Filed: Mar. 03, 2017
Latest Update: Mar. 03, 2017
Summary: ORDER MARTIN REIDINGER , District Judge . THIS MATTER is before the Court on the Defendants' Motion to Dismiss [Doc. 8] and the Magistrate Judge's Memorandum and Recommendation [Doc. 14] regarding the disposition of that motion. Pursuant to 28 U.S.C. 636(b) and the standing Orders of Designation of this Court, the Honorable Dennis L. Howell, United States Magistrate Judge, was designated to consider the Defendants' motion to dismiss and to submit a recommendation for its disposition.
Summary: ORDER MARTIN REIDINGER , District Judge . THIS MATTER is before the Court on the Defendants' Motion to Dismiss [Doc. 8] and the Magistrate Judge's Memorandum and Recommendation [Doc. 14] regarding the disposition of that motion. Pursuant to 28 U.S.C. 636(b) and the standing Orders of Designation of this Court, the Honorable Dennis L. Howell, United States Magistrate Judge, was designated to consider the Defendants' motion to dismiss and to submit a recommendation for its disposition. O..
More
ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on the Defendants' Motion to Dismiss [Doc. 8] and the Magistrate Judge's Memorandum and Recommendation [Doc. 14] regarding the disposition of that motion.
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation of this Court, the Honorable Dennis L. Howell, United States Magistrate Judge, was designated to consider the Defendants' motion to dismiss and to submit a recommendation for its disposition.
On February 1, 2017, the Magistrate Judge filed a Memorandum and Recommendation in this case containing conclusions of law in support of a recommendation regarding the motion to dismiss. [Doc. 14]. The parties were advised that any objections to the Magistrate Judge's Memorandum and Recommendation were to be filed in writing within fourteen (14) days of service. The period within which to file objections has expired, and no written objections to the Memorandum and Recommendation have been filed.
After a careful review of the Magistrate Judge's Recommendation, the Court finds that the proposed conclusions of law are consistent with current case law. Accordingly, the Court hereby accepts the Magistrate Judge's recommendation that the motion to dismiss be granted in part and denied in part.
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation [Doc. 14] is ACCEPTED, and the Defendants' Motion to Dismiss [Doc. 8] is GRANTED IN PART and DENIED IN PART. Specifically, the Defendants' Motion to Dismiss [Doc. 8] is GRANTED as follows:
(1) The Plaintiff's § 1983 claims against Sheriff Norman and the § 1983 claims against Defendants Byers and Fitch in their official capacities are hereby DISMISSED WITHOUT PREJUDICE;
(2) The Plaintiff's § 1983 claims for excessive force asserted against Defendant Fitch in his individual capacity are DISMISSED;
(3) The Plaintiff's claims against Defendant Ascension Insurance Agency, Inc. are DISMISSED; and
(4) The Plaintiff's claims arising under state law for assault and battery against Defendant Fitch are DISMISSED..
IT IS FURTHER ORDERED that in all other respects, the Defendants' Motion to Dismiss [Doc. 8] is DENIED.
IT IS FURTHER ORDERED that the Plaintiff shall have sixty (60) days from the entry of this Order to perfect service of process as to Defendant Byers.
IT IS SO ORDERED.
