Opinion
C.A. NO.: 3:18-CV-46-JWD-RLB
02-26-2019
JOHN WAYNE TONUBBEE (#098923) v. DARRYL VANNOY, ET AL
RULING AND ORDER
Before the Court are four matters. John Wayne Tonubbee ("Plaintiff" or "Tonubbee") has filed an Application for Temporary Restraining Order. (Doc. 34.) Second, he asks the Court to grant his Request for Leave of Court to Amend Complaint. (Doc. 37.) Third, Plaintiff files an objection (Doc. 46) to the Magistrate Judge's Report and Recommendation (Doc. 45), which recommends that defendants' Motion to Dismiss (Doc. 24) be granted and Plaintiff's Motion to Deny Motion to Dismiss (Doc. 30) be denied. Defendants oppose Plaintiff's objection. (Doc. 50.) The final matter is Plaintiff's Request for Leave to File Objections to Defendant's [sic] Objections to Magistrate Judge's Report and Recommendation and Motion for Stay of Proceedings. (Doc. 51.)
The Court grants that part of Doc. 51 requesting leave to object (respond) to Defendant's objections to the Magistrate Judge's R&R and the Court has considered his pleading. However, the Court overrules his objections to the R&R (Doc. 46) and denies as moot that part of Doc. 51 asking, in the alternative motion, for a stay. In addition, the Court denies as moot his Application for Temporary Restraining Order (Doc. 34) and Request for Leave of Court to Amend Complaint. (Doc. 37).
In reviewing the Magistrate Judge's Report and Recommendation, this Court finds no error of fact or law. Even if Plaintiff is correct in his assertion that the failure of Lewis, et al v. Cain, et al., Civil Action No 15- 00318-SDD-RLB (M.D. La) to include allegations regarding Plaintiff's hernia complaints renders inapposite the cases relied on by the Magistrate Judge (Pittman v. Moore, 980 F.2d 993, 995 (5th Cir. 1993), Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989) and Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)), (and this Court does not so hold), it is clear that Plaintiff's claims regarding the failure to treat his hernia condition have prescribed. (See Doc. 24-3 at 1, 3-5).
Compare Plaintiff's Amended Complaint, Doc. 6, with allegations made in Lewis v. Cain, supra, Doc. 71 at 16-17. --------
After independently reviewing the entire record in this case and for the reasons set forth in the Magistrate Judge's Report dated January 2, 2019, to which an opposition was filed,
IT IS ORDERED that the defendants' Motion to Dismiss (Doc. 24) is granted, dismissing the Plaintiffs' claims against all defendants with prejudice, and that Plaintiff's Motion to Deny Motion to Dismiss (Doc. 30) is denied.
IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction in connection with Plaintiff's potential state law claims.
IT IS FURTHER ORDERED that Plaintiff's pending Application for Temporary Restraining Order (Doc. 34) and Request for Leave to Amend Complaint with Second Amendment (Doc. 37) are denied as moot.
IT IS FURTHER ORDERED that Plaintiff's Request for Leave to File Objections to Defendant's [sic] Objections to Magistrate Judge's Report and Recommendation and Motion for Stay of Proceedings. (Doc. 51), is granted in part, in that he is given leave to file this supplemental objection to the Magistrate Judge's report, but it is denied in all other respects.
Judgment shall be entered accordingly.
Signed in Baton Rouge, Louisiana, on February 26, 2019.
/s/ _________
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA