Mendez v. FMC Rochester et al

Filing 16

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION; Plaintiff's Objection 11 is OVERRULED, and the Magistrate Judges Report & Recommendation 8 is ADOPTED. Plaintiff's Motion to Proceed In Forma Pauperis 3 is DENIED. Plaintiffs Complaint 1 is DISMISSED with prejudice. (Written Opinion) Signed by Chief Judge John R. Tunheim on 12/29/2017. (JMK) cc: Raphael Mendez. Modified on 12/29/2017 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-3768 (JRT/SER)

RAPHAEL MENDEZ,
Plaintiff,

MEMORANDUM OPINION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
FMC ROCHESTER, ACTING WARDEN,
and SIS COMMUNICATION
MONITORING SYSTEM,

Defendants.
Raphael Mendez, No. 01649-094, FMC Rochester, PMB 4000, Unit 1/2,
Rochester, MN 55903, pro se.
Plaintiff Raphael Mendez has objected to a Report and Recommendation (“R&R”)
issued by United States Magistrate Judge Steven E. Rau recommending that Mendez’s
application to proceed in forma pauperis (“IFP”) be denied and his complaint be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which
relief may be granted. After an independent review of the files, records, and proceedings,
the Court will conclude that Mendez’s complaint fails to state a claim and will adopt the
R&R, overrule Mendez’s objection, and dismiss the complaint.

BACKGROUND
Mendez is an inmate at FMC Rochester. (Compl. ¶ I, Aug. 16, 2017, Docket No.
1.) He claims that the defendants have retaliated against him by preventing him from

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communicating with his family and brings this action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Id. ¶ IV.)
On September 27, 2017, Magistrate Judge Rau issued an R&R recommending that
Mendez’s IFP application be denied and his complaint be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted.
(R&R at 3-6, Sept. 27, 2017, Docket No. 8.) No objections had been filed by the October
11, 2017 deadline. On October 12, 2017, this Court entered an Order adopting the R&R.
(Order, Oct. 12, 2017, Docket No. 9.) The day after the filing of that Order, Mendez filed
an objection to the R&R. (Pl.’s Obj., Oct. 13, 2017, Docket No. 11.) In light of
Mendez’s objection, the Court stayed its October 12 Order so that the Court could
consider Mendez’s objection. (Order, Nov. 1, 2017, Docket No. 15.)

DISCUSSION
After a magistrate judge files an R&R, a party may file “specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections should specify the portions of the
magistrate judge’s report and recommendation to which objections are made and provide
a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2
(D. Minn. Sept. 28, 2008).

For dispositive matters, the Court reviews de novo a

“properly objected to” portion of an R&R. Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR
72.2(b)(3). “Objections which are not specific but merely repeat arguments presented to
and considered by a magistrate judge are not entitled to de novo review, but rather are
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reviewed for clear error.” Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012,
1017 (D. Minn. 2015).
In determining whether a complaint states a claim on which relief may be granted,
the Court considers all facts alleged in the complaint as true to determine if the complaint
seeks “relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A complaint
must provide more than “‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Although the Court accepts the complaint’s factual
allegations as true, it is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
Generally, Mendez’s complaint alleges that a group of defendants “retaliated
against him by cutting off a phone call with his brother.” (R&R at 3.) But Mendez’s
complaint makes only vague, conclusory allegations that he has been the subject of
retaliation. (See Compl. ¶ II.) Mendez states only that he “believe[s] the SIS monitoring
Dept. has [r]igged” the phone. (Id. ¶ IV.5.) Without more, Mendez’s complaint fails to
sufficiently allege unlawful retaliation.
Mendez’s objection to the R&R does not address the reasons that the Magistrate
Judge gave for recommending that the Court deny his IFP application and dismiss his
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complaint. Rather, Mendez objects to particular words and phrases in the R&R. For
example, Mendez objects to the Magistrate Judge’s characterization of the named
defendants in this action as “confusing.” (Obj. at 4; see R&R at 1 n.1.) Mendez states
that officials at FMC Rochester did not provide him with the names of the individuals
that Mendez sought to name in this action. (Obj. at 5.) Although Mendez is not required
to use the correct legal names of the defendants in an initial complaint, see Bivens, 403
U.S. at 388, he is required to plead facts that plausibly state a claim for relief. Fed. R.
Civ. P. 8, 12(b)(6); Iqbal, 556 U.S. at 678.
Mendez also objects to the Magistrate Judge’s use of the phrase “scorched earth
tactics” to describe previous lawsuits Mendez has filed in various federal courts. (Obj. at
4; see R&R at 3.) Mendez’s objection then proceeds to recount many of the allegations
in his previous lawsuits. (Obj. at 4-8.) Mendez also objects to the R&R on the ground
that the Court is biased against him. (Obj. at 9-14.) These objections do not persuade the
Court that Mendez’s complaint states a claim on which relief may be granted. The Court
will therefore overrule Mendez’s objection, adopt the R&R, deny Mendez’s motion, and
dismiss his complaint.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Plaintiff’s Objection [Docket No. 11] is OVERRULED, and the

Magistrate Judge’s Report & Recommendation [Docket No. 8] is ADOPTED.
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2.

Plaintiff’s Motion to Proceed In Forma Pauperis [Docket No. 3] is

DENIED.
3.

Plaintiff’s Complaint [Docket No. 1] is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: December 29, 2017
at Minneapolis, Minnesota.

___________s/John R. Tunheim________
JOHN R. TUNHEIM
Chief Judge
United States District Court

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