United States District Court, Northern District of Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
The magistrate judge filed a report and recommendation on February 2, 2015, recommending that the motions for summary judgment filed by defendants Johnson and Miles be GRANTED IN PART and DENIED IN PART. With regard to the Fourth Amendment constitutional claims against the defendants, the magistrate judge recommended that defendant Johnson’s motion for summary judgment be GRANTED to the extent the plaintiff alleges Johnson initially pursued him, subdued him and refused to loosen his handcuffs, and DENIED to the extent the plaintiff alleges Johnson utilized excessive force by gratuitously punching the plaintiff in the face and ribs while he lay compliant and prostrate on the ground. The magistrate judge further recommended that defendant Miles’s motion for summary judgment be DENIED in connection with the plaintiff’s Fourth Amendment failure to intervene/excessive force claim against him.
As to the state law claims against the defendants, the magistrate judge recommended that summary judgment be GRANTED to defendants Johnson and Miles as to the plaintiff’s claims of intentional and negligent infliction of emotional distress, and DENIED as to the plaintiff’s claims of assault and battery.
On February 18, 2015, the defendants filed objections to the report and recommendation. (Docs. 39 & 40). The plaintiff filed no objections to the report and recommendation. On March 6, 2015, the undersigned entered an order acknowledging the defendants’ objections, and directed that “[a]ny response to those objections . . . be filed within 14 days.” (Doc. 41). No response has been filed to the defendants’ objections.
I. The defendants’ objections
The defendants’ objections can be divided into three categories. Each will be addressed below.
A. The magistrate judge’s recommendations as to the plaintiff’s state law claims
Defendants Miles and Johnson argue the magistrate judge should not have addressed the plaintiff’s state law claims in the summary judgment report and recommendation because, on June 10 and June 17, 2013, the undersigned dismissed all claims against all defendants except the excessive force claims against defendants Miles and Johnson pursuant to 28 U.S.C. §1915A(b). (Doc. 39 at 5-6; Doc. 40 at 3-5). A review of the court record confirms the defendants’ positions. (Docs. 9 &10, “Partial Dismissal Orders”). Moreover, after de novo review of the entire case was conducted, the June 10 and June 17, 2013, dismissal orders adopted and accepted every aspect of the magistrate judge’s 28 U.S.C. §1915A report and recommendation entered May 6, 2013. (Id.; Doc. 9, “28 U.S.C. § 1915A Report and Recommendation”). Although that report and recommendation did not specifically mention the plaintiff’s state law claims, the plaintiff filed no objections to the recommended dismissal of all claims against all defendants except the excessive force claims against Miles and Johnson, and he did not move for reconsideration of the partial dismissal orders.
The plaintiff also did not file any response to the magistrate judge’s characterization of the remaining claims in this case as being excessive force claims against defendants Miles and Johnson in a July 1, 2013, Order for Special Report. (Doc. 12 at 2-3). Nor did he file a response to the defendants’ objections to the magistrate judge’s summary judgment report and recommendation. In both instances, the plaintiff was afforded an opportunity to clarify his claims or address the defendants’ objections, but failed to do so. He never has requested reconsideration of the dismissal of his state law claims.
As such, for the foregoing reasons, to the extent the magistrate judge’s summary report and recommendation recommends that summary judgment be granted in part and denied in part as to the plaintiff’s state law claims against the defendants, the report and recommendation is REJECTED. Pursuant to this court’s orders entered June 10 and June 17, 2013, the state law claims were dismissed pursuant to 28 U.S.C. § 1915A(b), and thus were no longer pending after those dates.
B. The plaintiff’s failure to comply with discovery orders
Defendants Miles and Johnson argue the magistrate judge should have recommended dismissal of the plaintiff’s case for failure to comply with discovery orders, or in the alternative, striking the plaintiff’s opposition to the defendants’ special reports. (Doc. 39 at 17-20; Doc. 40 at 5-8). The history of events giving rise to the defendants’ motion is as follows. In the July 1, 2013, Order for Special Report, the plaintiff was instructed that “[w]ithin twenty (20) days after the date of service of the special report, ” he was to file and serve upon the defendants his “initial disclosures, ” which were described as:
1. The name, employment position or title, and AIS number, if any, of every person having personal knowledge of the facts relevant to the claims asserted by the plaintiff or the defenses asserted by the defendant;
2. A clear and legible copy of all documents relevant to the claims or defenses asserted in the action, including all incident reports, disciplinary reports, classification or custody records as ...