Opinion
Civil Action 2:22-CV-00156
04-10-2023
DANIEL NEAL MARTIN, Plaintiff, v. LIVE OAK COUNTY JAIL, LIVE OAK SHERRIF'S DEPARTMENT, CARA KAY JOINER BARTON, in her official capacity, MAURICE CHAMBERS, in his official capacity, DANIEL COBAN BARTON, in his official capacity, SHERIFF LARRY BUSBY, in his official and individual capacities, CHIEF DEPUTY CARHLIE STROLENY, in his official and individual capacities, CAPTAIN MISTY GONZALEZ, in her official and individual capacities, CORP. VASQUEZ, in his official and individual capacities, and JAILER PERRY also known as CORPRAL PERRY, in his official and individual capacities, Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DREW B. TIPTON, UNITED STATES DISTRICT JUDGE
Pending before the Court is the January 23, 2023, Memorandum and Recommendation (“M&R”) prepared by Magistrate Judge Mitchel Neurock. (Dkt. No. 41). Magistrate Judge Neurock made findings and conclusions and recommended that the Court (1) retroactively grant leave for Plaintiff to file his second amended complaint, (2) dismiss without prejudice Plaintiff's claims against all Defendants in their official capacities, (3) dismiss with prejudice Plaintiff's claims against Sheriff Larry Busby, Chief Deputy Charlie Stroleny, Captain Misty Gonzalez, Corp. Vasquez, and Jailer Perry in their individual capacities, (4) deny Plaintiff's motions for preliminary injunction, (5) deny Plaintiff's motion to consolidate cases as moot, and (6) deny Plaintiff's motion to change venue in his state criminal case. (Id. at 1-2).
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 February 8, 2023, Plaintiff filed four objections. (Dkt. No. 42). First, Plaintiff requests that the Court “table” this case pending the resolution of his state criminal case so that he can bring evidence of personal involvement. (Id. at 1). Second, Plaintiff reiterates his claimed civil rights violations, adding new claims under the Eighth Amendment. (Id. at 2-3). Third, Plaintiff requests leave to file a third amended complaint. (Id. at 3). Finally, Plaintiff emphasizes his claimed First Amendment violation. (Id. at 3-6).
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) Magistrate Judge Neurock's M&R, (Dkt. No. 41), is ACCEPTED and ADOPTED in its entirety as the holding of the Court;
(2) the Court GRANTS the Plaintiff leave to file his Second Amended Complaint, (Dkt. No. 35);
(3) the Court DISMISSES WITHOUT PREJUDICE Plaintiff's claims against all Defendants in their official capacities (including Live Oak County Jail, Live Oak County Sheriff's Department, Cara Kay Joiner Barton, Maurice Chambers, Daniel Coban Barton, Sheriff Larry Busby, Chief Deputy Charlie Stroleny, Captain Misty Gonzalez, Corp. Vasquez, and Jailer Perry), (Dkt. Nos. 1, 11, 35);
(4) the Court DISMISSES WITH PREJUDICE Plaintiff's claims against Sheriff Larry Busby, Chief Deputy Charlie Stroleny, Captain Misty Gonzalez, Corp. Vasquez, and Jailer Perry in their individual capacities, (Dkt. Nos. 11, 35);
(5) the Court DENIES Plaintiff's Motions for Preliminary Injunction, (Dkt. Nos. 13, 37);
(6) the Court DENIES Plaintiff's Motion to Combine Case, (Dkt. No. 27); and
(7) the Court DENIES Plaintiff's Motion to Change Venue, (Dkt. No. 28).
It is SO ORDERED.