Opinion
5-22-CV-00601-FB-RBF
01-19-2024
JESSE S LOPEZ, III, Plaintiff, v. BEXAR COUNTY, ET AL., Defendants.
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE FRED BIERY, UNITED STATES DISTRICT JUDGE
This Report and Recommendation concerns two motions to dismiss, one filed by Defen Bexar County, see Dkt. No. 28, and the other by Defendants Leonel Elizondo and Rolando Ga see Dkt. Nos. 34. The District Court referred all pretrial matters for resolution, pursuant to R CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the We District of Texas. See Dkt. No. 15. Authority to enter this recommendation stems from 28 U § 636(b)(1)(B).
For the reasons set forth below, the motions to dismiss, Dkt. Nos. 28 & 34, shou GRANTED, and all of Plaintiff Lopez's claims should be DISMISSED.
Factual and Procedural Background
This § 1983 case involves alleged use of excessive force against pretrial detainee Pla Jesse Lopez, III followed by alleged deliberate indifference to his medical needs. As i uncommon in such cases, the live complaint tells one story and Defendants tell another. A outset, all agree that Bexar County officers arrested Lopez on October 26, 2021, following a tr stop due to unpaid traffic tickets. Dkt. No. 24 (2d Am. Compl.) ¶ 11. But after that, the parties' stories diverge sharply. There is, however, video evidence that resolves much of the disagreement.
Lopez's version of events is drawn from his Second Amended Complaint. See Dkt. No. 24. Video evidence in the form of bodycam video is also in the record. See Dkt. Nos. 30-1, 34-1, 34-2.
According to the live complaint, once officials placed Lopez in pretrial custody with other detainees at the Bexar County Adult Detention Center, events deteriorated significantly and ultimately culminated in an episode of unconstitutional excessive force and deliberate indifference to his medical needs. As Lopez tells things, he began pacing back and forth in an aisleway to stay warm. Id. ¶¶ 11-12. But Defendant Deputy Leonel Elizondo instructed the leg-shackled Lopez to take a seat. Id. When Lopez refused to sit and instead explained that he was pacing to stay warm, Elizondo attempted to handcuff him. Id. Then, “without actively resisting, [Lopez] went to the ground.” Id. ¶ 13. Deputy Rolando Garza then approached to assist Elizondo. Id. ¶ 14. “Despite [Lopez] not actively resisting while being handcuffed and leg-shackled, Defendants took turns applying greater force than necessary to punish him. Plaintiff's left pinky finger was fractured.” Id. ¶ 15.
Things continued to go poorly for Lopez, according to the live complaint. With Lopez handcuffed and leg-shackled, Elizondo and Garza then carried Lopez to a holding cell, where they “intentionally dropp[ed] him on his head.” Id. ¶ 16. “Both Defendants' body worn cameras caught an echoing thud from [Lopez's]'s injury, followed by [Lopez] screaming about pain to his head, yet Defendants took no action. [Lopez] was concussed.” Id. According to Lopez's complaint, neither defendant offered or provided any medical aid or checked on Lopez's condition. Id. ¶ 17. “Neither defendant reported this use of force incident or [Lopez's] injuries.” Id. ¶¶ 17-18. Upon his release from custody after posting a bond, Lopez “immediately went to the hospital and was diagnosed with the fractured pinky and concussion.” Id. ¶ 19.
According to Lopez, his disturbing interaction as a pretrial detainee with Bexar County officials is the result of Bexar County policies of (1) “severely understaffing the [Bexar County Adult Detention Center],” id. ¶ 29, and (2) “delaying the investigation of jailer-involved use of force incidents,” id. ¶ 30. In January 2022, Lopez reported this episode “to Bexar County's internal affairs-and directly to [Bexar County] Sheriff Salazar.” Id. ¶ 20. “The incident,” according to the complaint, “was not timely or sufficiently investigated, and the Defendant jailers were not disciplined.” Id. According to Lopez, his “injuries were the direct result of the individual defendants operating under the lax standards of Sheriff Salazar and the Bexar County Sheriff's Department.” Id. ¶ 31.
The video evidence tells a different story by contradicting Lopez's version of events either directly or by providing important context omitted from the live complaint. The bodycam video from Elizondo begins with a view of the holding area in the detention facility. Dkt. No. 34-2 at 0:00:00-00:12. It shows approximately five rows of benches with individuals seated at intervals on them. Behind the rows of benches are phones affixed to the wall, where several individuals appear either to be using the phones or waiting to use them. Id. There is a space between the last row of benches and the next-to-last row of benches, and Lopez is pacing in that space. Id. He appears to be cold and is wearing a T-shirt, with his hands in his pockets and arms close to his body. Id. But he is blocking a significant portion of the walkway. Id. The room itself is not large, and it looks cramped but not overcrowded. Id.
