Moore v. Williams et al

Filing 62

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 56 Report and Recommendations. It is accordingly ORDERED Defendant's motion to dismiss (Dkt. #49) is GRANTED. It is also ORDERED Plaintiff's Complaint (Dkt. #1) pursuant to 42 U.S.C. §1983 is DISMISSED with prejudice against Defendant. All motions by either party not previously ruled upon are DENIED. Signed by District Judge Amos L. Mazzant, III on 1/8/2018. (daj, )

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United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION JIMMY MOORE, # 1771243 Plaintiff VS. WILLIAM CHARLES, et. al. Defendants § § § § § § Case No. 4:14CV825 ORDER OF DISMISSAL The above-entitled and numbered civil action was referred to United States Magistrate Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation concluding that the Defendant Juan Marrero’s (hereinafter, “Defendant”) motion to dismiss (Dkt. #49) be granted and the claims against him be dismissed with prejudice. The Report and Recommendation, which contains proposed findings of fact and recommendations for the disposition of such action, has been presented for consideration, and an objection was filed by Plaintiff. In his objection, Plaintiff states that Defendant did not timely respond to the Complaint. See Dkt. #61 at 2. However, Defendant was served on March 3, 2017. Defendant filed an appropriate answer, his motion to dismiss, on March 24, 2017. See Dkt. ##45, 49; FED R. CIV. P. 12(a)(1)(A)(i). Additionally, Plaintiff argues that Defendant’s decision-making was arbitrary and unreasonable because there was a lack of evidence to support the disciplinary decision. See Dkt. #61 at 3-4. Similarly, Plaintiff also argues that he did show that his disciplinary action was overturned. See Dkt. #61 at 5. While Plaintiff does correctly cite to Judge O’Conner’s Order overturning his disciplinary action (see Moore v. Stephens, 7:13-cv-046, Dkt. No. 26, 2014 WL 6485865 (N.D.Tex. November 14, 2014), Plaintiff fails to show that the resulting refiling of the disciplinary action was overturned. Id. at Dkt. #34-1. Therefore, since Plaintiff fails to show the new disciplinary decision was arbitrary, Plaintiff’s claims fail. Finally, Plaintiff argues that Defendant is not part of the corporate entity, under the intracorporate conspiracy doctrine, because Defendant acted outside of his corporate duties. See Dkt. #61 at 6. Movant also alleged that he provided sufficient allegations to sustain his claims. Plaintiff’s allegations, however, fail to show Defendant acted outside the course of his duties. For example, even assuming Defendant filed a false report, filing disciplinary reports are among his duties. For the reasons above, after conducting a de novo review of the record, the court concludes that the findings and conclusions of the Magistrate Judge are correct, and adopts same as the findings and conclusions of the Court. It is accordingly ORDERED Defendant’s motion to dismiss (Dkt. #49) is GRANTED. . It is also ORDERED Plaintiff’s Complaint (Dkt. #1) pursuant to 42 U.S.C. § 1983 is DISMISSED with prejudice against Defendant. All motions by either party not previously ruled upon are DENIED. IT IS SO ORDERED. SIGNED this 8th day of January, 2018. ___________________________________ AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

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