Schwarzer v. Wainwright et al

Filing 86

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re: 84 Memorandum and Recommendations, Granting 83 MOTION to Dismiss .(Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2)

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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December 05, 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 November 7, 2023 Memorandum and
Recommendation (“M&R”) prepared by Magistrate Judge Mitchel Neurock. (Dkt. No.
84). Magistrate Judge Neurock made findings and conclusions and recommended that
Defendants O’Daniel, Perryman, Miles, DeAyala, Francis, Johnson, Siv, Nichols, and
Burrow’s Motion to Dismiss, (Dkt. No. 83 at 6), be granted. (Dkt. No. 84).
“Plaintiff’s only remaining claim in this action is his First Amendment claim
against Defendants in their official capacities for declaratory and injunctive relief based
on the provisions of TDCJ’s correspondence policy set forth in BP-03.91.” (Dkt. No. 84 at
4). Judge Neurock recommends that Defendants’ motion to dismiss under Rule 12(h)(3)
be granted, and that Plaintiff’s remaining claim for declaratory and injunctive relief based

on the provisions of BP-03.91, against these Defendants in their official capacities, be
dismissed without prejudice for lack of subject matter jurisdiction under the mootness
doctrine. (Id. at 6).
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). No party filed an objection. As a result,
review is straightforward: plain error. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th
Cir. 2005). No plain error appears.
Accordingly, the Court accepts the M&R and adopts it as the opinion of the Court.
It is therefore ordered that:
(1)

Magistrate Judge Neurock’s M&R (Dkt. No. 84) is ACCEPTED and
ADOPTED in its entirety as the holding of the Court; and

(2)

Defendants O’Daniel, Perryman, Miles, DeAyala, Francis, Johnson, Siv,
Nichols, and Burrow’s Motion to Dismiss, (Dkt. No. 83), is GRANTED.

It is SO ORDERED.
Signed on December 4, 2023.

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DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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