United States District Court, Southern District of Alabama, Southern Division
March 23, 2015
CHRISTOPHER LEE PRICE, Plaintiff,
WILLIAM G. SHARP, JR., ACTING COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, in his official capacity, et al., Defendants.
KRISTI K. DuBOSE, UNITED STATES DISTRICT JUDGE.
After due and proper consideration of the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated February 24, 2015, is ADOPTED, in part, as follows, as the opinion of this Court.
The Court adopts Part A, B, and D. However, as to Part C and the conclusion, when Magistrate Judge Cassady issued his thorough report and recommendation he did not have the benefit of Gissendaner v. Commissioner, Georgia Dept. of Corrections, ___F.3d ___, 2015 WL 859534 (11th Cir. March 2, 2015). The Court will withhold ruling for thirty (30) days on the current motion to dismiss (based on failure to state a claim), to allow the Plaintiff to file a motion to amend the complaint. The motion should include a proposed amended complaint with sufficient facts addressing the second prong of Baze v. Rees, 553 U.S. 35, 50–52, 128 S.Ct. 1520, 1531–32, 170 L.Ed.2d 420 (2008) (plurality opinion)(Plaintiff must show that there are “known and available alternatives” that are “feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.”)
If an amended complaint is allowed, the previously filed motion to dismiss based on failure to state a claim will be determined to be moot.