United States District Court, M.D. Tennessee, Nashville Division
ERIC T. HAMMONDS, No. 29187, Plaintiff,
W.C. Jail Medical Staff, et al., Defendants
HONORABLE ALETA A. TRAUGER JUDGE
REPORT AND RECOMMENDATION
BROWN UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
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).
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.
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 ...