The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 31); GRANTING PLAINTIFFS' MOTION TO VOLUNTARILY DISMISS FALSE ARREST AND IMPRISONMENT CLAIMS AGAINST DEFENDANT LONG (Doc. 34); AND REMANDING PLAINTIFFS' OPPOSITION, CONSTRUED AS A MOTION TO AMEND, TO THE MAGISTRATE JUDGE FOR FURTHER CONSIDERATION (Doc. 34)
Plaintiffs Robert and Michelle Morris are proceeding pro se and in forma pauperis in this civil rights action filed on September 23, 2008.
On April 17, 2009, the Magistrate Judge issued Findings and Recommendations that (1) this action proceed against Defendants Long and DeMoss for excessive force in violation of Plaintiffs' federal constitutional rights for the injuries suffered by Robert and Michelle Morris, and against Defendant Long for state law claims of false arrest and imprisonment, and defamation, as to Plaintiff Robert Morris; (2) that Plaintiffs' equal protection and due process claims arising under the Fifth and Fourteenth Amendments be dismissed, with prejudice, for failure to state a claim upon which relief may be granted; and (3) that Defendant Detective Brendan Rhames be dismissed from this action as a result of Plaintiffs' failure to state a claim for a violation of due process against him. The Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within twenty (20) days. Following a brief extension of time granted by the Court, Plaintiffs filed "objections" on June 1, 2009, in which he (1) agrees to voluntarily dismiss without prejudice the false arrest and imprisonment claims against Officer Long and (2) seeks to amend the complaint a third time to add a municipal liability claim.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including the objections, the Court finds that the Findings and Recommendations are supported by the record and proper analysis.
Plaintiffs' opposition, which actually seeks to amend the complaint, will be construed as a motion for leave to amend, and will be considered separately by the magistrate judge.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations dated April 17, 2009, are ADOPTED IN FULL.
2. The action shall proceed against Defendants Long and DeMoss for excessive force in violation of Plaintiffs' federal constitutional rights, and against Defendant Long for the state law claim and defamation. The Findings and Recommendations recommended against dismissal of the false arrest and imprisonment claim against Officer Defendant Long, but, in light of Plaintiffs' voluntary dismissal of those claims, those claims will be dismissed without prejudice.
3. Plaintiffs' equal protection and due process claims arising under the Fifth and Fourteenth Amendments are dismissed with prejudice; and
4. Defendant Detective Brendan Rhames is dismissed from this action.
5. Plaintiffs' opposition, construed as a motion to amend, is remanded to the magistrate judge for further consideration.
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