Maynard v. Hale et al

Filing 32

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned RECOMMENDS the Motion to Dismiss the Amended Complaint filed by Defendants be GRANTED and Plaintiffs action against them be DISMISSED with prejudice. Signed by Magistrate Judge Joe Brown on 8/14/12. (xc:Pro se party by regular and certified mail.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESEE
NASHVILLE DIVISION
DUSTON DEAN MAYNARD,

)
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Plaintiff,
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v.
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PAM HALE, BRUCE HELMS,
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JESSIE OLIVER, BARBARA JACKSON, )
LYNETTE GAVIN and PATRICIA
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PATTERSON,
)
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Defendants.
)

To:

Case No. 3:11-cv-1233
Judge Sharp/Brown

The Honorable Kevin H. Sharp

REPORT AND RECOMMENDATION
Currently pending before the Magistrate Judge is Defendants Pam Hale, Bruce Helms,
Jesse Oliver, Barbara Jackson, Lynette Gavin and Patricia Patterson’s (“Defendants”) Motion to
Dismiss the Amended Complaint. (Docket Entry 30). Defendants have filed a Memorandum in
support of their Motion. (Docket Entry 31). Defendants filed this Motion on July 12, 2012.
(Docket Entry 30). Plaintiff Duston Dean Maynard (“Plaintiff”) has not filed a Response. For
the reasons set forth below, the Magistrate Judge RECOMMENDS Defendant’s Motion be
GRANTED and that Plaintiff’s claims against Defendants be DISMISSED with prejudice for
failure to state a claim upon which relief can be granted.
I. INTRODUCTION
The Plaintiff, an inmate of the Tennessee Department of Corrections housed at the Hill

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Detention Center (“HDC”), brings this action under 42 U.S.C. § 1983 and 42 U.S.C.§ 2000cc-1
et seq., alleging a violation of his religious freedom due to Defendants’ interference with his
ability to fast during Ramadan. (Docket Entry 1, 29). Plaintiff is seeking punitive damages of
$250,000 and an order that Defendants must make preparations for Ramadan a week in advance.
Id.
II. BACKGROUND
Plaintiff filed this action pro se in the Middle District of Tennessee on December 29,
2011. (Docket Entry 1). Defendants filed a Motion to Dismiss and memorandum in support of
this motion on March 23, 2012. (Docket Entry 12, 13). On April 17, 2012, the Magistrate Judge
issued a Report and Recommendation recommending the Defendants’ motion be granted and the
case be dismissed with prejudice. (Docket Entry 20). On June 1, 2012, the District Judge
ordered the case be dismissed without prejudice. (Docket Entry 25). The District Judge ordered
Plaintiff to file an amended complaint setting forth specific allegations as to each Defendant
relating to his or her personal involvement in the events giving rise to the lawsuit. Id. Plaintiff
filed an amended complaint on June 25, 2012. (Docket Entry 29). On July 12, 2012, Defendants
filed this motion to dismiss and supporting memorandum. (Docket 30, 31).
As of the date of this Report and Recommendation, Plaintiff has filed no response to
Defendants’ motion. Under Local Rule 7.01(b), a response is due no later than fourteen (14)
days after the service of a motion. The failure to file a timely response shall indicate there is no
opposition to the motion. Even though Plaintiff has filed no response to the Defendants’ Motion
to Dismiss, the Magistrate Judge will nevertheless review the matter for legal sufficiency.
The plaintiff is a Muslim inmate housed in HDC. (Docket 1, 29, 31). Prior to the

