Opinion
CIVIL ACTION NO. 2:13-CV-884
07-31-2014
KENNITH MONTGOMERY Plaintiff v. STATE OF LOUISIANA, ET AL. Defendants
MAGISTRATE JUDGE KAY
MEMORANDUM RULING
Before the court is the Report and Recommendation [Doc. 10] of the Magistrate Judge, recommending the dismissal, with prejudice, of the plaintiff's complaint in its entirety pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i),(ii).
Report and Recommendation [Doc. 10], at 5.
28 U.S.C. § 636(b)(1)(B) empowers a district judge to designate a magistrate judge to "submit to a judge of the court proposed findings of fact and recommendations for the disposition'" of certain dispositive matters, "applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement." 28 U.S.C. § 636(b)(1)(B). The district judge ''shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C).
As to the plaintiff's claims for monetary damages resulting from his alleged illegal arrest, trial and conviction, the court hereby adopts the Report and Recommendation [Doc. 10] of the Magistrate Judge in its entirety, and dismisses, with prejudice, the plaintiff's claim for monetary damages as legally frivolous pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i),(ii). As to the Magistrate Judge's recommendation that the plaintiff's petition for habeas corpus be dismissed, with prejudice, for failure to exhaust his state court remedies, however, that portion of the Report and Recommendation [Doc. 10] is hereby AMENDED to reflect that the plaintiff's habeas corpus claims are hereby dismissed, without prejudice.
Lake Charles, Lousiana, this 31 day of July, 2014.
/s/_________
PATRICIA MINALDI
UNITED STATES DISTRICT JUDGE