Opinion
CIVIL ACTION NO. 6:13cv802
02-13-2015
SALVADOR MARTINEZ #1645804 v. JOHN A. RUPERT, ET AL.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT
The Plaintiff Salvador Martinez, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations ofhis constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. As Defendants, Martinez named TDCJ Executive Director Brad Livingston, Warden John Rupert, Major Guillermo Delarosa, Nurse Practitioner Sarah Pierson, Nurses Rexie Gilmartin and Lynne Smith, Custodian of Medical Records Frankie Bostick, the University of Texas Medical Branch, and the Joe F. Gurney Transfer Facility Medical Staff. All of the individual defendants except for Livingston are located at the Coffield Unit of TDCJ-CID.
Separate motions to dismiss were filed by the Defendants Delarosa, Livingston, and Rupert; by the University of Texas Medical Branch; and by the Defendants Pierson, Gilmartin, Smith, and Bostick. The magistrate judge entered reports on each of the motions to dismiss, recommending that these be granted. The magistrate judge also recommended that the claims against the Joe F. Gurney Unit Transfer Facility Medical Staff be dismissed as frivolous.
Copies of the magistrate judge's reports were sent to Martinez at his last known address, return receipt requested, but no objections have been received; accordingly, he is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the report of the magistrate judge. Upon such review, the Court has determined that the report of the magistrate judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243 (1989) (where no objections to a magistrate judge's report are filed, the standard of review is "clearly erroneous, abuse of discretion and contrary to law.") It is accordingly
ORDERED that the reports of the magistrate judge (docket no.'s 29, 30, and 31) are hereby ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendants' motions to dismiss (docket no.'s 11, 16, and 24) are hereby GRANTED and the Plaintiff's claims against these Defendants are DISMISSED WITH PRE. JUDICE for failure to state a claim upon which relief may be granted. It is further
ORDERED that the Plaintiff's claims against the Joe F. Gurney Unit Transfer Facility Medical Staff are DISMISSED WITH PREJUDICE as frivolous. It is further
ORDERED that the Clerk shall send a copy of this order to the Administrator of the Three Strikes List for the Eastern District of Texas. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby DENIED.
SIGNED this 13th day of February, 2015.
/s/_________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE