Beard v. Smith et al

Filing 8

ORDER ADOPTING 7 REPORT AND RECOMMENDATION FOR DISMISSAL, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 2/9/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JAMES H. BEARD, JR.,
Plaintiff,
VS.
LOAMMA SMITH, ET AL.,
Defendants.

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No. 16-2262-JDT-cgc

ORDER ADOPTING REPORT AND RECOMMENDATION FOR DISMISSAL,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On April 19, 2016, Plaintiff James H. Beard, Jr. filed a pro se complaint on the form used
for commencing actions pursuant to 42 U.S.C. § 1983 (ECF No. 1), accompanied by a motion to
proceed in forma pauperis (ECF No. 2). On April 21, 2016, U.S. Magistrate Judge Charmiane G.
Claxton granted leave to proceed in forma pauperis. (ECF No. 5.) Plaintiff filed a motion for
appointment of counsel on May 3, 2016. (ECF No. 6.)
On January 18, 2017, Magistrate Judge Claxton issued a Report and Recommendation
(“R&R”) in which she recommended dismissing the case sua sponte pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and denied the motion to appoint counsel as moot. (ECF No. 7.) Objections to the
R&R were due on or before February 6, 2017. See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ.
P. 6(a), (d). However, Plaintiff has filed no objections.
As noted by the Magistrate Judge, Plaintiff’s complaint, affidavit, and accompanying
exhibits consists of 113 pages. The gist of his allegations is that the various Defendants, most of
whom are involved with Alcoholics Anonymous and other programs for treatment of substance

abuse, are conspiring to force individuals who are trying to achieve sobriety “to depend on drug
dealers, the emotionally perverted, and the criminally insane.” (ECF No. 1 at 2.) He further alleges
“[t]he defendants have used coercion, intimidation, verbal and physical attacks, and drugged those
who resist their leadership and demands.” (Id.)
In the R&R, Magistrate Judge Claxton determined that Plaintiff’s complaint fails to comply
with Federal Rule of Civil Procedure 8(a)(1) and that his rambling, incoherent allegations fail to
state any claim under 42 U.S.C. § 1983, which applies only to persons and entities acting under color
of state law. Plaintiff has not alleged that any Defendant acted under color of state law or deprived
him of any federal constitutional or statutory right. No alternative basis for this Court’s jurisdiction
is evident from the complaint.
The Court finds no error in Magistrate Judge Claxton’s conclusions. Therefore, the R&R
is ADOPTED, and this case is DISMISSED as frivolous and for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
It is CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in
this matter by Plaintiff is not taken in good faith. Leave to appeal in forma pauperis is, therefore,
DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay the full $505 appellate
filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit
Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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