Todd Bonds v. Walton Verona Independent Board of Education et al

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS: 1) The Magistrate Judges Report and Recommendation 34 is ADOPTED as the findings of fact and conclusions of law of the Court; 2) Plaintiff Bondss Objections to the Magistrate Judges R&R 38 are OVERRULED; 3) Defendants Motions to Dismiss [15, 18] are GRANTED; 4) Plaintiffs Complaint 2 is DISMISSED WITH PREJUDICE as to Counts 1 and 2, and DISMISSED WITHOUT PREJUDICE as to Count 3; 5) Plaintiffs Motion for Partial Summary Judgment 28 is DENIED AS MOOT; 6) Plaintiffs Motion to Stay 39 is DENIED; and 7) This matter is hereby STRICKEN from docket. Signed by Judge David L. Bunning on 3/21/2016.(TJZ)cc: COR, Todd Bonds via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 15-53-DLB-CJS
TODD BONDS

vs.

PLAINTIFF

ORDER ADOPTING REPORT AND RECOMMENDATION

WALTON INDEPENDENT BOARD OF EDUCATION, et al.
DEFENDANTS
*****************
This matter is before the Court on the Report and Recommendation (“R&R”) of
United States Magistrate Judge Candace Smith (Doc. # 34), wherein she recommends that
the Court grant Defendants’ joint Motions to Dismiss (Docs. # 15 & 18). Defendant has
filed Objections to the R&R (Doc. # 38) as well as a Motion to Stay (Doc. # 39). Having
reviewed Plaintiff’s Motions, the Court will adopt the R&R as the findings of fact and
conclusions of law of the Court and deny Plaintiff’s Motion to Stay for the reasons stated
herein.
Pursuant to 28 U.S.C. § 636(b)(1), a party may file written objections within fourteen
days after being served with a copy of a Magistrate Judge’s Report and Recommendation.
If a party is properly informed of the consequences of failing to file an objection, “the party
waives subsequent review by the district court . . . [by failing] to file an objection.” Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995). Objections must specifically challenge portions
of the report or the proposed findings or recommendations.

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Filing vague, general, or

conclusory objections does not meet the specificity requirements and may be treated as
a complete failure to file. Zimmerman v. Cason, 354 F. App’x 228, 230 (6th Cir. 2009)
(citing Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001)).
District courts in the Sixth Circuit also have held that, “an ‘objection’ that does
nothing more than state a disagreement with a magistrate’s suggested resolution, or simply
summarizes what has been presented before, is not an ‘objection’ as that term is used in
this context.” See VanDiver v. Martin, 304 F. Supp. 2d 934, 938 (E.D. Mich. 2004); Holl
v. Potter, No. C-1-09-618, 2011 WL 4337038, at *1 (S.D. Ohio. Sept. 15, 2011) (holding
that “objections that merely restate arguments raised in the memoranda considered by the
Magistrate Judge are not proper, and the Court may consider such repetitive arguments
waived”). Such an “objection” fails to put the district court on notice of any potential errors
in the Magistrate Judge’s Report and Recommendation. VanDiver, 304 F. Supp. 2d at 938.
Here, Plaintiff does not directly challenge the Magistrate Judge’s finding in any way.
He does not contend that she erred in legal or factual determinations. Thus, by failing to
file specific objections to the R&R, Plaintiff has waived his right to challenge those findings.
See Zimmerman, 354 F. App’x at 230. Instead, Plaintiff claims that: (1) the Magistrate
Judge was “lied to” by opposing counsel or one of more of the Defendants; and (2) that
there was evidence not presented to the Magistrate Judge to support his claim of “ethnic
bullying,” which was properly and broadly construed as a claim for racial discrimination
pursuant to 42 U.S.C. § 1983.
First, Plaintiff’s assertion that either counsel or the Defendants lied to the Court is
wholly unfounded.

He briefly mentions an individual being mistakenly listed as his

reference when she actually was not. Short of that, Plaintiff has made nothing more than
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blanket assertions about dishonesty. Because Plaintiff has not sufficiently detailed his first
objection, the Court finds that he has waived his right to challenge the Magistrate Judge’s
findings on this ground. Id.
Plaintiff also presents new evidence of “ethnic bullying.” Specifically, Plaintiff claims
that his former co-workers used racial slurs. While the Court does have discretion to
entertain new evidence that was not presented the Magistrate Judge, it need not exercise
that discretion here because this evidence does not fit the theory of the case as litigated
to date.1 See Muhammad v. Close, No. 08-1944, 2009 WL 8755520, at *2 (6th Cir. Apr.
20, 2009); see also United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (holding that
a district court may, but is not required to, consider facts that were not presented to a
magistrate judge); The Glidden Co. v. Kinsella, 386 F. App’x 535, 544 (6th Cir. 2010).
Plaintiff’s § 1983 claim was premised on conduct that occurred after his termination; it was
not based upon discriminatory action he suffered during his course of employment.
Moreover, even if the Court were to consider this new evidence, it is too vague to defeat
Defendant’s Motion to Dismiss. Plaintiff’s second objection must be overruled.
Plaintiff also has filed a Motion to Stay (Doc. # 39), which is identical to his
Objections. Liberally construed, Plaintiff asks the Court to stay the proceedings due to his
current incarceration. However, his request is premised on being given time to present new
evidence that was not presented to the Magistrate Judge – something this Court will not
permit him to do as he points to no evidence that would advance any of his current claims.

1) The Court has reviewed all of Plaintiff’s prior filings – his Complaint, Response to the Motion to
Dismiss, Motion for Partial Summary Judgement and his Reply thereto – and there is absolutely no
reference the use of racial slurs by anyone, let alone his former co-workers. Moreover, Plaintiff has
not provided a name or date for any of this newly-alleged discriminatory conduct.

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Thus, his Motion to Stay is without merit, and would create needless delay in resolving this
matter.
Accordingly,
IT IS ORDERED AND ADJUDGED as follows:
(1)

The Magistrate Judge’s Report and Recommendation (Doc. # 34) is hereby

ADOPTED as the findings of fact and conclusions of law of the Court;
(2)

Plaintiff Bonds’s Objections to the Magistrate Judge’s Report and

Recommendation (Doc. # 38) are OVERRULED;
(3)

Defendants’ Motions to Dismiss (Docs. # 15 & 18) are GRANTED;

(4)

Plaintiff’s Complaint (Doc. # 2) is DISMISSED WITH PREJUDICE as to

Counts 1 and 2, and DISMISSED WITHOUT PREJUDICE as to Count 3;
(5)

Plaintiff’s Motion for Partial Summary Judgment (Doc. # 28) is DENIED AS

MOOT;
(6)

Plaintiff’s Motion to Stay (Doc. # 39) is DENIED; and

(7)

This matter is hereby STRICKEN from the Court’s active docket.

This 21st day of March, 2016

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