Opinion
CIVIL ACTION NO. 5:10-CV-502 (MTT)
09-17-2012
MARVIN TURNER, Plaintiff, v. STEVE UPTON, Warden, et al., Defendants.
ORDER
This matter is before the Court on the Recommendation of United States Magistrate Judge Charles H. Weigle. (Doc. 57). The Plaintiff, Marvin Turner, alleges due process and Eighth Amendment claims against the Defendants in both their individual and official capacities. (Doc. 1). The Defendants, Steve Upton, Glen Johnson, William Powell, Victoria Malone, Michael Moore, Gary Caldwell, Benjamin Murphy, and Rickey Foskey, moved to dismiss the Plaintiff's claims, asserting abuse of process, failure to state a claim, and qualified immunity arguments. (Doc. 43). The Magistrate Judge, having reviewed the Defendants' Motion to Dismiss, recommends denial of the Motion in regard to claims against the Defendants in their individual capacities, denial of the abuse of process argument, and dismissal of the claims against them in their official capacities. The Defendants filed an Objection to the Recommendation. (Doc. 58). Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered the Defendants' objections and has made a de novo determination of the portions of the Recommendation to which the Defendants object.
The Defendants have not objected to the Magistrate Judge's recommendation to deny the Motion on the abuse of process defense or to grant the Motion on claims against Defendants in their official capacities.
The Defendants raise in their Objection for the first time the argument that the Plaintiff's claims are barred by the Prisoner Litigation Reform Act because he has failed to allege a physical injury. The Court declines to consider the argument at this time because it was not first presented to the Magistrate Judge. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009).
The Court concludes that the Defendants' remaining objections do not warrant rejection or modification of the Magistrate Judge's findings. The Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge. The Recommendation is adopted and made the order of this Court. The Defendants' Motion to Dismiss for abuse of process is DENIED. The Defendants' Motion to Dismiss for failure to state a claim is DENIED. The Plaintiff's claims against the Defendants in their official capacities are DISMISSED.
______________________
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT