Turner v. Welkal et al

Filing 115

REPORT AND RECOMMENDATION: For these reasons, the undersigned believes his prior Report and Recommendation to be properly responsive to the arguments of the DCSO defendants based on the exhibits to plaintiff's complaint, and so again recommend s as follows: That the motion to DISMISS filed on behalf of the DCSO Defendants be GRANTED in part with respect to: (See Order); and, DENIED in part with respect to: (See Order). Signed by Magistrate Judge John S. Bryant on 8/30/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
AUTHOR RAY TURNER

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v.
DAN WEIKAL, ET AL.

To:

No. 3:12-0915
Judge Trauger/Bryant

The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION
By Memorandum and Order entered July 23, 2013 (Docket Entry No. 99), the
Court referred this case back to the undersigned after sustaining the objection of the
Davidson County Sheriff’s Office (“DCSO”) defendants to the undersigned’s prior Report and
Recommendation (“R&R”) (Docket Entry No. 87) for disposition of their motion to dismiss
(Docket Entry No. 44). The Court found that “[i]t is clear from the Report and
Recommendation that the Magistrate Judge did not consider the voluminous exhibits
attached to the pro se Plaintiff’s Complain in ruling on the Motion to Dismiss[;]” that it was
error for the Magistrate Judge to fail to consider the complaint’s exhibits; and, that the
matter would be “returned to the Magistrate Judge for a ruling on the Motion to Dismiss that
takes into account the arguments of these defendants based upon the exhibits attached to the
Complaint.” (Docket Entry No. 99 at 1-3)
Respectfully, the undersigned would submit that his original R&R considered
the arguments of the DCSO defendants based upon the exhibits attached to the complaint for
what they are worth. In that R&R, at pages 9-10, the undersigned noted as follows:
While the DCSO Defendants argue that Plaintiff’s claims are defeated by the

documents which he attached to his complaint, relying in particular on the
unsworn responses to Plaintiff’s grievances as proof that their actions were
justified by the facts and concerns cited therein, such argument is plainly
misplaced at the pleading stage (even if supported by competent proof), where
the allegations supporting Plaintiff’s § 1983 claim are presumed true en route
to a determination of whether he is entitled to offer proof in support of his
claims. In short, it would be premature on this motion to determine as a
matter of law whether defendants’ actions substantially burdened the exercise
of Plaintiff’s religion in light of the justification for those actions referenced in
Defendants’ memorandum; any such determination should be made upon the
proofs at summary judgment.
(Docket Entry No. 87 at 9-10)
As they had done in their memorandum supporting the motion to dismiss, the
DCSO defendants in their objections to the undersigned’s prior R&R attempt to hold plaintiff
to an elevated pleading standard on account of their unsworn responses to his grievances,
which they would have the Court presume to be true. They argue that “plaintiff must allege
sufficient facts to overcome” their responses to the grievances plaintiff attaches to his
complaint (Docket Entry No. 94 at 4) -- not any inconsistent allegations of his own in
attached grievances, but the DCSO defendants’ responses to those grievances. This is simply
not in accordance with the law.
The Sixth Circuit in Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673 (6th Cir.
2011), repeated the longstanding rule that “a court may consider ‘exhibits attached [to the
complaint], public records, items appearing in the record of the case and exhibits attached to
defendant’s motion to dismiss as long as they are referred to in the complaint and are central
to the claims contained therein,’ without converting the motion to one for summary
judgment.” Id. at 680-81 (quoting Bassett v. Nat’l Collegiate Athletic Assn., 528 F.3d 426,
430 (6th Cir. 2008)) . However, the Rondigo court reversed the district court (which had
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found the plaintiff’s pleading sufficient to state a claim) because the exhibits to the complaint
in that case “substantiate[d] undisputed and facially legitimate reasons for the state
defendants’ complained-of actions . . .” Id. at 683 (emphasis supplied). The DCSO
defendants’ citation of Rondigo (Docket Entry No. 45 at 2) is inapposite here, where the
reasons for their actions are in dispute.
The law which applies in this instance, which the undersigned regretfully did
not cite in his prior R&R, is that which describes the level of consideration due statements of
the defendant contained in exhibits to the plaintiff’s complaint when those statements
contradict the allegations of the complaint. For example, in the prisoner grievance context,
the district court in Franklin v. Dudley, 2009 WL 3073930 (E.D. Cal. Sept. 22, 2009), found
as follows:
Defendant is mistaken, however, in assuming that plaintiff has conceded the
factual representations in the response to the grievance by merely attaching it
to his complaint. The attachment of a document as an exhibit to the
complaint does not mean that the plaintiff has adopted as true all statements in
the document. Here, the complaint indicates that the First Level Response
letter is attached simply for the purpose of proving the exhaustion of
administrative remedies. There is nothing in the complaint to suggest that
plaintiff was adopting as true the defendant’s response to the grievance. Thus,
the attachment consists of factual assertions by the defendant, not the plaintiff.
. . . Accordingly, defendant’s argument reduces to a claim that what plaintiff
alleges in his complaint is not true. Defendant may, at a later stage of the
litigation, choose to test the sufficiency of plaintiff’s evidence to prove his
allegations, as well as the sufficiency of plaintiff’s evidence to dispute the
defendant’s factual claim . . . . But this instant motion is brought under Rule
12(b)(6) and is not the procedure for disputing the facts alleged in the
complaint. . . . Although defendant understandably disputes these allegations,
this is not a motion pursuant to Rule 56.
Id. at *3. Outside of the prison context, the Sixth Circuit has opined on this point of law as

