Moseley v. Polk

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS GARY MOSELEY, § § Plaintiff, § § versus § CIVIL ACTION NO. 9:22-CV-126 § HEATHER O’DELL, § § Defendant. § MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Plaintiff Gary Moseley, an inmate confined within the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled civil rights lawsuit pursuant to 42 U.S.C. § 1983 against Heather O’Dell. The court previously referred this matter to the Honorable Christine L. Stetson, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 and orders of this court. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge recommending that a motion to dismiss filed by the defendant be granted. The court has received the Report and Recommendation, along with the record, pleadings, and all available evidence. Plaintiff filed objections to the magistrate judge’s Report and Recommendation. The court has conducted a de novo review of the objections in relation to the pleadings and the applicable law. After careful consideration, the court is of the opinion the objections are without merit. Plaintiff complains of being attacked by a fellow inmate and asserts the defendant failed to protect him. The magistrate judge concluded that as plaintiff did not make factual allegations demonstrating the defendant was aware plaintiff was subject to a substantial risk of serious harm, his allegations failed to establish a basis for concluding the defendant was deliberately indifferent. In his objections, plaintiff states he has always maintained the defendant was aware of the danger the other inmate posed. However, this conclusory allegation by plaintiff is insufficient to prevent dismissal of this lawsuit. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To withstand a motion to dismiss, plaintiff was required to allege facts establishing a claim that is plausible on its face. Jd. Plaintiff fails to allege facts that would satisfy this standard. ORDER Accordingly, the objections filed by plaintiff in this matter (#65) are OVERRULED. The findings of fact and conclusions of law set forth in the report of the magistrate judge (#60) are correct, and the report of the magistrate judge is ADOPTED. The motion to dismiss (#55) is GRANTED. A final judgment shall be entered in accordance with the recommendation of the magistrate judge.

SIGNED at Beaumont, Texas, this 13th day of August, 2025.

MARCIA A. CRONE UNITED STATES DISTRICT JUDGE