Fitzgerald v. Busby et al

Filing 154

ORDER ADOPTING 127 PARTIAL REPORT AND RECOMMENDATIONS of Magistrate Judge Joe J. Volpe; granting in part & denying in part 118 Defendants' MOTION for Summary Judgment. Fitzgerald may proceed on his conditions-of-confinement claim (while in the booking cell) & his excessive-force claim. All of Fitzgerald's official-capacity claims seeking money damages against any immune Defendants are dismissed with prejudice. The Court also dismisses with prejudice any claim based on Fitzgerald 's allegations that the County had an unconstitutional policy or custom, respondeat superior liability, that Defendants failed to answer grievances, denied him visitation, denied him access to mail, failed to provide an adequate diet, retaliated against him, or were deliberately indifferent to serious medical needs in violation of the Eighth Amendment. Fitzgerald's claim that Defendants unlawfully deprived him of personal property is dismissed without prejudice so he may pursue any ap propriate state-law remedy. Likewise, Fitzgerald's claim that Defendants failed to protect him is dismissed without prejudice because he failed to state a claim. Finally, Jane Doe (identified as Nurse Lindsey) is dismissed without prejudice. Signed by Judge D. P. Marshall Jr. on 2/23/2011. (jct)