Durham v. Elkins

Full title: MICHAEL DWAYNE DURHAM, Plaintiff, v. RONALD K. ELKINS, et al., Defendants

Court: United States District Court, W.D. Virginia, Big Stone Gap Division

Date published: Aug 14, 2009

Civil Action No. 2:09cv00012 (W.D. Va. Aug. 14, 2009)

Opinion

Civil Action No. 2:09cv00012.

August 14, 2009

ORDER

GLEN WILLIAMS, Senior District Judge

This case is currently before the court on the defendants' motions to dismiss, (Docket Item Nos. 13 and 14), which were filed on May 14, 2009. The case was referred pursuant to 28 U.S.C. § 636(b)(1)(B), to the Honorable Pamela Meade Sargent, United States Magistrate Judge. On June 11, 2009, the Magistrate Judge filed a report, (Docket Item No. 29), ("the Report"), recommending that the motions be granted for failure to state a claim upon which relief can be granted. Specifically, the Magistrate Judge found that the plaintiff failed to state a claim for wrongful arrest because the arrest was pursuant to legal process, and it also was determined that the plaintiff failed to state a claim for malicious prosecution or wrongful use of judicial process. Objections to the Magistrate Judge's Report were timely filed by the plaintiff on June 19, 2009, (Docket Item No. 31). Upon review of the Magistrate Judge's recommendations and the objections thereto, the undersigned hereby ACCEPTS the Report.

However, since the entry of the Magistrate Judge's Report, and on the same day objections to the Report were filed, plaintiff's counsel filed a second motion for leave to amend the Complaint, (Docket Item No. 30). Upon review of the second motion to amend, as well as the proposed Second Amended Complaint, the court is of the opinion that the plaintiff's second motion should be granted.

Thus, although the court hereby accepts the Magistrate Judge's Report in its entirety, the court also finds that the plaintiff should be given the opportunity to amend his Complaint. Accordingly, the defendants' motions are hereby GRANTED WITHOUT PREJUDICE, and the plaintiff's second motion for leave to amend the Complaint is GRANTED.

The Clerk is ORDERED to file the Second Amended Complaint, which is attached to the plaintiff's second motion for leave to amend the Complaint. The defendants shall file responsive pleadings to the Second Amended Complaint within 20 days of the date of entry of this Order.

The Clerk is further directed to enter this Order and send copies to all counsel of record.