Seals v. Seals et al

Filing 9

ORDER adopting 4 Report and Recommendation; ORDER adopting 8 Report and Recommendations; ORDER overruling 5 Plaintiff's objections; and ORDER dismissing Plaintiff's 1 Complaint and 6 Amended Complaint.. Signed by Judge Jon Phipps McCalla on 07/21/2014. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
LEWIS JAMES SEALS, JR,
Plaintiff,
v.
ADONNA SEALS et al,
Defendants.

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No. 2:14-cv-2058-JPM-cgc

ORDER ADOPTING THE REPORT AND RECOMMENDATION;
ORDER ADOPTING THE SUPPLEMENTAL REPORT AND RECOMMENDATION;
ORDER OVERRULING PLAINTIFF’S OBJECTIONS; AND
ORDER DISMISSING PLAINTIFF’S COMPLAINT AND AMENDED COMPLAINT
Before the Court is the Report and Recommendation (the
“Report and Recommendation”) (ECF No. 4) of Magistrate Judge
Charmiane G. Claxton, filed on January 30, 2014.

The Magistrate

Judge recommends that the Court dismiss Plaintiff’s Complaint.
(Id. at 7.)

Plaintiff timely filed an Objection to the Report

and Recommendation on February 13, 2014, (ECF No. 5) and filed
an Amended Complaint, without leave of Court, on February 20,
2014 (ECF No. 6).
Also before the Court is the Supplemental Report and
Recommendation (the “Supplemental Report and Recommendation”)
(ECF No. 8) of the Magistrate Judge, filed on April 8, 2014.
The Magistrate Judge recommends that the Court dismiss
Plaintiff’s Amended Complaint.

(Id. at 1.)

For the following reasons, the Court ADOPTS the Report and
Recommendation and the Supplemental Report and Recommendation,
and DISMISSES Plaintiff’s Amended Complaint.
I.

BACKGROUND
On January 24, 2014, Plaintiff Lewis James Seals, Jr.

(“Plaintiff”) filed a pro se Complaint against Defendants Adonna
Seals, et al. (“Defendants”) alleging invasion of privacy and
conversion.

(See ECF No. 1.)

Specifically, Plaintiff alleged

that Defendants “have colluded in a scheme to fraudulently
disseminate and exploit the Plaintiff’s mental health records to
benefit Atasa Seals[’s] divorce proceedings with Plaintiff.”
(Id. ¶ 13.)

On the same day, Plaintiff filed a motion seeking

leave to proceed in forma pauperis (ECF No. 2).
On January 27, 2014, the Court Clerk referred the case to
Magistrate Judge Claxton.

On January 30, 2014, the Magistrate

Judge issued an Order granting Plaintiff leave to proceed in
forma pauperis (ECF No. 4).

At the same time, the Magistrate

Judge recommended that Plaintiff’s Complaint be dismissed.
at 7.)

(Id.

Plaintiff timely filed his Objection to the Report and

Recommendation on February 13, 2014.

(ECF No. 5.)

Without leave of Court, Plaintiff amended his Complaint on
February 20, 2014, to include additional claims for copyright
infringement, unfair competition and unfair business practices,
and imposition of a constructive trust.
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(See ECF No. 6.)

On

April 8, 2014, the Magistrate Judge filed a Supplemental Report
and Recommendation to address Plaintiff’s additional claims (ECF
No. 8).
II.

STANDARD OF REVIEW
A.

Report and Recommendation

Pursuant to federal statute,
[a] judge of the court shall make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is made. A
judge of the court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate judge
with instructions.
28 U.S.C. § 636(b); accord Fed. R. Civ. P. 72(b)(3).

The

portions of the Report and Recommendation to which no objections
were timely filed are reviewed for clear error.

See Fed. R.

Civ. P. 72 advisory committee notes (1983 Addition), subdivision
(b).
Litigants are required to file specific and timely
objections to a magistrate judge’s report and recommendation
under 28 U.S.C. § 636(b)(1)(C).

Slater v. Potter, 28 F. App’x

512, 513 (6th Cir. 2002) (citing Thomas v. Arn, 474 U.S. 140,
155 (1985)).

“The filing of vague, general, or conclusory

objections does not meet the requirement of specific objections
and is tantamount to a complete failure to object.”

Id.; accord

Thrower v. Montgomery, 50 F. App’x 262, 263 (6th Cir. 2002)

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(“[N]ot only must objections be timely, they must also be
specific; an objection to the report in general is not
sufficient and results in waiver of further review.”).

