Weldon v. Norrod et al
Filing
6
MEMORANDUM DECISION AND ORDER AFFIRMING IN PART AND REVERSING IN PART REPORT & RECOMMENDATION- Affirming in part and Reversing in part 5 Report and Recommendations. After careful review of the record, applying a de novo standard of review, the court AFFIRMS and ADOPTS Magistrate Judge Wells's recommendation that Mr. Weldon's complaint be dismissed. The court REVERSES, however, the recommendation that Mr. Weldon be allowed to amend his complaint. This action is DISMISSED without prejudice. Case Closed. Signed by Judge Clark Waddoups on 2/5/18. (jmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DENNIS WELDON JR.,
v.
MEMORANDUM & ORDER
AFFIRMING IN PART AND
REVERSING IN PART REPORT &
RECOMMENDATION
OFFICER J. NORROD; OFFICER C.
SOBADJIAN; SARGENT C. HUTCHENS;
and CLAYTON COUNTY POLICE
DEPARTMENT,
Case No. 2:17-cv-865
Plaintiff,
Defendants.
Judge Clark Waddoups
Plaintiff Dennis Weldon Jr., proceeding pro se, brings this action under 42 U.S.C. § 1983
against Defendants Officer J. Norrod, Officer C. Sobadjian, Sargent C. Hutchens, and the
Clayton County Police Department, alleging Defendants violated his Fourth Amendment
constitutional rights. The action was assigned to United States District Court Judge Clark
Waddoups, who then referred it to United States Magistrate Judge Brooke C. Wells under 28
U.S.C. 636(b)(1)(B). (ECF No. 4.) The matter is now before the court on a Report and
Recommendation from Magistrate Judge Wells, dated January 12, 2018, in which she
recommends that the action be dismissed but that Mr.Weldon be permitted to cure the
deficiencies in his Complaint within fourteen (14) days after service of this order. (ECF No. 5.)
The Report & Recommendation is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Twenty-four days have passed since Magistrate Judge Wells entered her
recommendation, and it remains unopposed. See Fed. R. Civ. P. 72(b)(2) (permitting a party,
within fourteen days of being served, to file written objections). Therefore, the court “may
review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991). Because Mr. Weldon is proceeding pro se, the court must
liberally construe his pleadings, Haines v. Kerner, 404 U.S. 519, 520–21 (1972), but it cannot
advocate for him, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
After careful review of the record, applying a de novo standard of review, the court
AFFIRMS and ADOPTS Magistrate Judge Wells’s recommendation that Mr. Weldon’s
complaint be dismissed. The Complaint alleges no facts that would support this court’s exercise
of jurisdiction over these Defendants. And there are no facts that indicate Utah is the proper
venue for this action. Additionally, justice does not require this court to transfer the action
because it does not appear Mr. Weldon’s claims are at risk of being time-barred, given that his
arrest occurred on February 23, 2017.
The court REVERSES, however, the recommendation that Mr. Weldon be allowed to
amend his complaint. The arrest about which Mr. Weldon complains apparently took place in
Clark County, Georgia, and has no apparent connection to the State of Utah. Therefore, this court
does not have specific jurisdiction based on the facts as plead and there are likely no facts that
could support specific jurisdiction because the activities that give rise to the claim occurred in
Georgia. Further, Mr. Weldon resides in Georgia, and his complaint states that each of the three
individual Defendants is a citizen of Georgia; he makes no allegation as to the location of
Clayton County Police Department. 1 Thus, Mr. Weldon has conceded that the court does not
1
The court takes judicial notice that Clayton County is located in the state of Georgia. See Fed. R. Evid. 201(b)
(“The court may judicially notice a fact that is not subject to reasonable dispute because it: . . . can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”).
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have general jurisdiction. Because the odds that Mr. Weldon could plead, contrary to his original
allegations, facts supporting general jurisdiction and venue are so slim, the court concludes that
permitting Mr. Weldon to amend his complaint in the District of Utah would be futile and would
simply delay him from filing in a court where jurisdiction and venue would both be proper. This
action is DISMISSED without prejudice.
DATED this 5th day of February, 2018.
BY THE COURT:
Clark Waddoups
United States District Judge
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