Opinion
Case No. 8:04-cv-1169-T-23TGW.
February 17, 2006
ORDER
On February 15, 2006, the parties appeared at a hearing on the plaintiff's objections (Doc. 66) to the Magistrate Judge's recommendation (Doc. 65) that the court grant the defendants' motion for summary judgment. (Doc. 34) As developed at the hearing, the plaintiff agrees that the defendants are entitled to summary judgment on Count II, which alleges a conspiracy between Fernandez and Arnew, but the plaintiff persists in the claim that Sharleen Jones was "unarmed" when shot to death by Fernandez and that the deployment of deadly force by Fernandez was "excessive." The defendant presses the claim that Sharleen Jones, allegedly in a volatile state, raised a firearm toward Fernandez, the raising of which threatened a deadly attack to which Fernandez responded with justifiable but deadly force.
The plaintiff concedes that the case against Fernandez depends upon the plaintiff's proving that Sharleen Jones was "unarmed." The record in this action is insufficient to establish "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law" because a genuine issue remains as to whether Sharleen Jones was "unarmed" (and, of course, if she was "unarmed," why she was shot to death).
The plaintiff's objections are sustained to the extent that the defendants' motion for summary judgment on Count I is DENIED, and the objections are denied to the extent that the defendants' motion for summary judgment on Count II is GRANTED.
ORDERED.