Hammond v. Keehn et al (MAG+)

Filing 15

ORDER directing as follows: 1) Ms. Hammond's 14 Objection is OVERRULED; 2) The 13 Recommendation is ADOPTED; 3) Ms. Hammond's claims alleging denial of overtime based upon race, failure to promote, harassment and retaliation are DISMISS ED without any further opportunity for amendment, and prior to service, pursuant to the provisions of 28 USC 1915(e)(2)(B); 4) Dft Keehn is DISMISSED from this action without any further opportunity for amendment, and prior to service, pursuant to th e provisions of 28 USC 1915(e)(2)(B); 5) This case is REFERRED back to the Magistrate Judge for further proceedings on Ms. Hammond's remaining claims of denial of overtime based upon age and gender. Signed by Honorable William Keith Watkins on 4/24/2009. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O RT H E R N DIVISION M A R IE J. HAMMOND, P l a in tiff , v. M IK E KEEHN, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) C A S E NO. 2:08-CV-1024-WKW[WO] ORDER O n April 9, 2009, the Magistrate Judge filed a Recommendation in this case. (Doc. # 13.) On April 21, 2009, Plaintiff Marie J. Hammond ("Hammond") filed an objection. (D o c . # 14.) The court has conducted an independent and de novo review of those portions o f the Recommendation to which objection is made. See 28 U.S.C. 636(b)(1). In her objection, Ms. Hammond attempts to provide additional facts with respect to th e "white male" who "harrass [sic] and intimated her" and her overtime claim. (Doc. # 14, a t 1, 2.) Ms. Hammond's objection is due to be overruled for two reasons, one procedural a n d the other substantive. First, to the extent that Ms. Hammond presents new factual a ss e rtio n s , they come too late to revive any of her claims that are the subject of the M a g istra te Judge's recommendation of dismissal.1 Cf. Williams v. McNeil, 557 F.3d 1287, 1 2 9 2 (11th Cir. 2009) ("[W]e . . . hold that a district court has discretion to decline to c o n sid e r a party's argument when that argument was not first presented to the magistrate It should be pointed out that the Magistrate Judge has given substantial leeway to Ms. Hammond to correct her factually deficient complaint. (Docs. # 5 & 10.) 1 ju d g e ."). Second, even if Ms. Hammond's factual assertions were considered, they would b e insufficient to cure the complaint's deficiencies that the Magistrate Judge cited and e la b o ra te d upon in his Recommendation. Accordingly, it is ORDERED as follows: 1. 2. 3. M s . Hammond's objection (Doc. # 14) is OVERRULED. T h e Recommendation (Doc. # 13) is ADOPTED. M s. Hammond's claims alleging denial of overtime based upon race, failure to promote, harassment and retaliation are DISMISSED without any further opportunity for am en d m en t, and prior to service, pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B). 4. D e f en d a n t Keehn is DISMISSED from this action without any further o p p o rtu n ity for amendment, and prior to service, pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B). 5. T h is case is REFERRED back to the Magistrate Judge for further proceedings o n Ms. Hammond's remaining claims of denial of overtime based upon age and gender. D O N E this 24th day of April 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 2

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