Grohoske v. Fontner et al

Filing 71

MEMRANDUM ORDER overruling objections and adopting 63 Report and Recommendation. This 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. All motions not previously ruled on are denied. Signed by District Judge Ron Clark on 3/28/19. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DAVID LESTER GROHOSKE

§

v.

§

LONI FONTNER, ET AL.

§

CIVIL ACTION NO. 6:17cv218

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff David Grohoske, a 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. Grohoske’s amended complaint names as defendants TDCJ Executive Director
Bryan Collier, Wardens Monroe, Berger, Meador, and Cockrell, Major Funai, and prison officials
Officers Enge, Rendon, Sharp, Fontner, Monell, Love, and Sullivan, as well as a number of unnamed
officers.
I. Background
In his amended complaint, Grohoske stated that he is being harmed, raped, tortured
unconscious, and persecuted by an unknown sound source, speakers, radio, TV, and “ways of
speaking known by TDCJ, inmates, staff, media, radios, TV’s, stations, networks, known by people,
government, laws, military, or other.” He characterized himself as a hostage, not a prisoner, and
claimed that he was sexually assaulted in 2013. When he returned from the Skyview psychiatric
unit, Grohoske stated that he gave “immutable trait telepathy thought translation” to Warden

1

Meador, but Meador did not take action to assist him. Grohoske also stated that he has heard people
defaming his name as well as his parents’ names.
Grohoske indicated that he is being persecuted because he can rebuke homosexuals and
warlocks. His pleadings, while not clear, appeared to state that he told Loni Fontner and a nurse that
he knew he was being raped by someone; however, Grohoske states that he was told this was not
happening. He said that people were jealous of his authority from God and listed a number of
names, including people he said were from Falls County as well as entertainers such as Beyonce
Knowles, Vin Diesel, Danny Devito, and Arnold Schwartzenegger, whom he apparently believed
were among those broadcasting his name.
After review of the pleading, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed as factually frivolous, in that the facts alleged are irrational and wholly
incredible. Flores v. U.S. Attorney General, 434 F.App’x 387, 2011 WL 3209869 (5th Cir., July 27,
2011), citing Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).
Grohoske has filed objections to the Report.
II. The Plaintiff’s Objections
Neither Grohoske’s objections nor the memorandums of law he has filed mention the
Magistrate Judge’s Report, much less lodge any specific objections to any proposed findings or
recommendations. Instead, these pleadings consist of rambling paragraphs replete with references
to Bible passages and citations to inapplicable cases.
The Supreme Court has explained that a party which files a timely objection is entitled to a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667, 673
(1980); 28 U.S.C. §636(b)(1). The objections must specifically identify those findings or
recommendations to which objections are being made. This comports with Fed. R. Civ. P. 72(b)(2),
which provides that within 14 days after being served with a copy of the Magistrate Judge’s
recommended disposition, a party may serve and file “specific written objections” to the proposed
2

findings and recommendations. Once this is done, Rule 72(b)(3) provides that the district judge
must determine de novo any part of the Magistrate Judge’s disposition that has been “properly”
objected to.
The district court need not consider frivolous, conclusive, or general objections. Battle v.
U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). Moreover, where the objections are
repetitive of the arguments already made to the magistrate judge and the district court finds no error,
the court need not make new findings or reiterate the findings of the magistrate judge. Hernandez
v. Livingston, 495 F. App'x 414, 2012 U.S. App. LEXIS 21988, 2012 WL 5195813 (5th Cir.,
October 22, 2012); Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. 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.”) Those portions of the
Magistrate Judge’s Report to which no objections were made have not been reviewed de novo, and
the unobjected-to factual findings and legal conclusions accepted and adopted by the district court
may not be reviewed on appeal except upon grounds of plain error. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
Upon such de novo review, the Court has determined 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. 63) 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. It is further

3

ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So Ordered and Signed
Mar 28, 2019

4