Marquez v. Livingston et al

Filing 69

ORDER overruling objections and adopting 44 Report and Recommendation. Pltf's 4 Motion for temporary restraining order or preliminary injunction is denied. Signed by Judge Ron Clark on 3/27/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
ERNEST V. MARQUEZ

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VS.

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BRAD LIVINGSTON

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CIVIL ACTION NO. 1:16cv286

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Ernest V. Marquez, proceeding pro se, filed the above-styled civil rights lawsuit
pursuant to 42 U.S.C. § 1983. The court previously referred this matter to the Honorable Zack
Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28
U.S.C. § 636 and applicable orders of this court.
Plaintiff filed a motion for temporary restraining order or preliminary injunction (docket entry
4). The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate
Judge recommending the motion be denied as moot.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report
and Recommendation.
The court has conducted a de novo review of the objections. After careful consideration, the
court is of the opinion the objections are without merit. Plaintiff states he suffers from Hepatitis C
and complains that he is not receiving the same treatment as other inmates. However, as stated by
the Magistrate Judge, plaintiff was transferred to another prison unit after he filed his complaint and
his motion for preliminary injunctive relief. His transfer made his claim for injunctive relief based
on conditions at his former unit moot. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002); Herman
v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001).1

1

Plaintiff asserts his transfer to another prison unit does not make his lawsuit moot. Plaintiff is correct.
As plaintiff seeks money damages, his lawsuit is not moot. However, his transfer to another unit does make his
request for preliminary injunctive relief moot.

ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ADOPTED as
the opinion of the court. Plaintiff’s motion for temporary restraining order or preliminary injunction
is DENIED.
So ORDERED and SIGNED this 27th day of March, 2017.