Montgomery v. Looney

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LUTHER STEVEN MONTGOMERY, )
)
Plaintiff, )
)
vs. ) CIV. ACT. NO. 1:23-cv-131-TFM-B
)
DARLENE LOONEY, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
On January 16, 2025, the Magistrate Judge entered a Report and Recommendation which
recommends the Federal Defendant’s Motion to Dismiss (Doc. 44) be granted in part resulting in
a dismissal of the § 1983/Bivens claims in the Defendants’ individual capacities and the § 1983
claims asserted against Defendants Looney and Evans in their official capacities be dismissed with
prejudice while the § 1983 claim asserted against Defendant Lawrence in his official capacity be
dismissed without prejudice. See Doc. 58. Plaintiff also requested and received additional time
to file his objections. See Docs. 61, 62.1 Plaintiff filed his objections on February 12, 2025 along
with a Fourth Amended Complaint. See Docs. 63, 64. The Defendants filed their response to the
objections. See Doc. 66. Then Plaintiff filed an additional responses and notices. See Docs. 67,
68, 69, 70. The Court has reviewed all those pleadings in conjunction with this review of the
Report and Recommendation which is ripe.
1 Plaintiff also filed objections dated February 3, 2025 and a second set docketed on February 5,
2025. See Docs. 59, 60. The two documents appear to be identical except that the second one
includes an attachment. Compare Doc. 59 with Doc. 60. Additionally, these appear to be related
to the prior Memorandum Opinion and Order relating to Defendants Nelson, Lawrence, and the
City of Mobile. See Doc. 57 (adopting Reports and Recommendations, Docs. 52, 54). This
appears to be a motion for reconsideration of the prior Opinion which the Court will address by a
separate Opinion.
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In reviewing the “Response back to January 16, 2025 Order” which the Court
CONSTRUES as objections, Plaintiff does not address the substance of the Report and
Recommendation, but instead just makes the same allegations about an illegal search and his
statements of innocence. See Doc. 63. The United States is correct in that Plaintiff fails to make
“specific written objections to the Report and Recommendation. Regardless, in conjunction with
reviewing the document entitled “4th Amended Complaint” (Doc. 64), the Court has performed to
the best of its ability a de novo review.
Turning also to the “4th Amended Complaint”, the Court first notes that Plaintiff did not
seek leave of court to file another amended complaint. Rule 15(a) of the Federal Rules of Civil
Procedure state:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course no later than:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's leave. The court should freely
give leave when justice so requires.
FED. R. CIV. P. 15(a). In reviewing the docket sheet, Plaintiff does not meet the criteria for filing
it as a matter of course. Therefore, he must either have the Defendants’ written consent or request
leave of court. Neither occurred here. Yet, even reviewing it, the Court cannot find good cause
to construe the document as containing a motion for leave nor does the Court find that it should
provide the Plaintiff with yet another opportunity to amend his complaint. As noted by both the
Magistrate Judge and the Defendants, Plaintiff has received several opportunities and the Report
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and Recommendation even specifically recommended that he not be granted leave to file a fourth
amended complaint. See Doc. 58 at 37-38. By filing another amended complaint, the Court takes
that as an implicit objection to that portion of the Report and Recommendation, but finds that the
objection is due to be overruled as the Magistrate Judge’s analysis is well-supported by the record.
Even reviewing the additional documents Plaintiff filed (Doc. 67, 68, 69, 70) – which seem
to ignore the Report and Recommendation and instead go back to the motion to dismiss – the Court
finds no basis to set aside the well-reasoned analysis of the Magistrate Judge.
Therefore, after due and proper consideration of all portions of this file deemed relevant to
the issues raised, and a de novo determination of those portions of the Recommendation to which
objection is made, the Report and Recommendation of the Magistrate Judge (Doc. 58) is
ADOPTED as the opinion of this Court. Accordingly, the Defendants’ motion to dismiss (Doc.
44) is GRANTED in part. It is ORDERED that:
(1) Plaintiff’s § 1983 and/or Bivens claims against the Moving Defendants in their
individual capacities are DISMISSED with prejudice;
(2) The § 1983 claims asserted against Defendants Looney and Evans in their official
capacities are DISMISSED with prejudice;
(3) The Bivens claims asserted against the Moving Defendants in their official capacities
are DISMISSED without prejudice for lack of subject matter jurisdiction; and
(4) The § 1983 claim asserted against Defendant Lawrence in his official capacity is
DISMISSED without prejudice for lack of subject matter jurisdiction.
(5) Plaintiff’s “4th Amended Complaint” is STRICKEN as improperly filed and further
leave is denied to file another amended complaint.
A separate judgment will issue pursuant to Fed. R. Civ. P. 58.
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DONE and ORDERED this 1st day of August, 2025.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE
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