Penn-White v. City of Sherman, Texas
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 69 Motion to Dismiss filed by City of Sherman, Texas, 93 Report and Recommendations. Defendants Rule 12(b) Motion to Dismiss Plaintiffs Second Amended Complaint [Doc. #69] is DENIED. Signed by Judge Ron Clark on 8/8/14. (cm, )
**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
ALPHAGO XAVIER PENN-WHITE,
CITY OF SHERMAN, TEXAS
CASE NO. 4:13-CV-25
Judge Clark/Judge Mazzant
ORDER 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 June 9, 2014, the report of the Magistrate Judge was entered containing
proposed findings of fact and recommendations regarding Defendant’s Rule 12(b) Motion to
Dismiss Plaintiffs’ Second Amended Complaint [Doc. #69]. The Magistrate Judge
recommended that Defendant’s motion be denied [Doc. #93]. On June 24, 2014, Defendant filed
objections [Doc. #99]. On July 9, 2014, Plaintiff filed a response [Doc. #105]. On July 16,
2014, Defendant filed a reply [Doc. #107].
Plaintiff, a former City of Sherman employee, asserts claims for race discrimination and
retaliation. The Magistrate Judge set forth the applicable legal standard for a motion to dismiss
under Fed. R. Civ. P. 12(b)(6). The Magistrate Judge then found that “[a]fter reviewing the
Second Amended Complaint, the motion to dismiss, and the response, the Court finds that
Plaintiff has stated plausible claims for purposes of defeating a Rule 12(b)(6) motion.”
Defendant limits its objections to the claim of retaliation. Defendant objects to the
Magistrate Judge’s one-sentence recommendation. This objection is overruled.
There is nothing improper about a short denial of a Rule 12(b)(6) motion. Defendant makes
the following statement in its objections, “[Plaintiff] fails, however, to provide one iota of
evidence connecting Defendant to his criminal prosecution.” This is not a motion for
summary judgment, but rather a motion to dismiss. Defendant could have filed a motion for
summary judgment, but chose to ignore the dispositive motion deadline. Any injustice that
Defendant imagines has resulted from the ruling is a self-inflicted wound.
Trial is in September. After Plaintiff rests perhaps Defendant can make an appropriate motion to
address whether Plaintiff has submitted sufficient evidence to support a claim. The court agrees
with Plaintiff that the Magistrate Judge correctly determined that Plaintiff has stated a plausible
claim of race discrimination and retaliation. Of course it must be proven at trial.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by Defendant, as well as the response and reply, 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 Defendant’s Rule 12(b) Motion to Dismiss Plaintiffs’
Second Amended Complaint [Doc. #69] is DENIED.
So ORDERED and SIGNED this 8 day of August, 2014.
Ron Clark, United States District Judge
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