Green v. McDonald et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JOY KELLY GREEN,
On behalf of J.M.G., )
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:24-00321-KD-N
)
MARVIN MCDONALD, et al., )
Defendants. )
REPORT AND RECOMMENDATIONS
Pending before the Court is Defendant Deputy Marvin McDonald’s Partial
Motion to Dismiss Plaintiff’s Amended Complaint. (Doc. 26).1 Joy Kelly Green, filing
on behalf of a minor, J.M.G. (“Plaintiff”), presents five counts of a six-count complaint
against McDonald and co-defendants for violations of constitutional rights and other
state law tort claims. (See generally, Doc. 23).2
McDonald seeks partial dismissal of Counts One and Two, for claims made
against him in his official capacity, and dismissal of the state law tort claims in
Counts Four through Six. McDonald also moves to dismiss all fictitious defendants
and for the court to strike the pleading. Having been fully briefed on the matter
(Docs. 31, 32), the motion is ripe for disposition. Upon due consideration and for the
1 The District Judge assigned to this case referred this motion to the undersigned
Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of
Civil Procedure 72 and S.D. Ala. GenLR 72(a); See S.D. Ala. GenLR 72(b) (11/01/2024
elec. ref.).
2 Green amended her complaint once as a matter of course on October 22, 2024.
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reasons stated herein, the undersigned RECOMMENDS that McDonald’s motion be
GRANTED in part and DENIED in part.
I. Factual Background
According to the complaint, Plaintiff, a 15-year-old runaway, was being
transported by deputies of the Sumter County Sheriff’s Office to a juvenile detention
facility in Dallas County, Alabama, in January 2023. While stopped at a gas station,
an escape was attempted, which eventually led to McDonald allegedly shooting the
handcuffed Plaintiff in the back. Plaintiff further alleges that he was denied
immediate medical care. Plaintiff survived but suffered permanent injuries. (Doc. 23,
¶¶ 13-48, PageID.87-92).3
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” To survive
a motion to dismiss, a complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged … [This standard] asks for more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3 Plaintiff’s allegations of facts presented here are accepted as true and construed in
the light most favorable to Plaintiff. Speaker v. United States HHS CDC &
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010).
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That is, “[f]actual allegations must be enough to raise a right to relief above
the speculative level,” and must be a “‘plain statement” possessing “enough heft to
show that the pleader is entitled to relief.” Twombly, 550 U.S. at 555, 557.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “In ruling on a 12(b)(6)
motion, the Court accepts the factual allegations in the complaint as true and
construes them in the light most favorable to the [non-movant].” Speaker v. United
States HHS CDC & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (citing Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003)).
Additionally, jurisdictional challenges are addressed under Federal Rule of
Civil Procedure 12(b)(1). Harris v. Bd. of Trustees Univ. of Alabama, 846 F. Supp. 2d
1223, 1229–30 (N.D. Ala. 2012) (citing Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001)) (stating that where “a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional
attack before addressing any attack on the merits.”).
Sovereign immunity under the Eleventh Amendment is a constitutional
doctrine that implicates the Rule 12(b)(1) jurisdictional standard. See Davis v.
Alabama Dept. of Trans., 2017 WL 4391730, at *5 (M.D. Ala. Aug. 2, 2017) (citing
Thomas v. U.S. Postal Serv., 364 F. Appx. 600, 601 (11th Cir. 2010)). The Eleventh
Circuit has indicated that the Eleventh Amendment sovereign immunity analysis is
more appropriately conducted under Rule 12(b)(1) where the analysis does not involve
the merits of the case. See Thomas v. U.S. Postal Service, 364 F. Appx. 600, 601 (11th
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Cir. 2010) (“[A] dismissal on sovereign immunity grounds should be pursuant to Rule
12(b)(1) because no subject-matter jurisdiction exists.”) (citing Bennett v. United
States, 102 F.3d 486, 488 n. 1 (11th Cir. 1996)); see also Bennett, 102 F.3d at 488
(“Rule 12(b)(1) of the Federal Rules of Civil Procedure provides a vehicle for the
dismissal of actions for lack of subject matter jurisdiction.”). The Eleventh Circuit
cautions “that a district court should only rely on Rule 12(b)(1) if the facts necessary
to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.”
