RAGER v. AUGUSTINE

Filing 106

ORDER ON REPORT AND RECOMMENDATION re adopting in part rejecting in part 103 Report and Recommendation. Except for Parts II.A and II.B.1, ECF no. 103 , the report and recommendation is ACCEPTED and ADOPTED as this Court's opinion. The report and recommendation is REJECTED in part as to Parts II.A and II.B.1. Defendants' motions to dismiss, ECF Nos. 49 , 64 , 67 , 72 are ACCEPTED as to Plaintiff's Fourth, Fifth, Eight, and Fourteenth Amendment claims, bu t REJECTED in part as to Plaintiff's First Amendment claims that could be construed as retaliation claims and are not otherwise barred by the statute of limitations. ECF No. 103 , at 29. This Court does not direct entry of judgment under Rule 54(b). The case is remanded to the Magistrate for further proceedings on Plaintiff's First Amendment retaliation claims consistent with this order. Signed by JUDGE MARK E WALKER on 1/10/2017. (jcw)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

DONALD W. RAGER,
Plaintiff,
v.

Case No. 5:15cv35-MW/EMT

WARDEN PAIGE AUGUSTINE,
et al.,
Defendants.
___________________________/
ORDER ON REPORT AND RECOMMENDATION
This Court has considered, without hearing, the Magistrate Judge's Report and
Recommendation, ECF No. 103, and has also reviewed de novo Plaintiff’s
objections to the report and recommendation, ECF No. 105.

The report and

recommendation is ACCEPTED and ADOPTED, over Plaintiff's objections, as this
Court’s opinion, as to Plaintiff’s Fourth, Fifth, Eight, and Fourteenth Amendment
claims. But it is REJECTED to the extent that it dismisses Plaintiff’s First
Amendment claims that could be construed as retaliation claims.
The Magistrate recommends dismissing the latter for failure to state a claim
because they do not allege actual injury. ECF No. 103, at 31-34. District courts,
however, must liberally construe prisoners’ pro se complaints at the motion to
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dismiss stage. Williams v. McCall, 531 F.2d 1247 (5th Cir. 1976)1 (quoting Haines
v. Kerner, 404 U.S. 519 (1972)). This Court, accepting the complaint’s allegations
as true and in the light most favorable to plaintiff, could reasonably construe
Plaintiff’s First Amendment claims as retaliation claims, which need not allege
actual injury. Pittman v. Tucker, 213 F. App'x 867, 870 (11th Cir. 2007). Indeed,
Plaintiff alleges that Defendants threatened to harm him, return him to solitary
confinement, and transfer him to another facility unless he stopped filing grievances.
ECF No. 15, at 14-17, ¶15-19, 24. Accordingly, the report and recommendation is
REJECTED in part, and Defendants’ motions to dismiss are DENIED in part, as
to Plaintiff’s First Amendment claims that could be construed as retaliation claims,
which are not otherwise barred by the statute of limitations. ECF No. 103, at 29.
Accordingly,
IT IS ORDERED:
1. Except for Parts II.A and II.B.1, ECF no. 103, the report and
recommendation is ACCEPTED and ADOPTED as this Court’s opinion.
The report and recommendation is REJECTED in part as to Parts II.A and
II.B.1.

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The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en
banc), adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

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2. Defendants’ motions to dismiss, ECF Nos. 49, 64, 67, 72 are ACCEPTED
as to Plaintiff’s Fourth, Fifth, Eight, and Fourteenth Amendment claims, but
REJECTED in part as to Plaintiff’s First Amendment claims that could be
construed as retaliation claims and are not otherwise barred by the statute of
limitations. ECF No. 103, at 29.
3. This Court does not direct entry of judgment under Rule 54(b).
4. The case is remanded to the Magistrate for further proceedings on
Plaintiff’s First Amendment retaliation claims consistent with this order.
SO ORDERED on January 10, 2017.
s/Mark E. Walker
United States District Judge

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