Turner v. Welkal et al

Filing 137

ORDER: (1) The plaintiff's motion to amend his complaint (ECF No. 122) is GRANTED insofar as the court construes the proposed amendment to state a claim under the Eighth Amendment against the ABL Defendants and to state a claim under the Eigh th Amendment and under state law against defendants Dan Weikal and Pam Hale, in their individual and official capacities, based on allegations of deliberate indifference to the plaintiff's claim of a severe food allergy in light of his right to adequate nutrition. However, in all other respects, the proposed amendment fails to state a claim for which relief may be granted, and all other putative claims in the proposed amendment are DISMISSED. (2) The plaintiff's objections (ECF No. 107) to the R&R (ECF No. 96) recommending that the ABL Defendants' motion to dismiss be granted, are OVERRULED. The ABL Defendants' motion to dismiss (ECF No. 48), construed as a motion for partial dismissal, is GRANTED, and all cla ims against the ABL Defendants except those in the amendment as identified above are DISMISSED. (3) The plaintiff's objections (ECF No. 95 and 126) to both R&Rs (ECF Nos. 87, 115) addressing the DCSO Defendants' motion to dismiss are OV ERRULED. The DCSO Defendants' objections (ECF No. 121) to the most recent R&R (ECF No. 115), addressing their motion to dismiss, are GRANTED IN PART insofar as the court finds that the complaint fails to state a claim against defendant Byro n Grizzle. In all other respects, the DCSO Defendants objections are OVERRULED. The R&R (ECF No. 115) is ACCEPTED, except insofar as it recommends denying the motion to dismiss the claim against defendant Byron Grizzle. Consequently, the DCSO Def endants' motion to dismiss (ECF No.44), also construed as a motion for partial dismissal in light of the plaintiff's amendment to his complaint, is GRANTED IN PART AND DENIED IN PART. All RLUIPA and religious-diet-related First-Amendment claims are DISMISSED. The claims in the original complaint against defendants K. Cox, G. Thomas, and Sylvia Gray are DISMISSED WITHOUT PREJUDICE for failure to effect service upon these defendants. The claims against supervisory officials Granvis se Earl-Young, Henry Lehman, Byron Grizzle, Lynn Norris, and Tony M. Wilkes are DISMISSED for failure to state a claim for which relief may be granted. The motion to dismiss the claims in the original complaint against defendants Dan Weikal and P am Hale is GRANTED IN PART, but, as set forth above, the amended complaint is construed to state colorable claims against defendants Weikal and Hale, which remain pending. The motion to dismiss based on qualified immunity asserted by the remaining defendants (Joshua Bone, Clarence Crawley, Jonathan Craft, and Joshua Stagg) is DENIED without prejudice, which leaves various § 1983 claims pending against these defendants. (See R&R, ECF No. 87, at 1617.) Signed by District Judge Aleta A. Trauger on 1/31/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

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

AUTHOR RAY TURNER,
Plaintiff,
v.
DAN WELKAL et al.,
Defendants.

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Case No. 3:12-cv-0915
Judge Trauger
Magistrate Judge John Bryant

ORDER
Before the court are the following motions and objections:
(1) the plaintiff’s motion to amend his complaint (ECF No. 122), to which the defendants have
responded in opposition;
(2) the plaintiff’s objections (ECF No. 107) to a Report and Recommendation (ECF No. 96) issued by
Magistrate Judge Bryant, recommending that the court grant the motion to dismiss (ECF No. 48) filed by
defendants ABL Management, Inc. (incorrectly identified in the complaint as ABL Food Service), Vernistene
Dulin (identified in the complaint as Mrs. V. Dulin), and Juanez Woods (identified in the complaint as Mrs.
Wood) (collectively, the “ABL Defendants”); and
(3) the objections (ECF No. 121) filed by the Davidson County Sheriff’s Office Defendants (the
“DCSO Defendants”) (including defendants Dan Weikal (incorrectly named in the complaint as Dan
“Welkal”), K. Cox, Granvisse Earl-Young, Pam Hale, Sylvia Gray, Henry Lehman, Joshua Bone, Clarence
Crawley, G. Thomas, Jonathan Craft, Byron Grizzle, Lynn Norris, Tony M. Wilkes, and Joshua Stagg) and by
plaintiff Author Turner (ECF No. 126) to a second Report and Recommendation (ECF No. 115) issued by
Magistrate Judge Bryant, recommending that the DCSO Defendants’ motion to dismiss (ECF No. 44) be
granted in part and denied in part.
For the reasons set forth in the accompanying Memorandum Opinion, the court finds and rules as
follows:
(1) The plaintiff’s motion to amend his complaint (ECF No. 122) is GRANTED insofar as the court
construes the proposed amendment to state a claim under the Eighth Amendment against the ABL
Defendants and to state a claim under the Eighth Amendment and under state law against defendants Dan

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Weikal and Pam Hale, in their individual and official capacities, based on allegations of deliberate
indifference to the plaintiff’s claim of a severe food allergy in light of his right to adequate nutrition. However,
in all other respects, the proposed amendment fails to state a claim for which relief may be granted, and all
other putative claims in the proposed amendment are DISMISSED.
(2) The plaintiff’s objections (ECF No. 107) to the R&R (ECF No. 96) recommending that the ABL
Defendants’ motion to dismiss be granted, are OVERRULED. The ABL Defendants’ motion to dismiss (ECF
No. 48), construed as a motion for partial dismissal, is GRANTED, and all claims against the ABL
Defendants except those in the amendment as identified above are DISMISSED.
(3) The plaintiff’s objections (ECF No. 95 and 126) to both R&Rs (ECF Nos. 87, 115) addressing the
DCSO Defendants’ motion to dismiss are OVERRULED.
The DCSO Defendants’ objections (ECF No. 121) to the most recent R&R (ECF No. 115),
addressing their motion to dismiss, are GRANTED IN PART insofar as the court finds that the complaint fails
to state a claim against defendant Byron Grizzle. In all other respects, the DCSO Defendants’ objections are
OVERRULED. The R&R (ECF No. 115) is ACCEPTED, except insofar as it recommends denying the motion
to dismiss the claim against defendant Byron Grizzle.
Consequently, the DCSO Defendants’ motion to dismiss (ECF No.44), also construed as a motion
for partial dismissal in light of the plaintiff’s amendment to his complaint, is GRANTED IN PART AND
DENIED IN PART. All RLUIPA and religious-diet-related First-Amendment claims are DISMISSED. The
claims in the original complaint against defendants K. Cox, G. Thomas, and Sylvia Gray are DISMISSED
WITHOUT PREJUDICE for failure to effect service upon these defendants. The claims against supervisory
officials Granvisse Earl-Young, Henry Lehman, Byron Grizzle, Lynn Norris, and Tony M. Wilkes are
DISMISSED for failure to state a claim for which relief may be granted. The motion to dismiss the claims in
the original complaint against defendants Dan Weikal and Pam Hale is GRANTED IN PART, but, as set forth
above, the amended complaint is construed to state colorable claims against defendants Weikal and Hale,
which remain pending. The motion to dismiss based on qualified immunity asserted by the remaining
defendants (Joshua Bone, Clarence Crawley, Jonathan Craft, and Joshua Stagg) is DENIED without
prejudice, which leaves various § 1983 claims pending against these defendants. (See R&R, ECF No. 87, at
16–17.)

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This matter remains on referral to Magistrate Judge John Bryant for further case management as
necessary.
It is SO ORDERED.

Aleta A. Trauger
United States District Judge