West v. Polk

Filing 86

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 67 Report and Recommendations. It is thus ORDERED that Defendants' motions to dismiss (Docket Nos. 35, 48, 57) are DENIED. It is further ORDERED that Defendants have 14 days from the issuance of this order to file their answer to the lawsuit. Signed by District Judge Robert W. Schroeder, III on 11/18/2021.(slo, )

Case 5:19-cv-00174-RWS-CMC Document 86 Filed 11/18/21 Page 1 of 2 PageID #: 314

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
MICHAEL RAY WEST,
Plaintiff,
v.
WARDEN BALDEN POLK, et al.,
Defendants.

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CIVIL ACTION NO. 5:19-CV-00174-RWS

ORDER
Plaintiff Michael Ray West, proceeding pro se, filed the above-captioned action
complaining of alleged violations of his constitutional rights. The case was referred to the United
States Magistrate Judge in accordance with 28 U.S.C. § 636.
Motions to dismiss for failure to exhaust administrative remedies have been filed by the
Defendants Michelle Garland, Jonathan Huff, Darious King, Krystle Moss and Balden Polk
(Docket No. 35), Leonard Willis (Docket No. 48) and Derrick Radford (Docket No. 57). Each
motion points to Plaintiff’s Second Amended Complaint (Docket No. 21) as stating that Plaintiff
has not completed the exhaustion process and argues that the face of the complaint thereby
establishes the failure to exhaust. Plaintiff filed a response to these motions. Docket Nos. 49, 63.
After review of the pleadings, the Magistrate Judge issued a Report and Recommendations
(Docket No. 67) recommending denial of the motions to dismiss because the record before the
Court was not sufficient to resolve the exhaustion question on the pleadings alone. See Cantwell
v. Anderson, 788 F.3d 507, 509 (5th Cir. 2015); Watkins v. Anderson, 213 F.3d 635 (5th Cir. 2000).
Plaintiff received a copy of the Report and Recommendations on or before September 17, 2021.

Case 5:19-cv-00174-RWS-CMC Document 86 Filed 11/18/21 Page 2 of 2 PageID #: 315

Docket No. 70. No objections to the Report and Recommendations were filed. Accordingly, the
parties are 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.
Duarte v. City of Lewisville, Texas, 858 F.3d 348, 352 (5th Cir. 2017).
Nevertheless, the Court has reviewed the pleadings in this cause and the Report and
Recommendations of the Magistrate Judge. Upon such review, the Court has determined that the
Report and Recommendations of the Magistrate Judge is correct. See United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989) (holding 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.”).

Accordingly, the Report and Recommendations of the

Magistrate Judge (Docket No. 67) is ADOPTED as the opinion of the District Court. It is thus
ORDERED that Defendants’ motions to dismiss (Docket Nos. 35, 48, 57) are DENIED.
It is further

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ORDERED that Defendants have 14 days from the issuance of this order to file their

answer to the lawsuit. FED. R. CIV. P. 12(a)(4)(A). The deadlines in the scheduling order set out
in Docket No. 30 shall go into effect upon the filing of the answer. The denial of the motions to
dismiss shall not preclude the Defendants from raising the issue of exhaustion in a motion for
summary judgment or in another procedurally proper way, nor shall it preclude the Plaintiff from
presenting such defenses as he may have to any motions for summary judgment filed by the
Defendants.
So ORDERED and SIGNED this 18th day of November, 2021.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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