HOKE v. MURPHY et al

Filing 127

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION - The report and recommendation, ECF No. 126 , is accepted and adopted as this Court's opinion, except for the recommendation that this Court should grant the motion for partial summary judgment by default. Plaintiff's motion for voluntary dismissal of Defendant Baluga, ECF No. 123 , is DENIED. Defendant Baluga's motion for partial summary judgment, ECF No. 116 , is GRANTED. Plaintiff's claims against Defendant Baluga are DISMISSED with prejudice. The Clerk shall set this matter for a telephonic status conference to discuss setting Plaintiff's remaining claims for trial. Signed by CHIEF JUDGE MARK E WALKER on 11/13/2023. (baf)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
SOL HOKE,
v.

Plaintiff,

Case No.: 4:21cv128-MW/MAF

SHAVONNA WALKER, et al.,
Defendants.
___________________________/
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
This Court has considered, without hearing, the Magistrate Judge's Report and
Recommendation. ECF No. 126. The Magistrate Judge recommends that this Court
grant the motion for partial summary judgment for a number of reasons, including
by default. But this Court has an independent obligation to determine whether
Defendant is entitled to summary judgment on the merits and “cannot base the entry
of summary judgment on the mere fact that the motion was unopposed.” United
States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004). Therefore, this Court has reviewed the motion for
partial summary judgment and the evidence attached thereto, including Dr. Baluga’s
affidavit.
Dr. Baluga attests, among other things, that Defendant Murphy was not a
nurse or in her line of supervision, and that she never supervised Defendant Murphy.

See ECF No. 116-2 ¶¶ 12–13. In addition, Dr. Baluga attests that neither the
hospital’s security system nor the surveillance camera staff were under her line of
supervision. Id. ¶¶ 24–25. Dr. Baluga attests that she does not recall any incident
involving Plaintiff or any complaints made by Plaintiff about sexual relations or
being raped by staff while he was a resident at the hospital. Id. ¶ 9. Dr. Baluga asserts
she is entitled to judgment as a matter of law with respect to Plaintiff’s failure to
protect claim, because there is no genuine dispute of material fact as to whether she
was subjectively aware of any incident involving Plaintiff while he was housed as a
resident at the hospital. In response, Plaintiff concedes that he does not have any
evidence to demonstrate that Dr. Baluga “personally knew that Ms. Murphy was
sexually abusing him,” ECF No. 123 at 2. Accordingly, viewing the facts in the light
most favorable to Plaintiff and construing all reasonable inferences drawn therefrom
in his favor, Defendant Baluga is entitled to judgment as a matter of law with respect
to the failure to protect claim. Accordingly, upon consideration, no objections having
been filed by the parties,
IT IS ORDERED:
The report and recommendation, ECF No. 126, is accepted and adopted as
this Court’s opinion, except for the recommendation that this Court should grant the
motion for partial summary judgment by default. Plaintiff’s motion for voluntary
dismissal of Defendant Baluga, ECF No. 123, is DENIED. Defendant Baluga’s
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motion for partial summary judgment, ECF No. 116, is GRANTED. Plaintiff’s
claims against Defendant Baluga are DISMISSED with prejudice; however, this
Court does not direct partial entry of judgment pursuant to Federal Rule of Civil
Procedure 54(b). Plaintiff’s claims against Defendant Walker remain pending. The
Clerk shall set this matter for a telephonic status conference to discuss setting
Plaintiff’s remaining claims for trial.
SO ORDERED on November 13, 2023.
s/Mark E. Walker
____
Chief United States District Judge

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