Maye v. Thomas et al

Filing 12

ORDER -re: R&R 10 . The court is of the opinion that the magistrate judge's report is due to be and hereby is ADOPTED and the recommendation is ACCEPTED. It is therefore ORDERED that all of the pltf's claims except his Eighth Amendment excessive force claim against dft Gadson and his supervisory liability claim against dft Gary are DISMISSED. The remaining claims are REFERRED to the magistrate judge for further proceedings. Signed by Judge Robert B Propst on 8/13/2014.(AVC)

FILED
2014 Aug-13 AM 09:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTWAIN VONTELL MAYE,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER KIM THOMAS, )
et al.,
)
)
Defendants.
)

Case No. 2:12-cv-02478-RBP-TMP

ORDER
The magistrate judge filed a report and recommendation on May 29, 2014,
recommending that the plaintiff's claims against Defendants Thomas, Price, and Hicks
be dismissed for the plaintiff’s failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915A(b)(1) and/or (2). (Doc. 10). The magistrate
judge further recommended that the plaintiff’s Eighth Amendment excessive force
claim against Defendant Gadson and the plaintiff’s supervisory liability claim against
Defendant Gary be referred to the magistrate judge for further proceedings. (Id.)
The plaintiff filed objections on June 6, 2014.1 (Doc. 11).

1

The plaintiff mistakenly filed his objections in Maye v. Thomas, Case No. 2:12-cv-02712RDP-TMP, which was dismissed on December 6, 2013. (Doc. 21). On July 7, 2014, District
Judge Proctor directed the Clerk to file the plaintiff’s objections in the present case. (Doc. 22).

The plaintiff states in his objections that he “agree[s] in part” that Defendants
Thomas, Price, Hicks, and Warden Hetzel “are not fully responsible” for Defendant
Gadson’s actions.2 (Doc. 11 at 2). However, the plaintiff further states that
“supervisors train their subordinates and they were notified about this incident and
did nothing!” (Id.) The plaintiff named Thomas, Price, and Hicks as defendants in
his complaint but failed to allege any claims against them in the body of the
complaint. Therefore, these defendants are due to be dismissed.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, the Court
is of the opinion that the magistrate judge's report is due to be and is hereby
ADOPTED and the magistrate judge's recommendation is ACCEPTED. It is
therefore ORDERED, ADJUDGED, and DECREED that all of the plaintiff's claims
in this action except his Eighth Amendment excessive force claim against Defendant
Gadson and his supervisory liability claim against Defendant Gary are DISMISSED
pursuant to 28 U.S.C. ' 1915A(b). It is further ORDERED that the plaintiff’s Eighth
Amendment excessive force claim against Defendant Gadson and his supervisory
liability claim against Defendant Gary are REFERRED to the magistrate judge for
further proceedings.

2

Warden Hetzel is not a defendant in this action.

DATED this 13th day of August, 2014.

_____________________________________________
ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE