Russell v. Bell et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 26 Report and Recommendations of the U S Magistrate Judge, and GRANTING 21 MOTION to Dismiss filed by Oliver Bell, Kevin Wheat, Brad Livingston, Petra Zeigerman, Phonso Rayford. ORDERED t hat the Clerk shall send a copy of this opinion to the Administrator of the Three Strikes List for the Eastern District of Texas. ORDERED that any and all motions which may be pending in this action are herebyDENIED. Signed by Judge Michael H. Schneider on 1/28/2015. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DAVID RUSSELL #1636898

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v.

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OLIVER BELL, ET AL.

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CIVIL ACTION NO. 6:13cv966

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff David Russell, 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.
Russell complained that an officer named Ziegermann falsified a disciplinary case against
him and the disciplinary hearing officer, Major Rayford, violated his right to due process by
accepting the falsified case and the testimony of the charging officer. He further said that warden
Wheat threatened to send him to “keeplock” (23 hour a day confinement) or to transfer him to
another prison unit because he, Russell, exercised his right to complain. Finally, Russell asserted
that Texas Board of Corrections Chairman Oliver Bell and TDCJ Director Brad Livingston
implemented policies which violated his rights and privileges and failed to curb the actions of their
subordinates.
The Defendants filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P.
12(b)(6). Russell did not file a response to the motion.
After review of the pleadings, the magistrate judge issued a report recommending that the
motion to dismiss be granted and that the lawsuit be dismissed. In his objections to the report,
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Russell states that the magistrate judge did not understand what he is complaining about and did not
view his complaint in the light of a pro se litigant. Russell also complains that the magistrate judge
cited unpublished decisions, to which he has been unable to gain access. He states that the
defendants’ actions have intensified the arthritis in his hands, although he made no mention of such
a claim in his amended complaint.
Russell fails to show that the magistrate judge did not understand his complaint. The report
reveals that the magistrate judge painstakingly recounted Russell’s factual allegations and identified
his legal claims. Nor has Russell shown that the magistrate judge did not treat his complaint with
the liberality that befits a pro se litigant.
While the magistrate judge did cite some unpublished cases, a review of the report
demonstrates that the vast majority of these cases were cited as secondary authority or as examples
of factual applications rather than legal principles. The Court is aware that prisoners experience
difficulty in gaining access to unpublished cases, but in this instance, the magistrate judge cited
published cases in support of each legal conclusion except for the unremarkable proposition that the
filing of a false disciplinary case is essentially a claim of malicious prosecution; the magistrate judge
then cited a published case to show that there is no federal constitutional claim based on the tort of
malicious prosecution. The numerous published cases cited by the magistrate judge were more than
ample to permit Russell to research the law and present cogent objections to the magistrate judge’s
proposed findings, conclusions, and recommendations. Russell’s contention that receiving an
allegedly false disciplinary case somehow aggravated the arthritis in his hand also fails to show that
the magistrate judge’s proposed findings, recommendations and conclusions were in error. Russell’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 objection was made. 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,
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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 that the Plaintiff’s objections are overruled and the report of the magistrate
judge (docket no. 26) is ADOPTED as the opinion of the District Court. It is further
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ORDERED that the Defendants’ motion to dismiss (docket no. 21) is GRANTED and the

above-styled civil action is DISMISSED WITH PREJUDICE for failure to state a claim upon
which relief may be granted. Fed. R. Civ. P. 12(b)(6). It is further
ORDERED that the Clerk shall send a copy of this opinion to the Administrator of the Three
Strikes List for the Eastern District of Texas. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
SIGNED this 28th day of January, 2015.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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