RINCON

v.

VILLAGE OF PALMETTO BAY

THIS CAUSE comes before the Court on Magistrate Judge Chris McAliley’s Report and Recommendation (the “Report”) [ECF No. 111] regarding Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint (the “Motion”) [ECF No. 99]. The matter was referred to Magistrate Judge McAliley, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pre-trial matters. [ECF No. 88]. Judge McAliley’s Report recommends that the Court grant the Motion in part. Defendants Sergeant Victor Evans, Officer John Dalton, and Officer Brian Zamorski (collectively, the “Officers” or “Defendants”) timely filed objections to the Report, disputing Judge McAliley’s recommendation denying Defendants’ Motion as to Counts II and V of the Fourth Amended Complaint. [ECF No. 115]. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F. 3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006).

DISCUSSION¹

The Officers’ objections to Counts II and V essentially mirror their arguments in the Motion. “It is improper for an objecting party to . . . submit [] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge.” Sanchez v. Jones, No. 17-CIV-21911, 2019 WL 8892627, at *1 (S.D. Fla. Apr. 29, 2019). Even so, having conducted a de novo review, the Court agrees with Judge McAliley’s well-reasoned analysis and conclusions and finds that Defendants’ objections have no merit. The Court notes, however, the Officers’ contention that the Report misapplies the holding of Perez v. Suszczynski, 809 F. 3d 1213 (11th Cir. 2016)—that “the mere presence of a gun or other weapon is not enough to warrant the exercise of deadly force and shield an officer from suit.” Id. at 1220. In particular, the Officers argue that the Report “fails to acknowledge that, in Perez, record

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows: (1) Magistrate Judge McAliley’s Report and Recommendation on Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint, [ECF No. 111], is AFFIRMED AND ADOPTED and incorporated into this Order by reference; (2) Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint, [ECF No. 99], is GRANTED in part and DENIED in part; (3) Count I is DISMISSED with prejudice against the Officers and DISMISSED without prejudice as against Miami-Dade County; (4) Count II is DISMISSED with prejudice against Defendant Officer Marlene Taborda. Defendants’ Motion is DENIED as to Count II against Defendants Sergeant Victor Evans, Officer John Dalton, and Officer Brian Zamorski; (5) Counts III, IV, and VII are DISMISSED without prejudice; (6) Defendants’ Motion is DENIED as to Count V; and (7) Count VI is DISMISSED with prejudice. DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of November 2020.

Df

DLAL

UNITED STATES DISTRICT JUDGE