Cherch v. Mock et al (INMATE 2)

Filing 25

ORDER that: 1. Defendants' 24 Objection to the Recommendation of the Magistrate Judge that this matter be stayed is SUSTAINED; 2. The 23 Recommendation of the Magistrate Judge is ADOPTED in part and is REJECTED as moot in part as further set out in the order. 3. This case is REFERRED back to the Magistrate Judge for further proceedings. Signed by Honorable Judge W. Harold Albritton, III on 9/8/2014. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENNETH CHERCH,

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) CIVIL ACTION NO. 1:13-CV-586-WHA
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Plaintiff,
v.
OFFICER JIM MOCK, et al.,
Defendants.

ORDER
Plaintiff filed this pro se 42 U.S.C. § 1983 complaint against law enforcement
officials employed by the Geneva Police Department. Plaintiff alleged the police officers
conducted an unlawful search and seizure of his hotel room which resulted in the filing of
drug charges against him. This case is now before the court on the Recommendation of the
Magistrate Judge (Doc. No. 23), in which the Magistrate Judge recommends that Defendants’
motion to dismiss based on the Younger abstention doctrine1 be granted regarding Plaintiff’s
claims for equitable relief against them and such claims be dismissed without prejudice, that
Defendants’ motion to dismiss be denied regarding Plaintiff’s § 1983 claim for damages and
the damages claim be stayed pending resolution of the related state criminal case proceedings
against Plaintiff, and that the case be administratively closed. Defendants filed a timely
objection to the Recommendation. Doc. No. 24. They object to the recommendation for a
stay and request leave to file a motion for summary judgment. Id.

1

Younger v. Harris, 401 U.S. 37 (1971).

In their objection, Defendants inform the court that Plaintiff’s state court criminal
proceedings were resolved by entry of his guilty plea to unlawful possession with intent to
distribute on July 10, 2014. Doc. No. 24, Exh. A. As a result, Defendants maintain a stay of
this matter is unnecessary and request leave to file a dispositive motion regarding the issues
in the complaint which they maintain have been resolved against Plaintiff. Id. Based on the
information in the objection regarding the status of Plaintiff’s state court criminal
proceedings of which the court has just been made aware, the undersigned concludes the
Recommendation of the Magistrate Judge which recommends a stay and administrative
closure of this matter should be rejected as moot.2
Accordingly, after an independent evaluation and de novo review of the record, it is
ORDERED that:
1. Defendants’ objection to the Recommendation of the Magistrate Judge that this
matter be stayed (Doc. No. 24) is SUSTAINED;
2. The Recommendation of the Magistrate Judge (Doc No. 23) is ADOPTED in part
and is REJECTED as moot in part:
a. It is ADOPTED regarding granting the motion to dismiss with respect to
any claims by Plaintiff for equitable relief and such claims are dismissed without prejudice;
b. It is ADOPTED regarding denial of the motion to dismiss with respect to
Plaintiff’s § 1983 claim for damages;
c. It is REJECTED as moot regarding a stay of Plaintiff’s damages claim

2

Defendants’ request for leave to file a dispositive motion shall be addressed by separate order.

against Defendants pending resolution of the related state criminal case proceedings as those
proceedings are now resolved; and
d. It is REJECTED as moot regarding the directive for administrative closure.
3. This case is REFERRED back to the Magistrate Judge for further proceedings.
Done, this 8th day of September 2014.

/s/ W. Harold Albritton
SENIOR UNITED STATES DISTRICT JUDGE