Banda v. City of McAllen, Texas

Filing 33

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS re: 31 Memorandum and Recommendations, 25 First MOTION to Dismiss 24 Amended Complaint/Counterclaim/Crossclaim etc., Pursuant to Rule 12(b)(6) (Signed by Judge Drew B Tipton) Parties notified. (kll7)

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United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION CYNTHIA BANDA, Plaintiff, VS. CITY OF MCALLEN, TEXAS, Defendant. § § § § § § § § § July 03, 2024 Nathan Ochsner, Clerk Civil Case No. 7:23-CV-00341 ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Pending before the Court is the May 24, 2024 Memorandum and Recommendation (“M&R”) prepared by Magistrate Judge Peter Bray. (Dkt. No. 31). Judge Bray made findings and conclusions and recommended that Defendant’s First Motion to Dismiss Plaintiff’s Fifth Amended Complaint, (Dkt. No. 25), be granted. (Dkt. No. 31). The Parties were provided proper notice and the opportunity to object to the M&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). On June 7, 2024, Plaintiff filed seven broad objections. (Dkt. No. 32 at 2). Plaintiff objected to Judge Bray’s: (1) factual and legal findings; (2) recommendation that Plaintiff’s claims be dismissed with prejudice; (3) finding that Plaintiff alleged insufficient facts regarding the first two elements set forth in Ship v. McMahon, 234 F.3d 907, 913–14 (5th Cir. 2000); (4) finding that Plaintiff alleged insufficient facts regarding Defendant’s practice of treating domestic assault victims less favorably than victims of other assaults; (5) finding that Banda alleged insufficient facts regarding discrimination against women as a motivating factor for Defendant’s policy; (6) finding that Plaintiff alleged insufficient facts regarding Defendant’s intent to discriminate against women; and (7) finding that further amendment of Plaintiff’s pleadings would be futile. (Dkt. No. 32 at 2–3). In accordance with 28 U.S.C. § 636(b)(1)(C), the Court is required to “make a de novo determination of those portions of the [magistrate judge’s] report or specified proposed findings or recommendations to which objection [has been] made.” After conducting this de novo review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.; see also Fed. R. Civ. P. 72(b)(3). The Court has carefully considered de novo those portions of the M&R to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendations for plain error. Finding no error, the Court accepts the M&R and adopts it as the opinion of the Court. It is therefore ordered that: (1) Judge Bray’s M&R (Dkt. No. 31) is ACCEPTED and ADOPTED in its entirety as the holding of the Court; (2) Defendant’s First Motion to Dismiss Plaintiff’s Fifth Amended Complaint,(Dkt. No. 25), is GRANTED; and (3) This action is DISMISSED WITH PREJUDICE. It is SO ORDERED. Signed on July 2, 2024. ___________________________________ DREW B. TIPTON UNITED STATES DISTRICT JUDGE 2

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