Opinion
W-21-CV-00895-ADA-DTG
10-14-2022
ANDY HOPE WILLIAMS JR., SUI JURIS IN PROPRIA PERSONA; AND AMY CAGE, SUI JURIS IN PROPRIA PERSONA; Plaintiffs, v. EDDY LANGE, IN HIS/HER OFFICIAL CAPACITY; KENYON MCKINNEY, IN HIS/HER OFFICIAL CAPACITY; MR. FNU MONTGOMERY, IN HIS/HER OFFICIAL CAPACITY; JOSE GARCIA RUBIO, IN HIS/HER OFFICIAL CAPACITY; MR. FNU MOORE, IN HIS/HER OFFICIAL CAPACITY; MR. FNU CLEAN, IN HIS/HER OFFICIAL CAPACITY; MR. FNU SHEPHERD, IN HIS/HER OFFICIAL CAPACITY; MR. FNU BLACKWOOD, IN HIS/HER OFFICIAL CAPACITY; MS. FNU HEAL, IN HIS/HER OFFICIAL CAPACITY; MS. FNU LITTLE, IN HIS/HER OFFICIAL CAPACITY; AND BELL COUNTY SHERIFF'S DEPARTMENT, Defendants.
THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DEREK T. GILLILAND, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant Kenyon McKinney's Motion to Dismiss Pursuant to Rules 12(b)(5), 12(b)(1), and 12(b)(6) (ECF No. 9). For the following reasons, the Court RECOMMENDS that Defendant's Motion be GRANTED.
I. FACTUAL BACKGROUND
Plaintiffs filed this lawsuit on August 27, 2021. ECF No. 1. On October 26, 2021, Defendant Kenyon McKinney filed a Motion to Dismiss. ECF No. 9. Plaintiffs did not file a response in opposition to the Motion to Dismiss. On September 27, 2022, the Court indicated that it would recommend that the Motion to Dismiss be granted unless Plaintiffs filed a response within two weeks. ECF No. 11. Plaintiffs did not file a response.
II. DISCUSSION
Local Rule CV-7 provides that “[i]f there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed.” Plaintiffs failed to file a response within 14 days as required, and further failed to file a response when given an additional 14 days of notice of this Court's intent to recommend that the Motion to Dismiss be granted. Therefore, the Court will treat Defendant's Motion to Dismiss as unopposed, and recommends that the Motion to Dismiss be granted.
III. RECOMMENDATION
For the above reasons, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that Defendant's Motion to Dismiss (ECF No. 9) be GRANTED.
IV. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm 'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.