Opinion
No. 2:03-CV-0385.
March 28, 2005
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND ORDER OF DISMISSAL
Plaintiff CURTIS MARVIN McKINNEY, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, filed suit pursuant to Title 42, United States Code, Section 1983 complaining against GARY L. JOHNSON and various employees of the Texas Department of Criminal Justices and was granted permission to proceed in forma pauperis.
On March 11, 2004, all of plaintiff's claims against defendants JOHNSON, COLE, MUNSELLE, and BAKER were dismissed with prejudice as frivolous and for failure to state a claim on which relief can be granted, and plaintiff's claims against the remaining defendants in their official capacities were dismissed with prejudice as frivolous, as were his claims for return of class and goodtime credits. Plaintiff's claims sounding in habeas were dismissed without prejudice to being pursued in a habeas corpus action.
On March 4, 2005, a Report and Recommendation was issued by the United States Magistrate Judge analyzing defendants' motion for summary judgment on plaintiff's remaining claims and recommending that defendants' motion for summary judgment be GRANTED and plaintiff CURTIS MARVIN McKINNEY's surviving claims against the remaining defendants in their individual capacities be dismissed with prejudice as frivolous, for failure to state a claim on which relief can be granted, and because defendants have shown they are entitled to qualified immunity.
The period for response has expired; and no objections have been filed by plaintiff.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation. The Court is of the opinion that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court.
This Court, therefore, does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge in this case.
IT IS THEREFORE ORDERED that defendants' Motion for Summary Judgment is GRANTED and plaintiff's remaining Civil Rights Claims are DISMISSED WITH PREJUDICE DUE TO DEFENDANTS' ENTITLEMENT TO QUALIFIED IMMUNITY AND WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk shall send a copy of this Order to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail a copy to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.