Sheppard v. Livingston et al

Filing 155

ORDER OVERRULING OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATIONS for 140 Report and Recommendations. Signed by Judge Marcia A. Crone on 3/26/15. (dlc, )

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UNITED STATES DISTRICT COURT CURTIS LEE SHEPPARD, Plaintiff, versus BRAD LIVINGSTON, et al. Defendants. EASTERN DISTRICT OF TEXAS § § § § § § § § § CIVIL ACTION NO. 1:12-CV-169 ORDER A memorandum order was previously entered granting a motion to dismiss filed by the defendants. The motion asserted that plaintiff’s claim under the First Amendment should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). In granting the motion, the court relied on a Report and Recommendation of United States Magistrate Judge that was adopted by the court. When the memorandum order was signed, no objections to the Report and Recommendation had been docketed. However, on the same day the memorandum order was signed, objections to the Report and Recommendation filed by the plaintiff were entered on the docket. The court has made a de novo review of the objections in relation to the pleadings and the applicable law. After careful consideration, the court is of the opinion the objections are without merit. As the magistrate judge stated, the decision in Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995), establishes that to the extent plaintiff is proceeding under the First Amendment, he has failed to state a claim upon which relief may be granted. As a result, plaintiff’s objections to the Report and Recommendation are OVERRULED. The dismissal of plaintiff’s claim under the First Amendment has no effect on his claim under the Religious Land Use and Institutionalized Persons Act of 2000. Signed this date. Mar 26, 2015 2

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