Woodruff v. Melton et al

Filing 74

REPORT AND RECOMMENDATION re 52 MOTION to Dismiss. For the reasons stated above, the Magistrate Judge recommends that the motion to dismiss be GRANTED and that all claims against Defendant McCloud be dismissed with prejudice. The Magistrate Judge further recommends that any appeal from the dismissal of this Defendant not be recommended as taken in good faith. Signed by Magistrate Judge Joe Brown on 8/12/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
VINCENT D. WOODRUFF,
Plaintiff
v.
W.B. MELTON, SHANNON HARVEY,
JOHN McCLOUD, and DEBBIE DECK,
Defendants
TO:

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No. 2:13-0085
Judge Sharp/Brown
Jury Demand

THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Presently pending is a motion to dismiss by the Defendant

John McCloud (Docket Entry 52), which is supported by a memorandum
of law (Docket Entry 53).
The scheduling order in this case (Docket Entry 58)
provided that any response to a dispositive motion would be due 28
days after service of the motion.
In this case the motion to dismiss was served on May 25,
2014. The Plaintiff has not filed a response to the motion, nor has
the Plaintiff asked for additional time within which to conduct
additional discovery, in accordance with Federal Rule of Civil
Procedure 56.
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the motion to dismiss the Defendant John McCloud be
granted and the claims against him dismissed with prejudice.

BACKGROUND
The complaint Docket Entry 1 alleges that Mr. McCloud was
a jail administrator of the Overton County Jail. In his complaint,
filed on September 20, 2013, Plaintiff alleges in Section IV,
Statement of Facts, that some time in or near the month of November
2010 a prisoner was found to have committed suicide and Plaintiff
requested permission to go to the law library to look up state
rules concerning inmate housing and other relief. He alleged that
after several weeks of no answer he filed a grievance for access to
the law library, which was not answered. He further alleges in the
same

paragraph

that

Defendant

McCloud

was

replaced

as

jail

administrator by Defendant Harvey sometime in February 2011.
Defendant McCloud alleges that all claims against him are
barred by the one-year statute of limitations set forth in T.C.A.
§ 28-3-104(a)(3) and that the Tennessee statute is used as the
statute of limitation for claims in this case under 42 U.S.C. §
1983.
Defendant

McCloud

is

mentioned

only

briefly

in

the

complaint. The Plaintiff alleges that McCloud left his employment
with Overton Jail in February 2011. His complaint was not filed
until September 20, 2013, more than two years after any claim
against Defendant McCloud could have occurred.
The Plaintiff has filed nothing in opposition to this
motion, nor has he requested permission to amend his complaint to

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allege additional details concerning McCloud or to change the dates
that he alleged McCloud left employment as the jail administrator.
LEGAL DISCUSSION
The Magistrate Judge believes that Defendant McCloud’s
memorandum of law is well-taken and correctly cites the law in this
matter. The Plaintiff’s claims are barred by the one-year statute
of limitations and, accordingly, Defendant McCloud is entitled to
dismissal of all claims against him with prejudice.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion to dismiss be GRANTED and that all
claims against Defendant McCloud be dismissed with prejudice. The
Magistrate Judge further recommends that any appeal from the
dismissal of this Defendant not be recommended as taken in good
faith.1
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further

1

The case remains under a scheduling order (Docket Entry 58), which
governs the remaining Defendants.

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appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTERED this 12th day of August, 2014.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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