Clervrain v. Stone et al

Filing 41

ORDER overruling Plaintiff's objections, adopting 34 Report and Recommendations, denying 39 Motion for Notice of Appeal, finding as moot 38 Motion for Judicial Panel for Multidistrict Litigation, finding as moot 36 Motion for Reconsideration, dismissing Plaintiff's complaint for failure to state a claim upon which relief can be granted, and closing this civil action. Signed by Judge Dudley H. Bowen on 08/16/2018. (thb) Modified on 8/16/2018 (thb).

FILF'D

U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT

AUGUSTA OIV.

20I8AUGI6 !\H9--U8
FOR THE SOUTHERN DISTRICT OF GEORGIA

CLERK..

DUBLIN DIVISION

so:

.01 OA.

MANETIRONY CLERVRAIN,
Plaintiff,
CV 318-028

V.

STAGEY STONE; MICHAEL CARTER;
STEVEN CONRY; JOHN BAXTER;
LYNETTE HARRIS; AMANDA KIRLEY;
F. FASSON; S. DAMMONS;A. WRIGHT;
J. COLEMAN;DAVID CHURCHILL;
WILLIAM DAEIUS; BEN ELROD;
BRIAN K. FERELL; BRIAN HAMONDS;
NATASHA METCALF; JOHN PFEIFFER;
BRAD REGENS; JOHN ROBINSON;
DAREN SWENSON; BART VERHUES;
JOHN PAUL WOODEN;
and JOE DOES 1 & 2,
Defendants.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation("R&R"), to which objections have been filed (doe. no.
37).' Plaintiff also filed a "Motion for Judieial Panel for Mu[l]tidistrict Litigation Pursuant

'plaintiffs objections were also docketed as a "Motion for Consideration" of the
Magistrate Judge's R&R. (Doc. no. 36.) Because the Court has considered Plaintiffs filing as
objections to the R&R,Plaintiffs "motion" is MOOT. (Id.)

to 28 U.S.C. § 1407 and 5 U.S.C. § 504,"(doc. no. 38), and "Motion for a Notice of Appeal,"
(doc. no. 39).

First, Plaintiff cannot prevent this Court from dismissing his amended complaint for
failure to state a claim by seeking to initiate a transfer pursuant to 28 U.S.C. § 1407. A party

initiates proceedings for the transfer of an action for coordinated or consolidated pretrial
proceedings by filing a motion with the United States Judicial Panel on Multidistrict

Litigation and a copy of the motion in the district court in which the moving party's action is
pending. 28 U.S.C. § 1407(c)(ii). Nevertheless, the pendency of such a motion "does not
affect or suspend orders ... in any pending federal district court action and does not limit the

pretrial jurisdiction of that court." Rules of Procedure of the United States Judicial Panel on
Multidistrict Litigation. Rule 2.1(d) (2016), available at http://www.jpml.uscourts.gov

/sites/jpml/files/Panel%20Rules-Index_Copy_Rev-5-23-2018_Effective-10-4-2016_.pdf.
Accordingly, Plaintiffs "Motion for Judicial Panel for Mu[l]tidistrict Litigation Pursuant to
28 U.S.C. § 1407 and 5 U.S.C. § 504" is MOOT. (Doc. no. 38.)

Second, Plaintiff may not appeal a R&R, which has not been rendered final by the
District Court. Webb v. Warden. No. 18-11340-E, 2018 WL 3244459, at *1 (11th Cir. June

20, 2018)("The report does not qualify as final and appealable because the district court had
not yet rendered it final when [the plaintiff] filed the notice of appeal.") (citing 28 U.S.C.
§ 1291; Perez-Priego v. Alachua Ctv. Clerk of Ct.. 148 F.3d 1272, 1273 (11th Cir. 1998)).
Accordingly, the Court DENIES Plaintiffs "Motion for a Notice of Appeal." (Doc. no. 39.)
Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate

Judge as its opinion, OVERRULES Plaintiffs objections, (doc. no. 37), DISMISSES

Plaintiffs complaint for failure to state a claim upon which relief can be granted, and
CLOSES this civil action.

//^
SO ORDERED this fU day of August^2018, at Augusta, Georgia.

ITED STATES'DISTRICT JUDGE