□ Southern District of Texas ENTERED February 18, 2020 UNITED STATES DISTRICT COURT David J. Bradley, Clerk SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION DONALD WAYNE HEROD, § § Plaintiff, § VS. § CIVIL ACTION NO. 2:19-CV-271 § D. POWELL, ef al., § § Defendants. § ORDER ADOPTING MEMORANDUM AND RECOMMENDATION AND AMENDED MEMORANDUM AND RECOMMENDATION I. The Court Adopts the M&R (D.E. 10) Before the Court is Magistrate Judge Jason B. Libby’s Memorandum and Recommendation (M&R), entered on September 24, 2019. (D.E. 10). The M&R recommends that Plaintiff's § 1983 claims against Defendants be dismissed with prejudice as frivolous until such time as Plaintiff satisfies the conditions set forth in Heck v. Humphrey,

(1994). The M&R further recommends that this dismissal count as a “strike” for purposes of

(g). Plaintiff timely filed objections to the M&R on October 3, 2019. (D-E. 13). First, Plaintiff objects to the factual finding that he has had two prior§ 1983 suits dismissed on Heck grounds. Specifically, he states that civil action number 4:16-cv-0808 was not filed by him. After reviewing the docket in that case and finding that it was brought by Defendant, this objection is OVERRULED. Second, Plaintiff seemingly objects to the M&R’s conclusion that his claim is frivolous by re-arguing the merits of his § 1983 claim. For the same reasons laid out in the 1/3

M&R and because Plaintiff has not met the Heck conditions, this objection is OVERRULED. Il. The Court Adopts the Amended M&R (D.E. 24) Also before the Court is Magistrate Judge Libby’s Amended M&R entered on December 2, 2019. (D.E. 24). The Amended M&R recommends that Plaintiff's motion seeking preliminary injunctive relief (D.E. 16) be denied. Plaintiff filed objections to the Amended M&R on December 30, 2019 and January 6, 2020. (D.E. 33; D.E. 34). Plaintiff does not object to the substance of the Amended M&R but again challenges his underlying conviction by way of arguing’ his § 1983 claim. As discussed above, Plaintiff's claims are Heck-barred and he has not satisfied any of the four elements of the test to establish preliminary injunctive relief. Accordingly, his objections to the Amended M&R are OVERRULED. The Court will also address Plaintiffs objections to the Magistrate Judge’s handling of aspects of this case, (D.E. 39; D.E. 41), by explaining that the Magistrate Judge is permitted to resolve all pre-trail, non-dispositive matters without the parties’ consent under

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IM. Conclusion Thus, after reviewing the facts, conclusions of law, and recommendations set forth in the M&R and the Amended M&R, as well as Plaintiffs objections and all other relevant documents in the record, and having made a de novo disposition of the portions of the M&R and Amended M&R to which the objections were directed, the Court OVERRULES Plaintiffs objections. The Court ADOPTS the findings and conclusions of the Magistrate 2/3

Judge. (D.E. 10; D.E. 24). Accordingly, Plaintiffs motion seeking preliminary injunctive relief (D.E. 16) is DENIED. Further, this action is DISMISSED with prejudice as frivolous until such time Plaintiff satisfies the conditions set forth in Heck. This dismissal is counted as a strike for purposes of

(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 [email protected]. SIGNED and ORDERED this °C of TH DAVID S*MORALES UNITED STATES DISTRICT JUDGE

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