Grahn v. Davis

Filing 24

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 21 Memorandum and Recommendations, GRANTS 15 Respondent's Motion for Summary Judgment; DISMISSES WITHOUT PREJUDICE Petitioner's action; and DENIES Petitioner a Certificate of Appealability. (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
EMILY GRAHN,

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Petitioner,
VS.
LORIE DAVIS,
Respondent.

March 06, 2018
David J. Bradley, Clerk

CIVIL NO. 2:16-CV-00476

ORDER
The Court is in receipt of Petitioner’s November 7, 2016, Application to
Proceed In Forma Pauperis, Dkt. No. 2; the November 9, 2016, Memorandum and
Recommendation (“M&R”) of the Magistrate Judge to whom this case was referred,
Dkt. No. 6; Respondent’s May 5, 2017, motion for summary judgment, Dkt. No. 15;
the July 28, 2017, M&R, Dkt. No. 21; and Petitioner’s August 10, 2017, objection to
the M&R, Dkt. No. 23. The Court considers each M&R and their associated
application, motion, or objection.
I.

November 9, 2016, M&R

The Court need not adopt the November 9, 2016, M&R, which recommended
that the Court deny Petitioner’s application. Dkt. No. 6. Petitioner’s application to
proceed in forma pauperis is moot; Petitioner paid the requisite filing fee. See Dkt.
No. 7.
II.

July 28, 2017, M&R

The Court adopts the July 28, 2017, M&R in all respects except its
recommendation that the Court dismiss with prejudice this action. Dkt. No. 21.
The M&R concludes that Petitioner is entitled to equitable tolling if she can
show that (1) “rare and exceptional circumstances” prevented her from asserting
her rights and (2) she diligently pursued her rights. Dkt. No. 21 at 7–8 (citations
omitted). The M&R finds that Petitioner’s allegations that she suffered from mental
illness are insufficient to establish “rare and exceptional circumstances.” Id.

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Further, the M&R finds that Petitioner has not shown that she pursued her rights
diligently.
Attached to Petitioner’s objection are letters and other documents that
Petitioner claims show that she diligently pursued her rights.1 Dkt. No. 23 at 7–17.
First, while these documents could have supported Petitioner’s response to
Respondent’s motion for summary judgment, they are improperly proffered in her
objection and the Court may not rely on them. See generally Dkt. No. 23. Second,
the documents do not speak to Petitioner’s alleged mental illness. Id. Thus, even if
the Court could rely on the documents and they establish that Petitioner diligently
pursued her rights, they do not establish that Petitioner is entitled to equitable
tolling. For these reasons, the Court OVERRULES Petitioner’s objection. Dkt. No.
23. Nonetheless, Petitioner might be able to show in a future action that she is
entitled to equitable tolling. In other words, the Court lacks the information
necessary to permanently foreclose the issue of equitable tolling.
After independently reviewing the record and considering the applicable law,
the Court adopts the proposed M&R in all respects except its recommendation that
the Court dismiss with prejudice this action. Dkt. No. 21.
The Court hereby:
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GRANTS Respondent’s motion for summary judgment, Dkt. No. 15;

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DISMISSES WITHOUT PREJUDICE Petitioner’s action; and

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DENIES Petitioner a Certificate of Appealability.

The Court will order entry of final judgment separately.
SIGNED this 5th day of March, 2018.
___________________________________
Hilda Tagle
Senior United States District Judge

The Court reviews objected-to portions of a Magistrate Judge’s proposed findings and
recommendations de novo. 28 U.S.C. § 636(b)(1).
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