Summary
finding that Wilcox State Prison may not be sued under §1983
Summary of this case from Boatwright v. Macon State PrisonOpinion
Civil Action No. 5:05-cv-347 (CAR).
August 2, 2006
ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is the recommendation (Doc. 7) of the United States Magistrate Judge that the above-captioned case be dismissed pursuant to 28 U.S.C. § 1915(e)(2). Upon this Court's review of the recommendation and the objections of the Plaintiff, the recommendation is ADOPTED, in part, and REJECTED, in part. For the reasons set forth in the recommendation, it is the Order of the Court that all claims are to be dismissed with the exception of Plaintiff's claims against Defendant Willie Hollie, in his individual capacity, for excessive use of force. Dismissal for failure to state a claim is warranted only where it is demonstrated "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005). In this case, it is possible that Plaintiff will be able to prove facts to support his allegation that Hollie ordered and/or participated in the excessive use of force against Plaintiff in removing him from his cell. Accordingly, dismissal of that claim is unwarranted at this stage of the proceedings. Plaintiff's case may proceed as an excessive force claim against Defendant Hollie, and all other claims and defendants are dismissed.
SO ORDERED.