McGowan v. Mitchell et al

Filing 134

REPORT AND RECOMMENDATION re 58 Motion to Dismiss. It is recommended that the motion to dismiss be denied as moot. Signed by Magistrate Judge E. Clifton Knowles on 9/5/2014. (xc:Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHNNY L. McGOWAN, JR.,
Plaintiff,
v.
SGT. J. MITCHELL, et al.,
Defendants.

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Civil Action No. 3:14-cv-00578
Judge Trauger / Knowles

REPORT AND RECOMMENDATION
This matter is before the Court upon by a Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(6) filed by Defendant Darrell Thomas. Docket No. 58. Defendant has contemporaneously
filed a supporting Memorandum of Law. Docket No. 59. As grounds for his Motion, Defendant
argues that he should be dismissed from this action because Plaintiff’s Complaint fails to state
any factual allegations against him. Id.
Plaintiff has not responded to the instant Motion, but did file a Motion For Leave to
Amend the Complaint Relative to Darrell Thomas (Docket No. 62), which was granted (Docket
No. 79). Plaintiff’s Motion (Docket No. 62) contained the amended allegations against
Defendant Thomas specifically, and is the operative Complaint against him. Accordingly, the
instant Motion (Docket No. 58) should be DENIED AS MOOT, as it relates to Plaintiff’s
original Complaint.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have

fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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E. CLIFTON KNOWLES
United States Magistrate Judge

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