Opinion
Civil Action No. 3:99-CV-1989-M.
September 30, 2004
ORDER ON FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The Court has under consideration the Findings, Conclusions and Recommendation of United States Magistrate Judge Irma Ramirez on the Motion for Summary Judgment of Defendants Karen Bruton, Kenneth Klein, Bradford Lambert, Rolf Nordstrom, Richard Riccobono and Frederick Teed and the Motion for Summary Judgment of Defendants Vincent G. Fazzio and Jennifer Gant, both filed November 17, 2003. Objections were filed, and the District Court has made a de novo review of those portions of the proposed Findings, Conclusions and Recommendation to which objection was made. Except to the limited extent stated below, the objections are overruled, and the Court accepts the Findings, Conclusions and Recommendation of the United States Magistrate Judge.
Magistrate Judge Ramirez refers to Plaintiffs' allegations of "respondeat superior" liability, but Plaintiffs claim they have only asserted a claim of "supervisory liability." Magistrate Judge Ramirez also refers to Plaintiffs' "prosecution team" argument, describing it as a claim of group liability. These distinctions are without a difference, and this Court finds the analysis of the Magistrate Judge with respect to these issues is correct.
Defendant Fazzio has objected to the Magistrate Judge's ruling on a claim of subornation of perjury against Fazzio. This objection is sustained, because although the Third Amended Complaint is hard to decipher with respect to what claims are asserted against whom, the Court finds that no claim of subornation of perjury was asserted against Fazzio. See Pl. Third Am. Compl. at 71-73. Therefore, the contention is moot that the Magistrate Judge, sua sponte, recommended that this Court grant summary judgment on a subornation of perjury claim against Fazzio, without Plaintiffs having been given ten days notice under Rule 56. Finally, Plaintiffs complain that the Magistrate Judge did not expressly rule upon Plaintiffs' objections to the affidavits of the OTS Defendants and the FBI Agent Defendants. To the extent those affidavits are improper, they are not being considered by the Court and presumably were not considered by the Magistrate Judge; however, in any case, the Court finds the objections without merit and, therefore, those objections are overruled. The Court permits further briefing on one issue. The Magistrate Judge at page 14 of her fine opinion recommends summary judgment on Plaintiffs' malicious prosecution claim. In their objections, Plaintiffs refer to ¶ 128 of their Third Amended Complaint, and object to the Magistrate Judge's sua sponte recommendations of summary judgment for the FBI Agent Defendants on this claim, asserting they did not receive ten days notice of the Magistrate Judge's intention.
The Court hereby gives Plaintiffs notice of its intent to grant summary judgment on the malicious prosecution claims of all remaining Defendants. Plaintiffs may respond by filing a brief on this limited subject on or before ten days from the date of this Order, and Defendants may answer the Plaintiffs' brief within ten days thereafter. No reply briefs will be permitted. As this Court reads Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc), the reference in ¶ 128 of the Third Amended Complaint to Plaintiffs' post conviction incarceration does not satisfy Castellano's holding as to what is required to state a malicious prosecution claim based on constitutional violations.
Accordingly, the Motion for Summary for Summary Judgment of Defendants Karen Bruton, Kenneth Klein, Bradford Lambert, Rolf Nordstrom, Richard Riccobono and Frederick Teed is hereby GRANTED and the Motion for Summary Judgment of Defendants Vincent G. Fazzio and Jennifer Gant is hereby GRANTED, except for the claim of malicious prosecution asserted against all Defendants. As to that claim, the Court denies summary judgment at this time, but will consider the issue anew, sua sponte, after the specified briefing is completed. The case is stayed for all other purposes.
SO ORDERED.