UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION

JOHN TOMES, ) ) Plaintiff, ) ) v. ) Case No. 1:22-cv-01140-MHH-SGC ) CHERON T. NASH, et al., ) ) Defendants. )

MEMORANDUM OPINION In this action, pro se plaintiff John Tomes asserts Eighth Amendment claims against the defendants under Bivens v. Six Unknown Named Agents,

(1971). The magistrate judge entered a report in which she recommended that the Court grant the defendants’ motion for judgment on the pleadings based on the Eleventh Circuit’s decision in Johnson v. Terry,

(11th Cir. 2024). (Doc. 46). Mr. Tomes has objected to the report and recommendation. (Doc. 47). The United States has responded to Mr. Tomes’s objections. (Doc. 48). A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

(b)(1)(C). A district judge must “make a de novo determination of those portions of the [magistrate judge’s] report or specified proposed findings or recommendations to which objection is made.”

(b)(1); see also FED. R. CIV. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objective to.”). A district court’s obligation to

“‘make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,’” 447 U.S. at 673 (quoting

(b)(1)), requires a district judge to “‘give fresh consideration to those

issues to which specific objection has been made by a party,’” 447 U.S. at 675 (quoting House Report No. 94-1609, p. 3 (1976)). United States v. Raddatz,

(1980) (emphasis in Raddatz). In his objections, Mr. Tomes takes issue with the Eleventh Circuit’s ruling in

Johnson and the magistrate judge’s finding that, under Johnson, his claim presents a new Bivens context. (Doc. 47, pp. 2, 4). Mr. Tomes argues that Johnson is a “complete misinterpretation” of the Supreme Court’s decision in Egbert and

“effectively overrules” Egbert and Carlson. (Doc. 47, pp. 1-2) (citing Egbert v. Boule,

(2022), and Carlson v. Green,

(1980)). Mr. Tomes argues that under Johnson, to proceed with a Bivens claim, his claim must be a “factual clone” of Bivens or Carlson. (Doc. 47, p. 2). He adds that Johnson makes

it “factual[ly] impossib[le] for someone to have a claim under Carlson today” because of the BOP grievance process. (Doc. 47, pp. 2-3). The Court understands Mr. Tomes’s disagreement with the Johnson decision,

but the Court must apply Johnson in this case. As the magistrate judge stated, Mr. Tomes “cannot state a plausible Bivens claim under the Eleventh Circuit’s controlling opinion in Johnson.” (Doc. 46, p. 10). Therefore, the Court overrules Mr. Tomes’s objections. Having reviewed the materials in the Court’s electronic file, the Court adopts the magistrate judge’s report and accepts her recommendation. The Court denies Mr. Tomes’s motion to appoint counsel, (Doc. 41). By separate order, the Court will grant the defendants’ motion for judgment on the pleadings and dismiss Mr. Tomes’s remaining Bivens claim. The Clerk of Court shall please term Docs. 41, 42, and 46. DONE and ORDERED this March 27, 20235.

adit Si avila Madilei O—— UNITED STATES DISTRICT JUDGE