Reno v. Strange et al
MEMORANDUM OPINION ADOPTING the 11 Magistrate Judge's Report and Recommendation. Signed by Judge Virginia Emerson Hopkins on 11/14/2016. (JLC)
2016 Nov-14 PM 04:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LARRY EARL RENO,
) Case No.: 7:16-CV-00890-VEH-JEO
LUTHER STRANGE, Attorney
General for the State of Alabama, )
This is a pro se prisoner case brought pursuant to 42 U.S.C. § 1983. (Doc.
1). The plaintiff is currently incarcerated at Bibb Correctional Facility in Brent,
Alabama. (Id. at 2).1 The plaintiff names as defendants Luther Strange, Attorney
General for the State of Alabama and Bart Harmon, Assistant Attorney General for
the State of Alabama. (Id. at 2). He seeks monetary and injunctive relief. (Doc. 8 at
In accordance with the usual practices of this court and 28 U.S.C. §
636(b)(1), the amended complaint was referred to a magistrate judge for a
preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136
All page numbers reference the number assigned by the court’s cm/ecf numbering
system, unless otherwise noted.
(1991). In accordance with the Prison Litigation Reform Act of 1995, Pub. L. No.
104-134, § 804, 110 Stat. 1321, and 28 U.S.C. § 1915A, the magistrate judge
screened the plaintiff’s amended complaint and, on September 20, 2016, sua
sponte recommended dismissal of the complaint with prejudice as barred by res
judicata. (R&R, Doc. 1 at 7). On October 3, 2016, the plaintiff filed objections to
that Report and Recommendation. (Doc. 12) (“Objection”).
DISTRICT COURT REVIEW OF REPORT AND RECOMMENDATION
After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate
judge’s report and recommendation. See 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677
F.2d 404, 408 (5th Cir.1982)).2 The district judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions. 28
U.S.C. § 636(b)(1).
A district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the
former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982); see also
United States v. Schultz, 565 F.3d 1353, 1361 n. 4 (11th Cir.2009) (discussing the continuing
validity of Nettles).
made.” Id.. This requires that the district judge “give fresh consideration to those
issues to which specific objection has been made by a party.” Jeffrey S. v. State
Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted).
In contrast, those portions of the R & R to which no objection is made need
only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed. App’x. 781, 784
(11th Cir. 2006).3
“Neither the Constitution nor the statute requires a district judge to review,
de novo, findings and recommendations that the parties themselves accept as
correct.” United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (citation
omitted). It is incumbent upon the parties to timely raise any objections that they
may have regarding a magistrate judge’s findings contained in a report and
recommendation, as the failure to do so subsequently waives or abandons the
issue, even if such matter was presented at the magistrate judge level. See, e.g.,
U.S. v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (“While Pilati raised the
Macort dealt only with the standard of review to be applied to a magistrate's factual
findings, but the Supreme Court has held that there is no reason for the district court to apply a
different standard to a magistrate's legal conclusions. Thomas v. Arn, 474 U.S. 140, 150, 106 S.
Ct. 466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a
clear-error standard to both. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373–74 (N.D. Ga.
2006) (collecting cases). This is to be contrasted with the standard of review on appeal, which
distinguishes between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991)
(when a magistrate's findings of fact are adopted by the district court without objection, they are
reviewed on appeal under a plain-error standard, but questions of law remain subject to de novo
issue of not being convicted of a qualifying offense before the magistrate judge, he
did not raise this issue in his appeal to the district court. Thus, this argument has
been waived or abandoned by his failure to raise it on appeal to the district
court.”). However, the district judge has discretion to consider or to decline to
consider arguments that were not raised before the magistrate judge. Stephens v.
Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see also Williams v. McNeil, 557 F.
3d 1287, 1292 (11th Cir. 2009).
“Parties filing objections must specifically identify those findings objected
to. Frivolous, conclusive or general objections need not be considered by the
district court.” Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982). “This
rule facilitates the opportunity for district judges to spend more time on matters
actually contested and produces a result compatible with the purposes of the
Magistrates Act.” Id. at 410. Indeed, a contrary rule “would effectively nullify the
magistrate judge's consideration of the matter and would not help to relieve the
workload of the district court.” Id. (quoting United States v. Howell, 231 F.3d 615,
622 (9th Cir. 2000)).
