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Olivier v. McMillian

United States District Court, M.D. Tennessee

June 6, 2018

JERRY OLIVIER, Plaintiff
v.
KIM McMILLIAN, et al., Defendants

          Crenshaw Chief Judge

          REPORT AND RECOMMENDATION

          JOE B. BROWN UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE WAVERLY D. CRENSHAW, JR.

         For the reasons stated below, the Magistrate Judge recommends that the motions to dismiss by all Defendants (Docket Entries 20 and 22) be granted and this case be dismissed with prejudice.

         BACKGROUND

         The Plaintiff filed his complaint on November 20, 2017 (Docket Entry 1). Subsequently, the Plaintiff, at the Court's direction, filed an application to proceed in forma pauperis (Docket Entry 5) which was denied (Docket Entry 6) and the Plaintiff subsequently paid the filing fee of $400 (Docket Entry 7) on January 23, 2018. The case was referred to the undersigned for case management and a report and recommendation on any dispositive motion (Docket Entry 8).

         The complaint filed against the six named Defendants and the Clarksville Police Station alleges violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution as well violation of civil rights under Sections 1981, 1983, 1985 and 1986.

         The Plaintiff alleges that on August 25, 2016, the Plaintiff was a passenger in his brother's car on Fort Campbell Boulevard in Clarksville when a Clarksville police officer unlawfully stopped the automobile and demanded his brother's driver's license. He states that his brother was subsequently arrested for driving on a suspended Tennessee license. He claimed that his brother had never obtained a Tennessee license since he had a valid Virginia license, his home of domicile.

         Plaintiff stated that the officer demanded that he step out of his automobile, but that he refused, fearing for his safety and called 911 for assistance with the officers on the scene. When additional officers arrived from his 911 call he was placed under arrest for calling 911 and he was told they would break into the automobile if he did not step out. He was then arrested on a charge of making an excessive 911 call.

         Plaintiff alleges that the officers failed to advise him of his Miranda rights, failed to provide him with his right to misdemeanors, failed to provide him a telephone call within one hour of his arrest, and brought him before a magistrate in a closed court at the jail where the magistrate failed to notify him of his right to counsel, refused to provide him with counsel for an examination hearing, and failed to release him on a misdemeanor citation, and failed to provide him with his right to bond and forced him to take bail.

         Plaintiff stated that he included Mayor McMillian and the Police Chief Ansley in the lawsuit because they were notified of this matter and failed to take any action. He alleged that he and his brother had been unlawfully seized on other occasions and the Mayor and Chief failed to take any action. He alleged that the charges were dismissed against him on November 24, 2016.

         Subsequently, all Defendants filed motions to dismiss, supported by memorandum of law (Docket Entries 20 through 23), on April 10, 2018. When the Plaintiff did not respond to the motions, on May 15, 2018, the undersigned gave the Plaintiff seven days from the receipt of the order to either file a response to the motions or to request additional time. As of the date of this report and recommendation the Plaintiff has not responded to the motions or requested additional time.

         Both motions are straightforward in that they allege the Plaintiff's claims are barred by the one-year statute of limitations.[1] Because the Magistrate Judge believes that the statute of limitations is controlling other grounds for dismissal are not discussed except to state that clearly a building is not subject to suit for violations of the type alleged by the Plaintiff.

         LEGAL ...


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