Gentry v. Tennessee Board of Judicial Conduct, The et al

Filing 102

MEMORANDUM AND ORDER: Having conducted a de novo review of the TRO Motion in light of the plaintiff's Objections to the R&R, the court OVERRULES the Objections and DENIES the TRO Motion (Doc. No. 19 ). The matter remains referred to the magistrate judge. Signed by District Judge Aleta A. Trauger on 7/18/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

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

JOHN ANTHONY GENTRY,
Plaintiff,
v.
THE STATE OF TENNESSEE et al.,
Defendants.

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Case No. 3:17-cv-0020
Judge Aleta A. Trauger

MEMORANDUM & ORDER
Before the court is plaintiff John Anthony Gentry’s Objection (Doc. No. 72) to the
magistrate judge’s June 5, 2017 Report and Recommendation (“R&R”) (Doc. No. 70),
recommending that Mr. Gentry’s Emergency Motion for a Temporary Restraining Order and
Preliminary Injunction (“TRO Motion”) (Doc. No. 19) be denied. For the reasons set forth
herein, the court will overrule the Objection and deny the TRO Motion.
I.

Background
The plaintiff, proceeding pro se, filed his original Verified Complaint in this court on

January 9, 2017, alleging claims under 42 U.S.C. § 1983 based on alleged violations of his
constitutional rights. (Doc. No. 1.) He named as defendants the Tennessee Board of Judicial
Conduct (“TBJC”), the Honorable Judge Chris Craft, Timothy R. Discenza, Unnamed Members
of Investigative Panel, Unnamed Liability Insurance Carrier(s), and the State of Tennessee. On
January 11, 2017, the undersigned entered an Order referring the case to the magistrate judge for
case management, decision on all pretrial, non-dispositive motions, and report and
recommendation on all dispositive motions under 28 U.S.C. § 626(b)(1) and Rule 72 of the

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Federal Rules of Civil Procedure. (Doc. No. 4.)
On February 27, 2017, the plaintiff filed his TRO Motion, requesting that the court
preliminarily enjoin the TBJC, Judge Chris Craft, Timothy Discenza, and “all persons acting on
behalf of the [TBJC]” from “destroying, disposing of, or in any way hiding or concealing hard
copy original documents or electronic copies of (1) any complaints filed against judges with the
[TBJC], (2) notices or letters disposing or dismissing complaints, (3) names or lists of names and
addresses of complainants, and (4) and communications between members of the [TBJC]
regarding dispositions and or determinations of dispositions of complaints.” (Doc. No. 19, at 1–
2.) In support of this request, the plaintiff asserts that, “unless enjoined by this Honorable Court,
Defendants will likely destroy, dispose or otherwise conceal evidence necessary to Plaintiff’s
case” and that a TRO is necessary to preserve the status quo. (Id. at 2–3.) In his Memorandum in
support of the TRO Motion, the plaintiff argues that he is likely to succeed at trial, resulting in
embarrassment and exposure of corruption on the part of the defendants against whom the TRO
is sought. On this basis, the plaintiff asserts that the defendants “will most certainly make every
effort to prevent discovery and there is a substantial likelihood that Defendant will even destroy,
or otherwise dispose of, evidence to hide their wrongful conduct.” (Doc. No. 20, at 6.)
On March 13, 2017, the defendants filed their Response in Opposition to the TRO
Motion (Doc. No. 29), arguing that the request was moot because they were already complying
with their obligation to preserve relevant information and that there was a high likelihood that
their then-pending Motion to Dismiss would be granted.
The plaintiff filed a first Amended Verified Complaint (Doc. No. 32) on March 16, 2017,
and a Second Amended Verified Complaint (Doc. No. 36) on March 27, 2017. In both of these,
the plaintiff abandoned his claims against the TBJC, Judge Chris Craft, Timothy Discenza, and

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the Unnamed Members of Investigative Panel of the TBJC, and he asserted new claims against
lawyers Pamela Anderson Taylor, Brenton Hall Lankford, and Sarah Richter Perky. The only
defendants common to both the original and amended pleadings are the State of Tennessee and
Unnamed Liability Insurance Carrier(s).
The magistrate judge recommends that the TRO Motion be denied on the grounds that (1)
the motion has been rendered moot by the plaintiff’s filing of an Amended Complaint that no
longer names as defendants those individuals whose conduct is the focus of the TRO Motion;
and (2) the plaintiff has not shown that any of the relevant factors weigh in favor of his request
for preliminary injunctive relief.
In his Objections, the plaintiff disputes that his TRO Motion has been mooted, arguing
that “pages 49 through 54 . . . include the same facts and allegations contained in Plaintiff’s
original complaint but strengthened with additional facts and causes of action.” (Doc. No. 19, at
4.) He also insists that the allegations in his Memorandum in support of the TRO Motion as well
as his Amended Complaint demonstrate that he will suffer irreparable harm if the requested relief
is not granted.
II.

