Gaynier v. Hudson

Filing 24

Order: The 23 findings, conclusions, and recommendation of the magistrate judge are adopted. Defendant's 11 motion to dismiss for failure to state a claim is granted, and plaintiff's 21 motion for leave to file first amended complai nt to add additional parties is denied without prejudice. All of plaintiff's claims, except for her claim against defendant Antonio Hudson in his individual and official capacities for use of excessive force, in violation of the Fourth Amendment to the Constitution, are dismissed with prejudice. Plaintiff's claim against Officer Hudson in his official capacity for use of excessive force, in violation of the Fourth Amendment to the Constitution, is dismissed without prejudice. If, withi n 21 days from the date of this order, plaintiff does not file an amended complaint, her official capacity claim will, upon Officer Hudson's renewed motion to dismiss, be subjected to dismissal with prejudice. (Ordered by Judge Sidney A Fitzwater on 5/30/2017) (rekc)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MARY KATHERINE GAYNIER, Individually, and on behalf of the Estate of Andrew Scott Decedent, Plaintiff, v. ANTONIO HUDSON, a City of Dallas Police Officer, Defendant. § § § § § § § § § § Civil Action No. 3:16-CV-2314-D ORDER The United States Magistrate Judge filed March 22, 2017 findings, conclusions, and recommendation in this case. After making an independent review of the pleadings, files, and records in this case, and the findings, conclusions, and recommendation of the magistrate judge, the court concludes that the findings and conclusions are correct. It is therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are adopted, defendant’s October 28, 2016 motion to dismiss for failure to state a claim is granted, and plaintiff’s February 28, 2017 motion for leave to file first amended complaint to add additional parties is denied without prejudice. All of plaintiff’s claims, except for her claim against defendant Antonio Hudson (“Officer Hudson”) in his individual and official capacities for use of excessive force, in violation of the Fourth Amendment to the Constitution, are dismissed with prejudice. Plaintiff’s claim against Officer Hudson in his official capacity for use of excessive force, in violation of the Fourth Amendment to the Constitution, is dismissed without prejudice. If, within 21 days from the date of this order, plaintiff does not file an amended complaint that cures the deficiencies in her official capacity claim noted by the United States Magistrate Judge, her official capacity claim will, upon Officer Hudson’s renewed motion to dismiss, be subjected to dismissal with prejudice. No process shall issue at this time. SO ORDERED. May 30, 2017. _________________________________ SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE -2-

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