United States District Court, M.D. Tennessee, Columbia Division
REPORT AND RECOMMENDATION
BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE
Honorable Waverly D. Crenshaw, Jr., Chief District Judge
Order entered September 11, 2017 (Docket Entry No. 3), this
pro se and in forma pauperis prisoner civil
rights action was referred to the Magistrate Judge for
pretrial proceedings pursuant to 28 U.S.C. §§
636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of
Civil Procedure, and the Local Rules of Court.
reasons set out below, the undersigned Magistrate Judge
respectfully recommends that the pending motion for partial
dismissal (Docket Entry No. 19) of Defendants Bryan Bailey,
Dustin Mackin, Steven Palk, and Clint Zyla (hereinafter
collectively “Defendants”) be granted.
Dewayne Davis (“Plaintiff”) is a former inmate of
the Tennessee Department of Correction (“TDOC”)
who is no longer incarcerated. On August 30, 2017, he filed
this pro se and in forma pauperis lawsuit
while still confined within the TDOC. He brings claims under
42 U.S.C. § 1983 for violations of his constitutional
rights based on allegations that prison guards at the Turney
Center Industrial Prison (“Turney Center”) used
excessive force against him on September 1, 2016. In addition
to requesting monetary relief, Plaintiff requests
“mandatory injunctions” and to have the guards
“terminated from their jobs.” See
Complaint (Docket Entry No. 1) at 15.
initial review of the complaint pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A, and 42 U.S.C. 1997e, the
Court directed that process issue to five defendants on
Plaintiff's claims - Bryan Bailey, Dustin Mackin, Steven
Palk, Clint Zyla, and John Gunn. See Docket Entry
No. 3 at 3-5. All defendants other than Defendant John Gunn
have been served, have filed a joint answer (Docket Entry No.
22), and have joined in the pending motion for partial
dismissal. Process for Defendant Gunn was returned unexecuted
with the notation that he was no longer employed at the
Turney Center. See Docket Entry No. 8.
their motion for partial dismissal, Defendants move to
dismiss Plaintiff's requests for injunctive relief.
Defendants argue that Plaintiff does not set out a valid
claim for injunctive relief because he is no longer under the
threat of any injury at the hands of Defendants which would
be prevented or remedied by the requested injunctive relief.
See Memorandum in Support (Docket Entry No. 20).
They also note that he has been released from TDOC custody.
Order entered February 7, 2018 (Docket Entry No. 21), the
Court gave Plaintiff a deadline of March 6, 2018, to file a
response to Defendants' motion. On March 6, 2018,
Plaintiff filed what is styled as “an time
extension.” See Docket Entry No. 23. In his
filing, Plaintiff states that he would like to
“reject” the request for dismissal because
Defendants assaulted him and covered up his injuries in the
disciplinary reports and because “I am not the only one
at that prison that has been assaulted and they tried to
cover it up.” Id. at 2. He also asserts that
he needs to get a lawyer to represent him on the case.
Id. at 1.
CONCLUSIONS AND RECOMMENDATIONS
survive a motion to dismiss brought under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, Plaintiff must provide
the grounds for his entitlement to relief and supply factual
allegations that show a plausible right to relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-61, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). See also Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868
motion for partial dismissal should be GRANTED. First,
Plaintiff's undefined request for “mandatory
injunctions” fails to set out an actual request for any
kind of specific injunctive relief. Further, the Court has no
authority to direct that TDOC terminate Defendants'
employment as part of any final outcome in this case.
Finally, a prisoner plaintiff's release from custody
generally renders requests for injunctive relief regarding
his former confinement moot. See Colvin v. Caruso,
605 F.3d 282, 289 (6th Cir. 2010); Kensu v. Haigh,
87 F.3d 172, 175 (6th Cir. 1996).
recent filing, Plaintiff fails to raise any valid objections
to Defendants' motion for partial dismissal. The
underlying merits of his allegations do not have any impact
on the shortcomings of the injunctive relief he has requested
as a remedy, and his request for monetary damages will remain
in the lawsuit despite the dismissal of his claims for
injunctive remedies. Although Plaintiff's motion could be
liberally construed as a request for an extension of time to
respond to Defendants' motion, this request is
unpersuasive because, despite his request for additional
time, Plaintiff offers a substantive response to
Defendants' arguments in his filing and because there is
no reason to further delay resolution of Defendants'
motion given the obvious and uncurable deficiencies in
Plaintiff's complaint with respect to his request for
final injunctive remedies. If Plaintiff has any additional
arguments to make regarding Defendants' motion, he may
raise them in his objections to this Report and
OBJECTIONS to this Report and Recommendation must be filed
with the Clerk of Court within fourteen (14) days of service
of this Report and Recommendation and must state with
particularity the specific portions of this Report and
Recommendation to which objection is made. See Rule
72(b)(2) of the Federal Rules of Civil Procedure and Local
Rule 72.03(b)(1). A failure to file written objections within
the specified time can be deemed a waiver of the right to
appeal the District Court's Order regarding the Report
and Recommendation. See Thomas v. Arn,474 U.S. 140,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v.
Walters,638 F.2d 947 (6th Cir. 1981). Any other party