Opinion
CASE NO. 3:19-cv-05108-BHS-JRC
04-27-2020
JUSTIN E. LEWIS, Plaintiff, v. CRAIG FERGUSON, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable J. Richard Creatura, United States Magistrate Judge, Dkt. 36, and Plaintiff's objections to the R&R, Dkt. 37.
Plaintiff initiated this matter on February 15, 2019, alleging use of excessive force and violation of his First Amendment rights. Dkt. 5. After a motion to dismiss, this Court dismissed Plaintiff's First Amendment claim with leave to amend and granted leave to amend Plaintiff's claim for excessive force. Dkt. 23. Plaintiff filed an amended complaint on December 11, 2019. Dkt. 30. The amended complaint contains expanded allegations regarding Plaintiff's First Amendment claims. Id. However, it does not allege facts supporting Plaintiff's excessive force claims; instead, Plaintiff simply stated that he would "like to have the right to proceed on the excessive force claim as is already written." Dkt. 30 at 4. As the Magistrate Judge noted in the R&R, this omission appears to have resulted from Plaintiff's lack of understanding that the amended complaint would fully supersede the original complaint and that he therefore needed to re-allege facts supporting his excessive force claims. Dkt. 36 at 7-8.
On December 20, 2020, Defendants moved to dismiss the amended complaint. Dkt. 31. Plaintiff filed an opposition, Dkt. 33 and Defendants replied, Dkt. 34. On March 16, 2020, Magistrate Judge Creatura issued the R&R, which recommends dismissal with prejudice of plaintiff's First Amendment claim and dismissal of the excessive force claim with leave to amend. Dkt. 36. On March 31, 2020, Plaintiff filed objections to the R&R. Dkt. 38.
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).
Plaintiff's objections do not respond substantively to the R&R. Dkt. 37. Instead, Plaintiff complains of mental health issues and difficulty gaining sufficient access to "law work time." Id. It appears that Plaintiff's concerns relate primarily to delay in accessing legal resources and can be addressed by granting him additional time in which to amend his complaint. Accordingly, the Court will grant Plaintiff 60 days in which to file an amended complaint.
The Court having considered the R&R, Plaintiff's objections, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) Defendant's motion to dismiss, Dkt. 31, is GRANTED with respect to Plaintiff's First Amendment claim;
(3) Plaintiff's First Amendment claims are DISMISSED with prejudice;
(4) Plaintiff's claim for use of excessive force is DISMISSED without prejudice;
(5) Plaintiff is granted leave to amend his complaint to allege claims for excessive force; Plaintiff shall file an amended complaint or otherwise respond no later than June 23, 2020; and
(6) This matter is re-referred to Magistrate Judge Creatura for further proceedings.
Dated this 27th day of April, 2020.
/s/_________
BENJAMIN H. SETTLE
United States District Judge