Thomas v. James et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 30 Report and Recommendations, 29 Motion to Dismiss, filed by Tonya Peacock, Kelly May, Dawn Grounds, Christopher Avila. Signed by Judge Robert W. Schroeder, III on 08/04/2015. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
MALCOLM THOMAS

§

v.

§

YONNIE JAMES, ET AL.

§

CIVIL ACTION NO. 5:14cv2

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANTS AVILA, MAY, MERCHANT, AND PEACOCK’S
MOTION TO DISMISS
The Plaintiff Malcolm Thomas, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department
of Criminal Justice, Correctional Institutions Division. This Court ordered that the case be referred
to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
Judges. The named Defendants are TDCJ Executive Director Brad Livingston, Telford Unit Warden
Dawn Merchant (also known as Dawn Grounds), Sgt. Kelley May, grievance investigator Tonya
Peacock, and officers Christopher Avila and Yonnie James.
The Defendants Avila, May, Peacock, and Merchant filed a motion to dismiss. After review
of this motion and the Plaintiff’s amended complaint, the Magistrate Judge issued a Report
recommending that the motion be granted as to the Defendants Merchant and Peacock, and as to the
Plaintiff’s claims for monetary damages against all of the Defendants in their official capacities. The
Magistrate Judge further recommended that the claims against Livingston be dismissed as frivolous
and that the motion to dismiss be denied as to the Defendants Avila and May.
No objections were filed to the Report; accordingly, the parties are barred from de novo
review by the district judge of those findings, conclusions, and recommendations and, except upon
grounds of plain error, from appellate review of the unobjected-to factual findings and legal
1

conclusions accepted and adopted by the district court. Douglass v. United Services Automobile
Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243
(1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is
“clearly erroneous, abuse of discretion and contrary to law.”). It is accordingly
ORDERED that the Report of the Magistrate Judge (ECF TXED 5:14-cv-2, 30) is
ADOPTED as the opinion of the District Court. It is further
ORDERED that the motion to dismiss (ECF TXED 5:14-cv-2, 29) filed by the Defendants
Dawn Merchant and Tonya Peacock is GRANTED. The Plaintiff’s claims against these parties are
DISMISSED with prejudice and they are hereby terminated as parties to the lawsuit. It is further

.

ORDERED that the Plaintiff’s claims for monetary damages against the remaining

Defendants in their official capacities is DISMISSED as barred by the Eleventh Amendment. This
shall not affect any claims for monetary damages against the Defendants in their individual
capacities. It is further
ORDERED that the Plaintiff’s claims against TDCJ Executive Director Brad Livingston are
DISMISSED with prejudice as frivolous. Finally, it is
ORDERED that the motion to dismiss filed by the Defendants Kelly May and Christopher
Avila, also contained in docket no. 29, is DENIED.
SIGNED this 4th day of August, 2015.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

2