Rager v. Augustine

Full title: DONALD W. RAGER, Plaintiff, v. WARDEN PAIGE AUGUSTINE, et al., Defendants.

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

Date published: Jan 10, 2017

Case No. 5:15cv35-MW/EMT (N.D. Fla. Jan. 10, 2017)

Opinion

Case No. 5:15cv35-MW/EMT

01-10-2017

DONALD W. RAGER, Plaintiff, v. WARDEN PAIGE AUGUSTINE, et al., Defendants.

Mark E. Walker United States District Judge

ORDER ON REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge's Report and Recommendation, ECF No. 103, and has also reviewed de novo Plaintiff's objections to the report and recommendation, ECF No. 105. The report and recommendation is ACCEPTED and ADOPTED, over Plaintiff's objections, as this Court's opinion, as to Plaintiff's Fourth, Fifth, Eight, and Fourteenth Amendment claims. But it is REJECTED to the extent that it dismisses Plaintiff's First Amendment claims that could be construed as retaliation claims.

The Magistrate recommends dismissing the latter for failure to state a claim because they do not allege actual injury. ECF No. 103, at 31-34. District courts, however, must liberally construe prisoners' pro se complaints at the motion to dismiss stage. Williams v. McCall, 531 F.2d 1247 (5^th Cir. 1976)¹ (quoting Haines v. Kerner, 404 U.S. 519 (1972)). This Court, accepting the complaint's allegations as true and in the light most favorable to plaintiff, could reasonably construe Plaintiff's First Amendment claims as retaliation claims, which need not allege actual injury. Pittman v. Tucker, 213 F. App'x 867, 870 (11th Cir. 2007). Indeed, Plaintiff alleges that Defendants threatened to harm him, return him to solitary confinement, and transfer him to another facility unless he stopped filing grievances. ECF No. 15, at 14-17, ¶15-19, 24. Accordingly, the report and recommendation is REJECTED in part, and Defendants' motions to dismiss are DENIED in part, as to Plaintiff's First Amendment claims that could be construed as retaliation claims, which are not otherwise barred by the statute of limitations. ECF No. 103, at 29.

1 The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. --------

Accordingly,

IT IS ORDERED:

1. Except for Parts II.A and II.B.1, ECF no. 103, the report and recommendation is ACCEPTED and ADOPTED as this Court's opinion. The report and recommendation is REJECTED in part as to Parts II.A and II.B.1.

2. Defendants' motions to dismiss, ECF Nos. 49, 64, 67, 72 are ACCEPTED as to Plaintiff's Fourth, Fifth, Eight, and Fourteenth Amendment claims, but REJECTED in part as to Plaintiff's First Amendment claims that could be construed as retaliation claims and are not otherwise barred by the statute of limitations. ECF No. 103, at 29.

3. This Court does not direct entry of judgment under Rule 54(b).

4. The case is remanded to the Magistrate for further proceedings on Plaintiff's First Amendment retaliation claims consistent with this order.

SO ORDERED on January 10, 2017.

s/ Mark E. Walker

United States District Judge