McClure v. Torres
Filing
117
MEMORANDUM OPINION AND ORDER Regarding Severance and Entry of Final Judgment. Plaintiff's claims against defendant Juan A. Torres are SEVERED from this action and shall proceed as a separate civil rights action filed pursuant to 42 U.S.C. § 1983. Signed by District Judge Ron Clark on 3/3/21. (ljw, )
Case 9:16-cv-00053-RC-ZJH Document 117 Filed 03/03/21 Page 1 of 3 PageID #: 643
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ROBERT TROY MCCLURE
§
VS.
§
JUAN A. TORRES, et al.,
§
CIVIL ACTION NO. 9:16-CV-53
MEMORANDUM OPINION AND ORDER REGARDING SEVERANCE AND
ENTRY OF FINAL JUDGMENT PURSUANT TO FRCP 54(b)
This case has a complicated procedural background and has been pending since March of
2016. Plaintiff’s claims against defendants Brad Livingston, Ryan G. Thorp and Brittany Holderrieth
were dismissed in May of 2017 (docket entry no. 17). The Office of the Attorney General as Amicus
Curiae then moved to revoke plaintiff’s in forma pauperis status which was ultimately denied on
December 16, 2017 (docket entry no. 30). Service as to defendant Torres took almost two years to
effectuate and defendant Torres finally filed an answer on April 2, 2019 (docket entry no. 64). A
Docket Control Order was entered the next day (docket entry no. 65).
On December 11, 2019, the court entered a Memorandum Opinion and Order denying
defendant Torres’ Motion for Summary Judgment as to plaintiff’s claim of excessive use of force
(docket entry no. 101). In the Memorandum Opinion and Order, defendant Torres was ordered to
file an Amended Motion for Summary Judgment addressing plaintiff’s claims of retaliation, equal
protection violations and declaratory relief. Id. Defendant Torres filed the Amended Motion for
Summary Judgment on January 10, 2020 (docket entry no. 104). On February 13, 2020, plaintiff
sought an extension to respond which was granted on February 18, 2020 (docket entry nos. 108 &
109). The case was stayed pending plaintiff’s Response. Id.
Plaintiff filed a Response on March 17, 2020, around the same time the COVID-19 Pandemic
impacted the United States. The stay was lifted on December 4, 2020, and the Magistrate Judge
entered a Report and Recommendation on December 21, 2020, recommending the Amended Motion
for Summary Judgment be granted in part and denied in part (docket entry no. 114). Specifically,
Case 9:16-cv-00053-RC-ZJH Document 117 Filed 03/03/21 Page 2 of 3 PageID #: 644
the Magistrate Judge recommended granting the Amended Motion for Summary Judgment as to
plaintiff’s claims of equal protection violations and prospective injunctive relief and denying the
motion as to plaintiff’s claim of retaliation. Id.
The only remaining defendant in this case is defendant Torres. At present, plaintiff’s claim
of excessive use of force will proceed to trial. In light of the COVID-19 pandemic, there is no
assurance plaintiff’s claims against defendant Torres can be handled with dispatch. In order to avoid
the possible injustice of delaying judgment against defendants Livingston, Thorp and Holderrieth,
the court believes that severance of the claims against defendant Torres and the entry of Final
Judgment in the above-referenced case against defendants Livingston, Thorp and Holderrieth
pursuant to Federal Rule of Civil Procedure 54(b) is appropriate. See Gelboim v. Bank of America
Corp., et al., 574 U.S. 405, 409 (2015); Meadaa v. K.A.P. Enterprises, L.L.C., 756 F.3d 875, 87-80
(5th Cir. 2014). While reversal of plaintiff’s claims against defendants Livingston, Thorp and
Holderrieth is unlikely,1 any further delay could prove prejudicial as potential witnesses disappear
and memories fade. As it has taken considerable time to serve defendant Torres and the challenges
imposed by the COIVD-19 pandemic further complicate the trial setting as to plaintiff’s claims
against him, the court expressly finds there is no just reason for delay. It is, therefore,
ORDERED that plaintiff’s claims against defendant Juan A. Torres are SEVERED from
this action and shall proceed as a separate civil rights action filed pursuant to 42 U.S.C. § 1983. The
Clerk of Court is instructed to file the following docket entries into the new civil rights action: 1-2,
12, 13, 37-38, 58-59, 64-65, 73, 76, 80, 82, 88, 91, 100-101, 103-107, 110-116. The Clerk of Court
is instructed further to docket plaintiff’s demand for a jury trial into the new case. A Final Judgment
1
Plaintiff’s claims against these defendants were dismissed pursuant to 28 U.S.C. § 1915(g) as plaintiff moved
units and no longer met the imminent danger exception.
2
Case 9:16-cv-00053-RC-ZJH Document 117 Filed 03/03/21 Page 3 of 3 PageID #: 645
will be entered separately pursuant to Federal Rule of Civil Procedure 54(b) as to plaintiff’s claims
against defendants Livingston, Thorp and Holderrieth.
So ORDERED and SIGNED, Mar 03, 2021.
____________________
Ron Clark
Senior Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?