Wickner v. Bender et al

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATIONS - Defendants Robert Bender, Thomas Cherro, Jeff Laine, Kevin Dreher, Jason Furey, and Tyler Rosen's objections (Doc. No. 52 ) to Magistrate Judge Franklin L. Noel's July 19, 2018 Report and Recom mendation are OVERRULED. Magistrate Judge Franklin L. Noel's July 19, 2018 Report and Recommendation (Doc. No. 49 ) is ADOPTED. Defendants Robert Bender, Thomas Cherro, Jeff Laine, Kevin Dreher, Jason Furey, and Tyler Rosens motion to dismiss Plaintiff Lance Wickner's Amended Complaint (Doc. No. 40 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 9/11/2018. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Lance Wickner,

Civil No. 12-1452 (DWF/HB)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Robert Bender, Thomas Cherro,
Jeff Laine, Kevin Dreher,
Jason Furey, and Tyler Rosen,
Defendants.

This matter is before the Court upon Defendants Robert Bender, Thomas Cherro,
Jeff Laine, Kevin Dreher, Jason Furey, and Tyler Rosen’s (“Defendants”) objections
(Doc. No. 52) to Magistrate Judge Franklin L. Noel’s July 19, 2018 Report and
Recommendation (Doc. No. 49) insofar as it recommends that Defendants’ motion to
dismiss Plaintiff Lance Wickner’s Amended Complaint be denied.
The factual background for the above-entitled matter is clearly and precisely set
forth in the Report and Recommendation and is incorporated by reference for purposes of
Defendants’ objections. In the Report and Recommendation, the Magistrate Judge
determined, taking Plaintiff’s allegations as true and affording all inferences in his favor,
that he has alleged enough plausible facts to state claims for excessive force and
deliberate indifference to a serious medical need, and further that Defendants failed to
meet their burden to show that they are entitled to qualified immunity.

Finally, the

Magistrate Judge concluded that Plaintiff has alleged sufficient facts to proceed with a

claim for punitive damages. Defendants object to the Magistrate Judge’s Report and
Recommendation, arguing that Plaintiff fails to state claims for excessive force or
deliberate indifference to serious medical needs.

Moreover, Defendants argue that even

if Plaintiff states valid claims, Defendants are entitled to qualified immunity and that
Plaintiff’s punitive damages claim should be dismissed.
The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). After this review, the Court finds no reason that would warrant a
departure from the Magistrate Judge’s recommendations.

The Magistrate Judge

correctly concluded that Plaintiff has sufficiently pleaded claims for excessive force and
deliberate indifference to a serious medical need. Moreover, Defendants failed to
establish at this stage of the litigation that they are entitled to qualified immunity or that
Plaintiff’s claim for punitive damages cannot proceed.

Based upon the de novo review

of the record and all of the arguments and submissions of the parties and the Court being
otherwise duly advised in the premises, the Court hereby enters the following:
ORDER
1.

Defendants Robert Bender, Thomas Cherro, Jeff Laine, Kevin Dreher,

Jason Furey, and Tyler Rosen’s objections (Doc. No. [52]) to Magistrate Judge
Franklin L. Noel’s July 19, 2018 Report and Recommendation are OVERRULED.
2.

Magistrate Judge Franklin L. Noel’s July 19, 2018 Report and

Recommendation (Doc. No. [49]) is ADOPTED.

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3.

Defendants Robert Bender, Thomas Cherro, Jeff Laine, Kevin Dreher,

Jason Furey, and Tyler Rosen’s motion to dismiss Plaintiff Lance Wickner=s Amended
Complaint (Doc. No. [40]) is DENIED.
Dated:

September 11, 2018

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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