Morgan v. TDCJ McConnell Unit

Filing 66

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 52 Sealed Event, 61 Memorandum and Recommendation. This action is dismissed with prejudice. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DARRON MORGAN,
Plaintiff,
VS.
TDCJ MCCONNELL UNIT, et al,
Defendants.

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§ CIVIL ACTION NO. C-11-124
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ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Defendant’s Motion for Summary Judgment (D.E.
52). On March 28, 2012, United States Magistrate Judge B. Janice Ellington issued a
Memorandum and Recommendation (D.E. 61), recommending that Defendant’s Motion
for Summary Judgment be granted. Plaintiff filed his Objection (D.E. 64) on April 12,
2012.
The Memorandum and Recommendation recommends granting the Defendant’s
motion on two grounds: (1) Plaintiff’s failure to exhaust administrative remedies; and (2)
Defendant’s qualified immunity defense. With respect to the failure to exhaust claim, the
Memorandum notes that Plaintiff did not file a grievance against Defendant Maximilliano
Herrera or Defendant William Burgin according to the copies of grievances provided to
the Court. The records affidavit indicated that one additional grievance had been filed,
but that copies were not provided to the Court because the file has been misplaced.
Plaintiff’s Objection states that Plaintiff filed a grievance as indicated in an affidavit filed
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with his response. The Plaintiff still has not established that he filed an appropriate
grievance against these Defendants on the grounds alleged in his Complaint. Moreover,
by failing to address the second recommended holding on the defense of qualified
immunity, Plaintiff would not be entitled to a denial of summary judgment even if he had
supplied adequate proof of exhaustion of administrative remedies.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Petitioner’s Objections, and all other relevant documents in the record, and having made
a de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Petitioner’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Respondent’s Motion for Summary
Judgment (D.E. 52) is GRANTED and this action is DISMISSED WITH
PREJUDICE.
ORDERED this 4th day of May, 2012.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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