Opinion
Civil Action 2:21-CV-00306
07-21-2022
MARCUS LANE DOWNIE, Plaintiff, v. MICHAEL WINNIE, et al., Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE
On May 18, 2022, United States Magistrate Judge Julie K. Hampton issued a Memorandum and Recommendation (D.E. 23), recommending that Plaintiff's civil rights action be dismissed pursuant to the screening of claims required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. Petitioner timely filed his objections (D.E. 24) on May 26, 2022.
The Magistrate Judge's analysis supporting dismissal of this case is based on several legal issues as they apply to the claims made against the two defendants: (1) the Eleventh Amendment prohibition against awarding damages against an agent of the state; (2) the relief requested implicates habeas corpus rights and is not properly awarded under the civil rights act; (3) Plaintiff has not exhausted his state court habeas corpus remedies; (4) the claims of conspiracy lack specific factual allegations; (5) defense counsel does not act under color of law for purposes of the civil rights act; and (6) prosecutorial immunity.
In contrast, Plaintiff's objections are general and conclusory complaints that (1) he has no legal training, his requests for counsel have been denied, and therefore no disposition should be with prejudice or count as a strike; (2) all of his claims have legal merit and dismissal is a denial of due process and cruel and unusual punishment; (3) the alleged victims have asked that he not be prosecuted; (4) the attorneys are not following the law and procedure with respect to the charges against him; (5) the District Attorney offered a plea deal accompanied by a threat to seek the maximum punishment available under the law for the charges made against him and additional charges that could be brought; (6) the District Attorney failed to dismiss the charges pursuant to nonprosecution affidavits; (7) the state trial judge committed acts of judicial misconduct; (8) his newly-appointed defense counsel is ineffective and unprofessional; and (9) he should have been released with some compensation for his troubles.
Such a presentation does not point out with particularity any error in the Magistrate Judge's analysis. It therefore does not offer proper objections and will not be considered. Fed.R.Civ.P. 72(b)(2); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003); Edmond v. Collins, 8 F.3d 290, 293 n.7 (5th Cir. 1993) (finding that right to de novo review is not invoked when a petitioner merely reurges arguments contained in the original petition). Because these arguments are not sufficient to invoke review and do not address the basis for the Magistrate Judge's recommendation, the objections are OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations set forth in the Magistrate Judge's Memorandum and Recommendation, as well as Plaintiff's objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of the Magistrate Judge's Memorandum and Recommendation to which objections were specifically directed, the Court OVERRULES Plaintiff's objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly,
(1) Plaintiff's claims for money damages against Nueces County Assistant District Attorney Michael Winnie in his official capacity are DISMISSED as barred by the Eleventh Amendment;
(2) Plaintiff's claims seeking habeas relief against Nueces County Assistant District Attorney Michael Winnie are DISMISSED WITHOUT PREJUDICE to Plaintiff raising them in a separate federal habeas corpus action only after he has exhausted available state court remedies;
(3) Plaintiff's remaining claims against Bill Bonilla and Nueces County Assistant District Attorney Michael Winnie in his individual capacity are DISMISSED with prejudice as frivolous and/or for failure to state a claim pursuant to §§ 1915(e)(2)(B) and 1915A(b)(1); and
(4) The Court ORDERS that this dismissal counts as a “strike” for purposes of 28 U.S.C. § 1915(g), and INSTRUCTS the Clerk of Court to send notice of this dismissal to the Manager of the Three Strikes List for the Southern District of Texas at ThreeStrikes@txs.uscourts.gov.
ORDERED.