Cooper v. Nichols, et al (INMATE2) CANNOT ACCEPT PLEADINGS WITHOUT MOTION FOR LEAVE TO FILE

Filing 11

REPORT AND RECOMMENDATIONS of the Mag Judge that: (1) plf's 5/18/06 pleading construed as a MOTION to Dismiss def Nurse Miller be GRANTED; (2) def Nurse Miller be DISMISSED with prejudice as a party to this complaint; and (3) this case be referred back to the undersigned for additional proceedings; Objections to R&R due by 6/1/2006. Signed by Judge Delores R. Boyd on 5/19/06. (djy, )

Cooper v. Nichols, et al (INMATE2) CANNOT ACCEPT PLEADINGS WITHOUT MOTION FOR LEAVE TO FILE

Doc. 11

Case 2:06-cv-00418-MHT-TFM

Document 11

Filed 05/19/2006

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ______________________________

DAVID COOPER, #7743 Plaintiff, v. D.T. MARSHAL, et al., Defendants.
______________________________

* * * * * 2:06-CV-418-MHT (WO)

O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n May 18, 2006 Plaintiff filed a Motion to Amend Complaint. In the motion, P lain tiff states that he incorrectly identified a defendant as "Nurse Miller" and also asserts a n additional claim against the defendant(s). In light of the foregoing, the court finds that P la in t if f' s May 18 pleading may also be construed as a request that his complaint against D e fe n d a n t Nurse Miller be dismissed and that this individual be dismissed as a party to the c o m p la in t. gr a n te d . A c c o rd in gly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's May 18, 2006 pleading, construed as a Motion to Dismiss Defendant N u rs e Miller (Doc. No. 6), be GRANTED; 2 . Defendant Nurse Miller be DISMISSED with prejudice as a party to this Upon consideration of the request, the court concludes that it is due to be

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Case 2:06-cv-00418-MHT-TFM

Document 11

Filed 05/19/2006

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c o m p la in t;1 and 3. This case be referred back to the undersigned for additional proceedings. It is further O R D E R E D that on or before June 1, 2006 Plaintiff amend his complaint by id e n tif y i n g the individual(s) against whom he wishes to proceed in this action and sp ec ifi c a l l y identify how the conduct or actions of such individual(s) violated Plaintiff's c o n s t i t u t i o n a l rights. Plaintiff is cautioned that his failure to comply with this order will resu lt in a Recommendation that this case be dismissed. It is further ORDERED that the parties are DIRECTED to file any objections to the R e c o m m e n d atio n on or before May 31, 2006. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which the party objects. F r ivo lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a gis tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual

In his complaint, Plaintiff alleges that Defendant Jordan subjected him to excessive force. In his motion to dismiss this defendant, Plaintiff states that, pursuant to a plea agreement, he now stands convicted of assaulting Defendant Jordan. The court, therefore, finds that dismissal of this defendant with prejudice is appropriate.

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Case 2:06-cv-00418-MHT-TFM

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Filed 05/19/2006

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fin d in gs in the report accepted or adopted by the District Court except upon grounds of plain erro r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P ric h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on Se p te m b e r 30, 1981 D o n e, this 19 th day of May 2006.

/s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE

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