Flentroy v. Thaler et al
ORDER OVERRULING PLAINTIFF'S OBJECTIONS AND ADOPTING 11 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 3/5/14. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
RICK THALER, ET AL.
CIVIL ACTION NO. 9:13cv296
ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Charlie Flentroy, an inmate confined within the Texas Department of Criminal
Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled civil rights
lawsuit pursuant to 42 U.S.C. § 1983 against Rick Thaler, Brad Livingston, Nancy Mitchell and Ruth
The court previously referred this matter to the Honorable Zack Hawthorn, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 and applicable
orders of this Court. The Magistrate Judge has submitted a Report and Recommendation of United
States Magistrate Judge concerning this matter. The Magistrate Judge recommends the lawsuit be
dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Plaintiff filed objections to the Report
and Recommendation. The court must therefore conduct a de novo review of the objections in
relation to the pleadings and the applicable law.
Plaintiff contends that this court’s dismissal of Flentroy v. Lamb, No. 9:11cv21, should not
count as a strike for the purposes of Section 1915(g). However, the United States Court of Appeals
for the Fifth Circuit previously held that the dismissal of Flentroy v. Lamb counted as a strike. See
Flentroy v. Lamb, 467 F.App’x 291, 292 (5th Cir. 2012). In addition, the Magistrate Judge correctly
concluded that plaintiff’s allegations did not demonstrate he was in imminent danger of serious
physical injury on the date he filed his complaint. While plaintiff states he experienced delays in
receiving medical care on several occasions, his allegations show that in each instance medical care
was eventually provided. Moreover, the last occasion on which plaintiff states medical care was
delayed was April 2, 2013, more than five months prior to the date on which his complaint was filed.
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED as the opinion of the court. A final judgment shall be entered in accordance with the
recommendation of the Magistrate Judge.
So ORDERED and SIGNED this 5 day of March, 2014.
Ron Clark, United States District Judge
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