Peek v. Red River County et al

Filing 10

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION OF U. S. MAGISTRATE JUDGE. It is ordered that this civil action is dismissed with prejudice for purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which relief may be granted. Signed by Judge Ron Clark on 3/3/17. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BEN RAY PEEK

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v.

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RED RIVER COUNTY, ET AL.

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CIVIL ACTION NO. 6:16cv378

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Ben Peek filed this lawsuit under 42 U.S.C. §1983 complaining of alleged
violations of the constitutional rights of his son. 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.
Peek lists Red River County, the City of Clarksville, Sheriff Jimmy Caldwell, and Police Chief
Brandon Harbison as defendants; however, he states that “actually, the lawsuit is against the public
(police) review board, not really an individual.”
Peek stated that he wishes to see justice done for his son, who has been incarcerated for eight
and a half years. He added that “there are a number of people who also need to see justice done,”
although he concedes he has no proof of their circumstances. He attached materials discussing the
trial of his son Brent Peek. Texas prison records show Brent Peek is serving a 41 year sentence for
intoxication manslaughter, with four previous felony convictions for driving while intoxicated.
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed. The Magistrate Judge observed that persons claiming a deprivation of
constitutional rights must show a deprivation of their personal rights, meaning that Ben Peek cannot
bring suit on behalf of his son. The Magistrate Judge further stated that the lawsuit stems from the
criminal prosecution of Brent Peek and a civil rights lawsuit based on a criminal prosecution cannot
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be pursued until the conviction or sentence is reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or called into question by a federal court’s
issuance of a writ of habeas corpus. Because no such showing was made, the Magistrate Judge
stated the lawsuit may be dismissed on this basis as well.
Peek received a copy of this Report on May 19, 2016. He telephoned the U.S. District Clerk
for the Eastern District of Texas to state that he had some medical issues and has been in the
hospital, and that is why he had not filed objections to the R&R. A notation on the docket shows
Peek was advised to explain this in writing and send it to the Court as soon as possible. On-line
records show Peek passed away in September of 2016. His executors have not contacted the Court
or otherwise expressed a desire to pursue the lawsuit.
Because no objections were filed to the Report, 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. 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. 8) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE for
purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which
relief may be granted. The dismissal of this lawsuit is without prejudice to Brent Peek’s right to
challenge his conviction through any lawful means, and without prejudice to Brent Peek’s right to
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file a civil rights lawsuit concerning his conviction in the event this conviction is reversed,
expunged, or otherwise set aside. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So Ordered and Signed
Mar 3, 2017

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