IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CEDRIC SCOTT,

#236991

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 14-308-CG-M

 :

ROBERT GOLDEN, et al.,

 :

Defendants. :

REPORT AND RECOMMENDATION

This action is before the Court on Plaintiff’s Complaint,1

(Doc. 5), Defendants’ Motion to Dismiss, (Doc. 31), Plaintiff’s 

Response in Opposition thereto, (Doc. 33), and Defendants’ 

Reply. (Doc. 35). After consideration, and for the reasons set 

forth herein, it is recommended that Defendants’ Motion be 

granted, and Plaintiff’s Complaint be dismissed with prejudice 

for failure to state a claim upon which relief can be granted.

I. Facts and Proceedings

Plaintiff is currently incarcerated at Kilby Correctional 

Facility; however the events for which he complains occurred 

during his arrest, prior to his incarceration. As Defendants, 

Plaintiff names Officer Robert Golden (“Defendant Golden) and 

 

1 After filing his original Complaint, (Doc. 1), on an outdated 

form, Plaintiff was instructed to file on this Court’s current 

form, which he did on July 31, 2014. (Docs. 3, 5). 

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Officer Jonathan Rabeau (“Defendant Rabeau”). The Court 

summarizes the facts as follows. 

On July 10, 2013, Plaintiff was arrested by Prichard Police 

Officer Jonathan Rabeau and Officer James (not named as a 

defendant) on charges of “trafficking illegal drugs, escape III, 

possession of a control[led] substance, loitering, resisting 

arrest, disorderly conduct, and attempting to elude the police.2 

(Doc. 5 at 4). During the course of his arrest, Plaintiff was 

handcuffed and placed in the back seat of the police car, and 

escorted to the police station. (Id. at 4, 8). En route to the 

police station, Plaintiff began complaining of chest pains to 

Defendant Rabeau and Officer James. (Id. at 8). Once they 

arrived at the station, the officers called the fire department

to provide medical care to Plaintiff for his alleged chest 

pains. (Id.). Plaintiff contends the firefighters “spoke to 

[him] with vile language[, and] after he perceived their 

attitudes, [Plaintiff] told them that he didn’t want any of 

there [sic] assistance, consequently causing Plaintiff to 

maintain complete silence from that point.” (Id.). Having 

refused treatment, the firefighters left; Plaintiff states he 

 2 The Court deducts from the record that Plaintiff was 

initially arrested for multiple serious felonies, including 

trafficking, possession of a controlled substance, loitering, 

and disorderly conduct. It appears the remaining charges of 

escape III, resisting arrest and attempting to elude the police 

were added after the present altercation concluded.

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continued to suffer chest pains and voiced his ongoing need for 

medical care to the officers present. (Id.). The “defending 

officers then told Plaintiff that he had missed his chance 

because the firefighters had tried to help him but he wouldn’t 

allow them. Plaintiff then told the defending officers that the 

firefighters had a nasty attitude, so he did not trust them to 

help him, furthermore they wasn’t [sic] trained medical 

practitioners, [to which] the officers [] stated ‘O [sic] well.” 

(Id.). 

Plaintiff, thinking he was being treated unfairly by not 

getting adequate medical attention, quickly grew hostile and 

kicked out the “door window in the back seat of the police car 

from the inside. After a few kicks[,] the window burst out, and 

that’s when Plaintiff started to shout out [sic] the car, ‘I 

need medical attention! My chest hurt!’” (Id. at 9). About 

“six or seven officers ran out of the police station toward the 

car [and allegedly began] to mock [] Plaintiff with taunts and 

laughter.” (Id.). Plaintiff cursed and spit at the officers 

causing Defendant Golden to take a “very hard object off his

belt and [throw] it through the broken window into the back seat 

of the patrol car, it [sic] hitting Plaintiff in the mouth, 

knocking [him] unconscious for a few seconds and also knocking 

one of this teeth out and causing three of them to be knocked 

loose, and also pushing his gum line back.” (Id.). Plaintiff 

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further states that, as he regained consciousness, he awoke to 

Defendant Rabeau “spraying him with a can of mace (pepper spray) 

through the window [until] Plaintiff was drenched in spray.” 

