Doye v. Colvin et al

Filing 131

ORDER granting in part and denying in part 111 Motion for Summary Judgment; adopting re 125 Report and Recommendations; denying 129 Motion for Reconsideration ; finding as moot 130 Motion for Extension of Time. Signed by Judge B. Avant Edenfield on 4/12/11. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
NOEL ROMERO DOYE,
Plaintiff,
V.

4:08-cv-174

JASON COLVIN, et ad.,
Defendant.
ORDER
On March 22, 2011, the Magistrate
Judge issued his Report and
Recommendation ("R&R") in this case. See
Doc. 125. Objections to the R&R were due
to be filed on or before April 5, 2011. See
Doc. 127.
On April 11, 2011, the Court received
two motions from Plaintiff: (1) "Motion for
Reconsideration of Magistrates [sic] Report
and Recommendation," see Doc. 129, and
(2) Motion for Extension of Time for Court
to Allow His Motion for Reconsideration of
Magistrates [sic] Report & Recommendation
Be [sic] Accepted as Timely," see Doc. 130.
Plaintiff dated his first motion on April 5,
2011, see Doc. 129 at 4, and his second
motion a day later on April 6, 2011, see
Doc. 130 at 3.
Although Plaintiff filed his first motion
as a request for reconsideration, it is clear
that he intended it to serve as his objections
to the R&R. The Court construes it as such.
The Court construes Plaintiff's second
motion as a motion for an extension of time
in which to file his objections. See Doc.
130. But under the prisoner mailbox rule,

Plaintiff's objections were timely. See
United States v. Carter, 2011 WL216138, at
*1 (11th Cir. Jan. 25, 2011) (holding that
pro se prisoners' filings are filed when
delivered to prison authorities for mailing).
Therefore, Doye's second motion, see Doc.
130, is MOOT.
After a careful c/c novo review of the
record in this case, and consideration of
Plaintiff's objections, see Doc. 129, the
Court concurs with the Magistrate Judge's
Report and Recommendation ("R&R"). See
Doc. 125.
Accordingly, the R&R is adopted as the
opinion of the Court. 1 Defendants' Motion
for Summary Judgment, see Doc. 111, is
GRANTED as to Defendant Franks and
DENIED as to all other defendants.
The Magistrate Judge ordered Plaintiff
to show cause within fourteen (14) days of
service of the R&R why the Court should
not dismiss Sheriff Martin because of
Plaintiff's failure to timely serve him. See
Doc. 125 at 17-18. Despite his two postR&R filings, Plaintiff has failed to respond.
Sheriff Martin is DISMISSED from this
case.
This 12th day of April 2011.

Az
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IWAWF EI.)ENnF'L,
UNITED STATES DISTRICT cxwir
SOUTHERNDISCT OF GEORGIA

a

1 The R&R notes that Plaintiff paid the filing fee and

is not proceeding pro Se. See Doc. 125 at 17. The
Court rejects this portion of the R&R and finds that
Plaintiff is proceeding in forma pauperis and pro se.
See Doc. 1 (pro se complaint); Doc. 3 (order granting
informa pauperis status).