The opinion of the court was delivered by: (Judge Conner)
AND NOW, this 6th day of August, 2010, upon consideration of the report of the magistrate judge (Doc. 59), recommending that the motion (Doc. 43) for summary judgment, filed by plaintiff Theodore C. Lehmier ("Lehmier"), be denied because Lehmier has not shown that he is entitled to judgment as a matter of law, and recommending that the motion (Doc. 45) for summary judgment, filed by defendants Douglas J. Austen, Corey L. Britcher, and Terrence Kane (collectively "defendants"), be granted because Lehmier failed to present sufficient evidence to support his first, second, and fourth causes of action, and because Lehmier's third and fifth causes of action are collateral attacks upon Lehmier's state court conviction,*fn1 and upon further consideration of the objections (Doc. 61) to the report filed by Lehmier,*fn2 and defendants' brief (Doc. 62) in opposition to Lehmier's objections, and, following an independent review of the record, it appearing that there are disputed issues of material fact as to the adverse action suffered by Lehmier as a result of the defendants' alleged retaliation, and that there are disputed issues of material fact as to the causal link between the exercise of Lehmier's constitutionally protected conduct and the alleged retaliatory adverse action,*fn3 it is hereby ORDERED that:
1. The report and recommendation (Doc. 59) of the magistrate judge is ADOPTED in part and REJECTED in part as follows:
a. REJECTED insofar as it grants defendants motion for summary judgment on Lehmier's first and fourth causes of action, and
b. ADOPTED in all other respects.
2. The motion (Doc. 43) for summary judgment filed by Lehmier is DENIED.
3. The motion (Doc. 45)for summary judgment filed by defendants is GRANTED in part and DENIED in part as follows:
a. DENIED as it pertains to Lehmier's first and fourth causes of action, and
b. GRANTED in all other respects.
4. The Clerk of Court is instructed to defer entry of judgment until the conclusion of this case.
5. A revised pretrial and trial schedule shall issue by future order of court.
CHRISTOPHER C. CONNER United States ...