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follows in Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008):
As support for their version of the facts, defendants cite a series of exhibits
attached to the complaint. . . . Unsurprisingly, statements by the officers [in
those exhibits] contain facts which, if true, cast doubt on the allegations in the
complaint.
Defendants argue that because a “copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all purposes,” all the facts
stated in the exhibits to the complaint must be assumed to be true for purposes
of the motion to dismiss. Even if we assume that a transcript of an interview
constitutes a “written instrument,” treating a transcript as part of a pleading
does not mean that we assume everything the officers said in those interviews
is true. Where a plaintiff attaches to the complaint a document containing
unilateral statements made by a defendant, where a conflict exists between
those statements and the plaintiff's allegations in the complaint, and where the
attached document does not itself form the basis for the allegations, Rule 10(c)
“does not require a plaintiff to adopt every word within the exhibits as true for
purposes of pleading simply because the documents were attached to the
complaint to support an alleged fact.” See N. Ind. Gun & Outdoor Shows, Inc.
v. City of South Bend, 163 F.3d 449, 454–56 (7th Cir.1998). Rather, we treat
the exhibit as an allegation that the officers made the statements in the
transcripts and we treat that allegation as true. Thus, we accept as true that on
June 24, 2004 Officer Pike said that no officer put weight on Jones's back
during the handcuffing process. Joint Appendix 177. We do not accept as true,
however, that Officer Pike's statement is accurate or true; this is a question of
credibility and weight of the evidence that is not before a court considering a
motion to dismiss.
Id. at 561. See also N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449
(7th Cir. 1998) (holding that, unless the document attached to the complaint is a contract or
other agreement between the parties, “[t]o require district courts to accept unilateral
statements in documents written by a defendant as true simply because they were attached
as exhibits to a plaintiff's complaint would be contrary to the concept of notice pleading. It
would enable parties to hide behind untested, self-serving assertions.”).

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In the case at bar, in the instance where an exhibit to the plaintiff’s complaint
was self-authenticating -- photocopies of the inmate handbook -- and contrary to an
allegation of the complaint as to what Davidson County Sheriff’s Department policy was, the
undersigned found that dismissal of that claim was warranted. (Docket Entry No. 87 at 12)
However, in all other instances where the DCSO defendants cited to the exhibits to
plaintiff’s complaint, they were offering their own responses to grievances as presenting the
truth of the matter of the lawful motivations for their actions -- concerns for safety, security,
and maintaining order chief among them -- as opposed to the unlawful motivations which
plaintiff alleged in his complaint. While this case may ultimately be dismissed upon the
application of the Turner v. Safley1 factors on summary judgment, the undersigned stands on
his prior recommendation that the disposition the DCSO defendants seek is improper at the
pleading stage.
For these reasons, the undersigned believes his prior Report and
Recommendation to be properly responsive to the arguments of the DCSO defendants based
on the exhibits to plaintiff’s complaint, and so again recommends as follows:
That the motion to DISMISS filed on behalf of the DCSO Defendants be GRANTED
in part with respect to:
• Any RLUIPA claim;
• Plaintiff’s claims against Defendants Dan Weikal, Granvisse Earl Young, Henry
Lehman, Lynn Norris, Tony Wilkes, Pam Hale, K. Cox, S. Gray, and Thomas;
and, DENIED in part with respect to:

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482 U.S. 78, 84-91 (1987).

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• Defendant’s affirmative defense of qualified immunity, without prejudice to
Defendants raising the defense at a later time;
• Plaintiff’s § 1983 claims; and
• Plaintiff’s claims against Defendants Byron Grizzle, Jonathan Craft, Joshua Stagg,
Joshua Bone, and Clarence Crawley.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).
ENTERED this 30th day of August, 2013.
s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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