(Id.). Plaintiff “cough[ed] and cr[ied] out to God” as other 

officers mocked him. 

The paramedics were called to the scene and they took 

Plaintiff to U.S.A. Medical Center where he was treated with a 

CAT scan, MRI, X-rays and stitches over the course of a few 

hours. (Id. at 9-10). Plaintiff was released from medical care 

and escorted by Defendant Rabeau and Officer James to Mobile 

County Metro Jail (“Metro”) where he was booked for the abovementioned list of criminal charges. (Id. at 10). Plaintiff 

alleges internal affairs opened an investigation on the incident 

documenting his injuries with photographs two days after he was 

booked into Metro Jail custody. (Id.). Plaintiff states that 

since the incident occurred, he has had to have three loosened 

teeth removed due to the fact that they would not heal, and bone 

“gristle” protruding out of his gums shaved down. (Id.). 

Plaintiff states there are USA Medical Center and Metro Jail 

medical records to support his allegations, but he provides 

records from neither facility to the Court. 

Against Defendant Golden, Plaintiff alleges claims of 

retaliation, deliberate indifference, and excessive force in his 

individual and official capacity because “Defendant assaulted 

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Plaintiff while Plaintiff was secured in handcuffs and allowed

lower ranking officer to assault him without entervening [sic] 

because Plaintiff kick [sic] the windows out.” (Doc. 5 at 5). 

Plaintiff contends that Defendant Golden “should not have acted 

in such a callous indifference [sic] with a force not necessary 

do [sic] to the fact [that] Plaintiff was restrained in 

handcuffs to the back at the time and furthermore, Plaintiff was 

secured in the back of the patrol car multiple feet away from 

the Defendants. Therefore, Defendant should be held accountable 

for ‘excessive force’ that he used unnecessary [force] against 

the Plaintiff[.] Moreover, the Defendant allowed lower ranking 

officer Jonathan Rabeau to spray multiple burstes [sic] of 

pepper spray on Plaintiff for no just reason and did nothing to 

stop him, which puts Defendant well in the range of deliberate 

indifference.” (Doc. 5 at 13-14). 

Against Defendant Rabeau, Plaintiff alleges excessive force 

and retaliation in his individual and official capacity because 

“Defendant sprayed mase [sic] all over Plaintiff while he was 

secured in the back of the police car in handcuff [sic] because 

Plaintiff kicked windows out.” (Doc. 5 at 5, 15). For relief, 

Plaintiff prays for “all of the damages in the amount of 

$999,999.96.” 

Defendants filed their Motion to Dismiss asserting that 

Plaintiff’s Complaint is due to be dismissed because his 

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conclusory allegations are insufficient under the pleading 

standards of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 

(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Specifically, Defendants claim that Plaintiff fails to 

state a claim upon which relief can be granted, and the 

Complaint should be dismissed as such. Defendants point to the 

“reasonable inference” standard set out by the Supreme Court in 

Ashcroft, which states that “A claim has facial plausibility 

when a plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for 

the misconduct alleged.” Ashcroft at 678. 

Regarding Plaintiff’s deliberate indifference to his 

serious medical needs claims, Defendants set out that Plaintiff 

must prove two components, objective and subjective components, 

to establish deliberate indifference: 1) that he experienced an 

objectively serious medical need and 2) that the officers acted 

with deliberate indifference to that need. (Doc. 31-1 at 4). 

Applying these elements to Plaintiff’s allegations, Defendants 

note that Plaintiff fails to state a claim since he admits 

multiple times in his Complaint that Defendants took numerous 

steps to secure medical care for him, even though he chose to 

refuse that medical care on at least one occasion. Therefore, 

Defendants conclude that Plaintiff’s medical care admissions 

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make liability for deliberate indifference to his serious 

medical needs an impossibility. 

Next, Defendants state that Plaintiff is unable to state 

colorable claims for excessive force, and those claims should

also be dismissed pursuant to Rule 12(b)(6) of the Federal Rules 

of Civil Procedure. Defendants set out that excessive force 

claims are governed by the Fourth Amendment’s objective 

reasonableness standard during an arrest. This standard asks 

whether the officers’ actions are objectively reasonable in the 

light of the facts and circumstances confronting them without 

regards to their underlying intent or motivation. Defendants 

further set out multiple factors (discussed below) to be 

considered when analyzing an excessive force claim and conclude,

based on those factors, that Defendants’ use of force was indeed 

objectively reasonable under the circumstances. Therefore, 

Defendants contend that Plaintiff fails to state a claim for 

excessive force under the Fourth Amendment. 