Harris, 846 F. Supp. 2d at 1231 n.8 (citing Morrison v. Amway Corp., 323 F.3d 920,
925 (11th Cir. 2003)).
III. Discussion
A. Excessive Force and Failure to Provide Medical Care
Counts One and Two are brought under 42 U.S.C. § 1983 and share the same
factual allegations. Count One alleges excessive force in violation of Plaintiff’s Fourth
Amendment rights, while Count Two alleges failure to provide timely medical care in
violation of Plaintiff’s Fourteenth Amendment rights. These claims are brought
against McDonald in his official and individual capacity.
The Fourth Amendment “encompasses the right to be free from excessive force
during the course of a criminal apprehension.” Oliver v. Fiorino, 586 F.3d 898, 905
(11th Cir. 2009). To establish a Fourth Amendment claim for excessive force, a
plaintiff “must allege (1) that a seizure occurred and (2) that the force used to effect
the seizure was unreasonable.” Corbitt v. Vickers, 929 F.3d 1304, 1315 (11th Cir.
2019) (citing Troupe v. Sarasota Cty., 419 F.3d 1160, 1166 (11th Cir. 2005)).
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In Count Two, Fourteenth Amendment violations can arise from failing to
provide medical care, provided the claims withstand an “objective and subjective
inquiry.” Ireland v. Prummell, 53 F.4th 1274, 1287 (11th Cir. 2022) (citation omitted).
The objective inquiry requires a plaintiff to “establish the existence of an objectively
serious medical need” while the subjective inquiry requires a plaintiff to prove “that
a government official was ‘deliberatively indifferent’ to the plaintiff's serious medical
need.” Id. (citations omitted).
Plaintiff supports these claims with allegations that he was “shot in the back”
while handcuffed and thrown “into the back of a police cruiser to bleed out.” (Doc. 23,
¶¶ 51-52, 63, PageID.93, 95). McDonald does not rebut the substance of any of
Plaintiff’s claims but asserts sovereign immunity. (Doc. 26, PageID.115-16; Doc. 32,
PageID.178-79).
1. Analysis:
State officials acting in official capacities are immune from suits brought under
Section 1983 under the Eleventh Amendment, which “protects a State from being
sued in federal court without the State's consent.” Manders v. Lee, 338 F.3d 1304,
1308 (11th Cir. 2003). “It is well established in this Circuit that Alabama sheriffs and
their deputies are state officials and are absolutely immune from suit as an officer of
the state under the Eleventh Amendment.” Melton v. Abston, 841 F.3d 1207, 1234
(11th Cir. 2016). The State of Alabama has not waived its Eleventh Amendment
immunity and Congress has not abrogated Eleventh Amendment immunity in
Section 1983 cases. See Brown v. Fla. Dep't of Revenue Off. of Child Support Enf't.,
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697 F. App'x 692, 693 (5th Cir. 2017) (citation omitted); Carr v. City of Florence, Ala.,
916 F.2d 1521, 1525 (11th Cir. 1990) (quoting Article 1, Section 14 of the Alabama
Constitution of 1901, “the State of Alabama shall never be made a defendant in any
court of law or equity”).
However, “Alabama officials … are not entitled to sovereign immunity when
they are sued in their individual capacities under Section 1983.” Melton, 841 F.3d at
1234. Here, McDonald requests dismissal of “all counts that seek to impose liability
against this defendant in his official capacity (Counts One and Two)[,]” but does not
move for dismissal in his individual capacity. (Doc. 26, PageID.118). The undersigned
agrees that the claims against McDonald in his official capacity are due to be
dismissed.
