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07-1589 - Smart v. Red Oak Texas et al


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07-1589 - Smart v. Red Oak Texas et al
December 13, 2007
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FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The motion to dismiss filed by Defendant State of Texas [Doc. #9] should be granted. Plaintiff's claims against the State should be dismissed for lack of subject matter jurisdiction. The motions for summary judgment filed by Defendant Red Oak, Texas [Doc. #4] and Defendant Ellis County, Texas [Doc. #17] should be denied without prejudice. Plaintiff should be given an opportunity to amend his complaint within 20 days after this recommendation is adopted by the district judge to state a federal cause of action against these defendants. If he fails to do so, the City and the County may renew their motions to dismiss. (Signed by Judge Jeff Kaplan on 12/13/2007) (twd)
January 10, 2008
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ORDER: After making an independent review of the pleadings, files, and records in this case, and the findings and recommendation of the magistrate judge, the court concludes that the 25 findings and conclusions are correct and are therefore adopted. Accordingly, plaintiff's action against the State of Texas is dismissed without prejudice for lack of subject matter jurisdiction by judgment filed today. The magistrate judge otherwise recommends that plaintiff be allowed to file an amended complaint, after which the remaining defendants may move anew for dismissal if plaintiff is unable to cure the pleading defect as it pertains to his claims against the remaining two defendants. The court notes that plaintiff filed his first amended original complaint on January 2, 2008. Accordingly, the remaining defendants may now move anew to dismiss the amended complaint, provided they have grounds to do so. (Signed by Judge Sidney A Fitzwater on 01/10/2008) (twd)