Dinn v. Nueces County et al

Filing 12

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 8 Memorandum and Recommendation. This action is DISMISSED.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DONALD A DINN,
Petitioner,
VS.
NUECES COUNTY, et al,
Defendants.

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§ CIVIL ACTION NO. 2:15-CV-67
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Plaintiff Donald A. Dinn’s 42 U.S.C. § 1983 civil
rights complaint (D.E. 1). On April 15, 2015, United States Magistrate Judge Jason B.
Libby issued his Memorandum and Recommendation (“M&R”) (D.E. 8), recommending
that Plaintiff’s action be dismissed with prejudice for failure to state a cognizable claim
and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). This Court
received Plaintiff’s timely-filed objections (D.E. 9) on April 30, 2015.

Plaintiff’s

objections are set out and discussed below.
Plaintiff objects to the Magistrate Judge’s conclusion that John Doe Defendant did
not violate his procedural due process rights. Plaintiff argues that his rights were violated
when John Doe Defendant, an employee with the Nueces County Child Support Division,
“placed an illegal lien on the Plaintiff’s real property and never provided him with a copy
of the lien so that he could challenge it in a court of law” as required by the Texas Family
Code. D.E. 9, pp. 2-3. Plaintiff makes this specific due process argument for the first
time in his objection to the M&R. “Although issues raised for the first time in objections
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to a magistrate's report are generally not properly before the district court, a district court
may construe the presentation of an issue in this posture as a motion to amend the
underlying pleading.” Hale v. Young, 584 F. App’x 246, 247 (5th Cir. 2014) (citations
omitted). The Court considers Plaintiff’s argument and finds it unavailing.
Plaintiff must support his § 1983 claim by showing that he was intentionally or
recklessly deprived of his property interest—even temporarily, under color of state law.
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994). “[T]he negligent act of
a state official which results in unintended harm to life, liberty, or property, does not
implicate the Due Process Clause.” Campbell v. City of San Antonio, 43 F.3d 973, 977
(5th Cir. 1995).

Here, Plaintiff does not claim nor do the alleged facts support a

conclusion that John Doe Defendant purposely or recklessly deprived Plaintiff of his
constitutional right. Macias v. Raul A. (Unknown), Badge No. 153, 23 F.2d 94, 97 (5th
Cir. 1994) (holding that a district court is bound by the allegations in a plaintiff’s
complaint and is “not free to speculate that the plaintiff ‘might’ be able to state a claim if
given yet another opportunity to add more facts to the complaint”). Because the Court
finds no error in the Magistrate Judge’s conclusion that John Doe Defendant did not
violate Plaintiff’s procedural due process rights, Plaintiff’s first objection is
OVERRULED.
Plaintiff’s second objection reurges his argument that Nueces County District
Clerk Patsy Perez and Nueces County Court Coordinator Elisa Avila denied him “his due
process of law right to access of courts and his First Amendment right to petition the

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Government for a redress of grievances by not processing his appeal” in a suit
challenging the underlying lien. D.E. 9, p. 4.
Plaintiff has failed to demonstrate how he was unconstitutionally denied access to
the courts.

A civil rights plaintiff must support his claim with specific facts

demonstrating a constitutional deprivation and may not simply rely on conclusory
allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). Moreover, Plaintiff
does not have a right to file materials with a court in a form or manner that is not
acceptable. See Wells v. Welborn, 165 F. App’x 318, 322 (5th Cir. 2006) (holding that a
court clerk did not commit an unconstitutional act by enforcing rules of procedure). As
such, Plaintiff’s allegations do not rise to a constitutional violation and his second
objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R (D.E. 8), as well as Plaintiff’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 M&R to which objections were specifically directed,
this Court OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, this action is DISMISSED.
ORDERED this 17th day of June, 2015.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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