Opinion
4:13cv339-WS
12-10-2014
JIMMY WAKEFIELD, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the court is the magistrate judge's report and recommendation (doc. 74) docketed October 16, 2014. The magistrate judge recommends that the defendants' motion to dismiss or, in the alternative, for summary judgment be granted as to (1) the plaintiff's Eighth Amendment claims against the individual defendants, and (2) the plaintiff's FTCA claim against the United States with respect to the plaintiff's housing assignment in the Bureau of Prisons ("BOP"). The magistrate judge recommends that the defendants' motion be denied to the extent the plaintiff sues the United States for negligently failing to adhere to the BOP's razor and search policies. The plaintiff has filed objections (doc. 76) to the report and recommendation.
Having reviewed the record in light of the plaintiff's objections, the court finds that the magistrate judge's report and recommendation should be adopted. Accordingly, it is ORDERED:
The magistrate judge recommends that the plaintiff's Eighth Amendment claim against the individual defendants be dismissed for failure to exhaust administrative remedies and for failure to state a claim. This court agrees that the plaintiff has failed to state a claim under the Eighth Amendment. With regard to exhaustion, however, the court finds that the parties, through opposing affidavits, have created an issue of fact that cannot be resolved on the defendants' motion to dismiss or for summary judgment. The court accordingly declines to adopt the magistrate judge's report and recommendation to the extent the matter of exhaustion is addressed. In any event, the defendants are entitled to dismissal of the plaintiff's Eighth Amendment claim under Rule 12(b)(6).
1. With the exception of the discussion relating to exhaustion, the magistrate judge's report and recommendation (doc. 74) is ADOPTED and incorporated by reference into this order.
2. The defendants' motion to dismiss or, in the alternative, for summary judgment (doc. 66) is GRANTED as to all claims except the plaintiff's FTCA claim with respect to the BOP's razor and search policies.
3. The individual defendants—Warden Flournoy, Assistant Warden Smith, S.I.S. Folks, Acting Captain Wagner, Lt. White, Officer Chambers, Officer Harvey, Officer Beach, and Officer Inge—are DISMISSED from this action.
4. The clerk shall remand the case to the magistrate judge for further proceedings.
DONE AND ORDERED this 10th day of December , 2014.
s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE