Trainor et al v. Gebke et al

Filing 57

ORDER ADOPTING 56 Report and Recommendations re Severing Claims of 30 Complaint. The 56 Report is adopted in its entirety and the Clerk of the Court is DIRECTED to SEVER plaintiff Turner's claims into a separate action. See Order for details. Signed by Judge David R. Herndon on 9/18/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY TRAINOR,
Plaintiff,
MICHAEL TURNER,
Plaintiff,
v.

No. 17-cv-627-DRH-DGW

LARRY GEBKE and ROBERT C.
MUELLER,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
Pending before the Court is a Report and Recommendation (“the Report”)
issued sua sponte by Magistrate Judge Donald G. Wilkerson on August 20, 2018
(doc. 56). The Report recommends that for case management purposes, plaintiff
Turner’s First Amendment claim against defendants for rejecting his magazine in
August 2016, be severed into a separate action from Plaintiff Trainor.

Judge

Wilkerson recommends severance as although both plaintiff Turner and plaintiff
Trainor allege violations of their First Amendment rights by having various
reading material denied, the type/content of the materials differ significantly, as
well as the reasons for their denials. 1 Further, the timespan between the denials
elapses one whole year, so the “circumstances under which each Plaintiff was
denied the requested materials is factually different.” Doc. 56 at 5. Accordingly,
1

Plaintiff Trainor alleges denial of his publications based on race-based bias, whereas plaintiff
Turner’s football magazine was denied by defendants as it could aid in gambling.

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Judge Wilkerson found that plaintiffs have not satisfied the criteria of permissive
joinder under Federal Rule of Civil Procedure 20 and the two claims should be
severed.
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1)(C),
which provides in part:
A judge of the court shall make a de novo determination of those
portions
of
the report or
specified
proposed
findings
or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the
magistrate judge with instructions.

Id.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de

novo determination of those portions of the report and recommendation to which
specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the
Court reviews those unobjected portions for clear error. Id.

Under the clear

error standard, the Court can only overturn a Magistrate Judge's ruling if the
Court is left with “the definite and firm conviction that a mistake has been
made.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.
1997).
The Report was sent to the parties with a notice informing them of their
right to appeal by way of filing “objections” within 14 days of service the Report.
To date, none of the parties filed objections. The period in which to file objections

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has expired.

Therefore, pursuant to 28 U.S.C. § 636(b), this Court need not

conduct a de novo review. Thomas v. Arn, 474 U.S. 140, 149-52 (1985).
Accordingly, the Court ADOPTS the Report (doc. 56) in its entirety based
on the analysis conducted by Magistrate Judge Wilkerson and laid out briefly
above.

The Court DIRECTS the Clerk of Court to SEVER plaintiff Turner’s

claim into a separate action.
IT IS SO ORDERED.

Judge Herndon
2018.09.18
16:14:52 -05'00'
United States District Court Judge

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