Mize et al v. Crawford et al

Filing 48

REPORT AND RECOMMENDATION that 37 MOTION to dismiss party filed by Eric Mize be granted. Objections to R&R due by 9/30/2008. Signed by Magistrate Judge William A. Knox on 9/10/2008. (skb)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

ERIC MIZE, Register No. 1063768, SHAHEED MUSLIM HABEEBULLAH, Register No. 519490, Plaintiffs, v. LARRY CRAWFORD, et al., Defendants.

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No. 08-4063-CV-C-NKL

REPORT, RECOMMENDATION AND ORDER On July 9, 2008, plaintiff Eric Mize filed a motion seeking to dismiss his claims. Defendants' response indicates they do not object to plaintiff's motion. Plaintiff's motion should be granted. 1 Plaintiff Mize's request for relinquishment of responsibility for continued payments towar d the remaining balance of the filing fee in this case, however, is denied. Plaintiff r emains jointly responsible with co-plaintiff Shaheed Muslin Habeebullah for the payment of the filing fee in this case, as set forth 28 U.S.C. § 1915. In light of plaintiff Mize's withdrawal from the case, his motion for return of legal mater ials is denied as moot. In response to Mize's motion to withdraw, co-plaintiff Habeebullah requested a face-toface meeting with Mize. Defendants advise that Habeebullah is in protective custody and Mize is in administrative segregation; therefore, because of safety and security concerns, and pur suant to prison policy, they are not allowed to have physical contact with each other. Upon r eview, the court denies Habeebullah's motion seeking consultation/face-to-face contact with Mize.

This case was referred to the undersigned United States Magistrate Judge for pr ocessing in accord with the Magistrate Act, 28 U.S.C. § 636, and L.R. 72.1.

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In response to Mize's withdrawal, co-plaintiff Habeebullah, on August 20, 2008, filed a motion to amend. Defendants have not filed objections, but have filed a request for an extension of time to respond to discovery already submitted by Habeebullah, citing, in part, Habeebullah's intent to amend his complaint. Plaintiff's motion to amend is granted and his pr oposed amended complaint shall be reflected as an Amended Complaint on the court's docket sheet. The May 27, 2008, motion to amend, filed prior to Mize's withdrawal, is denied as moot. The motions for discovery and service of process filed on June 13, 2008, are also denied as moot because the defendants listed in the motions are no longer identified as defendants in the amended complaint. Pursuant to the amended complaint, plaintiffs' claims against defendants Arthur Wood, Jay Cassady, Rebecca Taylor, Stanley Swiccord, Tami Sur face, Jacob R. Maples, Olan Salzer, Norman Graham, Tony Sheehan, Jennifer DutyMatsko, Richard Martin, Bales, Brown Morton, Henry Jackson, Wendell Enloe, Charles Tur ner , Jim Crosby, Charlie Verdugo and Rebecca Bainbridge are dismissed. Identified defendants in the amended complaint are Larry Crawford, Steve Long, Mike Kemna, Dave Dor mir e, and Bill Galloway. The court's docket sheet is to be modified to reflect these changes. Plaintiff Habeebullah filed a motion for appointment counsel on July 14, 2008. Plaintiff' s previous requests have been denied, most recently on April 30, 2008. A review of the record does not reveal a significant change in circumstances since that time. Accordingly, for the reasons previously set forth, plaintiff' s motion will be denied. IT IS, THEREFORE, ORDERED that plaintiff Habeebullah's July 14, 2008 motion for appointment of counsel is denied, without prejudice. [38] It is further ORDERED that plaintiff Habeebullah's August 20, 2008 motion to amend is granted, and the clerk of court is directed to file the proposed amended complaint, and modify the defendants named on the docket sheet as set out above. [46] It is further ORDERED that plaintiff Habeebullah's motion for face-to-face consultation with coplaintiff Mize is denied. [39] It is further

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ORDERED that plaintiffs' May 27, 2008 motion to amend, and plaintiff Mize's motion for order for return of legal materials, for discovery, and for service of process are denied as moot. [25, 27, 30, 31] It is further ORDERED that defendants are granted an extension of time until October 2, 2008, in which to file their discovery responses. [47] It is further RECOMMENDED that defendant Mize's motion to dismiss his claims be granted. [37] Under 28 U.S.C. § 636(b)(l), the parties may make specific written exceptions to this r ecommendation within twenty days. The District Judge will consider only exceptions to the specific proposed findings and recommendations of this report. Exceptions should not include matters outside of the report and recommendation. Other matters should be addressed in a separ ate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the r epor t and recommendation. The court has extended that time to twenty days, and thus, additional time to file exceptions will not be granted unless there are exceptional cir cumstances. Failure to make specific written exceptions to this report and recommendation will result in a waiver of the right to appeal. See L.R. 74.1(a)(2). Dated this 10th day of September, 2008, at Jefferson City, Missouri.

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William A. Knox

WILLIAM A. KNOX United States Magistrate Judge

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