HETRICK v. MCNEIL

Filing 55

ORDER ADOPTING 48 REPORT AND RECOMMENDATION and 49 SECOND REPORT AND RECOMMENDATION: Plaintiff's 46 MOTION to amend complaint is DENIED. Defendant's 33 MOTION to Dismiss is GRANTED IN PART and DENIED IN PART. Clai ms against Defendant Mathers are DISMISSED. Claims for monetary damages against Defendant Salvador in his official capacity are DISMISSED. MOTION to Dismiss the remaining claims on grounds of failure to sufficiently state and qualified immunity is DENIED. Clerk shall refer this case to Magistrate Judge for further proceedings. Signed by CHIEF JUDGE STEPHAN P MICKLE on 1/7/2010. (jws)

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Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION DW AN HETRICK, Plaintiff, v. ESPIDIDO M. SALVADOR, et al., Defendants. _____________________________/ ORDER THIS CAUSE comes before the Court for consideration of the Magistrate Judge's Report and Recommendation (doc. 48) dated September 17, 2009, and Second Report and Recommendation (doc. 49) dated September 18, 2009. Plaintiff has filed an objection (doc.48) pursuant to Title 28, United States Code, Section 636(b)(1). Having considered the objection, I have determined that the Report and Recommendation and Second Report and Recommendation should be adopted. Plaintiff's proposed Second Amended Complaint fails to allege sufficient facts to state a claim for relief against J. Scott Thayer, M.D. Accordingly, it is ORDERED AND ADJUDGED: 1. The Magistrate Judge's Report and Recommendation (doc. 48) CASE NO. 5:08cv272-SPM/WCS Page 2 of 2 and Second Report and Recommendation (doc. 49) are ADOPTED and incorporated by reference in this order. 2. Plaintiff's motion to amend the complaint (doc. 46) is denied without prejudice because the proposed Second Amended Complaint fails to state a claim upon which relief may be granted as to J. Scott Thayer, M.D. 3. Defendant's motion to dismiss (doc. 33) is granted in part and denied in part. A. The claims against Defendant Mathers are dismissed for failure to exhaust administrative remedies. B. The claims for monetary damages against Defendant Salvador in his official capacity are dismissed due to Eleventh Amendment Immunity. C. The motion to dismiss the remaining claims on grounds of failure to sufficiently state a claim and qualified immunity is denied. 4. proceedings. DONE AND ORDERED this 7th day of January, 2010. The Clerk shall refer this case to the Magistrate Judge for further s/ Stephan P. Mickle Stephan P. Mickle Chief United States District Judge CASE NO. 5:08cv272-SPM/WCS

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