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Hammonds v. W.C. Jail Medical Staff

United States District Court, M.D. Tennessee, Nashville Division

November 30, 2016

ERIC T. HAMMONDS, No. 29187, Plaintiff,
v.
W.C. Jail Medical Staff, et al., Defendants

          HONORABLE ALETA A. TRAUGER JUDGE

          REPORT AND RECOMMENDATION

          JOE B. BROWN UNITED STATES MAGISTRATE JUDGE

         For the reasons stated below, the Magistrate Judge recommends that the pending motion to dismiss as to all Defendants (Docket Entry 79) be granted and that this case be dismissed with prejudice. The Magistrate Judge further recommends that any appeal from the final judgment in this matter not be certified as taken in good faith.

         BACKGROUND

         The Defendants' motion to dismiss (Docket Entry 79) claims four grounds for dismissal.

1. The complaint fails to state a claim for deliberate indifference under 42 U.S.C. § 1983 against any Defendant in their official capacity.
2. The complaint fails to state a claim for deliberate indifference under 42 U.S.C. § 1983 against Defendant Handy, Rosenbalm, Barnett, Leonard, and Sidberry in their individual capacity.
3. The Plaintiff's claims against Defendants Kish, Corriveau, and Sidberry are subject to dismissal because they are barred the Tennessee one-year statute of limitations.
4. The Plaintiff's claims against Defendants Kish, Corriveau and Sidberry, to the extent they sound in malpractice, should be dismissed because the Plaintiff failed to comply with the procedural requirements of the Tennessee Health Care Liability Act.

         Their memorandum of law in support of the motion (Docket Entry 8) sets forth a reasonably accurate and complete summary of the pleadings in the matter. The Plaintiff did not file anything in opposition. Except as otherwise noted, the Magistrate Judge will adopt the Defendants' statement of the case and facts relevant to the present motions.

         The only pleading the Plaintiff filed since the motion to dismiss (Docket Entry 79) is found at Docket Entry 83 on September 19, 2016, where the Plaintiff filed a motion entitled “The Violation of the Eighth Amendment” which appears to be an objection to the Magistrate Judge's report and recommendation to dismiss the W.C. Jail Medical Staff from the case (Docket Entry 77). It makes no reference to the Defendants' motion to dismiss (Docket Entry 79).

         Plaintiff was warned in a previous order that failure to respond to a motion to dismiss can result in the motion being taken as unopposed and being granted (Docket Entry 44). The matter is ready for disposition.

         STANDARD OF REVIEW

         In ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court should accept all of the allegations contained in the complaint as true, resolve all doubts in favor of the plaintiff, and construe the complaint liberally in favor of a pro se plaintiff. Duckett v. State, 2010 WL 3732192 at *2 (M.D. Tenn.) (citing Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell v. Meyer, 16 ...


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