Schwarzer v. Wainwright et al

Filing 61

ORDER ACCEPTING FINDINGS, CONCLUSTIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE re: 59 Memorandum and Recommendations. Defendant's 52 Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. (Signed by Judge Drew B Tipton) Parties notified.(BrittanyBoniface, 6)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
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Plaintiff,
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VS.
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DALE WAINWRIGHT, BRYAN
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COLLIER, JENNIFER SMITH, LARRY
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MILES, E. F. DEAYALA, MOLLY
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FRANCIS, FAITH JOHNSON, SICHAN §
SIV, ERIC NICHOLS, RODNEY
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BURROW, BOBBY LUMPKIN,
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LEONARD ECHESSA, ARICA D.
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FLORES, O'DANIEL PATRICK and
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DERRELYNN PERRYMAN,
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Defendants.
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March 27, 2023
Nathan Ochsner, Clerk

MARK CLIFF SCHWARZER,

Civil Case No. 6:18-CV-00034

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the January 17, 2023 Memorandum and
Recommendation (“M&R”) prepared by Magistrate Judge Mitchel Neurock.

(Dkt.

No. 59). Magistrate Judge Neurock made findings and conclusions and recommended
that Defendant’s Motion to Dismiss, (Dkt. No. 52), be granted in part and denied in part.
(Dkt. No. 59 at 50–51). Magistrate Judge Neurock recommends that
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All of Plaintiff’s claims against defendants Collier, Lumpkin, and Echessa
in their official capacities for declaratory and injunctive relief should be
dismissed without prejudice.

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Plaintiff’s First Amendment claims against defendants O’Daniel, Perryman,
Miles, DeAyala, Francis, Johnson, Siv, Nichols, Burrow, Collier, Lumpkin,
and Echessa in their official capacities for declaratory and injunctive relief
based on the 2018 denial of Plaintiff’s mail should be dismissed without
prejudice.

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To the extent that defendants O’Daniel, Perryman, Miles, DeAyala, Francis,
Johnson, Siv, Nichols, and Burrow seek dismissal of Plaintiff’s First
Amendment claims against them in their official capacities for declaratory
and injunctive relief based on the provisions of BP-03.91, that motion
should be denied.

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Plaintiff’s First Amendment claims against defendants O’Daniel, Perryman,
Miles, DeAyala, Francis, Johnson, Siv, Nichols, Burrow, Collier, Lumpkin,
Flores, Echessa, and Smith in their individual capacities for monetary relief
should be dismissed with prejudice; and

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Plaintiff’s procedural due process claims against defendants Echessa and
Smith in their individual capacities for monetary relief should be dismissed
with prejudice.

(Id.).
As a result of the above-mentioned recommendations, Magistrate Judge Neurock
recommends that Plaintiff’s First Amendment claim against defendants O’Daniel,
Perryman, Miles, DeAyala, Francis, Johnson, Siv, Nichols, and Burrow in their official
capacities for declaratory and injunctive relief based on the alleged unconstitutionality of
BP-03.91 remain and proceed.
The Parties were provided 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). On February, 6, 2023, Plaintiff filed an
objection to Magistrate Judge Neurock’s recommendation of dismissal of Plaintiff’s First
and Fourteenth Amendment claims against Defendants Echessa, Smith, and Flores. (Dkt.
No. 60).
In accordance with 28 U.S.C. § 636(b)(1)(C), the Court is required to “make a de
novo determination of those portions of the [magistrate judge’s] report or specified
proposed findings or recommendations to which objection [has been] made.” After

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conducting this de novo review, the Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” Id.; see also Fed. R.
Civ. P. 72(b)(3).
The Court has carefully considered de novo those portions of the M&R to which
objection was made, and reviewed the remaining proposed findings, conclusions, and
recommendations for plain error. Finding no error, the Court accepts the M&R and
adopts it as the opinion of the Court. It is therefore ordered that:
(1)

Magistrate Judge Mitchel Neurock’s M&R (Dkt. No. 59) is ACCEPTED and
ADOPTED in its entirety as the holding of the Court; and

(2)

Defendants’ Motion to Dismiss, (Dkt. No. 52), is GRANTED IN PART AND
DENIED IN PART.

Accordingly, the Court finds as follows:
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Plaintiff’s claims against defendants Collier, Lumpkin, and Echessa in their official
capacities for declaratory and injunctive relief are DISMISSED WITHOUT
PREJUDICE.

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Plaintiff’s First Amendment claims against defendants O’Daniel, Perryman, Miles,
DeAyala, Francis, Johnson, Siv, Nichols, Burrow, Collier, Lumpkin, and Echessa
in their official capacities for declaratory and injunctive relief based on the 2018
denial of Plaintiff’s mail are DISMISSED WITHOUT PREJUDICE.

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Plaintiff’s First Amendment claims against defendants O’Daniel, Perryman, Miles,
DeAyala, Francis, Johnson, Siv, Nichols, Burrow, Collier, Lumpkin, Flores,
Echessa, and Smith in their individual capacities for monetary relief are
DISMISSED WITH PREJUDICE.

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Plaintiff’s procedural due process claims against defendants Echessa and Smith in
their individual capacities for monetary relief are DISMISSED WITH
PREJUDICE.

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Plaintiff’s First Amendment claims against O’Daniel, Perryman, Miles, DeAyala,
Francis, Johnson, Siv, Nichols, and Burrow in their official capacities for
declaratory and injunctive relief based on the provisions of BP-03.91 remain and
proceed.
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It is SO ORDERED.
Signed on March 27, 2023.

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DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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