B. State Law Claims:
Plaintiff asserts Counts Four through Six against McDonald in his individual
capacity for state claims of outrageous conduct, assault and battery, and “civil action
without criminal prosecution.” (See generally Doc. 23). As with the previously
examined federal claims, McDonald raises no specifics on the particularities of each
count but raises the shield of “State immunity.”4 See Ala. Const. Art. I, § 14.
McDonald also asserts immunity from tort liability under § 6-5-338 Code of Alabama
1975.5 Plaintiff argues that exceptions preclude dismissal.
4 The Alabama Supreme Court noted that it prefers the title “State immunity” over similar titles,
such as “§ 14 immunity,” “sovereign immunity,” or “State-sovereign immunity.” Reynolds v.
Calhoun, 650 F. Supp. 3d 1272, 1274 (M.D. Ala. 2023).
5 McDonald cites “§ 6-6-338,” which appears to be a scrivener’s error. Peace officer
immunity was passed in 1994 under Act No. 94-640, which is presently codified as §
6-5-338, Code of Alabama 1975.
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As an initial matter, Count Six, “Civil Action Without Criminal Prosecution
Ala. Code § 6-5-370,” is not a standalone count. See Lewis v. Fraunfelder, 796 So. 2d
1067, 1070 (Ala. 2000) (“Section 6–5–370 does not create a cause of action; rather, it
merely allows a plaintiff to commence a civil action even if the plaintiff does not
pursue criminal prosecution of the defendant.”). As the Alabama Supreme Court
explained, “Section 6–5–370 abrogates the common-law rule of ‘suspension,’ the rule
that a civil action for injury to person or property, amounting to a felony, could not
be maintained without prosecution of the offender.” Id. (citations omitted).
1. State Immunity:
As for the remaining counts, McDonald argues that he is entitled to State
immunity because he is being sued for monetary damages based on actions that arose
out of his performance of duties as a deputy sheriff. (See Doc. 26, PageID.117).
“Alabama generally grants sovereign immunity to its state executive officers,
sheriffs, and deputy sheriffs pursuant to § 14 … whenever the acts that are the basis
of the alleged liability were performed within the course and scope of the officer's
employment.” Ass'n of Cnty. Comm'ns of Ala. Liab. Self-Insured Fund v. Robinson,
777 F. App'x 397, 399 (11th Cir. 2019) (citations omitted). However, more recently,
the Alabama Supreme Court has noted that “nothing in the text of § 14 prohibits
courts from hearing a claim against an individual State employee if the claim does
not name or seek relief from the State.” Ex parte Pinkard, 373 So.3d 192, 200 (Ala.
2022). “Alabama courts have long recognized the right of tort victims to recover
damages from State employees who injure them while acting within the scope of their
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official duties.” Id. at 201. “[C]loaking State agents with absolute and unqualified
sovereign immunity for any claim alleging breach of an official duty, including
individual-capacity tort actions ... is unmoored from the text and history of § 14 and
is at odds with [the Alabama Supreme Court]’s more carefully reasoned precedents.”
Id. As a result, a suit against an individual and not in effect a suit against the state
is not precluded by State immunity. Id. at 203.
Federal courts have treated this development with mixed results, as the office
of sheriff is one of a few constitutionally created executive positions, which may be
distinguishable from the statutorily created officers in Pinkard (and its cited
authority). Compare Reynolds v. Calhoun, 650 F. Supp. 3d 1272, 1277 (M.D. Ala.
