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Gentry v. Thompson

United States District Court, M.D. Tennessee

December 28, 2016

JOHN ANTHONY GENTRY, Plaintiff
v.
THE HONORABLE JUDGE JOE H. THOMPSON, Defendant

          Trauger, Judge

          REPORT AND RECOMMENDATION[1]

          JOE B. BROWN, United States Magistrate Judge

         TO: THE HONORABLE ALETA A. TRAUGER

         For the reasons stated below, the Magistrate Judge recommends that the Defendant's motion to dismiss (Docket Entry 11) be granted and this case be dismissed as the court lacks jurisdiction or dismissed with prejudice if the court has jurisdiction.

         BACKGROUND

         The Plaintiff filed his complaint against Circuit Court Judge Joe H. Thompson on October 3, 2016, and paid the requisite filing fee. Subsequently, he amended his complaint on October 19, 2016 (Docket Entry 6). The 38-page amended complaint is therefore the operative complaint in this matter. Counsel for Defendant filed a motion to dismiss for failure to state a claim on November 14, 2016 (Docket Entry 11) in lieu of an answer. The motion was supported by a memorandum of law (Docket Entry 12). The Plaintiff filed a response on November 28, 2016 (Docket Entry 17). There was no reply and the matter is ready for a report and recommendation.

         The Plaintiff's amended complaint cites in considerable detail his view of the proceedings in his divorce case before the Defendant. He alleges that the Defendant violated Title 42 U.S.C. § 1983 by ruling against him without allowing him to be heard or to present evidence and by being biased. He alleges that Defendant's actions violated his right of due process and were outside the jurisdiction of the Defendant in his capacity as judge (Docket Entry 6, par. 13).

         In his factual statement, the Plaintiff alleges a number of violations he contends that occurred in a September 15, 2015, hearing (page ID 55-66). On page ID 61 the Plaintiff refers to a July 1, 2016 hearing in two places. It appears that this is a typographical error and he is actually referring to the July 1, 2015, hearing.

         The Plaintiff next alleges violations that occurred during what appears to be a final hearing in his divorce case on May 2 and 3, 2016 (page ID 66-68).

         The Plaintiff then backtracks to a February 9, 2016, hearing (page ID 68-80). In these pleadings the Plaintiff again complains that the Defendant failed to read his pleadings or to allow him to argue his motion. He further alleges that the court granted all of the motions by his wife without allowing him to be heard. He further alleges that although the Defendant stated that he read the Plaintiff's motions and responses, he clearly did not. He contends in that in this hearing the Defendant was biased against him and should have disqualified himself.

         It appears that the actual final hearing in the matter occurred on May 3, 2016 (page ID 80-81). At this hearing he contends that the Defendant showed his bias and his efforts to protect the wife from criminal conduct by stating that if the Plaintiff thought his wife was attempting to subordinate perjury he should take it up with the district attorney. He contends that this violated his due process right to be heard.

         The Plaintiff then again backtracks to alleged violations occurring at an October 27, 2015, hearing (page ID 81-84). The hearing on that date appears to involve the discussion of the Plaintiff's motion to compel health insurance and life insurance information from his wife and his motion for a Rule 9 interlocutory appeal. From the transcript pages cited by the Plaintiff it appears that he filed a notice of a hearing, which because of the court clerk's error, was not listed on the docket. Because of this the court did not hear the motion that day. The Plaintiff contends that this demonstrates the trial court's previous decision to disregard his statements and reinforces the Plaintiff's contentions that the trial court was biased and held animosity toward him by both refusing to hear him and by denying him permission to take an interlocutory appeal.

         LEGAL DISCUSSION

         Standard ...


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