            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            No. 98-30986
                                          Summary Calendar
                                          _______________

                                       WILLIE MARTIN,
                                                                      Plaintiff-Appellee,
                                               VERSUS

                          UNKNOWN SCHOTT, Captain, et al.,
                                                                      Defendants,

       EDDIE VEAL, Lieutenant; WILLIE WASHINGTON, Lieutenant;
                     NORRIS BONTON, Sergeant,
                                                                      Defendants-Appellants.
                                    _________________________

                            Appeal from the United States District Court
                               for the Middle District of Louisiana
                                          (96-CV-3342)
                                 _________________________

                                          September 20, 1999

Before SMITH, BARKSDALE, and                          affirm.1
   EMILIO M. GARZA, Circuit
Judges.

JERRY E. SMITH, Circuit Judge:*

   Willie Martin sued prison employees under
42 U.S.C. § 1983, alleging they used excessive
force in violation of the Constitution and
Louisiana tort law. Appellants moved for
dismissal of the state law claims, asserting
Eleventh Amendment immunity. The court
denied the motion, and, finding no error, we


   *                                                        1
      Pursuant to 5TH CIR. R. 47.5, the court has              An order denying Eleventh Amendment
determined that this opinion should not be            immunity is immediately appealable under the
published and is not precedent except under the       collateral order doctrine, to the extent the order
limited circumstances set forth in 5TH CIR. R.        turns on issues of law. See Sherwinski v. Peterson,
47.5.4.                                               98 F.3d 849, 851 (5th Cir. 1996).
                                                           may accept, reject, or m odify the
                       I.                                  recommended decision, receive further
   Appellants contend that the court                       evidence, or recommit the matter to the
erroneously failed to make a de novo review of             magistrate judge with instructions.” As stated
objected-to portions of the magistrate judge's             in United States v. Raddatz, 447 U.S. 667, 676
recommendation, as required by 28 U.S.C.                   (1980), the purpose of the section is to “permit
§ 636(b)(1)(C).2 Although the court used                   whatever reliance a district judge, in the
unfortunate language in ruling that                        exercise of sound judicial discretion, chose to
“[d]efendants’ [objections] . . . do not require           place on a magistrate’s proposed findings and
de novo review,” in context it is evident that             recommendations.”
the court complied with the requirements of
§ 636(b)(1)(C) by stating that “[t]he court has               The court reviewed the appellants’
carefully considered the petition, the record,             objections and all other relevant material and
the law applicable to this action, [and] the               made an independent decision to adopt the
[Magistrate’s] Report and Recommendation.”                 recommendation, in accordance with § 636.
                                                           Although the court’s words were somewhat
                                                           off the mark, a remand would be a waste and
    The text of § 636(b)(1)(C) and the related             would result in no change in the result.
rule 72(b) make plain that a court's “de novo”
determination may be based solely on the                                         II.
record and that the court may accept the                      Appellants contend the Eleventh
magistrate judge’s recommended decision in                 Amendment bars a Louisiana state law claim
its entirety; for example, rule 72(b) provides             brought in federal court against a state
that the district court “shall make a de novo              employee in his individual capacity for what
determination upon the record, or after                    may be found to be wrongful and intentional
additional evidence . . . . The district judge             acts. The court rejected this contention, as do
                                                           we.
   2
       The relevant part of § 636(b)(1)(C) provides:           This issue was addressed in Reyes v. Sazan,
                                                           168 F.3d 158 (5th Cir. 1999), in which we
   A judge of the court shall make a de novo               held that the Eleventh Amendment is not a bar
   determination of those portions of the report           to a state law claim asserted against a state
   or specified proposed findings or                       employee individually where there is a fact
   recommendations to which objection is                   issue as to whether he will be indemnified by
   made. A judge of the court may accept,                  the state treasury. See id. at 162-63. Under
   reject, or modify, in whole or in part, the
   findings or recommendations made by the                 LA. REV. STAT. 13:5108.2(B), a state
   magistrate. The judge may also receive                  employee will not be indemnified if the damage
   further evidence or recommit the matter to              at issue resulted from his “intentional wrongful
   the magistrate with instructions.                       act or gross negligence.”
Similarly, FED. R. CIV. P. 72(b) states:                      Plaintiff has alleged that appellants used
                                                           excessive force “without any provocation
   The district judge to whom the case is                  whatsoever and for no apparent reason other
   assigned shall make a de novo determination             than to deliberat ely, maliciously, and
   upon the record, or after additional                    sadistically inflict physical pain and harm.”
   evidence, of any portion of the magistrate              Thus, there is a fact issue regarding whether
   judge’s disposition to which specific written
   objection has been made in accordance with              the alleged acts occurred, and if so whether
   this rule. The district judge may accept,               they were committed in a wrongful and
   reject, or modify the recommended decision,             intentional manner. As in Reyes, “[b]ecause
   receive further evidence, or recommit the               there is at least a fact issue concerning whether
   matter to the magistrate judge with                     the officers here acted intentionally or with
   instructions.                                           gross negligence, the officials might not
                                                       2
receive indemnification.” Reyes, 168 F.3d at
163.     Therefore, there is no Eleventh
Amendment bar to the state law claims.

  AFFIRMED.




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