McFerrin v. Pinkee et al

Filing 26

ORDER overruling plaintiff's objections and adopting the magistrate judge's 23 Report and Recommendation. Defendants 15 Motion to dismiss is granted. Signed by District Judge Ron Clark on 7/17/2018. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
ERVIN LEE MCFERRIN

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VS.

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PATEL PINKEE, ET AL.

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CIVIL ACTION NO. 1:17-CV-152

ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Ervin Lee McFerrin, 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 Patel Pinkee, Jeanne Bellanger,
Mark Barber, Brendan Dunlap, and Stephen Henderson.
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 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.
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). Plaintiff contends the defendants were deliberately
indifferent to his serious medical needs by failing to refer him to a foot specialist. Plaintiff’s
disagreement over his treatment does not amount to a constitutional violation. Stewart v. Murphy,

174 F.3d 530, 537 (5th Cir. 1999); Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Plaintiff
has not shown that the defendants were deliberately indifferent to his serious medical needs. Farmer
v. Brennan, 511 U.S. 825, 832 (1994). Plaintiff also alleges the defendants retaliated against him
for filing grievances. The retaliation claim does not state a claim upon which relief may be granted
because plaintiff did not allege any facts demonstrating that the defendants intended to retaliate
against him for exercising a constitutional right. Morris v. Powell, 449 F.3d 682, 684 (5th Cir.
2006). Therefore, the Magistrate Judge correctly concluded that this action should be dismissed as
frivolous and for failure to state a claim upon which relief may be granted.
ORDER
Accordingly, plaintiff’s objections (document no. 25) 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. 23) is ADOPTED. Defendants’ motion to dismiss (document no. 15) is
GRANTED. A final judgment will be entered in this case in accordance with the Magistrate Judge’s
recommendation.
So ORDERED and SIGNED this 17 day of July, 2018.

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Ron Clark, United States District Judge

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