Ballard v. Rayburn

Filing 10

ORDER OVERRULING OBJECTIONS AND ADOPTING 3 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 7/9/14. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
DAVID LEE BALLARD

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VS.

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JENNIFER RAYBURN

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CIVIL ACTION NO. 9:14-CV-22

ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff David Lee Ballard, a prisoner confined at the Eastham Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis,
filed this civil rights action pursuant to 42 U.S.C. § 1983 against Jennifer Rayburn.
The court ordered that this matter be referred to the Honorable Keith F. Giblin, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of
this court. The Magistrate Judge recommends dismissing the action pursuant to 28 U.S.C. § 1915(e)
as frivolous and for failure to state a claim upon which relief may be granted.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and the pleadings. Plaintiff filed objections to the
Magistrate Judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes the
objections are without merit. Plaintiff claims that the defendant, a phlebotomist, drew his blood on
two occasions, but there were no results from the blood work recorded in his medical records.
Plaintiff also alleges he suffered a bruise and pain in his arm from the blood draws. Plaintiff’s

claims do not rise to the level of deliberate indifference.

At most, the allegations support an

inference that the defendant was negligent. As a result, this action is frivolous and fails to state a
claim upon which relief may be granted.
ORDER
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.
A final judgment will be entered in this case in accordance with the Magistrate Judge’s
recommendation.

So ORDERED and SIGNED this 9 day of July, 2014.

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Ron Clark, United States District Judge

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