2023) (finding Pinkard does not apply to sheriffs, distinguishing constitutionally
created officers) and Hambric v. Twilley, 2024 WL 289930 (N.D. Ala. 2024) (declining
to apply Pinkard to sheriffs and finding for a course and scope analysis), with King
v. Moon, 697 F. Supp. 3d 1273 (N.D. Ala. 2023) (Pinkard is the law, State immunity
does not depend on the identity of the defendant).6 Notwithstanding this distinction,
Alabama courts have held State immunity does not apply to “actions for damages
brought against State officials in their individual capacity where it is alleged that
they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken
6 King v. Moon certified this question to the Alabama Supreme Court, whether
Article I, § 14 of the Alabama Constitution provides sheriffs and deputies immunity
from damages for claims made against them in their individual capacities even
when an adverse decision would not affect the property or contract rights of the
State. However, that case was settled, and the Alabama Supreme Court declined to
answer. 697 F. Supp. 3d 1273, 1274 (N.D. Ala. 2023).
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interpretation of law, subject to the limitation that the action not be, in effect, one
against the State.” Ex parte Moulton, 116 So. 3d 1119, 1141 (Ala. 2013) (citation
omitted); see also Birmingham Broad. (WVTM-TV) LLC v. Hill, 303 So.3d 1148, 1159
(Ala. 2020) (applying this analysis to a sheriff). This analysis withstands Pinkard, as
it is not based on a defined category of defendant, but rather an illustration of “claims
for which State immunity generally does not apply because the action is –– both in
form and in substance –– against an individual person,” not the state. Ex parte
Cooper, 390 So. 3d 1030, 1036 (Ala. 2023).
Plaintiff’s briefing addresses the “boundaries of state-agent immunity,” and
the Cranman factors,7 which are not wholly applicable to the State immunity sought
by McDonald (and addressed below). However, both void protection in an individual
capacity when officials act “beyond their authority.” See Ex parte Cranman, 792 So.
2d 392, 405 (Ala. 2000); Moulton, 116 So. 3d at 1141. Moreover, “a plaintiff is not
required to negate an affirmative defense in its complaint[,]” Wainberg v.
Mellichamp, 93 F.4th 1221, 1224 (11th Cir. 2024) (per curiam) (quotation omitted),
so “[g]enerally, the existence of an affirmative defense will not support a motion to
dismiss. Nevertheless, a complaint may be dismissed under Rule 12(b)(6) when its
own allegations indicate the existence of an affirmative defense, so long as the defense
clearly appears on the face of the complaint.” Quiller v. Barclays Am./Credit, Inc.,
727 F.2d 1067, 1069 (11th Cir. 1984), on reh'g, 764 F.2d 1400 (11th Cir. 1985) (en
7 Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) provides guidance on analyzing
qualified immunity ( “State-agent immunity”), however, McDonald seeks the
broader absolute “State immunity.”
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banc) (per curiam) (affirming and reinstating the panel opinion). Accord Isaiah v.
JPMorgan Chase Bank, 960 F.3d 1296, 1304 (11th Cir. 2020) (“A complaint need not
anticipate and negate affirmative defenses and should not ordinarily be dismissed
based on an affirmative defense unless the defense is apparent on the face of the
complaint.”). In sum, enough factual allegations are raised that would place
McDonald beyond the cloak of Section 14. Therefore, the undersigned recommends
declining to find State immunity for Counts Four and Five against McDonald.
2. § 6-5-338, Qualified Immunity
Alabama provides immunity to peace officers against tort claims for
“discretionary function within the line and scope of his or her law enforcement
duties.” § 6-5-338(a) Ala. Code 1975. “The restatement of State-agent immunity as
set out by [the Alabama Supreme] Court in Ex parte Cranman governs the
determination whether a peace officer is entitled to immunity under § 6–5–338(a).”
Ex parte Harris, 216 So. 3d 1201, 1208 (Ala. 2016) (citation omitted) (cleaned up).
