Opinion
Civil Action 6:22-CV-00022
08-29-2023
LEROY PUNCH, Plaintiff, v. VICTORIA COUNTY JAIL MEDICAL DEPARTMENT, VICTORIA COUNTY JAIL ADMINISTRATION, CAPTAIN WILLIAMSON, SARGENT VALADEZ, NURSE ULLMAN, NURSE GAYLE, and NURSE LAQUA, Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DREW B. TIPTON, UNITED STATES DISTRICT JUDGE
Pending before the Court is the February 7, 2023 Memorandum and Recommendation (“M&R”) prepared by Magistrate Judge Mitchel Neurock. (Dkt. No. 25). Judge Neurock made findings and conclusions and recommended that Plaintiff's Section 1983 claims be dismissed without prejudice, (Dkt. Nos. 1, 7), for purposes of screening and 28 U.S.C. § 1915(e)(2)(B). (Dkt. No. 25 at 1). Further, Magistrate Judge Neurock recommends that Plaintiff's Motion to Transfer, (Dkt. No. 23), and Motion for Appointment of Counsel, (Dkt. No. 24), be denied as moot. (Dkt. No. 25 at 1, 16).
The Parties were provided proper notice and the opportunity to object to the M&R. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). On February 17, 2023, Plaintiff filed two objections. (Dkt. No. 27). First, Plaintiff objects to Judge Neurock's conclusion that Plaintiff's inadequate medical care claims be dismissed. (Dkt. No. 27 at 2). Second, Plaintiff objects to Judge Neurock's conclusion that the Court need not appoint Plaintiff a guardian ad litem to fairly analyze Plaintiff's claims. (Dkt. No. 27 at 1, 3).
Technically, Plaintiff filed a document entitled, “Memorandum Requesting Remand to Magistrate Judge's Recommendation.” (Dkt. No. 27). The Court, however, is interpreting this document as objections to Judge Neurock's M&R.
In accordance with 28 U.S.C. § 636(b)(1)(C), the Court is required to “make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection [has been] made.” After conducting this de novo review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.; see also Fed.R.Civ.P. 72(b)(3).
The Court has carefully considered de novo those portions of the M&R to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendations for plain error. Finding no error, the Court accepts the M&R and adopts it as the opinion of the Court. It is therefore ordered that:
(1) Judge Mitchel Neurock's M&R, (Dkt. No. 25), is ACCEPTED and ADOPTED in its entirety as the holding of the Court;
(2) Plaintiff's claims are DISMISSED WITHOUT PREJUDICE, (Dkt. Nos. 1, 7);
(3) Plaintiff's Motion to Transfer, (Dkt. No. 23), is DENIED as moot; and
(4) Plaintiff's Motion for Appointment of Counsel, (Dkt. No. 24), is DENIED as moot.
On January 9, 2023, Punch filed two documents: a Motion to Transfer, (Dkt. No. 23), and a Motion for Appointment of Counsel, (Dkt. No. 24). But these documents are identically worded. Compare (Dkt. No. 23) with (Dkt. No. 24). Judge Neurock treats the Motion to Transfer as an application for a writ of habeas corpus. (Dkt. No. 25 at 48 n.20). So, Judge Neurock severs the writ, (Dkt. No. 23), into a new case. (See Dkt. No. 26) (order severing case). Thus, although not directly recommended by Judge Neurock in his M&R, the Court considers Dkt. No. 23 to now be moot due to the severing of the Motion to Transfer into a new case, (see Dkt. No. 25).
It is SO ORDERED.