Bacon v. Hamilton et al

Filing 104

MEMORANDUM DECISION AND ORDER denying 98 Motion to Alter or Amend Judgment. Signed by Judge David Nuffer on 8/15/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MICHAEL A. BACON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
ALTER OR AMEND JUDGMENT

v.
Case No. 2:15-cv-00179-DN-BCW
UNITED STATES OF AMERICA,
District Judge David Nuffer
Defendant.

Magistrate Judge Wells’ recommended Plaintiff Michael A. Bacon’s Second Amended
Complaint be dismissed for “lack of ripeness and subject matter jurisdiction as [Mr.] Bacon had
not fully pursued available state-court remedies.” 1 Mr. Bacon filed an filed an Objection 2 and
Memoranda 3 in Support of his Objection. In his Memorandum in support of his Objection, Mr.
Bacon attempts to alter his complaint to include an allegation that the Defendants violated his
Fourth Amendment rights. 4 On June 5, 2018, the Report and Recommendation was adopted 5 and
Mr. Bacon’s untimely request to amend the complaint was not considered. 6 A Judgment was
entered and the case was closed. 7

1

Report and Recommendation, docket no. 81, filed April 12, 2018.

2

Objection to Magistrate Judges [sic] R&R (“Objection”), docket no. 84, filed April 20, 2018.

3

Docket no. 85, filed April 25, 2018; docket no. 86, filed April 30, 2018; docket no. 88, filed May 9, 2018.

4

Memorandum, docket no. 85 at 3.

5

Docket no. 90, filed June 5, 2018.

6

Report and Recommendation at 5.

7

Docket no. 91, filed June 5, 2018.

Mr. Bacon seeks to alter or amend 8 the Judgment. He argues he timely made a motion to
amend his complaint prior to the Report and Recommendation. 9 Mr. Bacon makes this same
argument in his Objection to the Memorandum Decision and Order Adopting Report and
Recommendation. 10 This argument lacks merit—the Second Amended Complaint was dismissed
because Mr. Bacon failed to exhaust state remedies. Amending his complaint for the third time
would not change the fact that Mr. Bacon failed to exhaust state remedies.
IT IS HEREBY ORDERED that Mr. Bacon’s Motion 11 is DENIED.
Dated August 15, 2018.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

8

Motion to Alter or Amend a Judgment (“Motion”), docket no. 98, filed July 9, 2018.

9

Motion at 1-2.

10

Docket no. 93, June 18, 2018.

11

Docket no. 98, filed July 9, 2018.

2