Morton v. Chambers et al
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, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
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
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
ORDERED the Amended Report of the Magistrate Judge (docket no. 17) is ADOPTED as
the opinion of the District Court. It is further
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
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