Whitt v. United States of America

Filing 10

ORDER ADOPTING 7 REPORT AND RECOMMENDATIONS and denying 9 Motion to Amend Complaint. Signed by Honorable P. K. Holmes, III on October 16, 2015. (tg)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION GREGORY K. WHITT v. PLAINTIFF Case No. 5:15-CV-05189 UNITED STATES OF AMERICA DEFENDANT ORDER The Court has received proposed findings and recommendations (Doc. 7) from United States Magistrate Judge James R. Marschewski to which Plaintiff filed objections (Doc. 8). The Court cannot discern from Plaintiff’s objections any law or fact requiring departure from the Magistrate’s report. Plaintiff’s filing does not contain objections to the Magistrate’s report, but instead contains a request for leave to amend the complaint. Plaintiff represents that he does not comprehend how to appropriately file the lawsuit he wants to bring. Plaintiff also attaches a 13-page proposed amended complaint with over 100 pages of attachments. Based on the Court’s review, it appears that allowing amendment would be futile. Silva v. Metropolitan Life Ins. Co., 762 F.3d 711, 719 (8th Cir. 2014) (stating that motions to amend may be denied where amendment would be futile; examples of futile claims are those that are frivolous or would not withstand a motion to dismiss). However, to the extent that Plaintiff believes he has valid claims against the Defendants named in his proposed amended complaint and he is not otherwise barred from initiating a lawsuit against them, he may bring a separate lawsuit that directly sets out those claims. Plaintiff’s request to amend his complaint (Doc. 9) will therefore be DENIED. As to the matter that is currently before the Court, the report of the magistrate appears to be well reasoned and the recommendation to be sound. Accordingly, the Court finds that the report and recommendation of the Magistrate is proper and should be and hereby is ADOPTED IN ITS ENTIRETY. For the reasons stated in the Magistrate’s report and recommendation, IT IS ORDERED that Plaintiff’s complaint is DISMISSED WITH PREJUDICE as barred by sovereign immunity. The Clerk is directed to place a § 1915(g) strike on this case. Judgment will be entered accordingly. IT IS SO ORDERED this 16th day of October, 2015 /s/P. K. Holmes, III P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE -2-

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