Goodwin v. Dunning
MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED THAT: Plaintiff's objection to the magistrate judges order, Filing No. 33 , is denied. Plaintiff's motion for leave to appeal in forma pauperis, Filing No. 34 , is denied. The magistrate judge's order, Filing No. 31 , is affirmed. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
TIMOTHY DUNNING, and BURMEISTER,
This matter is before the court on the pro se plaintiff’s objection, Filing No. 33, to the
magistrate’s order, Filing No. 31. The plaintiff also styles Filing No. 33 as an interlocutory
appeal and Filing No. 34 as a motion to appeal in forma pauperis. Upon review, it appears
that plaintiff merely intends to appeal the magistrate judge’s order to this court. Accordingly,
the court will view plaintiff’s Filing No. 33 as an objection and appeal, and Filing No. 34 will
The Supreme Court has construed the statutory grant of authority conferred on
magistrate judges under 28 U.S.C. § 636 to mean that nondispositive pretrial matters are
governed by § 636(b)(1)(A) and dispositive’ matters are covered by § 636(b)(1)(B). Gomez
v. United States, 490 U.S. 858, 873-74 (1989); see also Fed. R. Civ. P. 72(a). On review of
a decision of the magistrate judge on a nondispositive matter, the district court may set
aside any part of the magistrate judge’s order that it finds is clearly erroneous or contrary to
law. 28 U.S.C. § 636 (b)(1)(A); Fed. R. Civ. P. 72(a). With respect to dispositive motions, a
magistrate judge lacks authority to do anything but make recommendations, which are
subject to de novo review. United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003); 28
U.S.C. § 636(b)(1).
Plaintiff brought this case pro se alleging violations pursuant to 42 U.S.C. § 1983.
Plaintiff contends that defendants refused to give her a license for a handgun.
Defendant filed a motion to strike the amended complaint, Filing No. 28.
magistrate granted the motion to strike and ordered the Clerk of Court to do so. The
magistrate judge determined that plaintiff failed to comply with the 21 day pleading as a
matter of course rule set forth in Fed. R. Civ. P. 15. The plaintiff also failed to request
permission from the court to file an amended complaint.
Plaintiff appeals the magistrate’s order. However, plaintiff does not set forth any
facts or arguments to support her appeal.
The court has carefully reviewed the filings, and in particular the decision of the
magistrate judge, Filing No. 31. The court finds the magistrate is correct as a matter of law
Accordingly, the court will deny the appeal.
If the plaintiff wants to file an
amended complaint, she must file a motion requesting permission from the court to do so.
THEREFORE, IT IS ORDERED THAT:
1. Plaintiff’s objection to the magistrate judge’s order, Filing No. 33, is denied;
2. Plaintiff’s motion for leave to appeal in forma pauperis, Filing No. 34, is denied;
3. The magistrate judge’s order, Filing No. 31, is affirmed.
Dated this 18th day of October, 2017.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?