Dwyer v. Corinth et al

Filing 61

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. Signed by Judge Michael H. Schneider on 11/17/2009. (pad, )

United States District Court
E A S T E R N DISTRICT OF TEXAS S H E R M A N DIVISION

DEANNA DWYER, INDIVIDUALLY AND AS NEXT FRIEND FOR BLAKE DWYER, A MINOR V. CITY OF CORINTH, TEXAS, A TEXAS HOME RULE CITY, DEBRA BRADLEY, CHIEF OF POLICE OF THE CITY OF CORINTH, KEVIN TYSON, A POLICE OFFICER FOR THE CITY OF CORINTH, CRAIG HUBBARD, A POLICE OFFICER FOR THE CITY OF CORINTH, CARSON CROWE, A POLICE OFFICER FOR THE CITY OF CORINTH, AND TASER INTERNATIONAL, INC.

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CASE NO. 4:09-CV-198 (Judge Schneider/Judge Mazzant)

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636. On October 23, 2009, the report of the Magistrate Judge was entered containing proposed findings of fact and recommendations that Defendants City of Corinth, Texas, Debra Bradley, Kevin Tyson, Craig Hubbert, and Carson Crow's Second Rule 12(c) Motion for Judgment on the Pleadings (Dkt. #50) should be granted in part and denied in part. Having received the report of the United States Magistrate Judge, and no objections thereto having been timely filed, this Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report as the findings and conclusions of the Court.

It is, therefore, ORDERED that 1. The motion to dismiss as to Plaintiff's claims against Chief Bradley in her official capacity is GRANTED. 2. The motion to dismiss as to Plaintiff's claims against Chief Bradley in her individual or personal capacity is GRANTED. 3. The motion to dismiss as to Plaintiff's claim for excessive force against officers Tyson, Hubbert and Crow is DENIED. 4. The motion to dismiss as to Plaintiff's claim for failure to intervene against officers Tyson, Hubbert and Crow is DENIED. 5. The motion to dismiss as to Plaintiff's claims for unlawful seizure/improper arrest against officers Tyson, Hubbert and Crow is GRANTED. 6. The motion to dismiss as to Plaintiff's § 1983 claims for improper training, supervision, discipline, and retention against the City of Corinth is DENIED. 7. The motion to dismiss as to Plaintiff's Texas Tort Claims Act claims against officers Tyson, Hubbert and Crow is GRANTED. 8. The motion to dismiss as to Plaintiff's Texas Tort Claims Act claims against the City of Corinth is GRANTED. 9. The motion to dismiss as to Plaintiff's § 1983 claims for improper training, supervision, discipline, and retention against the City of Corinth for punitive or exemplary damages is GRANTED. 10. The motion to dismiss as to Plaintiff's state-law claims against the City of Corinth for punitive or exemplary damages is GRANTED.

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The following causes of action remain: Plaintiff's claim for excessive force against officers Tyson, Hubbert and Crow. Plaintiff's claim for failure to intervene against officers Tyson, Hubbert and Crow. Plaintiff's § 1983 claims of improper training, supervision, discipline, and retention against the City of Corinth. IT IS SO ORDERED.
SIGNED this 17th day of November, 2009.

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____________________________________ MICHAEL H. SCHNEIDER UNITED STATES DISTRICT JUDGE

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