Ford v. Sam et al

Filing 88

MEMORANDUM ORDER Overruling Objections and Adopting the 77 and 78 Report and Recommendation. The 28 Motion to Dismiss is granted. Signed by District Judge Marcia A. Crone on 5/26/22. (kcv, )

UNITED STATES DISTRICT COURT
RICKY DALE FORD,
Plaintiff,
versus
ANITA BREAUX,
Defendant.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:16-CV-129

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Ricky Dale Ford, an inmate at the Michael Unit of the Texas Department of Criminal
Justice, Correctional Institutions Division, proceeding pro se, filed this civil rights lawsuit against
Anita Breaux.1 The court referred this matter to the Honorable Christine L. Stetson, United States
Magistrate Judge, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge has submitted a Report and Recommendation of United States
Magistrate Judge recommending plaintiff’s claims of denial of access to the court and retaliation
be dismissed for failure to state a claim upon which relief may be granted. The magistrate judge
has submitted a separate Report and Recommendation recommending that a motion to dismiss
concerning the deprivation of property claim against the defendant be granted.
The court has received the Reports, along with the record, pleadings, and all available
evidence. Plaintiff filed objections to the Reports. The court must therefore conduct a de novo
review of the objections in relation to the pleadings and the applicable law.
The magistrate judge’s recommendation regarding the access to courts and retaliation
claims were based on her conclusion that plaintiff did not exhaust his administrative remedies
before asserting these claims. Plaintiff raised these claims in an Amended Supplemental Complaint
(#9).

In this filing, plaintiff stated his grievances regarding these claims were still being

processed. In his objections, plaintiff states that at the time he filed his Amended Supplemental
1

Plaintiff also named Evan Sam as a defendant. The claim against defendant Sam has been severed into a
separate lawsuit.

Complaint he had not had time to complete the exhaustion process. He states in conclusory
fashion that steps were taken to delay the completion of the exhaustion process. However, as the
magistrate judge stated, the exhaustion process must be completed before claims are asserted in
court. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012). Moreover, plaintiff’s conclusory
allegations regarding interference with the processing of his grievances are not sufficient to show
cause for excusing the requirement of prior exhaustion. Plaintiff’s objections with respect to the
access to courts and retaliation claims are therefore without merit.
Regarding his property claim, plaintiff objects to the magistrate judge’s statement that he
had an adequate post-deprivation remedy regarding the defendant’s alleged failure to return his
property.2 However, the authorities cited by the magistrate judge establish that the Texas tort law
remedy of conversion provides an adequate post-deprivation remedy.
ORDER
Accordingly, the objections filed by plaintiff (#s 83, 85 and 86) are OVERRULED. The
findings of fact and conclusions of law of the magistrate judge are correct, and the Reports of the
magistrate judge (#s 77 and 78) are ADOPTED. The motion to dismiss (#28) is GRANTED.
A final judgment shall be entered dismissing this lawsuit.
SIGNED at Beaumont, Texas, this 26th day of May, 2022.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

2

Deprivations of property by prison officials do not state a violation of the Constitution so long as an adequate
post-deprivation remedy exists. Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004).

2