Ho v. Jett et al

Filing 80

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. The Federal Defendants' objections (Doc. No. 76 ) to Magistrate Judge Leo I. Brisbois's January 27, 2014 Report and Recommendation are OVERRULED. 2. Magistrate Judge Leo I. Brisbois's Jan uary 27, 2014 Report and Recommendation (Doc. No. 75 ) is ADOPTED AS MODIFIED.3. The Federal Defendants' Motion to Dismiss, or, in the Alternative, for Summary Judgment (Doc. No. 41 ) is GRANTED IN PART and DENIED IN PART as follows: a. To th e extent the Federal Defendants seek dismissal of the claims pertaining to Defendants Lewis and Gora's alleged deliberate indifference to Plaintiff's serious medical need, the motion is DENIED. To the extent the Federal Defendants seek sum mary judgment on those claims, the motion is DENIED on the current record WITHOUT PREJUDICE to renewing the motion after the close of discovery. b. To the extent the Federal Defendants seek dismissal of the claims pertaining to the Federal Defendants ' alleged deliberate indifference to the need to protect Plaintiff from a substantial risk of harm, the motion is GRANTED, and such claims are DISMISSED WITHOUT PREJUDICE. To the extent the Federal Defendants seek summary judgment on those claim s, the motion is DENIED AS MOOT. c. To the extent the Federal Defendants seek dismissal of the Bivens claims against Defendants Jett, Lappin, and Nalley pertaining to the transfer of Defendant Dugan to FMC-Rochester, the motion is GRANTED, and such c laims are DISMISSED WITHOUT PREJUDICE. To the extent the Federal Defendants seek summary judgment on those claims, the motion is DENIED AS MOOT. d. To the extent the Federal Defendants seek dismissal of the Bivens claims against Defendants Jett and Tolliver pertaining to the placement of Plaintiff in solitary confinement, the motion is GRANTED, and such claims are DISMISSED WITHOUT PREJUDICE. To the extent the Federal Defendants seek summary judgment on those claims, the motion is DENIED AS MOO T. e. To the extent the Federal Defendants seek dismissal of Bivens and 42 U.S.C. § 1985 conspiracy claims against them, the motion is GRANTED, and such claims are DISMISSED WITHOUT PREJUDICE. To the extent the Federal Defendants seek summary judgment on those claims, the motion is DENIED AS MOOT.(Written Opinion). Signed by Judge Donovan W. Frank on 3/11/2014. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Eric Ho,

Civil No. 13-245 (DWF/LIB)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Brian Jett, Warden of FMC Rochester, individually;
Harley G. Lappin, BOP Director, individually;
Correctional Officer Lewis; Correctional Officer
Gora; John Doe, Federal Employees of the BOP
and/or FMC-Rochester, individually; Jane Doe,
Federal Employees of the BOP and/or FMC-Rochester,
individually; Dewayne Dugan; Lieutenant D. Tolliver;
North Central Regional Director, individually; and
Paul M. Laird, North Central Regional Director,
individually,
Defendants.

This matter is before the Court upon the Federal Defendants’ objections (Doc.
No. 76) to Magistrate Judge Leo I. Brisbois’s January 27, 2014 Report and
Recommendation (Doc. No. 75) insofar as it recommends that the Amended Complaint
not be dismissed against Defendants Gora and Lewis and that summary judgment not be
entered in their favor. Plaintiff Eric Ho (“Plaintiff”) filed a response to the Federal
Defendants’ objections (Doc. No. 78) and a declaration (Doc. No. 79) on February 24,
2014.
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). 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 the Federal Defendants’ objections. Having carefully reviewed the
record, the Court concludes that the objections do not warrant departure from the
Magistrate’s Recommendation, as modified below.
The Federal Defendants generally challenge Magistrate Judge Brisbois’s
recommendation with respect to the claims asserted against Defendants Gora and Lewis.
Defendants Gora and Lewis object, in part, to the Magistrate’s failure to address their
motion for summary judgment on the merits and to consider the declarations submitted in
support thereof. The Court agrees with Magistrate Judge Brisbois that, at this early stage,
Plaintiff has stated plausible claims against Defendants Gora and Lewis for deliberate
indifference to Plaintiff’s serious medical need. The Court, however, also addresses the
Federal Defendants’ summary judgment motion with regard to those claims on the merits
and has considered the record evidence pertaining to those claims. Having reviewed the
relevant declarations (see, e.g., Doc. Nos. 46 & 48), including Plaintiff’s affidavit (Doc.
No. 79), the Court finds that genuine issues of material fact exist as to the particular
circumstances surrounding the alleged sexual assault and concludes that Defendants Gora
and Lewis have not established that they are entitled to qualified immunity at this time.
As such, with respect to Defendants Gora and Lewis, the Court denies the Federal
Defendants’ motion to dismiss and denies the Federal Defendants’ motion for summary
judgment without prejudice.
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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.

The Federal Defendants’ objections (Doc. No. [76]) to Magistrate Judge

Leo I. Brisbois’s January 27, 2014 Report and Recommendation are OVERRULED.
2.

Magistrate Judge Leo I. Brisbois’s January 27, 2014 Report and

Recommendation (Doc. No. [75]) is ADOPTED AS MODIFIED.
3.

The Federal Defendants’ Motion to Dismiss, or, in the Alternative, for

Summary Judgment (Doc. No. [41]) is GRANTED IN PART and DENIED IN PART
as follows:
a.

To the extent the Federal Defendants seek dismissal of the

claims pertaining to Defendants Lewis and Gora’s alleged deliberate
indifference to Plaintiff’s serious medical need, the motion is DENIED. To
the extent the Federal Defendants seek summary judgment on those claims,
the motion is DENIED on the current record WITHOUT PREJUDICE to
renewing the motion after the close of discovery.
b.

To the extent the Federal Defendants seek dismissal of the

claims pertaining to the Federal Defendants’ alleged deliberate indifference
to the need to protect Plaintiff from a substantial risk of harm, the motion is
GRANTED, and such claims are DISMISSED WITHOUT
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PREJUDICE. To the extent the Federal Defendants seek summary
judgment on those claims, the motion is DENIED AS MOOT.
c.

To the extent the Federal Defendants seek dismissal of the

Bivens claims against Defendants Jett, Lappin, and Nalley pertaining to the
transfer of Defendant Dugan to FMC-Rochester, the motion is GRANTED,
and such claims are DISMISSED WITHOUT PREJUDICE. To the
extent the Federal Defendants seek summary judgment on those claims, the
motion is DENIED AS MOOT.
d.

To the extent the Federal Defendants seek dismissal of the

Bivens claims against Defendants Jett and Tolliver pertaining to the
placement of Plaintiff in solitary confinement, the motion is GRANTED,
and such claims are DISMISSED WITHOUT PREJUDICE. To the
extent the Federal Defendants seek summary judgment on those claims, the
motion is DENIED AS MOOT.
e.

To the extent the Federal Defendants seek dismissal of Bivens

and 42 U.S.C. § 1985 conspiracy claims against them, the motion is
GRANTED, and such claims are DISMISSED WITHOUT
PREJUDICE. To the extent the Federal Defendants seek summary
judgment on those claims, the motion is DENIED AS MOOT.

Dated: March 11, 2014

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