Whitlock v. Stephens et al

Filing 60

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 55 Report and Recommendations, 49 Motion to Dismiss filed by Cathy McPeak, Jamie Barker, Reginaldo F Stanley. Signed by Judge Rodney Gilstrap on 12/07/2016. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
TARRANCE DARON WHITLOCK

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v.

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WILLIAM STEPHENS, ET AL.

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CIVIL ACTION NO. 5:14cv94

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANTS DR. STANLEY, McPEAK, AND BARKER
The Plaintiff Tarrance Whitlock, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court referred the
case 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-CID Director William Stephens, Access to
Courts Supervisor Vickie Barrows, Warden Dawn Grounds (now known as Dawn Merchant),
Telford Unit law librarian Chequita Dunbar, Dr. Reginaldo Stanley, practice manager Cathy
McPeak, and physician’s assistant Jamie Barker.
The Defendants Stephens, Barrows, Merchant, and Dunbar have filed a motion to dismiss,
and the Defendants Dr. Stanley, McPeak, and Barker have filed a separate motion to dismiss. This
Memorandum Opinion concerns the Report of the Magistrate Judge recommending the motion to
dismiss by Dr. Stanley, McPeak, and Barker be granted. Plaintiff received a copy of this Report
together with a separate Report involving the claims against Stephens, Barrows, Merchant, and
Dunbar; he filed objections to the other Report, but did not object to the Report involving Dr.
Stanley, Barker, and McPeak. A review of the objections he did file, to the other Report, shows
these objections contain no mention of the claims against Dr. Stanley, Barker, or McPeak.

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I. Background
Plaintiff set out three specific causes of action against Dr. Stanley, Barker, and McPeak.
These are: (1) they violated his right to due process by failing to follow prison policy and issue him
a medical pass; (2) they violated his right to equal protection by discriminating against him and
denying him a medical pass; and (3) they violated his right to be free from cruel and unusual
punishment through deliberate indifference to his serious medical condition. The Defendants filed
a motion to dismiss, to which Plaintiff filed a response.
II. The Report of the Magistrate Judge
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
motion to dismiss be granted. The Magistrate Judge concluded that: (1) Plaintiff was not denied due
process through a failure by prison officials to follow prison policies or the failure to furnish him
with such medical passes as he believed appropriate; (2) the fact Plaintiff’s grievances were denied
is not a violation of due process; (3) Plaintiff was not denied equal protection, either as a writ writer
or as a class of one; (4) Plaintiff was not subjected to cruel and unusual punishment or to deliberate
indifference to his serious medical needs; and (5) the Defendants Dr. Stanley, Jamie Barker, and
Cathy McPeak are entitled to qualified and Eleventh Amendment immunity.
Plaintiff received a copy of this Report on October 7, 2016. He filed no objections thereto.
Thus, he is 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 unobjectedto proposed factual findings and legal conclusions accepted and adopted by the district court.
Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
III. Conclusion
The Court has reviewed the record 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

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(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 the Report of the Magistrate Judge (docket no. 55) is ADOPTED as the opinion
of the District Court. It is further

. ORDERED the motion to dismiss filed by the Defendants Dr. Stanley, Barker, and McPeak
(docket no. 49) is GRANTED and the claims against these Defendants are DISMISSED WITH
PREJUDICE. Because all claims and parties have been dismissed, it is further
ORDERED the above-styled civil action is DISMISSED WITH PREJUDICE for failure
to state a claim upon which relief may be granted. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 7th day of December, 2016.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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