Elizondo approaches Lopez and speaks with him. Elizondo explains that he needs Lopez to comply with his “verbal orders” and says that Lopez can “just have a seat” and that he does not need Lopez “pacing back and forth.” Id. at 00:00:00-00:20. Lopez explains that he is cold and asks what the problem is with him pacing. Id. Elizondo responds that there is a safety issue with Lopez pacing because if Elizondo needs to run through the area, Lopez will impede him. Id. at 0:00:1500:30. Lopez then questions why Elizondo would need to run through the area, and the two begin to speak at the same time. Id. Lopez plainly has no interest in complying with Elizondo's request to take a seat and fails to sit down. Elizondo then explains that Lopez and Elizondo need to leave the area. Id. at 00:00:25-00:45. Lopez continues to question Elizondo. Id. Elizondo then instructs Lopez to put his hands behind his back. Id. At this point, Lopez crumples to the ground voluntarily, even as Garza can be seen walking up to assist Elizondo. Id. at 0:00:16-00:45. Garza's bodycam video reflects essentially the same events as Elizondo's from this point until the conclusion of the episode. See generally Dkt. No. 34-1.
With Garza and Elizondo both on the scene, they attempt to handcuff and remove Lopez from the room. Dkt. No. 34-2 at 00:00:44-00:50. Elizondo takes out his handcuffs, and Garza instructs Lopez to turn around, presumably so he can be handcuffed. Id. Lopez refuses. Id. Garza approaches Lopez and instructs him to get up. Id. Lopez refuses. Id. Lopez then says, for no discernable reason, “please don't kick my head.” Id. at 0:00:45-00:50. Garza and Elizondo then attempt to lift Lopez up from the ground. Id. at 00:00:50-01:10. Lopez resists and protests, saying “Ow,” again for no discernible reason. Id. With some lifting from Elizondo and Garza, Lopez is finally made to stand up, although he groans and continues to remain limp. Id. Lopez then moans loudly and crumples down to the ground, again for no discernable reason. Id. at 00:01:10-01:17. At this point, Garza and Elizondo attempt to stand Lopez up and bring his arms behind his back to be handcuffed. Id. Lopez again resists their efforts to handcuff him. Id. After a brief tussle, Garza and Elizondo finally place Lopez in handcuffs as he yells loudly while continuing to lie on the floor. Id. at 0:00:50-01:14.
With Lopez refusing to stand up, Elizondo begins to bend Lopez's fingers back, while asking Lopez to stand up. Id. at 00:01:14-01:25. Lopez laughs and can be heard saying, “break my hand.” Id. at 00:01:14-01:22. Lopez is finally brought to a standing position. Id. at 00:01:22-01:50. He again laughs. Id. Then, he crumples to the ground and begins shouting and calling out in between wordless shouts, “my shoulder,” “medic,” and “oh my wrist” as Garza and Elizondo attempt to keep him standing and move him from the crowded room. Id. at 0:01:22-02:00.
Garza and Elizondo then move Lopez away from the main holding area, presumably partially carrying or dragging him based on the limited view from the video. Id. As he is moved, Lopez continues to shout wordlessly as well as shout “my shoulder.” Id. At one point he lowers his voice to a conversational level and says, “oh, you stepped on my shoe” and asks, “could I get your badge numbers?” Id. at 00:01:43-02:12. Garza and Elizondo move Lopez into a holding cell and place him on the ground. Id. at 00:02:12-02:20. Garza and Elizondo do not appear to act violently when they place Lopez on the ground, although there is a sound on Elizondo's video that could be Lopez's head impacting the ground. Id. On Garza's video there is no discernable sound of Lopez's head hitting the floor, and the video shows Garza and Elizondo attempting to lower Lopez gently to the ground. Dkt. Dkt. No. 34-1 at 0:01:05-01:10. Garza's video, however, is not conclusive in reflecting that Lopez's head did not impact the ground. Id. In any event, Lopez now begins to shout, “oh, my head.” Dkt. No. 34-2 at 00:02:12-02:24. Lopez also continues to scream wordlessly, as he has been doing almost continuously since initially refusing to be handcuffed. Id. at 00:00:00-02:25. Lopez again screams about his head, then his shoulder, and then again that he needs a medic. Id. at 00:02:24-02:36. As Elizondo and Garza remove the handcuffs from Lopez, close the door to the cell, and leave; Lopez can be heard still yelling for a medic. Id. at 00:02:3602:42.