ANALYSIS OF PLAINTIFF’S OBJECTIONS TO THE R&R
Failure To Comply With Rule 8(d).
Plaintiff objects that the R&R violated Federal Rule of Civil Procedure
8(d).4 However, the Magistrate Judge never referenced any portion of Rule 8 or
any concept related to Rule 8 in his R&R.5 Any objection based on Rule 8 or any
portion of Rule 8 accordingly is due to be OVERRULED.
Plaintiff’s objections seem to be that the magistrate judge was required to
obtain evidence and, because he did not do so, the allegations in his complaint
were uncontested and therefore established the cause of action alleged by Plaintiff.
Rule 8(d) of the Federal Rules of Civil Procedure does not support this contention.
Otherwise, his “failure to obtain evidence” objection is dealt with more
Failure To Obtain Evidence To Controvert Plaintiff’s Allegations.
Plaintiff, throughout his Objection, references Rule 12(b)(6) and complains
See doc. 12 at 2 ¶6; 3 ¶8; and 8 ¶14.
Rule 8. General Rules of Pleading
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
(1) In General. Each allegation must be simple, concise, and direct. No
technical form is required.
(2) Alternative Statements of a Claim or Defense. A party may set out 2 or
more statements of a claim or defense alternatively or hypothetically,
either in a single count or defense or in separate ones. If a party makes
alternative statements, the pleading is sufficient if any one of them is
(3) Inconsistent Claims or Defenses. A party may state as many separate
claims or defenses as it has, regardless of consistency.
(FED. R. CIV. P. 8(d)).
that the Magistrate Judge failed to obtain evidence to controvert the allegations in
his complaint.6 The Magistrate Judge did set out the legal standard that “a
complaint may be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to
state a claim upon which relief may be granted. A review on this ground is
governed by the same standards as dismissals for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.”(Doc. 11 at 2).
However, the Magistrate Judge did not fail to credit the allegations by
Plaintiff in his complaint. Rather, the Magistrate Judge considered those
allegations, and specifically Plaintiff’s admissions therein, and compared the
present lawsuit to Plaintiff’s prior lawsuit in this district arising out of the same
facts against the same Defendants. (Doc. 11 at 3-5). He noted that Plaintiff “again
requests monetary damages from the defendants” but that, unlike in the prior case,7
in the present case Plaintiff also seeks “ ‘a preliminary and permanent injunction
ordering the defendants to correct the constitutional violations’ that caused him to
be deprived of his right to access the court and his ‘right to habeas corpus
proceedings.’ He desires the court ‘to further order’ that he ‘is entitled to habeas
See doc. 12 at 2 ¶6; 3 ¶8; 6 ¶13; and 8 ¶¶14, 15 (referencing Rule 12(b)(6)). See also id.
at 3 ¶7 and 6 ¶13 (referencing 18 U.S.C. § 1915A(b)(1)).
Styled Larry Earl Reno v. Attorney General Luther Strange, and Assistant Attorney
General Bart Harmon, Case no. 7:12-cv-02534-RBP-JEO (“Reno I”).
corpus proceedings.’ ” (Doc. 11 at 5). After considering the present complaint and
taking judicial notice of the pleadings in Reno I, the Magistrate Judge found that
Plaintiff’s present lawsuit is barred by res judicata and recommended dismissal
with prejudice. (Doc. 11 at 6-7).
The Conclusion That This Action Is Barred by Res Judicata.
The Plaintiff clearly disagrees that this present action is barred by res
judicata.8 However, the undersigned has reviewed the pleadings in this case and in
Reno I and concludes that this action is barred by res judicata. Although Plaintiff
contests the finding of the R&R that the final judgment in Reno I was “on the
merits,” the undersigned agrees that it was.
This case is “on all fours” with the case decided by the Eleventh Circuit in
Harmon v. Webster, 263 F. App'x 844, 845 (11th Cir. 2008)(unpublished). As that
[Harmon] was a ... prisoner ... who appealed the district court's
dismissal of his 42 U.S.C. § 1983 complaint against three judges of
the Florida First District Court of Appeals and a prosecutor with the
Florida State Attorney General's Office (collectively the
“Defendants”) for failure to state a claim upon which relief may be
granted under 28 U.S.C. § 1915A(b)(1). The district court concluded
that Harmon's complaint was barred by res judicata, and directed that
the dismissal be classified as a second “strike” for purposes of 28
See doc. 12 at 3 ¶ ; 4 ¶10; 8 ¶15; 9 ¶17; and 11 ¶19 (asserting that no court has made a
determination on the merits of Plaintiff’s allegations).