Defendants also analyze whether they are entitled qualified 

immunity for their acts; however, since the Court concludes, 

based on its research and analysis below, that Plaintiff fails 

to state a claim upon which relief can be granted, the Court 

will leave immunity unaddressed. 

Plaintiff responded to Defendants’ Motion to Dismiss by 

asserting that the Court should apply the standard of review for 

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summary judgment motions to the pending Motion to Dismiss. 

(Doc. 33). Plaintiff also states that he filed an “Amended 

Complaint so that the Court can see all of the facts” (Doc. 33 

at 2); however, the Court notes that Plaintiff filed a Motion to 

Amend his Complaint, (Doc. 34), without attaching a copy of the 

proposed amendments, and his Motion to Amend was denied for that 

reason. (See Endorsed Order docket entry 36). Thus, the Court 

will use his original Complaint, (Doc. 5), to discern his 

claims.

Plaintiff further contends that because Defendants “did not 

submit the medical report, the arresting complaint or narrative, 

and all the officer [sic] on the scene and their statements,” 

the Court can in “no way draw[] all justifiable inferences[, 

and] furthermore, the defendants have not stated that internal 

affairs has pictures of the incident a day or three days later, 

that was [sic] taken of the plaintiff at Metro Jail.” (Doc. 33 

at 2). 

Plaintiff continues, melding his arguments of deliberate 

indifference, excessive force, failure to train, and failure to 

protect/intervene altogether with his “less stringent standards 

than formal pleadings drafted by lawyers” argument. Plaintiff 

concludes his response by rehashing his version of the 

allegations. Plaintiff argues that Defendants are not entitled 

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to qualified immunity, which the Court will disregard for the 

same reasons it disregards Defendants’ immunity analysis. 

Defendants replied to Plaintiff’s Response reiterating 

their position that Plaintiff’s Complaint fails to state a claim 

upon which relief can be granted because Plaintiff cannot show 

that Defendants were deliberately indifferent by disregarding 

Plaintiff’s serious medical needs, or that increased physical 

injury occurred due to denial or delay of care on the part of 

Defendants. (Doc. 35 at 2-3). Defendants point out, and the 

Court agrees that Plaintiff admits to receiving timely medical 

care throughout his Complaint, and during the course of the 

incident. (Doc. 5). Defendants further point out that nowhere 

in Plaintiff’s Complaint is there any allegation that Defendants 

failed to provide medical treatment for Plaintiff’s chest pains, 

or that his chest pains worsened as a result of Defendants’ 

alleged delay. 

It is also noteworthy that Plaintiff does not state that he 

was treated by the paramedics or at USA Medical Center for chest 

pains; rather, he only received treatment for the injuries he 

sustained as a result of being subdued by the officers when he 

attempted to escape from the patrol car. Defendants also make 

note that Plaintiff does not mention complaining of chest pains 

to any of the medical care providers, not even to the treating 

physicians at USA Medical Center. 

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Defendants also reiterate that their use of force in 

subduing Plaintiff from threatening them and escaping from 

custody was objectively reasonable within the well-established 

standard of use of force during arrest; and therefore, not in 

violation of the Fourth Amendment.

Lastly, the Court also notes that Plaintiff used the word, 

“retaliation” in alleging his claims against Defendants, (see 

Doc. 5 at 5); however, Plaintiff does not make any allegations 

that he has been retaliated against by Defendants or any other 

state official for the filing of this lawsuit. Thus, the Court 

will not address retaliation herein.

