Fuller v. Wheat et al

Filing 62

MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/16/2016. (AHI)

FILED
2016 Mar-16 PM 03:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DAVID BOY FULLER,
Plaintiff,
vs.
NURSE WHEAT, et al.,
Defendants.

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Case No. 4:12-cv-03957-CLS-TMP

MEMORANDUM OPINION
The magistrate judge filed a report and recommendation1 on January 11, 2016,
recommending that:
(1)

Plaintiff’s Eighth amendment medical claims against defendants

Pavlakovic, Wheat, Phillips, Shankles, Boatwright, Butler, Klinner, Russell, Webb,
and Battle be dismissed without prejudice for failure to exhaust administrative
remedies pursuant to 42 U.S.C. § 1997e(a);
(2)

Defendants Pavlakovic, Wheat, Phillips, Shankles, Boatwright, Butler,

Klinner, Russell, Webb, and Battle’s motion for summary judgment be deemed moot
due to their dismissal without prejudice for want of exhaustion of administrative
remedies;

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Doc. no. 61.

(3)

Defendants Heflin, Massey, Bell, and Hammer be dismissed without

prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure because they
were not served with a copy of the amended complaint within the allotted time;
(4)

Defendants McDowell and Sanders’ motion for summary judgment on

plaintiff’s Eighth Amendment supervisory liability claims be granted, and the claims
be dismissed with prejudice;
(5)

Defendant Zuspan’s motion for summary judgment on plaintiff’s claims

of threats and verbal harassment be granted, and the claims be dismissed with
prejudice; and
(6)

Defendant Marcano’s motion for summary judgment on plaintiff’s First

Amendment retaliation claim be granted, and the claim be dismissed with prejudice.
No objections have been filed by any party.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation, the Court is of the opinion that the
magistrate judge’s report is due to be, and it hereby is, ADOPTED, and his
recommendation is ACCEPTED. Plaintiff’s claims against Pavlakovic, Wheat,
Phillips, Shankles, Boatwright, Butler, Klinner, Russell, Webb, Battle, Heflin,
Massey, Bell, and Hammer are due to be DISMISSED WITHOUT PREJUDICE.
The Court EXPRESSLY FINDS that there are no genuine issues of material fact
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concerning plaintiff’s claims against defendants McDowell, Sanders, Zuspan, and
Marcano, and those defendants are entitled to judgment as a matter of law.
Accordingly, McDowell, Sanders, Zuspan, and Marcano’s motion for summary
judgment is due to be GRANTED and plaintiff’s claims against them are due to be
DISMISSED WITH PREJUDICE. A Final Judgment will be entered.
DONE this 16th day of March, 2016.

______________________________
United States District Judge

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