Opinion
Civil Action 1:22-CV-22
11-01-2022
ANTHONY KAVANAUGH v. TEXAS DEP'T CRIM. JUST., ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawthorn United States Magistrate Judge.
Plaintiff Anthony Kavanaugh, proceeding through counsel, filed this civil rights action pursuant to 42 U.S.C. § 1983 against the Texas Department of Criminal Justice (TDCJ), Executive Director Brian Collier, Warden Darren Wallace, Roshanda Pollard, and Wade Michael Newby.
The action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
The Texas Department of Criminal Justice asserted an Eleventh Amendment immunity defense and filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). In response, Plaintiff requested to dismiss TDCJ and Brian Collier, and Plaintiff filed an amended complaint omitting claims against those Defendants.
Pursuant to Federal Rule of Civil Procedure 41(a)(2), Plaintiff may dismiss the case or any defendants voluntarily upon terms that the court considers proper. In this case, the interests of justice will be served by dismissing Defendants TDCJ and Brian Collier from this action.
Recommendation
Plaintiff's request to voluntarily dismiss Defendants TDCJ and Brian Collier should be granted. Defendant TDCJ's motion to dismiss should be denied as moot.
Objections
Within fourteen days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.