Fields v. Melton et al

Filing 8

ORDER that the Court is of the opinion that the Magistrate Judge's 6 Report is hereby ACCEPTED, the Plaintiff's 7 Objections are OVERRULED, and the Magistrate Judge's 6 Recommendation is ADOPTED. It is therefore ORDERED, ADJUDGED and DECREED that all of Plaintiff's claims in this action, except his Eighth Amendment excessive force claims against defendants Melton and Thurman, are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). It is further ORDERED that Plaintiff's Eighth Amendment excessive force claims against defendants Melton and Thurman are REFERRED to the Magistrate Judge for further proceedings. Signed by Judge Virginia Emerson Hopkins on 1/23/2013. (JLC, )

FILED
2013 Jan-23 AM 10:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DEXTER FIELDS,
Plaintiff
vs.
CORDARO MELTON, et al.,
Defendants

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Case No. 4:11-CV-04318-VEH-HGD

PARTIAL DISMISSAL ORDER
The magistrate judge filed a report and recommendation on December 10, 2012,
recommending that the plaintiff’s claims against the defendants in their official
capacities for monetary relief and the plaintiff’s supervisory liability claims against
defendant Estes be dismissed under 28 U.S.C. § 1915A(b) for failing to state a claim
upon which relief may be granted. The magistrate judge further recommended that the
plaintiff’s Eighth Amendment excessive force claims against defendants Melton and
Thurman be referred to the undersigned magistrate judge for further proceedings.
The plaintiff filed objections to the report and recommendation on December 26,
2012. (Doc. 7). Review of the plaintiff’s objections reveal that he is apparently under
the impression that the report and recommendation filed by the magistrate judge was
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actually a motion to dismiss filed by the defendants. As such, he requests additional
time to prepare a response and leave to file an amended complaint so that he can “fix”
it. (Doc. 7 at 2-3). The plaintiff is apparently unaware that the magistrate judge
recommended that two of his claims proceed beyond this point.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and plaintiff’s objections thereto, the
court is of the opinion that the magistrate judge’s report is due to be and is hereby
ACCEPTED, the plaintiff’s objections are OVERRULED, and the magistrate judge’s
recommendation is ADOPTED.
It is therefore ORDERED, ADJUDGED, and DECREED that all of plaintiff’s
claims in this action, except his Eighth Amendment excessive force claims against
defendants Melton and Thurman, are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1). It is further ORDERED that plaintiff’s Eighth Amendment excessive
force claims against defendants Melton and Thurman are REFERRED to the
magistrate judge for further proceedings.
Should the plaintiff still desire to file an amended complaint, he may, within
thirty (30) days of the entry date of this order, file a motion requesting leave to do so,
accompanied by the proposed amended complaint.

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DONE and ORDERED this the 23rd day of January, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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