Wilson v. Rutherford et al
Filing
54
ORDER adopting 53 Report and Recommendation, with one exception; granting, in part, and denying, in part, 49 Defendants City of Jacksonville, Sheriff John H. Rutherford, and Deputy Timothy C. Holochwost's Motion to Dismiss Third Amended Complaint; granting, in part, and denying, in part, 50 Defendant Global Tel-Link's Motion to Dismiss Plaintiff's Third Amended Complaint. Amended complaint due September 30, 2013. Signed by Judge Marcia Morales Howard on 8/23/2013. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HERBERT J.T. WILSON, II,
Plaintiff,
vs.
Case No. 3:12-cv-458-J-99MMH-JRK
THE CONSOLIDATED CITY OF
JACKSONVILLE, et al.,
Defendants.
_____________________________________/
ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Doc. No. 53;
Report), entered by the Honorable James R. Klindt, United States Magistrate Judge, on July
18, 2013. In the Report, Magistrate Judge Klindt recommends that Defendants City of
Jacksonville, Sheriff John H. Rutherford and Deputy Timothy C. Holochwost’s Motion to
Dismiss Third Amended Complaint With Prejudice (Doc. No. 49) be granted, in part, and
denied, in part. See Report at 40. Additionally, Magistrate Judge Klindt recommends that
Defendant Global Tel-Link’s Motion to Dismiss Plaintiff’s Third Amended Complaint with
Prejudice (Doc. No. 50) be granted to the extent that all claims against Defendant Global
Tel-Link be dismissed without prejudice. See id. at 41. As of the date of this Order, no
objections have been filed to the Magistrate Judge’s Report.
The Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no specific
objections to findings of fact are filed, the district court is not required to conduct a de novo
review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993);
see also 28 U.S.C. § 636(b)(1).
However, the district court must review the legal
conclusions in the report de novo. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604
(11th Cir. 1994); United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at
*1 (M.D. Fla. May 14, 2007); see also 28 U.S.C. § 636(b)(1).
Upon independent review of the file and for the reasons stated in the Magistrate
Judge’s Report, the Court will accept and adopt the legal and factual conclusions
recommended by the Magistrate Judge with the exception of the discussion of the
availability of monetary damages against Defendant Timothy C. Holochwost in Section V.F.1
Accordingly, it is hereby
ORDERED:
1.
The Magistrate Judge’s Report and Recommendation (Doc. No. 53) is
ADOPTED as the opinion of the Court, with the exception of the discussion regarding the
availability of money damages against Defendant Timothy C. Holochwost set forth in section
V.F.
2.
Defendants City of Jacksonville, Sheriff John H. Rutherford, and Deputy
Timothy C. Holochwost’s Motion to Dismiss Third Amended Complaint (Doc. No. 49) is
GRANTED, in part, and DENIED, in part, as follows:
1
Although the claims for damages against the Defendants City of Jacksonville and Sheriff John
H. Rutherford are due to be dismissed for the reasons stated in the Magistrate Judge’s Report, the claim to
recover monetary damages for mental or emotional injury against Defendant Timothy C. Holochwost based
upon alleged retaliation is not barred pursuant to 42 U.S.C. § 1997(e) because Plaintiff is no longer
incarcerated. See Report at 1-2, n.3. Thus, Plaintiff may pursue his claim to recover compensatory and
nominal damages against Defendant Holochwost to remedy a First Amendment violation.
-2-
a.
As to Defendants City of Jacksonville and Sheriff Rutherford, the
Motion is GRANTED.
All claims against Defendants City of
Jacksonville and Sheriff Rutherford are DISMISSED with prejudice.
b.
As to Defendant Holochwost, the Motion is GRANTED to the extent
that all claims, except the claim for damages for retaliation, are
DISMISSED with prejudice, and DENIED as to Plaintiff’s retaliation
claim.
3.
Defendant Global Tel-Link’s Motion to Dismiss Plaintiff’s Third Amended
Complaint with Prejudice (Doc. No. 50) is GRANTED to the extent that all claims against
Defendant Global Tel-Link are DISMISSED without prejudice. In all other respects, the
Motion is DENIED.
4.
The Jacksonville Sheriff’s Office is DISMISSED with prejudice.
5.
In the event that Plaintiff desires to file an amended complaint consistent with
this Order, he shall do so no later than September 30, 2013.
DONE AND ORDERED at Jacksonville, Florida, this 23rd day of August, 2013.
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i21
Copies to:
Honorable James R. Klindt
United States Magistrate Judge
Counsel of Record
Pro Se Plaintiff
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