United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING REPORT AND
RECOMMENDATION FOR SUE SPONTE DISMISSAL
S. NORRIS UNITED STATE DISTRICT JUDGE
the Court is Chief Magistrate Judge Diane Vescovo’s
Report and Recommendation for Sue Sponte Dismissal,
submitted August 26, 2019 (“Report”). (ECF No.
8.) The Report recommends that Plaintiff Michael
Mattox’s Pro Se Complaint against Defendants
Memphis Police Department (“MPD”), Holiday Inn,
Memphis Mental Health Institution (“Memphis Mental
Health”), and Alliance Health Services
(“Alliance”) be dismissed sue sponte and
that Plaintiff’s Objections, Complaint Name Change and
New Injunction filed on March 25, 2019 (ECF No. 7) be denied.
following reasons, the Report is ADOPTED.
Plaintiff’s Objection is denied and all of
Plaintiff’s claims in this matter are DISMISSED
enacted 28 U.S.C. § 636 to relieve the burden on the
federal judiciary by permitting the assignment of district
court duties to magistrate judges. See United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing
Gomez v. United States, 490 U.S. 858, 869–70
(1989)); see also Baker v. Peterson, 67 Fed.Appx.
308, 310 (6th Cir. 2003). For dispositive matters,
“[t]he district judge must determine de novo
any part of the magistrate judge’s disposition that has
been properly objected to.” See Fed. R. Civ.
P. 72(b)(3); 28 U.S.C. §636(b)(1). After reviewing the
evidence, the court is free to accept, reject, or modify the
magistrate judge’s proposed findings or
recommendations. 28 U.S.C. § 636(b)(1). The district
court is not required to review-under a de novo or any other
standard-those aspects of the report and recommendation to
which no objection is made. See Thomas v. Arn, 474
U.S. 140, 150 (1985). The district court should adopt the
magistrate judge’s findings and rulings to which no
specific objection is filed. See Id . at 151.
to any part of a Magistrate Judge's disposition
“must be clear enough to enable the district court to
discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995); see also Arn, 474 U.S. at 147
(stating that the purpose of the rule is to “focus
attention on those issues . . . that are at the heart of the
parties' dispute.”). Each objection to the
Magistrate Judge's recommendation should include how the
analysis is wrong, why it was wrong and how de novo
review will obtain a different result on that particular
issue. Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
general objection, or one that merely restates the arguments
previously presented and addressed by the Magistrate Judge,
does not sufficiently identify alleged errors in the Report
and Recommendation. Id. When an objection reiterates
the arguments presented to the Magistrate Judge, the Report
and Recommendation should be reviewed for clear error.
Verdone v. Comm'r of Soc. Sec., No.
16-CV-14178, 2018 WL 1516918, at *2 (E.D. Mich. Mar. 28,
2018) (citing Ramirez v. United States, 898
F.Supp.2d 659, 663 (S.D.N.Y. 2012)); accord Equal
Employment Opportunity Comm'n v. Dolgencorp, LLC,
277 F.Supp. 3d 932, 965 (E.D. Tenn. 2017).
presents three numbered paragraphs in his one-page submission
titled “Objections, Complaint Name Change and New
Injunction.” (ECF No. 7.) To the extent said submission
is in fact intended to be an objection to the Report under 28
U.S.C. § 636, the Court finds Plaintiff’s
objections were prematurely filed by 155 days, see
28 U.S.C. § 636(b)(1)(C), and appear to be identical to
Plaintiff’s objections to the report and recommendation
filed in an earlier, separate case, Michael Mattox v.
Western Mental Health Institute, No.
2:19-cv-02009-MSN-dkv. Notwithstanding the premature filing
of Plaintiff’s objections, and considering
Plaintiff’s pro se status, the Court elects to
address the substance of Plaintiff’s premature
objections to the Report.
paragraph one, Mattox states his objection “will be the
original complaint where [I] state the claims and all
constitutional violations impose[d] on [I], the plaintiff,
[M]ichael [M]attox.” (Id.) However,
Mattox’s objection does not explain how the
Report’s analysis is wrong, why it was wrong, or how
de novo review would result in a different
conclusion. Mattox merely incorporates by reference his
claims previously presented and addressed by the Magistrate
Judge. See Howard, 932 F.2d at 509. Because
Mattox’s objection reiterates the claims presented to
the Magistrate Judge, the Court may review the Report for
clear error. See Verdone, 2018 WL 1516918, at *2.
Court has reviewed the Report for clear error and finds none.
Accordingly, Mattox’s objection is
second paragraph asks to change the name of the pleading to
name the “[U]nited [S]tates of [A]merica . . . via
[W]estern [M]ental [H]ealth [I]nstitute” as Defendant
in this matter. (ECF No. 7.) Mattox’s final paragraph
asks for a “[n]ew injunction to make . . . [M]attox . .
. [P]resident of the [U]nited [S]tates of [A]merica . . .
.” (ECF No. 7.) The Court construes this as a request
for leave to amend pursuant to Fed.R.Civ.P. 15(a).
15(a) declares that leave to amend “shall be freely
given when justice so requires.” The Supreme Court has
held that leave to amend should normally be granted unless
there is some “apparent or declared reason” not
to allow the amendment. Foman v. Davis, 371 U.S.
178, 182 (1962). One reason for not allowing an amendment is
that the amendment would be futile. Id. “A
proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.” Rose
v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420
(6th Cir. 2000) (citing Thiokol Corp. v. Dep't of
Treasury, State of Michigan, Revenue Div., 987 F.2d 376,
382–83 (6th Cir. 1993)).
Court finds that Mattox’s proposed amendment would be
futile. Mattox seeks to amend his Complaint to name the
United States as a defendant. (ECF No. 7.) Section 1983
claims are unavailable against federal defendants due to that
section’s state action requirement. 42 U.S.C. §
1983. A Bivens action, providing a cause of action
against federal officers under the Constitution, is available
against federal officials. Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
However, Bivens actions are available only against
individual federal officials, not against the United States.
Shaner v. U.S., 976 F.2d 990, 994 (6th Cir. 1992)
(citing Ashbrook v. Block, 917 F.2d 918 924 (6th
Cir. 1990)). ...