Opinion
Case No. 6:06-cv-716-Orl-22DAB.
June 4, 2007
ORDER
This cause is before the Court on the Motion to Dismiss Second Amended Complaint by Defendants Parker, Brown, Feaster, Seeley, and Abbey (Doc. No. 63), Defendant Circles of Care, Inc.'s Motion to Dismiss the Plaintiff's Second Amended Complaint (Doc. No. 64), Defendant Prison Health Services, Inc.'s Motion to Dismiss Second Amended Complaint (Doc. No. 65), and on Defendant Brevard County's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 66).
The United States Magistrate Judge has submitted a report recommending that the motion at Doc. No. 63 be granted in part and denied in part, and that the other motions be granted.
After an independent de novo review of the record in this matter, and noting that no objections were timely filed, the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation.
Therefore, it is ORDERED as follows:
1. The Report and Recommendation filed May 11, 2007 (Doc. No. 83) is ADOPTED and CONFIRMED and made a part of this Order.
The Court notes that the Magistrate Judge cited to Conley v. Gibson, 355 U.S. 41 (1957) in articulating the standard to apply in ruling on a motion to dismiss. Subsequent to the entry of the Report and Recommendation the Supreme Court set forth a somewhat heightened standard requiring a plaintiff to supply more than just any conceivable set of facts tending to support a claim, but "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. V. Twombly, ___ S. Ct. ___, 2007 WL 1461066, at *11, 14 (May 21, 2007). This change in law does not affect the Magistrate Judge's reasoning that certain claims do not meet the less stringent standard.
2. The Motion to Dismiss Second Amended Complaint by Defendants Parker, Brown, Feaster, Seeley, and Abbey (Doc. No. 63) is GRANTED, in part and DENIED, in part. Count XII (against the Officers) is hereby DISMISSED. This action shall go forward on Counts I, II, III, and IV against the Sheriff. The Clerk is directed to terminate all of the Officers, except Jack Parker as Sheriff of Brevard County, Florida.
3. Defendant Circles of Care, Inc.'s Motion to Dismiss the Plaintiff's Second Amended Complaint (Doc. No. 64) is GRANTED. Count VII is hereby DISMISSED. The Clerk is directed to terminate Circles of Care Inc. as a party to this action.
4. Defendant Prison Health Services, Inc.'s Motion to Dismiss Second Amended Complaint (Doc. No. 65) is GRANTED. Count VI is hereby DISMISSED. The Clerk is directed to terminate Prison Health Services, Inc. as a party to this action.
5. Defendant Brevard County's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 66) is GRANTED. Count V is hereby DISMISSED. The Clerk is directed to terminate Brevard County, Florida as a party to this action.
6. The Clerk is directed to terminate Mike Harris as a party to this action because the Second Amended Complaint includes no Count against him.
7. Sheriff Jack Parker shall file his answer and any affirmative defenses to Counts I, II, III, and IV by June 22, 2007.
DONE and ORDERED in Chambers, in Orlando, Florida.