Commercial Litigation and Arbitration

Failure to File Written Objection to Magistrate Judge R&R Waives Review of Dist. Ct’s Judgment Is Not Jurisdictional & May Be Disregarded — Especially When Dist. Ct. Has Disregarded It, Too — Sanctions: Vexatious Litigant Injunction

Bonds v. Daley, 2019 WL 2647494 (6th Cir. May 17, 2019):


*1 Todd Bonds, a pro se litigant, appeals the district court’s judgment denying his motion for summary judgment, granting the defendants’ motion for summary judgment, and granting the defendants’ motion to declare him a vexatious litigant. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).


Bonds filed his underlying complaint, construed as brought under 42 U.S.C. § 1983, against Campbell County Detention Center (“CCDC”) Jailer James Daley, Lieutenant Colonel Marc Brandt, and “Unidentified Nursing Employee C/O Southern Health Partners, Inc.” Bonds alleged that the defendants, acting in their official and individual capacities: (1) violated his First Amendment rights by transferring him from CCDC to the Todd County Detention Center (“TCDC”) in retaliation for his requesting various records; (2) violated his Eighth Amendment rights by failing to transfer his prescribed medications to TCDC; (3) violated the Kentucky Open Records Act by failing to disclose the requested records; and (4) engaged in a conspiracy to violate his rights. Bonds sought monetary, declaratory, and injunctive relief. He later filed a motion to amend his complaint to add as defendants CCDC and CCDC Lieutenant Sarah Tate and to style the unidentified defendant as “Unidentified Nurse from Southern Health Partners.”


The magistrate judge denied the motion for leave to amend as futile. Bonds then filed a motion for summary judgment against Daley and Brandt, and Daley and Brandt filed a motion for summary judgment against Bonds. Daley and Brandt also moved to declare Bonds a vexatious litigant. The magistrate judge entered a report recommending that Bonds’s motion for summary judgment be denied and that Daley and Brandt’s motion for summary judgment and to declare Bonds a vexatious litigant be granted. Bonds filed a notice of appeal from the report and recommendation but did not file any substantive objections. The district court adopted the report and recommendation and entered judgment for the defendants.1


On appeal, Bonds argues that: (1) the magistrate judge erred in denying him leave to amend; (2) the district court erred in granting summary judgment to Daley and Brandt on his First Amendment retaliation claim; and (3) the district court erred in granting Daley and Brandt’s motion to declare him a vexatious litigant. Bonds has forfeited review of any additional issues by failing to argue them in his brief on appeal. See Bouyer v. Simon, 22 F. App’x 611, 612 (6th Cir. 2001) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)). Bonds has also filed a motion requesting oral argument.


*2 Bonds’s Motion to Amend. A district court should “freely” grant a party leave to amend his complaint “when justice so requires.” Fed. R. Civ. P. 15(a). “A court need not grant leave to amend, however, where amendment would be ‘futile.’ ” Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir. 2005) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Where the district court has denied leave to amend based on its legal conclusion that amendment would be futile, this court reviews whether the proposed amended complaint “contains ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Williams v. City of Cleveland, 771 F.3d 945, 949 (6th Cir. 2014) (quoting D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)).


Bonds sought leave to amend his complaint to add as defendants CCDC and CCDC Lieutenant Sarah Tate and to style the unidentified defendant as “Unidentified Nurse from Southern Health Partners.” As the magistrate judge explained, however, a jail is not a “person” subject to suit under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Bonds’s motion to amend was therefore futile as to CCDC.


The magistrate judge concluded that Bonds’s remaining proposed amendments (i.e., adding Tate as a defendant and renaming the unidentified defendant) were barred by Kentucky’s one-year statute of limitations for § 1983 actions. See Bonner v. Perry, 564 F.3d 424, 430-31 (6th Cir. 2009). Bonds conceded that the statute of limitations began to run in January 2016. His motion to amend was filed more than one year later, in August 2017. And, as the magistrate judge reasoned, Bonds’s remaining proposed amendments did not “relate back” to his initial complaint for purposes of Federal Rule of Civil Procedure 15(c). Under that rule, “new parties may not be added after the statute of limitations has run, and ... such amendments do not satisfy the ‘mistaken identity’ requirement of [Rule 15(c)(1)(C)(ii), formerly] Rule 15(c)(3)(B).” Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996). Bonds’s attempt to name Tate was an attempt to add a new party. As to the unidentified defendant, “[s]ubstituting a named defendant for a ‘John Doe’ defendant is considered a change in parties, not a mere substitution of parties.” Id. As the magistrate judge explained, “not only [was] Plaintiff attempting to change a ‘John Doe’ defendant, he desire[d] to replace them with yet another ‘John Doe’ defendant that is equivalent to the first.” The magistrate judge therefore properly denied Bonds’s motion to amend.


