RIVERS v. DONAWAY, et al
ORDER accepting 55 Report and Recommendation. Summary Judgment is granted in favor of defendants Johnson and Summary Judgment is granted on all claims in favor of defendants Bevis, Lambert, and Donaway. Signed by William Terrell Hodges on 7/18/17. (bkp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
ROBERT SAMUEL RIVERS, JR,
Case No. 1:16-cv-00040-WTH-GRJ
JOSHUA DONAWAY, CAPTAIN BEVIS,
SERGEANT LAMBERT, VICKY JOHNSON,
This matter is before the Court on the Report and Recommendation of the
Magistrate Judge, ECF No. 55, recommending that the motion for summary judgment
filed by defendant Vicky Johnson, ECF No. 39, and the motion for summary judgment
filed by defendants Bevis, Donaway and Lambert, ECF No. 44, be granted. The parties
were given an opportunity to object to the Report and Recommendation, but no
objections have been filed. In fact, plaintiff has not participated in this case in any way
since he was released from custody in August of 2016.
The Magistrate Judge correctly notes that, despite plaintiff’s lack of participation,
it is still appropriate for this Court to consider the motions for summary judgment.
Under Fed. R. Civ. P. 56(e)(3), when “a party fails to properly support an assertion of
fact or fails to properly address another party’s assertion of fact as required by Rule
56(c)” the Court may “grant summary judgment if the motion and supporting materials –
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including the facts considered undisputed – show that the movant is entitled to it.” Also,
because plaintiff’s complaint was signed under penalty of perjury, ECF No. 7 at 15, this
Court should treat the document as a sworn affidavit.
After so considering the record evidence, the Court agrees with the Magistrate
Judge that plaintiff has failed to support his assertions of fact or to properly address the
defendants’ assertions of fact. Also, the Court agrees that plaintiff has otherwise failed
to prosecute his case and follow orders of the Court. Furthermore, the Court agrees
with the Magistrate Judge that the sworn complaint, motions and supporting materials
show that the defendants are entitled to the relief requested in their motions for
With regard to the claims against Sergeant Donaway, Captain Bevis and
Sergeant Lambert, plaintiff seeks only compensatory, nominal and punitive damages
under 42 U.S.C. § 1983; he does not seek injunctive or declaratory relief. Also, the
claims against them all relate to disciplinary violation findings against plaintiff that
plaintiff has not had overturned. Thus, a judgment in plaintiff's favor would necessarily
imply the invalidity of the disciplinary hearings and the resulting sanctions. The
Supreme Court has held that such a claim is not cognizable under § 1983. Edwards v.
Balisok, 520 U.S. 641, 648, 117 S. Ct. 1584, 1589, 137 L. Ed. 2d 906 (1997), citing
Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372–2373, 129 L.Ed.2d 383
(1994). With regard to Nurse Johnson, none of the grievances filed by plaintiff related
to the medical care he received from her. Thus, plaintiff has not offered any evidence
Case No: 1:16-cv-00040-WTH-GRJ
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to rebut defendant Johnson’s evidence that he did not exhaust his administrative
remedies with regard to his claims against her.
Accordingly, the Report and Recommendation of the Magistrate Judge is
accepted and incorporated herein. The Clerk is directed to enter judgment stating as
Summary Judgment is granted in favor defendant Johnson on all claims.
Summary Judgment is granted in favor of defendants Bevis, Lambert, and
Donaway on all claims against each.
The Clerk is directed to close the file.
IT IS SO ORDERED.
DONE and ORDERED at Gainesville, Florida this 18th day of July, 2017.
Case No: 1:16-cv-00040-WTH-GRJ
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