Garcia v. Bolton et al

Filing 95

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING 82 REPORT AND RECOMMENDATIONS. Signed by District Judge Ron Clark on 3/21/19. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
PEDRO A. GARCIA

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VS.

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JOHN P. BOLTON, et al.,

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CIVIL ACTION NO. 9:17-CV-72

MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Pedro Garcia, an inmate formerly confined at the Polunsky Unit with 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 defendants John P.
Bolton, Sean R. Burks, Johnny R. Farris, Patricia Garney, and Joseph Smith.
The Court referred this matter to the Honorable Keith Giblin, United States Magistrate Judge,
at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court. The
Magistrate Judge recommends defendant Garney’s Motion for Summary Judgment be granted
(docket entry no. 82).
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the records, and pleadings. Plaintiff filed
objections to the Report and Recommendation of United States Magistrate Judge (docket entry no.
91). This requires a de novo review of the objections in relation to the pleadings and applicable law.
See FED. R. CIV. P. 72(b).
Plaintiff argues he has established that he was assaulted by defendant Bolton and, as a result,
summary judgment as to defendant Smith and Farris is not proper. Defendant Bolton, however, has
never been served in this case. Furthermore, plaintiff does not allege that defendant Garney actually
assaulted him. Plaintiff’s claims as to defendant Garney is separate and distinct from the claims
against defendant Bolton and thus require a different legal analysis as outlined by the Magistrate
Judge.

In his objections, plaintiff states defendant Garney should be written up and be reviewed by
“UTMB Disciplinary Board of Malpractice.” Plaintiff, in essence, concedes that defendant Garney’s
actions or inactions in treating him amounted to mere negligence, if any, which is insufficient to
establish the deliberate indifference standard. See Esparza v. Hegman, 183 F.3d 153, 159 (5th Cir.
1999) (citing Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)).
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.
So ORDERED and SIGNED March 21, 2019.

____________________________
Ron Clark, Senior District Judge

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