Sanchez v. Hialeah Police Department et al

Filing 97

ORDER adopting Report and Recommendations re 86 Defendants' Motion for Summary Judgment. Signed by Judge Marcia G. Cooke on 3/7/2009. (lc1)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21139-CIV-COOKE/WHITE ERIK SANCHEZ Plaintiff, v. HIALEAH POLICE DEPARTMENT, et al., Defendants. ____________________________________/ ORDER ADOPTING JUDGE WHITE'S REPORT AND RECOMMENDATION This matter is before me on Judge White's Report and Recommendation [D.E. 86] and Defendants R. Del Nodal's and L. Garrido's Objections to Report [D.E. 90]. I have conducted a de novo review of the record, which included Plaintiff Erik Sanchez's Third Amended Complaint and Motion for Detailed Damage Claims, Defendants' Motion for Summary Judgment, Judge White's Report, and Defendants' Objections to Report. Defendants allege that there are no disputed questions of material facts and that the Report fails to allege that, pursuant to Fla. Stat. § 776.085, Plaintiff cannot recover damages due to his conviction for a forcible felony. Having reviewed the Third Amended Complaint and the Motion for Detailed Damage Claims, I find that there are genuine issues as to material facts, as outlined in Judge White's Report. [D.E. 34, 41]. Defendants' argument regarding Fla. Stat. § 776.085, however, needs to be more fully briefed. Therefore, I find that Judge White's Report should be affirmed and adopted to the extent that the Motion for Summary Judgment is denied without prejudice to the Defendants to revisit

the issue of the viability of Plaintiff's cause of action considering Fla. Stat. § 776.085 and considering that Plaintiff's conviction was based on a plea bargain as opposed to a jury verdict. DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of March 2009.

cc: All counsel of record Erik Sanchez, pro se Plaintiff DC # 404103 Everglades Correctional Institution P.O. Box 949000 Miami, Florida 33194

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