Kedrien Booker v. Jason Gould, ET AL.

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION KEDRIEN BOOKER § § Plaintiff, § § CIVIL ACTION NO. 5:25-CV-156-RWS-JBB v. § § JASON GOULD, ET AL., § § Defendants. §

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Plaintiff Kedrien Booker, a prisoner currently confined in the Garfield County Jail in Enid, Oklahoma proceeding pro se, filed the above-styled civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged deprivations of his constitutional rights during his confinement in the Texas Department of Criminal Justice - Correctional Institutions Division. The case was referred to the United States Magistrate Judge in accordance with 28 U.S.C. § 636. Plaintiff complains that on September 30, 2025, another inmate threw blood and human waste on him while officers stood by and watched. Plaintiff signed the complaint the next day, on October 1, 2025. After review of the pleadings, the Magistrate Judge issued a Report and Recommendation on December 1, 2025, recommending that the lawsuit be dismissed for failure to state a claim, predicated upon failure to exhaust administrative remedies. Docket No. 6. The Magistrate Judge stated that TDCJ has a two-step grievance procedure and determined that it was not possible for Plaintiff to have filed a Step One grievance, received a response, filed a Step Two appeal, and received a response to that, between the date the incident occurred and the date he signed his lawsuit, one day later. Thus, the Magistrate Judge reasoned that the failure to exhaust was apparent on the face of the complaint, justifying dismissal of the lawsuit. See id. at 2 (citing Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007); Conklin v. Randolph, 553 F.App’x 457, 458 (5th Cir. 2014)). Plaintiff received copies of the Magistrate Judge’s Report on February 26 and March

10, 2026 (Docket Nos. 15, 16), but he has filed no objections. As a result, Plaintiff is barred from de novo review by the District Judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the District Court. Duarte v. City of Lewisville, Texas, 858 F.3d 348, 352 (5th Cir. 2017). The Court has reviewed the pleadings in this cause and the Report and Recommendation of the Magistrate Judge. Upon such review, the Court has determined that the Report of the Magistrate Judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law.”).

Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge (Docket No. 6) is ADOPTED as the opinion of the District Court. It is further ORDERED that the above-styled civil action is DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted, predicated upon the failure to exhaust administrative remedies. The dismissal of this lawsuit shall count as a strike for purposes of 28 U.S.C. § 1915(g). Emmett v. Ebner, 423 F.App’x 492, 493-94 (5th Cir. 2011) (district court properly dismissed lawsuit for failure to state a claim upon which relief may be granted, predicated on failure to exhaust administrative remedies; district court’s dismissal of the complaint counted as a strike). The Clerk shall send a copy of this order to the Administrator of the Three Strikes List for the Eastern District of Texas. It is further ORDERED that any and all motions which may be pending in this civil action are hereby

DENIED. So ORDERED and SIGNED this 11th day of May, 2026.

[oober ft LU e ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

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