II. Motion to Dismiss Standard

A defendant may move to dismiss a complaint pursuant to 

Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has 

failed to state a claim upon which relief may be granted. To 

survive a 12(b)(6) motion to dismiss for failure to state a 

claim, the complaint “does not need detailed factual 

allegations;” however, the “plaintiff's obligation to provide 

the ‘grounds' of his ‘entitle[ment] to relief’ requires more 

than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Bell Atlantic Corp. 

v. Twombly, 550 U.S. 544, 555 (2007) (internal citations 

omitted). Factual allegations, on the assumption that all 

allegations in the complaint are true, must be enough to raise a 

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right to relief above the speculative level and state a claim 

for relief that is plausible on its face. Id. at 555, 570. 

The Court accepts all facts as true and limits its 

consideration to the pleadings and exhibits attached thereto. 

Abraham v. Greater Birmingham Humane Soc’y, Inc., No. 2:11-CV4358-SLB, 2014 WL 1043230, *1 (N.D.Ala. Mar. 17, 2014)(citing 

Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 

2000)(citation omitted). All reasonable inferences are drawn in 

favor of the plaintiff; however, unsupported conclusions of law 

or of mixed fact and law have long been recognized not to 

prevent a Rule 12(b)(6) dismissal. Abraham, 2014 WL 1043230 at 

*1 (citing Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 

2003)(citation omitted). 

III. Discussion

a. Deliberate Indifference to Serious Medical Need

Plaintiff complains that he was denied medical care for the 

chest pains he complained of while restrained in the back of the 

patrol car. 

“Claims involving the mistreatment of arrestees or pretrial 

detainees in custody are governed by the Fourteenth Amendment’s 

Due Process Clause instead of the Eighth Amendment’s Cruel and 

Unusual Punishment Clause, which applies to such claims by 

convicted prisoners.” Cottrell v. Caldwell, 85 F.3d 1480, 1490 

(11th Cir. 1996). “However, the applicable standard is the 

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same, so decisional law involving prison inmates applies equally 

to cases involving arrestees or pretrial detainees.” Id. 

The Eighth Amendment prohibits indifference to a convicted 

prisoner's serious medical needs so deliberate that it 

“constitutes the unnecessary and wanton infliction of pain.” 

Estelle v. Gamble, 429 U.S. 97, 104 (1976). “To prevail on a 

claim of deliberate indifference, a plaintiff must show: (1) a 

serious medical need; (2) defendant's deliberate indifference to 

that need; and (3) causation between the defendant's 

indifference and the plaintiff's injury.” McDaniels v. Lee, 405 

Fed. Appx. 456, 458 (11th Cir.2010) (citing Mann v. TaserInt'l, 

Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009)). 

To satisfy the first objective element, Plaintiff must 

prove his condition was, in fact, a serious medical need. “A 

‘serious medical need’ is one that is diagnosed by a physician 

as requiring treatment or one that is so obvious that a lay 

person would recognize the need for medical treatment.”

Pourmoghani–Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir.2010) 

(internal quotations omitted). “To satisfy the subjective 

element of [a] deliberate indifference [claim, a] ... Plaintiff 

must prove three subparts: (1) subjective knowledge of a risk of 

serious harm; (2) disregard of that risk; (3) by conduct that is 

more than [gross] negligence.” Bozeman v. Orum, 422 F.3d 1265, 

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1272 (11th Cir.2005) (internal quotations omitted) (noting that 

subjective knowledge requires that defendant “‘must both be 

aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exists, and [ ] must also draw 

the inference’”)(quoting Farmer v. Brennan, 511 U.S. 825, 837, 

114 S.Ct. 1970, (emphasis added in Bozeman)); see also Townsend 

v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010). “A 

core principle of Eighth Amendment jurisprudence in the area of 

medical care is that prison officials with knowledge of the need 

for care may not, by failing to provide care, delaying care, or 

providing grossly inadequate care, cause a prisoner to 

needlessly suffer the pain resulting from his or her illness.” 

McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999). 

In determining whether a delay in treatment rises to the 

level of deliberate indifference, relevant factors include: “(1) 

the seriousness of the medical need; (2) whether the delay 

worsened the medical condition; and (3) the reason for the 

delay.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir.

2007). “Medical treatment violates the Eighth Amendment only 

when it is so grossly incompetent, inadequate, or excessive as 

to shock the conscience or to be intolerable to fundamental 

fairness.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.

1991)(citation omitted). 

