Murphy v. Colley et al (MAG+)
ORDER directing as follows: (1) the 51 REPORT AND RECOMMENDATION of the Magistrate Judge is ADOPTED; (2) This case is DISMISSED without prejudice for Plf's failure to comply with court orders and the FRCP and because, under 28 U.S.C. 1915(e) (2)(B)(i) and (ii), the federal claims are frivolous and fail to state a claim upon which relief can be granted; and (3) The motions to dismiss filed by Defendants Houghton Smith 20 , State of Alabama 21 , Robb Kelley 27 , Kelly Colley 28 , and Tytrena Fields 33 are DENIED as moot. Signed by Chief Judge William Keith Watkins on 2/1/17. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
RODNEY J. MURPHY,
ROBB COLLEY, KELLY
COLLEY, HOUGHTON SMITH,
TYTRENA FIELDS, DENNY
MERRITT, and the STATE OF
CASE NO. 2:15-CV-825-WKW
Before the court is the Recommendation of the Magistrate Judge. (Doc. # 51.)
On January 27, 2017, Plaintiff Rodney J. Murphy filed a pro se objection to the
Recommendation. (Doc. # 52.) The court has conducted an independent and de
novo review of those portions of the Recommendation to which objection is made,
see 28 U.S.C. § 636(b), and concludes that the objection is due to be overruled.
Construed with the leniency afforded pro se plaintiffs, Mr. Murphy’s
objection makes two principal arguments. First, Mr. Murphy contends that he
followed court orders in the filing of his amended complaint. And second, Mr.
Murphy appears to contest the lawfulness, vel non, of his possession and later
dispossession of the properties at issue. Neither objection persuades the court.
In his first objection, Mr. Murphy focuses on the timeliness of his amended
complaint. (Doc. # 52 at 1.) To be sure, despite blowing past the first deadline to
amend his complaint, Mr. Murphy filed his complaint by the second court-imposed
due date; as far as timeliness goes, Mr. Murphy only violated one court order. (See
Docs. # 8 (ordering amendment by February 19, 2016), 9 (ordering Mr. Murphy, on
March 3, to show cause by March 18 why his claims should not be dismissed for
want of prosecution), 10 (amended “civil complaint” filed on March 16, 2016).) But
the flaws in Mr. Murphy’s pleading extend beyond its filing date. For one, in his
March 16 filing, Mr. Murphy wholly disregarded the show-cause order and instead
filed the well-overdue amended complaint. And more significantly, the amended
complaint fails to meet the requirements of Federal Rules of Civil Procedure 8 and
10. (See Doc. # 51 at 7 (“[T]hese wholly conclusory allegations do not amount to a
‘short and plain statement’ of the claims showing that Murphy ‘is entitled to relief,’
as required by Rule 8.”).) Mr. Murphy also points to the late answers filed by various
Defendants as an excuse for his untimely amended complaint. (Doc. # 52 at 1.) But
a late answer justifies a motion for an entry of default, not the disregard of a court
order; the tardiness of other pleadings does not affect Mr. Murphy’s obligation to
follow court orders. And finally, even if this first objection were meritorious, Mr.
Murphy’s complaint would still be dismissed under 28 U.S.C. § 1915(e)(2)(B) as
frivolous and for failure to state a claim.
The second objection fares no better. Mr. Murphy claims that he “never
alleged rightful ownership, only possession as a right of claim, constructively,” and
that “no action was taken to evict plaintiff from none [sic] of the properties listed in
the complaint or amended complaint.” (Doc. # 52 at 2.) To the extent Mr. Murphy
alleges that he has a right to possession that arose in the absence of a possessory
interest in the land, his claim “lacks an arguable basis . . . in law” and therefore may
be dismissed as frivolous. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Similarly,
because Mr. Murphy neither alleged state action nor a valid interest in the disputed
properties, he fails to state a claim for a violation of substantive or procedural due
process. Parratt v. Taylor, 451 U.S. 527, 535 (1981); Doe v. Fla. Bar, 630 F.3d
1336, 1342 (11th Cir. 2011). Therefore, dismissal under § 1915(e)(2)(B)(i) and (ii)
is proper. And, even if some merit could be gleamed from these claims, dismissal
for failure to comply with court orders and the Federal Rules of Civil Procedure
would still be in order.
Accordingly, it is ORDERED as follows:
The Recommendation of the Magistrate Judge (Doc. # 51) is
This case is DISMISSED without prejudice for Plaintiff’s failure to
comply with court orders and the Federal Rules of Civil Procedure and because,
under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), the federal claims are frivolous and fail
to state a claim upon which relief can be granted; and
The motions to dismiss filed by Defendants Houghton Smith (Doc.
# 20), State of Alabama (Doc. # 21), Robb Kelley (Doc. # 27), Kelly Colley (Doc.
# 28), and Tytrena Fields (Doc. # 33) are DENIED as moot.
A final judgment will be entered separately.
DONE this 1st day of February, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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