Sims v. United States et al

Filing 114

Order Accepting 111 , 112 , 113 Findings, Conclusions and Recommendation of the United States Magistrate Judge. The court (1) grants Defendants' Garland Independent School District, Gradyne Brown, and Darren Hemphill Motion to Dismiss (Doc . 60 ), dismisses without prejudice Plaintiff's state-law tort claims against these Defendants under Rule 12(b)(1) for lack of subject matter jurisdiction, and dismisses with prejudice Plaintiff's federal claims against these Defendants un der Rule 12(b)(6) for failure to state a claim; (2) grants Defendant Juana S. Acosta's Amended Motion to Dismiss under Rule 12(b)(6) (Doc. 58 ) and dismisses with prejudice all claims by Plaintiff against her and denies as moot Juana S. Acosta& #039;s Amended Motion to Dismiss under Rule 12(b)(5); (3) grants Defendant Dallas Fire-Rescue Department's and Dallas Police Department's Rule 12(b)(6) Motion to Dismiss (Doc. 54 ) and dismisses with prejudice all claims by Plaintiff again st these Defendants; and (4) grants Defendants' Dallas Police Officers Andrew Lehocky, Howard Leftwich, Andrew Fuka, and Lisette Rivera Rule 12(b)(6) Motion to Dismiss (Doc. 62 ) and dismisses with prejudice all claims by Plaintiff against these Defendants. (Ordered by Judge Sam A. Lindsay on 8/13/2019) (zkc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEVEN S. SIMS,
Plaintiff,
v.
UNITED STATES, et al.,*
Defendants.

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Civil Action No. 3:17-CV-3203-L

ORDER
Before the court are Before the Court is Defendants’ Garland Independent School District
(“GISD”), Gradyne Brown, and Darren Hemphill (collectively, the “School District Defendants”),
Motion to Dismiss Plaintiff’s Third Amended Complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) (Doc. 60), filed December 31, 2018; Defendant Juana S. Acosta’s Amended
Motion to Dismiss Plaintiff’s Third Amended Complaint under Federal Rules of Civil Procedure
12(b)(5) and 12(b)(6) (Doc. 58), filed December 31, 2018; Defendant Dallas Fire-Rescue
Department’s and Dallas Police Department’s Rule 12(b)(6) Motion to Dismiss (Doc. 54), filed
December 21, 2018; and Defendants’ Dallas Police Officers Andrew Lehocky, Howard Leftwich,
Andrew Fuka, and Lisette Rivera Rule 12(b)(6) Motion to Dismiss (Doc. 62), filed December 31,
2018.
On July 27, 2019, the United States Magistrate Judge entered the Findings, Conclusions and
Recommendation of the United States Magistrate Judge (Docs. 111, 112, 113) (“Reports”),

*

For purposes of clarity, the court generally lists the names of all defendants, particularly when entry of
judgment against some or all of the defendants is warranted; however, as noted in the magistrate judge’s Reports, Plaintiff
has asserted more than 23 claims against 42 named Defendants in this case, so listing all named Defendants is not
practical.
Order - Page 1

recommending that the court: (1) grant Defendants’ Garland Independent School District, Gradyne
Brown, and Darren Hemphill Motion to Dismiss (Doc. 60), dismiss Plaintiff’s state-law tort claims
against these Defendants under Rule 12(b)(1) for lack of subject matter jurisdiction, and dismiss with
prejudice Plaintiff’s federal claims against these Defendants under Rule 12(b)(6) for failure to state
a claim; (2) grant Defendant Juana S. Acosta’s Amended Motion to Dismiss (Doc. 58) and dismiss
with prejudice all claims by Plaintiff against her; and (3) grant Defendant Dallas Fire-Rescue
Department’s and Dallas Police Department’s Rule 12(b)(6) Motion to Dismiss (Doc. 54) and
dismiss with prejudice all claims by Plaintiff against these Defendants; and (4) grant Defendants’
Dallas Police Officers Andrew Lehocky, Howard Leftwich, Andrew Fuka, and Lisette Rivera Rule
12(b)(6) Motion to Dismiss (Doc. 62) and dismiss with prejudice all claims by Plaintiff against these
Defendants. No objections to the Reports were filed by Plaintiff.
Having reviewed the motions, briefs, pleadings, and Reports, the court determines that the
findings and conclusions of the magistrate judge are correct, and accepts them as those of the court.
Accordingly, the court (1) grants Defendants’ Garland Independent School District, Gradyne Brown,
and Darren Hemphill Motion to Dismiss (Doc. 60), dismisses without prejudice Plaintiff’s
state-law tort claims against these Defendants under Rule 12(b)(1) for lack of subject matter
jurisdiction, and dismisses with prejudice Plaintiff’s federal claims against these Defendants under
Rule 12(b)(6) for failure to state a claim; (2) grants Defendant Juana S. Acosta’s Amended Motion
to Dismiss under Rule 12(b)(6) (Doc. 58) and dismisses with prejudice all claims by Plaintiff
against her and denies as moot Juana S. Acosta’s Amended Motion to Dismiss under Rule 12(b)(5);
(3) grants Defendant Dallas Fire-Rescue Department’s and Dallas Police Department’s Rule
12(b)(6) Motion to Dismiss (Doc. 54) and dismisses with prejudice all claims by Plaintiff against

Order - Page 2

these Defendants; and (4) grants Defendants’ Dallas Police Officers Andrew Lehocky, Howard
Leftwich, Andrew Fuka, and Lisette Rivera Rule 12(b)(6) Motion to Dismiss (Doc. 62) and
dismisses with prejudice all claims by Plaintiff against these Defendants. No objections to the
Reports were filed by Plaintiff.
Further, as no claims remain against Defendants Garland Independent School District,
Gradyne Brown, Darren Hemphill, Juana S. Acosta, Dallas Fire-Rescue Department, Dallas Police
Department, and Dallas Police Officers Andrew Lehocky, Howard Leftwich, Andrew Fuka, and
Lisette Rivera, the court expressly determines, pursuant to Federal Rule of Civil Procedure 54(b),
that there is no just reason to delay the entry of final judgment in this case as to these Defendants and
directs the clerk of the court to enter a final judgment as to them with respect to the claims dismissed
with prejudice.
It is so ordered this 13th day of August, 2019.

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Sam A. Lindsay
United States District Judge

Order - Page 3