SOUTER v. ELLIS

Filing 103

ORDER adopting 95 Report and Recommendation. Dfts' 81 motion for partial dismissal, construed as a motion for partial summary judgment, is GRANTED IN PART and is otherwise DENIED. Dfts David Ellis, Assistant Warden Haa s, Assistant Warden Henderson, Dianne Ledkins, Monroe Barnes, Dennis Wells, Kenneth Barnes, Elva McCaig, and Doreen Von Oven are DISMISSED from this lawsuit. The Dfts against whom claims remain shall have 14 days from the date of this order in which to file an answer to the pla's 1 complaint. Signed by CHIEF JUDGE M CASEY RODGERS on July 22, 2011. (Answer due 8/5/2011). (kvg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JOHN D. SOUTER, JR.,
Plaintiff,
v.

Case No.: 3:10cv65/MCR/EMT

WARDEN ELLIS, et al.,
Defendants.
__________________________/
ORDER
This cause comes on for consideration upon the magistrate judge’s Report and
Recommendation dated June 15, 2011 (Doc. 95). 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.
2.

Defendants’ motion for partial dismissal (Doc. 81), construed as a motion for

partial summary judgment, is GRANTED IN PART to following extent:
a.

Plaintiff’s claims against Defendants Elva McCaig and Doreen Von

Oven are DISMISSED without prejudice for failure to exhaust administrative remedies;
b.

Plaintiff’s claims against Defendants Jack Hammontree, Andrew

Williams, Jimmy Johnson, John Holodziej, Christopher Edelen, Steven Thomas, William
Johnson, Kyle Hall, James Frizzell, William Weekley, Dennis Wells, Jeffrey Smith, and
Kenneth Barnes for their failure to provide a decontamination shower are DISMISSED

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without prejudice for failure to exhaust administrative remedies;
c.

Plaintiff’s claims against Defendants David Ellis, Assistant Warden

Haas, Assistant Warden Henderson, Dianne Ledkins, and Monroe Barnes are DISMISSED
with prejudice for failure to state a claim;
d.

Plaintiff’s claims for monetary damages against all Defendants in their

official capacities are DISMISSED with prejudice as barred by the Eleventh Amendment;
and
e.
2.

Plaintiff’s claim for declaratory relief is DISMISSED with prejudice.

That Defendants’ motion for partial dismissal (Doc. 81), construed as a

motion for partial summary judgment, is otherwise DENIED and the following claims
against the following Defendants will be permitted to proceed:
a.

Plaintiff’s Eighth Amendment claim against Defendant Christopher

Edelen for the alleged use of excessive force on October 22, 2008; and
b.

Plaintiff’s Eighth Amendment claims against Defendants Jack

Hammontree, Andrew Williams, Jimmy Johnson, John Holodziej, Steven Thomas, William
Johnson, Jeffrey Smith, Kyle Hall, James Frizzell, and William Weekley, for failing to
intervene or otherwise protect him from Edelen’s alleged used of excessive force.
3.

That Defendants David Ellis, Assistant Warden Haas, Assistant Warden

Henderson, Dianne Ledkins, Monroe Barnes, Dennis Wells, Kenneth Barnes, Elva McCaig,
and Doreen Von Oven are DISMISSED from this lawsuit.
4.

The Defendants against whom claims remain shall have fourteen (14) days

from the date of this order in which to file an answer to the plaintiff’s complaint.
DONE AND ORDERED this 22nd day of July, 2011.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 3:10cv65/MCR/EMT