Chann v. Fox et al

Filing 24

ORDER partially adopting 15 Report and Recommendation. Pltf's objections are overruled with respect to the Bivens claims. These claims are dismissed as frivolous and for failure to state a claim upon which relief may be granted. Signed by Judge Ron Clark on 10/22/12. (tkd, ) (Main Document 24 replaced on 10/23/2012) (tkd, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
THY CHANN

§

VS.

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JOHN B. FOX, ET AL.

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CIVIL ACTION NO. 1:10-CV-168

ORDER PARTIALLY ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Thy Chann, a federal prisoner previously confined in Beaumont, Texas, proceeding
pro se and in forma pauperis, filed this civil rights action pursuant to the Federal Tort Claims Act
(FTCA) and Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
against Warden John B. Fox, Lieutenant Carter, and unidentified defendants.
The Court ordered that this matter be referred to the Honorable Keith F. Giblin, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of
this Court. The Magistrate Judge recommends dismissing the complaint pursuant to 28 U.S.C.
§ 1915(e) as frivolous and for failure to state a claim upon which relief may be granted.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and the pleadings. Plaintiff filed objections to the
Magistrate Judge’s Report and Recommendation.
The Court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). For the reasons stated in the Magistrate Judge’s
Report and Recommendation, the Bivens claims are frivolous and fail to state a claim upon which
relief may be granted. The Magistrate Judge recommended dismissing the FTCA claim because

plaintiff failed to identify the United States of America as a defendant. In his objections, plaintiff
states that he wishes to identify the United States of America as a defendant. Plaintiff’s objections
should be construed as an amended pleading, and he should be allowed to proceed with his FTCA
claim.
ORDER
Accordingly, plaintiff’s objections are OVERRULED with respect to the Bivens claims. The
findings of fact and conclusions of law of the magistrate judge are correct, and the report of the
Magistrate Judge is ADOPTED to the extent that the Bivens claims will be dismissed as frivolous
and for failure to state a claim upon which relief may be granted. A partial judgment will be entered
in this case in accordance this order.
So ORDERED and SIGNED this 22 day of October, 2012.

___________________________________
Ron Clark, United States District Judge

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