Milazzo v. Young et al

Filing 42

MEMORANDUM OPINION AND ORDER. The Plaintiff has failed to state a claim on which declatory judgment relief may be granted. It is ORDERED that the Plaintiff's 40 Motion for Declaratory Judgment is DENIED. Signed by Magistrate Judge Judith K. Guthrie on 2/22/2012. (leh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

KEVIN MILAZZO, #1385992

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VS.

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SGT LEONARD D. YOUNG, ET AL.

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CIVIL ACTION NO. 6:11CV350

MEMORANDUM OPINION AND ORDER
Plaintiff Kevin Milazzo, proceeding pro se and in forma pauperis, filed this civil rights
lawsuit under 42 U.S.C. § 1983. The complaint was assigned to the undersigned pursuant to 28
U.S.C. § 636(c).
On February 3, 2012, Plaintiff filed a Motion for Declaratory Judgment (docket entry #40).
He is unclear as to precisely what he seeks as the subject of a declaratory judgment, however. His
motion recites the statutory basis for declaratory judgment; asserts that abstention doctrines and other
statutory bars do not apply; contends that the Court cannot “decline to entertainment declaratory
judg[]ment action as a matter of whims, or personal disinclination”; and further asserts that he need
not show irreparable injury to obtain declaratory judgment. See Motion at 1-2. However, he does
not state what he seeks beyond the following statement in his “Prayer for Relief”:
Wherefore, premises are considered, Plaintiff pray that this Court will grant his motion for
declaratory judg[]ment on the excessive use of force claim, and the retaliation claim, and the
assault and battery claim: to schedu[le] all claims for trial on the merits of his complaint
against all defendants, to include municipality liability.
Id. at 2.

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The Declaratory Judgment Act states in pertinent part:
In a case of actual controversy within its jurisdiction . . . any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be sought.
Any such declaration shall have the force and effect of a final judgment or decree and shall
be reviewable as such.
See 28 U.S.C. § 2201(a) (inapplicable exceptions omitted). The statute uses permissive, not
mandatory, language. American Federation of State, County, and Mun. Employees, Local 59 v. El
Paso City/County Health District, 198 F.3d 240, 1999 WL 824479, at *3 (5th Cir. 1999). “The
district court has broad discretion to grant (or decline to grant) declaratory judgment.” Winton v.
Seven Falls Co., 41 F.3d 934, 935 (5th Cir. 1994) (citing Torch, Inc., v. LeBlanc, 947 F.2d 193, 194
(5th Cir. 1991)), aff’d, 515 U.S. 277, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). Decisions of the
district court will be reviewed under the abuse of discretion standard. Id. (citing Rowan Cos. v.
Griffin, 876 F.2d 26, 29 (5th Cir. 1989)).
Here, Plaintiff does not state what “rights and other legal relations” he seeks with regard to
the Defendants. Furthermore, he has not stated any basis in either fact or law to support any form
of declaratory judgment. In effect, he simply asks the Court to grant him undefined declaratory
judgment against “all Defendants.” Motion at 2. In so doing, he appears to ignore that all
Defendants with the exception of one, Sergeant Young, have been dismissed from this action and
that his claim is being allowed to go forward against that remaining Defendant on the issue of
excessive use of force and retaliation only. There is no claim for “assault and battery” or
“municipality liability.” None of his allegations in his motion provide any basis for making a finding
against Sergeant Young on these remaining claims. He has therefore failed to state a claim or which
declaratory judgment relief may be granted and his motion will therefore be denied. See Price v.
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Interstate Mgmt. Co., 2012 WL 283020, at *1 (5th Cir. Feb. 1, 2012) (per curiam). Plaintiff’s case
will be set for trial in due course unless a party successfully moves for summary judgment or another
valid basis for a final judgment.
It is accordingly
ORDERED that Plaintiff’s Motion for Declaratory Judgment (docket entry #40) is hereby
DENIED.
So ORDERED and SIGNED this 22 day of February, 2012.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

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