Opinion
Civil Action No. 3:01-CV-1621-M
November 22, 2002
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
After making an independent review of the pleadings, files and records in this case, and the Findings, Conclusions and Recommendation of the United States Magistrate Judge, I am of the opinion that except as to Defendant C. Lee the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.
As to Defendant Lee, this Court sustains his objections to the Findings, Conclusions and Recommendation and grants summary judgment in his favor. The evidence establishes that Defendant Lee did not arrest the Defendant, but merely assisted in handcuffing him after other officers placed him under arrest. Although Mrs. Johnson said she heard the conversation between her husband and Deputy Maddox and Plaintiff believes that Defendant Lee also heard that conversation, that is pure speculation which is denied under oath by Lee. The Plaintiff produced no evidence that Defendant Lee used force which was excessive to the need and/or which was objectively unreasonable. Further, as to the state law assault claim, Plaintiff's contention is that Defendant Lee "stood by." That contention does not state a claim under state law.
IT IS, THEREFORE, ORDERED that the Findings, Conclusions and Recommendation of the United States Magistrate Judge are accepted, except as to Defendant C. Lee.
IT IS FURTHER ORDERED that the motions for summary judgment of Defendants Kevin Pederson, Kaufman County, Robert Harris and C. Lee are granted and Plaintiff's claims against these Defendants are dismissed with prejudice.
IT IS FURTHER ORDERED that the motions for summary judgment of Defendants Joe Maddox and Timothy Malone are denied.