Smedley v. Ozark Police Dept. et al
MEMORANDUM OPINION AND ORDER directing that it is hereby ORDERED that the Report and Recommendation of the Magistrate be REJECTED. It is further ORDERED that Smedley supplement his response to the Defendants' Motions with the requisite affidavits and supporting evidence on or before October 29, 2010. This case is hereby REFERRED back to the Magistrate Judge for appropriate action. Signed by Hon. Chief Judge Mark E. Fuller on 9/29/10. (Attachments: # 1 Civil Appeals Checklist)(scn, )
Smedley v. Ozark Police Dept. et al(MAG+)(LEAD)
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION D A R R E L L SMEDLEY, ) ) P la in tif f , ) v. ) ) O FFICER TRIPP, ) ) D e f e n d a n t. ) ____________________________________ D A R R E L L SMEDLEY, ) ) P la in tif f , ) v. ) ) CITY OF OZARK, ) ) D e f e n d a n t. ) ____________________________________ D A R R E L L SMEDLEY, P la in tif f , v. ) ) ) ) ) ) ) )
C A S E NO. 1:09-cv-1061-MEF
C A S E NO. 1:10-cv-0301-MEF
C A S E NO. 1:10-cv-0510-MEF (W O - DO NOT PUBLISH)
CITY OF OZARK,
D e f e n d a n t.
MEMORANDUM OPINION AND O R D E R
T h is cause is before the Court on Defendant Officer Tripp's Motion to Dismiss (D o c . # 17), Defendant City of Ozark's Motion to Dismiss (Doc. #26), the August 18, 2 0 1 0 Report and Recommendation addressing those Motions (Doc. # 41), and Defendant
Officer Tripp's Objection to the Report and Recommendation. (Doc. # 43). In a c c o rd a n c e with FED. R. CIV. P. 72, this Court has reviewed Officer Tripp's objection, the M a g is tra te Judge's Order and Recommendation, and the Defendants' original motion. Because the parties submitted evidence in support of their respective motions and re s p o n s e s , the Magistrate Judge converted the Rule 12(b)(6) motions into Motions for S u m m a ry Judgement as required by FED. R. CIV. P. 12(d). The Court realizes that Mr. S m e d le y was given an opportunity to present evidence in response to the Defendants' M o tio n s . (See Doc. # 35) However, in an abundance of caution, the Court is allowing S m e d le y more time to submit evidence in response to the Defendants' Motions to D is m iss . As the nonmoving party, Smedley must "go beyond the pleadings and by [his] o w n affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' d e s ig n a te `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. C a tr e tt, 477 U.S. 317, 324 (1986). It is hereby ORDERED that the Report and Recommendation of the Magistrate be R E J E C T E D . It is further ORDERED that Smedley supplement his response to the D e f e n d a n ts ' Motions with the requisite affidavits and supporting evidence on or before O c to b e r 29, 2010. This case is hereby REFERRED back to the Magistrate Judge for a p p ro p ria te action. DONE this the 29th day of September, 2010.
/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
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