Lopez sued Bexar County and Elizondo and Garza individually. The live complaint raises claims for the following: (1) violations of the substantive due process protections of the Fourteenth Amendment due to the Elizondo's and Garza's application of allegedly excessive force resulting in Lopez's fractured pinky finger and concussion and for further failing to provide basic medical care after those injuries, and (2) municipal liability under Monell against Bexar County for these same injuries that resulted from a policy or practice of Bexar County in administering its Adult Detention Center.
Analysis
Lopez asserts in his Second Amended Complaint claims via 42 U.S.C. § 1983 against Defendants Elizondo and Garza for violations of his substantive due process rights under the Fourteenth Amendment for excessive force and failure to provide medical care. The complaint also asserts a Monell claim against Bexar County.
A. Some of the Complaint's Allegations Are Clearly Refuted by Bodycam Footage.
The Court must initially address to what extent the parties' competing factual narratives affect the Court's analysis. Typically, at the Rule 12(b)(6) stage the Court must accept as true all well-pleaded facts and draw all reasonable inferences in favor of the nonmoving plaintiff. E.g., Harmon v. City of Arlington, 16 F.4th 1159, 1162 (5th Cir. 2021). “The court does not, however, presume true a number of categories of statements, including legal conclusions; mere labels; threadbare recitals of the elements of a cause of action; conclusory statements; and naked assertions devoid of further factual enhancement.” Id. at 1162-63 (quotation omitted). And when video footage is incorporated into the pleadings, courts are instructed to consider the video, view it “in the light most favorable to the plaintiff,” and adopt the events depicted in the video-even in contradiction of pleaded facts-whenever “the video blatantly contradicts” the allegations in the complaint. Id. at 1163 (cleaned up).
Here, the live complaint incorporates video evidence. It both refers to video evidence, see, e.g., 2d Am. Compl. ¶ 16 (“Both Defendants' body worn cameras caught an echoing thud from Plaintiff's injury ....”), and includes screenshot pictures from that evidence, see id. at 4.
Defendants produced and filed the video voluntarily. Dkt. Nos. 31 & 35 (unopposed motion for leave to file video evidence). Given that both parties appear comfortable with the Court considering the video evidence at this juncture and given that the evidence is referenced by and incorporated into the live complaint via reference and screenshot, the Court will consider the video evidence consistent with Harmon's standard. See Harmon, 16 4th at 1163.
After viewing the video in the record and applying Harmon, the allegations in Lopez's live complaint must be disregarded in several key respects. First, the complaint vaguely alleges that Lopez “went to the ground” and was not “actively resisting” when Garza and Elizondo attempted to handcuff him. Dkt. No. 24 ¶ 13. The video evidence provides helpful, indisputable clarification and context to these allegations. It reveals that Lopez himself dropped to the ground in an apparent act of passive resistance. Lopez then refused to move or comply with basic orders for the remainder of the interaction. And he in fact did resist efforts to place him in handcuffs. Indeed, throughout the videos, Lopez's continued resistance, sometimes passive and sometimes active, as well as his refusals to comply with orders is obvious and apparent. Also apparent is Lopez's continuous effort to portray the deputies as injuring him even when there is no plausible basis to so conclude, as shown by his unsubstantiated comments about someone stepping on his head and his shoe or his repeated screaming complaints about his uninjured shoulder and wrist. Although Lopez was not “actively resisting” much of the time, the videos blatantly refute any implication that he complied or was willing to comply with the deputies' instructions. And the videos do reflect that he resisted-albeit not with extreme force-efforts to place him in handcuffs and walk him to a detention cell.
The complaint also alleges that the deputies “took turns applying greater force than necessary to punish him.” Dkt. No. 24 ¶ 15. The Court need not credit a bare legal conclusion that force was applied to punish. Harmon, 1162-63. Although the video indeed shows deputies bending Lopez's left pinky backward when he refused to stand up and walk to the holding cell, nothing indicates that this was done to “punish” Lopez. Deputies began bending Lopez's pinky finger back after Lopez refused to stand up and walk to the holding cell. Indeed, Lopez later characterizes this as a “pain compliance technique.” Dkt. No. 29 at 5. Although the video confirms the use of some force, even viewing the video in the light most favorable to Lopez, the purpose of the force applied is, at most, undetermined. The Court therefore cannot credit Lopez's unsubstantiated legal conclusion that force was applied “to punish.”
