Postell v. Unknown Unit Doctor et al

Filing 152

MEMORANDUM ORDER overruling objections and partially adopting 149 Report and Recommendations to the extent it recommends dismissal. Signed by District Judge Marcia A. Crone on 11/30/2020. (bmf, )

Case 1:17-cv-00012-MAC-ZJH Document 152 Filed 11/30/20 Page 1 of 2 PageID #: 2077

UNITED STATES DISTRICT COURT

ASBERRY BARRY POSTELL,
Plaintiff,
versus
UNIT DOCTOR, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:17-CV-12

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Asberry Barry Postell, an inmate formerly confined at the Mark Stiles Unit with
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 several
defendants.1
The court referred this matter 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 granting the Motion for Summary Judgment filed by defendants
Barber and Gildner for failure to exhaust administrative remedies (docket entry no. 149). In
addition, the Magistrate Judge entered an order requiring plaintiff to file an amended complaint
identifying the remaining unknown medical and kitchen staff defendants and/or inform the court

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Plaintiff’s claims against defendants Breaux, Johnson, Brown, Stewart, Villalobos, Watson and Woodward
were severed into a separate civil rights action on March 2, 2020 (docket entry no. 112). The following
claims were dismissed on April 7, 2020: all official capacity claims, individual capacity claims against
defendant Collier for lack of personal involvement, individual capacity claims against defendants Brewer,
Lee, Barber, Montgomery, and Massie for failure to properly investigate and respond to grievances,
individual capacity claims against unknown defendants for verbal threats and harassment and individual
capacity claims against defendant Ekeke for lost and damaged property without due process of law (docket
entry no. 123).

Case 1:17-cv-00012-MAC-ZJH Document 152 Filed 11/30/20 Page 2 of 2 PageID #: 2078

as to whether he wished to voluntarily dismiss his claims against those defendants (docket entry
no. 148).
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Copies of
the Report and Recommendation and the Order entered November 12, 2020 were returned as
undeliverable with the notation that plaintiff has been discharged from TDCJ (docket entry no.
150). Plaintiff has yet to update the Court with a current address. No objections to the Report
and Recommendation nor response to the Magistrate Judge’s order have been filed to date.
ORDER
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct
and the report of the Magistrate Judge is PARTIALLY ADOPTED to the extent it recommends
dismissal. A Final Judgment will be entered accordingly.
SIGNED at Beaumont, Texas, this 30th day of November, 2020.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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