Riess v. City of Broward County, FL et al
Filing
42
ORDER ON MAGISTRATE JUDGE'S REPORT denying 28 Motion to Dismiss; denying as moot 32 Motion to Amend/Correct; adopting Report and Recommendations 36 . Signed by Judge Ursula Ungaro on 5/20/2010. (lh)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 10-60228-CIV-UNGARO GARY R. RIESS, Plaintiff, v. IAN SKLAR, et al., Defendants. ________________________/ ORDER ON MAGISTRATE JUDGE'S REPORT THIS CAUSE is before the Court upon Defendants Sklar's and Robson's Motion to Dismiss, filed April 19, 2010 (D.E. 28); also before the Court is Plaintiff's Motion to Amend/Supplement Complaint, filed April 27, 2010 (D.E. 32). The cause was referred to Magistrate Judge Patrick A. White, who, on April 19, 2010, issued a Report recommending that Defendants' Motion be denied and that Plaintiff's Motion be denied as moot. (D.E. 36.) THE COURT has considered the Motion and the pertinent portions of the record and is otherwise fully advised in the premises. By way of background, Plaintiff filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 on February 17, 2009. (D.E. 1.) In his Complaint, Plaintiff alleges that the Defendants violated his Fourth Amendment right to be free from excessive force when they permitted a police dog to attack Plaintiff during the course of his arrest. (D.E. 1.) Defendants argue in their Motion that Plaintiff has failed to state a claim upon which relief may be granted. They further argue that his Complaint should be stayed pending the outcome of Plaintiff's criminal case, as it will impact upon the instant action. Finally, Defendants assert that the Complaint should be dismissed because they are entitled to qualified immunity. (D.E. 28.)
After a review of the Complaint, and accepting the facts as pleaded as true, the Magistrate Judge concluded that Plaintiff alleged sufficient facts to state a claim pursuant to 42 U.S.C. § 1983. Further, the Magistrate Judge recommended denying Defendants' Motion to stay the proceedings pending the outcome of Defendant's criminal case, because the instant action and Defendant's criminal charges are not sufficiently related to warrant a stay. Finally, the Magistrate Judge concluded that, at this early stage of the proceedings, the facts are insufficient to determine whether Defendants are entitled to qualified immunity and recommended denying their Motion on this basis. In his Report, the Magistrate Judge also recommended denying as moot Plaintiff's Motion to Amend Complaint, as it merely restates the claims raised in his original Complaint. The parties were afforded the opportunity to file objections to the Magistrate Judge's Report; however, no objections were filed. The matter is now ripe for review. Accordingly, having conducted a de novo review of the record, it is hereby ORDERED AND ADJUDGED that the Magistrate Judge's Report (D.E. 36) is RATIFIED, ADOPTED, and AFFIRMED. The Defendants' Motion to Dismiss (D.E. 28) is DENIED. Plaintiff's Motion to Amend/Supplement Complaint (D.E. 32) is DENIED AS MOOT. DONE and ORDERED in Chambers, at Miami, Florida this _20th__day of May, 2010.
_______________________________ URSULA UNGARO UNITED STATES DISTRICT JUDGE copies provided: Gary R. Riess, pro se Counsel of record
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