Villasana v. Rivera

UNITED STATES DISTRICT COURT January 23, 2025 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION

AUDENCIO G. VILLASANA, III, § § Plaintiff, § § VS. § CIVIL ACTION NO. 2:24-CV-00146 § OSCAR RIVERA, et al., § § Defendants. § ORDER ADOPTING, AS MODIFIED, MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Pending before the Court is Plaintiff’s complaint (D.E. 1, 14) for initial screening under the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. On November 13, 2024, United States Magistrate Judge Mitchel Neurock issued a “Memorandum and Recommendation of United States Magistrate Judge” (M&R, D.E.

19), recommending that the Court retain Plaintiff’s excessive force claim and dismiss with prejudice all of the remaining claims.

On November 26, 2024, within the time for filing objections to the M&R, Plaintiff filed a purported notice of appeal (D.E. 26) captioned for the Fifth Circuit, complaining of the M&R (D.E. 19), along with this Court’s Order (D.E. 22) affirming the Magistrate Judge’s denial of his motion for court-appointed counsel (D.E. 16). The Fifth Circuit dismissed the appeal, stating that it was incorrectly docketed and instead constituted an appeal to this Court. D.E. 30.

22.

First, Plaintiff objects to the recommended denial of his claim for violation of his right to access the courts. D.E. 26, pp. 1-2; D.E. 36, pp. 1-2. In so doing, he merely repeats his complaints of an inadequate law library and denial of legal counsel to represent him.

An objection must point out with particularity the alleged error in the Magistrate Judge’s analysis. Otherwise, it does not constitute a proper objection and will not be considered.

Fed. R. Civ. P. 72(b)(2); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003); Edmond v. Collins, 8 F.3d 290, 293 n.7 (5th Cir. 1993) (finding that right to de novo review is not invoked when a petitioner merely re-urges arguments contained in the original petition).

Plaintiff does not address the dispositive legal issue identified in the M&R, which is that Plaintiff has failed to demonstrate that he has had a nonfrivolous claim denied or impaired by the conduct complained of. The objection is therefore OVERRULED.

Second, Plaintiff objects that the treatment he has received with respect to the law library and denial of legal counsel constitutes discrimination and deliberate indifference.

D.E. 36, p. 2. This claim is conclusory and raised for the first time in the objections.

Third, Plaintiff appears to object to the timing of the M&R because he had some appeal and request for extension of time pending. D.E. 36, p. 3. It is not clear what proceedings he is referring to or how the timing of the issuance of the M&R harmed him.

The objection fails to point out with specificity any error with respect to the issuance of the M&R. Fed. R. Civ. P. 72(b)(2). The objection is OVERRULED.

Fourth, Plaintiff objects that he was previously unaware of the existence of injunctive relief and whether a jury trial was applicable. D.E. 36, p. 3. Plaintiff does not articulate how a right to a jury trial would change any result when the question is whether he has stated a claim that survives screening. With respect to injunctive relief, however, the requested remedy can change the analysis of the claims. For this reason, the Court SUSTAINS the objection.

While the Court accepts the recommendations of the Magistrate Judge, it declines to make the ruling with prejudice. Plaintiff may file a motion for leave to amend his complaint, together with a full description of the claim(s) that he seeks to revive based on a request for injunctive relief. He must also specify what conduct his requested injunction would compel or preclude. That motion is for decision by the Magistrate Judge in the first instance.

Sixth, Plaintiff bemoans the state of justice in the courts and states a desire to depose certain witnesses. These matters do not state a cognizable objection and are OVERRULED. Fed. R. Civ. P. 72(b)(2).

Having reviewed the findings of fact, conclusions of law, and recommendations set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Plaintiff’s objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation to which objections were specifically directed, the Court OVERRULES Plaintiff’s first, second, fourth, fifth and sixth objections, and SUSTAINS Plaintiff’s fourth objection. The Court ADOPTS as its own the findings and conclusions of the Magistrate Judge, MODIFIED only so as to be without prejudice to Plaintiff’s filing a motion for leave to amend to add claims for injunctive relief and revive certain claims, which motion is to be directed to the Magistrate Judge.

Accordingly, • The Court RETAINS Plaintiff’s Fourteenth Amendment excessive force claim against Sergeant Silvas, Officer Rosales, and Officer Ilañes in their individual capacities; and / 5 e The Court DISMISSES all of Plaintiffs other clams WITHOUT PREJUDICE to Plaintiff's filing a motion for leave to amend to reinstate claims on which he seeks injunctive relief.

ORDERED on January 23, 2025. igh GONZAIGS RAMOS UNITED STATES DISTRICT JUDGE 5/5