Gentry v. Tennessee Board of Judicial Conduct, The et al
REPORT AND RECOMMENDATION: Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that Plaintiff's motion for a temporary restraining order and preliminary injunction (Docket Entry No. 19) be DENIED. Signed by Magistrate Judge Barbara D. Holmes on 6/5/2017. (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
MIDDLE DISTRICT OF TENNESSEE
JOHN ANTHONY GENTRY
THE TENNESSEE BOARD OF
JUDICIAL CONDUCT, et al.
TO: Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
By Order entered January 11, 2017 (Docket Entry No. 4), the Court referred this pro se civil
action to the Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1) and Rule 72 of
the Federal Rules of Civil Procedure.
Addressed in this report and recommendation is Plaintiff’s pending motion for a temporary
restraining order and a preliminary injunction. See Docket Entry No. 19. For the reasons set out
below, the undersigned Magistrate Judge respectfully recommends this motion be denied.
John Anthony Gentry (“Plaintiff”) is a resident of Goodletsville, Tennessee. He filed this
lawsuit on January 9, 2017, originally bringing civil rights and other claims against the State of
Tennessee; the Tennessee Board of Judicial Conduct (“the Board”); Judge Chris Craft (“Craft”), the
Chairperson of the Board; Timothy R. Discenza (“Discenza”), Disciplinary Counsel for the Board;
“unnamed members of investigative panel;” and “unnamed liability insurance carriers.” See
Complaint (Docket Entry No. 1) at 2-5. Plaintiff’s initial claims arose out of an administrative
complaint filed with the Board in February 2016 against a state court judge for alleged violations of
due process and for judicial misconduct that Plaintiff alleged had been committed during a divorce
proceeding in which Plaintiff was involved. See Complaint, Docket 1 at 15-16, ¶ 50. The
administrative complaint was dismissed with no action being taken. Plaintiff’s original assertions
were that Defendants caused a violation of his federal constitutional rights by failing to fulfill their
responsibilities and duties with respect to the administrative complaint, and that his equal protection
rights were violated because, “as a matter of practice, Defendants routinely dismiss effectively onehundred percent of the cases filed by non-members of legal profession.” Id. at 14, ¶ 44.1
After Defendants were served and filed a joint motion to dismiss, Plaintiff filed two amended
complaints in which he drops Craft, Discenza, and the Board as Defendants but adds numerous new
claims against three new Defendants – Pamela Anderson Taylor, Brenton Hall Lankford, and Sarah
Richter Perky, each of whom was an attorney involved in the underlying divorce proceeding. See
Amended Complaint (Docket Entry No. 32) and Second Amended Complaint (Docket Entry
No. 36).2 The basic factual basis for the case continues to be Plaintiff’s dissatisfaction with the
outcome of his divorce proceeding. The claims added in the 103-page Second Amended Complaint
include extortion, racketeering, fraud, breaches of fiduciary duties, and others, in addition to
Plaintiff’s continuing constitutional claims. The three new Defendants have all appeared and have
filed motions to dismiss that are pending before the Court.
A few weeks after initiating his lawsuit but prior to filing his amended complaints, Plaintiff
filed the pending motion for a temporary restraining order and a preliminary injunction. Plaintiff
seeks to enjoin formerly named Defendants Craft, Discenza, and the Board, as well as all persons
acting on behalf of the Board, from destroying, disposing of, or in any way hiding or concealing hard
Plaintiff sued the state court judge directly in another lawsuit brought in this Court. See John
Anthony Gentry v. John H. Thompson, 3:16-2617. By Order entered January 27, 2017, that lawsuit
was dismissed with prejudice. See Docket Entry No 27 in Case No. 3:16-2617. Plaintiff has filed
a notice of appeal in that case.
By Order entered April 26, 2017 (Docket Entry No. 55), the Court denied Plaintiff’s “notice of
intent” to file a third amended complaint. Plaintiff’s motion for review of the Order was denied.
