Davis v. Evans et al

Filing 15

ORDER ADOPTING 9 REPORT AND RECOMMENDATIONS and ORDERED that claims against Defendant Jon Braun is DISMISSED WITH PREJUDICE for purposes of proceeding in forma pauperis as frivolous and for failure to state a claim which relief may be granted. Jon Braun is now terminated.. Signed by Judge Robert W. Schroeder, III on 7/20/2016. (sm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION FIDEL DAVIS § v. § T. EVANS, ET AL. § CIVIL ACTION NO. 5:15cv138 MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON DISMISSAL OF DEFENDANT JON BRAUN The Plaintiff Fidel Davis, 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. Plaintiff named a fellow inmate, Jon Braun, as a defendant in the lawsuit, stating Braun sexually assaulted him while he slept. The Magistrate Judge issued a Report recommending the claims against Braun be dismissed because Braun did not act under color of state law and thus is not amenable to suit under §1983. In his objections, Davis does not address the issue of state action; instead, he cites an Eighth Circuit case called Wade v. Haynes, 663 F.2d 778 (8th Cir. 1981), but that case dealt with the liability of prison officials, not the liability of a prisoner. He also refers to the Fifth Circuit decision in Alexander v. Ieyoub, 62 F.3d 709 (5th Cir. 1995), which involved the owner of a seized car bringing suit against district attorneys and assistant district attorneys for denial of due process in the course of forfeiture proceedings, but fails to show how this decision applies in the present case. The Magistrate Judge correctly determined Braun was not a state actor and therefore not subject to suit under §1983. Johnson v. Dallas Independent School District, 38 F.3d 198, 199 (5th Cir. 1994); 1 Gamez-Abrego v. Orleans Parish Jail, civil action no. 10-1595, 2010 U.S. Dist. LEXIS 91046 (E.D.La., July 19, 2010), Report adopted at 2010 U.S. Dist. LEXIS 91051 (E.D.La., September 1, 2010) (an inmate involved in a prison fight is not a person acting under color of state law as required for liability under §1983). Plaintiff’s objections are without merit. The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1) (district judge shall “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”) Upon such de novo review, the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s . objections are without merit. It is accordingly ORDERED the Plaintiff’s objections are overruled and the Report of the Magistrate Judge regarding defendant Jon Braun (docket no. 9) is ADOPTED as the opinion of the District Court. It is further ORDERED the Plaintiff’s claims against the Defendant Jon Braun are DISMISSED WITH PREJUDICE for purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which relief may be granted. The dismissal of these claims shall not affect the remaining claims in the lawsuit. SIGNED this 20th day of July, 2016. ____________________________________ ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE 2

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