Mitchell v. Livingston et al

Filing 34

ORDER ADOPTING INITIAL REPORT AND RECOMMENDATIONS for 18 Report and Recommendations of the United States Magistrate Judge. ORDERED that all claims and parties other than the allegation of excessive force against Bradley Norton be dismissed with prejudice as frivolous and for failure to state a claim upon which relief may be granted. Signed by Judge Michael H. Schneider on 10/16/2015. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
STACY DAMOND MITCHELL

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v.

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BRAD LIVINGSTON, ET AL.

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CIVIL ACTION NO. 6:14cv468

MEMORANDUM ADOPTING INITIAL REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Stacy Mitchell, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. 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. The named defendants are TDCJ Executive Director Brad Livingston, Warden
Todd Foxworth, Sgt. Bradley Norton, Sgt. Samuel Adams, Lt. Myers, Sgt. Angela Davis, Nurse
Linda Laningham, and officers Theresa Brachmeir, Melissa Day, Michael Gongre, Trevor Shannon,
Tracy Ross, Michael Facemire, and Jonathan Newman.
Mitchell complained of a use of force incident occurring April 26, 2012. After an evidentiary
hearing, the magistrate judge issued a report recommending dismissal of all defendants except for
Sgt. Bradley Norton. No objections were filed to this report; 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 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).
The Court has reviewed the pleadings in this cause and the report of the magistrate judge.
Upon such review, the Court has determined that the report of the magistrate judge is correct. See
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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 that the initial report of the magistrate judge (docket no. 18) is ADOPTED as
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the opinion of the District Court. It is further
ORDERED that all claims and parties other than the allegation of excessive force against
Bradley Norton be dismissed with prejudice as frivolous and for failure to state a claim upon which
relief may be granted. It is further
ORDERED that the dismissal of these claims and parties not count as a strike for purposes
of 28 U.S.C. §1915(g).
SIGNED this 16th day of October, 2015.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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