“Failure

to identify specific concerns with a magistrate judge’s report
results in treatment of a party’s objections as a general
objection to the entire magistrate judge’s report.

A general

objection is considered the equivalent of failing to object
entirely.”

McCready v. Kamminga, 113 F. App’x 47, 49 (6th Cir.

2004) (citing Howard v. Sec. of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991)).
III. ANALYSIS
In the Report and Recommendation, the Magistrate Judge
recommends that the Court dismiss without prejudice Plaintiff’s
action “for want of subject-matter jurisdiction pursuant to Fed.
R. Civ. P. 12(b)(1) and (h)(3).”

(ECF No. 4 at 7.)

The

Magistrate judge also recommends that the Court certify,
“pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this
matter by Plaintiff would not be taken in good faith and
Plaintiff may not proceed on appeal in forma pauperis.”

(Id.)

Plaintiff objects to the Report and Recommendation “on the
grounds that the Magistrate did not have [Plaintiff’s] consent
to conduct [a] hearing, and therefore, does not have the
authority, under 28 U.S.C. § 636(c)(1) to issue [orders].”
No. 5 at PageID 51.)
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(ECF

In the Supplemental Report and Recommendation, the
Magistrate Judge recommends that the Court dismiss with
prejudice the copyright infringement claim in Plaintiff’s
Amended Complaint “for failure to state a claim.”
4.)

(ECF No. 8 at

Moreover, the Magistrate Judge recommends that the Court

dismiss without prejudice Plaintiff’s derivative claims for
unfair competition and unfair business practices as well as
imposition of constructive trust.

(Id.)

Plaintiff did not

timely object.
Because Plaintiff did not file specific objections to the
Magistrate Judge’s factual findings or proposed legal
conclusions, the Court reviews the Report and Recommendation for
clear error.

The Court then addresses Plaintiff’s objection on

the grounds of the Magistrate Court’s lack of authority in this
case.

Finally, because Plaintiff did not timely object, the

Court reviews the Supplemental Report and Recommendation for
clear error.
A.

The Court Should Dismiss Plaintiff’s Action for Want
of Subject Matter Jurisdiction.

In the Report and Recommendation, the Magistrate Judge
correctly explained that “[a] private citizen is not liable for
an alleged constitutional violation unless: (1) ‘the claimed
constitutional deprivation resulted from the exercise of a right
or privilege having its source in state authority,’ and (2) ‘the

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private party charged with the deprivation could be described in
all fairness as a state actor.’”

(ECF No. 4 at 6 (quoting

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620
(1991)).)

The Magistrate Judge, therefore, found that

Plaintiff’s Complaint, which alleges that Defendants, as private
citizens, violated his constitutional right to privacy, “does
not state a claim which invokes Federal subject matter
jurisdiction.”

(Id.)

Further, the Magistrate Judge correctly found that “[t]he
Court also does not appear to have diversity jurisdiction” over
Plaintiff’s common law claims for invasion of privacy and
conversion because “all of the parties named in the complaint
are residents of the State of Tennessee.”

(Id. at 6-7.)

Having reviewed the record, the Court finds that Plaintiff
fails to make and support specific objections of “those portions
of the report or specified proposed . . . recommendations” with
which he disagrees.

See 28 U.S.C. § 636(b)(1).

Because the

“[f]ailure to identify specific concerns with a magistrate
judge’s report results in treatment of a party’s objections as a
general objection to the entire magistrate judge’s report,” see
McCready, 113 F. App’x at 49, the Court considers this the
equivalent of failing to object entirely.

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Therefore, on review for clear error of the Magistrate
Judge’s findings, the Court agrees with the Magistrate Judge
and, accordingly, ADOPTS the Report and Recommendation.
B.

The Court Should Certify that Any Appeal by Plaintiff
Would Not be Taken in Good Faith, and Plaintiff May
Not Proceed on Appeal In Forma Pauperis.

The Magistrate Judge correctly stated that the “United
States Court of Appeals for the Sixth Circuit requires that all
district courts in the district determine, in all cases where
the appellant seeks to proceed in forma pauperis, whether the
appeal would be frivolous.”

(ECF No. 4 at 7; see, e.g.,

Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999).)

The

Magistrate Judge found that “[i]t would be inconsistent for a
district court to determine that a complaint should be dismissed
prior to service on the defendants, but has sufficient merit to
support an appeal in forma pauperis.”

(Id. (citing Williams v.

Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983)).)

