1

 The undersigned will enter a separate order addressing the portion of plaintiff’s motion

(doc. 25) that relates to discovery. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DARRELL WILLIAMS, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 08-0433-KD-N

)

BENJAMIN TAYLOR, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

This matter is before the court on plaintiff’s Motion to Amend Complaint to Add Party

(doc. 24) and Motion for Discovery and Demand for Jury Trial (doc. 25), both filed May 19,

2010. The Motion to Amend the Complaint and the Jury Demand portion of the second motion1

have been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636.

Motion to Amend Complaint to Add Party

The court previously entered an order (doc. 22) and judgment (doc. 23) adopting the

recommendation of the undersigned and dismissing defendant, Phillip Kousa, with prejudice

from the §1983 action, on the grounds that defendant was not a state actor and plaintiff had

failed to demonstrate or allege facts establishing personal knowledge or personal involvement by

defendant Kousa, in his role as Director of Thomas Hospital, of the actions at issue, thereby 

precluding a valid claim of conspiracy with a state actor in the decision to comply with a police

request to ask plaintiff about, or search plaintiff for, signs of drug use. See (doc. 21)

Case 1:08-cv-00433-KD-N Document 26 Filed 05/24/10 Page 1 of 3
2

The dismissal of defendant Kousa with prejudice, precludes an attempt by plaintiff to

bring the same claims against him. However, even if the court were to deem plaintiff’s motion

to include a request for reconsideration of the court’s prior order, plaintiff’s proposed amended

claims continue to suffer from the same lack of personal knowledge or involvement sufficient to

impose liability on a non-government actor on a theory of conspiracy with state actors. See doc.

21 at 8-9). Accordingly, it is recommended that the motion be denied.

Motion for Discovery and Demand for Jury Trial 

Plaintiff also makes a request for a jury trial. (Doc. 25) The addition of a jury demand

is, in effect, a Motion to Amend the Complaint to add such a demand. Plaintiff has made one

prior amendment (Doc. 19) to the Complaint. However, as the complaint has not yet been served

upon defendants, the addition of the jury demand will cause no prejudice.

CONCLUSION

Based on the foregoing, it is hereby RECOMMENDED that plaintiff’s Motion to Amend

(doc. 24) be DENIED and that the Motion to Amend to add Jury Demand (doc. 25) be

GRANTED. 

See Magistrate Judge’s Explanation of Procedural Rights, attached, for important

information on how to proceed.

DONE this the 21st day of May, 2010.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00433-KD-N Document 26 Filed 05/24/10 Page 2 of 3
3

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. 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 court. Failure to do so will bar a de novo determination by the district judge of

anything in the recommendation and will bar an attack, on appeal, of the factual findings of the

magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.

1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for

challenging the findings and recommendations of the magistrate judge is set out in more detail in

SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by

filing a “Statement of Objection to Magistrate Judge’s Recommendation” within

ten [now fourteen] days after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection shall

specify those portions of the recommendation to which objection is made and the

basis for the objection. The objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief in support of the objection.

Failure to submit a brief in support of the objection may be deemed an

abandonment of the objection.

(Emphasis added) A magistrate judge’s recommendation cannot be appealed to a Court of

Appeals; only the district judge’s order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. §

1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to object to this recommendation,

but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the cost

of the transcript.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00433-KD-N Document 26 Filed 05/24/10 Page 3 of 3