Potts v. Olds, No. 3:2010cv01186 - Document 46 (N.D. Ohio 2012)

Court Description: MEMORANDUM OPINION & ORDER Adopting Report and Recommendation in part. Defendant's motion to strike granted. Ruling on motion to dismiss reserved. Defendant granted to 11/7/12 to file brief not to exceed 10 pages as stated herein, Plaintiff response due 10 days thereafter. Judge David A. Katz on 10/11/12. (G,C)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION MICHAEL S.POTTS, Plaintiff, Case No. 3:10 CV 1186 -vsMEMORANDUM OPINION AND ORDER DAVID OLDS, Defendant. KATZ, J. Currently pending before the Court is Magistrate Vernelis K. Armstrong s Report and Recommendation ( R&R ) on Defendant s motion to strike Plaintiff s sur-reply, and on Defendant s FED. R. CIV. P. 12(b)(6) motion to dismiss Plaintiff s claim that Defendant violated Plaintiff s Fourteenth Amendment due process rights by fabricating a police report. Doc. 44. The R&R recommends that this Court grant Defendant s motion to strike and deny Defendant s motion to dismiss. Plaintiff did not object to the Magistrate s recommendation regarding Defendant s motion to strike. The Magistrate s well-reasoned recommendation is therefore adopted in part, and Defendant s motion to strike is granted. Doc. 40. See Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Crum v. Sullivan, 921 F.2d 642, 645 (6th Cir. 1990); Hillman v. Beightler, No. 09-cv2538, 2010 U.S. Dist. LEXIS 54408, at *9 (N.D. Ohio May 26, 2010). Defendant timely objected to the Magistrate s recommendation that this Court deny Defendant s motion to dismiss. The Court reserves ruling on the motion to dismiss, Doc. 28, and grants Defendant to November 7, 2012 to file a brief not to exceed ten (10) pages in light of United States v. Melendez, No. 03-cr-80598, 2004 U.S. Dist. LEXIS 620, at *2-*5, *18-*28 (E.D. Mich. Jan. 20, 2004); Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir. 2001); and Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001). Plaintiff is granted two weeks thereafter to file a response not to exceed ten (10) pages. The sole purpose for this additional briefing is to address whether, under the facts sub judice, Plaintiff s allegation that Defendant fabricated a police report states a claim for violation of Plaintiff s Fourteenth Amendment due process rights. IT IS SO ORDERED. s/ David A. Katz DAVID A. KATZ U. S. DISTRICT JUDGE 2

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