Benedict v. Simon et al

Filing 46

ORDER adopting 44 Report and Recommendation. Ordered that the Defendant Thomas Simon's 34 motion for summary judgment is granted and the claims against Simon are dismissed with prejudice. Ordered that the Plaintiff's claims against the Defendant Tyler Jones are dismissed with prejudice as frivolous and for failure to state a claim upon which relief may be granted. Ordered that any and all motions which may be pending in this civil action are hereby denied. Signed by Judge Ron Clark on 1/4/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
NICHOLAS BENEDICT

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v.

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THOMAS SIMON, III

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CIVIL ACTION NO. 6:14cv712

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Nicholas Benedict, a former prisoner of the Texas Department of Criminal
Justice, Correctional Institutions Division 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 Sgt. Thomas Simon and former TDCJ officer
Tyler Jones.
Benedict complained of an alleged use of excessive force on August 9, 2013. Simon
answered the lawsuit and filed a motion for summary judgment, but service of process on Jones was
returned unexecuted.
After review of the pleadings and the summary judgment evidence, the Magistrate Judge
issued a Report recommending that Simon’s motion for summary judgment be granted. The
Magistrate Judge also concluded that the granting of Simon’s motion for summary judgment would
operate to Jones’ benefit and that Benedict’s claims against Jones had no arguable basis in law and
failed to state a claim upon which relief may be granted. The Magistrate Judge therefore
recommended that the lawsuit be dismissed in its entirety.

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A copy of the Magistrate Judge’s Report was sent to Benedict’s last known address, return
receipt requested, but no objections have been received; accordingly, he 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 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
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 Report of the Magistrate Judge (docket no. 44) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the Defendant Thomas Simon’s motion for summary judgment (docket no.
34) is GRANTED and the claims against Simon are DISMISSED WITH PREJUDICE. It is
further
ORDERED that the Plaintiff’s claims against the Defendant Tyler Jones are DISMISSED
WITH PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted.
Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So ORDERED and SIGNED this 4 day of January, 2017.

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Ron Clark, United States District Judge

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