The

Magistrate Court, therefore, recommends that, pursuant to
28 U.S.C. § 1915(a)(3), the Court certify that any appeal by
Plaintiff on the issue of subject-matter jurisdiction “would not
be taken in good faith.”

(Id.)

Having reviewed the record, the Court finds that Plaintiff
fails to make and support specific objections of “those portions
of the report or specified proposed . . . recommendations” with
which he disagrees.

See 28 U.S.C. § 636(b)(1).
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Because the

“[f]ailure to identify specific concerns with a magistrate
judge’s report results in treatment of a party’s objections as a
general objection to the entire magistrate judge’s report,” see
McCready, 113 F. App’x at 49, the Court considers this the
equivalent of failing to object entirely.
On review for clear error, the Court agrees with the
Magistrate Judge that any appeal of this decision would be
frivolous, and, accordingly, ADOPTS the Magistrate Judge’s
Report and Recommendation.
C.

Plaintiff’s Objection

Plaintiff objects to the Report and Recommendation “on the
grounds that the Magistrate did not have his consent . . . and
therefore, does not have the authority, under 28 U.S.C.
§ 636(c)(1) to issue [orders].”

(ECF No. 5 at PageID 51.)

In the instant case, however, the Magistrate Judge derives
her authority not from 28 U.S.C. § 636(c)(1), but from 28 U.S.C.
§ 636(b)(1), 28 U.S.C. § 1915, and Administrative Order 2013-05.
Under 28 U.S.C. § 636(b)(1)(A), “a judge may designate a
magistrate judge to hear and determine any pretrial matter
pending before the court,” except for a specifically enumerated
list of motions, which does not include a Motion for Leave to
Proceed In Forma Pauperis.

Moreover, under 28 U.S.C

§ 636(b)(1)(B), “a judge may also designate a magistrate judge
to conduct hearings . . . and to submit to a judge of the court
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proposed findings of fact and recommendations for the
disposition, by a judge of the court, of any motion excepted in
subparagraph (A).”
Under 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), the Court is
required to dismiss any in forma pauperis complaint “if the
court determines that . . . the action . . . is frivolous or
malicious” or “fails to state a claim on which relief may be
granted.”

Moreover, in accordance with Administrative Order

2013-05, the assigned magistrate judge is responsible for case
management and handling of pretrial matters by determination or
by report and recommendation, as appropriate.

See, e.g.,

Falkner v. Pilot, No. 13-2456-JDT-cgc, 2013 WL 6036672, at *1
n.1 (W.D. Tenn. Nov. 13, 2013).
The Court, therefore, finds that the Magistrate Judge had
the authority both to issue an order on Plaintiff’s Motion for
Leave to Proceed In Forma Pauperis and to prepare a Report and
Recommendation on the issue of the Court’s lack of subjectmatter jurisdiction over the case.

Accordingly, the Court

OVERRULES Plaintiff’s objection.
D.

The Court Should Dismiss Plaintiff’s Copyright
Infringement Claim for Failure to State a Claim for
Which Relief May Be Granted.

In the Supplemental Report and Recommendation, the
Magistrate Judge found that “Plaintiff does not allege that he
has registered or preregistered copyrights to his ‘mental health
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records’ as required by [17 U.S.C. § 411(a)]” as a prerequisite
to a cause of action for copyright infringement.
3.)

(ECF No. 8 at

The Magistrate Judge, therefore, recommends that the Court

dismiss Plaintiff’s copyright infringement claim.
3-4.)

(See id. at

The Magistrate Judge recommends, further, that the Court

dismiss Plaintiff’s derivative claims for unfair competition and
constructive trust for want of subject-matter jurisdiction.
(See id. at 4.)
Plaintiff did not timely object to the Supplemental Report
and Recommendation, so the Court reviews the Magistrate Court’s
findings for clear error.

See Fed. R. Civ. P. 72 advisory

committee notes (1983 Addition), subdivision (b).
Having reviewed the record, the Court agrees with the
Magistrate Judge and, accordingly, ADOPTS the Supplemental
Report and Recommendation.

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IV.

CONCLUSION
For the reasons stated above, the Report and Recommendation

(ECF No. 4) and the Supplemental Report and Recommendation (ECF
No. 8) are ADOPTED in their entirety, and Plaintiff’s Objection
(ECF No. 5) is OVERRULED.

Accordingly, Plaintiff’s claims for

invasion of privacy, conversion, unfair competition and unfair
business practices, and imposition of constructive trust are
DISMISSED WITHOUT PREJUDICE, and Plaintiff’s claim for copyright
infringement is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 21st day of July, 2014.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

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