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beginning of Ramadan, Plaintiff did not sign up to be provided pre-dawn and evening Ramadan
meals. Plaintiff alleges this is because there were no preparations made for Ramadan by HDC
staff. (Docket Entry 1, 29). When he inquired about Ramadan preparations on the morning of
August 1, 2011, Plaintiff was given a flier from another correctional facility that said inmates
should sign up with their case managers in order to receive Ramadan meals. (Docket Entry 1-1).
Later on August 1, Plaintiff spoke to Defendant Helms, who stated he had placed Plaintiff on the
HDC Ramadan list. (Docket Entry 1, 29). On the evening of August 1, and sporadically for
several days afterward, Plaintiff was told by various HDC staff that he was not on the Ramadan
list. At those times Plaintiff did not receive a Ramadan meal. Plaintiff filed a grievance on
August 1, 2011 and on August 3, 2011. (Docket Entry 1-1). Defendant Hale responded to these
grievances on August 8, 2011. She stated that Plaintiff was on the Ramadan list. Id. Overall,
Plaintiff missed pre-dawn Ramadan meals on four days: August 1, 2, 4, and 5. Plaintiff missed
an evening Ramadan meal on two days: August 2 and 3. Plaintiff received inadequate meals on
three days: August 7, 8, and 15 (either receiving an insufficient portion or a cuisine he did not
like). Plaintiff was still able to fast during the experience due to items he had ordered from the
commissary. (Docket Entry 29).
Based on the above facts, Plaintiff alleges that the Defendants violated his religious
freedom under 42 U.S.C. § 1983 and 42 U.S.C.§ 2000cc-1 et seq. by interfering with his ability
to fast during Ramadan. (Docket Entry 1, 29). He alleges that based on the Defendants’ actions,
he “wasn’t allowed to participate in being Muslim several times.” (Docket Entry 1-1).
In his Amended Complaint (which incorporates his initial Complaint by reference),
Plaintiff alleges that Defendant Hale “is the jail administrator and she is responsible for making

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sure staff is (sic) doing their jobs correctly.” (Docket Entry 29). Though he does not allege
specific wrongdoings of any staff members besides the named co-Defendants, it can be inferred
that Defendant alleges staff did not properly maintain the Ramadan list during the days when he
was told he was not on the Ramadan list, and staff did not properly prepare Ramadan meals on
the three days he received insufficient meals. (Docket Entry 1, 29). Moreover, Plaintiff states he
filed a grievance on August 2, 2011, complaining that he was not receiving his pre-dawn and
evening Ramadan meals. (Docket Entry 1). Defendant Hale responded on August 8, 2011
saying he was on the list for Ramadan. Id.
Plaintiff further alleges that Defendant Helms “is the Chaplain and is responsible for
religious activities and events. Chaplain Helms has made preparations for Ramadhan1 every
other year that he has worked at Hill Detention Center. He is responsible for Ramadhan.” Id. In
his initial complaint, Plaintiff alleges he spoke to Chaplain Helms on August 1, 2011 concerning
his missed pre-dawn Ramadan meal. (Docket Entry 1). Chaplain Helms told Plaintiff he had
placed Plaintiff on the Ramadan list. Chaplain Helms also told Plaintiff that if he “had any
problems to let him know.” On August 2, 2011, Plaintiff received an evening Ramadan meal
with a tag that stated “Ramadan per Chaplain Helms.” (Docket Entry 1-1). There is no
indication in Plaintiff’s initial or amended complaint that Plaintiff spoke to Chaplain Helms after
August 1, 2011.
Plaintiff also alleges that Defendants Oliver, Jackson, Gavin and Patterson are case
managers who “are responsible for putting up a list for Muslims to sign up to participate in

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In his initial complaint, Plaintiff refers to both “Ramadan” and “Ramadhan.” (Docket
Entry 1, 29). This Report and Recommendation uses Ramadan throughout for consistency.
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Ramadhan.” Plaintiff refers to a memo an HDC correction officer gave him from SCC (a
different correctional facility) that states that inmates should sign up for Ramadan with their
Case Manager. (Docket Entry 1-1). Plaintiff states this memo “clearly shows how the Case
Managers are responsible for putting up a list.” (Docket Entry 29).
III. LEGAL DISCUSSION
A. Standard of Review for Motion to Dismiss
An action may be dismissed if the complaint fails to state a claim upon which relief can
be granted. Fed. R. Civ. P. 12(b)(6). In deciding a Rule 12(b)(6) motion, a district court must
view the complaint in the light most favorable to the plaintiff and take all well-pleaded factual
allegations as true, as the moving party has the burden of proving that no claim exists. Erickson
v. Pardus, 550 U.S. 89 (2007). Fed. R. Civ. P. 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief. Specific facts are not necessary; the
statement need only give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, although a
complaint is to be liberally construed, the District Court need not accept a “bare assertion or
legal conclusions.” Id. See also Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). In
other words, a court is not required to accept as true a “legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). When viewing the complaint under
the above standards, to survive a motion to dismiss, a complaint must contain (1) “enough facts
to state a claim to relief that is plausible,” (2) more than “a formulaic recitation of a cause of
action’s elements,” and (3) allegations that suggest a “right to relief above a speculative level.”
Twombly, 550 U.S. at 555-56.

