Opinion
CIVIL ACTION NO. 5:10-CV-306 (MTT).
April 5, 2011
ORDER
This matter is before the Court on the Recommendation of United States Magistrate Judge Charles H. Weigle (Doc. 10). In response to the Magistrate Judge's Recommendation, the Plaintiff filed two Motions to Amend (Docs. 12 14). After discussions with the Magistrate Judge, the Court will consider the Motions to Amend as the Plaintiff's objections to the Recommendation. Accordingly, the Motions to Amend are denied as moot.
With regard to Defendant Vanessa Hester-O'Donnell, the Magistrate Judge recommends that she be dismissed because a supervisor may be held liable under section 1983 only if she "(1) instituted a custom or policy which resulted in a violation of the plaintiff's constitutional rights; (2) directed [her] subordinates to act unlawfully; or (3) failed to stop [her] subordinates from acting unlawfully when [she] knew they would." Gross v. White, 2009 WL 2074234 at *2 (11th Cir. July 17, 2009) (citing Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007)).
In his Motion to Amend (Doc. 12), which the Court construes as an objection, the Plaintiff states, matter of factly, that it was Defendant Hester-O'Donnell's "instructed policy" that led to the Plaintiff's alleged injury. It is apparent to the Court that the Plaintiff's attempt to cure his deficient claim against Defendant Hester-O'Donnell is nothing more than a recitation of the language contained in the Magistrate Judge's Recommendation. The bare assertion that it was Defendant Hester-O'Donnell's "instructed policy," with nothing more, however, does not rescue the Plaintiff's claim. As noted in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), "[f]actual allegations must be enough to raise a right to relief above the speculative level," and the complaint "must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." (internal quotations and citations omitted); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (explaining that "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice"). Accordingly, Defendant Hester-O'Donnell is dismissed from this action.
With regard to Defendants BSP Medical Director and Staff and C.E.R.T. Team, the Magistrate Judge recommends their dismissal because of the Plaintiff's failure to file his complaint within the applicable statute of limitations. The Court agrees with the Magistrate Judge's determination. Defendants BSP Medical Director and Staff and C.E.R.T. Team are dismissed from this action.
Finally, with regard to the remaining Defendant, Officer Tree, the Magistrate Judge recommends allowing the Plaintiff's claim to go forward, and ordered that service be made against Defendant Officer Tree. However, on November 29, 2010, the Process Receipt and Return (Doc. 13) was returned unexecuted, with a note that read, "Notice/waiver mailed to defendant 11/10/10; service package returned `Baldwin State Prison does not, nor has [it] ever employed an Officer Tree.'" Thus, Officer Tree has not been served and the Plaintiff has done nothing to rectify this error. Accordingly, Officer Tree is dismissed from this action.
The Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge, with the exception that Officer Tree is dismissed from this action. Because all of the Defendants have been dismissed, this case is DISMISSED.