Hayes v. Cowans et al

Filing 9

ORDER ADOPTING 6 REPORT AND RECOMMENDATIONS. Signed by Judge S. Thomas Anderson on 7/1/2014. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
ANTHONY D. HAYES, SR.,

)
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Plaintiff,
)
)
v.
)
)
DWIGHT COWANS, TOM
)
LEATHERWOOD, Register of Deeds,
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No. 14-2366-STA-dkv
DAVID LENOIR, Shelby County
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Trustee, RINOK EMPLOYEE
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SHARING PROFIT PLAN, LLC, and
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SHELBY COUNTY, in their individual )
and official capacities,
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Defendants.
)
______________________________________________________________________________
ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION DISMISSING PLAINTIFF’S COMPLAINT
______________________________________________________________________________
On May 16, 2014, Plaintiff Anthony D. Hayes, Sr. (“Plaintiff”) filed a pro se Complaint
(D.E. #1) and Motion seeking leave to proceed in forma pauperis (D.E. # 2). On May 20, 2014,
the Court issued an Order (D.E. # 4) granting leave for Plaintiff to proceed in forma pauperis.
On May 28, 2014, Plaintiff filed a pleading entitled “Notice to Remove,” which seeks to remove
a pending detainer action in the General Sessions Court of Shelby County to this court based on
federal-question jurisdiction.
This case has been referred to Magistrate Judge Diane K. Vescovo for case management
and for all pretrial matters for determination and/or report and recommendation as appropriate.
The Magistrate Judge made a sua sponte review of plaintiff’s Complaint to determine whether
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the complaint should be dismissed because it is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief pursuant to 28 U.S.C. § 1915(e)(2)(B). On June 5, 2014, the Magistrate Judge entered a
Report & Recommendation (D.E. # 6), recommending that the Complaint be dismissed for lack
of subject matter jurisdiction and/or for failure to state a claim and that the motion for removal be
denied.
First, objections to the Report and Recommendation were due within 14 days of the entry
of the Report, making the objections due on or before June 19, 2014. Plaintiff’s Objections (D.E.
# 7), which he filed on June 27, 2014, were untimely.
Additionally, even if Plaintiff’s objections were not untimely, Federal Rule of Civil
Procedure 72(b)(2) states: “Within 14 days after being served with a copy of the recommended
disposition, a party may serve and file specific written objections to the proposed findings and
recommendations.”1 A general objection to a report is insufficient and has the same effect as a
failure to object.2 When a party fails to object to a magistrate judge’s report, he waives his right
to appeal.3 Plaintiff fails to identify any specific objection to the Magistrate Judge’s Report and
Recommendation. Rather, Plaintiff makes general assertions such as “this report appears as an
act of war to refuse Petitioner’s the remedy in law[;]”4 “[i]n light of the facts presented to the

1

Fed. R. Civ. P. 72(b)(2) (emphasis added).

2

Howard v. Secretary of HHS, 932 F.2d 505, 508-09 (6th Cir. 1991).

3

Id. at 508 (“a party waives his or her right to appeal by failing to file objections to a
magistrate’s report and recommendation.”).
4

(Pl.’s Report and Recommendation at 1, D.E. # 7.)
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court by the Magistrate, the Defendants have not filed a motion to dismiss[;]”5 “Petitioner’s facts
are concrete evidence pursuant to Tennessee Laws[;]”6 and “Petitioner sufficiently alleged facts
necessary to prove each element of the cause of action.”7 Because Plaintiff has failed to make
any specific objections to the Magistrate Judge’s Report and Recommendation, he waived any
objections.
Having reviewed the Magistrate Judge’s Report and Recommendation de novo, the
parties’ briefs, and the entire record of the proceeding, the Court hereby ADOPTS the Magistrate
Judge’s Report and Recommendation. Consistent with the Report and Recommendation,
Plaintiff’s Complaint is DISMISSED and Plaintiff’s Motion for Removal is DENIED.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: July 1, 2014.

5

(Id. at 3.)

6

(Id.)

7

(Id.)
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