Boyett v. Collier et al

Filing 36

MEMORANDUM ORDER overruling Plaintiff's objections and adopting the magistrate judge's 31 Report and Recommendation. Signed by District Judge Marcia A. Crone on 12/1/2020. (bjc, )

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UNITED STATES DISTRICT COURT

VERNON J. BOYETT,
Plaintiff,
versus
C. CARTER, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:18-CV-282

MEMORANDUM ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Vernon J. Boyett, a prisoner previously 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 C. Carter, David
Turrubiate, Jr., Dr. Mark Barber, and an unidentified correctional officer.
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 has submitted a Report and Recommendation of United
States Magistrate Judge. The magistrate judge recommends dismissing the action pursuant to 28
U.S.C. § 1915(e) as frivolous and 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, pleadings, and all available evidence. Plaintiff filed
objections to the magistrate judge’s Report and Recommendation.
Plaintiff contends that his Eighth Amendment right to be free from cruel and unusual
punishment was violated when was deprived of eating utensils and toilet paper for 26 hours after

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he was moved to a cell in the segregation building. To successfully plead a cause of action in a
civil rights case, a plaintiff must allege facts that illustrate the defendant participated in the alleged
wrong. Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986). Plaintiff does not allege that any
of the named defendants were responsible for depriving him of eating utensils and toilet paper.
Therefore, the Eighth Amendment claim should be dismissed as frivolous and for failure to state a
claim upon which relief may be granted.
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). After careful consideration, the court concludes
the objections are without merit.
ORDER
Accordingly, plaintiff’s objections (#33) are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#31)
is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate
judge’s recommendation.
SIGNED at Beaumont, Texas, this 1st day of December, 2020.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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