Morton v. Chambers et al

Filing 21

MEMORANDUM ADOPTING AMENDED REPORT AND RECOMMENDATION re 17 Amended Report and Recommendation. (Signed by Judge Robert W. Schroeder, III on 7/5/2017. (slo, ) Modified on 7/5/2017 (slo, ).

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION JONATHAN MORTON § v. § CURTIS CHAMBERS, ET AL. § CIVIL ACTION NO. 5:16cv60 MEMORANDUM ADOPTING AMENDED REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE The Plaintiff Jonathan Morton 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 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. As Defendants, Morton named the following individuals: TDCJ-CID Officer Curtis Chambers; TDCJ Executive Director Brad Livingston; Texas Board of Corrections board members Dal Wainwright, Telly McCombs, Leopoldo Vasquez, Tom Fordyce, Eric Gambell, Larry Gist, Larry Miles, Darrelynn Perryman, and Thomas Wingate; Telford Unit Warden John Wilson and Assistant Warden Lonnie Townsend; former property officer H. McLilly; Captain Dennis Martin; regional grievance coordinator B. Parker; Warden Dawn Merchant; program supervisor Connie Tisdale; and Telford Unit mailroom supervisor S. DeRamcy. Docket No. 1 at 1. An Initial Report and Recommendation was issued on October 14, 2016 (Docket No. 9), but the Plaintiff subsequently filed an amended complaint restating and clarifying his claims (Docket No. 13). On April 27, 2017, the Magistrate Judge vacated the Initial Report and issued an Amended Report (Docket No. 17) recommending all of the claims except for Plaintiff’s claim of excessive force by Officer Curtis Chambers be dismissed without prejudice for failure to state 1 a claim. Id. at 26. The Magistrate Judge further recommended dismissal of all Defendants except for Chambers. Id. In response, Plaintiff wrote a letter postmarked May 2, 2017 asserting he has little understanding of the law but has been denied counsel. Docket No. 18. He states, “I do wish to proceed forward with the excessive force on defendant Curtis Chambers, as well as request that the District Judge appoint me counsel throughout this civil action. No objections to the Magistrate Judge’s Initial Report / Recommendation at this time other than stated.” Id. at 1. The only objection voiced by Plaintiff was to the denial of counsel by the Magistrate Judge, which was not done in the Amended Report but by separate orders. See Docket Nos. 4, 16. The Court has conducted a de novo review of the denial of counsel and has determined the Magistrate Judge did not err in concluding Plaintiff failed to show the exceptional circumstances required for appointment of counsel at this time. Because no objections were made to the Magistrate Judge’s proposed findings, conclusions, and recommendations contained in the Report, the Plaintiff 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 unobjected-to 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). The Court has reviewed the record and has determined the Amended 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 the Amended Report of the Magistrate Judge (docket no. 17) is ADOPTED as the opinion of the District Court. It is further 2 ORDERED the Plaintiff’s claims against the Defendants Brad Livingston, Dal Wainwright, Telly McCombs, Leopoldo Vasquez, Tom Fordyce, Eric Gambell, Larry Gist, Larry Miles, Darrelynn Perryman, Thomas Wingate, John Wilson, Lonnie Townsend, H. McLilly, Dennis . Martin, B. Parker, Dawn Merchant, Connie Tisdale, and S. DeRamcy are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. These individuals are DISMISSED as parties to the lawsuit. It is further ORDERED the Plaintiff’s claim against Officer Chambers for allegedly writing him a false disciplinary case is DISMISSED without prejudice for failure to state a claim. The dismissal of these claims and parties shall have no effect upon the Plaintiff’s claim against Officer Chambers for allegedly using excessive force on him on February 2, 2015, which is the only claim remaining in the lawsuit. SIGNED this 5th day of July, 2017. ____________________________________ ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE 3

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