Lopez also alleges that the officers “intentionally dropp[ed] him on his head,” and that the bodycam videos “caught an echoing thud from Plaintiff's injury.” Dkt. No. 24 ¶ 16. Both videos depict the officers slowly lowering a noncompliant Lopez to the floor of the holding cell. The Court listened to the videos multiple times and can discern no “echoing thud” on Garza's video and only a brief sound on Elizondo's that may or may not be his head coming into contact with the concrete floor. In this regard, the videos blatantly contradict any assertion that Lopez was obviously or plainly injured. Indeed, Lopez's screaming, moaning, and complaining throughout the video about all manner of things, including his shoulder, his shoe, and his face, only support that conclusion of no obvious or apparent injury.
On the topic of Lopez's often over-the-top vocalizations, Lopez alleges that he was “screaming about pain to his head” after being dropped on the ground. Dkt. No. 24 ¶ 16. The videos do reflect that he complained about his head at that time. But the bodycam videos show that Lopez began making a scene by screaming and complaining of pain to various body parts even before the officers applied any pain-compliance techniques or dropping Lopez in the holding cell. Lopez can also be heard on the video yelling loudly for a “medic” while laughing. Again, while the videos do not refute the fact of Lopez's injuries, they do blatantly contradict any notion that his injuries were obvious or apparent, meaning the Court must adopt the events in the video over those alleged in the live complaint. See Harmon, 16 4th at 1163.
B. Lopez's Fourteenth Amendment Excessive-Force Claims Against the Officers Are Barred by Qualified Immunity.
Qualified immunity is an affirmative defense “that shields public officials [like Elizondo and Garza] sued in their individual capacities ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Joseph on behalf of Estate of Joseph v. Bartlett, 981 F.3d 319, 328 (5th Cir. 2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “A plaintiff seeking to defeat qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” See, e.g., Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc).
Fourteenth Amendment excessive-force claims, like those Lopez asserts against Elizondo and Garza, require a plaintiff to show “that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015); see also Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). Objective reasonableness is a fact- and contextdependent inquiry:
[O]bjective reasonableness turns on the facts and circumstances of each particular case. A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight. A court must also account for the legitimate interests that stem from the government's need to manage the facility in which the individual is detained, appropriately deferring to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security.Kingsley, 576 U.S. at 397 (internal quotations, citations, brackets omitted). The following nonexclusive list includes considerations that “bear on the reasonableness or unreasonableness of the force used”:
the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Id. “When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.” Ramirez v. Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021) (quotation omitted).
With these standards in mind, the Court concludes that Lopez fails to plead facts that plausibly show-even taking well-pleaded facts as true and drawing all reasonable inferences in Lopez's favor-that the force used was objectively unreasonable under the circumstances. Several indisputable facts plainly reflected in the videos bear emphasis and inform the Court's analysis.
First, Lopez presented an obvious security problem. Lopez's pacing was an obstruction to a walkway in a crowded pretrial detention area in which many other detainees were being held. Lopez is the only person on the videos who occupied such a walkway and the only person pacing. All other detainees, at all times on the videos, were either seated quietly or standing out of the way along a wall. Elizondo explained that there was a safety concern with Lopez remaining standing. Lopez refused to be seated and argued with Elizondo, and he then commenced to make a scene by arguing and crumpling on the floor. At this point, the safety of others in the area, including the deputies, was plainly implicated. See Kingsley, 576 U.S. at 397. A reasonable officer in such a situation would recognize that Lopez needed to be removed from the room due to a potential security issue. The severity of that security issue only escalated as Lopez made a muss, feigned injury, screamed and moaned for no discernable reason, undermined the deputies' authority by laughing and mocking them (e.g., by inviting them to break his hand), and prolonged the encounter. Kingsley, 576 U.S. at 397 (threat reasonably perceived and severity of the security problem are considerations).
Second, Lopez consistently did not comply with instructions, and he resisted efforts to place him in handcuffs and walk him from the crowded room to a detention cell. This resistance, both passive and active, informs the use of force. Lopez's resistance is reflected throughout the videos of the incident. Indeed, the length of time needed to move him to the nearby detention cell indisputably reflects his resistance and refusal to cooperate with instructions, and it also demonstrates why any reasonable officer would have escalating safety concerns about the situation. Under such circumstances, the use of a pain-compliance technique like bending a finger was commensurate with the situation and not objectively unreasonable.
