Mark v. Spears et al

Filing 98

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 95 Report and Recommendations of the United States Magistrate Judge. ORDERED that Defendants motion for summary judgment limited to exhaustion, (Dkt.#74), is DENIED and the remaining claims in Plaintiffs civil rights lawsuit are DISMISSED. Signed by District Judge Thad Heartfield on 2/7/2022. (gsg)

Case 6:18-cv-00309-TH-KNM Document 98 Filed 02/07/22 Page 1 of 3 PageID #: 595

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 DISMISSAL
Plaintiff Michael L. Mark, an inmate confined at the Powledge Unit within the Texas
Department of Criminal Justice (TDCJ) proceeding pro se and in forma pauperis, filed this civil
rights lawsuit pursuant to 42 U.S.C. § 1983. The case was referred to United States Magistrate
Judge K. Nicole Mitchell for findings of fact, conclusions of law, and recommendations for the
disposition of the case. The Court previously dismissed Plaintiff’s 2014, 2015, and 2016 claims as
time-barred by separate order of partial dismissal, (Dkt. #46).
On December 16, 2021, Judge Mitchell issued a Report, (Dkt. #95), recommending that
Defendants’ motion for summary judgment limited to exhaustion, (Dkt. #74) be denied and that
Plaintiff’s remaining claims in this lawsuit be dismissed, with prejudice, for the failure to state a
claim upon which relief may be granted. Plaintiff has filed timely objections, (Dkt. #97).
A party objecting to a Magistrate Judge’s Report must specifically identify those findings
to which he objects. Frivolous, conclusory, or general objections need not be considered by the
District Judge. See Nettles v. Wainright, 677 F.2d 404, 410 & n.8 (5th Cir. 1982) (en banc).
Furthermore, objections that simply rehash or mirror the underlying claims addressed in the Report
are not sufficient to entitle the party to de novo review. See U.S. v. Morales, 947 F.Supp.2d 166,
171 (D.P.R. 2013) (“Even though timely objections to a report and recommendation entitle the

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objecting party to de novo review of the findings, ‘the district court should be spared the chore of
traversing ground already plowed by the Magistrate.’”) (internal citations omitted); see also Vega
v. Artuz, 2002 WL 31174466, at *1 (S.D. NY Sep. 2002) (unpublished) (“However, objections
that are merely perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original petition will not suffice to invoke de novo
review of the magistrate judge’s recommendations.”).
Here, Plaintiff’s objections demonstrate the accuracy of Judge Mitchell’s Report.
Specifically, with respect to Plaintiff’s various access-to-courts claims, Plaintiff states on objection
that “there[’]s no way to reveal the magnitude of assistance that could’ve been attained. My
conviction could be overturned already,” (Dkt. #97, pg. 3), had prison officials not retaliated
against him by impeding his right to access the courts.
This objection, however, confirms Judge Mitchell’s specific findings that Plaintiff failed
to plead or indicate actual injury—as speculation of actual injury does not suffice. See Lewis v.
Casey, 518 U.S. 343, 351-55 (1996) (providing examples illustrating that concrete harm is required
to show an access-to-courts violation—such that speculation of an actual injury would necessarily
fail); see also Breshears v. Brown, 150 F. App’x 323, 325-26 (5th Cir. 2005) (unpublished)
(affirming dismissal, summary judgment posture, stating “Breshears’s access-to-the-courts claim
has been and remains speculative.”); Silva v. BOP, 2004 WL 1553471, at *6 (N.D. Tex. July 12,
2004) (explaining that speculation does not show prejudice necessary to sustain an access-to-courts
claim). Plaintiff’s remaining objections are his attempt to relitigate his claims.
The Court has conducted a careful de novo review of the 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

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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 and Plaintiff’s
objections are without merit. Accordingly, it is
ORDERED that the Report and Recommendation of the United States Magistrate Judge,
(Dkt. #95), is ADOPTED as the opinion of the Court. Plaintiff’s objections, (Dkt. #97), are
OVERRULED. Further, it is
ORDERED that Defendants’ motion for summary judgment limited to exhaustion, (Dkt.
#74), is DENIED. The remaining claims in Plaintiff’s civil rights lawsuit are DISMISSED, with
prejudice, for Plaintiff’s failure to state a claim upon which relief may be granted. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
SIGNED this the 7 day of February, 2022.

____________________________
Thad Heartfield
United States District Judge

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