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Simmons v. Catton

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


December 8, 2009

KENNETH W. SIMMONS, PLAINTIFF,
v.
SGT. CATTON, ET AL., DEFENDANTS.

ORDER

The Defendants previously filed a Motion to Dismiss [#39] Plaintiff Simmons' Complaint on April 24, 2009, which was ruled upon by this Court on September 30, 2009. On October 15, 2009, Defendants Umholtz, Catton, Troyer, and Tazewell County Sheriff's Department filed their second Motion to Dismiss [#71]. On November 5, 2009, a Report & Recommendation was filed by Magistrate Judge Byron G. Cudmore. More than ten (10) days have elapsed since the filing of the Report & Recommendation, and no objections have been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Lockert v. Faulkner, 843 F.2d 1015 (7th Cir. 1988); and Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). As the parties failed to present timely objections, any such objections have been waived. Id.

The relevant procedural history is sufficiently referenced in the comprehensive Report & Recommendation of the Magistrate Judge. Plaintiff has brought this litigation apparently alleging a state law trespass claim, an equal protection "class of one" claim, a failure to train claim, and a claim alleging retaliation for the exercise of First Amendment constitutional rights. The Court concurs with the recommendation that the Defendants' new arguments may have merit, but that the Defendants have waived their opportunity to make the arguments in Rule 12 motion based on Fed. R. Civ. P. 12(g)(2), Local Rule 72.2, and principles of waiver. The Court further concurs that Defendants can make these arguments at summary judgment.

Accordingly, the Court now adopts the Report & Recommendation [#78] of the Magistrate Judge in its entirety. Defendant's second Motion to Dismiss [#71] is DENIED, pro se Plaintiff Simmons' Motion to Strike Defendants' Second Motion to Dismiss [#73] and Motion for Answer to Complaint [#74] is ALLOWED. It is further ORDERED that Defendants' answer to Plaintiff Simmons' Final Amended Complaint [#38] is due December 22, 2009. This matter is referred to the Magistrate Judge for further proceedings.

ENTERED this 8th day of December, 2009.

Michael M. Mihm United States District Judge

20091208

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