Morgan et al v. Plano Independent School District et al

Filing 345

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 298 MOTION for Entry of Judgment - Swanson filed by Lynn Swanson.. Signed by Magistrate Judge Don D. Bush on 7/17/2012. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JONATHAN MORGAN, et al.
Plaintiffs,
V.

THE PLANO INDEPENDENT
SCHOOL DISTRICT, et al.
Defendants.

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CASE NO. 4:04CV447

REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
Now before the Court are Defendant Lynn Swanson’s Motion for Entry of Judgment
Dismissing Plaintiffs’ Claims Against Lynn Swanson (Dkt. 298) and the related responsive pleadings
(see Dkts. 301, 303 & 343). Having reviewed the record in this matter, the Court finds that Lynn
Swanson’s Motion for Entry of Judgment (Dkt. 248) should be DENIED because Plaintiff Doug
Morgan’s claim that there was a constitutional interference with his claimed right to distribute
materials to other parents remains. The Fifth Circuit’s opinion in this matter only dealt with the
issue of elementary student distribution and the parent to parent claim was not the subject of a then
existing dispositive motion. The Court notes that Swanson has since filed a Motion to Dismiss
which the Court will address separately (see Dkt. 331). Even if the Fifth Circuit’s opinion is
ultimately instructive as to the disposition of the claim, final judgment can only be entered once all
claims against Swanson are addressed.

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However, to be absolutely clear to all parties, based on the Fifth Circuit opinion all claims
against Swanson should be dismissed with prejudice except as to the claim related to Doug Morgan
which was not raised in a dispositive motion at the time the underlying motion was filed and remains
before the Court.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days after service shall bar an aggrieved party from de novo review by
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the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th
Cir. 1988).
SIGNED this 17th day of July, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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