Opinion
Case No. CV 14-222 MWF(JC)
03-16-2017
STEVEN FISHMAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed all of the records herein, including all documents submitted by the parties in connection with the Motion for Summary Judgment, or in the Alternative Partial Summary Judgment ("Motion") filed by the United States, and the February 7, 2017 Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"). The Court approves and accepts the Report and Recommendation.
IT IS HEREBY ORDERED: (1) the evidentiary objections of the United States are overruled and the parties' requests for judicial notice are denied as moot; (2) Claim 1 and the non-verbal abuse predicates of Claim 9 are dismissed sua sponte for lack of subject matter jurisdiction based upon the discretionary function exception to the United States' waiver of sovereign immunity; (3) the Motion is granted (alternatively as to Claim 1 and the non-verbal predicates of Claim 9) to the extent it seeks summary judgment in favor of the United States on Claims 1 and 9 based upon plaintiff's failure to raise a genuine dispute as to his suffering of more than a de minimis physical injury as required; and (4) Judgment shall be entered in accordance with the above and with the Court's February 29, 2016 Order dismissing all claims except Claims 1 and 9 without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on plaintiff and on counsel for defendant.
IT IS SO ORDERED DATED: March 16, 2017
/s/_________
HONORABLE MICHAEL W. FITZGERALD
UNITED STATES DISTRICT JUDGE