Buholtz v. Carroll et al

Filing 47

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 24 Motion to Dismiss filed by W Kenneth Paxton, John Spacia, Bart Carroll, Delia Guillarmondegui, 25 Motion to Dismiss filed by Billy Lanier 38 Re port and Recommendations. It is, therefore, ORDERED that Defendants' Motions to Dismiss (Dkt. 24 and 25 ) are GRANTED, and Plaintiff's claims against all Defendants are DISMISSED with prejudice under the doctrine of res judicata and Rule 12(b)(6). All relief not previously granted is DENIED. Signed by Judge Richard A. Schell on 5/15/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

KENNETH LEO BUHOLTZ, AS
GUARDIAN AD LITEM, ON BEHALF
OF HIS MINOR CHILDREN JCG &
LSB;

v.
BART CARROLL, ET AL.;

§
§
§ Civil Action No. 4:16-CV-00747
§ (Judge Schell/Judge Johnson)
§
§
§
§

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On April 26, 2017, the report of the Magistrate Judge (Dkt. #38) was entered containing proposed
findings of fact and recommendations that Defendants’ Motions to Dismiss (Dkts. #24-25) be
granted. The Magistrate Judge recommended pro se Plaintiff’s claims be dismissed because all of
the elements of res judicata were met, and because Plaintiff failed to state a claim upon which
relief can be granted. Additionally, on May 3, 2017, the Magistrate Judge entered an order
(Dkt. #40) denying Plaintiff’s request for the court to appoint an attorney ad litem for his
children. Plaintiff first argues that the Magistrate Judge erred in finding that the Eastern District
of Virginia dismissed Plaintiff’s § 1983 claims with prejudice in a prior lawsuit (Dkt. #43 at
3). Plaintiff asserts that because the order from the Eastern District of Virginia did not
specifically provide that his § 1983 claims were dismissed with prejudice, the doctrine of res
judicata does not apply. Id. However, under Federal Rule of Civil Procedure 41(b), unless the
dismissal order states otherwise, an involuntary dismissal operates as an adjudication on the
merits. Plaintiff’s federal claims were previously dismissed in the Eastern District of
Virginia, and because the Eastern

District of Virginia did not provide otherwise, the dismissal was an adjudication on the merits.
Buholtz v. Carroll, 2016 U.S. Dist. LEXIS 5570, at *6 (E.D. Va. Jan. 15, 2016) (“Accordingly,
Buholtz has failed to allege any cognizable § 1983 claims against Defendants. Therefore,
Butholz’s § 1983 claims will be dismissed as frivolous.”). Thus, Plaintiff’s objection is overruled.
As to Plaintiff’s objection regarding dismissal under Rule 12(b)(6), Plaintiff reiterates the
same arguments articulated in his responses to Defendants’ motions to dismiss (Dkts. #33-34).
Plaintiff has failed to show a violation of a constitutional right. The Due Process Clause does not
require a State to provide its citizens with particular protective services, and a State’s failure to
protect an individual against private violence does not violate the Due Process Clause. DeShaney
v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). Additionally, Plaintiff has not
suggested or demonstrated a violation of the Equal Protection Clause. Although Plaintiff has
alleged his children were violated or wronged by the children’s mother, he has failed to allege any
violation of his children’s constitutional rights by a State actor. Thus, this objection is overruled.
Plaintiff finally objects to the Magistrate Judge denying Plaintiff’s request to appoint
an attorney ad litem for his children (Dkt. #43 at 2-3). The court construes this objection as a
motion to reconsider. See 28 U.S.C. § 636(b)(1)(a). In order to succeed on a motion to reconsider,
Plaintiff must show that the Magistrate Judge’s order is clearly erroneous or contrary to law.
Id. After reviewing Plaintiff’s objections, the court finds the Magistrate Judge's order was not
clearly erroneous or contrary to law. Thus, Plaintiff’s final objection is overruled.
Having received the report of the United States Magistrate Judge, having considered
each of Plaintiff’s timely filed objections (Dkt. #43), and having conducted a de novo review, the
court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and
adopts the Magistrate Judge’s report (Dkt. #38) as the findings and conclusions of the court.

2

The court further finds that the Magistrate Judge's order denying Plaintiff’s request to appoint
an attorney ad litem for his children was not clearly erroneous or contrary to law.
It is, therefore, ORDERED that Defendants’ Motions to Dismiss (Dkt. #24-25) are
GRANTED, and Plaintiff’s claims against all Defendants are DISMISSED with prejudice under
the doctrine of res judicata and Rule 12(b)(6).
All relief not previously granted is DENIED.

IT IS SO ORDERED.
.

SIGNED this the 15th day of May, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

3