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Plaintiffs are proceeding pro se. Pro se complaints are “liberally construed and held to
less stringent standards than the formal pleadings prepared by attorneys.” Williams v. Curtain,
631 F.3d 380, 383 (6th Cir. 2011). However, pro se litigants must still adhere to basic pleading
standards. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Fed. R. Civ. P. 8(f) mandates that
pleadings must be construed so as to do justice.
B. Analysis
1. Plaintiff’s 42 U.S.C. § 1983 claim
To prevail on a § 1983 claim, Plaintiff must show that a person acting under the color of
state law deprived him of a right secured by the Constitution or the laws of the United States.
Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Plaintiff alleges a First
Amendment violation of his right to exercise his religion freely. Prisoners are entitled under the
First Amendment to a reasonable opportunity to exercise their religion. Hudson v. Palmer, 468
U.S. 517, 523 (1984). To establish that this right has been violated, a plaintiff must show that:
(1) the belief or practice he seeks to protect is religious within his own "scheme of things," (2)
his belief is sincerely held, and (3) the defendant's behavior infringes upon this practice or belief.
Kent v. Johnson, 821 F.2d 1220, 1224-25 (6th Cir. 1987). In viewing Plaintiff’s complaint in the
light most favorable to him, the court must take as true Plaintiff’s allegations that: (1) he is
Muslim and, (2) this belief is sincerely held. However, even when viewed in the light most
favorable to him, Plaintiff’s allegations do not show that any of the named Defendants infringed
upon his religious practice. As such, his § 1983 claim fails.
Plaintiff alleges that Defendant Hale is “responsible for making sure staff is (sic) doing
their jobs correctly.” Plaintiff, however, alleges no specific incidents when Defendant Hale was

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personally involved in any activities that denied him of his Constitutional rights. Defendant
Hale timely replied to Plaintiff’s grievance within a week, assuring Plaintiff that he was on the
list for Ramadan. After Defendant Hale’s response on August 8, Plaintiff received a pre-dawn
and evening Ramadan meal each day during Ramadan. Under § 1983, a state official is only
personally liable for damages based “on their own unconstitutional behavior.” Leach v. Shelby
County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). Allegations of respondeat superior cannot
sustain a § 1983 claim. A § 1983 claim can only succeed if Plaintiff can show that “the
supervisor encouraged the specific incident of misconduct or in some other way directly
participated in it.” Cardinal v. Metrish, 564 F.3d 794, 802-03 (6th Cir. 2009). Plaintiff must
show that Defendant Hale “at least implicitly authorized, approved or knowingly acquiesced in
the unconstitutional conduct.” Id. at 803. Plaintiff alleges no facts that allows for this inference;
he merely alleges that Defendant Hale has a supervisory position. As such, his § 1983 claim
against Defendant Hale fails and should be dismissed with prejudice.
Plaintiff alleges that Defendant Helms “is responsible for religious activities” and he “is
responsible for Ramadhan.” (Docket Entry 1). He alleges that when he did not receive his predawn Ramadan meal on August 1, 2011, he spoke to Chaplain Helms. Chaplain Helms told
Plaintiff that he placed him on the Ramadan list. Plaintiff then received an evening meal tagged
“Ramadan per Chaplain Helms.” Id. There is no indication from Plaintiff’s initial or amended
complaints that when he missed subsequent Ramadan meals that this was because of any action
Chaplain Helms was personally involved in or even that Chaplain Helms was made aware that a
problem continued to exist. Thus, Plaintiff has not alleged that after the morning of August 1,
2011, Chaplain Helms ever either prevented his receipt of Ramadan meals or his being placed on