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For the sake of this analysis, the Court will assume

without concluding that Plaintiff’s chest pains constitute a 

serious medical need, which, if left untreated, would pose a 

substantial risk of serious medical harm. Farrow, 320 F.3d 

1235, 1243. 

Turning to the second element, it is undisputed that 

Defendants were aware and subjectively knew of Plaintiff’s chest 

pains. However, Plaintiff is sorely unable to prove that 

Defendants disregarded Plaintiff’s chest pains, or that they did 

so with more than gross negligence. 

Plaintiff admits that once he informed Defendants of his 

chest pains en route to the police station, that the fire 

department was called to treat him-- an admission that 

completely negates his claim for deliberate indifference. 

Summoning the fire department to treat Plaintiff is far from 

complete disregard and is certainly not disregard by more than 

gross negligence. 

The fact that Plaintiff refused the care offered is of no 

consequence regarding Defendants’ liability. Plaintiff’s 

refusal was his own choice for which he has no legal remedy 

under 42 U.S.C. § 1983 as it applies to the Fourteenth

Amendment. It is well-settled that disagreement regarding the 

method of care does not give rise to a constitutional violation. 

The course of treatment chosen by a medical official would be 

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such a classic example of a matter for medical judgment, that no 

constitutional violation exists where an inmate and a medical 

official merely disagree as to the proper course of medical 

treatment. See Estelle, 429 U.S. at 107; Harris, 941 F.2d at 

1505. Because Defendants made an immediate sincere attempt to 

have Plaintiff treated for his alleged chest pains, and 

Plaintiff admits such, it is impossible for him to prove that 

Defendants acted with deliberate indifference to his serious 

medical needs.

Furthermore, it cannot be concluded that the treatment 

offered and received by Plaintiff was so grossly incompetent, 

inadequate, or excessive as to shock the conscience or to be 

intolerable to fundamental fairness. See Harris, supra, p. 14. 

It is also remarkable that Plaintiff had the physical 

ability to kick out the windows of the patrol car, despite 

having chest pain, which is typically accompanied by weakness, 

shortness of breath, dizziness and disorientation. See Chest 

pain symptoms, http://www.mayoclinic.org/diseasesconditions/chest-pain/basics/symptoms/con-20030540. The Court 

further notes, as do Defendants, that Plaintiff did not 

complain, nor was he treated for, chest pains by the paramedics 

or the medical team at U.S.A. Medical Center. Also relevant is 

that there is no indication in Plaintiff’s Complaint that the 

course of treatment provided him worsened his chest pains or 

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caused other life threatening symptoms to arise as a result of 

the care administered. Plaintiff fails to present any 

verifiable medical evidence that Defendants should have provided 

him with a different course of treatment, and instead, only 

makes insufficient and unsupported statements that he wasn’t 

being treated by “trained medical practitioners.” (Doc. 5 at 

8).

Moreover, without verifiable medical evidence proving 

otherwise, Plaintiff’s claims for deliberate indifference are 

pled in an unsupported and conclusory manner. It is well 

settled that a conclusion cannot be taken as true. Ashcroft v. 

Iqbal, 556 U.S. 662, 678-79 (2009); see also Leigh v. Warner 

Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000)(“[t]his court 

has consistently held that conclusory allegations without 

specific supporting facts have no probative value”); Fullman v. 

Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)(a plaintiff’s 

mere verification of conclusory allegations is not sufficient to 

oppose a motion for summary judgment). 

For these reasons, the Court concludes that Defendants did 

not act with deliberate indifference toward Plaintiff’s serious 

medical needs, nor were they more than grossly negligent toward 

those needs. Accordingly, Defendants’ Motion to Dismiss for 

failure to state a claim is due to be granted and Plaintiff’s 

medical care claims warrant dismissal with prejudice as such.

