Opinion
CASE NO. 19-6170 RJB DWC
06-15-2020
BRIAN JUDAH MICHALEK, Plaintiff, v. TOWNSEND POLICE DEPARTMENT, et. al., Defendants.
ORDER ON REPORT AND RECOMMENDATION
THIS MATTER comes before the Court on the Report and Recommendation of U.S. Magistrate Judge David W. Christel. Dkt. 17. The Court has considered the Report and Recommendation, the Plaintiff's objections, and the remaining file.
The Plaintiff filed this prisoner civil rights case on December 5, 2019. Dkt. 1. His application to proceed informa pauperis was granted on January 24, 2020. Dkt. 5. That same day, on January 24, 2020, an order was entered regarding the Plaintiff's case. Dkt. 8. The Order identified several deficiencies (problems) with the Plaintiff's Complaint except for the Plaintiff's claim against Officer Daniel Rios for excessive force. Id. It stated that:
[I]f Plaintiff intends to pursue a § 1983 civil rights action in this Court, he must file an amended complaint and within the amended complaint, he must write a short, plain statement telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the person who violated the right; (3) exactly what the individual did or failed to do; (4) how the action or inaction of the individual is connected to the violation of Plaintiff's constitutional rights; and (5) what specific injury Plaintiff suffered because of the individual's conduct.Dkt. 8. The Court then sent the Plaintiff a copy of a form complaint and instructions. Id. The Plaintiff was informed that if he "fails to file an amended complaint or fails to adequately address the issues raised herein on or before February 24, 2020, the undersigned will recommend dismissal of all claims other than the claim for excessive force against Defendant Rios." Id.
The Plaintiff sought, and received, extensions of time to file an amended complaint, with the last deadline set for May 15, 2020. Dkts. 9, 12, and 14. On May 4, 2020, the Plaintiff filed a motion to voluntarily dismiss the case. Dkt. 15.
The instant Report and Recommendation was filed on May 15, 2020. Dkt. 17. It recommends dismissal of the case without prejudice in accord with the Plaintiff's voluntary motion to dismiss. Id.
On May 28, 2020, the Plaintiff filed objections to the Report and Recommendation, stating that he no longer wants to dismiss his case. Dkt. 18. The Plaintiff states he was under duress when he filed the motion to dismiss. Id. He asks to be sent an additional copy of the form complaint. Id. The Plaintiff moves for an extension of time to file the amended complaint. Id. He indicates that he is not clear on what the term "deficiencies" means. Id.
The Report and Recommendation (Dkt. 17) should not be adopted. The Plaintiff has withdrawn his motion to voluntarily dismiss this case. The case should be re-referred to Judge Christel for further proceedings, including to set a deadline for when the proposed amended complaint should be filed.
The Clerk of the Court should be directed to resend the Plaintiff a copy of the Court's January 24, 2020 Order to Show Cause or Amend (Dkt. 8), the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint and for service, and the Pro Se Instruction Sheet.
IT IS ORDERED:
• The Report and Recommendation (Dkt. 17) IS NOT ADOPTED; and
• The case IS RE-REFERRED to Judge Christel for further proceedings, including to set a deadline for when the proposed amended complaint should be filed.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address. The Clerk is further directed to resend the Plaintiff a copy of the Court's January 24, 2020 Order to Show Cause or Amend (Dkt. 8), the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint and for service, and the Pro Se Instruction Sheet.
Dated this 15th day of June, 2020.
/s/_________
ROBERT J. BRYAN
United States District Judge