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17-050 - Guerrero, et al v. Taylor County, Texas, et al


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17-050 - Guerrero, et al v. Taylor County, Texas, et al
December 22, 2017
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REPORT AND RECOMMENDATION on re: 39 Motion To Extend Time filed by City of Abilene, 29 Reply filed by City of Abilene, 25 Dismiss for Failure to State a Claim filed by Christopher Milliorn, 8 Motion to Dismiss/Lack of Jurisdiction,, Dismiss for Failure to State a Claim, filed by Abilene Police Department, 22 Response/Objection filed by Iris R. Guerrero, J. M. R., Jr., V. A. R., S. V. R., Estate of Cynthia Ann Cortez, deceased, 16 Response/Objection filed by Iris R. Guerrero, J. M. R., Jr., V. A. R., S. V. R., Estate of Cynthia Ann Cortez, deceased, 27 Response/Objection filed by Iris R. Guerrero, Estate of Cynthia Ann Cortez, deceased, 30 Reply filed by Christopher Milliorn, 24 Dismiss for Failure to State a Claim filed by City of Abilene, 23 Response/Objection filed by Iris R. Guerrero, J. M. R., Jr., V. A. R., S. V. R., Estate of Cynthia Ann Cortez, deceased, 9 Dismiss for Failure to State a Claim filed by Christopher Milliorn, 28 Response/Objection filed by Iris R. Guerrero, Estate of Cynthia Ann Cortez, deceased. Defendants City of Abilene and Christopher Milliorn have shown, as explained above, that Plaintiff's claims against them should be dismissed under Federal Rule of Civil Procedure 12(b) for lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be granted. It is, therefore, RECOMMENDED that the motions to dismiss the Second Amended Complaint filed by the City of Abilene (Doc. 24) and Christopher Milliorn (Doc. 25) be GRANTED and those defendants dismissed from this action. It is also RECOMMENDED that the motions to dismiss the First Amended Complaint (Docs 8, 9) filed by these defendants should be DENIED as moot. It is also ORDERED that the join motion to modify the scheduling order (Doc. 39) is GRANTED, and that all remaining deadlines set by the current scheduling order (Doc. 13) are extended by 60 days. The undersigned will issue a revised scheduling order reflecting the new deadlines on even date. IT IS ORDERED that this case is transferred to the docket of Senior United States District Judge Sam R. Cummings. After that reassignment, the undersigned may continue to exercise all powers permitted by 28 U.S.C. ยง 636(b) unless otherwise directed by Judge Cummings. (Ordered by Magistrate Judge E. Scott Frost on 12/22/2017) (jmc)
February 23, 2018
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ORDER. It is ORDERED that each of Plaintiff's Partial Objections are OVERRULED and that the findings and conclusions in the 40 Report and Recommendation are hereby ADOPTED as the findings and conclusions of the Court. Accordingly, Defendant City of Abilene's Second Rule 12(b)(1) and Rule 12(b)(6) Motions to Dismiss 24, filed August 17, 2017, and Defendant Christopher Milliron's Second Rule 12(b)(6) Motion to Dismiss 25, filed August 17, 2017, are both GRANTED. Plaintiff's claims against these Defendants under the Texas Tort Claims Act are DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction and Plaintiff's remaining claims against these Defendants are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted. These two Defendants are therefore TERMINATED as parties to this civil action. Defendant Abilene Police Department's Rule 12(b)(1) and Rule 12(b)(6) Motions to Dismiss 8, filed July 3, 2017, and Defendant Christopher Milliron's Rule 12(b)(6) Motion to Dismiss 9, filed July 3, 2017, are both DENIED AS MOOT. This case is returned to the docket of the Honorable E. Scott Frost for further proceedings consistent with the order of reference. SO ORDERED. (Ordered by Senior Judge Sam R Cummings on 2/23/2018) (jak)