Opinion
Case No. 3:06cv351/RV/EMT.
February 9, 2007
ORDER
This cause comes on for consideration upon the magistrate judge's report and recommendation dated January 10, 2007. Plaintiff has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of all timely filed objections.
Having considered the report and recommendation, and all objections thereto timely filed, I have determined that the report and recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order.
2. Plaintiff's claims against Chapter 33-601 of the Florida Administrative Code are DISMISSED with prejudice as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
3. Plaintiff's claims against the State of Florida, Santa Rosa Correctional Institute (SRCI), State Classification, and the individual Defendants in their official capacities are DISMISSED with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii), for Plaintiff's seeking monetary relief against Defendants who are immune from such relief.
4. Plaintiff's claims against the Warden of SRCI, Assistant Warden of SRCI, Inspector at SRCI, and Defendant Culpepper are DISMISSED with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim on which relief may be granted.
5. Plaintiff's claim against the unidentified white officer and Plaintiff's claims against Officer Hawthorn arising out of conduct that occurred after August 15, 2006, are DISMISSED without prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon which relief may be granted (failure to exhaust administrative remedies).
6. Plaintiff's remaining claims against Defendant Hawthorn, as well as Plaintiff's claims against Defendants Dean, Hernandez, Howard, and McCraig are DISMISSED with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
7. The following Defendants are dismissed from this lawsuit: Chapter 33-601, State of Florida, SRCI, State Classification, Warden of SRCI, Assistant Warden of SRCI, Inspector at SRCI, Z. Culpepper, unidentified white officer, Sgt. Dean, Officer J. Hawthorn, Lt. Hernandez, Nurse Howard, and Nurse McCraig.
8. The matter shall be remanded to the assigned Magistrate Judge for further proceedings on the following claims:
a. Defendants Lt. Leavins, W.R. Sutton, and J.B. Johnson violated Plaintiff's constitutional rights by using excessive force against him on January 24, 2006;
b. Defendants W.L. Gielow and D.T. Sanford violated Plaintiff's due process rights during the disciplinary proceeding held on January 31, 2006.
DONE AND ORDERED.