doc. 9). It is hereby
ORDERED that Plaintiff is permitted to proceed on Count One (unlawful seizure) and Count
Three (malicious prosecution) as against Defendant Gross only. Count One and Count Three are
DISMISSED as to Defendant Di Giorgio. Count Two (due process) is DISMISSED in its
entirety. Finally, the City of Niota Police Department, which was not named in the amended
Case 1:25-cv-00248-TRM-MJD Document 10 Filed 01/06/26 Page 2 of 3 PageID
#: <pageID>

complaint, is TERMINATED as a defendant. The Clerk is DIRECTED not to issue process for
Defendant Gross or the City of Niota Police Department.
SO ORDERED.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE
Case 1:25-cv-00248-TRM-MJD Document 10 Filed 01/06/26 Page 3 of 3 PageID
#: <pageID>