Turner v. Welkal et al

Filing 243

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For these reasons, 1. The plaintiff's Objections (Docket No. 237 ) are OVERRULED. 2. The court ACCEPTS AND ADOPTS the Report and Recommendation (Docket No. 233 ). 3. The Motion for Judgment on the Pleadings (Docket No. 196 ) is GRANTED. 4. The prior order (Docket No. 6 ) granting in forma pauperis status is VACATED. 5. This matter is returned to the Magistrate Judge to set a reasonable period within which Turner shall be required to pay t he filing fee as a condition for his continued prosecution of this action. IT IS SO ORDERED. Signed by District Judge Aleta A. Trauger on 5/20/2016. (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
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
AUTHOR RAY TURNER,

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Plaintiff,
v.

DAN WELKAL, et al.,
Defendants.

Civil No. 3:12-CV-915
Judge Aleta A. Trauger

MEMORANDUM AND ORDER
On April 20, 2016, the Magistrate Judge issued a Report and Recommendation (“R&R”)
(Docket No. 233), which recommends that the Motion for Judgment on the Pleadings (Docket
No. 196) filed by the defendants be granted, resulting in the prior order granting the plaintiff,
Author Ray Turner, leave to proceed in forma pauperis being vacated and Turner being given a
reasonable period within which to pay the required filing fee as a condition for his continued
prosecution of this action. Turner filed a document entitled “Motion to Strike” the R&R, which
the court is interpreting as Objections (Docket No. 237), to which the defendants have filed
Responses (Docket Nos. 241, 242).
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a specific objection is made. Fed. R. Civ. P. 72(b); 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). Objections must be specific; an objection to the
report in general is not sufficient and will result in waiver of further review. See Miller v.

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Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Turner, a prisoner currently proceeding pro se and in forma pauperis, has filed his civil
rights complaint alleging that the defendants are guilty of religious and racial discrimination by
refusing to allow Turner to pray at the times and in the manner prescribed by his religion (Islam)
and by failing to serve him a proper Halal diet required by his faith. Turner also alleges that the
defendants have retaliated against him for filing grievances by giving him excessive disciplinary
writeups. Finally, Turner claims that the defendants have failed to provide an adequate law
library while he was in custody of the Davidson County Sheriff’s Office.
The defendants moved for judgment on the pleadings under the “three strike rule”
regarding in forma pauperis status codified at 28 U.S.C. § 1915(g). This section provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injuries.
The defendants maintained that, before Turner filed the complaint in this case on September 6,
2012, he had already had more than three prior cases dismissed on grounds that would
constitute a “strike” under 28 U.S.C. § 1915(g). Therefore, according to the defendants, Turner
should be allowed to maintain this action only after paying the required filing fee. The
Magistrate Judge surveyed prior cases brought by Turner and found that he had four cases (i.e.,
more than three) that qualified as “strikes.” Accordingly, the Magistrate Judge concluded that
Turner should not be allowed to proceed in forma pauperis in this action and should be required
to pay the required filing fee as a condition for prosecuting this action.

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The Objections are not clear. As an initial matter, the Objections come perilously close to
being merely a general objection to the entire R&R. For the first three pages of the Objections,
Turner merely states that “Magistrate Judge Bryant has error in his recommendation to remove
the plaintiff right to proceed in forma pauperis for the following reason and said defendant’s
motion should be dismiss,” and quotes the language of Section 1915, the statute authorizing in
forma pauperis proceedings in federal courts. This section of Turner’s filing contains no
substantive response to the R&R. Indeed, it does not even mention the legal discussion contained
in the R&R. Even if the court were to view this section of Turner’s pro se submission as a
general objection to the entire R&R, “a general objection to the entirety of the magistrate judge’s
report has the same effect as would a failure to object.” Howard v. Sec’y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
There are only two subsequent points in Turner’s submissions that could, generously, be
considered specific Objections. First, Turner appears to argue that the Motion for Judgment on
the Pleadings was not timely filed. Rule 12(c) of the Federal Rules of Civil Procedure permits
the filing of a motion for judgment on the pleadings. This rule in its entirety states as follows:
“After the pleadings are closed – but early enough not to delay trial – a party may move for
judgment on the pleadings.” Here, the pleadings are closed (all defendants have answered).
Furthermore, trial shall not be set for any date before August 18, 2016. (Docket No. 218.)
Therefore, the defendants moved for judgment on the pleadings after the pleadings were closed,
but early enough not to delay trial in this action. Their filing was, therefore, proper under Rule
12(c). Turner’s Objection on this grounds will, therefore, be overruled.
Second, Turner appears to argue that the Motion for Judgment on the Pleadings should be

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converted to a motion for summary judgment because it presents matters outside of the pleadings
– specifically, the dockets of the “three strike” cases. It is true that Rules 12(b) and (c) of the
Federal Rules of Civil Procedure provide that if, on a motion to dismiss under Rule 12(b)(6) or a
motion for judgment on the pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment and disposed of
as provided in Rule 56. See Fed. R. Civ. P. 12(b)(6), (c). However, a court may consider matters
of which judicial notice may be taken, such as public records, without converting a motion to
dismiss for failure to state a claim or a motion for judgment on the pleadings into a motion for
summary judgment. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)
(“[A] court may take judicial notice of “matters of public record” without converting a motion to
dismiss into a motion for summary judgment.”); United States v. McCargo, 783 F.2d 507, 509
(5th Cir. 1986) (holding that if the proceedings are of a particular court, that court may take
judicial notice); Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C. Cir. 1979) (same); 2A
CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 441, at 254 (3d ed.
2000) (“If the records are of the court itself, they may be judicially noticed and need not be
proved.”). The case records upon which the defendants rely in support of their Motion for
Judgment on the Pleadings are matters of public record of the U.S. District Court for the Middle
District of Tennessee, and so there was no need for the Magistrate Judge to convert the Motion to
one for summary judgment.1 Turner’s Objection on this grounds will, therefore, also be

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The court notes that even if the motion were converted to one for summary judgment,
the outcome would be the same because the undisputed factual record shows that Turner
accumulated at least three strikes for purposes of Section 1915(g) and therefore may not proceed
in forma pauperis in this instance.
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overruled.
For these reasons,
1.

The plaintiff’s Objections (Docket No. 237) are OVERRULED.

2.

The court ACCEPTS AND ADOPTS the Report and Recommendation (Docket
No. 233).

3.

The Motion for Judgment on the Pleadings (Docket No. 196) is GRANTED.

4.

The prior order (Docket No. 6) granting in forma pauperis status is VACATED.

5.

This matter is returned to the Magistrate Judge to set a reasonable period within
which Turner shall be required to pay the filing fee as a condition for his
continued prosecution of this action.

IT IS SO ORDERED.
Enter this 20th day of May 2016.

____________________________
ALETA A. TRAUGER
United States District Judge

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