Opinion
CASE NO. 2:06-CV-179-FtM-36SPC.
July 26, 2010
ORDER
THIS CAUSE is before the Court on the Report and Recommendation of Magistrate Judge Sheri Polster Chappell, issued on February 23, 2010 (Dkt. 330). Plaintiffs filed objections to the Report and Recommendation on March 8, 2010 (Dkt. 331). The Report recommends granting the Motions to Dismiss Plaintiffs' Third Amended Complaint filed by: 1) Defendant Jose Lopez (Dkt. 248); 2) Defendant Kevin Rambosk (Dkt. 249, 306); 3) Defendant Lynn Gizzi (Dkt. 293); 4) Defendant Julie Green (Dkt. 294); 5) Defendant Hamilton, Supervisor of Golden Gate Area (Dkt. 295); 6) Defendant David Jolicoeur (Dkt. 296); 7) Defendant Kenneth Martindale (Dkt. 297); 8) Defendant Ed Busby (Dkt. 298); 9) Defendant Steven Young (Dkt. 299); 10) Defendant David Sieber (Dkt. 300); 11) Defendant Robert Capizzi (Dkt. 301); 12) Defendant Christine Bates (Dkt. 302); 13) Defendant Don Hunter (Dkt. 303); 14) Defendant Theresa Wright (Dkt. 304); 15) Defendant Deputy Turner (Dkt. 305); 16) Defendant Diane Sullivan (Dkt. 307); and 17) Defendant Nancy Figueroa (Dkt. 313). Plaintiffs filed their Third Amended Complaint on July 20, 2009 (Dkt. 224).
Defendant Rambosk filed a Motion to Dismiss and did not title it as a Motion to Dismiss Plaintiffs' Third Amended Complaint. However, it seeks the same result as the other motions.
I. CLAIMS DISMISSED WITH PREJUDICE
II. ADOPTION OF THE REPORT AND RECOMMENDATION
See Pelletier v. Zweifel921 F.3d 14651518Byrne v. Nezhat261 F.3d 10751131States v. Silverman745 F.2d 13861395
In their objections to the Report and Recommendation, Plaintiffs state:
In light of Canc [sic] v. Clay County Sheriff's Office [No. 3:09-cv-87-J-32JRK, 2009 WL 1607780 (M.D. Fla. June 9, 2009)], the Plaintiff [sic] are willing to dismiss all of their Conspiracy claims except those against Deputy Green and the Conspiracy with Nancy Figeuroa at the Collier Court and Deputy Lopez and his Conspiracy with Vericker, who was dismissed due to his absolute immunity to a civil action which Lopez does not have. The Plaintiffs still believe they have valid claims against these 3 Defendants for their Conspiracies and have shown the same.
(Dkt. 331, p. 9) (emphasis added). In light of this statement, the Court directed Plaintiffs to advise the Court as to how they wished to dismiss several additional claims on April 2, 2010 (Dkt. 340). Plaintiffs failed to respond to the Court's Order.
Upon review of Plaintiffs' objections to the Report and Recommendation, the Court notes that the Order issued by Judge Marcia Morales Howard on August 8, 2008 did not dismiss all of the claims previously alleged by Plaintiffs (Dkt. 124, pp. 20-21). Plaintiffs did attempt to re-assert the claims that were not previously dismissed in the Third Amended Complaint. Based on Plaintiffs' objections and Judge Howard's Order, the Court finds that dismissal without prejudice is the more appropriate disposition of Plaintiffs' Third Amended Complaint.
After carefully considering Plaintiffs' Third Amended Complaint, Plaintiffs' Voluntary Dismissals, Magistrate Judge Chappell's Report and Recommendation, Plaintiffs' Objections thereto, Judge Howard's Order, and undertaking a de novo review of the legal determinations recommended in the Report and Recommendation, the Court concludes that Magistrate Judge Chappell's Report and Recommendation should be confirmed and accepted to the extent that it recommends that the Third Amended Complaint be dismissed as a shotgun pleading. The Court will dismiss this action without prejudice.
Accordingly, it is now ORDERED and ADJUDGED as follows:
1. The Report and Recommendation of the Magistrate Judge (Dkt. 330) is ADOPTED, CONFIRMED and APPROVED to the extent that it DISMISSES Plaintiffs' Third Amended Complaint as a shotgun pleading.
2. Defendants' Motions to Dismiss (Dkts. 248, 249, 293-307, 313) are GRANTED.
3. Plaintiffs' Third Amended Complaint (Dkt. 224) is DISMISSED without prejudice.
4. The Clerk is directed to terminate all pending motions, enter judgment accordingly, and close the file.DONE AND ORDERED at Ft. Myers, Florida.