Devereaux v. Denton City of

Filing 19

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 14 Report and Recommendations, GRANTING IN PART AND DENYING IN PART 9 Motion to Dismiss filed by John Doe #1, Denton Police Department, John Doe #2, Denton City of, DENYING 16 Motion for Reconsideration, Motion to Stay,, filed by Denton City of. Signed by Judge Ron Clark on 11/21/2012. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
WILLIAM C. DEVEREAUX,

§
§
Plaintiff,
§
§
V.
§
§
CITY OF DENTON, TEXAS, DENTON §
POLICE DEPARTMENT, JOHN DOE
§
NO. 1, INDIVIDUALLY AND AS A
§
DENTON, TEXAS POLICE OFFICER,
§
AND JOHN DOE NO. 2, INDIVIDUALLY,§
§
Defendants.
§

CASE NO. 4:12cv73
Judge Clark/Judge Mazzant

ORDER ADOPTING IN PART 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 September 24, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that defendants City of Denton, Texas (the “City”), the Denton
Police Department, John Doe No. 1, and John Doe No. 2's Second Motion to Dismiss Pursuant to
Federal Rules 4(m), 12(b)(4), 12(b)(5) and 12(b)(6), Motion to Require Response to Claim of
Qualified Immunity Pursuant to Rule 7, and Motion for More Definite Statement Pursuant to Rule
12(e) [Doc. #9] be granted in part and denied in part. On October 4, 2012, defendants filed a Motion
for Partial Reconsideration of Report and Recommendation of United States Magistrate Judge and
for Stay of Order to Disclose John Doe Defendants Pending Determination [Doc. #16]. On October
5, 2012, plaintiff filed objections to the Magistrate Judge’s report and recommendation [Doc. #17].

1

A review of the plaintiff’s response indicates that plaintiff did not lodge objections to the
Magistrate Judge’s dismissal of the following claims: (1) state law claims against the individual
defendants; (2) all claims against the Denton Police Department; and (3) state law claims against
the City of Denton. The court adopts these findings.
Plaintiff appears to object to the Magistrate Judge’s recommendation to dismiss the section
1983 claims against the City. The court agrees with plaintiff only to the extent that it is premature
to dismiss the City at this stage of the litigation. Therefore, the court does not adopt the portion of
the report that recommends dismissal of the section 1983 claims against the City.
Defendants filed a Motion for Partial Reconsideration of Report and Recommendation of
United States Magistrate Judge [Doc. #14], and for Stay of Order to Disclose John Doe Defendants
Pending Determination. The motion addresses the John Doe defendants and the deferral of the
limitations issue. The court agrees with the decision to defer deciding the limitations issue.
Although the court understands the confusion in the ordering of the names of the John Doe
defendants, plaintiff is entitled to know the names of the John Doe defendants. The names of the
John Doe defendants shall be produced to plaintiff, and plaintiff shall file an amended complaint
adding the named defendants. Whether plaintiff pleads a proper claim against the individual
defendants can be addressed by appropriate motion of the defendants after service.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by plaintiff [Doc. #17], this court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct in part and adopts the Magistrate Judge’s report in
part as the findings and conclusions of the court, with the exception of the recommended dismissal
of the section 1983 claims against the City.

2

It is, therefore, ORDERED that defendants City of Denton, Texas, the Denton Police
Department, John Doe No. 1, and John Doe No. 2's Second Motion to Dismiss Pursuant to Federal
Rules 4(m), 12(b)(4), 12(b)(5) and 12(b)(6), Motion to Require Response to Claim of Qualified
Immunity Pursuant to Rule 7, and Motion for More Definite Statement Pursuant to Rule 12(e) [Doc.
#9] is granted in part and denied in part. Plaintiff’s state law claims against the individual
defendants, all claims against the Denton Police Department, and state law claims against the City
of Denton are DISMISSED with prejudice.
It is further ORDERED that Defendants’ Motion for Partial Reconsideration of United
States Magistrate Judge and for Stay of Order to Disclose John Doe Defendants Pending
Determination [Doc. #16] is DENIED.
So ORDERED and SIGNED this 21 day of November, 2012.

So ORDERED and SIGNED this 21 day of November, 2012.

___________________________________
Ron Clark, United States District Judge

___________________________________
Ron Clark, United States District Judge

3