Payton v. Normand et al, No. 2:2021cv01325 - Document 33 (E.D. La. 2022)

Court Description: ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 29 . IT IS ORDERED that plaintiff's 20 motion for leave to file an amended complaint is DENIED as futile. IT IS FURTHER ORDERED that plaintiff's 11 complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 2/9/2022.(sbs)

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Payton v. Normand et al Doc. 33 Case 2:21-cv-01325-SSV-DMD Document 33 Filed 02/09/22 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GAYL THERESE PAYTON CIVIL ACTION VERSUS NO. 21-1325 NEWELL NORMAND, ET AL. SECTION: R (3) ORDER AND REASONS The Court has reviewed de novo plaintiff’s complaint and amended complaint, 1 plaintiff’s motion for leave to file an amended complaint,2 the applicable law, the Magistrate Judge’s Report and Recommendation (“R&R”), 3 and plaintiff’s objection. 4 The Court orders as follows. On January 21, 2022, Magistrate Judge Dana M. Douglas conducted a sua sponte frivolousness review of plaintiff’s case, under 28 U.S.C. § 1915(e)(2)(B), and determined that plaintiff’s claims, which arise out of an alleged incident on February 27, 2012, are time-barred by the statute of limitations. 5 In the R&R, Magistrate Judge Douglas recommended that 1 2 3 4 5 R. Doc. 1 (Complaint); R. Doc. 11 (Amended Complaint). R. Doc. 20. R. Doc. 29. R. Doc. 32. R. Doc. 29 at 4-7. Dockets.Justia.com Case 2:21-cv-01325-SSV-DMD Document 33 Filed 02/09/22 Page 2 of 3 plaintiff’s motion for leave to file an amended complaint be denied as futile, and that her complaint be dismissed with prejudice as legally frivolous.6 On February 4, 2022, plaintiff filed a one-page objection to the R&R, stating that she “retained an attorney to pursue her Civil Rights case which was submitted timely.” 7 She further asserts that “[c]omplications concerning this attorney and the complaint he submitted has gone through several phases of the legal system and is presently being seen in state court.”8 Plaintiff does not provide any details regarding the alleged state case, nor does she explain whether or how the alleged existence of a state case somehow tolls the statute of limitations or otherwise remedies the untimeliness of this federal action. The objection does not address the oneyear statute of limitations governing plaintiff’s federal claims, nor does it respond to the specific reasons given by the Magistrate Judge as to why plaintiff’s complaint in this case is time-barred. Because the objection does nothing to refute the substance of the R&R, the Court finds that the objection is meritless. The Court further finds that plaintiff’s claims in this case are untimely under the one-year statute of 6 7 8 Id. at 7. R. Doc. 32 at 1. Id. 2 Case 2:21-cv-01325-SSV-DMD Document 33 Filed 02/09/22 Page 3 of 3 limitations. Accordingly, the Court adopts the Magistrate Judge’s Report and Recommendation as its opinion. IT IS ORDERED that plaintiff’s motion for leave to file an amended complaint 9 is DENIED as futile. IT IS FURTHER ORDERED that plaintiff’s complaint 10 is DISMISSED WITH PREJUDICE. 9th day of February, 2022. New Orleans, Louisiana, this _____ _____________________ SARAH S. VANCE UNITED STATES DISTRICT JUDGE 9 10 R. Doc. 20. R. Doc. 11. 3

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