Opinion
9:12-CV-422
09-17-2014
JEFFREY A. NELSON, Plaintiff, v. BRUCE PLUMLEY, et al., Defendants.
THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
This pro se 42 U.S.C. § 1983 action was referred to the Hon. David E. Peebles, Jr. United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b). Magistrate Judge Peebles recommends that the Defendants' motion for summary judgment, dkt. # 49, be granted in part and that the Court conduct an evidentiary hearing to determine whether Plaintiff's failure to exhaust his administrative remedies on his excessive-force claim can be excused. See dkt. # 59. Plaintiff has filed objections to the Report-Recommendation.
When objections to a magistrate judge's Report-Recommendation are lodged, the Court reviews the record de novo. See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Court may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id. Thus, the Court reviews the instant matter de novo.
Having reviewed the record de novo and having considered the issues raised in the Plaintiff's objections, this Court has determined to accept and adopt in part the recommendation of Magistrate Judge Peebles for the reasons stated in the Report-Recommendation. Therefore:
1. Plaintiff's objections, dkt. # 60, to the Report-Recommendation of Magistrate Judge Peebles, dkt. # 59, are hereby OVERRULED;
2. The Report-Recommendation is hereby ADOPTED;
3. The Defendants' motion for summary judgment, dkt. # 49, is GRANTED in part and DENIED in part. The motion is GRANTED with respect to Plaintiff's Eighth Amendment conditions-of-confinement claim and Fourteenth Amendment procedural due process claim. The motion is DENIED with leave to renew with respect to Defendants' claim that Plaintiff failed to exhaust his administrative remedies on all of his claims. An evidentiary hearing is necessary to determine whether Plaintiff exhausted his administrative remedies with respect to his remaining excessive-force claim against Defendants Plumley and Spear. Defendants may renew their motion following this hearing; and
4. The case is REFERRED to Magistrate Judge Peebles to conduct an evidentiary hearing on exhaustion of administrative remedies. The Magistrate Judge should also consider Plaintiff's request to have counsel appointed to represent him at that hearing. IT IS SO ORDERED. Dated: September 17, 2014
/s/_________
Thomas J. McAvoy
Senior, U.S. District Judge