Singh v. Department of Homeland Security et al
MEMORANDUM OPINION ADOPTING and ACCEPTING the 12 Magistrate Judge's Report and Recommendation and the Court finds that Mr. Singh's 13 Objections are hereby OVERRULED. Signed by Judge Virginia Emerson Hopkins on 12/6/2017. (JLC)
2017 Dec-06 PM 03:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DEPARTMENT OF HOMELAND
SECURITY, ET AL.,
) Case No.: 4:16-CV-01500-VEH-JEO
This matter is before the undersigned on the Report and Recommendation
(“R&R”) of Magistrate Judge John E. Ott. (Doc. 12). Kuljinder Singh (“Mr. Singh”)
has objected to the R&R. (Doc. 13). The Court has reviewed the entire file. For the
reasons set out herein, the Court finds that Mr. Singh’s objections are due to be
OVERRULED, the R&R is due to be ADOPTED, and this case is due to be
DISMISSED WITHOUT PREJUDICE.
THE REPORT AND RECOMMENDATION PROCESS
The report and recommendation process is set forth statutorily in 28 U.S.C. §
636, which states in part that:
(b)(1) Notwithstanding any provision of law to the contrary–
(A) a judge may designate a magistrate judge to hear and
determine any pretrial matter pending before the court,
except a motion for injunctive relief, for judgment on the
pleadings, for summary judgment, to dismiss or quash an
indictment or information made by the defendant, to
suppress evidence in a criminal case, to dismiss or to
permit maintenance of a class action, to dismiss for failure
to state a claim upon which relief can be granted, and to
involuntarily dismiss an action. A judge of the court may
reconsider any pretrial matter under this subparagraph (A)
where it has been shown that the magistrate judge's order
is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact
and recommendations for the disposition, by a judge of
the court, of any motion excepted in subparagraph (A), of
applications for posttrial relief made by individuals
convicted of criminal offenses and of prisoner petitions
challenging conditions of confinement.
(C) the magistrate judge shall file his proposed findings
and recommendations under subparagraph (B) with the
court and a copy shall forthwith be mailed to all parties.
Within fourteen days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court
shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the matter to
the magistrate judge with instructions.
28 U.S.C. § 636(b) (footnotes omitted) (emphasis by underlining added); see also
Fed. R. Civ. P. 72(b) (addressing procedures for handling dispositive motions and
prisoner petitions when magistrate judges are involved).
Although, in this matter, Mr. Singh has filed objections, his objections are
either contradicted by the record before this Court or improperly seek to bring new
facts before the Court that were not presented to the magistrate judge. Accordingly,
the objections will be overruled.
Specifically, Mr. Singh states that he was “astonished to receive your report
and recommendation that was issued on October 5, 2017, because I did not file
habeas corpus recently. The last time I filed habeas corpus ... was last year, and I
received the decision in December, 2016.” (Doc. 13 at 1). However, a review of the
Court’s docket sheet shows that the Petition was filed in September of 2016 and still
remains for this Court’s determination.
Mr. Singh then argues that “[t]here are many issues ... raised in the [R&R]
that are not applicable to [this] case anymore.” (Id., setting out seven paragraphs of
affirmative statements regarding what Mr. Singh alleges are the current facts)
(emphasis supplied).1 Mr. Singh is not objecting to any facts found by the
Mr. Singh also attached eight pages of copies of legal documents such as passports in
what the Court assumes is an attempt to supplement the evidence before this Court.
Magistrate Judge. Indeed, he implicitly admits they were accurate, but argues that
they are not accurate “anymore.”
It is too late for Mr. Singh to present new facts or evidence. The Department
of Homeland Security responded to the Magistrate Judge’s show cause order on
January 6, 2017. (Doc. 10). Mr. Singh was told by the Magistrate Judge, on January
9, 2017, that the judge considered the case ripe for summary disposition and that
Mr. Singh had twenty-one days within which to supply any additional evidence or
legal arguments that he wanted considered. (Order, doc. 11). He did not respond. H
he has not even asserted that he could not have submitted these new “facts” and
documents — which the Respondents have had no opportunity to respond to — in a
timely manner to the magistrate judge.
Further. the Magistrate Judge has recommended, and this Court will order, a
“without prejudice” dismissal. As a result, Mr. Singh can file a new habeas petition
and present his new facts/evidence in that case.
Having carefully reviewed and considered all the materials in the court file,
the Court is of the opinion that Mr. Singh’s objections are due to be and hereby are
OVERRULED. Further, the Magistrate Judge’s factual findings are due to be and
hereby are ADOPTED and his recommendation is ACCEPTED. The Court will
enter a separate Order dismissing this action without prejudice.
DONE this the 6th day of December, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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