Harris v. Adcock et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 35 Report and Recommendations, 34 Report and Recommendations, ORDER GRANTING 20 MOTION for Summary Judgment filed by Mark A. Adcock, Michelle Hickey, 14 and GRANTING SEALED MOTION For Summary Judgment filed by Steven Roberts. The above-styled civil action is DISMISSED WITH PREJUDICE. Signed by District Judge Robert W. Schroeder, III on 09/26/18. (lfs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
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SPQR HARRIS,
Plaintiff,
v.
LT. MARK ADCOCK, ET AL.,
Defendant

CIVIL ACTION NO. 5:17cv76

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff SPQR Harris, 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 Lt. Mark Adcock, Sgt. Michelle Hickey, and Nurse Steven Roberts.
I. Background
Plaintiff complained on November 29, 2015, Sgt. Hickey shot him in the foot with a riot gun
using an improperly discharged round. He asserted Lt. Adcock was the supervisor present and failed
to correct Sgt. Hickey’s actions. Plaintiff further claimed Nurse Roberts refused to examine his
claims of injury and denied him medical care.
Sgt. Hickey and Lt. Adcock filed a motion for summary judgment asserting the improper use
of the round was an inadvertent error and not deliberate indifference or intentional use of
excessive force. Nurse Roberts filed a separate motion for summary judgment contending he
examined Plaintiff but found no sign of a recent injury; however, he referred Plaintiff for a
follow-up examination with a medical provider.

This examination, conducted by Nurse

Practitioner Jammie Barker the next day, found Plaintiff’s foot was swollen and tender to the
touch. She sent Plaintiff to a local free-world hospital where he received X-rays. Plaintiff was
subsequently sent to Hospital Galveston where he received a medical boot and restrictions

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including a bottom row and bottom bunk assignment, medical unassignment from work, and a
crutch/brace/walker pass. Nurse Roberts therefore argued he was not deliberately indifferent to
Plaintiff’s serious medical needs. Plaintiff was ordered to respond to the motions to summary
judgment but failed to do so despite seeking and receiving an extension of time to respond.
II. The Magistrate Judge’s Reports
After Plaintiff’s time to respond to the motions for summary judgment had expired, the
Magistrate Judge issued two Reports recommending the Defendants’ motions for summary
judgment be granted. Docket Nos. 34 and 35. After observing that Plaintiff had failed to
prosecute his case by not responding to the motions for summary judgment after being ordered
to do so, the Magistrate Judge reviewed the summary judgment evidence and determined the use
of the improper round was an unintentional mistake and neither Sgt. Hickey nor Lt. Adcock
intentionally used excessive force or were deliberately indifferent to Plaintiff’s safety. The
Magistrate Judge also concluded Nurse Roberts was not deliberately indifferent to Plaintiff’s serious
medical needs and all three defendants were entitled to qualified and Eleventh Amendment
immunity.
Copies of these Reports were sent to Plaintiff at his last known address, the Gib Lewis
Unit of TDCJ-CID. When the Court did not receive acknowledgment of receipt, an on-line
search revealed the Plaintiff had been transferred to the Telford Unit. The Reports were remailed
to the Telford Unit despite Plaintiff not having filed a change of address, as is his responsibility.1
However, the Court again has not received acknowledgment of receipt.
As a general rule, litigants, including prisoners, bear the burden of filing notice of a
change of address in such a way that will bring the attention of the court to the address
change. See Martinez-Reyes v. United States, 2016 WL 8740494 (S.D. Tex. Oct. 10, 2016)

The complaint form filed by Plaintiff (Docket No. 1 at 6) contains a declaration stating “I
understand, if I am released or transferred, it is my responsibility to keep the court informed of
my current mailing address and failure to do so may result in the dismissal of the lawsuit.”
1

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(quoting Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1267 (10th Cir. 1999)). This requirement
is memorialized in the Eastern District of Texas Local Rule CV-11(d): “A pro se litigant must
provide the court with a physical address, i.e., a P.O. Box is not acceptable, and is responsible for
keeping the clerk advised in writing of the current physical address.”
Fed. R. Civ. P. 5(b)(2)(C) provides that a paper is served by mailing it to the person’s last
known address, in which event service is complete upon mailing. See Penley v. Sandoval, Case
No. 4:04-cv-24, 2005 WL 3970822 (E.D. Tex. March 8, 2005), aff’d sub nom. Penley v. Collin
County, Texas, 446 F.3d 572, 573 (5th Cir. 2006), cert. denied, 549 U.S. 883 (2006) (Magistrate
Judge’s Report mailed February 9, 2005 and service was completed at the time of mailing
under Rule 5(b)(2)(C); thus, the plaintiff’s objections were due on February 28, 2005, and the
fact he did not receive the report until February 14 was irrelevant).
In this case, the Reports were issued on August 21 and August 22, 2018 and mailed to
Plaintiff at his last known address. They were then remailed to the address to which prison records
showed he had been transferred. Service of the Reports was complete upon mailing and no
objections have been filed. Accordingly, 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 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 case and the Reports of the Magistrate Judge.
Upon such review, the Court has determined the Reports of the Magistrate Judge are correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (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,

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.

ORDERED that the Reports of the Magistrate Judge (Docket Nos. 34 and 35) are
ADOPTED as the opinion of the District Court and that Defendants’ motions for summary
judgment (Docket Nos. 14 and 20) are GRANTED. Accordingly, the above-styled civil action is
DISMISSED WITH PREJUDICE. A final judgment will be entered in this case in accordance
with the magistrate judge’s recommendation.
So ORDERED and SIGNED this 26th day of September, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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