Opinion
2:11-CV-0104
03-30-2012
DAVID MATTHEW LAYTON, #751249, Plaintiff, v. RANDALL C. SIMS, Defendant.
ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS
Plaintiff DAVID MATTHEW LAYTON, while a prisoner incarcerated in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendant and has been granted permission to proceed in forma pauperis.
On March 14, 2012 a Report and Recommendation was issued by the United States Magistrate Judge analyzing defendant Sims' motion to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, as well as plaintiff's responses, and recommending the motion to dismiss be denied without prejudice to defendant re-urging limitations either at trial, in a motion for summary judgment, or in a supplemental motion for summary judgment with all necessary summary judgment evidence included.
The period for response has expired; and no objections have been filed.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation. The Court is of the opinion that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court.
This Court, therefore, does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge in this case.
IT IS THEREFORE ORDERED that the Motion to Dismiss by defendant Sims is DENIED WITHOUT PREJUDICE TO DEFENDANT RE-URGING LIMITATIONS EITHER AT TRIAL, IN A MOTION FOR SUMMARY JUDGMENT, OR IN A SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT WITH ALL NECESSARY SUMMARY JUDGMENT EVIDENCE INCLUDED.
The Clerk will mail a copy of this ORDER to the plaintiff and to each attorney of record by first class mail.
It is SO ORDERED.
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MARY LOU ROBINSON
United States District Judge