Franklin v. Beeville City, Texas et al

Filing 100

ORDER ADOPTING MEMORANDUMS AND RECOMMENDATIONS re: 55 , 70 and 78 . The Court DENIES 52 Franklin's Motion for Prisoner Release Order; OVERRULES 73 Franklin's objections and STRIKES 84 Franklin's August 23, 2018 objections; OVERRULES 83 Plaintiffs objections and DENIES 75 Plaintiff's Declaration for Entry of Default.(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
BENJAMIN FRANKLIN,

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Plaintiff,
VS.
BEEVILLE CITY, TEXAS, et al,
Defendants.

March 15, 2019
David J. Bradley, Clerk

CIVIL NO. 2:17-CV-370

ORDER
Before the Court are three Memorandums and Recommendations (“M&Rs”)
of the Magistrate Judge to whom this case was referred. Dkt. Nos 55, 70 and 78.
The Court has considered the following motions, responses and replies underlying
the M&Rs at issue and the subsequent objections to each as follows:
1. Plaintiff Benjamin Franklin’s (“Franklin”) Motion for Prisoner Release Order,
Dkt. No. 52; Franklin’s Declaration about the Ineffective T.D.C.J. Offender
Grievance Operations, Dkt. No. 53; the May 23, 2018 M&R, Dkt. No. 55; and
Franklin’s Objections, Dkt. No. 62.
2. Franklin’s Amended Complaint, Dkt. No. 65; the June 27, 2018 M&R, Dkt.
No. 70; and Franklin’s Objections, Dkt. No. 73.1
3. Franklin’s Declaration for Entry of Default, Dkt. No. 75; the August 6, 2018
M&R, Dkt. No. 78; and Franklin’s Objections, Dkt. No. 83.
The Court reviews objected-to portions of the Magistrate Judge’s proposed
findings and recommendations de novo. 28 U.S.C. § 636(b)(1). After independently
reviewing the records and considering the applicable law, the Court hereby:

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On August 23, 2018 Franklin filed subsequent objections to the June 27, 2018 M&R in the form of a motion titled
Memorandum and Motion to Retain All Defendants and in Individual Plus Official Capacities, Dkt. No. 84.
Because Franklin’s August 23, 2018 Objections were filed outside the 14-day window allowed by Fed. R. Civ. P.
72(b), the Court will not consider these objections.

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1. ADOPTS the May 23, 2018 M&R, Dkt. No. 55; OVERRULES Franklin’s
objections, Dkt. No. 62; and DENIES Franklin’s Motion for Prisoner Release
Order, Dkt. No. 52.
2. ADOPTS the June 27, 2018 M&R, Dkt. No. 70;2 OVERRULES Franklin’s
objections, Dkt. No. 73; and STRIKES Franklin’s August 23, 2018 objections,
Dkt. No. 84.
3. ADOPTS the August 6, 2018 M&R, Dkt. No. 78; OVERRULES Plaintiff’s
objections, Dkt. No. 83; and DENIES Plaintiff’s Declaration for Entry of
Default, Dkt. No. 75.
SIGNED this 14th day of March 2019.

___________________________________
Hilda Tagle
Senior United States District Judge

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The June 27, 2018 M&R specifically recommends the following: (1) that the Court retain Plaintiff’s deliberate
indifference claims against Defendants Pendarvis and Humpkin with regard to the drinking water; (2) that Plaintiff’s
claims for money damages against all individual Defendants in their official capacities be dismissed as barred by the
Eleventh Amendment; and (3) that Plaintiff’s remaining claims against Defendants be dismissed with prejudice for
failure to state a claim upon which relief can be granted and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b)(1). Dkt. No. 70.

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