PROCH v. DEROCHE

Filing 56

ORDER adopting Report and Recommendations re 50 Report and Recommendation.. Signed by District Judge M CASEY RODGERS on May 26, 2011. (aow)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
TAUREAN XAVIER PROCH,
Plaintiff,
v.

Case No.: 3:08cv484/MCR/EMT

ROBERT R. DeROCHE,
Defendant.
____________________________/
ORDER
This cause comes on for consideration upon the magistrate judge’s Report and
Recommendation dated March 11, 2011. (Doc. 50). The parties have been furnished a
copy of the Report and Recommendation and have been afforded an opportunity to file
objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de
novo determination of any timely filed objections.
Having considered the Report and Recommendation, and any objections thereto
timely filed, I have determined that the Report and Recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1.

The magistrate judge’s Report and Recommendation is adopted and

incorporated by reference in this order.1

1

Defendant objects to any denial of the m otion to dism iss on grounds that the com plaint states a
claim for unlawful arrest due to a lack of arguable probable cause. The court sustains this objection. The
am ended com plaint does not state a claim for unlawful arrest; it states only a claim based upon "the willful
and wanton unnecessary acts of excessive use of force" for acts "com m itted with deliberate indifference" in
violation of the Fourth Am endm ent and Florida law, and in the fact section of the am ended com plaint, the
plaintiff states that the allegedly excessive Taser use occurred after he placed his hands on the wall instead
of placing them behind his back as instructed. However, he also states in the fact section that there were
"falsified charges" against him and that he pleaded nolo contendere in state court to offenses of trespass and
resisting arrest without violence. Nonetheless, he does not assert that these convictions have been reversed
on appeal or otherwise invalidated. Thus, even if the facts, liberally construed, m ight support a claim of
unlawful arrest, such a claim would be Heck-barred. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(holding a claim for dam ages from harm caused by actions that would necessarily render a sentence or
conviction invalid is not cognizable under § 1983 unless the plaintiff can show that his conviction or sentence
has been invalidated). In all other respects, the court adopts the report and recom m endation.

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2.

Defendant Robert D. DeRoche’s motion to dismiss (doc. 33) is DENIED

pursuant to Fed. R Civ. P. 12(b)(6).
3.

This matter shall be referred to the assigned magistrate judge for further

proceedings.
DONE AND ORDERED this 26th day of May, 2011.

M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

Case No: 3:03cv497/MCR/EMT