Scruggs v. Bryson et al

Filing 42

ORDER: Pending before the Court are a Report and Recommendation of the Magistrate Judge (Docket No. 25 ), Objections filed by the Defendant (Docket No. 27 ), Objections filed by the Plaintiff (Docket No. 35 ), and an Amendment to Objections fi led by Defendant (Docket No. 39 ). Accordingly, Defendant's Motion to Dismiss (Docket No. 19 ) is granted in part and denied in part. Plaintiff's Eighth Amendment claims are dismissed. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 8/12/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(la)

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

DENNIS SCRUGGS
v.
MICHAEL BRYSON

)
)
) NO. 3-13-0278
) JUDGE CAMPBELL
)

ORDER

Pending before the Court are a Report and Recommendation of the Magistrate Judge (Docket
No. 25), Objections filed by the Defendant (Docket No. 27), Objections filed by the Plaintiff
(Docket No. 35), and an Amendment to Objections filed by Defendant (Docket No. 39).
Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(3) and Local Rule 72.03(b)(3), the
Court has reviewed de novo the Report and Recommendation, the Objections, and the file. The
Objections of the Plaintiff and the Objections of the Defendant are overruled, and the Report and
Recommendation is adopted and approved.
The Court agrees that Plaintiff has failed to state a cognizable Eighth Amendment claim
against Defendant Bryson. The Court cannot consider the Affidavits filed by the Plaintiff with regard
to this claim because the pending Motion is a Motion to Dismiss, not a Motion for Summary
Judgment.
With regard to the First Amendment retaliation claim, the Court cannot consider Plaintiff’s
Affidavit, as Defendant suggests, on a Motion to Dismiss. At this stage of the litigation, the Court
may not consider additional evidence, so the Magistrate Judge’s rejection of Defendant’s Heck v.
Humphrey argument is appropriate. In addition, whether Defendant’s allegedly retaliatory action is

sufficiently severe to deter a person of ordinary fitness from exercising his First Amendment rights
is generally a question of fact. Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002).
Accordingly, Defendant’s Motion to Dismiss (Docket No. 19) is granted in part and denied
in part. Plaintiff’s Eighth Amendment claims are dismissed.
IT IS SO ORDERED.

___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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