Mark v. Spears et al

Filing 46

ORDER OF PARTIAL DISMISSAL adopting 38 Report and Recommendation insofar as it recommends dismissal of pltf's time-barred claims. Defts' 17 , 20 and 23 Motions to Dismiss are granted to the limited extent that pltf's 2014, 20 15, and 2016 claims are dismissed, with prejudice, because they are time-barred. Pltf's 2017 and 2018 claims will proceed before the court. Ordered that any claim for monetary damages against defts in their official capacities is dismissed with prejudice. Signed by District Judge Thad Heartfield on 8/22/19. (tkd, ) Modified on 8/23/2019 (tkd, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
MICHAEL L. MARK, #1064829

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VS.

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LEE ANN SPEARS, ET AL.

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CIVIL ACTION NO. 6:18cv309

ORDER OF PARTIAL DISMISSAL
Plaintiff Michael L. Mark, an inmate currently confined at the Powledge Unit within the
Texas Department of Criminal Justice, (TDCJ), is proceeding pro se and in forma pauperis in the
above styled and numbered civil rights lawsuit. Mark is complaining about alleged constitutional
violations occurring at the Powledge Unit. 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 July 30, 2019, Judge Mitchell issued a Report, (Dkt. #38), recommending that
Defendants’ motions to dismiss, (Dkt. ### 17, 20, and 23), be granted because Plaintiff’s 2014,
2015, and 2016 claims are time-barred. Judge Mitchell also recommended that Plaintiff’s claims
for monetary damages against Defendants in their official capacities be dismissed by virtue of the
Eleventh Amendment. A copy of this Report was sent to Plaintiff at his address; return receipt
requested. Plaintiff has filed timely objections, (Dkt. #44).
In his objections, Plaintiff explains that he attached prison grievances submitted in 2017
and 2018 to his amended complaint. He argues that his 2017 and 2018 claims—allegations
regarding legal mail, legal citations and materials, retaliation, and access to the law library—are
not time-barred.

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The court has conducted a careful de novo review of record and the Magistrate Judge’s
proposed findings and recommendations. 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.”). Upon such de novo review, the court has
determined that the Report of the United States Magistrate Judge is correct insofar as it
recommended dismissal of Plaintiff’s time-barred claims. Accordingly, it is
ORDERED that the Report of the United States Magistrate Judge, (Dkt. #38), is
ADOPTED as the opinion of the court insofar as it recommends dismissal of Plaintiff’s timebarred claims. Further, it is
ORDERED that Defendants’ motions to dismiss, (Dkt. ### 17, 20, 23), are GRANTED
to the limited extent that Plaintiff’s 2014, 2015, and 2016 claims are dismissed, with prejudice,
because they are time-barred. Plaintiff’s 2017 and 2018 claims will proceed before the court.
Further, it is
ORDERED that any claim for monetary damages against Defendants in their official
capacities is DISMISSED, with prejudice.
SIGNED this the 22 day of August, 2019.

____________________________
Thad Heartfield
United States District Judge

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