Smith v. Director - Texas Department of Criminal Justice, Correctional Institutions Division et al
MEMORANDUM ORDER overruling plaintiff's objections and adopting the magistrate judge's 11 Report and Recommendation. Signed by Judge Thad Heartfield on 9/26/2016. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
IDERIA WAYNE SMITH
BRAD LIVINGSTON, ET AL.
CIVIL ACTION NO. 1:13-CV-325
MEMORANDUM ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Ideria Wayne Smith, a prisoner confined at the Stiles Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis,
filed this civil rights action pursuant to 42 U.S.C. § 1983 against Brad Livingston, Rick Thaler,
Richard K. Alford, Gene A. Kroll, Darren B. Wallace, Kelvin D. Masters, Keith E. Gorsuch, Aaron
J. Thompkins, William J. Pittman, and Mecheal J. Jackson.
The court ordered that this matter be referred to the Honorable Zack Hawthorn, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of
this court. The magistrate judge recommends dismissing the action 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, and he filed an amended complaint.
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). After careful consideration, the court concludes the
objections are without merit.
Plaintiff’s due process claims are frivolous and fail to state a claim upon which relief may
be granted because the disciplinary action did not result in a sanction that imposed upon a liberty
interest. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Plaintiff alleges the defendants did not
follow prison policies, but a prison official’s failure to follow prison policies, procedures or
regulations does not constitute a violation of due process. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th
In his amended complaint, plaintiff complains about the conditions of his confinement in
administrative segregation. Plaintiff alleges cockroaches were on his food tray when the tray was
left when plaintiff was out of his cell. Plaintiff alleges he requested medical care, which was denied
by physician’s assistants. These claims are also frivolous and fail to state a claim upon which relief
may be granted because plaintiff does not allege that any of the named defendants were personally
involved in denying him medical treatment or leaving food in his cell. Jacquez v. Procunier, 801
F.2d 789, 793 (5th Cir. 1986).
Accordingly, plaintiff’s objections (document no. 13) are OVERRULED. The findings of
fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge
(document no. 11) is ADOPTED. A final judgment will be entered in this case in accordance with
the magistrate judge’s recommendation.
SIGNED this the 26 day of September, 2016.
United States District Judge
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