Briggs v. Jobe

Filing 10

ORDER adopting Report and Recommendations re 9 . Signed by Judge Jon Phipps McCalla on 8/3/2017. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ANTONIO ANDRE BRIGGS,
Plaintiff,
v.
MARK JOBE,
Defendant.

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No. 2:17-cv-02411-JPM-tmp

ORDER ADOPTING THE REPORT AND RECOMMENDATION

Before the Court is Magistrate Judge Tu Pham’s “Report and Recommendation,” filed
July 16, 2017. (ECF No. 9.) In the Report and Recommendation, Magistrate Judge Pham
recommends “that [Plaintiff’s] complaint be dismissed sua sponte pursuant to 25 U.S.C.
§1915(e)(2)(B)(i)–(ii) and Fed. R. Civ. P. 12(b)(1).” (Id. at PageID 227.)
More than fourteen days have past and Plaintiff has not filed any objection to Magistrate
Judge Pham’s Report and Recommendation. For the reasons stated below, the Court ADOPTS
the Magistrate Judge’s Report and Recommendation.
I.

BACKGROUND
This action involves claimed violations of civil rights under 42 U.S.C. § 1983. (See ECF

No. 1 at PageID 1.) On June 14, 2017, Antonio Andre Briggs (“Plaintiff”), who is proceeding
pro se, filed a Complaint against sole Defendant Mark Jobe. The Complaint appears to allege
that Jobe performed surgery on Briggs’s wrist, and surgically inserted “something” into Brigg’s
body that “scanned [his] brain” and caused him to “hear voices talking over in [his] mouth, day
in, day out.” (See ECF No. 1 at PageID 2.) Plaintiff seeks to “make the doctor pay for what he

has done to [Plaintiff’s] life . . . have the med to take this thing out of [Plaintiff’s] body so that
[Plaintiff] can try to get back to living a normal life again.” (Id. at PageID 3.)
On June 14, 2017, Plaintiff moved to proceed in forma pauperis (ECF No. 2). Magistrate
Judge Pham granted Briggs leave to proceed in forma pauperis on June 15, 2017. (ECF No. 7)
Magistrate Judge Pham then filed a Report and Recommendation on July 13, 2017,
recommending the case be dismissed for failure to state a claim. (ECF No. 9.)
II.

ANALYSIS
Federal Rule of Civil Procedure 72(b)(2) provides that “[w]ithin 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.” Fed R. Civ. P. 72(b)(2). “When no
objections are filed to an R & R or to a portion of an R & R, the Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.”
Green v. Metro. Police Dep't, No. 3:06-0446, 2008 WL 4981901, at *2 (M.D. Tenn. Nov. 18,
2008).
In the instant case, Plaintiff has not filed any timely objection to Magistrate Judge
Pham’s proposed findings and recommendations. Accordingly, the Court reviews the entire
Report and Recommendation for clear error. See Fed. R. Civ. P. 72(b) advisory committee notes
(“When no timely objection is filed, the court need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.”). Moreover, the “failure to
properly file objections constitutes a waiver of appeal.” See Howard v. Sec'y of Health &
Human Servs., 932 F.2d 505, 508 (6th Cir. 1991) (citing United States v. Walters, 638 F.2d 947,
950 (6th Cir. 1981)).

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In the Report and Recommendation, Magistrate Judge Pham found that Plaintiff failed to
state a claim upon which relief could be granted and that his complaint should be dismissed sua
sponte. (ECF No. 9 at PageID 231.) Magistrate Judge Pham found that Plaintiff failed to allege
that Defendant was a state actor acting under the color of state law, which is required under 42
U.S.C. § 1983. (Id.) Magistrate Judge Pham further found that Plaintiff failed to allege the
deprivation of a constitutional or federal right. (Id.) Thus, according to Magistrate Judge Pham,
Plaintiff failed to state a claim under § 1983. (Id.) In addition, Magistrate Judge Pham
dismissed Plaintiff’s Complaint asserting implausible allegations for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (Id. at PageID 231–32.) The Court finds no
error on either of the Magistrate Judge’s grounds for dismissal.
The Magistrate Judge did not error by dismissing Plaintiff’s Complaint for failure to state
a claim. Under 42 U.S.C. § 1983 a plaintiff must allege she “was deprived of rights guaranteed
under the United States Constitution or federal law by a person acting ‘under color of state law.’”
Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 429 (6th Cir. 2016) (quoting
Strickland on Behalf of Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997)). In the instant
case, however, Plaintiff does not allege that Defendant was acting under color of state law, nor
that he was deprived of a right secured by the Constitution of laws of the United States.
Furthermore, Plaintiff does not allege that Defendant was a state actor or a private actor whose
conduct is “fairly attributable to the state.” Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629,
636 (6th Cir. 2005). Accordingly, the Court finds the Magistrate Judge did not error in finding
Plaintiff does not state a claim pursuant to 42 U.S.C. § 1983.
Nor did the Magistrate Judge error by dismissing Plaintiff’s Complaint for lack of subject
matter jurisdiction. District courts may, sua sponte, dismiss a complaint for lack of subject

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matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) “when the allegations of a complaint are
totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to
discussion.” Wagenknecht v. United States, 533 F.3d 412, 417 (6th Cir. 2008) (quoting Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999)). In the instant case, the Magistrate Judge found, and
the Court agrees, that Plaintiff’s allegations are entirely implausible and should therefore be
dismissed under Rule 12(b)(1). Accordingly, the Court finds the Magistrate Judge did not error
by dismissing Plaintiff’s frivolous complaint for lack of subject matter jurisdiction under Rule
12(b)(1). Apple, 183 F.3d at 479.
For the reasons stated above, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 9) in its entirety. Accordingly, Plaintiff’s Complaint (ECF No. 1) is
DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1).

IT IS SO ORDERED, this 3rd day of August, 2017.
/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE

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