Casey v. Stephens et al

Filing 28

ORDER re: Memorandum and Recommendation 20 . The Magistrate Judge may file a supplemental M&R and Defendant will then be allowed fourteen (14) days to file objections to the supplemental M&R.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WILLIAM CASEY,
Plaintiff,
VS.
WILLIAM STEPHENS, et al,
Defendants.

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§ CIVIL ACTION NO. 2:14-CV-13
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ORDER ON OBJECTIONS TO MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendant Clint Morris’s Motion to Dismiss (D.E.
12), seeking dismissal of Plaintiff’s First Amendment claim against him in his individual
capacity for monetary damages. On November 13, 2014, United States Magistrate Judge
Jason B. Libby issued his Memorandum and Recommendation (“M&R”) (D.E. 20)
recommending that the Court deny Defendant’s motion. The Court received Defendant’s
objections (D.E. 22) on December 1, 2014. The objections are set out and discussed
below.
Defendant first objects to the M&R because it “failed to consider the competent
evidence attached to Defendant’s Motion to Dismiss; and thus, truncated its analysis in
determining whether the motion to dismiss should be granted.” D.E. 22, p. 3. The
motion to dismiss included an unsigned affidavit on behalf of Defendant Morris (D.E. 121) as well as Defendant’s job description (D.E. 12-2). Defendant relies on a line of
Supreme Court and Fifth Circuit cases in arguing that Rule 12(b) requires the court to

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treat his motion to dismiss as one for summary judgment where matters outside the
pleadings are considered. D.E. 22, p. 3.
However, “the presence of affidavits in the record that were not relied upon by the
district court does not convert the motion to dismiss into one for summary judgment.”
Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995). Rather, a court has “complete
discretion” in determining whether or not to accept materials outside the pleading and
convert a Rule 12(b) motion into a motion for summary judgment. Ware v. Associated
Milk Producers, Inc., 614 F.2d 413, 414 (5th Cir. 1980). E.g., Griffith v. Johnson, 899
F.2d 1427, 1432 n.2 (5th Cir. 1990) (“Rule 12(b)(6) permits the district court, in its
discretion, to consider materials outside the pleadings when adjudicating the motion to
dismiss, thereby converting the motion into one for summary judgment.”) (emphasis
added).

Thus, the Magistrate Judge was well within his discretion to disregard

Defendant’s evidence and adjudicate the motion under Rule 12(b). Defendant’s first
objection is OVERRULED.
Second, Defendant objects that the M&R failed to consider his qualified immunity
argument for the claims against him in his individual capacity. Specifically, Defendant
argues that the Magistrate Judge failed “to consider either prong of the qualified
immunity analysis and has deprived Morris of his entitlement to be free, not only of the
burdens of trial, but also of the burdens of suit.” D.E. 22, p. 5. Because the M&R failed
to address Defendant’s qualified immunity argument, the Court SUSTAINS Defendant’s
second objection and refers this matter back to the Magistrate Judge to address qualified

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immunity. The Magistrate Judge may file a supplemental M&R and Defendant will then
be allowed fourteen (14) days to file objections to the supplemental M&R.
ORDERED this 6th day of February, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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