Church v. Rangel

Opinion

UNITED STATES DISTRICT COURT June 01, 2023 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION

WILLIE CHURCH, § § Plaintiff, § § VS. § CIVIL ACTION NO. 2:23-CV-00074 § ROMEO RANGEL, et al., § § Defendants. §

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION, AS MODIFIED, TO RETAIN CASE AND DISMISS CERTAIN CLAIMS On April 27, 2023, United States Magistrate Judge Jason B. Libby issued a “Memorandum and Recommendation to Retain Case and Dismiss Certain Claims” (M&R, D.E. 17). Plaintiff was provided proper notice of, and opportunity to object to, the Magistrate Judge’s M&R. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); General Order No. 2002-13. No objections have been timely filed. When no timely objection to a magistrate judge’s M&R is filed, the district court need only satisfy itself that there is no clear error on the face of the record and accept the magistrate judge’s M&R. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citing Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1420 (5th Cir. 1996)). Having reviewed the findings of fact and conclusions of law set forth in the Magistrate Judge’s M&R (D.E. 17), and all other relevant documents in the record, and finding no clear error, the Court ADOPTS as its own the findings and conclusions of the 1 / 2 Magistrate Judge with one modification to correct a clerical error. Accordingly, for purposes of §§ 1915A and 1915(e)(2), the Court RETAINS Plaintiff's deliberate indifference claims against Officer Aaron Cavazos, Officer Romeo Rangel and Officer Sven Strack. The Court RETAINS Plaintiffs excessive force claim against Officer Aaron Cavazos. These retained claims are against the officers in their individual capacity for monetary damages. The Court DISMISSES WITHOUT PREJUDICE Plaintiffs claims for money damages against the defendants in their official capacities as barred in this Court by the Eleventh Amendment.! The Court DISMISSES WITHOUT PREJUDICE Plaintiff's remaining claims for failure to state a claim pursuant to 28 U.S.C. $§ 1915(e)(2)(B) and 1915A(b)(1). ORDERED on June 1, 2023.

UNITED STATES DISTRICT JUDGE

The Magistrate Judge properly observed that a claim dismissed under the Eleventh Amendment is to be without prejudice. D.E. 17, p. 10 n.2. However, in the recital of his recommendations, that portion of the dismissal is recommended to be with prejudice. Id., p. 12. The Court identifies this as a clerical error and has modified the adoption of the recommendation accordingly as a dismissal without prejudice. 2/2