Summary
granting summary judgment to an officer where his affidavit and the video footage showed he had no involvement in the activity occurring inside the cell during the two-minute period Plaintiff was allegedly beaten—notwithstanding that "he was momentarily present in the cell"—since his observation of the activity in the cell was "very limited," and also granting summary judgment to another officer who videotaped the activity in the cell because his view "was inhibited by his physical position several feet from the cell, as well as the positions of the officers in the cell, who were essentially huddled over Plaintiff"
Summary of this case from Ajibade v. WilcherOpinion
Case No.: 3:10cv65/MCR/EMT
02-03-2012
JOHN D. SOUTER, JR., Plaintiff, v. SGT. EDELEN, et al., Defendants.
ORDER
This cause comes on for consideration upon the magistrate judge's Report and Recommendation dated November 7, 2011 (doc. 130). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of any timely filed objections.
Having considered the Report and Recommendation, and any objections thereto timely filed, I have determined that the Report and Recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1. The magistrate judge's Report and Recommendation is adopted and incorporated by reference in this order.
2. Defendants' motion for summary judgment (doc. 112) is GRANTED IN PART to following extent:
a. Plaintiff's claims against Defendants Andrew Williams, Steven Thomas, Kyle Hall, William Weekley, Jack Hammontree, and Jeffrey Smith are DISMISSED with prejudice for failure to state a claim;
3. Defendants' motion for summary judgment (doc. 112), is otherwise DENIED and the following claims against the following Defendants are permitted to proceed:
a. Plaintiff's Eighth Amendment claim against Defendant Christopher Edelen for the alleged use of excessive force on October 22, 2008; and
b. Plaintiff's Eighth Amendment claims against Defendants Jimmy Johnson, John Kolodziej, William Johnson, and James Frizzell for failing to intervene or otherwise protect Plaintiff from Edelen's alleged used of excessive force.
4. Defendants Andrew Williams, Steven Thomas, Kyle Hall, William Weekley, Jack Hammontree, and Jeffrey Smith are DISMISSED from this lawsuit.
DONE AND ORDERED this 3rd day of February, 2012.
____________________________
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE