Opinion
Civil Action 2:21-CV-00255
03-31-2022
RONALD MCGAUGHEY, Plaintiff, v. THE STATE OF TEXAS, et al., Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO DISMISS CASE
NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE
On February 25, 2022, United States Magistrate Judge Mitchel Neurock issued a “Memorandum and Recommendation to Dismiss Case” (M&R, D.E. 21). Plaintiff was provided proper notice of, and opportunity to object to, the Magistrate Judge's M&R. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); General Order No. 2002-13. No. objections have been timely filed.
When no timely objection to a magistrate judge's M&R is filed, the district court need only satisfy itself that there is no clear error on the face of the record and accept the magistrate judge's M&R. Guillory v. PPG Industries, Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citing Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1420 (5th Cir. 1996)).
Having reviewed the findings of fact and conclusions of law set forth in the Magistrate Judge's M&R (D.E. 21), and all other relevant documents in the record, and finding no clear error, the Court ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly, pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2):
(1) Dr. Philemon Chang is DISMISSED from this action;
(2) Plaintiff s claim for money damages against Officer Benavides in his official capacity is DISMISSED as barred by the Eleventh Amendment;
(3) Plaintiff s claim against the State of Texas is DISMISSED as barred by the Eleventh Amendment;
(4) Plaintiff s claims seeking injunctive relief are DISMISSED with prejudice as moot; and
(5) Plaintiffs claims of excessive force and deliberate indifference are DISMISSED with prejudice for failure to state a claim and/or as frivolous pursuant to § 1915A(b)(1) because they are barred by limitations.
This dismissal counts as a “strike” for purposes of 28 U.S.C. § 1915(g), and the Clerk of Court is INSTRUCTED 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.
This action is DISMISSED WITH PREJUDICE in its entirety
ORDERED on March 31, 2022.