Third, Lopez's allegation that the deputies' placement of him on the floor of the detention cell was somehow an exercise of excessive force is blatantly contradicted by the video. The deputies did not drop Lopez on the floor. They placed him there as best they could. They obviously made an effort to limit the force used. Kingsley, 576 U.S. at 397 (effort made to temper or limit amount of force is relevant to the excessive-force inquiry). They could easily have dropped him as Lopez asserts-but they did not. Their efforts in this regard are obvious on the videos. Lopez's head may or may not have hit the floor but whether or not it did, the officers cannot-based on the video evidence-be rightly accused of using force to punish Lopez by dropping him.
And, finally, video evidence aside, the injuries to Lopez were minor given the circumstances and context. Refusing to comply with instructions and resisting deputies in a detention setting can result in significant injuries, given the extreme safety risks in a generalpopulation setting. The deputies were significantly outnumbered in the room in which Lopez put on his performance. A fracture to his finger and concussion were in the context presented much less serious injuries than might otherwise have resulted had the situation taken a turn, or had other detainees chosen that moment to move against the deputies or each other.
C. Lopez's Fourteenth Amendment Medical-Care Claims Against the Officers Are Barred by Qualified Immunity.
“The Fourteenth Amendment guarantees pretrial detainees a right not to have their serious medical needs met with deliberate indifference on the part of confining officials.” Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (quote omitted). “To succeed on a deliberate indifference claim, plaintiffs must show that (1) the official was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and (2) the official actually drew that inference.” Id. (quote omitted). Put another way, “[t]he prisoner/detainee must prove: (1) the existence of a serious medical need; (2) that prison officials had subjective knowledge of the substantial risk of serious harm caused by the need; (3) that prison officials, despite their actual knowledge of the substantial risk, denied or delayed the prisoner's medical treatment; and (4) the delay in or denial of medical treatment resulted in substantial harm, such as suffering additional pain.” Mornes v. Valdez, No. 17-CV-2333-N-BK, 2020 WL 4340951, at *2 (N.D.Tex. Apr. 30, 2020) (citing Petzold v. Rostollan, 946 F.3d 242, 249 (5th Cir. 2019).
Lopez fails to state a plausible deliberate-indifference claim. Defendants argue the claim fails this plausibility test on at least two distinct elements, even though either failure alone would support dismissal. First, according to Defendants, there is no plausible allegation that any delay or denial of medical care caused Lopez substantial harm, such as additional suffering. But Lopez's claim survives this argument. There is a reasonable inference that Lopez suffered additional pain or harm from an untreated concussion and fractured finger. But Defendants persuade the Court with their argument that there is no plausible allegation that the deputies subjectively knew of Lopez's injuries. On this point, the videos are compelling evidence for Defendants, and the complaint, notably, is essentially silent. Given that the complaint doesn't meaningfully address facts that could inform these aspects of a deliberate indifference claim, Lopez's over-the-top behavior reflected on the videos throughout the encounter only harms his cause. Those histrionics made it virtually impossible for Elizondo or Garza to subjectively know Lopez was genuinely injured to the point of having a serious medical need that presented a substantial risk of serious harm. Without any plausible allegations in the complaint to the contrary, Lopez's deliberate-indifference claim fails in this regard.
C. Lopez Fails to Establish Monell Liability Against Bexar County.
Because Lopez points to no valid constitutional violation as a predicate, he cannot establish municipal liability against Bexar County under Monell. Cf. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (“[M]unicipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force' is the policy or custom.”). Any claim against Bexar County, therefore, fails.
D. Further Leave to Amend is Futile and Should be Denied.
No further amendment of the pleadings is warranted. Lopez has been afforded three opportunities to amend his complaint, and the allegations have changed dramatically. In his Original and First Amended Complaints, Lopez alleged he was “attacked and suffered physical violence” by five unnamed officers, who “brutally kick[ed] him on the head,” resulting in serious injuries. Dkt. No. 1 ¶¶ 1, 27; Dkt. No. 6 ¶¶ 1, 27. Defendants then produced the video, and the Second Amended Complaint has now been filed, alleging the facts discussed above.
Lopez's dramatic about-face on the facts and alleged constitutional violations strongly indicates that he has “pleaded his best case.” Moreover, the Court has reviewed the bodycam footage, and granting further leave to amend under these circumstances would be futile. Accordingly, the District Court should dismiss all claims.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Defendants' motions to dismiss, Dkt. Nos. 28 & 34, be GRANTED. Because further leave to amend would be futile, Lopez's claims should be DISMISSED.
Having considered and acted upon all matters for which this case was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.