Southern District of Texas ENTERED UNITED STATES DISTRICT COURT Vaton □□□□□ □□□□ SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION ROBERT NICHOLAS SIMMONS, I, § Plaintiff, V. § CIVIL ACTION NO. 2:24-CV-00257 IRMA M. SANJINES, ef al., Defendants. : ORDER ADOPTING MEMORANDUM AND RECOMMENDATION Before the Court is Magistrate Judge Jason Libby’s Memorandum and Recommendation (“M&R”). (D.E. 11). The M&R recommends that the Court dismiss Plaintiffs claims with prejudice as frivolous and/or for failure to state a claim. /d. at 1. Plaintiff has filed written objections to the M&R. (D.E. 14). When a party objects to the findings and recommendations of a magistrate judge, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.§ 636(b)(1)(C). A party must point out with particularity any alleged errors in the M&R’s analysis. Pelko v. Perales, No. 2:23-CV-00339,

, at *1 (S.D. Tex. May 3, 2024) (Ramos, J.). Objections that merely re-urge arguments contained in the original briefing are not proper and will not be considered. Edmond v. Collins,

, 293 n.7 (5th Cir. 1993). Moreover, “[f]rivolous, conclusive or general objections need not be considered by the district court.” Nettles v. Wainwright,

, 410 n.8 (Sth Cir. 1982) (en banc) (overruled on other grounds by Douglass v. United Servs. Auto. Ass’n,

(Sth Cir. 1996) (en banc)) (superseded by statute on other grounds,

(b)(1)). As to any portion for which no objection is filed, a district court reviews for clearly 1/3

erroneous factual findings and conclusions of law. United States v. Wilson,

(Sth Cir. 1989) (per curiam). Plaintiffs objections largely recount arguments considered by Magistrate Judge Libby. See (D.E. 14, p. 2-8); (D.E. 11, p. 2-8). However, Plaintiff does specifically object to the M&R’s application of Heck v. Humphrey. Id. at 6. The M&R recommends dismissal of Plaintiff's claims under Heck v. Humphrey,

(1994). (D.E. 11, p. 6). The M&R explained that because Plaintiff seeks money damages relating to his 2022 Nueces County conviction, Heck bars those claims until a court “has reversed or otherwise invalidated” that conviction. /d. at 5 (citing Heck,

). Because no court has done so, the M&R recommends the Court find that Heck bars Plaintiffs claims. /d. at 5—6. Plaintiff objects to this conclusion on the grounds that his claims have “nothing to do with challenging his current single Count #1 of intoxication manslaughter[.]” (D.E. 14, p. 6). Rather, Plaintiff argues that he is asserting civil rights violations relating to “being indicted and convicted/sentenced to the Count #2 manslaughter charge . . . befor[e] it was dismissed.” /d. Even assuming Plaintiff is correct that he was convicted of this count, and it was then later dismissed, he still cannot avoid Heck’s bar because the fact that the count was dismissed does not prove that a court has reversed or otherwise invalidated that conviction. See Heck,

(explaining that sentence must be invalidated by court in order to proceed with

claim). Accordingly, the Court OVERRULES Plaintiffs objection. (D.E. 14, p. 6). Even if the Court were to sustain Plaintiff's objection, the objection does not dispute the M&R’s alternative grounds for dismissal. (D.E. 11, p. 6-7). The M&R alternatively recommended dismissal of Plaintiff's claims under the doctrine of judicial immunity and for failure to state a claim. Jd. Those grounds for dismissal persist whether or not Heck properly applies to bar Plaintiff's claims.

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Having 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 are directed,

(b)(1)(C), the Court OVERRULES Plaintiffs objections, (D.E. 14), and ADOPTS the findings and conclusions of the M&R, (D.E. 11). Accordingly, the Court DISMISSES Plaintiffs claims with prejudice. (D.E. 1). The Court ORDERS the Clerk of Court to send notice of this dismissal to the Manager of the Three Strikes List for the Southern District of Texas at Three [email protected]. The Court will enter a final judgment separately. SO ORDERED. . / DAVID*S-MORALES UNITED STATES DISTRICT JUDGE

Signed: Corpus Christi, Texas March 28442025

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