Jackson v. Gutierrez et al

Filing 33

ORDER ADOPTING IN PART MEMORANDUM AND RECOMMENDATIONS re: 11 Memorandum and Recommendations. The Court grants Jackson leave to amend his complaint within 28 days after the entry of this order for the sole purpose of dropping Benoit as a defendant. (Signed by Judge Hilda G Tagle) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
PHILLIP JACKSON,

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Plaintiff,
v.
DAVID GUTIERREZ et al.,
Defendants.

June 07, 2016
David J. Bradley, Clerk

CIVIL NO. 2:16-CV-17

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ORDER

In May 2013, Plaintiff Phillip Jackson’s (“Jackson”) parole was revoked, and
he was recommitted to the custody of the Texas Department of Criminal Justice,
Criminal Institutions Division, where he is presently a prisoner. Def. Gutierrez’s
Orig. Answer Jury Demand (“Gutierrez Answer”) ¶ 9, D.E. 17 (admitting month and
year of revocation).

Representing himself, Jackson filed this lawsuit under 42

U.S.C. § 1983 against David Gutierrez (“Gutierrez”), the presiding officer of the
Texas Board of Pardons and Parole (“TBPP”), and Beth Benoit (“Benoit”), a program
supervisor for the TBPP. Compl. 3, 7; see also Gutierrez Answer ¶ 18 (admitting
Gutierrez is presiding officer).

After conducting an evidentiary hearing, the

magistrate judge to whom this case is referred entered his Memorandum and
Recommendations (“the M&R”) that the Court grant Jackson’s oral motion to
dismiss his claims against Benoit and that Jackson’s claims be dismissed for failure
to state a claim insofar as Jackson sues Gutierrez in his individual capacity. D.E.
11 at 9–10. No party has filed objections to the M&R, and the deadline to object has
passed.

See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(2).

Adopting the

proposed findings and recommendations in part, the Court construes Jackson’s oral
request to dismiss Benoit as a motion for leave to amend his complaint, grants it,
and finds that Jackson pleads no claims against Gutierrez in his individual
capacity.

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Under 28 U.S.C. § 636(b)(1)(B), a magistrate judge may conduct proceedings
and issue proposed findings and recommendations for disposition of dispositive
matters that have been referred to him.

Objections to proposed findings and

recommendations are due within 14 days, and the district court must determine
portions of the proposed findings and recommendations to which objection is made
de novo. Id.; Fed. R. Civ. P. 72(b)(3) (requiring de novo review of any part of the
magistrate judge’s disposition that has properly been objected to); see also id. R.
72(b)(2) (giving other parties 14 days to respond to objections). Objections under
this procedure “narrow the dispute” and allow a district judge “to focus attention on
those issues—factual and legal—that are at the heart of the parties’ dispute.”

Thomas v. Arn, 474 U.S. 140, 147 & n.6 (1985). Although “the statute does not
require the [district] judge to review an issue de novo if no objections are filed, it
does not preclude further review by the district judge, sua sponte or at the request
of a party, under a de novo or any other standard.” Id. at 154. Federal Rule of Civil
Procedure 72(b) does not on its face require any review of unobjected-to proposed
findings and recommendations of a magistrate judge.

The 1983 Advisory

Committee Note promulgated at the adoption of Rule 72 states that “[w]hen no
timely objection is filed, the court need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.” A standard of
review applicable to factual findings, “[c]lear error exists when ‘although there may
be evidence to support it, the reviewing court on the entire record is left with the
definite and firm conviction that a mistake has been committed.’”

Hollinger v.

Home State Mut. Ins. Co., 654 F.3d 564, 569 (5th Cir. 2011) (quoting Preston v.
Tenet Healthsys. Mem’l Med. Ctr., Inc., 485 F. 3d 793, 796–97 (5th Cir. 2007))
(other citations omitted) (alteration omitted).

