Opinion
2:23-cv-01824-FLA (MAA)
07-29-2024
GARY M. GRUBER, Plaintiff, v. RAY BON JOHNSON, JR., et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE [DKT. 37]
FERNANDO L. AENLLE-ROCHA, UNITED STATES DISTRICT JUDGE.
Pursuant to 28 U.S.C. § 636, the court has reviewed the First Amended Complaint (“FAC”), Dkt. 12, the briefs and documents filed in support of and in opposition to the Motion to Dismiss the FAC (“Motion”), Dkt. 24, the other records on file herein, the Report and Recommendation of United States Magistrate Judge (“Report”), Dkt. 37, and Defendants' Objections to the Report (“Objections”), Dkt. 40. After conducting a de novo review of the portions of the Report and Recommendation to which objections were directed, the court concurs with and accepts the findings and conclusions of the Magistrate Judge.
The Motion seeks dismissal of the FAC based on qualified immunity. See Dkt. 24. The Report recommends denial of the Motion. See Dkt. 37. As explained below, Defendants' Objections do not warrant a change to the Magistrate Judge's findings or recommendation.
Defendants object they are entitled to qualified immunity because it was not clearly established that housing a “Level-2 sex offender,” such as Plaintiff, “on a Level-4 Yard” violates the Eighth Amendment. Dkt. 40 at 2. The court agrees with the Report that the issue of qualified immunity is not suitable for resolution at this time. For example, in the Eleventh Circuit, prison officials do not have qualified immunity from allegations, similar to the allegations here, “that dangerous high-risk general population inmates were not properly segregated from low-risk inmates.” McCarley v. Dunn, Case No. 4:21-cv-570-LSC, 2024 WL 993884, at *10 (N.D. Ala. Mar. 7, 2024) (cleaned up). Although this decision arises from another circuit, the court may consider it to evaluate Defendants' argument that the right asserted by Plaintiff is not clearly established. See Tarobochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (district courts may look to decisions of other circuits and district courts to inquire whether a right is clearly established). Because the issue of qualified immunity is not suitable for resolution at this time, the Motion to Dismiss is denied without prejudice to renewal of the argument at a later time.
Accordingly, the court ORDERS as follows:
(1) The Report (Dkt. 37) is ACCEPTED;
(2) The Motion (Dkt. 24) is DENIED;
(3) Defendants are ORDERED to file an answer to the FAC no later than thirty (30) days after the date of this Order.
IT IS SO ORDERED.