Opinion
Civil Action No. 17-21160-Civ-Scola
11-15-2018
Cleon Edward Major, Plaintiff, v. Rick Ramsey and others, Defendants.
Order on Magistrate Judge's Report And Recommendation
This case was referred to United States Magistrate Judge Patrick A. White, consistent with Administrative Order 2003-19 of this Court, for a ruling on all pre-trial, nondispositive matters and for a report and recommendation on any dispositive matters. On August 1, 2018, Judge White issued a report, recommending that the motion to dismiss (ECF No. 25) filed by Defendants Monroe County Sheriff Rick Ramsay, and Deputy Sheriffs Timothy Age, Jonathan Crane, Todd Silvers, Darryl Woods, which Defendant Deputy Sheriff Anthony Williams adopted (ECF No. 44), be granted. (Report, ECF No. 64.) Plaintiff Cleon Edward Major filed a "response" to Judge White's Report on August 16, 2018 (ECF No. 65) in which he states he will rest on the contents of his complaint.
However, on July 18, 2018, this Court consolidated this matter with another case brought by Major, see No. 18-10087-Civ-Scola, and directed Major to file a consolidated complaint on or before August 17, 2018. (Order, ECF No. 63.) The Court later extended that deadline to October 18, 2018. With no consolidated complaint on the docket, on October 29, 2018, the Defendants filed a motion to dismiss with prejudice (ECF No. 69). They argue that the Court should dismiss this case with prejudice because Major failed to file his amended complaint by the imposed deadline.
On November 6, 2018, Major's consolidated complaint was entered on the docket. However, there is evidence that Major attempted to submit the complaint before the Court's deadline. The consolidated complaint is dated October 14, 2018 and the envelope in which the complaint was delivered has a notation that states "MAILED ON 15 OCT 2018." The postage indicates that the complaint was mailed out on October 24, 2018.
Although it is unclear when Major submitted the complaint to prison officials for filing, the Court finds that there is evidence that Major attempted to submit his consolidated complaint before October 18, 2018. See Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993) (holding that in cases involving pro se prisoners asserting 42 U.S.C. § 1983 and Federal Tort Claims Act claims, "the date of filing shall be that of delivery to prison officials of a complaint or other papers destined for district court for the purpose of ascertaining timeliness"). The Court finds no reason to penalize Major now that the consolidated complaint has been filed.
With a new complaint in place, the Defendants' motions to dismiss are now moot. See Taylor v. Alabama, 275 F. App'x 836, 838 (11th Cir. 2008) (noting that when the plaintiffs amended their complaint the defendants' motion to dismiss became moot). The Court therefore denies as moot the Defendants' motions to dismiss (ECF Nos. 25, 69) and declines to adopt Magistrate Judge White's Report (ECF No. 64) because it is now moot as well.
Done and ordered at Miami, Florida, on November 15, 2018.
/s/_________
Robert N. Scola, Jr.
United States District Judge