Review of the Plaintiff’s Motion
The standard of review to be employed by the court when examining a Report and

Recommendation is set forth in 28 U.S.C. § 636. The court is to “make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, reject or modify, in whole or
in part, the findings or recommendations made by the magistrate.” Id.
The plaintiff’s Objections were timely, and he has filed specific objections to the R&R.
This court has reviewed the TRO Motion de novo in light of the plaintiff’s Objections and finds

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that the plaintiff is not entitled to the relief sought.
Temporary restraining orders and preliminary injunctions are extraordinary remedies
“which should be granted only if the movant carries his or her burden of proving that the
circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Co. Gov’t, 305 F.3d
566, 573 (6th Cir. 2002). As a threshold matter, as the magistrate judge correctly noted, a federal
court generally may not enter an injunction against a person who is not a party to the case before
it. See In re N.A.A.C.P., 849 F.2d 1473 (Table), 1988 WL 61504, at *3 (6th Cir. June 13, 1988)
(noting that a court’s decree is generally only binding on parties). The TBJC, Chris Craft, and
Timothy Discenza are not named in the Second Amended Complaint, which “supersedes all
previous complaints.” Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir.
2000). It therefore appears that the TBJC, Craft, and Discenza are no longer parties to this action.
The Sixth Circuit has acknowledged that a court may exercise jurisdiction over a nonparty in limited circumstances:
A federal court may properly exercise its inherent jurisdiction and enjoin a nonparty if his actions would disturb “in any way the adjudication of rights and
obligations as between the original plaintiffs and defendants.” However, if the
actions of the non-party would not upset either the plaintiff’s rights or the
defendant’s duty to perform, then the court has no jurisdiction over the non-party.
Id. at *4 (quoting United States v. Hall, 472 F.2d 261, 265 (5th Cir. 1972)). Here, it is purely the
plaintiff’s speculation that the non-defendants associated with the TBJC might destroy
documents he believes he needs to adjudicate his case. This speculation is not sufficient to
warrant the exercise of jurisdiction over non-parties.
Even if that were not the case, the plaintiff has not established that the requisite factors
weigh in favor of issuance of a temporary restraining order or preliminary injunction. To
determine whether a temporary restraining order or a preliminary injunction should issue, the

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court must generally consider four factors: (1) the movant’s likelihood of success on the merits;
(2) whether the movant will suffer irreparable harm without the injunction; (3) whether granting
the injunction will cause substantial harm to others; and (4) the impact of the injunction on the
public interest. See, e.g., Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); Rock & Roll
Hall of Fame & Museum v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998). These four factors
“are factors to be balanced not prerequisites that must be met.” Six Clinics Holding Corp., II v.
Cafcomp Sys., 119 F.3d 393, 400 (6th Cir. 1997). Nonetheless, the court must address each factor
“unless fewer factors are dispositive of the issue.” Id. at 399.
The court agrees with the magistrate judge that the plaintiff has no greater chance of
success on the merits than the defendants. He also has not shown that he will suffer irreparable
harm without the injunction. He acknowledges that the TBJC has a responsibility to “maintain
public records as a matter of course.” While this allegation supports a conclusion that granting
the injunction would not cause substantial harm to others, since the TBJC is already maintaining
the evidence at issue, it does not support the plaintiff’s contention that he will suffer irreparable
harm if the court does not enter an preliminary injunction. The plaintiff simply has no evidence,
aside from rank speculation, that the Board might destroy evidence the plaintiff needs in order to
pursue his lawsuit. Finally, there is no evidence that entry of an injunction will have an effect
one way or the other on the public interest.
In sum, the relevant factors do not weigh strongly in favor of an injunction. The court
therefore finds that the plaintiff has not carried his burden of proving that that the “circumstances
clearly demand” issuance of a temporary restraining order and preliminary injunction.
Overstreet, 305 F.3d at 573.

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III.

Conclusion
Having conducted a de novo review of the TRO Motion in light of the plaintiff’s

Objections to the R&R, the court OVERRULES the Objections and DENIES the TRO Motion
(Doc. No. 19).
The matter remains referred to the magistrate judge.
It is so ORDERED.

ALETA A. TRAUGER
United States District Judge

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