Wade v. Akaka et al

Filing 141

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 116 MOTION to Dismiss and Memorandum of Law, 129 Memorandum and Recommendation. Defendants Motion to Dismiss (D.E. 116) is GRANTED and this action is DISMISSED. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
E.K. WADE,
Plaintiff,
VS.
DANIEL AKAKA, et al,
Defendants.

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§ CIVIL ACTION NO. 2:12-CV-00179
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ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
TO GRANT DEFENDANTS’ MOTION TO DISMISS
Pending before the Court is Defendants’ Motion to Dismiss (D.E. 116).
On November 2, 2012, United States Magistrate Judge Brian L. Owsley issued a
Memorandum and Recommendation (D.E. 129), recommending that Defendants’
Motion to Dismiss be granted.

Plaintiff filed his Objections (D.E. 135) on

November 16, 2012. Each of his objections will be addressed below.
Under the heading “Factual Allegations,” Plaintiff makes four objections:
(1) that he is entitled to notice and an opportunity to amend if his allegations are
insufficient to state a cause of action; (2) the standard of review applicable to a
motion to dismiss does not justify dismissal; (3) Plaintiff has filed a Third
Amended Complaint that cures any deficiency; and (4) the Magistrate Judge does
not have the authority to issue orders in this case. Under the heading “Statutory
Authority and Federal Rules of Civil Procedure,” Plaintiff supplies his briefing for
his objections.
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With respect to his first objection, Plaintiff claims that he has not been
given notice of any deficiency in his pleading along with an opportunity to cure
the defect. However, Plaintiff was given notice of claimed defects in Defendants’
Motion to Dismiss (D.E. 116) as well as the Magistrate Judge’s Memorandum and
Recommendations (D.E. 129). To date, Plaintiff has filed five motions in an
attempt to file a third amended complaint (D.E. 117, 122, 131, 134, 137).
After review, this Court finds that neither the Plaintiff’s motions nor his
proposed third amended complaint cure the deficiencies in the causes of action he
wants to state. An opportunity to amend is not required under Fed. R. Civ. P. 15
when any proposed amendment would be futile. Foman v. Davis, 371 U.S. 178,
182 (1962). Plaintiff’s first objection is OVERRULED.
In his second objection, Plaintiff asserts that the Magistrate Judge
misapplied the standard of review on the motion to dismiss, citing Conley v.
Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957). The Conley standard of review was
replaced by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). After review
of the Memorandum and Recommendation, the Court finds that the Magistrate
Judge properly applied the Twombly/Iqbal standard of review. Plaintiff’s second
objection is OVERRULED.
In his third objection, Plaintiff argues that he has filed a Third Amended
Complaint that cures any deficiency. Despite the fact that leave to file has not
been granted for the Third Amended Complaint, the Court has reviewed it and
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finds that it does not cure the deficiencies in Plaintiff’s causes of action. Neither
does Plaintiff articulate how he believes it does cure the deficiencies. Plaintiff’s
third objection is OVERRULED.
Fourth, Plaintiff challenges the Magistrate Judge’s authority to issue orders
in this case. He claims that the Magistrate Judge does not have the power to
preside in these pretrial matters without his consent.

Plaintiff’s argument is

predicated upon 28 U.S.C. § 636(b)(2) and (c). However, the Magistrate Judge is
acting in this case at this time under 28 U.S.C. § 636(b)(1). Under that subsection,
the Magistrate Judge has the power to make proposed findings and
recommendations for this Court’s final ruling.

No consent of the parties is

required. Plaintiff has been given his opportunity to object to the Memorandum
and Recommendation and it is now within the purview of this Court to adopt or
reject the Magistrate Judge’s findings and conclusions. As set out above, the
Court has done so. Plaintiff’s fourth objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and
recommendations set forth in the Magistrate Judge’s Memorandum and
Recommendation, as well as Plaintiff’s Objections, and all other relevant
documents in the record, and having made a de novo disposition of the portions of
the Magistrate Judge’s Memorandum and Recommendation to which objections
were specifically directed, the Court OVERRULES Plaintiff’s Objections and
ADOPTS as its own the findings and conclusions of the Magistrate Judge.

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Accordingly, Defendants’ Motion to Dismiss (D.E. 116) is GRANTED and this
action is DISMISSED.
ORDERED this 10th day of December, 2012.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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