Opinion
CIVIL ACTION NO. 06-4289, SECTION "I" (4).
September 19, 2007
ORDER
The Court, having considered the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the objection by defendants, Lieutenant Corbert Hunt, Lieutenant Vernon Smith and Lieutenant Wade Rigdon, which is hereby OVERRULED, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter. Therefore,
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. No. 15) filed by the defendants, Lieutenant Corbert Hunt, Lieutenant Vernon Smith, and Lieutenant Wade Rigdon, and the Motion to Dismiss (Rec. Doc. No. 28) filed by defendant Sergeant John Odom, is GRANTED in part in so far as the motions seek dismissal of the plaintiff's claims against the defendants in their official capacities and seeks as relief a transfer to another facility and DENIED in part in so far as the motions seek dismissal of the excessive force claims under the Heck doctrine and for failure to state an excessive force claim under the Eighth Amendment. IT IS FURTHER ORDERED that the Title 42 U.S.C. § 1983 claims filed by the plaintiff, John Cyrio, against the defendants, Hunt, Smith, Rigdon, and Odom, in their official capacities, are DISMISSED WITHOUT PREJUDICE for failure to state a claim for which relief can be granted and for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), (6).
IT IS FURTHER ORDERED that Cyrio's request for a transfer to another facility be DISMISSED WITH PREJUDICE for failure to state a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
IT IS FURTHER ORDERED that Cyrio's § 1983 claims against the defendants, Hunt, Smith, Rigdon, and Odom, for excessive force in violation of the Eighth Amendment are to proceed and remain referred to the Magistrate Judge for further pretrial proceedings.