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Ray v. Calhoun County

United States District Court, N.D. Alabama, Eastern Division

October 13, 2017

GLEN EDWARD RAY, JR. et al., Plaintiffs,
v.
CALHOUN COUNTY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE.

         I. Relevant Procedural History

         This case alleging various Alabama state law claims was filed on May 18, 2013, in the Calhoun County, Alabama, Circuit Court, sub nom. Glen Edward Ray, Jr. and Glen Edward Ray, Sr. v. Calhoun County, et al., Case No. CV-2013-900309. (Notice of Removal, Doc. 1; Complaint, Doc. 1-1). On September 27, 2013, Plaintiffs filed an Amended Complaint adding claims under the Fourth Amendment to the United States Constitution brought against Defendants as state actors under 42 U.S.C. § 1983. (Doc. 1; Amended Complaint, Doc. 1-1). The Defendants timely removed this action to this Court on October 7, 2013. On February 12, 2014, Plaintiffs filed a Second Amended Complaint (Doc. 24), which became the operative document upon its filing.

         The Defendants filed various motions to dismiss the Second Amended Complaint and supporting briefs. (Docs. 25-26, 27-28, and 29-30). The Plaintiffs opposed the motions by a consolidated response. (Doc. 32). On March 28, 2014, the Defendants replied with a consolidated reply. (Doc. 33). More than three years later, on June 5, 2017, this action was reassigned to newly-appointed Magistrate Judge Herman N. Johnson, Jr. (Notice of Reassignment, Doc. 34). Promptly thereafter, on June 30, 2017, Judge Johnson issued a Report and Recommendation, recommending that each of the motions be granted and this case dismissed with prejudice. (R&R, Doc. 35). In the R&R, Judge Johnson specifically advised the Plaintiffs that written objections were due within fourteen days from the date of the R&R, the requirements for such objections, and the consequences of failing to object. (Id. at 26-27).

         On June 30, 2017, counsel for the Plaintiffs filed a motion to withdraw. (Doc. 38).[1] That Motion is hereby GRANTED.

         On July 31, 2017, this case was reassigned to the undersigned United States District Judge. (Notice of Reassignment, Doc. 37).

         Although Plaintiffs' counsel failed to file any objections to the R&R, one of the two Plaintiffs (Glenn Edward Ray, Jr.) has filed objections. (Objections, Doc. 36, filed July 13, 2017). Glenn Edward Ray, Jr. is not an attorney. Accordingly, the Court has reviewed his objections under the more lenient lens applicable to pro se filings. However, the Court notes that he cannot assert (nor does he seem to assert) objections on behalf of claims made by the other Plaintiff, Glenn Edward Ray, Sr.[2]

         Further, the Court has carefully reviewed the R&R and the entire file in this case and determines that the Magistrate Judge properly recommended that all of Ray, Sr.'s claims be dismissed with prejudice. The Court adopts such recommendations and will, by separate order, GRANT each motion to the extent directed to claims of Ray, Sr., and will DISMISS WITH PREJUDICE all claims of Ray, Sr. as to all Defendants.

         The Court now turns to the R&R as it relates to the claims of Ray, Jr., as objected to by him, and to the pending motions to dismiss as they relate to the claims of Ray, Jr.

         II. Standard of Review

         A district court judge is empowered, in part to encourage efficiency, to designate a magistrate judge to conduct hearings and submit proposed findings of fact and recommendations. 28 U.S.C. § 636(b)(1)(B); Mathews v. Weber, 423 U.S. 261, 267-68, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976); Nettles v. Wainwright, 677 F.2d 404, 406 (5th Cir.1982).[3] Parties to a dispute upon which a Report and Recommendation has been made are invited to file objections to that Report and Recommendation. 28 U.S.C. § 636(b)(1) (“Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.”). Under this system, when a party makes a timely and specific objection to a portion of the Report and Recommendation, the district court is obliged to engage in a de novo review of the issues raised on objection. Id. (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Nettles, 677 F.2d at 409. However, issues upon which no timely and specific objections are raised do not require de novo review; the district court may therefore “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge[, ]” applying a clearly erroneous standard.[4] 28 U.S.C. § 636(b)(1); Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir.2006).[5] Nettles, 677 F.2d at 409 (“[T]he failure of a party to file written objections to proposed findings and recommendations in a magistrate's report ... shall bar the party from a de novo determination by the district judge of an issue covered in the report.”). Thus, to accept the report and recommendation of a magistrate judge to which no timely and specific objection has been made, the district judge need only be satisfied that there is no clear error apparent on the face of the record.

         Whether or not proper - or, indeed, any - objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).

         III. Objections

         Ray, Jr.'s objections are set out in full below, without change or annotation.

         Under 28 U.S.C. § 636(b)(1)(C) and Rule 72.3(b) of the Rules of this Court, Plaintiffs respectfully submit the following objections to certain of the Magistrate Judge's Report and Recommendation, issued on June 30, 2017.:

1. The Plaintiff recognizes and acknowledges that the Calhoun County Commission and Calhoun County are protected by sovereign immunity.
2. The Plaintiff recognizes and acknowledges the two year statute of limitation would ban all claims arising out of the November 24, 2009 incident but for the fact that the underlying lawsuit filed in Calhoun County would toll the statute of limitations.
3. The Plaintiff s claim, referred to as Defendants' claims in the Magistrate's recommendations, for violation of 42 U.S.C. § 1983 claim for a Fourth Amendment.
a. Unlawful search and seizure violation should still stand against defendant Amerson in his individual capacity should survive. The Plaintiffs allege that there was no probable cause for the search, seizure, ...

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