EDWARD J. TERRY, SR et al Plaintiffs,
v.
RUSSELL COUNTY BOARD OF EDUCATION, et al Defendants.
CASE NO. 3: 14cv953-WKW-TFM wo
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION
November 2, 2015
EDWARD J. TERRY, SR et al Plaintiffs, v. RUSSELL COUNTY BOARD OF EDUCATION, et al Defendants.
CASE NO. 3: 14cv953-WKW-TFM wo
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION
November 2, 2015
SUPPLEMENTAL REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law (Doc. 6, filed September 23, 2014). Pending before the Court is Defendants' Motion to Dismiss First Amended Complaint (Doc. 60, filed January 26, 2015), Motion to Dismiss Amended Complaint (Doc. 63, filed January 27, 2015), Motion to Dismiss Amended Complaint (Doc. 66, filed January 28, 2015), Motion to Dismiss Plaintiff's Amended Complaint (Doc. 68, filed January 30, 2015), Motion to Dismiss (Doc. 70, filed January 30, 2015), Amended Motion to Dismiss (Doc. 90, filed September 14, 2015), and Plaintiffs' Response (Doc. 81, filed April 2, 2015). The Court has carefully reviewed the Amended Complaint motions to dismiss, and briefs filed in support of and in opposition to Defendants' motions (Docs. 60, 63, 66, 68-71, 81, 90-91). On September 28, 2015, the Court entered its Report and Recommendation of the
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Magistrate Judge (Doc. 92) in which it recommended that Defendants' motion be denied in part and granted in part. On October 13, 2015, Defendants Heath Taylor and Bob Atkin filed their Objection to the Magistrate's Recommendation (Doc. 85). Upon consideration of the objection, the Court hereby supplements the Report and Recommendation of the Magistrate Judge (Doc. 92).
The district court has subject matter jurisdiction over the claims in these 42 U.S.C. § 1983 (Civil Rights Act of 1871, as amended), 29 U.S.C. § 794 (Rehabilitation Act of 1973, as amended), 20 U.S.C. § 1400 (Individuals with Disabilities Education Act), and 42 U.S.C. § 1213 et seq. (Americans with Disabilities Act) actions pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both. Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law (Doc. 6, filed September 23, 2014).
While the Court's Report and Recommendation of the Magistrate Judge (Doc. 92) addresses twenty-two defendants and thirteen causes of action, the Defendants' Objection
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to the Magistrate's Recommendation (Doc. 85) only challenges this Court's determination as to Sheriff Heath Taylor ("Sheriff Taylor") and Sheriff's Deputy Bob Atkin ("Deputy Atkin") on Count Nine (Denial of Due Process in the Juvenile Criminal Prosecution). On Count Nine, the Court stated that it " is unable to make any determination as to whether Terry, Jr. was in custody or otherwise detained in order to make a ruling on the alleged violation of Terry, Jr. 's Miranda rights . . . out of an abundance of caution Defendants Sheriff Taylor and Deputy Atkin's motion to dismiss is due to be denied with respect to Count Nine. "
In their motion to dismiss, Defendants asserted that:
See Doc. 69 at 16. However, in their objection, Defendants now cite to Jones v. Cannon in which the Eleventh Circuit considered an issue of first impression regarding "whether a plaintiff can state a cause of action for money damages under § 1983 if the plaintiff alleges that he was not read his Miranda rights . . . " 174 F. 3d 1271, 1290 (11th Cir. 1999). The Eleventh Circuit discussed the issue at length:
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Id. at 1290-91.
The Court agrees. The Eleventh Circuit's holding clearly sets forth that a plaintiff cannot maintain a § 1983 claim even if the court assumed the defendant violated the plaintiff's constitutional rights by failing to issue the Miranda warning prior to conducting an in custody interrogation. Therefore, the Court finds that Count Nine as to Sheriff Taylor and Deputy Atkin is due to be dismissed because there is no clearly established law which would have given the Defendants fair warning that they could be held liable under § 1983 for such actions. Accordingly, Defendants Sheriff Taylor and Deputy Atkin are due to be dismissed as defendants in this action.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge as follows:
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(1) To the extent Defendants Sheriff Heath Taylor and Deputy Bob Atkin move to dismiss Count Nine (Denial of Due Process in Juvenile Criminal Prosecution), their Motion to Dismiss Plaintiff's Amended Complaint (Doc. 68) is due to be GRANTED; and
(2) Defendants Heath Taylor and Bob Atkin be dismissed as defendants in this case.
It is further ORDERED that the parties are DIRECTED to file any objections to this Recommendation on or before November 16 2015. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities Inc 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).
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DONE this 2nd day of November, 2015.
/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE
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Footnotes:
Plaintiffs' amended complaint incorrectly identified Sheriff's Deputy Bob Atkin as "Adkin. " See Doc. 69 at 1.
Plaintiffs do not specifically state which sections under the Americans with Disabilities Act or Rehabilitation Act their claims arise under. However, upon thorough review of the Complaint it appears to this Court that Plaintiffs' claims arise under Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.
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Footnotes:
Plaintiffs' amended complaint incorrectly identified Sheriff's Deputy Bob Atkin as "Adkin. " See Doc. 69 at 1.
Plaintiffs do not specifically state which sections under the Americans with Disabilities Act or Rehabilitation Act their claims arise under. However, upon thorough review of the Complaint it appears to this Court that Plaintiffs' claims arise under Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.
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