KORNAGAY v. GIVENS

Filing 37

ORDER. The magistrate judge's 34 Report and Recommendation is not adopted by the Court. This case shall be referred to the assigned magistrate judge for further proceedings on Plaintiff's claims. Signed by SENIOR JUDGE LACEY A COLLIER on August 24, 2012. (pmc)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ROBERT D. KORNAGAY,
Plaintiff,
vs.

Case No. 3:11cv428/LAC/EMT

SERGEANT GIVEN, et al.,
Defendants.
___________________________________/
ORDER
This cause comes on for consideration upon the magistrate judge’s Report and
Recommendation dated August 1, 2012 (doc. 34). Plaintiff has been furnished a copy of the Report
and Recommendation and has 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 the objections filed.
Having considered the Report and Recommendation, and the timely filed objections thereto, I have
determined that the Report and Recommendation should not be adopted.
The Court finds the allegations against Defendant Officer Smith to be sufficient to state a
claim for relief under the Eighth Amendment. While Plaintiff may provide little concrete factual
information to show how Defendant Smith may have responded, or indeed that Smith didn’t properly
respond after confronting Plaintiff’s potentially harmful situation with inmate Pope in his cell, it is
clear that Defendant Smith was aware of the danger. The lack of an adequate response to Plaintiff’s
situation is therefore fairly alleged to be at least partly the result of Defendant Smith’s indifference,
and while Smith may be able to formally respond that he did take remedial steps sufficient to
extricate himself from responsibility for Plaintiff’s alleged injuries, that remains to be seen at this
stage of the litigation. The Court therefore does not find Plaintiff’s claims against Defendant Officer
Smith to be subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii).

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Accordingly, it is now ORDERED as follows:
1.

The magistrate judge’s Report and Recommendation is not adopted by the Court.

2.

This case shall be referred to the assigned magistrate judge for further proceedings

on Plaintiff’s claims.
DONE AND ORDERED this 24th day of August, 2012.

s /L.A. Collier
LACEY A. COLLIER
SENIOR UNITED STATES DISTRICT JUDGE

Case No: 3:011cv428/LAC/EMT