Miller v. Galaz et al

Filing 53

ORDERED: adopting Report and Recommendations re 51 Report and Recommendation; granting 17 Motion to Dismiss; granting 26 Motion for Permission to Correct form of Pleading Complaint; granting 31 and 33 Motions to Strike; denying 46 Motion to Strike; striking Documents 28, 32, 39, 40, 41, 42, 43, 47 and 48 from the record; denying 36 Motion for Partial Summary Judgment; denying 34 Motion for Permission to Serve Supplementary Pleading and Questionnaire/Opposition to Defen dant's Motion to Strike; granting 44 Motion to Seal Document; denying 50 Motion for Leave to File Notice of Removal; denying 52 Motion for Leave to File a Second Amended Complaint. Signed by Judge Jennifer G Zipps on 10/20/2016.(BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Amanda F Miller,
Plaintiff,

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ORDER

v.

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No. CV-16-00140-TUC-JGZ (EJM)

Maritza Galaz, et al.,

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Defendants.

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Pending before the Court is a Report and Recommendation issued by United

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States Magistrate Judge Eric J. Markovich that recommends: granting Defendants’

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Motion to Dismiss Plaintiff’s Amended Complaint and dismiss Defendant Tucson Police

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Department as a party to this action (Doc. 17); granting Plaintiff’s Motion for Permission

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to Correct Form of Pleading Complaint (Doc. 26); granting Defendant’s Motions to

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Strike (Docs. 31 and 33); denying Defendant’s Motion to Strike (Doc. 46); striking

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documents 28, 32, 39, 40, 41, 42, 43, 47, and 48 from the record; denying Plaintiff’s

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Motion for Partial Summary Judgment (Doc. 36); denying Plaintiff’s Motion for

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Permission to Serve Supplementary Pleading and Questionnaire/Opposition to

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Defendant’s Motions to Strike (Doc. 34); granting Plaintiff’s Motion to File under Seal

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(Doc. 44); and denying Plaintiff’s Motion for Leave to File Notice of Removal. (Doc.

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50.)

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A review of the record reflects that the parties have not filed any objections to the

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Report and Recommendation and the time to file objections has expired. As such, the

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Court will not consider any objections or new evidence. The Court has reviewed the

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record and concludes that Magistrate Judge Markovich’s recommendations are not

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clearly erroneous. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema

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Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14

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F.Supp.2d 1203, 1204 (D. Or. 1998).

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Also pending before the Court is a Motion for Leave to File a Second Amended

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Complaint filed by Plaintiff on October 6, 2016. (Doc. 52.) Because the Court adopts

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the Magistrate’s recommendation with respect to Plaintiff’s Motion for Permission to

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Correct Form of Pleading Complaint (Doc. 26) and grants Plaintiff leave to file a second

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amended complaint, the Court will deny Plaintiff’s October 6, 2016 Motion for Leave to

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File a Second Amended Complaint (Doc. 52) as moot.

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Accordingly, IT IS HEREBY ORDERED as follows:
1. Magistrate Judge Markovich’s Report and Recommendation (Doc. 51) is accepted
and adopted;

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2. Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint and dismiss

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Defendant Tucson Police Department as a party to this action (Doc. 17) is

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GRANTED;

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3. Plaintiff’s Motion for Permission to Correct Form of Pleading Complaint (Doc.

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26) is GRANTED. Within fourteen days of the date this Order is filed, Plaintiff

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may file a Second Amended Complaint. The Second Amended Complaint must

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be clearly designated as “Second Amended Complaint” on the face of the

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document. The Second Amended Complaint must state (1) the factual basis for all

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of Plaintiff’s claims, (2) allege each legal claim as a separate count, (3) name the

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defendants liable for each count, (3) identify the injury flowing from each count,

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and (4) identify the remedy sought for each count. The Amended Complaint must

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be retyped or rewritten in its entirety and may not incorporate any part of the

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original complaint by reference. LRCiv 7.1(d).1

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The Court notes that the Magistrate Judge previously provided Plaintiff with
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4. Defendant’s Motions to Strike (Docs. 31 and 33) are GRANTED;

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5. Defendant’s Motion to Strike (Doc. 46) is DENIED;

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6. Documents 28, 32, 39, 40, 41, 42, 43, 47, and 48 are STRICKEN from the record;

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7. Plaintiff’s Motion for Partial Summary Judgment (Doc. 36) is DENIED;

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8. Plaintiff’s Motion for Permission to Serve Supplementary Pleading and

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Questionnaire/Opposition to Defendant’s Motions to Strike (Doc. 34) is DENIED;

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9. Plaintiff’s Motion to File under Seal (Doc. 44) is GRANTED. The Clerk of the

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Court shall FILE UNDER SEAL the records currently lodged at Doc. 45;

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10. Plaintiff’s Motion for Leave to File Notice of Removal. (Doc. 50) is DENIED; and

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11. Plaintiff’s October 6, 2016 Motion for Leave to File a Second Amended

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Complaint (Doc. 52) is DENIED AS MOOT.

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Dated this 20th day of October, 2016.

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Honorable Jennifer G. Zipps
United States District Judge

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copies of the Court’s pamphlet, “Filing a Complaint On Your Own Behalf.” (Doc. 13.)
The Court also notes that Plaintiff may be eligible for legal assistance from a legal
service provider in her area, such as the City Bar Justice Center.
See
http://www.citybarjusticecenter.org/
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