Schwarzer v. Wainwright et al
MEMORANDUM OPINION AND ORDER ACCEPTING 47 MEMORANDUM AND RECOMMENDATIONS.(Signed by Judge Drew B Tipton) Parties notified.(BrittanyBoniface, 6)
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United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MARK CLIFF SCHWARZER,
DALE WAINWRIGHT; PATRICK
O’DANIEL; DARRELYNN PERRYMAN;
LARRY MILES; E.F. DEAYALA; MOLLY
FRANCIS; FAITH JOHNSON; SICHAN
SIV; ERIC NICHOLS; RODNEY
BURROW; BRYAN COLLIER; BOBBY
LUMPKIN; LEONARD ECHESSA;
JENNIFER SMITH; ARICA D. FLORES;
CHRIS NORSEWORTHY; and STACIE
August 02, 2022
Nathan Ochsner, Clerk
Civil Action No. 6:18-CV-00034
ORDER ACCEPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is the May 9, 2022 Memorandum and Recommendation
(“M&R”) signed by Magistrate Judge Mitchel Neurock. (Dkt. No. 47). In the M&R,
Magistrate Judge Neurock screened pro se and in forma pauperis Plaintiff Mark Cliff
Schwarzer’s Amended Complaint under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c).
Magistrate Judge Neurock recommends that the Court retain certain claims and parties
but strike and dismiss others. Schwarzer objects. The Court OVERRULES the objection
and ACCEPTS the M&R.
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The Parties received proper notice and the opportunity to object to the M&R. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Schwarzer timely filed a construed objection.1
(Dkt. No. 49). The Court therefore conducts “a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1).
Schwarzer’s objection largely ignores the M&R and instead reiterates allegations
in his Amended Complaint or raises irrelevant legal issues. In this sense, Schwarzer does
not “specifically identify those findings objected to.” Battle v. U.S. Parole Comm’n, 834
F.2d 419, 421 (5th Cir. 1987) (per curiam). The Court thus need not consider those
portions of the objection. See id.; 28 U.S.C. § 636(b)(1). Accordingly, with one exception,
the Court reviews the M&R for plain error. Hawes v. Stephens, 964 F.3d 412, 415 (5th Cir.
2020) (“Review of an un-objected legal conclusion from a magistrate [judge] is for plain
error.”). There is no plain error.
The one exception to plain-error review is Schwarzer’s objection to pages seven
through nine of the M&R.
Schwarzer characterizes those pages as improperly
recommending to “strike any issue that is directly related to the Free Speech Clause of
the First Amendment at the Stevenson Unit.” (Dkt. No. 49 at 1). Liberally construed,
The M&R was entered May 9, 2022. (Dkt. No. 47). Schwarzer’s self-styled “Response to
the Memorandum and Recommendation”—what the Court construes as an objection—is signed
and dated May 22 but is postmarked May 23. (Dkt. No. 49 at 5–6). Accordingly, the Court FINDS
that the objections were timely filed.
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Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per
curiam), Schwarzer appears to argue that pages seven through nine of the M&R
recommend dismissing claims that are within the scope of the Fifth Circuit’s remand.
Some background is necessary to adequately address the objection. In 2019, Judge
Kenneth H. Hoyt dismissed the entire case with prejudice. (Dkt. No. 14). In December
of 2021, the Fifth Circuit affirmed in part, vacated in part, and remanded in part. (Dkt.
No. 40). The Fifth Circuit’s remand was narrow. It remanded “for further proceedings
with respect to Schwarzer’s free speech and procedural due process claims.” Schwarzer
v. Wainwright, No. 19-41011, 2021 WL 6060002, at *2 (5th Cir. Dec. 17, 2021) (per curiam).
The Fifth Circuit concluded that two free-speech claims were not frivolous: “(1) the
prison’s policy of prohibiting inmates from receiving stationary supplies via mail” and
(2) the Defendants’ alleged denial of Schwarzer’s “mail based on Board Policy 03.91.” Id.
The Fifth Circuit also concluded that Schwarzer “could have amended his
complaint to allege a nonfrivolous due process claim” related to the alleged denial of “the
right to participate in the [Director’s Review Committee] appeal process” after Schwarzer
was denied his mail. Id. at *1–2.
