Opinion
No. 3:18-cv-05736-RJB-JRC
09-16-2019
SCOTT WESLEY HUMPHREYS, Plaintiff, v. LUKE BURGHER ET AL., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
The Court, having reviewed the Report and Recommendation of Magistrate Judge J. Richard Creatura (Dkt. 57), objections to the Report and Recommendation (Dkt. 58), and the remaining record, does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation.
(2) Defendants' Motion to Dismiss (Dkt. 44) (Dkt. 23) is granted in part and denied in part as stated in the Report and Recommendation.
(3) Plaintiff is granted leave to amend his Complaint with respect to plaintiff's claims against: (1) defendant Burgher for sexual harassment; (2) defendant Bennett for sexual harassment and violations of plaintiff's right to access to the courts and equal protection; (3) defendant Lystad for violations of the Eighth Amendment related to plaintiff's medical treatment; (4) defendant Jolly for due process violations; (5) defendant Sharpe for violations of access to the courts; (6) defendants Cardwell, Casey, Gilbert, Haynes, Jones, Burgher, and Tornquist for failure to protect; (7) defendant Haynes and Gilbert for supervisory liability; and (8) defendants Thrasher, Cotton, Corder, and Walden for any constitutional violations cognizable under § 1983.
(4) Plaintiff filed an Amended Complaint (Fourth Amended Complaint) (Dkt. 59) on August 26, 2019, apparently in response to the Report and Recommendation. Docket Number 59 is now the operative Complaint, and hopefully, the final Amended Complaint in this matter.
(5) In regard to defendants Objections:
(a) First, all concerned are tired of plaintiff's ongoing attempts to state claims. However, Magistrate Judge Creatura's ongoing efforts to apply the law to the plaintiff's Complaints, and to recommend authorizing Amendments, and this Court's approval of those efforts is well within judicial discretion;
(b) It is difficult, and likely unfair, to determine matters of qualified immunity before the claims are settled. Hopefully, on referral, the Magistrate Judge will address those matters so far as it is proper to do so.
(c) The other legal issues raised in defendant's objections should be further considered by the Magistrate Judge as part of the review of the adequacy of the Fourth Amended Complaint.
(6) This matter is re-referred to Magistrate Judge Creatura.
(7) The Clerk is directed to send copies of this Order to Plaintiff, counsel for Defendants, and to the Hon. J. Richard Creatura.
DATED this 16th day of September, 2019.
/s/_________
ROBERT J. BRYAN
United States District Judge