Opinion

Dishman v. Cox

Court
District Court, S.D. Texas
Filed
Apr 28, 2023
Cited by
0 cases
Authority
More cited than 32.0%

The opinion

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT oe

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

MARK ANTHONY DISHMAN, JR., §

Plaintiff,

V. CIVIL ACTION NO. 2:22-CV-00258

C.0. COX, et al.,

Defendants.

ORDER ADOPTING AMENDED MEMORANDUM & RECOMMENDATION

Before the Court is Magistrate Judge Jason Libby’s amended Memorandum and

Recommendation (“M&R”). (D.E. 30). The M&R withdraws the December 15, 2022 M&R, (D.E.

17), and recommends dismissing all Plaintiffs claims as frivolous and/or for failure to state a claim

on which relief may be granted. (D.E. 30, p. 1, 15). The M&R further recommends the dismissal

of this case count as a strike for the purposes of 28 U.S.C. § 1915(g). Jd at 1, 15. This amended

M&R is largely a result of the magistrate judge’s review of evidence that Defendant Cox submitted

to support his motion for summary judgment. See id. at 10-11 (examining D.E. 25-1 and D.E. 25-

2). Defendant Cox moved for summary judgment, in part, on qualified immunity grounds. See

(D.E. 25, p. 4-5, 6-8, 12-13). Plaintiff did not respond to Defendant Cox’s motion for summary

judgment. See LR 7.4 (“Failure to respond to a motion will be taken as a representation of no

opposition.”).

The parties were provided proper notice of, and the opportunity to object to, the Magistrate

Judge’s M&R. See 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72(b); General Order No. 2002-13. No

objection has been filed. When no timely objection has been filed, the district court need only

determine whether the magistrate judge’s M&R is clearly erroneous or contrary to law. United

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States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989) (per curiam); Badaiki v. Schlumberger

Holdings Corp., 512 F. Supp. 3d 741, 743-44 (S.D. Tex. 2021) (Eskridge, J.).

Having reviewed the proposed findings and conclusions of the magistrate judge, the filings

of the parties, the record, and the applicable law, and finding that the M&R is not clearly erroneous

or contrary to law, the Court VACATES its previous order adopting the magistrate judge’s initial

M&R, (D.E. 28), and ADOPTS the amended M&R in its entirety, (D.E. 30). Plaintiff's claims are

DISMISSED. (D.E. 1). Further, the Court ORDERS that dismissal of this case count as a strike

for purposes of 28 U.S.C. § 1915(g). 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

Three_Strikes@txs.uscourts.gov. Defendant Cox’s motion for summary judgment is DENIED

without prejudice as moot. (D-.E. 25). A final judgment wiii be entered separately.

SO ORDERED. .

DAVID □□ MORALES

UNITED STATES DISTRICT JUDGE

Dated: Corpus Christi, Texas

April 28, 2023

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