Curtis v. Egan et al

Filing 44

MEMORANDUM ORDER adopting 40 Report and Recommendation and denying 39 Motion for relief from judgment. Signed by District Judge Ron Clark on 6/23/19. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DALE ALAN CURTIS

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v.

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CHERYL EGAN, ET AL.

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CIVIL ACTION NO. 6:17cv576

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING MOTION FOR RELIEF FROM JUDGMENT
The Plaintiff Dale Alan Curtis 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. As Defendants, Curtis named Beto Unit Physician’s Assistant Cheryl Egan; the
Administrator of the Program Office of Professional Services for the TDCJ Health Services Division
(subsequently identified as Myra Walker) Beto Unit correctional officers Reshetta Lewis, Rose
Coburn, and Keith Foust; investigator Christy Hoisington; Terrell Unit medical provider Erin Jones;
Joni White, assistant director of the TDCJ Bureau of Classification; the Chief of Classification at
the Beto Unit (subsequently identified as Ramona Pharis); and “other unknown persons.”
The Defendants Pharis and Walker filed a motion to dismiss, as did the Defendants Egan and
Dr. Jones. The Defendants Hoisington, Foust, and White filed a motion for partial summary
judgment limited to the issue of exhaustion of administrative remedies on the retaliation claims
against them. Curtis did not respond to any of these motions.
After review of the pleadings and summary judgment evidence, the Magistrate Judge issued
a Report recommending that the two motions to dismiss and the motion for partial summary
judgment be granted. Curtis filed objections, but these were overruled and the motions were granted
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on March 5, 2019. As a result, the Defendants Pharis, Walker, Egan, and Dr. Jones were dismissed
from the lawsuit and the retaliation claims against Hoisington, Foust, and White were also
dismissed.
On April 8, 2019, Curtis filed a motion for relief from judgment under Fed. R. Civ. P. 60(b).
This motion focused on the manner in which judicial officers of the Court were assigned to the case
and also complained that all of the defendants were required to be represented by one attorney. On
May 10, 2019, the Magistrate Judge issued a Report recommending that the motion for relief from
judgment be denied. Curtis received a copy of this Report on May 17, 2019, but has filed no timely
objections thereto; 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. 40) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the Plaintiff’s motion for relief from judgment (docket no. 39) is DENIED.
So ORDERED and SIGNED June 23, 2019.

____________________________
Ron Clark, Senior District Judge

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