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Turner v. Parker

United States District Court, M.D. Tennessee, Nashville Division

October 9, 2019

TONY PARKER et al., Defendants.



         The magistrate judge entered an Order (Doc. No. 106) on May 29, 2019, denying pro se plaintiff Randall Turner's Motion to Appoint Counsel (Doc. No. 100), and, on June 7, 2019, issued a Report and Recommendation (“R&R”) (Doc. No. 109), recommending that the Motion to Dismiss (Doc. No. 98) filed by defendants Jonathan Lebo, Johnny Fitz, Charles Sweat, and Clayton Taylor (the “State defendants”) be granted. Now before the court are the plaintiff's Objections to the Order and his separately filed Objections to the R&R. (Doc. Nos. 107, 110.) For the reasons set forth herein, the court will overrule both sets of Objections.


         In May 2018, the court conducted an initial review of the plaintiff's original Complaint, granted leave to proceed in forma pauperis, and dismissed claims against several defendants while allowing claims against others, including the State defendants, to proceed. The gravamen of the plaintiff's claims against the State defendants is that, although he is not a member of a gang, he has been targeted by gang members, and prison officials have failed in their responsibility to protect him from violence by other prisoners. The initial order notified the plaintiff that, despite issuance of process against the State defendants, the magistrate judge retained the discretion to recommend the dismissal of any claim for the reasons set forth in 28 U.S.C. § 1915(e)(2), among which is the failure to state a claim for which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

         The plaintiff was granted leave to file an Amended Complaint in September 2018. (Doc. Nos. 55, 56, 58.) The first Amended Complaint was a single-page document that purported to extend the claims already asserted in the original Complaint against one new defendant. (Doc. No. 58.) Because the plaintiff had already filed numerous piecemeal documents and affidavits, the magistrate judge ordered him to file “one consolidated, comprehensive Amended Complaint that sets forth all allegations against all Defendants that Plaintiff wishes to litigate in this matter.” (Doc. No. 66, at 5.) The plaintiff, without objecting to that order, filed his second Amended Complaint on December 10, 2018. (Doc. No. 70 (hereafter, “Complaint, ” except where necessary to distinguish it from prior complaints).)

         The allegations in the Complaint regarding the State defendants are, verbatim, as follows:

On November 9, 2017 I was strife [sic] search two times in the kitchen restroom by three crip gang members inmate Gloss # 379551, Anderson # 264830 and one other gang member,
Because inmate Gloss lost his drugs in the restroom and he believe that I have found them. When they did not find any drugs I was assault by inmate Gloss while the other two stood by to aid him.
Plaintiff had two deep laceration over the left eye. According to the Doctor and NP conversation that I needed “specialist” but the prisoner did the have enough staff to transport me to the hospital. The Doctor put stitches in both lacerations. Defendants knows from past and present history that housing non gang members inmates with gang members created a serious risk of harm or death they disregard that risk and house us together any. Which is a violation of the plaintiff Eighth Amendment right of U.S. constitution.
The plaintiff seeks damages from each defendant, Lebo, Fitz, Sweat, and Taylor in amount of two hundred and fifty thousand dollars compensatory and punitive damages.

(Doc. No. 70, at 2.)

         The State defendants filed their Motion to Dismiss and supporting Memorandum on May 16, 2019, arguing that the allegations in the Complaint are insufficiently specific to state a claim for which relief may be granted. (See Doc. No. 99, at 5 (“Plaintiff's allegations in the Amended Complaint, to the extent they can even be identified, are precisely the type of conclusory allegations which are insufficient to establish a cognizable cause of action, under § 1983 or on any other basis.”).

         In response to the defendants' Motion to Dismiss, the plaintiff filed a Motion for Appointment of Counsel (Doc. No. 101), Motion for Leave to File Amended Complaint (Doc. No. 101), Responses [sic] to Defendants Motion to Dismiss (Doc. No. 102), and Affidavit in Responses [sic] to Defendants (State) Motion to Dismiss for Failure State Claim (Doc. No. 103). Following the magistrate judge's denial of the Motion for Appointment of Counsel, the plaintiff filed Objections to that Order. The magistrate judge thereafter filed the R&R, recommending that the State defendants' Motion to Dismiss be granted. The plaintiff filed timely Objections to the R&R. (Doc. No. 110.)


         The standard of review applicable to a party's objections to a magistrate judge's ruling depends upon whether the objections pertain to a dispositive or non-dispositive matter. This court's review of a magistrate judge's resolution of a non-dispositive pretrial matter is limited to determining whether the order is “clearly erroneous” or “contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). See also Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993) (“When a magistrate judge determines a non-excepted, pending pretrial matter, the district court has the authority to ‘reconsider' the determination, but under a limited standard of review.”). “‘A finding [of fact] is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Adams Cty. Reg'l Water Dist. v. Vill. of Manchester, 226 F.3d 513, 517 (6th Cir. 2000) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). A legal conclusion is contrary to law if it contradicts or ignores applicable precepts of law, as found in the Constitution, statutes, or case precedent. Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992).

         When a party files objections to a magistrate judge's report and recommendation regarding a dispositive motion, the district court must review de novo any portion of the report and recommendation to which objections are “properly” lodged. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(B) & (C). An objection is “properly” made if it is sufficiently specific to “enable[] the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). “The filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.” Special Learning, Inc. v. Step by Step Acad., Inc., 751 Fed.Appx. 816, 819 (6th Cir. 2018) (citations omitted). In conducting its review, the district court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).


         A. Objections to the Denial of the Motion to ...

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