Parker v. Torres et al

Filing 42

ORDER OVERRULING OBJECTIONS AND ADOPTING 4 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 8/2/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
JOE PARKER

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VS.

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JUAN A. TORRES, ET AL.

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CIVIL ACTION NO. 9:15-CV-125

ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Joe Parker, 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 Juan A. Torres and Billy J. Reeves.
The court ordered that this matter be referred to the Honorable Zack Hawthorn, 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 Federal Rule of
Civil Procedure 12(b)(6).
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 objects to the Magistrate Judge’s finding that his excessive
force claim was unexhausted. On November 30, 2015, plaintiff filed an amended complaint raising
a new claim that he had been assaulted on October 23, 2015. Plaintiff subsequently submitted copies

of his grievances related to the incident, which reflect that he did not receive a ruling on his Step 2
grievance until December 3, 2015. Therefore, the Magistrate Judge correctly found that plaintiff’s
excessive force claim was unexhausted at the time he raised the claim in his amended pleading.
ORDER
Accordingly, plaintiff’s objections (document no. 41) are OVERRULED. The findings of
fact and conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate
Judge (document no. 39) is ADOPTED. A final judgment will be entered in this case in accordance
with the Magistrate Judge’s recommendation.
So ORDERED and SIGNED this 2 day of August, 2017.

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Ron Clark, United States District Judge

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