Turner v. Welkal et al

Filing 99

ORDER re 96 REPORT AND RECOMMENDATION re 48 MOTION to Dismiss. It is hereby ORDERED that this matter is 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. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 7/22/2013. (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,

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Plaintiff,
v.
DAN WELKAL, et al.,
Defendants.

Civil No. 3:12-0915
Judge Trauger
Magistrate Judge Bryant

MEMORANDUM and ORDER
On July 27, 2013, the Magistrate Judge issued a Report and Recommendation (Docket
No. 87), to which the Davidson County Sheriff’s Office Defendants (“DCSO Defendants”) filed
Objections (Docket No. 94), to which the Plaintiff responded (Docket No. 95). The Report and
Recommendation made recommendations with reference to a dispositive motion, a Motion to
Dismiss filed by the DCSO Defendants. Therefore, pursuant to Rule 72(b), FED. R. CIV. P., and
28 U.S.C. § 636(b)(1)(C), this court must review de novo any portion of the Report and
Recommendation to which a specific objection is made. United States v. Curtis, 237 F.3d 598,
603 (6th Cir. 2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Circ. 1993).
It is clear from the Report and Recommendation that the Magistrate Judge did not
consider the voluminous exhibits attached to the pro se Plaintiff’s Complaint in ruling on the
Motion to Dismiss, and it is to this failure on the part of the Magistrate Judge that the DCSO
Defendants strenuously object. This objection, which is supported by Sixth Circuit authority, is

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SUSTAINED.1 In Rondigo, LLC v. Township of Richmond, 641 F.3d 673 (6th Cir. 2011), cited
by the DCSO Defendants, the court reversed the district court’s denial of the state defendants’
motion to dismiss an action based upon qualified immunity. The grounds for the reversal were
that the exhibits attached by the plaintiff to its complaint showed that the defendants were
entitled to qualified immunity and that the defendants were entitled to rely upon those exhibits to
substantiate their motion to dismiss. Specifically, the court held that the district court should
have considered the exhibits attached to the complaint and that such consideration did not
mandate converting the motion to dismiss to a motion for summary judgment, “so long as [the
exhibits] are referred to in the complaint and are central to the claims contained therein.”
Rondigo, 641 F.3d at 681.
This is not a new proposition advanced by the Sixth Circuit. Rondigo relied upon Bassett
v. Nat’l Collegiate Athletic Assn., 528 F.3d 426 (6th Cir. 2008), which relied upon Amini v.
Oberlin Coll., 259 F.3d 493 (6th Cir. 2001). In Amini, the court held that it was error for the
district court, in ruling on a Rule 12(b)(6) motion to dismiss, not to consider exhibits attached to
the complaint and referenced therein. Amini, 259 F.3d at 502. The DCSO Defendants relied
upon the exhibits attached to the Complaint in this case, in arguing their Motion to Dismiss, and
cited to the Rondigo decision in support of those arguments. (Docket No. 45 at 2)
Because it was error for the Magistrate Judge not to consider the exhibits attached to the
Complaint in ruling on the DCSO Defendants’ Motion to Dismiss, it is hereby ORDERED that

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It should also be noted that the DCSO Defendants take issue with the Magistrate Judge’s
conclusion that the qualified immunity defense should be rejected at this early stage of the case,
in that the plaintiff has not had the opportunity for discovery. These Defendants assert that the
Plaintiff has engaged in discovery and that they have responded to interrogatories, requests for
production of documents and requests for admission. (Docket No. 94 at 2)
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this matter is 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.
It is so ORDERED.
ENTER this 22nd day of July 2013.

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ALETA A. TRAUGER
U.S. District Judge

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