Barr v. Gwinnett County
Filing
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OPINION AND ORDER ADOPTING the 25 Report and Recommendation. The Defendant's 21 Motion to Dismiss for Failure to State a Claim and the Plaintiff's 24 Motion for Judgment are DENIED. Signed by Judge William S. Duffey, Jr on 10/11/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL ANTHONY BARR,
Plaintiff,
v.
1:12-cv-2006-WSD-LTW
GWINNETT COUNTY et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s NonFinal Report and Recommendation [25] (“R&R”) on Defendant Corradino’s
Motion to Dismiss [21] and Plaintiff’s Motion for Judgment [24].
I.
BACKGROUND
On June 8, 2012, Plaintiff Michael Anthony Barr (“Plaintiff”), an inmate at
the Gwinnett County Jail appearing pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983. On July 13, 2012, Plaintiff filed his First Amended Complaint
[5], and on November 9, 2012, Plaintiff filed his Second Amended Complaint [11].
After reviewing Plaintiff’s pleadings for frivolity, under 28 U.S.C. § 1915A, the
Court allowed the following claims to proceed: (i) Plaintiff’s claims for unlawful
arrest against Gwinnett Police Officer Corradino # 1410 (“Corradino”) and
Gwinnett Police Official (John Doe), in their individual capacities; and
(ii) Plaintiff’s claims against unnamed Gwinnett County Jail officials for medical
indifference, based on the refusal to give Plaintiff his prescription medication and
refusal to allow Plaintiff to see a doctor.
On July 3, 2013, Corradino filed his Motion to Dismiss seeking dismissal of
medical indifference claims asserted against him. On July 18, 2013, Plaintiff filed
his Motion for Judgment seeking default judgment against Corradino on the
ground that, in the Motion to Dismiss, Corradino failed to admit or deny the
allegations contained in Plaintiff’s Complaint.
On August 6, 2013, Magistrate Judge Walker issued her R&R. With respect
to the Motion to Dismiss, Judge Walker found that there are no medical
indifference claims asserted against Corradino in this action and that the Motion to
Dismiss those claims is required to be denied. With respect to the Motion for
Judgment, Judge Walker found that Corradino’s Motion to Dismiss was properly
filed in lieu of an answer and was not required to admit or deny Plaintiff’s
allegations. Judge Walker recommends that the Motion for Judgment be denied.
On August 29, 2013, Plaintiff filed his objections [29] to the R&R in which
he argues that Corradino was required to include his answer to Plaintiff’s
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Complaint with the Motion to Dismiss. Corradino did not file objections to the
R&R.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Analysis
1.
Corradino’s Motion to Dismiss
Corradino does not object to the Magistrate Judge’s finding that the Motion
to Dismiss should be denied because Plaintiff does not assert medical indifference
claims against Corradino. The Court does not find any error in this finding, and
the Motion to Dismiss is denied.
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2.
Plaintiff’s Motion for Judgment
Plaintiff argues that Corradino was required to file an answer, admitting or
denying Plaintiff’s allegations, with the Motion to Dismiss. Under Rule 12(a)(1)
of the Federal Rules of Civil Procedure, a defendant is required to file an answer to
a complaint within twenty-one (21) days of being served with process. Under Rule
12(a)(4), however, this answer deadline is extended if the defendant files a motion
to dismiss under Rule 12(b). If a Rule 12(b) motion to dismiss is filed, the
defendant must file his answer within fourteen (14) days of the court’s ruling on
the motion to dismiss.
In this case, Corradino filed his Motion to Dismiss, under Rule 12(b)(6),
within twenty-one (21) days of being served with process. Accordingly, Corradino
is not required to file an answer until fourteen (14) days after the Court rules on the
Motion to Dismiss, which the Court has done in this order. Corradino is thus not
in default, and Plaintiff’s Motion for Judgment is required to be denied.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Non-
Final Report and Recommendation [25] is ADOPTED. Defendant Corradino’s
Motion to Dismiss [21] and Plaintiff’s Motion for Judgment [24] are DENIED.
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SO ORDERED this 11th day of October, 2013.
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