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b. Excessive Force

Turning to Plaintiff’s claims for excessive force, the 

Court likewise finds that Plaintiff fails to state a claim for 

such in his Complaint. The Eleventh Circuit has held that 

“[t]he Fourteenth Amendment’s freedom from unreasonable searches 

and seizures encompasses the plain right to be free from the use 

of excessive force in the course of an arrest.” Lee v. Ferraro, 

284 F.3d 1188, 1197 (11th Cir. 2002). Even if an officer has 

probable cause to arrest a person, the seizure must still be 

reasonable. Tennessee v. Garner, 471 U.S. 1, 8 (1985). All 

claims that law enforcement officers have used excessive forcedeadly or not- in the course of an arrest, investigatory stop, 

or other ‘seizure’ of a free citizen should be analyzed under a 

reasonableness standard. Barfield v. Rambosk, 2015 WL 1754591, 

at *8 (M.D.Fla. Apr. 17, 2015)(citing Graham v. Connor, 490 U.S. 

386, 395 (1989). 

“An officer’s use of force is excessive if his actions are 

not “objectively reasonable in light of the facts and 

circumstances confronting him, without regard to his underlying 

intent or motivation.” Id. (citation omitted). Those 

circumstances must be viewed from the perspective of the law 

enforcement officer on the scene, rather than with the 20/20 

vision of hindsight. Id. “Courts do not sit in judgment to 

determine whether an officer made the best or a good or even a 

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bad decision in the manner of carrying out an arrest. The 

court’s task is only to determine whether an officer’s conduct 

falls within the outside borders of what is reasonable in the 

constitutional sense . . . in the constitutional context, 

reasonableness- on a given set of facts- is a pure question of 

law.” Id. 

In determining if the use of force was reasonable, a court 

must examine (1) the need for the application of force, (2) the 

relationship between the need and amount of force used, and (3) 

the extent of the injury inflicted. Hadley v. Gutierrez, 526 

F.3e 1324, 1329 (11th Cir. 2008)(citation omitted). The nature 

and degree of force needed is measured by such factors as the 

severity of the crime at issue, whether the suspect poses an 

immediate threat to the safety of the officers or others, and 

whether he is actively resisting arrest or attempting to evade 

arrest by flight.” Graham v. Connor, 490 U.S. at 196. 

Applying the factors listed above, it is undisputed that 

each factor occurred at some point during the entire 

altercation. Therefore, it is plain to the Court that the 

degree of force needed to subdue Plaintiff was not 

disproportionate to the degree of force used and Defendants are 

not liable to Plaintiff for such. 

Plaintiff admits he was arrested for multiple felonies 

including “trafficking illegal drugs, escape III, possession of 

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a controlled substance, loitering, resisting arrest, disorderly 

conduct, and attempting to elude police.” (Doc. 5 at 4). 

Plaintiff also admits he became hostile toward the officers when 

he thought they weren’t going to treat him for his alleged chest 

pains and he kicked out the windows of the patrol car. 

Plaintiff violently cursed and spit at the officers as they 

approached the car, requiring Officer Golden to subdue Plaintiff 

from a distance to protect himself and other officers from 

Plaintiff’s violent behavior. Also undisputed is that Plaintiff 

was attempting a violent escape, which further satisfies the 

final factor in determining whether excessive force was used.

Furthermore, the Eleventh Circuit has consistently held 

that using pepper spray is reasonable where the plaintiff was 

either resisting arrest of refusing police request. Vinyard v. 

Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002)(“pepper spray is a 

very reasonable alternative to escalating a physical struggle 

with an arrestee)(citation omitted). It is indeed unfortunate 

that Plaintiff had to create a situation in which he would 

suffer such extensive and ongoing injuries; however, none of the 

facts at hand present with any remedy for use of excessive force 

under the Constitution via § 1983 of the Civil Rights Act. 

For the forgoing reasons, the Court concludes Defendants’ 

Motion is due to be granted and Plaintiff’s claims for excessive 

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force against Defendants Rabeau and Golden are due to be 

dismissed with prejudice for failure to state a claim. 

IV. Conclusion

After consideration of the pleadings, relevant motion and 

responses thereto, and based on the legal analysis set out 

above, the Court concludes that Plaintiff’s Complaint fails to 

allege any factual content that allows this Court to draw the 

reasonable inference that Defendants are liable for the alleged 

misconduct. Ashcroft, supra, p. 6. Therefore, it is 

recommended that Defendants’ Motion be granted, and Plaintiff’s 

Complaint be dismissed with prejudice for failure to state a 

claim upon which relief can be granted.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

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based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 8th day of July, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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