Opinion
CV 110-109.
August 22, 2011
ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which no objections have been filed. Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Defendants' motion to dismiss (doc. no. 13) is GRANTED IN PART and DENIED IN PART. Plaintiff's individual capacity claims for compensatory and punitive damages are DISMISSED without prejudice, and Defendants' motion to dismiss is DENIED with respect to Plaintiff's claim for nominal damages and injunctive and declaratory relief against all Defendants in their individual capacities.
The Court notes that in the discussion concerning the availability of nominal damages for Plaintiff's claim, there is a reference to the test for failure to state a claim set out inConley v. Gibson, 355 U.S. 41, 45-46 (1957). (Doc. no. 15, p. 8.) The Court is aware that the Conley standard has been superceded by the standards set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949 (2009). Nevertheless, in the context of the analysis that the demand for relief is not part of Plaintiff's claim, the conclusion in the Report and Recommendation that a claim for nominal damages should not be dismissed in this case stands undisturbed, regardless of which standard is applied.
Defendants shall submit their answer within fourteen (14) days of this Order.
SO ORDERED.