Lietzke v. City of Montgomery, AL (MAG+)

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

BILL LIETZKE, ) ) Plaintiff, ) ) v. ) CASE NO. 2:20-CV-1029-RAH ) CITY OF MONTGOMERY, AL, ) and KEVIN MURPHY, Chief ) AUTHORITY, ) ) Defendants. ) ORDER On January 20, 2023, the Magistrate Judge recommended this case be dismissed with prejudice. (Doc. 11.) The Magistrate Judge also ordered that, on or before May 17, 2023, Plaintiff may file Objections to the Recommendation. (Id. at 40.) On May 16, 2023, Plaintiff Bill Lietzke filed a document entitled “Order of Disqualification of Magistrate Judge Jerusha T. Adams Order Entering Default Judgment against Defendants Order Overruling Recommendation of the Magistrate Judge and Order to Show Cause” (Doc. 12), which the Court has construed as including Objections to the Report and Recommendation. Plaintiff objects to the Magistrate Judge’s determination that the Middle District of Alabama is not his chosen forum. He asserts that his chosen forum includes “neither the Northern District of Alabama, the Middle District of Alabama, nor any other District nor any place in Alabama.” (Doc. 12 at 2.) He argues the Magistrate Judge failed to prove that he filed or proceeded to trial in any of these

districts and therefore judgment should be entered in his favor. When a party objects to a Magistrate Judge's Report and Recommendation, the district court must review the disputed portions de novo. 28 U.S.C. § 636(b)(1).

The district court “may accept, reject, or modify the recommended disposition; receive further evidence; or resubmit the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). De novo review requires that the district court independently consider factual issues based on the record. Jeffrey S. ex rel. Ernest

S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990). See also United States v. Gopie, 347 F. App'x 495, 499 n.1 (11th Cir. 2009). However, objections to the Magistrate Judge's Report and Recommendation must be sufficiently specific in

order to warrant de novo review. See Macort v. Prem, Inc., 208 F. App'x 781, 783- 85 (11th Cir. 2006). Otherwise, a Report and Recommendation is reviewed for clear error. Id. Upon an independent review of the record, it is

ORDERED as follows: 1. The Objections (Doc. 12) are OVERRULED; 2. The Recommendation (Doc. 11) is ADOPTED; 3. Lietzke’s § 1983 claims are dismissed with prejudice and with no opportunity to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) on grounds that his

§ 1983 claims are frivolous and malicious and for failure to state a claim upon which relief can be granted. 4. Pursuant to 28 U.S.C. § 1367(c)(3), the court declines to exercise

supplemental jurisdiction over Lietzke’s state law claims. 5. Lietzke is declared a vexatious litigant. 6. Lietzke is prohibited from proceeding in forma pauperis in this District against these Defendants on any complaint arising out of the January 30, 2018

incident in which police questioned him about reports that he had been following a woman at the First Baptist Church in Montgomery, Alabama. 7. As a consequence of Lietzke’s status as vexatious litigant, the court requires

that any future in forma pauperis motions Lietzke files in this District shall be accompanied by a notarized affidavit, sworn under penalty of perjury, in which he states whether he has ever filed any lawsuits in any court arising out of the same incident(s), acts(s), or occurrence(s) as are implicated in the

complaint on which he seeks to proceed in forma pauperis. If he has filed any related lawsuits, he must include in his signed, notarized affidavit the name of the court(s) where each such lawsuit was filed, the case number of the related

case(s), and the status of the related litigation. He must also attach to his sworn, notarized affidavit (1) a current copy of the docket sheet for each such

case and (2) a copy of each and every complaint that he has filed in any such

case. Any such attached copy of a complaint shall bear the dated “filed” stamp of the Clerk of the Court in which it was filed, or it shall bear the mark of the CM/ECF (PACER) system showing that it is a copy of the complaint that is in the official court record. Failure to follow these instructions shall result in denial of the motion to proceed in forma pauperis and may result in dismissal of the case with or without prejudice for failure to comply with the court’s orders. DONE, on this the 24th day of August 2023.

UNITED STATES DISTRICT JUDGE