MORTON v. UNITED STATES OF AMERICA

Filing 38

ORDER DISMISSING THE COMPLAINT IN PART - The report and recommendation is accepted. The motion to dismiss or for summary judgment, ECF No. 29 , is granted in part. The first, second, third, and fourth claims are dismissed. Summ ary judgment on the fifth claim is denied without prejudice. I do not direct the entry of judgment under Federal Rule of Civil Procedure 54 (b). The government's motion, ECF No. 37 , for leave to amend its motion to dismiss is denied. The government is given leave to file a motion to dismiss the fifth claim. The case is remanded to the magistrate judge for further proceedings. Signed by JUDGE ROBERT L HINKLE on 9/15/2017. (cle)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
MICHELLE LYNN MORTON,
Plaintiff,
v.

CASE NO. 4:16cv313-RH/CAS

UNITED STATES OF AMERICA,
Defendant.
_____________________________/
ORDER DISMISSING THE COMPLAINT IN PART
The plaintiff is an inmate in the Bureau of Prisons. She suffered burns when
an inmate who was working in food service spilled boiling water on her.
The plaintiff filed this action against the United States. She asserts five
claims, all under the Federal Tort Claims Act. The plaintiff abandoned the third
claim. The government moved to dismiss the first, second, and fourth claims, and
moved for summary judgment on the fifth claim.
The case is before the court on the magistrate judge’s report and
recommendation, ECF No. 36. No objections have been filed.

Case No. 4:16cv313-RH/CAS

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The report and recommendation concludes that the first, second, and fourth
claims should be dismissed but that the motion for summary judgment on the fifth
claim should be denied for procedural reasons.
More recently, the government has moved for leave to amend the motion to
dismiss. To avoid delay in ruling on the dismissal of the other claims, this order
denies leave to amend the original motion but grants leave to file a new motion to
dismiss directed to the fifth claim. A court may grant leave to file a new motion
asserting lack of jurisdiction or failure to state a claim because these defenses are
not waived by failure to include them in an original motion. See Fed. R. Civ. P.
12(h). The government may file any new motion separately or may join it with a
renewed summary-judgment motion. Any renewed summary-judgment motion
must include a “statement of facts generally in the form that would be appropriate
in an appellate brief.” N.D. Fla. Loc. R. 56.1(B).
For these reasons,
IT IS ORDERED:
1. The report and recommendation is accepted.
2. The motion to dismiss or for summary judgment, ECF No. 29, is granted
in part. The first, second, third, and fourth claims are dismissed. Summary
judgment on the fifth claim is denied without prejudice.

Case No. 4:16cv313-RH/CAS

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3. I do not direct the entry of judgment under Federal Rule of Civil
Procedure 54(b).
4. The government’s motion, ECF No. 37, for leave to amend its motion to
dismiss is denied.
5. The government is given leave to file a motion to dismiss the fifth claim.
6. The case is remanded to the magistrate judge for further proceedings.
SO ORDERED on September 15, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 4:16cv313-RH/CAS