Miller v. Judge Johnstone et al
ORDER ADOPTING 3 REPORT AND RECOMMENDATION. This action is DISMISSED without prejudice as frivolous as set out. Signed by Senior Judge Callie V. S. Granade on 9/21/17. (copy mailed to Plf on 9/21/17) (tot)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
VONERIC MILLER, AIS # 258146,
JUDGE JOHNSTONE, et al.,
CIVIL ACTION 17-0331-CG-M
After due and proper consideration of all portions of this file deemed relevant
to the issues raised, and a de novo determination of those portions of the Report and
Recommendation to which objection is made, the Report and Recommendation of
the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED, with one
exception described below, as the opinion of this Court.
Plaintiff’s objection correctly points out that at page 5 of the Report and
Recommendation, the Magistrate Judge described then pending charges as “ three
first degree burglary charges” when the complaint clearly refers to them as first
degree robbery charges. This Court finds that they were first degree robbery
charges based on the complaint, and amends the facts cited by the Magistrate
Judge accordingly. Otherwise, Plaintiff’s objections are OVERRULED.
Additionally, after the Report and Recommendation issued, Plaintiff was
apparently released from custody and filed a one-sentence amendment to his
complaint alleging a claim of “kidnapping” against the State of Alabama Probation
Office and the U.S. Probation Office in this district, alleging that each was
continuing to hold him against his will. The amendment is futile because the
reasoning of the Report and Recommendation, as adopted by the Court, applies
equally to the new allegation as it does to those of the original complaint.
It is ORDERED that this action be and is hereby DISMISSED without
prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1).
DONE and ORDERED this 21st day of September, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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