See Order entered May 15, 2017 (Docket Entry No. 60). Plaintiff’s motion to “alter” the order
denying his motion for review was denied by Order entered May 31, 2017. See Docket Entry No. 69.
copy original documents or electronic copies of judicial complaints, notices or letters disposing or
dismissing judicial complaints, names or lists of names and addresses of complainants before the
Board, and any communications between members of the Board regarding dispositions and or
determinations of disposition of judicial complaints. Id. at 1-2. Plaintiff alleges that, unless enjoined
by a Court order, these former Defendants “will likely destroy, dispose or otherwise conceal
evidence necessary to Plaintiff’s case before satisfying discovery requirements and before this Court
can enter a final judgment.” Id. at 2, ¶ 3. The responses of Craft, Discenza, and the Board in
opposition to the motion, contend that they are complying with their obligation to preserve relevant
information and that, pursuant to the Rules of Practice and Procedure for the Board, the Board retains
an electronic file of relevant portions of all complaint and documentation that is never destroyed.
See Docket Entry No. 29.
Temporary restraining orders and preliminary injunctions are considered preventive,
prohibitory, or protective measures taken pending resolution on the merits, see Clemons v. Board
of Educ., 228 F.2d 853, 856 (6th Cir. 1956), and are extraordinary relief. Detroit Newspaper
Publishers Ass’n v. Detroit Typographical Union No. 18, Int’l Typographical Union, 471 F.2d 872,
876 (6th Cir. 1972). Plaintiff, as the moving party, has the burden of proving that the circumstances
“clearly demand” a preliminary injunction. Overstreet v. Lexington–Fayette Urban Cnty. Gov't, 305
F.3d 566, 573 (6th Cir. 2002). Plaintiff has not met this burden, and his motion should be denied.
Plaintiff’s first failure of proof is that his motion is moot as result of his Second Amended
Complaint. “When [a] plaintiff files an amended complaint, [the] new complaint supersedes all
previous complaints and controls [the] case from that point forward.” Parry v. Mohawk Motors of
Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000). The amended complaint is the only “legally operative
Craft, Discenza and the Board are no longer parties to this action; they were
dropped from the case when Plaintiff filed a second amended complaint.
Generally, a federal court 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, Special Contribution Fund, 849 F.2d 1473, at *4 (6th Cir.
1988) (unpublished table opinion) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 394 U.S.
100, 112 (1969)). See Schuh v. Michigan Dep’t of Corrections, No. 1:09-cv-982, 2011 WL
7139457, at *2 (W.D. Mich. Nov. 10, 2011) (citations omitted). Under the plain language of
Rule 65, an injunction binds only parties and those who actively act in concert with them. Although
Plaintiff refers broadly to some alleged and speculative misconduct on the part of Craft, Discenza,
and the Board, he has not supported his assertion that evidence “will likely” be destroyed, disposed,
or concealed, nor has he provided sufficient justification for broadening the scope of injunctive relief
to include these non-parties.
Additionally, Plaintiff has likewise not shown that any factors weigh in favor of his request
for preliminary injunctive relief. See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441,
94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012); Leary
v. Daeschner, 228 F.3d. 729, 736 (6th Cir. 2000); Six Clinics Holding Corp., II v. CAFCOMP
Systems, 119 F.3d 393, 401 (6th Cir. 1997) Parker v. U.S. Dep’t of Agric. 879 F.2d. 1362, 1367 (6th
Cir. 1989); Mason Cnty Med. Assocs. v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). At this stage
of the proceedings, Plaintiff's likelihood of success on his claims is no greater than that of
Defendants and, more importantly, he no longer makes any claims against the non-parties whom he
seeks to bind by the requested injunction. Plaintiff has also not shown that he will suffer irreparable
harm if the injunctive relief he requests is not granted and has not shown that a public interest would
be advanced by the requested relief. See National Hockey League Players Ass'n v. Plymouth
Whalers Hockey Club, 372 F.3d 712, 720 n.4 (6th Cir. 2003).
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that Plaintiff’s
motion for a temporary restraining order and preliminary injunction (Docket Entry No. 19) be
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
Failure to file written objections within the specified time can be deemed a waiver of the right to
appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
BARBARA D. HOLMES
United States Magistrate Judge
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