CHAMBERS v. BUTLER

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION KEION CHAMBERS, Plaintiff, vs. Case No.: 3:23cv10285/TKW/ZCB T. BUTLER, et al., Defendants. __________________________/ ORDER This case is before the Court based on the magistrate judge’s Report and Recommendation (Doc. 92). Defendants filed an objection (Doc. 93) to the Report and Recommendation. No response to Defendants’ objection is needed.

The Court reviewed the issues raised in the objection de novo in accordance with 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(3), and based on that review, the Court agrees with the magistrate judge’s determination that Defendants’ motion to dismiss should be denied. Defendants’ reliance on Wade v. McDade, 106 F.4th 1255 (11th Cir. 2024), is misplaced because that case involved a claim for deliberate indifference to serious medical needs, not a claim for failure to intervene.1 And Defendants’ argument about the availability of punitive damages is no more The Court is aware that Wade’s “subjective criminal recklessness” standard has been applied to failure-to-protect claims, but “deliberate indifference” is an element of that claim. See, e.g., Spradlin v. Toby, 2024 WL 3881483, at *4 (M.D. Fla. Aug. 19, 2024). The Court could not find (and Defendants did not cite) any case applying Wade to a failure-to-intervene claim—likely because “deliberate indifference” is not an element of that claim. persuasive now that it was in the multiple prior cases in which it was rejected on the merits.

Accordingly, it is ORDERED that: 1. The magistrate judge’s Report and Recommendation is adopted and incorporated by reference in this Order.

2. Defendants’ motion to dismiss (Doc. 65) is DENIED.

3. Defendants shall have 14 days from the date of this Order to answer the third amended complaint.

4. This case is recommitted to the magistrate judge for further pretrial proceedings.

DONE AND ORDERED this 12th day of November, 2024.

□□ Wood T. KENT WETHERELL, II UNITED STATES DISTRICT JUDGE