CURRY v. MCDAVE et al
Filing
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ORDER ADOPTING 9 Report and Recommendations. The Fourteenth Amendment claim and any claim for accessory [to] kidnapping are DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/24/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CECIL CURRY,
Plaintiff,
v.
Lieutenant STEVE MCDAVE and
Deputy JEROME ROBERTSON,
Defendants.
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CIVIL ACTION NO. 5:16-CV-24 (MTT)
ORDER
After screening the Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, United
States Magistrate Judge Stephen Hyles, in his Order and Recommendation, allowed the
Plaintiff’s Fourth Amendment claims to go forward but recommends dismissing his
supplemental Fourteenth Amendment claim. (Doc. 9). The Plaintiff has not objected to
the Recommendation. The Court agrees that the Plaintiff’s brief allegation of the
assault underlying his Fourteenth Amendment claim against the named Defendants is
insufficient.
The Plaintiff did file a “memorandum” after the Recommendation was entered in
which it appears the Plaintiff is attempting to clarify facts from his complaint (Doc. 1) and
supplemental complaint1 (Doc. 8). (Doc. 12). In this memorandum and in his
supplemental complaint, the Plaintiff seeks to add a civil claim for “accessory [to]
1
Although this document is docketed as a letter, the Magistrate Judge treated the allegations as
“supplemental claims” to the complaint and screened them. (Doc. 9 at 3).
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kidnapping.”2 It is unclear whether the Plaintiff is asserting a federal or state-law claim.
With respect to a state-law claim, kidnapping is simply a constituent part of false
imprisonment and thus may be dismissed. Wilson v. Bonner, 166 Ga. App. 9, 13-14
(1983). The Court notes that the Magistrate Judge allowed the Plaintiff’s false
imprisonment claim to go forward. In any event, the Plaintiff has failed to provide
sufficient facts alleging who was an accessory to kidnapping and what specific acts that
person committed related to that claim.3
The Court has reviewed the Recommendation, and the Court accepts and adopts
the findings, conclusions, and recommendations of the Magistrate Judge. The
Recommendation is ADOPTED and made the order of this Court. The Fourteenth
Amendment claim and any claim for “accessory [to] kidnapping” are DISMISSED
without prejudice.4
SO ORDERED, this 24th day of June, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
2
To the extent the Plaintiff seeks criminal charges, “a private citizen lacks a judicially cognizable interest
in the prosecution or non-prosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973);
see also Williams v. Univ. of Ala. Hosp. of Birmingham, 353 F. App’x 397, 398 (11th Cir. 2009) (“The
government, not private citizens, prosecutes crimes.”).
3
The complaint and supplemental complaint alleges Defendants Lieutenant Steve McDave and Deputy
Jerome Robertson participated equally in the alleged false imprisonment and arrest of the Plaintiff, so it is
unclear which Defendant would be the accessory or if the accessory is an unnamed individual.
4
Because the events underlying the Fourteenth Amendment claim occurred on February 27, 2016 and
the events underlying the “accessory to kidnapping” claim appear to have occurred on or after December
22, 2015, the relevant two year statute of limitations will not bar the refiling of the Plaintiff’s claims.
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