A State agent shall be immune from civil liability in his or her personal
capacity when the conduct made the basis of the claim against the agent
is based upon the agent's … exercising judgment in the enforcement of
the criminal laws of the State, including, but not limited to, law-
enforcement officers' arresting or attempting to arrest persons, or
serving as peace officers under circumstances entitling such officers to
immunity pursuant to § 6–5–338(a), Ala. Code 1975. …
State agent asserting State-agent immunity bears the burden of
demonstrating that the plaintiff's claims arise from a function that
would entitle the State agent to immunity. Should the State agent make
such a showing, the burden then shifts to the plaintiff to show that one
of the two categories of exceptions to State-agent immunity recognized
in Cranman is applicable.
Id. at 1208-09.
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Here, McDonald states in full, “section [6-5-338] provides immunity from
liability for acts carried out in the line and scope of the officer’s law enforcement
duties, which the complaint asserts.” (Doc. 26, PageID.117). McDonald fails to provide
more than a reference to the complaint that he was performing a discretionary act or
exercising judgment. Further, construing the alleged facts in favor of Plaintiff,
allegations are raised that satisfy the Cranman exceptions to qualified immunity. See
Harris, 216 So. 3d at 1209 (exceptions include when laws, rules, and regulations
“require otherwise” and “when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or under a mistaken
interpretation of the law.”); see also Sheth v. Webster, 145 F.3d 1231, 1237 (11th Cir.
1998) (for the proposition that summary judgment is the more appropriate phase for
determining whether the defendant met their burden of demonstrating the alleged
negligence arose out of a discretionary act). The undersigned recommends that
dismissal of state law claims based on state-agent immunity be denied.
C. Fictitious Defendants and Striking the Pleadings
McDonald moves the Court to dismiss all claims against fictitious defendants
and strike the Amended Complaint for any reference to 42 U.S.C. §§ 1981, 1985, and
1986, as there are no cognizable claims related to those statutory provisions.
1. Fictitious Defendants
Plaintiff names as co-defendants “Deputy Doe I” and “John Does II-L” in the
Amended Complaint. (See Doc. 23, ¶¶ 10-11, PageID.86). Generally, “fictitious-party
pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738
(11th Cir. 2010) (citations omitted). A limited exception applies when “the plaintiff's
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description of the defendant is so specific” as to make the name, “at the very worst,
surplusage.” Id. (citations omitted). “Giving general descriptions of others including
the duty stations to which they were assigned is insufficient to name a fictitious
party.” White v. Birmingham, Alabama, 96 F.Supp.3d 1260, 1281 (N.D. Ala. 2015)
(citing Moulds v. Bullard, 345 F. App’x 387, 390 (11th Cir. 2009)). But it “is important
to distinguish suing fictitious parties from real parties sued under a fictitious name.
There may be times when, for one reason or another, the plaintiff is unwilling or
unable to use a party's real name. Also, one may be able to describe an individual
(e.g., the driver of an automobile) without stating his name precisely or correctly.”
Dean v. Barber, 951 F.2d 1210, 1215–16 (11th Cir. 1992) (citation omitted).
Plaintiff relies on Dean for the proposition that fictitious names are
permissible in the early stages of discovery when enough factual detail is provided.
See id. In a light favorable to Plaintiff, the allegations provide that Deputy Doe I was
the only other Sumter County Sheriff's Deputy on the scene and was the only other
deputy in the car during transit. Therefore, it can reasonably be assumed this is a
singular, readily identifiable person, which leads the undersigned to believe it fits the
narrow exception described by the Circuit.
To be sure, we have allowed suit against a fictitious defendant described
as “Chief Deputy of the Jefferson County Jail John Doe,” but that is only
because the description identified the one “person in charge of the
Jefferson County Jail.” But in Richardson we upheld a district court's
dismissal of claims against the vaguely identified “John Doe (Unknown
Legal Name), Guard, Charlotte Correctional Institute.” That
description, we explained, “was insufficient to identify the defendant
among the many guards employed at CCI.”
Smith v. Comcast Corp., 786 F. App'x 935, 940 (11th Cir. 2019) (citations omitted).
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However, Plaintiff also names John Does II-L, as “Doe Defendants” which Plaintiff
alleges are employees and/or law enforcement officers employed by Sumter County.
