Arterberry v. Driskell et al
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S 17 REPORT AND RECOMMENDATION. Signed by Judge Ron Clark on 5/24/17. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MANAGEMENT AND TRAINING
CORPORATION (“MTC”) AND DANIEL
CIVIL ACTION NO. 9:16-CV-99
MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Kirk Arterberry, an inmate represented by counsel, Tammy Peden, filed the abovereferenced civil rights action pursuant to 42 U.S.C. § 1983 against defendants Management and
Training Corporation (“MTC”) and Warden David Driskell.
The Court referred this matter 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 defendants’ 12(b)(6) Motion to Dismiss be denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Defendants filed
objections to the Report and Recommendation of United States Magistrate Judge. This requires a
de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV.
After careful consideration of the objections and responses, the court finds defendants’
objections lacking in merit. Defendants continue to argue that plaintiff has pleaded a negligence
or premises liability claim, which does not support a Section 1983 claim. Although this is a
correct statement of the law about Section 1983 claims generally, Defendants continue to ignore
the facts as specifically pleaded by plaintiff in this case. As outlined by the Magistrate Judge,
plaintiff has pleaded sufficient facts to survive the “facial plausibility” standard. Ashcroft v.
Iqbal, 129 S.Ct. 1927 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Plaintiff has
pleaded specifically a claim for deliberate indifference and has not pleaded a claim for negligence
or premises liability. Plaintiff has also pleaded sufficient personal involvement of both defendants
and has pleaded facts sufficient to suggest the defendants knew of, and disregarded, an “excessive
risk” to plaintiff’s health or safety.
Accordingly, petitioner’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
So ORDERED and SIGNED this 24 day of May, 2017.
Ron Clark, United States District Judge
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