Regardless of the presence of

objections, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). This is
because only the presiding district judge possesses the power definitively to decide
dispositive matters under § 636(b)(1), and she “has the authority, if not the duty, to
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make a correct final determination.” Sweeney v. Astrue, 796 F. Supp. 2d 827, 830
(N.D. Tex. 2011). Therefore, this Court ordinarily considers the entire record and
reviews unobjected-to proposed findings of fact for clear error and retains the
authority to consider unobjected-to legal conclusions de novo.
No party objects to the M&R’s proposed finding that, at the evidentiary
hearing, Jackson admitted that Benoit “is a Parole Agency employee who does not
make independent decisions regarding parole eligibility of inmates and that she
would not have the authority to provide the declaratory or injunctive relief he
seeks.” M&R 8, D.E. 11. The M&R characterizes Jackson’s oral request as a motion
to dismiss Benoit voluntarily and recommends the Court grant that motion. Id.
The Court construes Jackson’s oral request as a motion to amend his complaint to
drop Benoit,1 and, finding no prejudice to Defendants, grants it. See Fed. R. Civ. P.
15(a)(2).
The M&R also recommends that Jackson’s claims against Gutierrez be
dismissed with prejudice to the extent Jackson sues Gutierrez in his individual
capacity, M&R 9–10, but Jackson sues Gutierrez only in his official capacity,
obviating the need for sua sponte dismissal.

The M&R proposes sua sponte

dismissal for failure to state a claim under a provision of the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(c)(2). D.E. 11 at 4. Entry of an order
dismissing some of Jackson’s claims under that provision may count as a strike
under the PLRA’s three-strikes provision. See Nottingham v. Richardson, No. 2:10CV-0060, 2011 WL 4526133, at *2 n.2 (N.D. Tex. Sept. 29, 2011) (citing Adeleke v.

Heaton, 352 F. App’x 904 (5th Cir. 2009)) (other citation omitted) (“Partial
Because the Court construes Jackson’s request as a motion to amend, his request need not
be analyzed under Federal Rule of Civil Procedure 41(a). See Reid v. Farmers Ins. Co., Civ. A. No.
15-5027, 2016 WL 346881, at *3 (E.D. La. Jan. 11, 2016) (recommending dismissal of entire action
with a court order based on oral request to dismiss made at Spears hearing and stating that
“[n]ormally, [the plaintiff]’s oral expression to dismiss ‘itself closes the file. . . There is not even a
perfunctory order of court closing the file.’” (quoting American Cyanamid Co. v. McGhee, 317 F.2d
295, 297 (5th Cir. 1963))); see also Plains Growers, Inc. v. Ickes–Braun Glasshouses, Inc., 474 F.2d
250, 253 (5th Cir. 1973) (“we hold that plaintiff is entitled to a dismissal against one defendant
under Rule 41(a), even though the action against another defendant would remain pending.”). The
Court implies no view on whether an oral request for dismissal meets Rule 41(a)(1)(A)(i)’s
requirement that a notice of voluntary dismissal be filed.
1

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dismissals, that is, dismissals of some but not all defendants in a lawsuit, are
counted in the Fifth Circuit as a strike, even where the remaining defendant(s) go
to summary judgment or trial.”) Under the heading “Parties,” Jackson’s complaint
reads as follows: “Defendant, David Gutierrez as the Presiding Officer for the Texas
Board of Pardons and Paroles. He is sued in his official Capacity.” D.E. 1 at 6. The
Court finds that Jackson’s complaint and accompanying papers consistently allege
that Gutierrez is sued in his official capacity without mentioning his individual
capacity. See id. at 6, 10 (including phrase “sued in their official capacities” after
defendant’s names in caption of complaint and attached accompanying papers). As
a result, the Court need not, and does not, adopt the proposal to enter an order
dismissing Jackson’s claims against Gutierrez in his individual capacity.
Because the Court finds that Jackson sues Gutierrez in his official capacity
only, the Court adopts the proposed findings and recommendations of the M&R in
part. The Court grants Jackson leave to amend his complaint within 28 days after
the entry of this order for the sole purpose of dropping Benoit as a defendant.
It is so ORDERED.
SIGNED this 7th day of June, 2016.
___________________________________
Hilda G. Tagle
Senior United States District Judge

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