United States District Court, E.D. Wisconsin
CHARLES E. FERGUSON, Plaintiff,
STATE OF GEORGIA, et al., Defendants.
ORDER ADOPTING JUDGE JOSEPH'S REPORT AND
RECOMMENDATION (DKT. NO. 7), OVERRULING PLAINTIFF'S
OBJECTION (DKT. NO. 8) AND DISMISSING CASE
Pamela Pepper United States District Judge.
August 10, 2018, the plaintiff, who is representing himself,
filed a complaint against the State of Georgia, “P.J.,
” Craig Schwall, Fulton County Superior Court, and N.
Welch. Dkt. No. 1. The plaintiff also filed an
“affidavit of Financial Status, ” dkt. no. 2, and
a motion asking the court to allow him to proceed without
prepaying the filing fee, dkt. no. 4. On August 31, 2018,
Judge Joseph granted the plaintiff's motion to proceed
without prepaying the filing fee, but recommended that this
court dismiss the case because the plaintiff had not stated a
claim for which a federal court could grant relief. Dkt. No.
7. The court adopts that recommendation, and dismisses the
Judge Joseph's Report and Recommendation (Dkt. No.
Joseph began by noting that the plaintiff is a prolific filer
in this district, “having filed fifteen cases over the
years.” Dkt. No. 7 at 3. She commented that the
plaintiff's complaint was difficult to follow, but that
he appeared to challenge a November 2005 incident where an
officer, who was a “certified Ku Kluck Clan [sic]
member of the Welch law enforcement family of South Carolina,
” arrested the plaintiff. Id. (quoting dkt.
no. 1 at 1). The plaintiff alleged that defendant
Welch-apparently a police officer in Atlanta, Georgia- stated
in police reports and swore before a grand jury in Fulton
County, Georgia that he'd seen the plaintiff's
antique guns on the table along with powdered cocaine. Dkt.
No. 1 at 1. The defendant was charged in state court, his
antique guns were forfeited and he was detained in the Fulton
County Jail for two years before being released on Speedy
Trial grounds. Id. at 1-2. The plaintiff alleged
that the charges filed against him were false and that the
state should have returned the two guns (which he valued at
$1, 000, 000) and $24, 000 in currency that was seized from
him. Id. at 2. For relief, he asked for return of
“Three firearms seized by P.O., and 24 thousand
dollars, plus Interest, and to be Compensated for time spent
imprisoned for a crime(2) THAT HE DID NOT COMMIT.”
acknowledging that the law requires judges to give pro
se complaints a liberal construction, Judge Joseph
concluded that even if she liberally construed the complaint,
the plaintiff had not stated a cognizable claim. Dkt. No. 7
at 3. She commented that the plaintiff's complaint
appeared to allege “a conspiracy between Officer Welch,
the prosecutor, and the judge to deprive him of his antique
firearms and money; however, the exact purpose of the
conspiracy is unclear.” Id. at 3-4. Judge
Joseph concluded that the plaintiff's allegations
“border[ed] on fantasy and [could] be dismissed on that
basis alone.” Id. at 4 (citing Taylor v.
Rockford Police Dep't., 165 F.3d 33 (7th Cir. 1998);
Gladney v. Pendleton Corr. Facility, 302 F.3d 773
(7th Cir. 2002)). She also noted that the plaintiff's
claims, brought under 42 U.S.C. §1983, were likely time
barred because Georgia's statute of limitation for
personal injury is two years. Id. (citing Ga. Code
Ann. §9-3-33). For these reasons, Judge Joseph
recommended that this court dismiss the complaint.
Objections to Report and Recommendation
September 11, 2018, the court received from the plaintiff a
one-paragraph objection to Judge Joseph's recommendation.
Dkt. No. 8. The objection cited that the plaintiff had not
consented to the authority of “P.J.” under 28
U.S.C. §636(c)(1), and demanded “the Right to a
more speedy decision of Defendant Court, recently notified of
Perjury 2018.” Id.
Federal Rule of Civil Procedure 72(b)(3), if a party objects
to a magistrate judge's recommendation, the district
court must conduct a de novo review of any portion
of the recommendation to which the party properly objected.
Fed.R.Civ.P. 72(b)(3). The district court may “accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Id.
plaintiff's objection does not address Judge Joseph's
evaluation of his claims, her finding that he had not stated
a claim for which a federal court could grant relief or her
finding that the claims likely were time-barred. The
objection says only that the plaintiff did not consent to the
“Jurisdiction of P.J.” Id. The court
suspects that the plaintiff meant to say that he had not
consented to Judge Joseph's authority to issue the final
decision in his case. The court does not know whether that is
true-judges are not able to view the consent forms filed by
parties. But even if what the plaintiff says is true, and he
did not consent to Judge Joseph's authority to issue a
final decision in his case, that isn't what Judge Joseph
did. She recommended that this court-an Article III,
district court-issue the final decision in the
has explicitly permitted magistrate judges to issue reports
and recommendations to district court judges. Section
636(b)(1)(A) allows district judges to designate certain
matters to magistrate judges for resolution. Although it is
true that the statute says that a magistrate judge cannot
issue a final ruling on a motion “to dismiss for
failure to state a claim upon which relief can be granted,
” it allows a district court judge to “designate
a magistrate judge to . . . submit to a judge of the court
proposed findings of fact and recommendations for the
disposition, by a judge of the court, of any motion excepted
in subparagraph (A)[.]” That is exactly what Judge
Joseph did here- she submitted her proposed findings of fact
and recommended that this court dismiss the plaintiff's
case for the reasons she provided.
plaintiff cited 28 U.S.C. §636(c)(1) in support of his
argument. That part of the statute allows a magistrate judge
to “conduct any or all proceedings in a jury or nonjury
civil matter, ” “upon consent of the
parties.” 28 U.S.C. §636(c)(1). Subsection (c)(1),
however, does not prohibit a district court judge from
designating proceedings to a magistrate judge for a
report and recommendation. The plaintiff's
consent-or lack of ...