United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE
the court are the Magistrate Judge's Recommendation (Doc.
# 7), Plaintiff's objections to the Recommendation (Doc.
# 9), Plaintiff's Motion to Transfer and Consolidate for
Pretrial Proceedings Pursuant to Rules for Multidistrict
Litigation Under 28 U.S.C. § 1407 (Doc. # 11), and
Plaintiff's Motion for Immediate Consideration of
Petition to Proceed In Forma Pauperis and for
Preliminary Injunction (Doc. # 12). As explained below, the
Recommendation is due to be adopted, Plaintiff's
objections are due to be overruled, and Plaintiff's
motions are due to be denied.
THE RECOMMENDATION AND PLAINTIFF'S OBJECTIONS
October 10, 2017, the Magistrate Judge filed a Recommendation
that all of Plaintiff's claims be dismissed prior to
service of process pursuant to 28 U.S.C. §
1915(e)(2)(B). (Doc. # 7.) The Magistrate Judge construed
Plaintiff's pro se Complaint (Doc. # 1) as a
Bivens action (Doc. # 7, at 1) before finding that
each Defendant is immune from Plaintiff's claims (Doc. #
7, at 5-8) and that Plaintiff's claims “are
frivolous as a matter of law” (Doc. # 7, at 7, 8).
made three separate (but somewhat overlapping) objections to
the Recommendation. (Doc. # 9.) First, Plaintiff accused the
Magistrate Judge of bias. (Doc. # 9.) Indeed, Plaintiff's
objection appears to include a motion to disqualify the
Magistrate Judge (Doc. # 9, at 2), which the Magistrate Judge
properly denied (Doc. # 10). As the Magistrate Judge
observed, “it appears that Plaintiff does not accept
[the Magistrate Judge's] basis for the report and
recommendation, and therefore concludes, without any factual
support, that the only explanation for such a ruling must be
bias against Plaintiff.” (Doc. # 10, at 4.) Such an
unsupported accusation of bias fails to undermine the sound
reasoning in the Recommendation.
Plaintiff argued that the Magistrate Judge erred by
construing his Complaint as a Bivens action. (Doc. #
9, at 2.) Admittedly, Plaintiff did not cite Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). But based on the allegations in his
Complaint-which the Magistrate Judge fairly described as
“rambling and narrative in nature” (Doc. # 9, at
2)-Bivens offered Plaintiff his best hope for
relief. The Magistrate Judge thus did not err in construing
Plaintiff's Complaint as a Bivens action.
Plaintiff argued that the Magistrate Judge wrongly denied him
due process. (Doc. # 9, at 2.) Specifically, Plaintiff
asserts that “[t]he court must conduct an evidentiary
hearing prior to reclassifying the case, afford plaintiff the
opportunity to amend the complaint, and afford plaintiff the
opportunity to mediate the case prior to the court making the
final decision.” (Doc. # 9, at 2.) But Plaintiff simply
is not entitled to the process he seeks. To the contrary, the
court must dismiss this action under 28 U.S.C. §
1915(e)(2)(B) because it “is frivolous, ”
“fails to state a claim on which relief may be granted,
” and “seeks monetary relief against . . .
defendant[s] who [are] immune from such relief.”
short, each of the arguments Plaintiff makes in his
objections is without merit. His objections are thus due to
be overruled, and the Recommendation is due to be adopted.
PLAINTIFF'S PENDING MOTIONS
has also filed two motions that are currently pending. The
first is Plaintiff's Motion to Transfer and Consolidate
for Pretrial Proceedings Pursuant to Rules for Multidistrict
Litigation Under 28 U.S.C. § 1407. (Doc. # 11.) That
motion is frivolous and therefore due to be denied.
second is Plaintiff's Motion for Immediate Consideration
of Petition to Proceed In Forma Pauperis and for
Preliminary Injunction. (Doc. # 12.) To the extent
Plaintiff's motion seeks immediate consideration of
Plaintiff's earlier motions to proceed in forma
pauperis (Docs. # 2, 4), it is due to be denied as moot
because the Magistrate Judge has already denied
Plaintiff's earlier motions (Doc. # 7, at 8). To the
extent Plaintiff's motion seeks a preliminary injunction,
it is due to be denied because Plaintiff has failed to meet
his burden of establishing the prerequisites for preliminary
injunctive relief. See, e.g., Citizens for
Police Accountability Political Comm. v. Browning, 572
F.3d 1213, 1217 (11th Cir. 2009).
it is ORDERED as follows:
1. The Magistrate Judge's Recommendation (Doc. # 7) is