Albarado et al v. City of Abilene et al

Filing 22

Order Accepting 18 Findings and Recommendations re: 1 Complaint filed by Juan Victor Albarado, Anita Lou Guajardo and Juan Manuel Albarado. It is ORDERED that the motion for jury trial 19 and the motion for bench warrant 20 are DENIED. I t if further ORDERED that the Motion for leave to amend 16 is DENIED and all Plaintiff's claims are DISMISSED WITH PREJUDICE. This dismissal counts as a "strike" or "prior occasion" within the meaning 28 USC §1915(g). (Ordered by Chief Judge Jorge A Solis on 4/19/2016) (mmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
JUAN MANUEL ALBARADO,
(TDCJ # 01452106),
Plaintiff,
v.
CITY OF ABILENE, TEXAS et al.,
Defendants.

§
§
§
§
§
§
§
§
§

CIVIL ACTION NO.
1:15-CV-220-P-BL

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Now pending before the Court is the March 18, 2016 Findings, Conclusions and Recommendation of the United States Magistrate Judge to dismiss this case. Although the time to file
objections has passed without Plaintiff filing written objections, the Court notes that Plaintiff has
filed two motions. The Court will address the motions, and alternatively consider the motions as
written objections to the Magistrate Judge’s report.
Plaintiff Juan Manuel Albarado filed a motion for jury trial, asking the Court to provide him
a jury trial on his claims that he is the victim of a conspiracy to intentionally deprive him of his
constitutional rights. (doc. 19.) He also moves for this Court to order a bench warrant to bring him
to Court for preliminary proceedings. (doc. 20.) But, Plaintiff does not respond to or contest the
magistrate judge’s findings and conclusions that even if his factual claims asserted in his complaint
are assumed to be true, this action is not cognizable at this time under the doctrine of Heck v.
Humphrey, 512 U.S. 477 (1994). As such, he is not entitled to a jury trial and there is no basis to
bring him to Court for a hearing. The motions must be denied.
Furthermore, after reviewing the motions, construed as objections to the Findings.
Conclusions, and Recommendation of the United States Magistrate Judge and conducting a de novo

review of those parts of the magistrate judge’s report to which objections have been made, the Court
is of the opinion that the Findings and Conclusions of the Magistrate Judge are accepted as the
Findings and Conclusions of the Court.
It is therefore ORDERED that the motion for jury trial (doc. 19) and the motion for bench
warrant (doc. 20) are DENIED.
It is further ORDERED that for the reasons stated in the Findings, Conclusions and
Recommendation of the United States Magistrate Judge, Plaintiff’s motion for leave to amend (doc.
16) is DENIED; and all Plaintiff’s claims are DISMISSED WITH PREJUDICE until the Heck
v. Humphrey conditions are met,1 pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. §
1915(e)(2)(B)(i) and (ii). This dismissal counts as a “strike” or “prior occasion” within the meaning
28 U.S.C. § 1915(g).
If the plaintiff files a notice of appeal, he must pay the $505.00 appellate filing fee or submit
a motion to proceed in forma pauperis and a properly signed certificate of inmate trust account.
SIGNED this 19th day of April, 2016.

_________________________________
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE

1

See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).

2