Jabary v. City of Allen

Filing 118

MEMORANDUM ADOPTING REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE for 113 Report and Recommendations,. Signed by Judge Ron Clark on 8/23/2012. (pad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MIKE JABARY,
Plaintiff,
v.
CITY OF ALLEN, ET AL.,
Defendants.

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Case No. 4:10cv711
(Judge Clark/Judge Mazzant)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On July 11, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that the Individual Defendants’ Motion for Entry of Final
Judgment of Dismissal [Doc. #109] be granted.
This court has received the report of the United States Magistrate Judge, the objections
thereto filed by plaintiff [Doc. #116], as well as the individual defendants' response [Doc. #117].
Plaintiff objects to the report, asserting that Defendants “failed to identify any injustice, harm, or
damage which would result from the delay of entry of a final order in this case.” Plaintiff argues that
Defendants have not described any harm or damages which would result from not certifying an
immediate appeal and waiting until the case against the City of Allen was complete. Plaintiff also
asserts that the Magistrate Judge encouraged Defendants to pursue a motion for entry of a final
judgment.

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Defendants assert that Plaintiff's position ignores the fact that Defendants clearly pointed out
that they have established their immunity and that Plaintiff merely seeks to delay entry of a final
judgment until after Plaintiff completes litigation of claims he made against the City of Allen in state
and federal courts. Defendants assert that the exhaustion of Plaintiff’s state court remedies against
the City of Allen could take years. Defendants also assert that although Plaintiff disagrees with the
Magistrate Judge’s report, there has been no showing of any error.
Based upon the court’s prior decisions, all claims against the Individual Defendants have
been dismissed with prejudice. The court granted a stay to the claims against the City of Allen. The
court sees no error committed by the Magistrate Judge in recommending finality to the Individual
Defendants.

This court is of the opinion that the findings and conclusions of the Magistrate Judge

are correct and adopts the Magistrate Judge’s report as the findings and conclusions of the court.
It is, therefore, ORDERED that the Individual Defendants’ Motion for Entry of Final
Judgment of Dismissal [Doc. #109] is GRANTED. A Final Judgment will be entered as to
Defendants Peter Smith, Stephen Terrell, Bo Bass, Jon Felty, Peter Vargas, Bret McCullough,
William Rushing and John Does 1-5.
So ORDERED and SIGNED this 23 day of August, 2012.

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Ron Clark, United States District Judge

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