Rafiq v. Lopez et al
ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 34 Memorandum and Recommendations, granting 33 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
SHEIKH M. RAFIQ,
MANUEL LOPEZ, Owner of Nueva
Vida Senior Apartment, Owner
of Tejano Center for Community
Concerns, Inc.; KENNETH TANN,
Owner of MMM Housing
Management, Inc.; and DOLORES
January 25, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-2210
ORDER ADOPTING MAGISTRATE JUDGE'S
MEMORANDUM AND RECOMMENDATION
Pending before the court are Plaintiff's Letter of Thanks to
Judge Nancy K.
Johnson and Plaintiff's Response to Defendants'
Motion for Summary Judgment and Plaintiff's Notice to
(Docket Entry No. 35) and Defendant Nueva Vida Apartments'
Memorandum and Recommendation of January 3,
No. 38) . 1
Plaintiff concurrently filed a Notice of Appeal (Docket Entry
The appeal of
judge's Memorandum and
In its response, Defendant argues that Plaintiff's objections
were not timely filed, but the court considered the objections in
full as if timely filed.
Recommendation, a non-appealable order, does not divest this court
United States v. Green, 882 F.2d 999, 1001 (5th Cir. 1989)
of appeal from a non-appealable order,
does not render
void for lack of jurisdiction acts of the trial court taken in the
(citingUnitedStatesv. Hitchman, 602 F.2d689, 692 (5th
Cir. 1979), superseded by statute on other grounds as recognized in
United States v. Romans, 823 F.3d 299, 316 (5th Cir. 2016)).
Plaintiff requests that the court deem his objections to be
"an affidavit/sworn statement" because he is unable,
indigence and poor health,
to engage a notary. 2
due to his
unusual, the court treats the relevant factual statements as sworn.
This court must review de novo any portions of the magistrate
See Fed. R. Civ. P. 72 (b) (3); 28 U.S.C.
636 (b) (1).
The court has reviewed de novo the Memorandum and Recommendation in
The magistrate judge concluded that Plaintiff failed
to raise a fact question on either the discrimination claim that
Defendant prevented Plaintiff from accessing public transportation
for the disabled or the retaliation claim that Defendant instituted
Pl.'s Thanks, Response, & Notice, Docket Entry No. 35, p. 10.
discrimination complaints with the United States Department of
Housing and Urban Development.
The summary judgment evidence establishes that the sign, which
driveway structure, was placed there for a legitimate reason.
summary judgment evidence also establishes that after Plaintiff
notified Defendant that the sign was deterring METROLift drivers
from entering the complex,
the manager of Nueva Vida Apartments
contacted METRO supervisors to clarify that the sign did not apply
Plaintiff states in his objections that the sign is
still posted outside the apartment complex and speculates that it
"inconvenience/hazards to disabled/ elderly residents. " 3
not assert that he has been required to board a METROLift van
complex or has
suffered any harm as
Plaintiff's evidence does not controvert the testimony of Nueva
Vida Apartments' manager.
Even when taking Plaintiff's assertions
in his objections as sworn testimony, nothing suggests intentional
discrimination based on disability.
Regarding the retaliation claim, Plaintiff does not state in
his objections that he engaged in a protected activity prior to the
filing of the eviction action.
Absent any evidence to that effect,
the claim cannot survive summary judgment.
Id. at 8.
Plaintiff's objections are OVERRULED.
The court is of the
opinion that the Memorandum and Recommendation should be adopted in
It is ORDERED that the Memorandum and Recommendation (Docket
Entry No. 34) is hereby ADOPTED by this court.
SIGNED at Houston, Texas, on this 25th day of January, 2017.
UNITED STATES DISTRICT JUDGE
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