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Campbell v. Mitchell

United States District Court, W.D. Tennessee, Western Division

October 1, 2014

KATHYE P. CAMPBELL, Plaintiff,
v.
ED MITCHELL, et al., Defendants.

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH ORDER ASSESSING APPELLATE FILING FEE ORDER AFFIRMING THE MAGISTRATE JUDGE'S ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT & RECOMMENDATION FOR SUA SPONTE DISMISSAL ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

S. THOMAS ANDERSON, District Judge.

Before the Court is the United States Magistrate Judge's Report and Recommendation for the sua sponte dismissal of Plaintiff Kathye P. Campbell's Pro Se Complaint (ECF No. 10) submitted on August 6, 2014. Plaintiff filed timely objections on August 8, 2014.[1] Also before the Court are Plaintiff's objections to the Magistrate Judge's order denying Plaintiff's motion for appointment of counsel (ECF No. 9) filed on August 4, 2014. For the reasons set forth below, the Magistrate Judge's Report and Recommendation for sua sponte dismissal is ADOPTED, and the order denying Plaintiff's motion for appointment of counsel is AFFIRMED.

BACKGROUND

On July 21, 2014, Plaintiff filed a Pro Se Complaint alleging a conspiracy against her civil rights in violation of 18 U.S.C. § 241. Plaintiff also filed a motion to proceed in forma pauperis and a motion for appointment of counsel. Pursuant to Administrative Order 2013-05, the case was assigned to the United States Magistrate Judge for management of all pretrial matters, including the determination of non-dispositive matters and the issuance of reports and recommendations on all dispositive matters. The Magistrate Judge entered an order granting Plaintiff's motion to proceed in forma pauperis on July 23, 2014, and denying Plaintiff's motion for appointment of counsel on July 28, 2014. Plaintiff filed timely objections to the Magistrate Judge's order denying her motion for appointment of counsel.

On August 4, 2014, the Magistrate Judge submitted a recommendation that the Court dismiss Plaintiff's Pro Se Complaint sua sponte for lack of venue. The Magistrate Judge found that the Pro Se Complaint alleges that each Defendant works in the Eastern District of Tennessee and that one Defendant works in the Middle District of Tennessee. Therefore, venue did not lie in the Western District of Tennessee, and dismissal pursuant to 28 U.S.C. § 1391 is warranted.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 636(b), a district court shall apply a "clearly erroneous or contrary to law" standard of review for "nondispositive" preliminary matters such as a motion for appointment of counsel.[2] Fed.R.Civ.P. 72(a) states that a district judge "shall consider" objections to a magistrate judge's order on a nondispositive matter and "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law."[3] "The clearly erroneous standard applies only to factual findings made by the Magistrate Judge, while legal conclusions will be reviewed under the more lenient contrary to law standard."[4] Under the clearly erroneous standard for findings of fact, the Court need only consider whether any evidence or showing exists to support the Magistrate Judge's finding and whether the finding was reasonable.[5] "When examining legal conclusions under the contrary to law' standard, the Court may overturn any conclusions of law which contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent.'"[6]

Pursuant to 28 U.S.C. § 636, the Magistrate Judge may issue a report and recommendation for the dismissal of a civil case.[7] The Court must "make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made."[8] After reviewing the evidence, the Court is free to accept, reject, or modify the proposed findings or recommendations of the Magistrate Judge.[9] The Court need not review, under a de novo or any other standard, those aspects of the report and recommendation to which no specific objection is made.[10] Rather the Court may adopt the findings and rulings of the magistrate judge to which no specific objection is filed.[11]

ANALYSIS

I. The Magistrate Judge's Jurisdiction

As an initial matter, Plaintiff objects to the Magistrate Judge's jurisdiction to enter orders in this case, arguing that she has not consented to trial or proceedings before the Magistrate Judge. The Court finds that Plaintiff's challenge to the Magistrate Judge's authority is without merit. Under 28 U.S.C. § 636(b), a district judge may designate a magistrate judge "to hear and determine any pretrial matter pending before the court" as well as assign "such additional duties as are not inconsistent with the Constitution and laws of the United States."[12] Local Rule of Court 72.1(b) provides that "[t]he assignment of duties to the United States Magistrate Judges by the judges of this district may be made by standing order entered jointly by the district judges in this district...."[13] On April 29, 2013, then-Chief Judge McCalla entered Administrative Order 2013-05, which states, "By unanimous decision of the Court, effective March 21, 2013, all pending and future cases filed by pro se, non-prisoner plaintiffs are hereby referred to the assigned magistrate judge for management of all pretrial matters."[14]

Pursuant to Administrate Order 2013-05, the Magistrate Judge has been assigned to manage all pretrial matters in this case and has authority to determine non-dispositive motions. The Magistrate Judge set out this authority in her orders on Plaintiff's preliminary motions. As such, the Magistrate Judge properly heard and determined Plaintiff's motion for appointment of counsel. The Court would add that the Magistrate Judge is not the presiding judge, meaning the Magistrate Judge will not enter judgment. The undersigned remains as the presiding judge and will review any recommendation about the disposition of this matter before entry of judgment. Plaintiff has already ...


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