Doe v. Alabama, State of et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/4/2015. (JLC)
2015 Mar-04 AM 09:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
STATE OF ALABAMA, et al.,
) Case No.: 2:12-CV-4044-VEH
The magistrate judge filed a report and recommendation on January 15, 2015,
recommending that the defendants’ motion to dismiss be granted and that this action
be dismissed. (Doc. 16). The plaintiff has filed a document entitled “Plaintiff’s
Objection to Proposed Findings and Recommendations.” (Doc. 17). Importantly, the
plaintiff’s filing is actually not an “objection” at all. It cites no error in the report and
recommendation. It objects to no finding contained therein.
It is incumbent upon the parties to timely raise any objections that they may
have regarding a magistrate judge’s findings contained in a report and
recommendation, as the failure to do so subsequently waives or abandons the issue,
even if such matter was presented at the magistrate judge level. See, e.g., U.S. v.
Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (“While Pilati raised the issue of not
being convicted of a qualifying offense before the magistrate judge, he did not raise
this issue in his appeal to the district court. Thus, this argument has been waived or
abandoned by his failure to raise it on appeal to the district court.”). “Parties filing
objections must specifically identify those findings objected to. Frivolous, conclusive
or general objections need not be considered by the district court.” Nettles v.
Wainwright, 677 F.2d 404, 410, n. 8 (5th Cir.1982 Unit B).1 “This rule facilitates the
opportunity for district judges to spend more time on matters actually contested and
produces a result compatible with the purposes of the Magistrates Act.” Id. at 410.
Indeed, a contrary rule “would effectively nullify the magistrate judge’s consideration
of the matter and would not help to relieve the workload of the district court.” Id.
(quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C) (emphasis added). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted).
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the
former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982); see also
United States v. Schultz, 565 F.3d 1353, 1361 n. 4 (11th Cir.2009) (discussing the continuing
validity of Nettles).
In contrast, those portions of the R & R to which no objection is made need only be
reviewed for clear error. Macort v. Prem, Inc., 208 Fed. App’x. 781, 784 (11th Cir.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation, and the purported “objections,” the
Court is of the opinion that there is no clear error, and the magistrate judge’s report
is due to be and is hereby ADOPTED and her recommendation is ACCEPTED.
Accordingly, defendants’ motion to dismiss is due to be GRANTED and this action
is due to be DISMISSED WITH PREJUDICE.
The plaintiff has sought leave to amend to add “Attorney General Strange in
his official capacity.” (Doc. 17 at 4). That request is DENIED. First, the court
determines that leave to amend would be futile as the Eleventh Circuit has held that
ASORCNA is not unconstitutional, even when applied retroactively. See, Windwalker
v. Governor of Alabama, 579 F. App’x 769, 775 (11th Cir. 2014). Second, the instant
case is over three years old, and the plaintiff has not shown why he has not moved for
leave to amend earlier. If the plaintiff wishes to bring an action against the Attorney
General, he is free to due so via the filing of a new action. Since the plaintiff alleges
a continuing violation, there should be no statute of limitations issues in bringing a
A final order will be entered.
DONE and ORDERED this 4th day of March, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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