(Doc. 23, ¶ 11, PageID.86). Plaintiff does not include John Does II-L in any of the
complaint’s factual allegations and makes only threadbare reference to John Does II-
L in the six counts. This falls within the latter category discussed in Smith, and thus,
any claims against John Does II-L should be dismissed.
2. Striking the Pleadings
McDonald moves to strike the pleadings of any reference to statutes that have
no cognizable claims. McDonald’s motion claims these references were included as a
scrivener’s error and due to be stricken, and in a later reply to Plaintiff’s response,
cites federal pleading standards as the basis to strike.
In briefing, Plaintiff supports the appropriateness of these statutes by making
allegations of racial animus and conspiratorial behavior, but such allegations appear
absent from the actual pleading. Plaintiff provides “[t]he motion to strike should be
granted only when the pleading to be stricken has no possible relation to the
controversy.” Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d
862, 868 (5th Cir. 1962).
Under Federal Rule of Civil Procedure 12(f) a court “may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter. The court may act on its own or on a motion made by a party[.]” While a court
has broad discretion when deciding a Rule 12(f) motion, “the striking of a pleading is
an extreme measure and such motions are viewed with disfavor and infrequently
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granted.” Stewart v. Argos Ready Mix, LLC, 2016 WL 7238915, at *2 (M.D. Ala. 2016).
“Unless the challenged allegations have no possible relation to the controversy and
may cause some form of significant prejudice to one or more of the parties to the
action.... It is not enough that the matter offends the sensibilities of the objecting
party if the challenged allegations describe acts or events that are relevant to the
action.” Reed v. Strickland, 2023 WL 5948055, at *5, report and recommendation
adopted, 2023 WL 5939874 (M.D. Ala 2023).
Plaintiff’s complaint contains reference to the language in controversy under
the heading Jurisdiction and Venue, “[t]his civil rights action is brought pursuant to
42 U.S.C. §§ 1981, 1983 & 1985 & 1986.” (Doc. 23, ¶ 3, PageID.84). But no counts or
allegations mention §§ 1981, 1985, or 1986, let alone claims made against McDonald.
The undersigned believes there is adequate prejudice to remove reference to these
statutes, as it allows Plaintiff to maintain those claims without providing the
requisite “short and plain statement” showing he is entitled to relief. If Plaintiff is
actually asserting claims under those statutes, he must assert them in separate
counts and include enough plausible factual allegations to support them. If during
discovery he discovers evidence to support claims under those statutes he can move
to amend the complaint.
IV. Conclusion
In accordance with the foregoing analysis, it is RECOMMENDED that
McDonald’s Motion to Dismiss (Doc. 26) under Federal Rules of Civil Procedure
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12(b)(1), 12(b)(6), and 12(f), be GRANTED in part and DENIED in part, without
prejudice, as set out:
• Dismissal of Counts One and Two be GRANTED, for claims against McDonald
in his official capacity;
• Dismissal of state law claims, Counts Four through Six, be DENIED;
• Dismissal of all claims against fictitious defendants John Does II-L be
GRANTED, and DENIED as to Deputy Doe I; and
• Request to strike the pleading of any reference to 42 U.S.C. §§ 1981, 1985, and
1986 be GRANTED.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything
in it must, within fourteen (14) days of the date of service of this document, file
specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh
Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or
recommendations contained in a report and recommendation in accordance with the
provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal conclusions if the party was
informed of the time period for objecting and the consequences on appeal for failing
to object. In the absence of a proper objection, however, the court may review on
appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In
order to be specific, an objection must identify the specific finding or recommendation
to which objection is made, state the basis for the objection, and specify the place in
the Magistrate Judge’s report and recommendation where the disputed
determination is found. An objection that merely incorporates by reference or refers
to the briefing before the Magistrate Judge is not specific.
DONE and ORDERED this the 6th Day of February 2025.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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