Klein vs. Walker
ORDER overruling objections and adopting magistrate judge's report and recommendation. Signed by Judge Ron Clark on 12/16/2016. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
PHILIP R. KLEIN,
ORDER OVERRULING OBJECTIONS AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
The court referred this case to the Honorable Zack Hawthorn, United States Magistrate
Judge, for pretrial management pursuant to General Order 05-07. The court has received and
considered Judge Hawthorn’s report, which recommends granting Defendant Layne Walker’s
motion for summary judgment on the basis of res judicata. Doc. No. 86. Klein timely filed
objections to the report and recommendation. Doc. No. 88. The court has reviewed Klein’s
objections and concludes that they are without merit. As a result, the court adopts the report and
recommendation of the magistrate judge.
A party who files timely, written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2)-(3).
“Parties filing objections must specifically identify those findings [to which they object].
Frivolous, conclusive or general objections need not be considered by the district court.” Nettles
v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
The court has reviewed the report and recommendation de novo and concludes that Klein’s
objections are without merit.
Although Klein levies eleven different “objections” to Judge
Hawthorn’s report, they are merely a rehash of the arguments he made in response to Walker’s
motion for summary judgment.
Judge Hawthorn recommended granting Walker’s “Motion for Summary Judgment Based
on Res Judicata” (Doc. No. 45) because Walker established the three necessary elements under
Texas law: (i) a prior final judgment on the merits by a court of competent jurisdiction; (ii) identity
of parties or those in privity with them; and (iii) a second action based on the same claims as were
raised or could have been raised in the first action. See Amstadt v. U.S. Brass Corp., 919 S.W.2d
644, 652 (Tex. 1996) Although at certain points Klein’s objections are difficult to decipher, 1 he
appears to focus his objections on Judge Hawthorn’s finding that the state court’s September 23,
2014 order of dismissal constituted a final judgment for purposes of res judicata. Doc. No. 86, at
7-8. Under Texas law, an order “that all parties appear to have treated as final may be final despite
some vagueness in the order itself.” M.O. Dental Lab v. Rape, 139 S.W. 3d 671, 673-75 (Tex.
2004) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001)). Because the
September 23, 2014 state court order dismissing Klein’s case was the last case activity in state
court, and less than a month later, Klein filed a virtual copy of his state court petition in this
court, Judge Hawthorn properly concluded that the parties treated that order as final.
The following is taken verbatim out of Klein’s objections:
Adverse actions which occurred after September 23, 2014 could not have supported causes of action
which were alleged to have arisen before the adverse actions themselves had occurred. While
Walker may [sic] been motivated by the same animus in claims alleged to have been in violation of
the United States Constitution and which occurred before September 23, 2014, as he was in his
individual and conspiratorial actions which occurred after September 23, 2014, those actions after
September 23, 2014 could not have been raised are [sic] dressed in the state court action. Certainly
any adverse actions which occurred before September 23, 2014, may be admissible to show
Walker’s motive for claims which accrued post September 23, 2014, regardless of whether they are
the basis of post September 23, 2014 accrued causes of action. Events [sic]. Doc. No. 88 at 4-5.
In his objections, Klein does not cite to anything in the record to indicate that the parties
did not treat the state court order of dismissal as final. Instead, Klein argues that he treated the
state court order as an order “not addressing” his § 1983 claim. Doc. No. 88, at 4. If it were indeed
the case that the state court order did not address Klein’s pending § 1983 claim, one would expect
at least some case activity involving his “unaddressed” § 1983 claim in the state court’s docket
over the last two years. Of course, the record reveals otherwise, precisely because Klein and
Walker believed the September 23, 2014 order dismissed all remaining claims. And in fact it did.
As Judge Hawthorn observed, after Walker filed his “Plea to the Jurisdiction and Motion for
Summary Judgment Subject to a Plea to the Jurisdiction for Absolute and Qualified Immunity”
and his “Motion to Dismiss for Lack of Subject Matter Jurisdiction,” Klein non-suited his
remaining claims in his Second Amended Petition, leaving only his § 1983 claim. Doc. No. 86, at
12. After the Second Amended Petition was filed, the state court entered its order granting
Walker’s “Plea to the Jurisdiction and Motion for Summary Judgment Subject to a Plea to the
Jurisdiction for Absolute and Qualified Immunity” and his “Motion to Dismiss for Lack of Subject
Matter Jurisdiction.” Doc. No. 6, ex. 6. Thus, the state court certainly “addressed” Klein’s § 1983
claim because it was the only live claim pending when the state court entered the order granting
Walker’s dispositive motions. As Judge Hawthorn observed, if Klein believes that Walker needed
to file amended motions to dismiss that more precisely addressed the merits of Klein’s § 1983
claim, the appropriate forum to raise such an objection was in state court.
Finally, Klein seemingly alleges that Walker committed “adverse actions” after September
23, 2014, that could not possibly have been addressed by the state court order. Doc. No. 88, at 4.
In his objections, Klein does not specify what “adverse actions” occurred after September 23,
2014, but to the extent they are new claims contained within his Second Amended Complaint (Doc.
No. 42), this court’s Order (Doc. No. 90) granting Walker’s Motion to Strike Klein’s Second
Amended Complaint in part (Doc. No. 47) moots such claims. In the alternative, if such “adverse
actions” merely amend existing claims previously contained in Klein’s First Amended Complaint,
such claims are barred by res judicata for the reasons discussed above and in Judge Hawthorn’s
report (Doc. No. 86).
For the above-stated reasons, Klein’s objections to Judge Hawthorn’s report
recommending the court grant Walker’s Motion for Summary Judgment Based on Res Judicata
(Doc. No. 45) are OVERRULED and Walker’s motion for summary judgment is GRANTED.
Because there are no remaining live claims remaining in this case, a final judgment will be entered
So ORDERED and SIGNED this 16 day of December, 2016.
Ron Clark, United States District Judge
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