Summary
stating that the plaintiff "may not attempt to amend her complaint through a response to a motion to dismiss, and affidavits attached to briefs may not properly be considered at the motion to dismiss stage"
Summary of this case from Chilton v. Robert Bosch Fuel Sys., LLCOpinion
Case No. 14-11325
02-26-2015
Annie Cole #200962, Plaintiff, v. Benjamin Mauldin, et al., Defendants.
OPINION AND ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [45]
This matter comes before the Court on the Magistrate Judge's Report and Recommendation [45]. The Magistrate Judge recommended that Plaintiff's motion to amend her complaint [29] should be granted in part and denied in part, the MDOC Defendants' motion to dismiss [21] should be granted in part and denied in part, and Defendant Stapleton's motion to dismiss [38] should be granted. Plaintiff timely filed objections on February 18, 2015 [47]. Defendants have not filed objections.
Although objections to the Report and Recommendation were originally due by February 11, 2015, (see Dkt. 45), the Magistrate Judge extended the deadline to February 25, 2015 after it learned that it had not sent a physical copy of the Report and Recommendation to Plaintiff. (Dkt. 46.)
Being fully advised in the premises and having reviewed the record and the pleadings, including the Report and Recommendation and Plaintiff's objections, the Court hereby OVERRULES Plaintiff's objections and ACCEPTS AND ADOPTS the Magistrate Judge's Report and Recommendation.
It is further ordered that:
Plaintiff's motion to amend [29] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED only as it relates to Plaintiff's First Amendment retaliation claim against Defendant Mauldin and DENIED as to her other claims.
The MDOC Defendants' motion to dismiss [21] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to all of Plaintiff's claims EXCEPT her First Amendment retaliation claim against Defendant Mauldin. The motion to dismiss is DENIED as to that claim.
Defendant Stapleton's motion to dismiss [38] is GRANTED.
The only claim remaining in this case is Plaintiff's First Amendment retaliation claim against Defendant Mauldin.
SO ORDERED.
S/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: February 26, 2015 I hereby certify that a copy of the foregoing document was served upon counsel of record on February 26, 2015, by electronic and/or ordinary mail.
S/Carol J. Bethel
Case Manager