Thomas v. Sanchez et al

Filing 33

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: adopting 28 Memorandum and Recommendation; denying 27 Plaintiff's motion to amend pleadings or to alter the judgment. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(fcarbia, 2)

United States District Court
Southern District of Texas

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

JEWELL THOMAS,
Plaintiff,
VS.
JERRY SANCHEZ, et al.,
Defendants.

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ENTERED
March 10, 2023
Nathan Ochsner, Clerk

CIVIL ACTION NO. 2:22-CV-00129

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Plaintiff’s Motion to Amend Complaint (D.E. 27), filed
pursuant to Federal Rule of Civil Procedure 59(e), seeking to alter the final judgment so as
to proceed on certain claims. On December 15, 2022, United States Magistrate Judge Julie
K. Hampton issued a “Memorandum and Recommendation to Deny Plaintiff’s Motions to
Amend and to Alter and Amend the Judgment” (D.E. 28), recommending that Plaintiff’s
motion be denied. Plaintiff timely filed his objections (D.E. 29) by placing them in the
mail prior to the filing deadline. D.E. 29, p. 4.
Plaintiff first argues that, pursuant to Court Order (D.E. 13), he is proceeding in
forma pauperis (IFP) without the requirement to prepay the filing fee (but is paying over
time) and therefore any dismissal is without prejudice and is not a final judgment. This is
contrary to (1) the Court’s Order Adopting Memorandum and Recommendation (D.E. 25),
which states that Plaintiff’s Eighth Amendment and Americans with Disabilities
Act/Rehabilitation Act (ADA/RA) claims are dismissed with prejudice and (2) the Court’s
Final Judgment (D.E. 26), reciting that the dismissal resulted in a final judgment. Plaintiff
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offers no authority to support his claim that any IFP status changes those results. The first
objection is OVERRULED.
Second, Plaintiff complains about the Court’s denial of his effort to replead his
ADA/RA claims, arguing that, after the original M&R (D.E. 17) and before final judgment,
he submitted adequate amended pleadings. As the Court noted, new claims submitted after
the M&R has been issued are not timely. D.E. 25, p. 4. And Plaintiff’s recitation of
multiple efforts to amend merely reinforces the untimeliness, undue delay, repeated
failures, and futility of proposed amended pleadings. His most recent attempt (D.E. 27-1)
remains insufficient in material respects, rendering the claims improperly conclusory. The
second objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, 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 Memorandum and Recommendation
to which objections were specifically directed, the Court OVERRULES Plaintiff’s
objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge.
Accordingly, Plaintiff’s motion to amend pleadings or to alter and amend the judgment
(D.E. 27) is DENIED.
ORDERED on March 10, 2023.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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