Opinion
Case No. 6:07-cv-1971-Orl-28DAB.
September 2, 2008
ORDER
This case is before the Court on Detective Carly Hubbard's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 23) filed May 30, 2008, and Motion to Quash or Alternatively Motion to Dismiss and Strike Plaintiff's Second Amended Complaint (Doc. No. 24) filed May 30, 2008. The United States Magistrate Judge has submitted a report recommending that the motions be granted and Plaintiff's Second Amended Complaint be dismissed without prejudice.
After an independent de novo review of the record in this matter, and noting that no objections were timely filed, the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation.
Plaintiff did not file any objections to the Report and Recommendation but did file a "Final Amended Complaint." Two of the named Defendants, the Orange County Sheriff's Office and Detective Carly Hubbard, have filed Motions to Dismiss the Final Amended Complaint (Doc. Nos. 30, 31). The Court finds that the Final Amended Complaint suffers from the same deficiencies outlined in the Report and Recommendation. Further, Plaintiff did not seek leave, nor had he been granted leave by the Court, to file another amended complaint and the opposing parties did not give their written consent for the amendment. See Fed.R.Civ.P. 15(1)(2).
Therefore, it is ORDERED as follows:
1. That the Report and Recommendation filed August 4, 2008 (Doc. No. 28) is ADOPTED and CONFIRMED and made a part of this Order.
2. The motions to dismiss filed at docket entries 23 and 24 are GRANTED.
3. Plaintiff's Second Amended Complaint (Doc. No. 22) is DISMISSED without prejudice.
4. Plaintiff's Final Amended Complaint (Doc. No. 29) is DISMISSED without prejudice.
5. The Clerk is directed to strike the exhibits filed with the Final Amended Complaint (Doc. No. 29) and delete them from the docket.
6. The motions to dismiss filed at docket entries 30 and 31 are DENIED as moot.
7. The Plaintiff is granted leave to amend his complaint one final time to assert only a claim against the Orange County Sheriff in his official capacity based on a policy, custom, or practice on the part of state actors that was the "moving force" behind the alleged misconduct and Plaintiff's injuries. The amended complaint must be filed within eleven (11) days of this Order. Failure to file the amended complaint within the time allowed or the timely filing of an amended complaint that fails to comply with the parameters outlined in this Order, will result in the dismissal and closing of this case.
DONE and ORDERED in Chambers, Orlando.