Everett v. State of Mississippi et al

Filing 38

ORDER adopting Report and Recommendations re 33 Report and Recommendations, as modified herein; granting 30 Motion to Dismiss. Circuit Court Judges Clark, Gargiulo, and Dodson are entitled to absolute judicial immunity, therefore the plaintiff's cliams against these defendants are dismissed with prejudice. The plaintiff's claims against the remaining defendants are dismissed. Signed by Chief District Judge Louis Guirola, Jr. on 9/9/14. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TYLER McKINZIE DUFF EVERETT
v.

PLAINTIFF
CAUSE NO. 1:13CV375-LG-RHW

STATE OF MISSISSIPPI, et al.

DEFENDANTS

ORDER SUSTAINING DEFENDANTS’ OBJECTIONS TO REPORT AND
RECOMMENDATION AND GRANTING PLAINTIFF’S MOTION TO DISMISS
On February 24, 2014, the plaintiff, Tyler McKinzie Duff Everett, filed a
Motion to Dismiss his complaint against all defendants [Doc. 30]. This matter
comes before the Court on the Report and Recommendation of United States
Magistrate Judge John M. Roper entered in this cause on April 17, 2014. The
defendants, Roger T. Clark, John C. Gargiulo, Lisa P. Dodson and the Mississippi
Crime Lab have filed objections to certain proposed findings of fact and conclusions
of law that they contend are in error. However, these defendants do not oppose
dismissal of the plaintiff’s underlying claims.
DISCUSSION
When any party objects to the Report and Recommendation, the Court must
review the objected-to portions de novo. See Kreimerman v. Casa Veerkamp, S.A. de
C.V., 22 F.3d 634, 646 (5th Cir. 1994); Longmire v. Guste, 921 F.2d 620, 623 (5th
Cir. 1991). Such a review means that the Court will consider the record which has
been developed before the Magistrate Judge and make its own determination on the
basis of that record. United States v. Raddatz, 447 U.S. 667, 675 (1980). The
unobjected-to findings and recommendations are reviewed only to determine

whether they are either clearly erroneous or contrary to law. United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
Although the magistrate judge has recommended that plaintiff’s Motion to
Dismiss should be denied, the Court finds that the Motion should be granted. See
Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir.2002) (citing Manshack
v. Sw. Elec. Power Co., 915 F.2d 172, 174 (5th Cir.1990))(“[A]s a general rule,
motions for voluntary dismissal should be freely granted unless the non-moving
party will suffer some plain legal prejudice other than the mere prospect of a second
lawsuit.”).
However, the defendants correctly point out that Mississippi Circuit Court
Judge Lisa P. Dodson, along with all of the defendant judicial officers, are entitled
to absolute judicial immunity for any decisions taken pursuant to their official
duties. The plaintiff concedes as much in his Motion to Dismiss. Accordingly, the
Magistrate Judge’s Report and Recommendation will be adopted as modified herein
to reflect that these defendants are cloaked with absolute judicial immunity.
IT IS THEREFORE ORDERED AND ADJUDGED that pursuant to 28
U.S.C. 636(b)(1), after making a de novo determination of those portions of the
report to which objection is made, the Court adopts the Report and
Recommendation of United States Magistrate Judge John M. Roper entered in this
cause on April 17, 2014, as modified herein. The plaintiff’s Motion to Dismiss
pursuant to Fed. R. Civ. P. 41(a)(2) is GRANTED. Circuit Court Judge Roger T.
Clark, Circuit Judge John T. Gargiulo, and Circuit Court Judge Lisa P. Dodson are
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entitled to absolute judicial immunity, therefore the plaintiff’s claims against these
defendants are DISMISSED WITH PREJUDICE. The plaintiff’s claims against
the remaining defendants are DISMISSED.
SO ORDERED AND ADJUDGED this the 9th day of September, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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