Gomez v. Valdez

Opinion

Southern District of Texas ENTERED UNITED STATES DISTRICT COURT ee SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION ALVARO PRETEL GOMEZ, § Plaintiff, : V. § CIVIL ACTION NO. 2:23-CV-00032 CHARLEY VALDEZ, Defendant. ORDER ADOPTING MEMORANDUM AND RECOMMENDATION Before the Court is Magistrate Judge Mitchel Neurock’s Memorandum and Recommendation (““M&R”). (D.E. 11). The M&R recommends that Plaintiff's 42 U.S.C. § 1983 claim against Defendant in his individual capacity be DISMISSED with prejudice as frivolous or for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1). Id. at 1. Plaintiff timely filed written objections to the M&R.! (D.E. 13). 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); see also FED. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”). In objecting, Plaintiff essentially re-urges his § 1983 claim, which asserts a violation of the Fourteenth Amendment’s Equal Protection Clause. (D.E. 13); see (D.E. 1; D.E. 10). Plaintiffs objection, however, still fails to explain how Plaintiff (an inmate serving a life sentence) is similarly situated to inmates who are serving two- year sentences or how any other action by state officials violates his equal protection rights. See

| Plaintiff was served the M&R on May 23, 2023. (DE. 12). Less than fourteen days thereafter, Plaintiff filed his written objections. See (D.E. 13). 1/2

(D.E. 13); see also (D.E. 11, p. 6) (stating this is a reason Plaintiffs claim fails). Plaintiff specifically takes issue with the M&R’s comparison of Plaintiffs equal protection claim to the plaintiff's equal protection claim in Ogles v. Wingate, No. A-16-CA-978, 2016 WL 4597640 (W.D. Tex. Sept. 1, 2016). (D.E. 13, p. 4-5). Plaintiff argues his equal protection claim is different from that of the Og/les plaintiff because unlike the Og/es plaintiff, whose claim concerned 3g and non-3¢ offenses, Plaintiffs claim concerns all 3g or other aggravated offenses. Jd. at 4. Plaintiff asserts that all inmates who commit these offenses are similarly situated to Plaintiff. Jd at 4—5. But despite this contention, as the M&R points out, Plaintiff does not allege that any of the unidentified inmates who supposedly received more favorable treatment were convicted of a similar 3g or any first-degree felony offense. See (D.E. 11, p. 9). In sum, the Court has made a de novo review of the portions of the M&R to which Plaintiff objected and agrees with the reasoning and findings set forth in the M&R. As such, the Court: (1) OVERRULES Plaintiffs objections in their entirety, (D.E. 13); (2) ADOPTS the M&R in its entirety, (D.E. 11); and (3) DISMISSES with prejudice Plaintiff's claim against Defendant as frivolous or for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1), (D.E. 1). A final judgment shall be entered separately. SO ORDERED.

/ eee DAVIBS. MORALES UNITED STATES DISTRICT JUDGE Signed: Corpus pest Texas June | &* , 2023

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