Casares v. Linthicum et al

Filing 43

MEMORANDUM OPINION AND ORDER. Accordingly, it is ORDERED that the Report of the United States Magistrate Judge, (Dkt. # 36 ), is ADOPTED as the opinion of the Court. Further, it is ORDERED that Plaintiff's motion for leave to amend his complai nt, (Dkt. # 30 ), is GRANTED. Plaintiff's filed amended complaint, (Dkt. # 31 ), is the operative pleading in this case. Additionally, it isORDERED that, in light of Plaintiff's amended complaint, Defendants' motions todismiss, (Dkt. #s 13 , 16 , 18 ), as well as Defendants' motion for summary judgment, (Dkt. # 29 ), are DENIED as mootsubject to reurgance if appropriate. Signed by District Judge Richard A. Schell on 2/11/2019. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
VINCENT CASARES, #1850085

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VS.

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DR. LINTHICUM, ET AL.

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CIVIL ACTION NO. 6:17cv701

MEMORANDUM OPINION ADOPTING THE REPORT
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Vincent Casares, an inmate confined at the Eastham Unit within the Texas
Department of Criminal Justice, (TDCJ), proceeding pro se and in forma pauperis, filed this
above-styled and numbered civil rights lawsuit. The complaint was referred to the United States
Magistrate Judge, the Honorable K. Nicole Mitchell for findings of fact, conclusions of law and
recommendations for the disposition of the case.
On January 7, 2019, Judge Mitchell issued a Report, (Dkt. #36), recommending that
Plaintiff’s motion for leave to amend his complaint be granted and that his filed amended
complaint, (Dkt. #31), be the operative pleading. She also recommended that, in light of Plaintiff’s
amended complaint, Defendants’ motion to dismiss and motion for summary judgment based on
exhaustion be denied as moot. A copy of this Report was sent to both parties. The docket
illustrates that Plaintiff received a copy of the Report on January 11, 2019, (Dkt. #37). However,
to date, no objections to the Report have been filed.
Because no objections were filed, 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

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accepted and adopted by the district court. Douglass v. United Services Auto. 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.”). Accordingly, it is
ORDERED that the Report of the United States Magistrate Judge, (Dkt. #36), is
ADOPTED as the opinion of the Court. Further, it is
ORDERED that Plaintiff’s motion for leave to amend his complaint, (Dkt. #30), is
GRANTED. Plaintiff’s filed amended complaint, (Dkt. #31), is the operative pleading in this
case. Additionally, it is
ORDERED that, in light of Plaintiff’s amended complaint, Defendants’ motions to
dismiss, (Dkt. #’s 13, 16, 18), as well as Defendants’ motion for summary judgment, (Dkt. #29),
are DENIED as moot—subject to reurgance if appropriate.

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SIGNED this the 11th day of February, 2019.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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