Daley and Brandt’s Motion for Summary Judgment. A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the governing law[,]’ and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “At the summary judgment stage, we consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.” Id. “And where, as here, the parties filed cross-motions for summary judgment, ‘the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’ ” Id. (quoting Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)).


*3 To the extent that Bonds sued Daley and Brandt in their official capacities, the district court correctly concluded that the defendants were entitled to summary judgment because Bonds “failed to provide any evidence to prove, or even allege, a policy or custom of Campbell County was the moving force behind any of the alleged constitutional deprivations.” See Peatross v. City of Memphis, 818 F.3d 233, 240-41 (6th Cir. 2016). And, although evidence was presented that Daley “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending [subordinate] officers” in approving Bonds’s transfer, id. at 242 (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)), no such allegation or evidence was presented to establish supervisory liability on the part of Brandt. The district court therefore properly concluded that Bonds’s individual-capacity First Amendment retaliation claim could proceed, but only as to Daley. And, for the reasons discussed below, the district court also properly concluded that qualified immunity protected Daley from that remaining claim.2


“The qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In order to overcome a qualified immunity defense, a plaintiff must establish that: (1) the alleged conduct violated a constitutional right, and (2) the right was clearly established at the time of its violation. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). To be clearly established, a “right cannot be defined at a high level of generality, but a right is clearly established if ‘[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Scott v. Becher, 736 F. App’x 130, 132 (6th Cir. 2018) (alterations in original) (quoting Baynes v. Cleland, 799 F.3d 600, 610 (6th Cir. 2015)). “Put another way, the inquiry into whether a right is clearly established asks whether a reasonable government officer would have ‘fair warning’ that the challenged conduct was illegal.” Id. 132-33 (quoting Baynes, 799 F.3d at 612-13).


To prevail on a First Amendment retaliation claim, a plaintiff must establish that:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).


The magistrate judge’s report and recommendation correctly concluded that Bonds has no evidence to satisfy the third prong of this analysis. No evidence suggests that Bonds’s transfer was motivated by his open-records requests. The district court adopted the report and recommendation, to which Bonds had failed to file a substantive objection on this ground. Therefore, Bonds cannot make out a prima facie retaliation case.


Daley and Brandt’s Motion to Declare Bonds a Vexatious Litigant. A district court has “inherent authority” to impose sanctions based on a litigant’s bad faith, contemptuous conduct, and conduct that “abuses the judicial process.” See First Bank of Marietta v. Hartford Underwriters Ins., 307 F.3d 501, 516 (6th Cir. 2002) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991)). An available sanction is “outright dismissal of a lawsuit.” Chambers, 501 U.S. at 45. A district court also has inherent authority to issue an injunctive order to prevent prolific litigants from filing harassing and vexatious pleadings. See Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Filipas v. Lemons, 835 F.2d 1145, 1146 (6th Cir. 1987). Based on the harassing nature of Bonds’s conduct in this and prior actions, which the magistrate judge summarized in his report and recommendation, the district court did not abuse its discretion in this case.


*4 Accordingly, we AFFIRM the district court’s judgment and DENY as moot the motion requesting oral argument.



“This court has exercised its supervisory powers to establish a general rule that failure to file objections to [a report and recommendation] waives appellate review of the district court’s judgment.” Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 458 (6th Cir. 2012). But this rule is not jurisdictional, and we may “disregard[ ] the rule in the interests of justice.” Id. Because the district court did not enforce the forfeiture rule against Bonds, but instead concluded that the magistrate judge’s report and recommendation was “sound in all respects,” we will review the merits of Bonds’s appeal. See id.




Bonds requested not only monetary relief, but also declaratory and injunctive relief. “[I]mmunity only precludes claims for monetary damages against officials in their individual capacities, and not claims for injunctive or declaratory relief.” Collyer v. Darling, 98 F.3d 211, 222 (6th Cir. 1996). Bonds’s release from state custody before the filing of his complaint, however, rendered his claims for declaratory and injunctive relief moot. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).



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