Jones v. Gilbert

Filing 12

ORDER Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation, the objections thereto and the second amended complaint, the magistrate judge's report is ADOPTED and the recomm endation is ACCEPTED. The court ORDERS that all claims in this action, except the Fourteenth Amendment Due Process claim against defendants Gilbert and Thrasher for involuntarily medicating the plaintiff, are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A(b). The court further ORDERS that the remaining claim is REFERRED to the magistrate judge for further proceedings. Signed by Judge L Scott Coogler on 5/17/2017. (PSM)

FILED
2017 May-17 PM 02:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT JONES,
Plaintiff,
v.
LT. GILBERT, et al.,
Defendants.

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ORDER

The magistrate judge entered a report on April 3, 2017, recommending all
claims in this action except the Fourteenth Amendment due process claim against
defendants Gilbert and Thrasher for involuntarily medicating the plaintiff be
dismissed without prejudice pursuant to 28 U.S.C. § 1915A(b) for failing to state a
claim upon which relief can be granted. (Doc. 10). The magistrate judge further
recommended the plaintiff’s remaining claim be referred back to the magistrate
judge for further proceedings. (Id. at 10).
Although the magistrate judge advised the plaintiff of his right to file
specific written objections within fourteen (14) days, no formal objections have
been received by the court. Instead, on April 10, 2017, the plaintiff filed an
“amended complaint” on the court’s standard § 1983 form, which the court

construes both as the plaintiff’s objections and as a motion for leave to file a
second amended complaint. (Doc. 11).
In his filing, the plaintiff alleges he told defendant Gilbert he did not want to
take some medicine.

(Id. at 3).

Defendant Gilbert responded by telling the

extraction team that the plaintiff did not want to “cuff up” when, in fact, the
plaintiff was willing. (Id.). The officers then opened the plaintiff’s cell door, and
the plaintiff told defendant Gilbert he was going to “cuff up.” (Id.). Defendant
Gilbert ordered the plaintiff to get on the ground. (Id.). The plaintiff asserts he
was in compliance because he was getting on the ground when the officers ran in
and “roughed [him] up” anyway. (Id.).
There is no material distinction between these allegations and those in the
first amended complaint examined by the magistrate judge, except the plaintiff
now clarifies that he was complying with defendant Gilbert’s order to get on the
ground. (Doc. 9 at 3-5; Doc. 11 at 3). For this reason, the plaintiff’s motion for
leave to amend the complaint is GRANTED.

However, to the extent the

clarification is construed as an objection to the recommended dismissal of his
Eighth Amendment excessive force claim, the objection is OVERRULED. Even
if the plaintiff was attempting to comply with defendant Gilbert’s order when the
extraction team ran in and “roughed” him up, he does not describe what is meant
by that term and does not allege he suffered any physical injury. As such, there is
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no inference the extraction team’s use of force was excessive under the
circumstances.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation, the objections thereto and the
second amended complaint, the magistrate judge’s report is ADOPTED and the
recommendation is ACCEPTED. The court ORDERS that all claims in this
action, except the Fourteenth Amendment Due Process claim against defendants
Gilbert and Thrasher for involuntarily medicating the plaintiff, are DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A(b). The court further
ORDERS that the remaining claim is REFERRED to the magistrate judge for
further proceedings.
DONE and ORDERED on May 17, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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