United States District Court, D. Minnesota
RAPHAEL MENDEZ, PRO SE.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
Raphael Mendez has objected to a Report and Recommendation
(“R&R”) issued by United States Magistrate
Judge Steven E. Rau recommending that Mendez's
application to proceed in forma pauperis (“IFP”)
be denied and his complaint be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
on which relief may be granted. After an independent review
of the files, records, and proceedings, the Court will
conclude that Mendez's complaint fails to state a claim
and will adopt the R&R, overrule Mendez's objection,
and dismiss the complaint.
is an inmate at FMC Rochester. (Compl. ¶ I, Aug. 16,
2017, Docket No. 1.) He claims that the defendants have
retaliated against him by preventing him from communicating
with his family and brings this action under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). (Id. ¶ IV.)
September 27, 2017, Magistrate Judge Rau issued an R&R
recommending that Mendez's IFP application be denied and
his complaint be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which
relief may be granted. (R&R at 3-6, Sept. 27, 2017,
Docket No. 8.) No objections had been filed by the October
11, 2017 deadline. On October 12, 2017, this Court entered an
Order adopting the R&R. (Order, Oct. 12, 2017, Docket No.
9.) The day after the filing of that Order, Mendez filed an
objection to the R&R. (Pl.'s Obj., Oct. 13, 2017,
Docket No. 11.) In light of Mendez's objection, the Court
stayed its October 12 Order so that the Court could consider
Mendez's objection. (Order, Nov. 1, 2017, Docket No. 15.)
magistrate judge files an R&R, a party may file
“specific written objections to the proposed findings
and recommendations.” Fed.R.Civ.P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections
should specify the portions of the magistrate judge's
report and recommendation to which objections are made and
provide a basis for those objections.” Mayer v.
Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn.
Sept. 28, 2008). For dispositive matters, the Court reviews
de novo a “properly objected to” portion of an
R&R. Fed.R.Civ.P. 72(b)(3); accord D. Minn. LR
72.2(b)(3). “Objections which are not specific but
merely repeat arguments presented to and considered by a
magistrate judge are not entitled to de novo review, but
rather are reviewed for clear error.” Montgomery v.
Compass Airlines, LLC, 98 F.Supp.3d 1012, 1017 (D. Minn.
determining whether a complaint states a claim on which
relief may be granted, the Court considers all facts alleged
in the complaint as true to determine if the complaint seeks
“relief that is plausible on its face.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). A complaint must
provide more than “‘labels and conclusions'
or ‘a formulaic recitation of the elements of a cause
of action.'” Iqbal, 556 U.S. at 678
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Although the Court accepts the
complaint's factual allegations as true, it is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555
(quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
Mendez's complaint alleges that a group of defendants
“retaliated against him by cutting off a phone call
with his brother.” (R&R at 3.) But Mendez's
complaint makes only vague, conclusory allegations that he
has been the subject of retaliation. (See Compl.
¶ II.) Mendez states only that he “believe[s] the
SIS monitoring Dept. has [r]igged” the phone.
(Id. ¶ IV.5.) Without more, Mendez's
complaint fails to sufficiently allege unlawful retaliation.
objection to the R&R does not address the reasons that
the Magistrate Judge gave for recommending that the Court
deny his IFP application and dismiss his complaint. Rather,
Mendez objects to particular words and phrases in the
R&R. For example, Mendez objects to the Magistrate
Judge's characterization of the named defendants in this
action as “confusing.” (Obj. at 4; see
R&R at 1 n.1.) Mendez states that officials at FMC
Rochester did not provide him with the names of the
individuals that Mendez sought to name in this action. (Obj.
at 5.) Although Mendez is not required to use the correct
legal names of the defendants in an initial complaint,
see Bivens, 403 U.S. at 388, he is required to plead
facts that plausibly state a claim for relief. Fed.R.Civ.P.
8, 12(b)(6); Iqbal, 556 U.S. at 678.
also objects to the Magistrate Judge's use of the phrase
“scorched earth tactics” to describe previous
lawsuits Mendez has filed in various federal courts. (Obj. at
4; see R&R at 3.) Mendez's objection then
proceeds to recount many of the allegations in his previous
lawsuits. (Obj. at 4-8.) Mendez also objects to the R&R
on the ground that the Court is biased against him. (Obj. at
9-14.) These objections do not persuade the Court that
Mendez's complaint states a claim on which relief may be
granted. The Court will therefore overrule Mendez's
objection, adopt the R&R, deny Mendez's motion, and
dismiss his complaint.
on the foregoing, and all the files, records, and proceedings