Sherman v. Blair et al

Filing 42

ORDER adopting 41 Report and Recommendation; granting, in part, and denying, in part, 23 Defendant Porcelli's Motion to Dismiss and 24 Defendant Sapp's Motion to Dismiss; granting 21 Defendant Sheriff's Motion to Dismiss. Defendants are directed to respond to the remaining claims on or before February 3, 2016. Signed by Judge Marcia Morales Howard on 1/8/2016. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ROY SHERMAN,
Plaintiff,
vs.

Case No. 5:15-cv-36-Oc-34PRL

CHRIS BLAIR, in his official capacity as
Sheriff of Marion County, Florida; FRANCO
PORCELLI; and PAXTON SAPP,
Defendants.
_____________________________________/

ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Dkt. No. 41;
Report), entered by the Honorable Philip R. Lammens, United States Magistrate Judge, on
December 18, 2015. In the Report, Magistrate Judge Lammens recommends that the
motions to dismiss filed by Defendants Porcelli and Sapp (Dkt. Nos. 23 and 24) be granted,
in part, and denied, in part, and that the motion to dismiss filed by Defendant Sheriff Blair
be granted. See Report at 18. The parties have failed to file objections to the Report, and
the time for doing so has now passed.
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 facts 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 legal conclusions
de novo. See Cooper-Houston v. Southern 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).
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. Accordingly, it is hereby
ORDERED:
1.

The Report and Recommendation (Dkt. No. 41) of Magistrate Judge Lammens

is ADOPTED as the opinion of the Court.
2.

Defendant, Deputy Franco Porcelli’s Motion to Dismiss the First Amended

Complaint (Dkt. No. 23) and Defendant, Deputy Paxton Sapp’s Motion to Dismiss Counts
II, VII and X of the First Amended Complaint (Dkt. No. 24) are GRANTED, in part, and
DENIED, in part.
A.

The Motions are GRANTED to the extent Plaintiff seeks claims against
Defendants Porcelli and Sapp in their official capacities, seeks claims
against them under the First Amendment, and seeks relief for the
“negligent infliction of excessive force and battery.”

B.

The Motions are DENIED as to the constitutional claims in Counts I
(false arrest as to Porcelli), II (false arrest as to Sapp), and III
(excessive force as to Porcelli); and as to the state law claims asserted
against them in Counts VI (excessive force as to Porcelli), VII
(excessive force as to Sapp), IX (false arrest as to Porcelli), and X
(false arrest as to Sapp).
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3.

The Motion to Dismiss the First Amended Complaint by Defendant Sheriff (Dkt.

No. 21) is GRANTED. The constitutional claim against Defendant Sheriff in Count V (for
failing to train and allowing or creating a custom, policy, or practice that permitted the
deputies’ misconduct), the state law claim in Count VIII (vicarious liability for the deputies’
use of excessive force), and any claim Plaintiff seeks to bring under the First Amendment,
and for the purported state law claims of “negligent infliction of excessive force and battery”
are DISMISSED with prejudice.
4.

Defendants are directed to respond to the remaining claims on or before

February 3, 2016.
DONE and ORDERED in Chambers, this 8th day of January, 2016.

ja
Copies to:
Counsel of Record

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