Opinion
4:24-cv-00081-LPR-JJV
07-09-2024
DION BROWN'EL #913261 PLAINTIFF v. WHITE COUNTY SHERIFF'S DEPARTMENT, et al. DEFENDANTS
ORDER
LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE.
The Court has reviewed the Partial Recommended Disposition (PRD) submitted by United States Magistrate Judge Joe J. Volpe (Doc. 14) and the Plaintiff's Objections (Doc. 22). After a de novo review of the PRD, along with careful consideration of the Objections and the entire case record, the Court hereby approves and adopts the PRD in its entirety as this Court's findings and conclusions in all respects.
The words “based on a suspect” should be treated as excised from page 2, line 12 of the PRD.
Accordingly, Plaintiff may proceed with his January 3, 2024 individual-capacity excessive force and battery claims against Defendant Seiders and individual-capacity failure to protect claim against Defendant Rodgers. All other claims and Defendants are DISMISSED without prejudice.The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order would not be taken in good faith.
The PRD notes that its plausible-claim conclusion with respect to these claims is “for screening purposes only.” Doc. 14 at 2. That goes doubly for this Court, especially with respect to the failure-to-protect claim. The Court could easily see an adversarial motion to dismiss leading to a different conclusion.
With respect to the First Amendment retaliation claim, the Court wishes to point out that Plaintiff conceded he didn't walk with his hands behind his back and thus conceded the merits of the disciplinary violation. See Second Am. Compl. (Doc. 12) at 5 (“I was served with a disciplinary by Lt. Hannah Ross for failure to walk with my hands behind my back[,] knowing I had a hand full of stacks of legal documents, which made that impossible.”). Furthermore, there is nothing in the Complaint which would state a viable claim even if cases like Gonzalez v. Trevino, 144 S.Ct. 1663 (2024) and Nieves v. Bartlett, 587 U.S. 391 (2019) applied in this context.
IT IS SO ORDERED.