Opinion
CIVIL ACTION NO. 6:18cv594
08-28-2019
KENNETH ALEXANDER v. SMITH COUNTY SHERIFF'S OFFICE, ET AL.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING MOTION TO DISMISS AS MOOT
The Plaintiff Kenneth Alexander, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court referred the case to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Alexander originally named the Smith County Sheriff's Office, the Smith County Commissioner's Court, and the Smith County Jail as Defendants. The Defendants filed a motion to dismiss the lawsuit, and in response, Alexander sought leave to file an amended complaint, which was granted.
On July 31, 2019, the Magistrate Judge issued a Report recommending the motion to dismiss be denied without prejudice as moot. No objections were filed to this Report; accordingly, the parties are barred from de novo review by the District Judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge. Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243 (1989) (where no objections to a Magistrate Judge's Report are filed, the standard of review is "clearly erroneous, abuse of discretion and contrary to law.") It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 23) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendants' motion to dismiss (docket no. 6) is DENIED as moot, without prejudice to the Defendants' right to re-file or re-urge their motion to dismiss, or file such other motion or answer as may be appropriate, in response to the amended complaint. It is further
ORDERED that the Plaintiff's motion to amend his complaint (docket no. 26) is GRANTED. While it appears that the Plaintiff sought to incorporate his amended complaint in the motion, this is not proper because under Local Rule CV-7(k), a motion for leave to file a document should be filed separately and immediately before the document for which leave is sought. In addition, the putative amended complaint is not on a standard complaint form and is not entirely clear, in that it does not specifically set out the individuals whom Alexander seeks to sue nor incorporate a short and plain statement of his claims. It is therefore
ORDERED that the Clerk shall furnish a standard lawsuit form to the Plaintiff Kenneth Alexander and Alexander shall have until September 30, 2019, in which to file his amended complaint. He should be sure his amended complaint sets out: (1) a concise statement of each of the claims which the Plaintiff wishes to raise, together with the facts giving rise to each of these claims, including the dates of occurrences of these events, if known; (2) the individual or individuals whom Plaintiff wishes to name as defendants in this lawsuit; (3) a statement showing how each named defendant is involved in the facts forming the basis of the lawsuit; (4) the harm which the Plaintiff suffered as a result of the facts forming the basis of this lawsuit; and (5) the specific relief sought by the Plaintiff in this lawsuit. It is further
ORDERED that the Defendants shall have 30 days after the filing of Plaintiff's amended complaint in which to answer or otherwise plead to the amended complaint.
SIGNED this the 28 day of August, 2019.
/s/_________
Thad Heartfield
United States District Judge