U.S.C. § 1915(g). No reversible error has been shown; we affirm.
Harmon v. Webster, 263 F. App'x at 845.
Harmon was an unpublished and therefore non-binding decision. However,
the cases upon which the Harmon court relied are binding authority, and the
undersigned is persuaded by the Harmon court’s application of those cases. For
Plaintiff’s benefit, the undersigned will set out the relevant portions of the
Harmon decision below.
Res judicata will bar a later action if the following requirements are
met: (1) the prior decision was rendered by a court of competent
jurisdiction; (2) there was a final judgment on the merits; (3) the
parties were identical in both suits; and (4) the prior and present
causes of action are the same. Jang v. United Tech. Corp., 206 F.3d
1147, 1149 (11th Cir.2000) (citation omitted).
Harmon previously filed a section 1983 complaint against the same
Defendants alleging the identical claims about their acts in his
criminal proceedings as the instant complaint. The district court
dismissed this previous complaint for failure to state a claim under 28
U.S.C. § 1915(e)(2)(B)(ii) because Defendants were entitled to
absolute immunity. This prior dismissal satisfies the elements of res
judicata. A court of competent jurisdiction rendered a final judgment
on the merits, and the present complaint raises the same claims
against the same parties. See Jang, 206 F.3d at 1149; see also NAACP
v. Hunt, 891 F.2d 1555, 1560 (11th Cir.1990) (a dismissal for failure
to state a claim under Fed.R.Civ.P. 12(b)(6) is an adjudication on the
merits for res judicata purposes).
Plaintiff’s objection to the Magistrate Judge’s recommendation that the
undersigned conclude that the present action is barred by res judicata is due to be
Plaintiff’s Objections to Matters not Addressed in the R&R.
Plaintiff raises various other matters in his Objection,9 but none of those
matters were addressed in the R&R and none of them have any impact on this
court’s review of that R&R. Rather, they are objections to the determinations made
in Reno I and the dismissal of that complaint. Plaintiff’s recourse was to appeal
that final judgment, but he did not. He cannot complain about that judgment, or
seek to disagree with it, before this court.
All of Plaintiff’s objections to matters not addressed herein are matters not
material to the R&R in this case (although some of them may have been material
to the decision in Reno I). Accordingly, they are due to be OVERRULED.
Having carefully reviewed and considered de novo all the materials in the
See doc. 12 at 3 ¶7; 4 ¶11; and 7 ¶13 (Defendants are not immune from suit); doc. 12 at
4 ¶11 and 5 ¶12 (the PLRA does not apply to “1st Amendment claims ‘regardless of the form of
relief sought.’ ”); doc. 12 at 4 ¶11 and 6 ¶13 (Plaintiff’s right of access to the court is “absolute
and fundamental”); doc. 12 at 7 ¶13 (Plaintiff’s claims are not frivolous); doc. 12 at 9 ¶16 and 12
¶20 (Plaintiff’s claims are not time-barred); doc. 12 at 4 ¶11; 5 ¶12; 9 ¶18; and 10-11 ¶19
(Plaintiff has been denied procedural due process); doc. 12 at 10 ¶19 (Reno I and R&R violate
due process and equal protection); doc. 12 at 12 ¶¶20 and 22 (Reno I and prior state court ruling
are wrong); doc. 12 at 4 ¶11; 5 ¶12; and 9 ¶18; (First Amendment); doc. 12 at 5 ¶12; 4 ¶11;and
10 ¶19 (equal protection); doc. 12 at 5 ¶12 and 10 ¶19 (Eighth Amendment); and doc. 12 at ¶19
(First, fifth, Eighth, and Fourteenth Amendments).
court file, including the report and recommendation, Plaintiff’s objections, and the
pleadings in Reno I, the court is of the opinion that the magistrate judge’s report is
due to be and is hereby ADOPTED. Accordingly, this action will be DISMISSED
WITH PREJUDICE as barred by res judicata. The court further finds that this
dismissal counts as one of Plaintiff’s “three strikes” under 28 U.S.C. § 1915(g).
A Final Judgment Order will be entered.
DONE this the 14th day of November, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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