Velazquez v. Graham

Full title: JAMES VELAZQUEZ, v. SERGEANT B. GRAHAM, MRS. K. ROBINSON, and SPENSER…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISIO

Date published: Dec 15, 2014

Case No. 4:13cv382-MW/CAS (N.D. Fla. Dec. 15, 2014)

Opinion

Case No. 4:13cv382-MW/CAS

12-15-2014

JAMES VELAZQUEZ, v. SERGEANT B. GRAHAM, MRS. K. ROBINSON, and SPENSER FAISON, Defendants.

Mark E. Walker United States District Judge

ORDER ACCEPTING REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate's Report and Recommendation, ECF No.40, and has also reviewed de novo Defendant Graham's objections to the report and recommendation. ECF No. 41. Accordingly,

IT IS ORDERED:

The report and recommendation is accepted and adopted, over Defendant Graham's objections, as this Court's opinion. The Clerk shall enter judgment stating, "The motion to dismiss of Defendants Graham and Robinson, ECF No. 33, is GRANTED in part and DISMISSED in part. Plaintiff's claims against Defendant Robinson concerning the orchestrated attack and subsequent events is DISMISSED for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997(e) and for failure state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff's Eighth Amendment claims for verbal abuse by Defendants Graham and Robinson are DISMISSED for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2). This cause is REMANDED for further proceedings on Plaintiff's remaining claim against Defendant Graham for retaliation under the First Amendment."

In so ruling, this Court notes that Defendant Graham did not move to strike Plaintiff's claims for damages and thus Plaintiff was not afforded an opportunity to respond. While Plaintiff may only have a claim for nominal damages, the issue has not properly been raised. As for Defendant's retaliation claim, it is certainly possible that his claim as it relates to an allegedly false or retaliatory disciplinary report may be subject to dismissal because Plaintiff may have received due process. This Court is mindful of the documents submitted by Defendant Graham in support of his motion to dismiss, ECF No. 33-3, and the issue will undoubtedly be revisited on summary judgment.

SO ORDERED on December 15, 2014.

s/ Mark E. Walker

United States District Judge