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the Ramadan list.
At most, accepting Plaintiff’s allegations as true in the light most favorable to him,
Chaplain Helms may have been responsible for Plaintiff missing his pre-dawn meal on August 1,
2011. The Sixth Circuit has previously held that "prison administrators must provide an
adequate diet without violating the inmate's religious dietary restrictions." Alexander v. Carrick,
31 F. App'x 176, 179 (6th Cir. 2002). However, "if the prisoner's diet . . . is sufficient to sustain
the prisoner in good health, no constitutional right has been violated." Id. Even if Chaplain
Helms is responsible for Plaintiff missing one pre-dawn meal, missing one meal did not affect
Plaintiff’s good health or his ability to practice his religion. Moreover, a short-term and sporadic
disruption of his Ramadan eating habits does not, under these circumstances, allege a substantial
burden on his religious freedom. See Kennedy v. Boardman, 91 F.3d 30, 33 (7th Cir. 1996).
Plaintiff does not show that the Defendant's behavior infringed upon his religious practice or
belief. Kent, 821 F.2d at 1224-25. As such, Plaintiff’s § 1983 claim against Defendant Helms
fails and should be dismissed with prejudice.
Plaintiff alleges that Defendants Oliver, Jackson, Gavin and Patterson are case managers
who “are responsible for putting up a list for Muslims to sign up to participate in Ramadhan.”
(Docket Entry 29). Plaintiff does not allege that he spoke with any of above Case Managers
before Ramadan began about being placed on a Ramadan list. Moreover, he does not allege that
he spoke with any of the Case Managers concerning his difficulties receiving Ramadan meals
once Ramadan had begun. As such, he does not allege that any Case Manager directly failed to
place him on a Ramadan list, ordered someone to not provide him with a Ramadan meal, or had
any direct role in the violation of his rights. (Docket Entry 31). The Minimum Standards for

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Local Correctional Facilities § 1400-1-.10 states that “all reasonable efforts shall be made to
accommodate the dietary needs of religion.” Tenn. Corrs. Ins. Corr. Facilities Inspection (Nov.
2004). Tennessee Department of Corrections Policy 118.01 (Jan. 1, 2011) states: “Inmates may
select regular, pork-free, or meat-free meals from the standard menus to meet their personal or
religious preferences.” In addition, if additional religious requests are necessary, 118.01
instructs inmates to submit their requests in writing to the Chaplain using the Inmate Inquiry
Information Request CR-3118 for an individual request or Request for Group Religious
Accommodations CR-3734 for group requests. There is no official Tennessee Department of
Corrections policy concerning posting a flier for Ramadan dietary requests. Since Defendants
Oliver, Jackson, Gavin and Patterson have no duty to post a list, and Plaintiff did not contact
them concerning being placed on a list before or after the beginning of Ramadan, Plaintiff fails
to show that any Case Manager personally infringed on his ability to practice his religion. As
such, the § 1983 claims against Defendants Oliver, Jackson, Gavin and Patterson fail and should
be dismissed with prejudice.
Even without consideration of the issue of qualified immunity, Plaintiff’s § 1983 claims
against all Defendants should be dismissed with prejudice. However, as will be shown below,
Defendants are entitled to qualified immunity.
2. Plaintiff’s 42 U.S.C. § 2000cc-1 et seq. claim (RLUIPA)
Under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),
"[n]o government shall impose a substantial burden on the religious exercise of a person residing
in or confined to an institution, . . . even if the burden results from a rule of general
applicability," unless the government can show (1) that the imposition of the burden "is in

