United States District Court, N.D. Alabama, Eastern Division
GLEN EDWARD RAY, JR. et al., Plaintiffs,
CALHOUN COUNTY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE.
Relevant Procedural History
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.
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).
30, 2017, counsel for the Plaintiffs filed a motion to
withdraw. (Doc. 38). That Motion is hereby GRANTED.
31, 2017, this case was reassigned to the undersigned United
States District Judge. (Notice of Reassignment, Doc. 37).
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.
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
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.
Standard of Review
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). 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. 28 U.S.C. § 636(b)(1); Macort v.
Prem, Inc., 208 Fed.Appx. 781, 784 (11th
Cir.2006). 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.
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).
Jr.'s objections are set out in full below, without
change or annotation.
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
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, ...