Opinion
Civil Action 2:21-CV-00205
11-04-2021
CIPRIANO VARGAS, Plaintiff, v. JANE DOE 1, et al., Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
DAVIE S. MORALES, UNITED STATES DISTRICT JUDGE
Before the Court is Magistrate Judge Jason Libby's Memorandum and Recommendation (“M&R”), entered on October 20, 2021. (D.E. 10). The M&R recommends that Plaintiffs § 1983 claims against Defendants be dismissed with prejudice for failure to state a claim and as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). (D.E. 10). The M&R further recommends that the dismissal count as a “strike” for purposes of 28 U.S.C. § 1915(g). (D.E. 10). Plaintiff timely filed objections to the M&R on November 1, 2021. (D.E. 11).
First, Plaintiff objects to the Magistrate Judge's handling of aspects of this case. (D.E. 11). The Magistrate Judge is permitted to resolve all pre-trial, non-dispositive matters without the parties' consent under 28 U.S.C. § 636. Accordingly, this objection is OVERRULED.
Next, Plaintiff objects to the M&R's conclusion that his claim is frivolous, and that it should be counted as a “strike” under 28 U.S.C. § 636, by re-arguing the merits of his § 1983 claim. For the same reasons laid out in the M&R, these objections are OVERRULED.
Thus, after having carefully reviewed the proposed findings and conclusions of the M&R, the record, the applicable law, and having made a de novo review of the portions of the M&R to which Plaintiffs objections were directed, the Court OVERRULES 1 Plaintiffs objections. (D.E. 11). Accordingly, the Court:
(1) ADOPTS the M&R in its entirety. (D.E. 10).
(2) Plaintiffs complaint (D.E. 1) is DISMISSED with prejudice for failure to state a claim for relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
(3) This dismissal is counted 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.
A final judgment will be entered separately.
SO ORDERED.