Opinion
CIVIL ACTION NO. H-12-2239
03-07-2014
WAYNE MANEMANN, ERROL YOUNG, and ALVIN WESTLEY, Plaintiffs, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendant.
ORDER ON MAGISTRATE JUDGE'S
MEMORANDUM AND RECOMMENDATION, AND ORDER
Pending before the court are Plaintiffs' Objections to United States Magistrate Judge's Memorandum and Recommendation, and Order (Docket Entry No. 78) and Defendant's Objections to Memorandum and Recommendation, and Order (Docket Entry No. 80).
Having reviewed the Memorandum and Recommendation, and Order (Docket Entry No. 74) and the objections thereto, the court concludes, for the reasons explained below, that two objections to the Magistrate Judge's recommendations should be sustained. The court concludes that the remainder of said Memorandum and Recommendation, and Order should be adopted.
A district court that refers a case to a magistrate judge must review de novo any portions of the magistrate judge's proposed findings and recommendations on dispositive matters to which the parties have filed specific, written objections. See Fed. R. Civ. P. 72(b). Among other options, the district court may accept, reject, or modify, in whole or in part, the challenged portions of the proposed findings and recommendations. Id.
In this case the court also must consider new evidence submitted by the parties. Plaintiffs submitted the Amended Declaration of Errol Young, which raises a fact issue on clear floor space in the bathrooms. Defendant submitted recent affidavits of Robert Warren, Defendant's expert, and Lon Townsend, a lay witness, which raise a fact issue on the vandalism exception to the requirement of shower spray units. In light of this new evidence the court concludes that summary judgment should be denied as to both issues.
With the above modifications, it is ORDERED that the Memorandum and Recommendation, and Order is hereby ADOPTED by this court.
The court concludes that this case is appropriate for mediation. If the parties are not able to settle the case in the next thirty (30) days, they shall provide the court with the name, address, telephone number, facsimile number, and e-mail address of an agreed upon mediator and a date for the mediation.
This case is scheduled for Docket Call on June 13, 2014, at 4:00 p.m. in Courtroom 9-B, Ninth Floor, United States Courthouse, 515 Rusk Avenue, Houston, Texas 77002. The Joint Pretrial Order and motions in limine are due on June 6, 2014. Plaintiffs are responsible for timely filing the complete joint pretrial order.
No instrument filed within seven days of docket call shall be considered. All pending motions may be ruled on at docket call, and the case will be set for trial if the joint pretrial order has been filed.
The Clerk shall send copies of this Order to the respective parties.
SIGNED at Houston, Texas, this the 7th day of March, 2014.
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SIM LAKE
UNITED STATES DISTRICT JUDGE