Layton v. Sims

Filing 28

ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS: re: adopting 27 Report and Recommendation, denying 8 Motion to Dismiss. (Ordered by Judge Mary Lou Robinson on 3/30/2012) (egb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

DAVID MATTHEW LAYTON. #751249.

Plaintifl

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V.

2:11-CV-0104

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RANDALL C. SIMS,

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Defendant.

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ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS
Plaintiff DAVID MATTHEW LAYTON, while

a prisoner incarcerated

in the custody of

the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit
pursuant to Title 42,United States Code, Section 1983 complaining against the above-named
defendant and has been granted permission to proceed informa pauperis.
On March 14,2012 a Report and Recommendation was issued by the United States
Magistrate Judge analyzing defendant Sims' motion to dismiss pursuant to Rule l2(bX6), Federal
Rules of Civil Procedure, as well as plaintiff s responseso and recommending the motion to
dismiss be denied without prejudice to defendant re-urging limitations either attrial, in a motion

for summary judgment, or in a supplemental motion for summary judgment with all necessary
summary judgment evidence included.

The period for response has expired; and no objections have been filed.
The Court has made an independent examination of the records in this case and has
examined the Magistrate Judge's Report and Recommendation. The Court is of the opinion that

the Report and Recommendation of the United States Magistrate Judge should be ADOpTED by
the United States District Court.

This Court, therefore, does hereby ADOPT the Report and Recommendation of the
United States Magistrate Judge in this case.

IT IS THEREFORE ORDERED that the Motion to Dismiss by defendant Sims is
DENIED WITHOUT PREJUDICE TO DEFENDANT RE-URGING LIMITATIONS EITHER

AT TRIAL, IN A MOTION FOR SUMMARY JUDGMENT. OR IN A SUPPLEMENTAL
MOTION FOR SUMMARY JUDGMENT WITH ALL NECESSARY SUMMARY
JUDGMENT EVIDENCE INCLUDED.

TheClerkwillmailacopyofthisW'otheplaintiffandtoeachattorneyofrecord
by first class mail,

It is SO ORDERED.
Signed this 30'h day of March,2012.

R

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INSO