Downs v. Shinseki

Filing 25

MEMORANDUM AND ORDER: The 22 Report and Recommendation therefore ACCEPTED and made the findings of fact and conclusions of law of this court. For the reasons expressed, it is hereby ORDERED that the defendant's 18 Motion to Dismiss is DENIED IN PART. Only the plaintiff's claims under the ADA are DISMISSED WITH PREJUDICE. It is hereby ORDERED that the defendant shall respond to the second 24 Amended Complaint by May 6, 2011. This case is returned to the Magistrate Judge for further handling under the original referral Order. Signed by District Judge Aleta A. Trauger on 04/11/2011. (ab)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
STEPHEN A. DOWNS, SR.,

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Plaintiff,
v.
ERIC K. SHINSEKI, Secretary, Department of
Veteran Affairs,
Defendant.

Civil No. 3:10-0661
Judge Trauger

MEMORANDUM and ORDER
On March 14, 2011, the Magistrate Judge issued a Report and Recommendation (Docket
No. 22), to which the pro se plaintiff has filed timely Objections (Docket No. 23). Because this
ruling relates to a dispositive motion, this court must review de novo any portion of the Report
and Recommendation to which a specific objection is made. Rule 72(b), FED. R. CIV. P.; 28
U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City
of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993).
The Magistrate Judge recommended that the defendant’s Motion to Dismiss be denied as
to the plaintiff’s claims under 42 U.S.C. § 1981, the ADEA, Title VII and the Rehabilitation Act,
but that all other claims be dismissed. The plaintiff misinterprets the Magistrate Judge’s Report
and Recommendation by stating that he is not abandoning “his retaliation claims” and therefore
objects to the dismissal of any retaliation claims “already pleaded.” (Docket No. 23 at 2)
Claims
for retaliation under the four causes of action allowed to go forward would be included within
claims asserted under those four causes of action and, therefore, are not dismissed under the
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Magistrate Judge’s recommended ruling. The plaintiff does not object to the Magistrate Judge’s
perception that the plaintiff has abandoned his claim under the ADA, and that is further
reinforced by the plaintiff’s filing of a proposed second Amended Complaint (Docket No. 24),
which this court interprets as not including a claim under the ADA.
The plaintiff’s Objections are OVERRULED. The Report and Recommendation is
therefore ACCEPTED and made the findings of fact and conclusions of law of this court. For
the reasons expressed therein and herein, it is hereby ORDERED that the defendant’s Motion to
Dismiss (Docket No. 18) is DENIED IN PART. Only the plaintiff’s claims under the ADA are
DISMISSED WITH PREJUDICE.
Even though the plaintiff’s proposed second Amended Complaint (Docket No. 24) would
require a motion to amend, in the interest of moving this case forward, and because the second
Amended Complaint clarifies the plaintiff’s claims, the court will allow it to be the prevailing
pleading at this point. It is hereby ORDERED that the defendant shall respond to the second
Amended Complaint (Docket No. 24) by May 6, 2011. This case is returned to the Magistrate
Judge for further handling under the original referral Order.
It is so ORDERED.
Enter this 11th day of April 2011.

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ALETA A. TRAUGER
U.S. District Judge

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