Shafer v. Davis

S.D. Texas

Shafer v. Davis

DecidedApril 1, 2021

Docket2:20-cv-00167

StatusUnknown

This text of Shafer v. Davis (Shafer v. Davis) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shafer v. Davis, (S.D. Tex. 2021).

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Southern District of Texas ENTERED UNITED STATES DISTRICT COURT April 01, 2021 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION RICHARD SCOTT SHAFER, § Plaintiff, VS. § CIVIL ACTION NO, 2:20-CV-167 LORIE DAVIS, et al., Defendants. ORDER ADOPTING MEMORANDUM AND RECOMMENDATION Before the Court is Magistrate Judge Jason B. Libby’s Memorandum and Recommendation (M&R), entered on March 4, 2021. (D.E. 44). The M&R recommends that the Court deny Defendants Sergeant Nestor S. Ochoa (“Ochoa”) and Lieutenant Javier Muro’s (“Muro”) motion to dismiss (D.E. 34), grant Defendant Warden Evelyn Castro’s (“Castro”) motion to dismiss (D.E. 35) and dismiss Plaintiffs claims for injunctive relief against Defendant Castro in her official capacity for lack of subject matter jurisdiction. (D.E. 44, p. 11-12). 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 memorandum and recommendation is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989) (per curiam); Powell v. Litton Loan Servicing, LP, No. CIV. A. H-14-2700, 2015 WL 3823141, at *1 (S.D. Tex. June 18, 2015).

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Having carefully 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 ORDERS the following: (1) The Court ADOPTS the M&R in its entirety. (D.E. 44). (2) Defendants Ochoa and Muro’s motion to dismiss is DENIED. (D.E. 34). (3) Defendant Castro’s motion to dismiss is GRANTED. (D.E. 35). (4) Plaintiffs claims for injunctive relief against Defendant Castro in her official capacity are DISMISSED for lack of subject matter jurisdiction and the Clerk of Court is DIRECTED to TERMINATE Castro from the docket sheet. (5) Plaintiffs excessive force claims against Ochoa and Muro in their individual capacities are RETAINED.

SO ORDERED. / Af Lo DANUD S“MORALES UNITED STATES DISTRICT JUDGE Dated: Corpus Christi, Texas April 1, 2021

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Southern District of Texas ENTERED UNITED STATES DISTRICT COURT April 01, 2021 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION RICHARD SCOTT SHAFER, § Plaintiff, VS. § CIVIL ACTION NO, 2:20-CV-167 LORIE DAVIS, et al., Defendants. ORDER ADOPTING MEMORANDUM AND RECOMMENDATION Before the Court is Magistrate Judge Jason B. Libby’s Memorandum and Recommendation (M&R), entered on March 4, 2021. (D.E. 44). The M&R recommends that the Court deny Defendants Sergeant Nestor S. Ochoa (“Ochoa”) and Lieutenant Javier Muro’s (“Muro”) motion to dismiss (D.E. 34), grant Defendant Warden Evelyn Castro’s (“Castro”) motion to dismiss (D.E. 35) and dismiss Plaintiffs claims for injunctive relief against Defendant Castro in her official capacity for lack of subject matter jurisdiction. (D.E. 44, p. 11-12). 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 memorandum and recommendation is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989) (per curiam); Powell v. Litton Loan Servicing, LP, No. CIV. A. H-14-2700, 2015 WL 3823141, at *1 (S.D. Tex. June 18, 2015).

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Having carefully 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 ORDERS the following: (1) The Court ADOPTS the M&R in its entirety. (D.E. 44). (2) Defendants Ochoa and Muro’s motion to dismiss is DENIED. (D.E. 34). (3) Defendant Castro’s motion to dismiss is GRANTED. (D.E. 35). (4) Plaintiffs claims for injunctive relief against Defendant Castro in her official capacity are DISMISSED for lack of subject matter jurisdiction and the Clerk of Court is DIRECTED to TERMINATE Castro from the docket sheet. (5) Plaintiffs excessive force claims against Ochoa and Muro in their individual capacities are RETAINED.

SO ORDERED. / Af Lo DANUD S“MORALES UNITED STATES DISTRICT JUDGE Dated: Corpus Christi, Texas April 1, 2021

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Shafer v. Davis, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shafer-v-davis-txsd-2021.

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