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furtherance of a compelling governmental interest," and (2) the burden furthers that interest by
use of the "least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA thus requires an
inmate to show that his or her religious exercise was substantially burdened. See Cutter v.
Wilkinson, 423 F.3d 579, 583 (6th Cir. 2005). An action will be classified as a substantial
burden "when that action forced an individual to choose between 'following the precepts of her
religion and forfeiting benefits' or when the action in question placed 'substantial pressure on an
adherent to modify his behavior and to violate his beliefs.'" Living Water Church of God v.
Charter Twp. of Meridian, 258 F. App'x 729, 734 (6th Cir. 2007). A mere “inconvenience on
religious exercise” does not meet the level of substantial burden. Reischaurer v. Jones, 2007
WL 232625, *7 (W.D. Mich. Jan. 29, 2009).
Plaintiff does not show that his ability to practice his religion was substantially burdened.
Plaintiff states that although it was a “horrible experience,” he was still able to fast each day
during Ramadan because he had some food items from the commissary. (Docket Entry 29). He
says he did not have food items “every day but [he] managed.” Id. Plaintiff alleges that he
missed both pre-dawn and evening meals on only one day, August 1, 2011. (Docket Entry 1,
29). On four days, Plaintiff alleges he was provided with only one meal per day. Id. The Sixth
Circuit has previously held "prison administrators must provide an adequate diet without
violating the inmate's religious dietary restrictions." Alexander, 31 F. App'x at 179. "If the
prisoner's diet . . . is sufficient to sustain the prisoner in good health, no constitutional right has
been violated." Id. The Sixth Circuit has also previously held that one meal a was sufficient to
maintain an inmate’s normal health for a short interval. Cunningham v. Jones, 667 F.2d 565,
566 (6th Cir. 1982). Plaintiff makes no allegation that he suffered poor health due to being

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denied Ramadan meals. Moreover, he admits he was able to practice his religion. (Docket Entry
29). Though the administrative bungling was an inconvenience on his ability to practice his
religion, it did not substantially burden him. See Reischauerer, 2007 WL at *7. Because
Plaintiff was able to practice his religion without substantial burden, his claim under 42 U.S.C. §
2000cc et seq. fails and should be dismissed with prejudice. In the alternative, as will be shown,
Defendants are entitled to qualified immunity.
3. Defendants’ qualified immunity defense against § 1983 and RLUIPA claims
A two-part test is used to determined whether qualified immunity applies: "(1) whether,
considering the allegations in a light most favorable to the party injured, a constitutional right
has been violated, and (2) whether that right was clearly established." Estate of Carter v. City of
Detroit, 408 F.3d 305, 310 (6th Cir. 2005). For a right to be "clearly established," the "contours
of the right must be sufficiently clear that a reasonable [government official] would understand
that what he is doing violates that right." Harris v. City of Circleville, 583 F.3d 356, 366-67 (6th
Cir. 2009).
Courts are "free to consider [the two-part test] in whatever order is appropriate in light of
the issues before us," and therefore need not decide whether there was a constitutional violation
if it determines that an official in the Defendant’s position would reasonably believe that their
actions were not in contravention to Plaintiff’s constitutional rights. See Jones v. Byrnes, 585
F.3d 971, 975 (6th Cir. 2009). In the present case, even if a constitutional violation has
occurred, under a defense of qualified immunity, Defendants would be shielded from personal
liability if the constitutional right was not clearly established. Qualified immunity ordinarily
applies unless it is obvious that no reasonably competent official would have concluded that the

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actions taken were unlawful. Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002).
Qualified immunity "'gives ample room for mistaken judgments by protecting 'all but the plainly
incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229,
(1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, (1986)). The plaintiff bears the
burden of showing that defendants are not entitled to qualified immunity. Untalan v. City of
Lorain, 430 F.3d 312, 314 (6th Cir. 2005).
Defendant Hale is entitled to qualified immunity. It was not clearly established at the
time of the incidents that any of Defendant Hale’s conduct could amount to a § 1983 or RLUIPA
violation. Defendant Hale timely replied to Plaintiff’s grievance. (Docket Entry 1-1). Even if
Plaintiff believed Defendant Hale’s response was inadequate, this is not a Constitutional claim.
See Rogers v. Parker, 2008 WL 4138175 (W.D. Tenn. 2008) (“[r]uling against a prisoner on an
administrative complaint does not cause or contribute to the Constitutional violation”).
Moreover, though Defendant Hale was in a supervisory position, Plaintiff does not allege that
she explicitly or implicitly “authorized , approved or knowingly acquiesced in the
unconstitutional conduct.” Cardinal, 564 F.3d at 802-03. As such, Defendant Hale did not act
unreasonably or knowingly in violation of Plaintiff’s rights and is entitled to qualified immunity.
See Colvin v. Caruso, 605 F.3d 282, 291 (6th Cir. 2010).
Defendant Helms is also entitled to qualified immunity. It was not clearly established at
the time of the incidents that any of Defendants Helm’s conduct could amount to a § 1983 or
RLUIPA violation. At most, Defendant Helms is responsible for Plaintiff missing one Ramadan
meal. Missing one meal does not does not create a Constitutional violation. See Alexander, 31
F.App’x at 179; Kennedy, 91 F.3d at 33. After meeting with Plaintiff, Defendant Helms placed

