Streater v. Thaler et al

Filing 41

ORDER ADOPTING 28 REPORT AND RECOMMENDATIONS for 24 Motion to Dismiss filed by Rick Thaler & Charles Bell. Defendants' motion to dismiss for failure to exhaust administrative remedies is denied. Defendants Rick Thaler and Charles Bell shall have 40 days from the date of this order in which to file a dispositive motion addressing the merits of Streater's claims, should they choose to do so. Signed by Judge Ron Clark on 2/16/12. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
THEODORE STREATER

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v.

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RICK THALER, ET AL.

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CIVIL ACTION NO. 9:011v68

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANTS’ MOTION TO DISMISS
FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The Plaintiff Theodore Streater filed this lawsuit under 42 U.S.C. §1983 complaining of
alleged deprivations of his constitutional rights. This Court ordered that the matter 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.
Streater’s lawsuit concerns claims that he has been wrongly billed by the TDCJ inmate phone
system for calls which are dropped, and that he suffered retaliation after complaining about this. The
Defendants Rick Thaler and Charles Bell filed a motion to dismiss the lawsuit based upon failure
to exhaust administrative remedies.
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
motion to dismiss be denied. The Magistrate Judge examined the grievances filed by Streater and
concluded that these were sufficient to adequately alert prison administrators to the problems,
regardless of whether or not Thaler and Bell were personally named in the grievances. See Johnson
v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004) (noting that grievances could alert administrators to
the problem regardless of whether or not the grievance names anyone). No objections were filed to
the Report of the Magistrate Judge; accordingly, the parties are barred from de novo review by the
district judge of those findings, conclusions, and recommendations and, except upon grounds of
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plain error, from appellate review of the unobjected-to proposed 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 the case as well as the Report of the Magistrate
Judge. Upon such review, the Court has determined that the Report of the Magistrate Judge is
correct. It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 28) is hereby ADOPTED as
the opinion of the District Court. It is further
ORDERED that the Defendants’ motion to dismiss for failure to exhaust administrative
remedies (docket no. 24) be and hereby is DENIED. It is further
ORDERED that the Defendants Rick Thaler and Charles Bell shall have 40 days from the
date of this order in which to file a dispositive motion addressing the merits of Streater’s claims,
should they choose to do so.
So ORDERED and SIGNED this 16 day of February, 2012.

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Ron Clark, United States District Judge

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