Smith v. City of Dallas et al

Filing 44

Order Accepting 38 Findings, Conclusions, and Recommendation of United States Magistrate Judge granting 7 Dismiss for Failure to State a Claim. If Smith does not file an amended complaint within 14 days of any Order accepting these findings, conclusions, and recommendation, the case should be dismissed with prejudice. (Ordered by Judge Ed Kinkeade on 1/17/2019) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MORRIS DEVON SMITH,
Plaintiff,
v.
CITY OF DALLAS, et al.,
Defendants.

§
§
§
§
§
§
§
§
§

Case No. 3:18-cv-01684-K

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The

Court

has

under

consideration

the

Findings,

Conclusions,

and

Recommendation of United States Magistrate Judge Rebecca Rutherford dated
December 21, 2018. The Court has reviewed the Findings, Conclusions, and
Recommendation for plain error. Finding none, the Court accepts the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (ECF No.
12) is GRANTED. Because it is not clear that all the defects in Smith’s claims against
the City are incurable, and Smith has not advised the Court that he is unwilling or
unable to amend his complaint in a manner that will avoid dismissal, the Court should
grant Smith one final opportunity to state a claim that survives dismissal. Great Plains
Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (noting
that it is appropriate for district courts to afford plaintiffs at least one opportunity to
-1-

cure pleading deficiencies before dismissing a case, unless it is clear that the defects are
incurable or the plaintiffs advise the court that they are unwilling or unable to amend
in a manner that will avoid dismissal). If Smith does not file an amended complaint
within 14 days

of any

Order accepting these findings, conclusions, and

recommendation, the case should be dismissed with prejudice.
SO ORDERED.
Signed January 17th, 2019.

______________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

-2-