Following remand, the case was reassigned to the undersigned. (Dkt. No. 26). The
Court later accepted Magistrate Judge Neurock’s unobjected-to recommendation to deny
Schwarzer’s Motion for Preliminary Injunction because, among other reasons,
Schwarzer’s requests were outside the scope of the Fifth Circuit’s remand. (Dkt. No. 44).
Magistrate Judge Neurock separately ordered Schwarzer to file an amended complaint,
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specifically warning “that any allegations raised in his amended complaint that seek to
raise claims other than the above-identified free speech and procedural due process
claims will be DISREGARDED.” (Dkt. No. 43 at 5). Schwarzer was also warned that
failure to comply may result in dismissal under Rule 41(b) of the Federal Rules of Civil
Schwarzer did not comply. Instead, he filed an Amended Complaint that exceeds
the scope of the Fifth Circuit’s remand.2 As Magistrate Judge Neurock explained in a
prior M&R, it would be improper to consider claims outside of Schwarzer’s “First
Amendment claims arising from the prison’s mail policy of stationery supplies and
procedural due process claims related to the DRC review process.” (Dkt. No. 42 at 8–9);
see also M. D. by Stukenberg v. Abbott, 977 F.3d 479, 482 (5th Cir. 2020) (“It is black-letter
law that a district court must comply with a mandate issued by an appellate court.”).
Indeed, this Court adopted that recommendation before Schwarzer filed the current
objection. (Dkt. No. 44).
Nonetheless, paragraphs 12–15, 17–33, 42–44, 46–47, and 52 of the Amended
Complaint are outside of the scope of the remand. See (Dkt. No. 47 at 7–9). Thus,
Schwarzer’s Amended Complaint fails to comply with two orders. Further, Schwarzer’s
objection provides no legal basis for departing from these prior orders. Instead, he
Schwarzer asserts claims against seventeen defendants. Of those defendants, two raised
in the Original Complaint are now missing in the Amended Complaint: Robert G. Beard, Jr. and
Pamela R. Mendez-Banda. As a result, Magistrate Judge Neurock recommends those defendants
be dismissed without prejudice. (Dkt. No. 47 at 5 n.3, 21). The Court agrees.
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misunderstands the scope of the Fifth Circuit’s remand and improperly seeks to re-hash
this Court’s prior rulings. As such, the Court OVERRULES the objection.
Based on the foregoing, the Court ACCEPTS the M&R as the opinion of the Court.
Accordingly, the Court STRIKES Schwarzer’s allegations and claims identified in
Paragraphs 12–15, 17–33, 42–44, 46–47, and 52 from the Amended Complaint as well as
his requests for injunctive and monetary relief identified in Paragraphs 56(c), (d), (e), (f),
(h), (i), (j), (k), (l), relevant portion of (o),3 (p), (r), (s), (t), and (u) of the Amended
The Court DISMISSES WITH PREJUDICE Schwarzer’s First Amendment claims
for monetary relief against the following defendants in their individual capacities:
Executive Director Bryan Collier, TDCJ Director Bobby Lumpkin, and former TBCJ
Chairman Dale Wainwright.
The Court DISMISSES WITH PREJUDICE Schwarzer’s First Amendment claims
seeking declaratory and injunctive relief against the following defendants in their official
capacity: Mailroom Supervisor Arica D. Flores, former TBCJ Chairman Dale Wainwright,
DRC Director Leonard Echessa, and DRC Program Supervisor Jennifer Smith.
The Court DISMISSES WITH PREJUDICE Schwarzer’s procedural due process
claim seeking declaratory and injunctive relief against DRC Program Supervisor Jennifer
Smith in her official capacity.
Specifically, the Court adopts the recommendation to strike and disregard the request
in Paragraph 56(o) for compensatory relief regarding the photo restriction. (Dkt. No. 47 at 10).
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The Court DISMISSES WITHOUT PREJUDICE all claims against the following
defendants: Former Duncan Unit Warden Chris Norseworthy, Mailroom Supervisor
Stacie A. Walton, Pamela R. Mendez-Banda, and Robert Beard, Jr.
The Court DISMISSES WITHOUT PREJUDICE all claims for money damages
against the remaining Defendants in their official capacity as barred by the Eleventh
It is SO ORDERED.
Signed on August 2, 2022.
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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