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Plaintiff on the Ramadan list, evidenced by the tag reading “Ramadan per Chaplain Helms”
found on Plaintiff’s food tray on August 2, 2011. After this initial meeting, Plaintiff pleads no
facts that would create a plausible inference that Defendant Helms was personally involved in
denying Plaintiff Ramadan meals. As such, Defendant Helms did not act unreasonably or
knowingly in violation of Plaintiff’s rights and is entitled to qualified immunity. See Colvin, 605
at 291.
Defendants Oliver, Jackson, Gavin and Patterson are all entitled to qualified immunity.
Given that no official Tennessee Department of Correction policy exists that requires case
managers to post a flier for Ramadan accommodations, it was not clearly established at the time
of the incidents that Defendants’ alleged failure to put up a flier would subject them to Section
1983 or RLUIPA liability.
4. Plaintiff’s failure to exhaust administrative remedies
Plaintiff’s claim should also be dismissed due to his failure to exhaust all possible
administrative remedies. The Prison Litigation Reform Act of 1995 requires prisoners to exhaust
all available administrative remedies before filing federal lawsuits challenging prison conditions.
See 42 U.S.C. § 1997e(a); Wyatt v. Leonard, 193 F.3d 876, 877 (6th Cir. 1999); Wright v.
Morris, 111 F.3d 414, 417 (6th Cir. 1997). The prisoner must allege and demonstrate that he has
exhausted all available administrative remedies and should attach the decision containing the
administrative disposition of his grievance to the complaint. Wyatt, 193 F.3d at 878; Brown v.
Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). The district court may not adjudicate an
unexhausted claim and must enforce the requirement sua sponte if not raised by the defendant.
Brown, 139 F.3d at 1104.

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A Tennessee prisoner's administrative remedies are set forth in Tennessee Department of
Corrections Policy 501.01 (Sep. 15, 2010), which lays out a three-level grievance procedure. At
the first level, the prisoner generally is required to file a grievance with the grievance committee
chairperson within seven calendar days of the disputed occurrence. The chairperson reviews the
grievance and obtains a written response from the supervisor of the prison employee or
department that is involved. The chairperson then prepares a written response to the grievance
that is provided to the inmate. If the prisoner is dissatisfied with the response at the first level,
the prisoner may continue to pursue the grievance through two additional levels. The second
level is an appeal to the warden, and the third level is an appeal to the Assistant Commissioner of
Institutional Support Services and Programs.
Plaintiff alleges that he filed two grievances. One grievance was filed on August 2, 2011.
(Docket Entry 1-1). One grievance was filed on August 3, 2011. Plaintiff received a response
from Defendant Hale on August 8, 2011. Id. Plaintiff attached both grievances and Defendant
Hale’s response to his initial complaint. Id. Plaintiff does not allege nor attach any documents
that would show that he filed an appeal to the warden, or an appeal to the Assistant
Commissioner of Institutional Support Services and Programs. Thus, Plaintiff has failed to show
that he exhausted his administrative remedies. Under the Prisoner Litigation Reform Act of
1995, Plaintiff’s complaint should be dismissed for lack of exhaustion.
IV. CONCLUSION
For the reasons stated above, the undersigned RECOMMENDS the Motion to Dismiss
the Amended Complaint filed by Defendants be GRANTED and Plaintiff’s action against them
be DISMISSED with prejudice.

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Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days from receipt of this Report and Recommendation within which to file with the District
Court any written objections to the proposed findings and recommendations made herein. Any
party opposing shall have fourteen (14) days from receipt of any objections filed regarding this
Report within which to file a response to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation may constitute a waiver
of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140, reh’g denied, 474 U.S.
1111 (1986).
Entered this 14th day of August, 2012.

____________________________________
JOE B. BROWN
U.S. MAGISTRATE JUDGE

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